1) SECURITIES: Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 03-35374 (9th Cir. Apr. 6, 2005). Livid Holdings appealed the district court's dismissal with prejudice of its complaint against the corporate successors to Schroders & Co., Inc. under Fed. R. Civ. Proc. 12(b)(6). Livid's complaint alleged that the defendants violated Sec. 10(b) of the Securities Exchange Act of 1934, Rule 10b-5, the Washington Securities Act, Washington Revenue Code Sec. 21.20.010, and Washington tort law. The USCA concluded that the district court erred in dismissing Livid's complaint as it stated a claim for federal securities fraud, state securities fraud, and state tort violations-even under the heightened pleading standards of the Private Securities Litigation Reform Act. The USCA thus remanded to the district court for further proceedings. D.W. Nelson (author), Reinhardt, and Thomas, Circuit Judges. M. Seltzer of Los Angeles, CA, for the plaintiff-appellant; W. Alderman of San Francisco, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

2) TRADEMARKS: American Circuit Breaker Corp. v. Oregon Breakers, Inc., 03-35375 (9th Cir. Apr. 25, 2005). American Circuit Breaker Corporation ("ACBC") holds the STAB-LOK trademark in the United States. Schneider Canada holds the STAB-LOK trademark in Canada Federal Pioneer Limited ("Pioneer"), a subsidiary of Schneider Canada, manufactures circuit breakers for itself and ACBC. Circuit breakers sold by the companies are identical except for color. Pioneer makes black circuit breakers for ACBC and gray ones for itself. This dispute arose because Oregon Breakers bought gray circuit breakers from a Canadian third-party supplier and, without permission from ACBC, sold them in the U.S. under the trademark "STAB-LOK." The USCA noted that whether or not viewed as a gray market case, ACBC had to establish a "likelihood of confusion" to prevail. The district court dismissed ACBC's claims against Oregon Breakers for trademark infringement and unfair competition. The USCA affirmed, finding that the dismissal was supported by the law, the stipulations, and the record. Brunetti, McKeown (author), and Gould, Circuit Judges. A. Cooper of Washington, DC, for the plaintiff-appellant; T. Rysselberghe of Portland, OR, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

3) TRADEMARKS: Bosley Medical Institute, Inc. v. Kremer, 04-55962 (9th Cir. Apr. 4, 2005). Defendant Kremer was dissatisfied with the hair restoration services provided to him by the Bosley Medical Institute. To get even, he started a website, www.BosleyMedical.com, which, to say the least, was uncomplimentary to the Bosley Medical Institute. However, "Bosley Medical" is the registered trademark of the Bosley Medical Institute, and it brought suit against Kremer for trademark infringement and related claims. Kremer maintained that his noncommercial use of the mark is not actionable as infringement under the Lanham Act. The district court agreed with Kremer. So did the USCA. It held that the noncommercial use of a trademark as the domain name of a website-the subject of which is consumer commentary about the products and services represented by the mark-does not constitute infringement under the Lanham Act. However, Bosley Medical's cybersquatting claim was presented a distinct matter. The issue under the Anticy-bersquatting Consumer Protection Act ("ACPA") is whether Kremer had a "bad faith intent to profit" from the use of the trademark in his domain name, such as by making an extortionate offer to sell the BosleyMedical.com site to Bosley Medical. Because discovery regarding this claim had not been completed, and the issue itself was not within the scope of the summary judgment motion, the district court erred in granting summary judgment to Kremer as to cybersquatting. Finally, the USCA held that the district court should not have granted Kremer's motion to strike Bosley Medical's state-law claims pursuant to the California anti-SLAPP statute. Bosley Medical's complaint about the unauthorized use of its trademark as Kremer's domain name was not so lacking in merit as to be susceptible to an anti-SLAPP motion to strike at an early stage of the case. The USCA thus affirmed the district court's entry of summary judgment in favor of Kremer with respect to the infringement and dilution claims. It remanded the ACPA claim for further proceedings. It reversed the district court's grant of the anti-SLAPP motion to strike the state law claims. T.G. Nelson, Silverman (author), and Tallman, Circuit Judges. D. Torres of Los Angeles, CA, for the plaintiff-appellant; P. Levy of Washington, DC, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

4) CONTRACTS: Minidoka Irrigation District v. Department of the Interior, 03-35697 (9th Cir. Apr. 15, 2005). The Minidoka Irrigation District ("MID") sued the federal government alleging, inter alia, that the government breached its contract to credit MID with profits derived from the operation of the Minidoka Project power plant. The district court found MID's contract claim barred by the six-year statute of limitations in 28 USC Sec. 2401(a). MID appealed the district court's judgment for the government, arguing that: 1) repudiation cannot trigger the statute of limitations on a continuing contract; 2) the government's repudiation was anticipatory and could not trigger the statute of limitations; and 3) the district court erred in finding that the Bureau of Reclamation had unequivocally repudiated the contract by March of 1985. The USCA held that the district court did not clearly err in finding that the government had repudiated its contract with MID by March 1985, and thus upheld the district court's ruling that MID's contractual claim was barred by the statute of limitations of Sec. 2401(a). B. Fletcher, McKeown, and Gould (author), Circuit Judges. B. Singleman of Las Cruces, NM, for the appellant; AUSA R. Grisham of Boise, ID, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

