80)  WIRETAPS:  USA v. Bennett, 97-50605 (9th Cir. July 28, 2000).  In its wiretap application for a drug conspiracy investigation, the government showed necessity;  the mere attainment of some degree of success during the government's use of traditional investigative methods did not alone extinguish the need for a wiretap.  B. Fletcher, Kozinski, and Thompson (author), Circuit Judges.  M. Abzug of Los Angeles, CA, for the defendants-appellants;  S. Wolfe of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

81)  CONSPIRACY:  USA v. Estrada-Macias, 97-10115 (9th Cir. July 12, 2000).  The evidence was insufficient to support the defendant's conviction of conspiracy to manufacture methamphetamine where it showed only his awareness of a conspiracy but not also his participation;  dissenting, Judge Keep thought that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt and that that was the issue.  Canby (author) and Kleinfeld, Circuit Judges, and Keep (dissenting), District Judge.  AFD M. Bockmon of Sacramento, CA, for the defendant-appellant;  AUSA R. Pachter of Sacramento, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

82)  BASE JUMPING:  USA v. Albers, 99-10071 (9th Cir. July 17, 2000).  "Ramair aeroelastic wings" used by the defendants in jumping from structures in national parks are parachutes for purposes of federal regulation.  Hug, D.W. Nelson (author), and McKeown, Circuit Judges.  F. Morelli of Aurora, IL, for the defendant-appellant;  AUSA C. Bibles of Phoenix, AZ, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

83)  JURY INSTRUCTIONS:  Solis v. Garcia, 98-56219 (9th Cir. July 12, 2000).  The district court did not err in failing to instruct the jury on the elements of the predicate crime the defendant was alleged to have committed as an aider and abettor, where the standard CALJIC instruction on liability under the natural and probable consequences doctrine was given and it did not omit any element of the crime.  Browning and Tashima, Circuit Judges, and Jones, District Judge.  Per Curiam.  C. Khoury of New Hampshire for the petitioner-appellee;  B. Weinreb of San Diego, CA, for the respondent-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

84)  JURY INSTRUCTIONS:  USA v. Sauza-Martinez, 98-50770 (9th Cir. July 6, 2000).  In a joint trial where one codefendant's prejudicial hearsay statements against another are admitted for impeachment purposes, and the quantum of proof offered by the government against the prejudiced codefendant was not overwhelming, the district court must give a limiting instruction.  Wallace, Trott (author), and Gould, Circuit Judges.  J. Warren of San Diego, CA, for the defendant-appellant;  AUSA W. Gallo of San Diego, CA, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 

85)  JURY INSTRUCTIONS:  USA v. Fuchs, 98-10173 (9th Cir. July 6, 2000).  It was plain error for the district court to not instruct on the statute of limitations where acts of the defendant that would have supported a finding of conspiracy fell outside the statute of limitations;  dissenting, Judge Graber thought the majority misapprehended Circuit law on the requirements for a conspiracy indictment, discovered "plain error" where none existed, created but did not acknowledge a split with two other Circuits, inappropriately extended Supreme Court precedent, improperly analyzed whether the asserted error was prejudicial, and placed an intolerable and unwarranted burden on the district courts.  T.G. Nelson (author), Hawkins, and Graber (dissenting), Circuit Judges.  AUSA R. Friedman of Washington, DC, for the appellee-cross-appellant;  G. Cunningham of Atlanta, George, for the defendants-appellants-cross-appellees. (Download the full text at www.ce9.uscourts.gov/) 

86)  PEREMPTORY CHALLENGES:  McClain v K.W. Prunty, 99-55423 (9th Cir. July 5, 2000).  A black defendant was denied his right to a fair trial in violation of the Equal Protection Clause where the prosecutor exercised peremptory challenges to exclude all blacks from the jury based on reasons that were objectively contrary to the record facts or pretextual.  Pregerson (author) and Ward-law, Circuit Judges, and Shadur, District Judge.  S. Svetcov of San Francisco, CA, for the petitioner-appellant;  P. Tarwater of Los Angeles, CA, for the respondents-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

87)  JURY DELIBERATIONS:  USA v. Hursh, 99-50504 (9th Cir. July 6, 2000).  A juror's note to the judge, written after the close of evidence, but before closing arguments, suggesting that he might have formed an opinion, did not show actual bias against the defendant as the note did not suggest that the juror would not deliberate or would not base his verdict on the evidence.  Wallace, Trott (author), and Gould, Circuit Judges.  M. Chambers of Escondido, CA, for the defendant-appellant;  AUSA C. Bashant of San Diego, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

