2)  INTELLECTUAL PROPERTY / "JOINT WORK": Aalmuhammed v. Lee, 99-55224 (9th Cir. Feb. 4, 2000).  An person who makes substantial contributions to a film but lacks control over the work, is not a "co-author" for copyright purposes.  Canby, Noonan, and Kleinfeld (author), Circuit Judges.  P. Stillman of Del Mar, CA, for the plaintiff-appellant;  B. Isaacs and B. Vann of Los Angeles, CA, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/) 

3)  INTELLECTUAL PROPERTY:  Sony Computer Enter-tainment v. Connectix Corporation, 99-15852 (9th Cir. Feb. 10, 2000).  Intermediate copies of a Sony BIOS made and used by a competitor to "reverse engineer" a Sony copyrighted program to help that competitor make a non-infringing emulation constitutes protected "fair use" under the Copyright Act.  Choy, Canby (author), and Silverman, Circuit Judges.  W. Coats of Menlo Park, CA, for the defendant;  E. Hendon of Oakland, CA, and J. Gilliland of San Francisco for the plaintiffs;  A. Hurst of San Francisco, CA, for amicus Inst. for Electrical and Electron-ics Engineers .  (Download the full text at www.ce9.uscourts.gov/) 

4)  INTELLECTUAL PROPERTY:  Goto.Com, Inc. v. The Walt Disney Company, 99-56691 (9th Cir. Feb. 2, 2000).  The parties remarkably similar logos used commercially on their World Wide Web portals are likely to confuse consumers under federal trademark laws.  Beezer, O'Scannlain (author), and Thomas, Circuit Judges.  P. Moll of Washington, DC, for the defendants-appellants;  P. O'Donnell of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

5)  INTELLECTUAL PROPERTY:  Hydranautics v. Film-Tec Corporation, 98-55274 (9th Cir. Feb. 23, 2000).  A federal court of appeals' finding that an unsuccessful patent-infringement action was not "objectively baseless" for purposes of Noerr-Pennington antitrust immunity, did not preclude the defendant from later bringing a malicious prosecution action based upon the earlier infringement action.  Reinhardt and Hawkins, Circuit Judges, and Whyte (author), District Judge.  C. Schwarz of Washington, DC, for the plaintiff-appellant;  J. Martin of Los Angeles, CA, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

6)  INSURANCE / CARRIER'S LIABILITY: Insurance Co. of North America v. NNR Aircargo Service, 98-55280 (9th Cir. Feb. 4, 2000).  When a shipping contract is silent as to the extent of the carrier's liability for damage to or loss of the goods, invoice terms and conditions may supplement the shipping contract if there has been a sufficient "course of dealing" between the parties.  B. Fletcher, D.W. Nelson (author), and Brunetti, Circuit Judges.  H. Jacobs of Los Angeles, CA, for the plaintiff-appellant;  M. Lodwick of Long Beach, CA, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

7)  FLOOD INSURANCE:  Flick v. Liberty Mutual Fire Insurance Company, 98-16485 (9th Cir. Feb. 15, 2000).  The rule of strict compliance governing insurance policies issued by the federal government also applies to the sworn-proof-of-loss requirement in policies issued by private insurers under the National Flood Insurance Program; dissenting, Judge Schroeder thought that, as the flood insurance claimant in this case gave her insurer timely notice of the existence of her claim and informed it of the full amount of the claim as soon as it was known, the majority had reached an unduly harsh and unworkable rule in holding that she must nevertheless be denied insurance benefits because of her failure to comply with the letter of the law.  Goodwin, Schroeder (dissenting), and Alarcon (author), Circuit Judges.  R. Leaf of San Mateo, CA, for the plaintiff-appellant;  H. Benas of San Francisco, CA, for the defendant-appellee. (Download the full text at www.ce9.uscourts.gov/) 

 8)  INSURANCE:  Karen Kane Inc. v. Reliance Insurance Company, 98-55589 (9th Cir. Feb. 2, 2000).  Under California law, an insurer for incidents of employee dishonesty was re-quired to pay up to the $250,000 coverage limit for the second of three separate one-year policies, in connection with an em-ployee's fraudulent scheme that spanned all three years;  the policy's definition of "occurrence" is ambiguous and does not bar liability under the first two policies;  the one-year discovery clause, however, independently precludes recovery under the policy for the first year;  although the insurer incorrectly denied coverage under the policy for the second year, it acted reasonably and did not violate the covenant of good faith and fair dealing in doing so.  Pregerson, Noonan, and O'Scannlain (author), Circuit Judges.  H. Tomin of Los Angeles, CA, for the plaintiff;  J. Mascovich and J. Jauregui of Oakland, CA, for the defendant. (Download the full text at www.ce9.uscourts.gov/) 

9)  CONSUMER LAW:  Murphey v. Lanier, 98-55755 (9th Cir. Feb. 25, 2000).  Joining the Second, Third, Fourth, Fifth, and Eleventh Circuits, the USCA held that state courts have exclusive jurisdiction over private causes of action created by the Telephone Consumer Protection Act.  D.W. Nelson, Boochever (author), and T.G. Nelson, Circuit Judges.  M. Murphey of Carlsbad, CA, for the plaintiff-appellant;  No appearance for the defendants. (Download the full text at www.ce9.uscourts.gov/) 