5) FEDERAL SURPLUS PROPERTY: Tanadgusix Corp. v. Huber, 02-36142 (9th Cir. Apr. 21, 2005). The USCA found that the Vessel Conditional Transfer Document at issue in this case unambiguously established that the vessel "Ex-Competent" would reverted to the federal government if not kept in Alaska for four years. The reversion herein at issue was thus proper. Hall, Kleinfeld (author), and Wardlaw, Circuit Judges. T. Schlosser of Seattle, WA, for the appellants; AAG M. Vandor of Juneau, AK, for the state appellee; T. Bondy of Washington, DC, for the federal appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

6) PETROLEUM MARKETING PRACTICES ACT: Mustang Marketing, Inc. v. Chevron Products Company, 03-56516 (9th Cir. Apr. 29, 2005). Mustang Marketing brought this suit against Chevron Products Company alleging a violation of the Petroleum Marketing Practices Act ("PMPA"), with respect to a gas station Chevron leased from Macerich and then franchised to Mustang. Mustang alleged that Chevron failed to comply with a PMPA provision requiring Chevron to assign to Mustang any option it possesses for an ex-tension of the underlying lease after the underlying lease has expired. Mustang also alleged that Chevron violated the PMPA by entering into a subsequent lease with Macerich after ending Mustang's franchise through expiration of the original underlying lease and locked Mustang out of the deal. The district court granted Chevron summary judgment on all counts. Mustang appealed on the questions of: 1) Whether Chevron relying upon PMPA Sec. 2802(c)(4) can refuse to assign Mustang the option to extend the underlying lease; 2) Whether Chevron may end its franchise relationship with Mustang based upon expiration of its underlying lease with Macerich and subsequently negotiate a new underlying lease with Macerich and locking Mustang out of the deal; 3) Whether, if any of these allegations are true, any exemplary damages may be awarded to Mustang; 4) Whether the proposal sent by Chevron to Mustang in April constitutes a breach of contract in California; and 5) Whether this case, if remanded, should be reassigned to a different district judge. The USCA reversed and remanded. This case presented the very situation the creators of the PMPA provision under discussion sought to remedy. Congress intended to remedy situations where the franchisor, using its superior bargaining position and strength, could evict the operator by claiming non-renewal of the underlying lease but continuing to hold onto any options it possesses to extend the lease. This appears to be exactly what happened to Mustang. However, Mustang failed to show any personal bias on the part of the district judge, nor did it carry its burden of demonstrating the fulfillment of the factors needed to show that "unusual circumstances" were present in this case. The USCA thus declined to remand back to a different district judge. Tashima and Wardlaw, Circuit Judges, and Collins (author), District Judge. S. Thomas of San Diego, CA, for the plaintiff-appellant; M. Armstrong of Los Angeles, CA, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

7) AMERICANS WITH DISABILITIES ACT: Lutz v. Glendale Union High School, 03-15745 (9th Cir. Apr. 8, 2005). Lutz, a longtime teacher and assistant principal at schools in Glendale Union High School District, sued Glendale in Arizona state court, claiming she was fired in violation of the Americans with Disabilities Act. Glendale removed the action to federal district court, where it successfully moved for summary judgment on the issue of whether Lutz is substantially limited in a major life activity and thus disabled. The USCA reversed, finding a triable issue as to whether Lutz is substantially limited in the major life activity of walking. On remand, Lutz filed an amended complaint, raising new claims under Sec. 504 of the Rehabilitation Act, and under the Arizona Civil Rights Act. She also divided her ADA claim into separate claims that Glendale failed to provide reasonable accommodations and that it fired her because she exercised her rights under the ADA. Over Glendale's objection, the district court tried all of Lutz's claims to a jury, which found for Lutz. Glendale appealed, arguing that the district court erred in submitting the case to a jury because Lutz had waived her right to a jury trial. The USCA reversed and remanded. Because Lutz did not make a timely request for a jury trial on liability, she waived her right in have a jury determine that issue. The district court thus erred in submitting the issue of liability to a jury. The USCA vacated the jury's verdict and remanded for further proceedings. Kozinski (author), W. Fletcher and Bybee, Circuit Judges. L. Badoux of Phoenix, AZ, for the appellants; J. Stewart of Gold Canyon, AZ, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

8) DAMAGES / RACIAL DISCRIMINATION: Bains LLC v. ARCO Products Co., 02-35906 (9th Cir. Apr. 19, 2005). ARCO hired a number of companies to truck fuel from its Blaine, Washington, refinery to its distribution center. Bains LLC is solely owned by three brothers who are American citizens born in India. Following extensive race-based abuse from Bill Davis, the lead man at ARCO's Seattle terminal where the Bains brothers would drop off their fuel, ARCO terminated their contract to truck fuel. The jury delivered a special verdict. It found that ARCO had breached the Bains contract, a state law claim, and awarded $50,000 in compensatory damages for that breach. The verdict also established that ARCO had discriminated against the Bains on account of race, in violation of 42 USC Sec. 1981, but that the actual damages to the corporation on account of this discrimination were nominal. The jury thus awarded only one dollar in compensatory damages on their Sec. 1981 claim. In addition, however, the jury awarded $5 million in punitive damages for the racial discrimination. The district court denied ARCO's motion for judgment as a matter of law or a new trial, or alternatively, to set aside or remit the punitive damages. It awarded $392,065 in attorneys' fees and $10,017 in costs, plus $50,000 in additional fees and $916 in additional costs, based on the post-trial proceedings. The USCA affirmed the jury verdict and the rulings of the district court on all issues, except for the amount of punitive damages, which it vacated, finding that the award exceeds constitutional limits. On de novo review, the USCA said it is required to reduce it or to remand so that the district court may order a new trial, unless the plaintiff accepts a remittitur. The level of punitive damages is not a finding of "fact" that must be determined by the jury; it may be determined de novo by the court. Because the district court tried the case and has greater understanding of the fact, the USCA remanded the case and leave the amount, within the $300,000 to $450,000 range, to the district court. Kleinfeld (author), Gould, and Tallman, Circuit Judges. M. Reiss of Seattle, WA, for the appellants; E. Heipt of Seattle, WA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

9) INTERVENTION / ABSTENTION / STATE BAR DISCIPLINARY PROCEEDINGS: Canatella v. State of California, 03-15306 (9th Cir. Apr. 11, 2005). In March 2000, California attorney Canatella brought the underlying federal action in this case. Having been subject to disciplinary action before the State Bar of California, he sought an injunction against further disciplinary action and challenged sev-eral state bar statutes and one professional rule on that grounds that they are unconstitutional on their face and as applied. Canatella v. California, 304 F.3d 843 (9th Cir. 2002), held that Canatella had standing, that his claims were ripe, and that Younger abstention was inappropriate as to him because the state disciplinary proceedings against him were no longer ongoing. California attorney Bendel appealed the denial of his motion to intervene as a plaintiff in the federal action bring constitutional challenges to California's state bar statutes and disciplinary proceedings. The district court determined that it was required to abstain from exercising jurisdiction as to Bendel under Younger v. Harris, 401 US 37 (1971), and denied Bendel's motion to intervene on that basis alone, without reaching the merits of either intervention as of right or permissive intervention under Federal Rules Civil Procedure 24(a)(2) and (b)(2). The USCA affirmed. The district court correctly determined that it was required to abstain from exercising jurisdiction as to Bendel's proposed complaint-in-intervention, in which he requested only declaratory and injunctive relief. Bendel is independently subject to Younger abstention but Canatella is not, and Bendel and Canatella's respective interests are not so intertwined that they should be subject to the same considerations under Younger. The district court thus was not required to consider the merits of intervention before denying Bendel's motion to intervene solely on the basis of Younger abstention. Hall, Brunetti (author), and Graber, Circuit Judges. R. Bendel of Woodland Hills, CA, intervenor, pro se; J. Goldman of San Francisco, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/)

10) POLITICAL QUESTIONS: Alperin v. Vatican Bank, 03-15208 (9th Cir. Apr. 18, 2005). Twenty-four individuals and four organizations (the "Holocaust Survivors") claimed that the Vatican Bank profited from the genocidal acts of the Croatian Ustasha political re-gime, which was supported throughout World War II by Nazi forces. The Holocaust Survivors brought suit in federal court claiming conversion, unjust enrichment, restitution, the right to an accounting, human rights violations, and violations of international law arising out of the defendants' alleged involvement with the Ustasha. The district court concluded that the political question doctrine barred consideration of the merits of the claims in their entirety. It also dismissed the action against the Croatian Liberation Movement, which never appeared in the action, on the grounds that the claims were barred by both the political question doctrine and the lack of personal jurisdiction over this defendant. The USCA reversed in part, finding that certain of the claims-those with respect to lost and looted property-were not barred by the political question doctrine. However, it found that the broad human rights allegations tied to the Bank's alleged assistance to the war objectives of the Ustasha presented nonjusticiable controversies. The USCA agreed with the district court that it did not have personal jurisdiction over the Croatian Liberation Movement. Judge Trott agreed that the War Objective Claims were not justiciable, but dissented as to the other conclusions reached by the majority. In the main, he concurred in the district court's view that the complaint raised issues that the Constitution commits to the legislative and executive branches, not to the judiciary. Trott (dissenting in part) and McKeown (author), Circuit Judges, and Shadur, District Judge K. Boyd of Malibu, CA, for the plaintiffs; J. Lena of Berkeley, CA, for the defendants.(Download the full text of this decision at www.ce9.uscourts.gov/)

11) CIVIL PROCEDURE: Hells Canyon Preservation Council v. U.S. Forest Service, 03-35579 (9th Cir. Apr. 5, 2005). The issue here was when a party withdraws one of its claims before the trial court enters judgment and the action is subsequently dismissed on the merits, does the court's failure to indicate that the withdrawn claim was dismissed without prejudice necessarily render its decision a "final judgment on the merits" as to that claim? The USCA said "no" and reversed the dismissal of this suit on res judicata grounds and remanded for further proceedings. Reinhardt, Berzon (author), and Bybee, Circuit Judges. W. Sherlock of La Grande, OR, for the plaintiff; AUSA J. Handy of Portland, OR, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/)