10)  FRANCHISE LAW:  Prudential Real Estate Affiliates v. PPR Realty, 99-55258 (9th Cir. Feb. 23, 2000).  The USCA held that the California Supreme Court would enforce an otherwise valid provision in a franchise agreement granting a franchisor a right of first refusal respecting a proposed transfer of shares in its franchisee.  D.W. Nelson, Boochever (author), and T.G. Nelson, Circuit Judges.  R. Derevan of Irving, CA, for the plaintiff-counter-defendant-appellee;  B. Shreckengost of Pittsburgh, PA, for the defendants-appellees;  D. Mulvihill of Pittsburgh, PA, for the defendant-counter-claimant-cross-claimant-appellant. (Download the full text at www.ce9.uscourts.gov/) 

11)  PUBLIC CONTRACTS:  A-1 Ambulance Services, Inc. v. California, 98-15200 (9th Cir. Feb. 7, 2000).  31 USC Sec. 3730(e)(4)(A), the "public disclosure bar" of the False Claims Act, applies to information publicly disclosed in local government administrative hearings regarding bids for a government contract;  because the material transactions underlying the plaintiffs' fraud claim in this case were publicly disclosed in the local administrative hearings, the False Claims Act deprived the district court of jurisdiction to hear the plaintiffs' qui tam action.  Kozinski and Thomas (author), Circuit Judges, and Rawlinson, District Judges.  M. Polston of Washington, DC, for the plaintiffs-appellants;  D. Holland of Salinas, CA, and B. Carlson of Redwood City, CA, for the defendants;  D. Younts of Washington, DC, for the for the United States.  (Download the full text at www.ce9.uscourts.gov/) 

12)  AGRICULTURAL MARKETING AGREEMENT ACT: Balice v. USDA, 98-16766 (9th Cir. Feb. 8, 2000).  In assessing a civil penalty under the Agricultural Marketing Agreement Act for violations of a marketing order, a judicial officer need not consider mitigating factors such as the grower's ability to pay.  Van Graafeiland, Alarcon (author), and Silverman, Circuit Judges.  B. Leighton of Clovis, CA, for the plaintiff-appellant;  M. B. Flynn of Washington, DC, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

13)  TELECOMMUNICATIONS ACT:  AT&T v. Pacific Bell, 98-16047 (9th Cir. Feb. 14, 2000).  The Telecommunications Act of 1996 does not require a carrier entering a California market to exhaust state administrative remedies, established by state law as prerequisites to review of California Public Utilities Commission ("CPUC") orders by California courts, before seeking judicial review in federal court of a CPUC order approving an interconnection agreement with an incumbent local exchange carrier.  Goodwin, Schroeder (author), and Graber, Circuit Judges.  D. Discher and K. Fong of San Francisco, CA, for the defendant;  T. Houlihan of San Francisco, CA, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

14)  ENVIRONMENT LAW:  Firebaugh Canal Co. v. USA, 95-15300 (9th Cir. Feb. 4, 2000).  The governments failure to provide drainage for agricultural areas receiving irrigation water through the Central Valley Project violates the San Luis Act;  it thus must act promptly to provide the drainage.  Hug (author), B. Fletcher, and Trott (dissenting), Circuit Judges.  J. Dobbins of Washington, DC, for the defendants-appellants;  W. Smiland of Los Angeles, CA, for the plaintiffs-appellees;  L. Silver of Mill Valley, CA, and T. Birmingham of Sacramento, CA, for the intervenors.  (Download the full text at www.ce9.uscourts.gov/) 

15)  ENVIRONMENT LAW:  Defenders of Wildlife v. Ber-nal, 98-16099 (9th Cir. Feb. 28, 2000).  In an action brought under the Endangered Species Act, the presence of a school construction project on private property within a critical habitat of an endangered animal species did not warrant injunctive relief to prohibit the project where plaintiff's evidence failed to establish that individuals of the species occupy or use the project area;  concurring, Judge Fletcher wrote separately to clarify the limited precedential value of this decision:  it does not hold that the designation of critical habitat will never have any bearing on actions on private lands within designated critical habitat, she said; thus, it has limited value for any other case involving either the pygmy owl or private lands that lie within the mapped boundary of designated critical habitat.  Hug (author), B. Fletcher (concurring), and Trott, Circuit Judges.  E. Glitzenstein of Washington, DC, for the plaintiffs-appellants;  D. Bainton of Tucson, AZ, for the defendants-appellees;  J. Dougherty of Washington, DC, for amicus National Wildlife. (Download the full text at www.ce9.uscourts.gov/) 

16)  ENVIRONMENTAL LAW:  Black v. Arthur, 98-36046 (9th Cir. Feb. 9, 2000).  A U.S. Forest Service regulation requiring a group use permit for gatherings of 75 people or more on National Forest lands is not unconstitutionally overbroad;  an individual signing a permit on behalf of a group is not subject to individual liability as a result of his or her signature;  an individual who signs a permit under the regulation does so as an agent of the group.  Aldisert, Kleinfeld, and W. Fletcher (author), Circuit Judges.  R. Lee of Chicago, IL, and B. Michaels of Eugene, OR, for the plaintiffs-appellants;  H. Scher of Washington, DC, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