12) PEER REVIEW & THE DEATH OF A PRISONER: Agster v. Maricopa County, 04-15466 (9th Cir. Apr. 28, 2005). On August 6, 2001, Agster was arrested and taken to the county jail where he was placed in a restraint chair. His respiration decreased, and he developed an irregular heartbeat. Attempts were made to resuscitate him, and he was eventually taken to a hospital where he was placed on life support. On August 9, 2001, he was pronounced dead. His parents and the representative of his estate brought this action in state court against individuals and Maricopa County and Maricopa County Sheriff's Office (collectively, the "County") for his death while in the custody of the County. The County removed the action to the federal district court. Prior to trial, the plaintiffs sought discovery of the mortality review. The motion was opposed by the County evoking Arizona law to maintain its confidentiality. The district court ruled that "no federal peer review has been adopted in the Ninth Circuit," but it overruled the claim of privilege and ordered the production of the document. On this interlocutory appeal, the County challenged the order of the district court compelling production of the mortality review conducted by the Correctional Health Services. The USCA found that it had jurisdiction to consider the County's claim of privilege, and held that federal law recognizes no privilege of peer review in the context of a case involving the death of a prisoner. Noonan (author), Thomas, and Fisher, Circuit Judges. M. Wolver of Phoenix, AZ, for the defendants-appellants; S. Berberian of Phoenix, AZ, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

13) CIVIL RIGHTS: Hudson v. Craven, 03-35408 (9th Cir. Apr. 6, 2005). This civil rights action arose from a college instructor's claim that her college retaliated against her after she attended an anti-WTO rally with some of her students. Her claim was a hybrid-involving both speech and association rights under the First Amendment. The issue was one of first impressions in the Circuit: namely, the appropriate test for benchmarking this hybrid right. The USCA concluded that the case should be evaluated under the bal-ancing test established in Pickering v. Board of Education, 391 US 563, 568 (1968), and that under Pickering, the college's legitimate safety and pedagogical concerns outweighed the instructor's interest in attending the rally with her students. The college did not impermissibly infringe on the instructor's First Amendment rights. The USCA thus concluded that it did not need to reach the question of whether her termination was otherwise justified. The USCA affirmed the district court's grant of summary judgment in favor of the college. Hawkins, Thomas, and McKeown (author), Circuit Judges. D. Potter of Portland, OR, for the plaintiff; AAG T. Abolins of Olympia, WA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/)

14) CIVIL RIGHTS: Baldwin v. Placer County, 04-15848 (9th Cir. Apr. 19, 2005). Placer County, California, and several of its police officers (collectively the "County") took this interlocutory appeal from the district court's denial of its motion for qualified immunity in a 42 USC Sec. 1983 action brought by the plaintiffs. On the basis of the facts, conceded as undisputed by the County for purposes of this appeal, the USCA held that the County violated established constitutional rights of the plaintiffs and that qualified immunity was properly denied. Conspiracy to violate a citizen's rights under the Fourth Amendment by lying to the magistrate is evidently as much a violation of an established constitutional right as the perjury itself. Whether there is sufficient evidence of the conspiracy is for a jury to decide. No immunity exists for the conspiracy. Noonan (author), Thomas, and Fisher, Circuit Judges. D. Huskey of Auburn, CA, for the defendants-appellants; J. Nick of San Francisco, CA, for the plaintiffs-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

15) IMMIGRATION: Limon v. Gonzales, 03-71896 (9th Cir. Apr. 19, 2005). Petitioner Limon, a native and citizen of the Philippines, became a lawful permanent resident based on an immediate relative visa petition by her naturalized citizen daughter, Marilou. The gov-ernment later discovered that Marilou's marriage to the U.S. citizen was invalid due to a prior marriage in the Philippines, and her citizenship was revoked retroactively to the date of citizenship. The government charged Limon as removable for not having a valid visa at the time of entry. The Immigration Judge sustained the charge, and Limon did not contest the issue on appeal. Instead, Limon sought a discretionary waiver under 8 USC Sec. 1182(k) and also requested voluntary departure. The IJ denied both requests, and the BIA affirmed. On appeal, Limon argued that the BIA abused its discreiton in both decisions, while the government maintained that this court lacked jurisdiction to review either decision and must dismiss the appeal. The USCA held that it had jurisdiction to review this eligibility determination and that substantial evidence supported the BIA's determination that the petitioner was not eligible for the waiver. It denied the petition. Hawkins (author), McKeown, and Clifton, Circuit Judges. D. Ndudim of Sacramento, CA, for the petitioner; L. Jentzer of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

16) IMMIGRATION: Biwot v. Gonzales, 03-71456 (9th Cir. Apr. 14, 2005). Biwot, a citizen of Kenya, came to the United States on a non-immigrant student visa in 1996. In 1999, he was involved in a dormitory brawl that resulted in a conviction for third-degree assault. That conviction prompted the INS to charge him with failure to maintain his student status. Eventually, he was ordered removed by an Immigration Judge and appealed. The Board of Immigration Appeals dismissing his appeal from that order. At issue was whether he was denied his right to counsel when the IJ allowed him, as a person who was incarcerated and diligently seeking representation, only five working days to obtain counsel. The USCA held that Biwot was denied his statutory right to counsel and, thus, granted the petition in part and remanded to the BIA with instructions to remand to the IJ. The USCA noted that although immigration judges may not be required to undertake Herculean efforts to afford the right to counsel, at a minimum they must inquire whether the petitioner wishes counsel, determine a reasonable period for obtaining counsel, and assess whether any waiver of counsel is knowing and voluntary. These fundamental steps were absent in Biwot's case. B. Fletcher, McKeown (author), and Gould, Circuit Judges. R. McBride of Seattle, WA, for the petitioner; M. Sarko of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

17) IMMIGRATION: Singh v. Gonzales, 02-74426 (9th Cir. Apr. 13, 2005). Singh, a native and citizen of India, entered the U.S. without inspection in June 1994. He applied for asylum in November 1998, citing persecution by the Indian police because he supported Sikh separatism. An Immigration Judge denied his applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"), after making adverse credibility determinations. The Board of Immigration Appeals streamlined Singh's appeal and affirmed. The USCA found that none of the four adverse credibility grounds relied upon by the IJ were supported by substantial evidence. The IJ did not determine whether Singh's testimony, if credible, established past persecution or a well-funded fear of persecution. The USCA thus remanded for further proceedings, accepting Singh's testimony as credible, to determine his eligibility for asylum, withholding of removal and CAT relief. Judge Leavy concurred in the result that the adverse credibility determination was not supported by substantial evidence. But, he noted that the citations to medical and psychological journals that discuss the scientific explanations for lapses in date recall, none of which are in the record, suggest that the panel's decision is premised on factfinding that has not been tested by the adversarial process. Moreover, it incorrectly suggests that an inaccurate process of date recollection is the reason for the panel's "minor discrepancy" jurisprudence. Judge Leavy thought it sufficient to rely upon the Circuit's well-established precedent. B. Fletcher, Leavy (concurring), and Berzon (author), Circuit Judges. G. Heridis of San Francisco, CA, for the petitioner; D. Gupta of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

18) IMMIGRATION: Tchoukhrova v. Gonzales, 03-71129 (9th Cir. Apr. 21, 2005) This case involves the negligence, incompetence, and depravity of staff at a Russian state-owned hospital directed at a child and resulting in great injury to that child. At issue was whether asylum may be granted to the parents of a disabled child who has been persecuted in his native land on account of his disability or whether the court is compelled to force the family to return Russia where the child is likely to face further debilitating persecution. The USCA held that disabled children and their parents constitute a statutorily protected group and that a parent who provides care for a disabled child may seek asylum and withholding of removal on the basis of the persecution the child has suffered on account of his disability. The USCA also held that the parent who is seeking asylum and withholding is eligible for the former relief and entitled to the latter. Finally, the USCA held that the parent's spouse and the disabled child are eligible for asylum by virtue of their derivative application and are also entitled to withholding of removal. Reinhardt (author), Tashima, and Wardlaw, Circuit Judges. J. Montag of San Diego, CA, for the petitioner; AAG P. Keisler of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

19) IMMIGRATION / TORTURE: Nuru v. Gonzales, 03-71391 (9th Cir. Apr. 21, 2005). The Immigration Judge found the petitioner, a native and citizen of Eritrea, to be a credible witness but denied his petition for asylum, withholding or removal, and protection under the Convention Against Torture ("CAT") on the grounds that he had not suffered past persecution as a result of his political opinion and that he would not be tortured if he were returned to Eritrea. The Board of Immigration Appeals adopted these findings and further found that the petitioner's punishment by the Eritrean military was not disproportionately harsh and that he had not presented evidence that any punishment he would receive in the future would be disproportionately harsh or would be inflicted on account of his political beliefs. On appeal, the petitioner argued that it is more probable than not that he will be tortured if he is returned to Eritrea, that he suffered persecution "on account of" his political opinion in the past, that he has a well-funded fear that he will be similarly persecuted in the future, and that he is eligible for asylum and entitled to withholding of removal, and well as protection under CAT. The USCA agreed. The petitioner had met his CAT burden; it is more likely than not that he will be tortured if he is returned to Eritrea. Because he has a well-founded fear of persecution on account of a statutorily protected ground, he is also eligible for asylum. The USCA thus granted the petition and remanded for the exercise of discretion with respect to the asylum claim. Finally, the USCA directed that the case be assigned to a different immigration judge upon remand. Reinhardt (author), Tashima, and Wardlaw, Circuit Judges. S. Paek of Los Angeles, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

20) IMMIGRATION / SENTENCING: USA v. Cortez-Arias, 04-10184 (9th Cir. Apr. 18, 2005). Cortez appealed from the 46-month prison sentence that the district court imposed upon him for illegal re-entry into the U.S. after being deported, in violation of 8 USC Sec. 1326(a). The district court imposed a 16 level increase in offense level pursuant to Sentencing Guidelines Sec. 2L1.2(b)(1)(A) because it found that, under USA v. Weinert, 1 F.3d 889 (9th Cir. 1993) (per curiam), Cortez-Arias' prior conviction for shooting at an inhabited dwelling, in violation of California Penal Code Sec. 246, was a conviction for a "crime of violence." The USCA affirmed. Although it disagreed with the district court's reasoning, the USCA agreed with its conclusion that shooting at an inhabited dwelling in violation of Sec. 246, is a crime of violence under Sec. 2L1.2. D.W. Nelson, Kleinfeld, and Gould (author), Circuit Judges. R. Walker of Carson City, NV, for the appellant; AUSA R. Gifford of Reno, NV, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