17)  BANKRUPTCY LAW:  In re Gruntz, 97-55379 (9th Cir. Feb. 3, 2000).  Sitting en banc, the USCA held that federal courts are not bound by state court modifications of an auto-matic stay, but an automatic stay does not enjoin a state's criminal prosecution of a debtor.  Hug, Pregerson, Brunetti, O'Scannlain, Trott, T.G. Nelson, Thomas (author), Silverman, Graber, Wardlaw, and W. Fletcher, Circuit Judges.  R. Moest of Redondo Beach, CA, for the plaintiff;  C. House of Pasadena, CA, for the defendant;  M. Padilla of Oakland, CA, for the amici. (Download the full text at www.ce9.uscourts.gov/) 

18)  BANKRUPTCY LAW:  In re McKown, 98-15017 (9th Cir. Feb. 14, 2000).  An IRA is exempt from inclusion in the bankruptcy estate and is thus shielded from creditors.  Browing, Rymer, and Kleinfeld (author), Circuit Judges.  C. Stevens of Stockton, CA, for the appellant;  S. McGrew of Modesto, CA, for the appellees. (Download the full text at www.ce9.uscourts.gov/) 

19)  BANKRUPTCY LAW / TAXATION:  In re Artisan Woodworkers, 98-17319 (9th Cir. Feb. 23, 2000).  Post-petition interest on a nondischargeable tax debt under 11 USC Sec. 523(a)(1)(A), is also nondischargeable.  Reavley (author), Reinhardt, and McKeown, Circuit Judges.  R. Day of Napa, CA, for the appellant Ward;  J. Standen of San Francisco, CA, for the appellee Board of Equalization of California;  C. Pett of Washington, DC, for the United States;  J. Hurley of Yakima, WA, for plaintiff-appellee Bossert. (Download the full text at www.ce9.uscourts.gov/) 

20)  ERISA:  Reynolds Metals Co. v. Ellis, 98-55096 (9th Cir. Feb. 10, 2000).  FMC Medical Plan v. Owens, 122 F.3d 1258 (9th Cir. 1997), holding that actions brought by fiduciaries under the Employee Retirement Income Security Act of 1974 against beneficiaries to enforce reimbursement (i.e., subrogation) clauses contained in ERISA plans should be dismissed, is still binding Ninth Circuit law.  B. Fletcher (author) and Pregerson, Circuit Judges, and Weiner, District Judge.  E. Scallet of Washington, DC, for the plaintiff-appellant;  J. Kropff of Los Angeles, CA, for the defendant-appellees. (Download the full text at www.ce9.uscourts.gov/) 

21)  ERISA:  McDaniel v. The Chevron Corp., 98-16363 (9th Cir. Feb. 9, 2000).  An employee retirement plan governed by ERISA may calculate actuarially equivalent benefits that must be "based on" or "in accordance with" mortality assumptions by applying a nine-month set forward adjustment so as to avoid understating the correct assumptions due to the difference in life expectancy of males and females;  the district court properly concluded that Chevron did not abuse its discretion when it interpreted mortality assumptions as providing for a nine-month set forward to the UP-1994 Mortality Table.  Alarcon (author), Tashima, and Silverman, Circuit Judges.  E. Zusman of San Francisco, CA, for the plaintiff-appellant;  R. Gordon of San Francisco, CA, for the defendants-appellees;  E. Pauk of New York, NY, for the amicus. (Download the full text at www.ce9.uscourts.gov/) 

22)  LABOR LAW:  Wasson v. Sonoma County Junior Col-lege, 98-15967 (9th Cir. Feb. 16, 2000).  A public employee cannot maintain a claim that her employer wrongfully retaliated against her for the exercise of First Amendment rights to free speech when she denies having made the speech in question, as she cannot show that the alleged wrongful conduct was in retaliation for any exercise of her free speech rights;  dissenting, Judge Fletcher thought the employee had been injured, noting that, while the majority would resolve this case by finding that she did not have standing to assert another's rights to anonymous speech, the right at stake is really her right not to be retaliated against for speech she either made anonymously or did not make at all.  Schroeder (author), B. Fletcher (dissenting), and Hall, Circuit Judges.  S. Steever of Santa Rosa, CA, for the plaintiff-appellant;  L. Frierson of San Francisco, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

23)  BASEBALL ARBITRATION / DEFERENTIAL RE-VIEW: Garvey v. Roberts, 98-55263 (9th Cir. Feb. 10, 2000).  The USCA reversed and remanded the district court's ruling denying plaintiff's Amended Motion to Vacate Arbitration Award where the arbitrator had confirming the Major League Baseball Players Association's denial of the plaintiff's claim for damages from a settlement fund which had been established after a series of arbitration decisions found that the Major League Baseball Clubs had engaged in collusion in the market for free agents;  concurring, Judge Hawkins wrote separately to emphasize why he thought the arbitrator's ruling was not entitled to the deference ordinarily accorded such decisions;  dissenting, Judge Whyte noted that, while he could understand why the majority believes the award is wrong, he thought the majority over-stepped its deferential review role in doing so.  Reinhardt (author) and Hawkins (concurring), Circuit Judges, and Whyte (dissenting), District Judge.  N. Papiano of Los Angeles, CA, for the petitioner;  V. Seitz of Washington, DC, for the respondents.  (Download the full text at www.ce9.uscourts.gov/) 