21) FORFEITURE: USA v. Nava, 03-30010 (9th Cir. Apr. 18, 2005). Nava was convicted of conspiracy to distribute and possession with intent to distribute methamphetamine. The jury rendered a special verdict that several properties were used to facilitate his crimes or were proceeds of them and should be forfeited to the government pursuant to 21 USC Sec. 853. Nava's daughter, Victoria, petitioned the district court claiming that she held legal title to two of the properties. The district court denied her petition to set aside the forfeiture. The USCA reversed and remanded. The district court erred in holding that Victoria failed to establish by a preponderance of the evidence that she had a legal right, title or interest in the two properties. Dissenting, Judge Rymer said she did not believe that forfeiture pursuant to Sec. 853 turns on who hold bare legal title for then forfeiture could always be avoided by putting property in the name of a nominee. Judge Rymer would hold that property of a defendant whose title is held by a straw or nominal owner may be forfeited. O'Scannlain, Rymer (dissenting), and Bybee (author), Circuit Judges. J. Sands of Billings, MT, for the appellant; W. Mercer of Billings, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

22) QUALIFIED IMMUNITY / CIVIL RIGHTS: San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 02-16329 (9th Cir. Apr. 4, 2005). In this civil rights action, the defendants, seven San Jose City Police Officers and Deputy Sheriff Linderman, appealed from a district court order denying in part their motions for qualified immunity. This action arose out of the simultaneous execution of search warrants at the residences of several members of the Hells Angels Motorcycle Club, and at their clubhouse. While exe-cuting two of the search warrants, the officers shot three dogs. During the course of the searches, they seized literally "truckloads" of personal property for the sole purpose of showing in a murder prosecution that the Hells Angels had common symbols, which in turn would qualify it as a criminal street gang and thus support a sentencing enhancement under California Penal Code Sec. 186.22. In seizing this "indicia" evidence, the officers seized numerous expensive Harley-Davidson motorcycles, a concrete slab, and a refrigerator door. In so doing, they caused significant damage to the items seized as well as other property. The district court, applying the two-part test of Saucier v. Katz, 533 US 194 (2001), for determining whether a public official is entitled to qualified immunity, denied in part the defendants motions for summary judgment on the ground that they are entitled to qualified immunity.

The USCA affirmed the district court's order denying qualified immunity. It held that Linderman's instructions to seize "truckloads" of personal property, including numerous motorcycles and a piece of concrete, for the sole purpose of proving that the Hells Angels was a gang was an unreasonable execution of the warrants in violation of the Fourth Amendment. It further held that at the time the searcher were carried out the law was sufficiently clear to put a reasonable officer on fair notice that this conduct was unlawful. The USCA also held that shooting the dogs was an unreasonable seizure, and an unreasonable execution of the search warrants, in violation of the Fourth Amendment. Exigent circumstances did not exist at either residence, as the officers had a week to consider the option and tactics available for an encounter with the dogs. Finally, the USCA held that the unlawfulness of the officers' conduct would have been apparent to a reasonable officer at the time the officers planned for serving the search warrants. Judge Bea concurred with most of the majority opinion. For the officers to have conducted these searches without any plan by which to control the dogs other than to shoot them is outrageous, especially given that they knew about the dogs well in advance. Clearly, a reasonable officer would have understood that his actions violated an established right of the plaintiffs. However, Judge Bea would reverse the district court's order denying Deputy Sheriff Linderman qualified immunity. Given that Linderman was commanded to seize any evidence meeting the broad description in the warrant, he was not unreasonable in construing the warrant literally, and certainly it is not clear that a reasonable officer would have known that Linderman's conduct was unlawful in the situation he confronted. Because the police were looking for evidence of a murder and a possible gang enhancement charge, and, most importantly, because the police did not seize any evidence that was outside the scope of the warrant, Judge Bea failed to see how a torn-up sidewalk, spoiled food in the refrigerator, and the loss of a mailbox rise to the level of a constitutional violation. Accordingly, he dissented from the denial of qualified immunity to Linderman. Paez (author), Berzon, and Bea (dissenting in part), Circuit Judges. A. Ravel and R. Doyle of San Jose, CA, for the defendants; K. Snell of San Francisco, CA, for the plaintiffs. (Download the full text of this decision at www.ce9.uscourts.gov/)

23) SEARCH & SEIZURE: USA v. Gust, 04-30208 (9th Cir. Apr. 26, 2005). Gust was convicted for possession of an unregistered firearm in violation of 26 USC Sec. 5861(d). He challenged the district court's denials of his suppression motion and his renewed suppres-sion motion, arguing that the district court erred in determining that he had no legitimate expectation of privacy in a locked container that the district court found was readily identifiable as a gun case based on its outward appearance. The USCA held that the district court erred in finding that the case in dispute is identifiable as a gun case based on its outward appearance alone, and in applying the "single purpose container" exception to uphold the warrantless search of the case. Given that the district court had also ruled that the government could not justify the search based on consent or the exigent circumstances exception, Gust was entitled to have the sawed-off shotgun in the case and his post-search statements suppressed. The USCA thus reversed and remanded for further proceedings. Fernandez, Tashima, and Gould (author), Circuit Judges. G. Smith of Spokane, WA, for the defendant; AUSA G. Jacobs of Spokane, WA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

24) SEARCH & SEIZURE: USA v. Pulliam, 03-50550 (9th Cir. Apr. 21, 2005). Following a lawful traffic stop of a car in which Pulliam was a passenger, the police illegally detained him and the car's driver, and illegally searched the car. The search produced a gun, and Pulliam was charged with being a felon in possession of a firearm in violation of 18 USC Sec. 922(g)(1). Because Pulliam lacked standing to object to the vehicle search, and the gun's discovery was not the product of Pulliam's unlawful detention, the gun should not have been suppressed. The USCA thus reversed and remanded. Dissenting, Judge Wardlaw thought there was only one issue here: Whether a defendant may successfully move to suppress evidence found in a car in which he was a passenger where the car and its occupants were legally stopped but unlawfully detained. Although this was an issue of first impression in the Circuit, Judge Wardlaw thought that the Circuit's vehicular stop cases provided a framework for resolving it, and those cases hold that although a defendant may lack the requisite possessory or ownership interest in a vehicle to directly challenge a search of that vehicle, the defendant may nonetheless contest the lawfulness of his own detention and seek to suppress evidence found in the vehicle as the fruit of that illegal detention. Here, the government conceded that the officers lacked authority to detain the car and its occupants. In addition, it was clear that, but for the illegal actions of the police in detaining the car and its passengers, the gun would not have been discovered. Accordingly, Judge Wardlaw thought the district court had correctly granted Pulliam's motion to suppress. Wallace (author), T.G. Nelson, and Wardlaw (dissenting), Circuit Judges. AUSA F. Rowley of Los Angeles, CA, for the plaintiff; DFPD E. Newman of Los Angeles, CA, for the defendant.(Download the full text of this decision at www.ce9.uscourts.gov/)

25) EVIDENCE: USA v. Caymen, 03-30365 (9th Cir. Apr. 21, 2005). At issue here was a motion to suppress evidence found on the hard drive of a computer which had been obtained by fraud from a computer supply company. The company reported to police that a woman had complained that a charge had been made to her credit card for a computer she had not purchased. The police obtained a search warrant for the house where Caymen rented a room. In searching the room for the computer and evidence of credit card fraud, they discovered the computer in his room. It was connected to a desktop tower which Caymen had rented but never made any payments for and not returned. Caymen was present during the search. In Caymen's wallet, the police found two receipts for the purchase and subsequent cancellation of a computer that Caymen had ordered from another store. Printed on those receipts was yet another credit card number that did not belong to Caymen. The police also found receipts containing the names and credit card information of guests who had stayed at the hotel where Caymen worked. The police next asked the first computer company for permission to search the hard drive. The store owner not only consented but specifically requested that the police search it as he didn't want to have anything on the computer that should not be there. The police looked at the hard drive for evidence of credit card fraud, but instead found child pornography. They immediately stopped their search of the hard drive and obtain another search warrant as they now had probable cause to believe that Caymen possess child pornography. Caymen was indicted for possession of child pornography and fraudulent use of a credit device. He moved to suppress the evidence of the child pornography. His motion was denied. The USCA affirmed. Caymen failed to carry his burden of proof to establish an acceptable expectation of privacy in the computer searched. The Fourth Amendment does not protect a defendant from a warrantless search of property that he stole, because regardless of whether he expects to maintain privacy in the contents of the stolen property, such an expectation is not one that society is prepared to accept as reasonable. Hall, Kleinfeld (author), and Wardlaw, Circuit Judges. AFD M. Geddes of Anchorage, AK, for the appellant; AUSA S. Skrocki of Anchorage, AK, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

26) DISCOVERY / DISCLOSURE ORDERS: USA v. Bergonzi, 03-10511 (9th Cir. Apr. 1, 2005). Intervenor-appellant McKesson Corporation brought this interlocutory appeal of a discovery disclosure order in a criminal case. The district court ordered the government to produce to defendants McCall and Lapine materials McKesson provided to the government under a confidentiality agreement that acknowledged the government's right to use the materials in any criminal proceeding. McKesson argued that as to others the materials should remain protected by the attorney client privilege and work product doctrine. The district court disagreed and ordered disclosure to the defendants in accordance with Rule 16 of the Federal Rules of Criminal Procedure and Brady v. Maryland, 373 US 83 (1963). The USCA dismissed McKesson's appeal of the district court's order as moot because McKesson subsequently conceded that the defendants were entitled to use the materials in their defense; it thus no longer challenged the district court's Brady and Rule 16 rulings. Because McKesson did not seek reversal of the disclosure order as to these defendants, there was no other relief the USCA could provide. Beezer, W. Fletcher, and Fisher, Circuit Judges. Per Curiam. K. Krakaur of New York, NY, for the intervenor-appellant McKesson Corporation; AUSA T. Crudo of San Francisco, CA, for the plaintiff-appellee; W. Goldman of San Francisco, CA, and A. Oh of New York, NY, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

27) WIRETAPS: USA v. Callum, 02-10210 (9th Cir. Apr. 20, 2005). Suspecting the defendants of drug trafficking, the DEA and AUSA asked for and received a DOJ authorization letter for wiretaps. A district court judge signed an order authorizing the wiretaps. The USCA upheld the challenged wiretap applications and orders, but noted that the DOJ and its officers did not cover themselves with glory in obtaining these particular wiretaps. The USCA noted that Title III is an exacting statute obviously meant to be followed punctiliously, yet the offices here repeatedly ignored its clear requirements. The sloppy handling of Title III's procedures by the US Attorney's Office "bespeaks a lamentable lack of supervision." Concurring, Judge Pregerson wrote separately to emphasize his concern with the careless and irresponsible handling of the wiretap applications in this instance by the U.S. Attorney's Office. There were, he noted, three wiretap applications involved and the government didn't get one right. Pregerson (concurring) and Kozinski (author), Circuit Judges, and Rhoades, District Judge. M. Rosenbush of San Francisco, CA, for the defendant; AUSA R. Hardie of Oakland, CA, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/)