24)  LABOR LAW:  Burlington Northern Santa Fe Railway Co. v. Intl. Brotherhood of Teamsters Local 174, 97-35859 (9th Cir. Feb. 15, 2000).  Sitting en banc, the USCA held that even if there is no collective bargaining agreement between the parties, the anti-injunction provisions of the Norris-LaGuardia Act, 29 USC Sec. 101, et seq., apply to a union's dispute with an employer whose subcontracting decisions affect significant employment interest of union members;  here, a dispute between the union and Burlington Northern over whether the client com-pany's subcontractors must employ that union's members is a Norris-LaGuardia labor dispute.  Hug, Schroeder, Pregerson (author), O'Scannlain, Trott, Rymer, Hawkins, Tashima, Silverman, Graber, and McKeown, Circuit Judges.  R. Englert of Washington, DC, for the plaintiffs-appellants;  D. Iglitzin of Seattle, WA, for the defendants-appellees;  D. Munro of Wash-ington, DC, for the amicus Airline Industrial Relation Conference. (Download the full text at www.ce9.uscourts.gov/) 

25)  LABOR LAW:  Slevira v. The Western Sugar Co., 99-35109 (9th Cir. Feb. 2, 2000).  A union did not breach its duty of fair representation in refusing to proceed with a firing grievance after interviewing the complaining member regarding his defense to the firing, examining the employer's evidence, and obtaining the advice of counsel that the employee had no viable defense.  Wallace, Farris, and T.G. Nelson, Circuit Judges.  Per Curiam. S. Mackey of Billings, MT, for the plaintiff-appellant;  W. O'Connor and S. Lehman of Billings, MT, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

26)  WRONGFUL TERMINATION:  Huskey v. City of San Jose, 99-15123 (9th Cir. Feb. 24, 2000).  In a public employee's wrongful termination action under 42 USC Sec. 1983, constructive discharge was not established by the plaintiff's evidence that after reporting possible substance abuse by a supervisor, the plaintiff received notice of a referral to "counseling," ostracism from coworkers, menial work assignments, and managerial criticism.  Van Graafeiland, Alarcon (author), and Silverman, Circuit Judges.  C. Nielsen of San Jose, CA, for the defendants-appellants;  N. Rousso of San Jose, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

27)  WORKERS' COMPENSATION:  Marine Power & Equipment v. Dept. of Labor, 98-70049 (9th Cir. Feb. 31, 2000). Under the Longshore and Harbor Workers' Compensation Act, an employer was not eligible for a "second-injury" reduction in liability for benefits payable for a worker's permanent partial disability where the worker's current disability is not substantially and materially greater as a result of his preexisting medical condition.  Canby, Brunetti, and O'Scannlain (author), Circuit Judges.  R. Metz of Seattle, WA, for the petitioners;  M. Krislow of Washington, DC, for the respondents. (Download the full text at www.ce9.uscourts.gov/) 

28)  WORKERS' COMPENSATION:  Healy Tibbitts Build-ers, Inc. v. Cabral, 98-70552 (9th Cir. Feb. 2, 2000).  A party challenging an award of attorneys' fees under the Longshore and Harbor Workers' Compensation Act does not have the right to a hearing before the Office of the Administrative Law Judge when no factual issues are in dispute.  Aldisert, O'Scannlain, and Hawkins (author), Circuit Judges.  C. Field of Jersey City, NJ, for the petitioner;  J. Friedheim of Honolulu, HI, and J. Gillelan of Washington, DC, for the respondents.  (Download the full text at www.ce9.uscourts.gov/) 

29)  FOREIGN SOVEREIGN IMMUNITY ACT / TORTS: Sun v. Taiwan, 98-17166 (9th Cir. Feb. 3, 2000).  Under the Foreign Sovereign Immunity Act, a foreign state's sponsorship of a tour to promote understanding of its culture and history constituted "commercial activity" carried on in the United States and excepted from the FSIA's protection against tort liability.  Pregerson, Noonan, and O'Scannlain (author), Circuit Judges.  P. Sterling of San Francisco, CA, for the plaintiffs-appellants;  D. Yang of San Francisco, CA, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/) 

30)  PUBLIC HOUSING / DRUGS:  Rucker v. Davis, 98-16322 (9th Cir. Feb. 14, 2000).  42 USC Sec. 1437d(1)(5) of the National Housing Act authorizes the eviction of public housing tenants and their families if any member of the household, or any other person under the tenant's control, engages in drug-related criminal activity (including possession of marijuana) on or near the premises, whether or not the tenant had any knowledge of, or ability to control, that activity;  dissenting, Judge Fletcher thought the majority misconstrued the applicable law.  Sneed, O'Scannlain (author), and W. Fletcher (dissenting), Circuit Judges.  H. Scher of Washington, DC, and G. Lafayette of San Francisco, CA, for the defendants-appellants;  I. Jacobowitz of Oakland, CA, for the plaintiffs-appellees;  H. J. Escher of San Francisco, CA, for the amicus Center for the Community Interest.  (Download the full text at www.ce9.uscourts.gov/) 

31)  ABSTENTION / FAMILY LAW:  H.C. v. Koppel, 99-55029 (9th Cir. Feb. 11, 2000).  Under Younger v. Harris, 401 US 37 (1971), a federal district court must abstain from intervening in pending state child-custody proceedings in ways that would alter the course of those proceedings;  concurring, Judge Silverman agreed with the majority that the district court could have abstained under Younger, but he also agreed with the district judge that the Rooker-Feldman doctrines applied:  this Sec. 1983 lawsuit was a transparent attempt by a losing party to obtain federal court review of the state court's pendente lite child custody order after unsuccessfully appealing to the state appellate courts.  Thomas (author), Silverman (concurring), and Wardlaw, Circuit Judges.  C. Gitt of Los Angles, CA, for the plaintiffs-appellants;  F. Bennett of Los Angeles, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

32)  IMMUNITY / WITNESSES:  Franklin v. Terr, 98-16843 (9th Cir. Feb. 2, 2000).  On an issue of first impressions, the USCA held that a witness has absolute immunity from liability for civil damages under 42 USC Sec. 1983 for conspiring to present her own and another witness's perjured testimony.  Sneed, Pregerson (author), and W. Fletcher, Circuit Judges.  A. Schwartz of Walnut Creek, CA, for the plaintiff-appellant;  P. Zomber of Los Angeles, CA, and D. Putterman of San Francisco, CA, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/) 

33)  SOCIAL SECURITIES BENEFITS:  Harman v. Apfel, 98-35780 (9th Cir. Feb. 17, 2000).  When a district court re-mands a disability benefits case to the Social Security Administration pursuant to sentence four of 42 USC Sec. 405(g), its decision whether such a remand is for further proceedings or immediate payment of benefits is reviewable for abuse of discretion, rather than de novo.  Canby and T.G. Nelson, Circuit Judges, and Fogel (author), District Judge.  T. Wilborn of Tucson, AZ, for the plaintiff;  V. Blais of Seattle, WA, for the de-fendant.  (Download the full text at www.ce9.uscourts.gov/) 

34)  SOCIAL SECURITIES BENEFITS:  McNatt v. Apfel, 99-35168 (9th Cir. Feb. 2, 2000).  A Social Security benefits claimant who appears at a scheduled hearing through counsel and seeks a continuance does not forfeit the right to judicial review of an adverse decision;  dissenting, Judge Kleinfeld thought that this case was controlled by Hoye v. Sullivan, 985 F.2d 990 (9th Cir. 1993), which held that where a claimant failed to attend a scheduled hearing, he "waived his opportunity for a hearing and he failed to exhaust the administrative remedy upon which judicial review depends."  Kleinfeld (dissenting) and W. Fletcher (author), Circuit Judges, and Manella, District Judge.  D. Lowry of Portland, OR, for the plaintiff-appellant;  AUSA W. Youngman of Portland, OR, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

35)  CIVIL RIGHTS:  Schwenk v. Hartford, 97-35870 (9th Cir. Feb. 29, 2000).  Rights afforded by the Gender Motivated Violence Act applied to the attempted rape of a preoperative male-to-female transsexual by a guard in an all-male state-prison;  the guard was not entitled to qualified immunity from the inmate's Sec. 1983 claim for violation of the inmate's Eighth Amendment rights.  B. Fletcher, Reinhardt (author), and Thomas, Circuit Judges.  N. Krier of Olympia, WA, for the defendants-appellants;  J. Finer of Spokane, WA, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 

36)  CIVIL RIGHTS:  LaLonde v. County of Riverside, 98-55887 (9th Cir. Feb. 25, 2000).  In a federal civil rights suit alleging illegal entry of a residence by a police officer and use of excessive force, where the underlying facts are in dispute, it is for the tried of fact to determine whether the challenged conduct was justified by exigent circumstances;  dissenting in part, Judge Trott thought that where, as here, the facts are in dispute, they should be submitted to the jury, even if the officer's qualified immunity from suit is an issues;  Judge Trott disagreed with the majority's ruling that the plaintiff's "knee-in-the-back" allegation was sufficient to survive a claim of qualified immunity, as there was no doubt from the record that the plaintiff was resisting arrest when that force was applied, and a person being detained or arrested has no right to resist, even if the detention or arrest is without reasonable suspicion or probable cause.  Bright, Reinhardt (author), and Trott (dissenting in part), Circuit Judges.  M. Mitchell of Los Angeles, CA, for the plaintiff-appellant;  M. Bell of Riverside, CA, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/) 

37)  NATIVE AMERICAN LAW / GAMING REGULA-TIONS: Hein v. Capitan Grande Band, 98-56182 (9th Cir. Feb. 7, 2000).  Neither the Indian Civil Rights Act nor the Indian Gaming Regulatory Act provided the district court with subject matter jurisdiction over a private right of action to re-quire a federally recognized Indian tribe to reallocate gaming revenues.  Reavley, Reinhardt (author), McKeown, Circuit Judges.  J. Cordileone of San Diego, CA, for the plaintiff-appellants;  A. Bunce of Escondido, CA, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/) 

38)  NATIVE AMERICAN LAW /  DOUBLE JEOPARDY: USA v. Enas, 99-10049 (9th Cir. Feb. 28, 2000).  An Indian tribe's prosecution of a non-member Indian for a criminal offense does not bar a subsequent federal prosecution of the same person based on the same conduct, if the tribe's prosecution was an exercise of sovereign power.  Bright (author), Pregerson, and W. Fletcher, Circuit Judges.  AUSA D. Humetewa of Phoenix, AZ, for the plaintiff-appellants;  AFPD S. Popko of Phoenix, AZ, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