28) THREATENING THE PRESIDENT: USA v. Lincoln, 04-30040 (9th Cir. Apr. 8, 2005). Lincoln was convicted of knowingly and willfully threatening the life of the President of the United States in violation of 18 USC Sec. 871. The charge arose from statements made in a letter dated September 24, 2001 that Lincoln attempted to mail while incarcerated at the Oregon State Penitentiary. The district court acknowledged that the letter itself was not a "true threat," but determined that a true threat blossomed from the "context" in which the statements were made. The USCA reversed Lincoln's conviction upon concluding that the contextual background did not transform the letter into a threat. There was insufficient evidence to support Lincoln's conviction. The context of Lincoln's statements did not give new meaning to what his letter plainly stated. Even viewed in the light most favorable to the government, the letter did not constitute a true threat, and could not support a conviction under Sec. 871. Lincoln's letter was his crude and offensive way of stating political opposition to the President, and such political hyperbole did not constitute a "threat" under Sec. 871. Although the language used was disturbing, Lincoln was exercising his constitutional right to endorse the violent actions of Bin Laden and Al Qaeda, which is protected speech. T.G. Nelson and Rawlinson (author), Circuit Judges, and Schwarzer, District Judge. M. Levine 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.ce9.uscourts.gov/)

29) ILLEGAL GUN TRANSACTIONS: USA v. Ogles, 03-10439 (9th Cir. Apr. 28, 2005). Ogles appealed his conviction for willfully selling and transferring physical possession of a firearm in violation of 18 USC Secs. 922(b)(3) and 924(a)(1)(D) (Count One), on the grounds that the district court erred in denying both his motion for a judgment of acquittal pursuant to Fed. R. Crim. Proc. 29 and his motion for a new trial pursuant to Fed. R. Crim. Proc. 33. The government appealed the district court's order granting Ogles's motion for a judgment of acquittal pursuant to Rule 29 as to the charge of willfully engaging in the business of dealing firearms without a license in violation of 18 USC Secs. 922(a)(1)(A) and 924(a)(1)(D) (Count Two). The USCA affirmed Ogles's conviction under Count One but reversed the district court's judgment of acquittal as to Count Two and remanded for further proceedings. Ogles relied on USA v. Caldwell, 49 F.3d 251 (6th Cir. 1995), wherein the Sixth Circuit rejected the government's contention that "a dealer's license is location specific" for purposes of Sec. 922(a)(1(A). There, the defendant was a licensed dealer of firearms but sold firearms away from the licensed premises, and pleaded guilty to dealing firearms without a license in violation of Sec. 922(a)(1)(A). The Sixth Circuit vacated the conviction, holding that "the statute contains no language stripping the dealer's license status for selling firearms away from the licensed premises." Id. at 252. But, the USCA disagreed with Caldwell. Judge Rymer agreed with the majority's disposition of Ogles's appeal of his conviction under Sec. 922(b)(3), and with its conclusion that the USCA has jurisdiction to hear the government's appeal of the motion for acquittal as to Count Two. However, she disagreed that the location-specific nature of federal gun licenses resolves the issue of whether Sec. 922(a)(1) criminalizes Ogles's conduct. Rymer (dissenting in part), Tallman, and Bea (author), Circuit Judges. AUSA M. Davila of Washington, DC, for the plaintiff-appellee; R. Gardiner of Fairfax, VA, for the defendant-appellant.(Download the full text of this decision at www.ce9.uscourts.gov/)

30) HABEAS CORPUS: Musladin v. Lamarque, 03-16653 (9th Cir. Apr. 8, 2005). At issue here is whether at a murder trial in which the defendant asserts he acted in self-defense, are his constitutional rights violated when spectators are permitted to wear buttons depicting the victim. The USCA concluded that under clearly established Supreme Court law such a practice interferes with the right to a fair trial by an impartial jury free from outside influences. The USCA thus reversed the district court's denial of the defendant's petition for a writ of habeas corpus and remanded for issuance of the writ. Dissenting, Judge Thompson disagreed with the majority's reliance on Norris v. Risley, 918 F.2d 828 (9th Cir. 1990), for the application in this case of the rule of Estelle v. Williams, 452 US 501 (1976). In Williams, the court determined it to have been a violation of the right to a fair trial for the state to have compelled the defendant to wear prison clothing during his trial. In the present case the buttons were three to four inches in diameter and, except for the deceased victim's picture, there was nothing else on them. The buttons conveyed no "message." In Norris, three women wore buttons in the courtroom during the defendant's trial for rape. Their buttons were two and one-half inches in diameter and bore the words "Women Against Rape," with the word "rape" underlined with a broad red stroke. That button's message implied that Norris raped the complaining witness and constituted a continuing reminder that some spectators believed Norris's guilt before it was proven, thus eroding the presumption of innocence. Judge Thompson thought it difficult to distinguish the instant case from the routine situation of a deceased victim's family members, without buttons, sitting as a group in a courtroom during a trial. Jurors in such a trial surely would recognize the group for what it is. The addition of buttons worn by them showing only the victim's photo would add little if anything to any possible risk of impermissibly prejudicing the jury. Reinhardt (author), Thompson (dissenting), and Berzon, Circuit Judges. FPD B. Portman of San Francisco, CA, for the petitioner; B. Lockyer of San Francisco, CA, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)