39)  IMMIGRATION / RIGHT TO COUNSEL: USA v. Ortega, 98-10323 (9th Cir. Feb. 1, 2000).  An INS agent violated a defendant's Sixth Amendment right to counsel by conducting, outside defense counsel's presence, an interrogation that went beyond immigration matters in which he obtained a state-ment regarding the defendant's use of firearms in connection with a charged drug offense;  the tainted statement, however, may still be used for impeachment purposes;  the district court did not err by limiting the defendant's cross-examination of the INS agent to only inculpatory portions of the defendant's statement.  Pregerson and Wiggins (author), Circuit Judges, and Carter, District Judge.  AFPD A. Voris of Fresno, CA, for the defendant-appellant;  AUSA K. Julian of Fresno, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

40)  IMMIGRATION / UNAUTHORIZED ENTRY: USA v. Ramirez-Valencia, 99-50060 (9th Cir. Jan. 31, 2000).  A deported alien charged with unauthorized reentry following his deportation may not invoke the defense of entrapment by estoppel based on an INS form received in deportation proceedings which incorrectly stated that 8 USC Sec. 1326 makes unauthorized reentry within five years a felony.  Browning and Tashima, Circuit Judges, and Jones, District Judge.  Per Curiam.  M. McCabe of San Diego, CA, for the defendant-appellant;  AUSA J. Kirby of San Diego, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

41)  HEARSAY EVIDENCE:  USA v. Olafson, 99-50216 (9th Cir. Feb. 3, 2000).  In a prosecution for smuggling aliens, the district court may admit a unavailable deported alien's hearsay statements regarding citizenship and alienage rather than ordering that the alien's depositions be taken.  Hall, Trott (author), and W. Fletcher, Circuit Judges.  C. McCutcheon of El Cajon, CA, for the defendant; AUSA D. Curnow of San Diego, CA, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

42)  RIGHT TO COUNSEL / SEX OFFENDERS: Lopez v. Thompson, 97-35837 (9th Cir. Feb. 4, 2000).  Sitting en banc, the USCA held that a sentencing court's failure to advise a defendant of his right to cross-examine the medical expert who performed a "dangerous sex offender" evaluation does not invalidate the defendant's express waiver of the right to counsel;  Judge Wallace concurred in the majority's holding that the defendant knowingly and intelligently chose to represent himself after being made aware of the dangers and disadvantages of self-representation, and in the majority's holding that the district court's warnings under Faretta v. California, 422 US 806 (1975), were pragmatic and directed to the "particular stage of the proceedings in question" pursuant to Patterson v. Illinois, 487 US 285 (1988);  but Judge Wallace thought that pursuant to Patterson and the instant en banc case, the Ninth Circuit should now take into account the stage in the criminal proceedings at which a district court's Faretta inquiry is made in its review of Faretta cases, whether on direct or collateral review;  finally, Judge Wallace agreed with the majority that the Circuit has no habeas corpus power to designate "preferred procedures" for state courts to follow, but wished to disassociate himself the majority's statement that the Circuit has power to designate preferred procedures that federal district courts are to follow in applying Faretta;  dissenting, Judge Tashima, joined by Judge Reinhardt, thought that the majority had stripped of all meaning Faretta's requirement that the waiver of the Sixth Amendment right to counsel be "knowingly and intelligently" made.  Hug, Wallace (concurring), Reinhardt (dissenting), Brunetti, Fernandez, T.G. Nelson, Kleinfeld, Hawkins, Tashima (dissenting), Silverman, and McKeown (author), Circuit Judges.  L. Berger of Portland, OR, for the petitioner-appellant;  R. Wasserman of Salem, OR, for the respondent-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

43)  RIGHT TO COUNSEL:  USA v. Hernandez, 98-50206 (9th Cir. Feb. 11, 2000).  The district court violated the defendant's Sixth Amendment rights when it denied his request to represent himself;  this constitutional violation rendered the defendant's guilty plea involuntary by depriving him of a choice between the only two constitutional alternatives—pleading guilty and receiving a fair trial—and leaving him instead with the choice between pleading guilty and submitting to an unconstitutional trial.  D.W. Nelson, Reinhardt (author), and Trott, Circuit Judges.  S. Lanthrop of Redondo Beach, CA, for the defendant-appellant;  AUSA L. Arian of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

44)  SUPERVISED RELEASE / EXCLUSIONARY RULE: USA v. Hebert, 98-50198 (9th Cir. Feb. 3, 2000).  The exclusionary rule does not apply to federal supervised release revocation hearings.  Leavy, Trott, and Silverman, Circuit Judges.  Per Curiam.  K. Johnson of San Diego, CA, for the defendant-appellant;  AUSA B. Pearce of San Diego, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/)  

45)  SEARCH & SEIZURE:  USA v. Osborn, 99-10119 (9th Cir. Feb. 9, 2000).  Given the totality of the circumstances known to the police, they had reasonable cause to briefly detain and question an individual regarding his identity, address, and prior contacts with the police, where that individual had been reported by a resident to be the friend of another resident who has just threatened to recruit friends to harm the reporting resident.  Van Graafeiland, Alarcon (author), and Silverman, Circuit Judges.  AFPD P. Turner of Las Vegas, NV, for the defendant-appellant;  AUSA R. Bork of Las Vegas, NV, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

46)  IMPEACHMENT EVIDENCE:  USA v. Hankey, 98-50359 (9th Cir. Feb. 18, 2000).  To rebut the testimony of a co-defendant gang member that the defendant was not involved in the charged crime, a district court may admit the testimony of a police gang expert on the "code of silence" of gang members and that gang members who testify against one of their own are customarily beaten or killed by other members.  Browning and Tashima, Circuit Judges, and Jones (author), District Judges.  G. Ivens of Glendale, CA, for the defendant-appellant;  AUSA G. Cardona of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

47)  EVIDENCE:  USA v. Cabrera, 99-10242 (9th Cir. Feb. 1, 2000).  In a federal criminal prosecution, a ruling by the district court that excluded evidence regarding the nature of the defendant's prior convictions did not also bar the prosecutor from eliciting testimony that the defendant has been convicted of mis-demeanors, or had prior contact with lawenforcement officials.  Alarcon (author), Tashima, and Silverman, Circuit Judges.  C. Hernandez of Tucson, AZ, for the defendant-appellant;  AUSA R. Miskell of Tucson, AZ, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

48)  SEX CRIMES AGAINST A MINOR:  LaJoie v. Thompson, 98-35919 (9th Cir. Jan. 31, 2000).  In a prosecution for sex crimes against a child, the defendant's failure to give timely notice of intent to introduce relevant evidence of the alleged victim's past sexual abuse by others did not justify exclusion of that evidence under the state's rape shield law for failure to give the required 15-day notice of intent to introduce such evidence;  the exclusion of the evidence was contrary to clearly established federal law, as determined by the U.S. Supreme Court;  dissenting, Judge Ferguson thought that the majority (1) had incorrectly determined that the evidence the petitioner sought to put before the jury was relevant, (2) had erred in finding that the petitioner's interests in introducing the evidence out-weighted those of the state in precluding it, (3) had effectively carved out an exception to a rape shield statue's notice requirement whenever a defendant victimizes a child, and (4), assuming that the state courts committed a constitutional error, had identifies it as one warranting habeas relief.  B. Fletcher, Ferguson (dissenting), and Tashima (author), Circuit Judges.  AFPD T. Hester of Portland, OR, for the petitioner-appellant;  J. Lloyd of Salem, OR, for the respondent-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

49)  DRUG TRAFFICKING / USE OF A FIREARM:USA v. Guess, 98-16323 (9th Cir. Feb. 10, 2000).  A methamphetamine manufacturer did not "use" a firearm in connection with a drug-trafficking crime in violation of 18 USC Sec. 924(c)(1) by bring a loaded handgun onto his porch when law enforcement officers arrived at his residence above his methamphetamine lab, as he had dropped the weapon before arresting officers were aware that he had drawn it;  dissenting in part, Judge Carter departed company from the majority in their interpretation of Bailey v. USA, 516 US 137 (1995), feeling that the majority's interpretation of "use," as defined in Bailey, had been applied too narrowly.  Sneed (author) and Pregerson, Circuit Judges, and Carter (dissenting in part), District Court.  D. Schaffer of San Francisco, CA, for the defendant-appellant;  AUSA K. Julian of Fresno, CA, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 

50)  PREEMPTORY CHALLENGES:  Wade v. Terhune, 98-16720 (9th Cir. Feb. 2, 2000).  The California standard for evaluating discriminatory preemptory challenges to criminal jurors, as established in People v. Wheeler, 22 C.3d 258 (1978), does not satisfy the constitutional requirements for that procedure as laid down in Batson v. Kentucky, 476 US 79 (1986).  Thompson, Hall, and W. Fletcher (author), Circuit Judges.  E. Weaver of Albany, CA, and C. Strickman of Oakland, CA, for the petitioners;  H. Wilkinson of San Francisco, CA, for the respondents.  (Download the full text at www.ce9.uscourts.gov/) 

51)  INTERLOCUTORY APPEALS:  USA v. Pace, 98-10521 (9th Cir. Feb. 7, 2000).  Neither certification for interlocutory appeal, the collateral order doctrine, nor the McCarran-Ferguson Act provided jurisdiction in this case to review the denial of a motion to dismiss an indictment charging federal crimes based on illegal kickbacks in the construction-bond business.  Browning, Rymer, and Kleinfeld (author), Circuit Judges.  B. Heurlin of Tucson, AZ, for the defendant;  AUSA C. Cabanillas of Tucson, AZ, for the plaintiff;  R. Myers of Kansas City, MO, for the amicus National Association of Insurance Commissioners. (Download the full text at www.ce9.uscourts.gov/) 

52)  ACQUITTALS / DOUBLE JEOPARDY: USA v. Byrne, 98-50405 (9th Cir. Jan. 31, 2000).  Under FRCP 29, a district court's oral granting of a motion for acquittal was not a "final judgment of acquittal" terminating jeopardy where the court made it clear in the same colloquy that its ruling was not final.  Hall and T.G. Nelson, Circuit Judges, and Ware (author), District Judge.  J. Warren of San Diego, CA, for the defendant-appellant;  L. Peraertz of Washington, DC, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

53)  SENTENCING:  USA v. Newman, 97-50508 (9th Cir. Feb. 9, 2000).  A defendant's prison sentence may not be re-duced by the amount of time he spent in a residential drug-treatment center while released on pre-trial release.  Brunetti (author) and Tashima, Circuit Judges, and Schwarzer, District Judge.  AUSA R. Cheng of Los Angeles, CA, for the plaintiff-appellant;  DFPD K. House of Los Angeles, CA, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

54)  SENTENCING:  USA v. Weischedel, 98-30324 (9th Cir. Feb. 1, 2000).  In determining whether to impose a Guidelines Sec. 3A1.1(b) enhancement for a crime involving a "vulnerable victim," a district court properly looked to the surrounding circumstances of the crime as well as the characteristics of the victim.  Schroeder (author) and Beezer, Circuit Judges, and Schwarzer, District Judge.  W. Holton of Helena, MT, for the defendant-appellant;  AUSA B. Hubley of Helena, MT, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

55)  EARLY RELEASE / SUBSTANCE ABUSE TREATMENT: Bowen v. Hood, 98-36190 (9th Cir. Feb. 4, 2000).  The Bureau of Prisons may not deny early release to prisoners who became eligible for entry into a statutory substance-abuse treatment program before the Bureau's promulgation of a rule change and regulation barring custody reductions for certain categories of prisoners;  dissenting in part, Judge Fernandez thought that Cort v. Crabtree, 113 F.3d 1081 (9th Cir. 1997), directly applied only to prisoners who have received both a favorable eligibility determination and entered a substance abuse program, and, more importantly, that if a prisoner has no settled expectation that he will be granted a reduction of his custody period, a program change will not be retroactive as to him;  dissenting in part, Judge Thomas thought the regulation promulgated by the Bureau directly contravened the plain language of the governing statute by categorically excluding prisoners expressly declared eligible by Congress.  Leavy, Fernandez (dissenting in part), and Thomas (dissenting in part) Beezer, Circuit Judges.  Per Curiam.  DFPD S. Sady of Portland, OR, for the petitioners-appellees and petitioners-appellees-cross appellants;  T. Gannon of Washington, DC, for the respondent-appellant-cross appellee. (Download the full text at www.ce9.uscourts.gov/) 

56)  HABEAS CORPUS / JURISDICTION:  Hernandez v. Campbell, 98-56884 (9th Cir. Feb. 8, 2000).  When a federal prisoner brings a habeas corpus petition under 28 USC Sec. 2241 on the ground that the remedy provided by Sec. 2255 is "inadequate or ineffective to test the legality of his detention," the district court must determine whether a Sec. 2241 remedy is available under the "savings clause" of Sec. 2255.  Browning and Tashima, Circuit Judges, and Jones, District Judge. Per Curiam.  A. Hernandez pro se;  AUSA E. Moreton of Los Angeles, CA, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

57)  HABEAS CORPUS:  Whalem/Hunt v. Early, 99-55627 (9th Cir. Feb. 24, 2000).  An alleged failure of a prison library to provide a copy of the Antiterrorism and Effective Death Penalty Act was insufficient to entitle a federal habeas corpus petitioner to a later "trigger" provision of the Act's Sec. 2244(d)(1) period of limitations, or to equitable tolling, where the prisoner had already alleged the same constitutional grounds for relief in state-court petitions filed before the limitations period expired.  Choy (author), Skopil, and Wiggins, Circuit Judges.  A. Whalem/Hunt pro se;  D. Chuang of Los Angeles, CA for the respondent-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

58)  IFP PRISONER-LITIGANT'S COMPLAINTS: Lopez v. Smith, 97-16987 (9th Cir. Feb. 10, 2000).  Sitting en banc, the USCA held that when a district court dismisses the pro se complaint of an in forma pauperis prisoner, it may grant that prisoner leave to amend;  concurring, Judge Rymer, joined by Judges Fernandez and Kleinfeld, wrote separately because she thought the prisoner's due process claim was not dismissed sua sponte for failure to state a claim pursuant to 28 USC Sec. 1915(e)(2)—the Prison Litigation Reform Act ("PLRA") section that both the majority and the dissent discuss—but was instead dismissed pursuant to a noticed motion under FRCP 12(b)(6) and, thus, that the prisoner lacked standing and the USCA lacked jurisdiction to resolve the question under the PLRA of when Sec. 1915(e)(2) is triggered and whether a dismissal under Sec. 1915(e)(2) may be without leave to amend;  dissenting, Judge Sneed, joined by Judge Trott, thought that the history of the notice and opportunity to amend rule and the legislative history of the PLRA both strongly suggest that Congress intended to require that a district court dismiss an IFP prisoner-litigant's complaint that fails to state a claim, immediately and without an opportunity to amend.  Hug, Sneed (dissenting), Pregerson, Reinhardt, Trott (dissenting), Fernandez (concurring), Rymer (concurring), Kleinfeld (concurring), Hawkins (author), Tashima, and Wardlaw, Circuit Judges.  M. Schlanger of Cambridge, MA, for the plaintiff-appellant;  C. Picciano of Sacramento, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

59)  PAROLE / SUPERVISED RELEASE:  USA v. Trenter, 99-30226 (9th Cir. Feb. 7, 2000).  A district court possesses the authority under 18 USC Sec. 3583(e) to reinstate a term of supervised release after the defendant has violated a condition of that release.  Beezer, O'Scannlain, and Thomas (author), Circuit Judges.  J. Vonash of Seattle, WA, for the defendant-appellant;  AUSA L. Lincoln of Seattle, WA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/)