88)  SENTENCING:  USA v. Charlesworth, 98-10515 (9th Cir. July 10, 2000).  The district court properly found that the defendant was not entitled to a four-level reduction for escape from non-secure custody under USSG Sec. 2P1.1(b)(3) (1998) because that Guideline disallows the reduction if the defendant has committed a felony while unlawfully absent from custody.  Alarcon, Tashima (author), and Silverman, Circuit Judges.  AUSA J. Damm of Las Vegas, NV, for the plaintiff-appellee;  AFPD J. Lambrose of Las Vegas, NV, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

89)  SENTENCING:  USA v. Houston, 99-50426 (9th Cir. July 5, 2000).  Under Fed. R. Crim. Proc. 32(c)(1), if a defendant denies making statements upon which his sentence enhancement is based (in this case, threats of death made during a bank robbery), the district court must make an express finding as to whether the disputed statements are the defendant's.  Wallace, Trott (author), and Gould, Circuit Judges.  FPD D. Zugman of San Diego, CA, for the defendant-appellant;  AUSA R. Cheng of San Diego, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

90)  SENTENCING:  USA v. Romero-Rendon, 99-50137 (9th Cir. July 31, 2000).  An unchallenged Presentence Report, which indicates the specific statute under which the alien had previously been convicted and which bears endorsed indicia of reliability, provides clear and convincing evidence of a prior conviction of an aggravated felony for the purposes of sentence enhancement.  O'Scannlain (author), Fernandez, and T.G. Nelson, Circuit Judges.  FPD J. Burghardt of San Diego, CA, for the defendant;  AUSA R. Haines of San Diego, CA, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

91)  SENTENCING:  USA v. Ceron-Sanchez, 99-10284 (9th Cir. July 26, 2000).  The sentence for an alien who pled guilty to reentry after deportation was properly increased under USSG Sec. 2L1.2(b)(1)(A), which applies where the defendant previously was deported after a criminal conviction for an aggravated felony;  as Aggravated Assault with a Deadly Weapon under Ariz. Rev. Stat. Sec. 13-1204(A)(2) constitutes a crime of violence under 8 USC Sec. 1101(a)(43)(F), the defendant's conviction for Attempted Aggravated Assault with a Deadly Weapon constituted an aggravated felony under 8 USC Sec. 1101(a)(43)(U);  the district court correctly increased the defendant's offense level by 16 under USSG Sec. 2L1.2(b)(1)(A).  Wood (author), Kleinfeld, and Graber, Circuit Judges.  J. Rivera of Phoenix, AZ, for the plaintiff-appellee;  A. Baggot of Apache Junction, AZ, for the defendant-appellant. (Download the full text at www.ce9.uscourts.gov/) 

92)  SENTENCING / ILLEGAL ENTRY UPON DEPORTATION: USA v. Barrios-Gutierrez, 99-10148 (9th Cir. July 14, 2000).  The district court violated Fed. R. Crim. Proc. 11 by failing adequately to inform the defendant of the maximum sentence which he faced at the time of his plea;  dissenting, Judge O'Scannlain thought the majority's holding requires that the trial judge decide at the plea colloquy whether a sentence enhancement applies, which contradicts Ninth Circuit case law, common practice and common sense.  B. Fletcher (author), Canby, and O'Scannlain (dissenting), Circuit Judges.  A. Baggott of Apache Junction, AZ, for the defendant-appellant;  AUSA L. Boone of Phoenix, AZ, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

93)  WRITS OF MANDAMUS:  DeGeorge v. U.S. District Court, 99-71446 (9th Cir. July 18, 2000).  A petition for a writ of mandamus failed as direct appeal was available and was an adequate means for the petitioner to obtain the relief he sought, no prejudice had been shown, the district court's interpretation of the statute was not clearly in error, and the petitioner's issues of first impression were not important or pressing.  Wallace, (author), Pregerson, and Thomas, Circuit Judges.  R. Marmaro of Los Angeles, CA, for the petitioner-appellant;  AUSA D. Marcus of Los Angeles, CA, for the real-party-in-interest.  (Download the full text at www.ce9.uscourts.gov/) 

94)  EXTRADITION / HABEAS CORPUS:  Cornejo-Barreto v. Seifert, 98-56827 (9th Cir. July 11, 2000).  A person ordered extradited by the Secretary of State who fears torture by the requesting county may petition for habeas corpus on the ground that the Secretary breached her duty to implement Article 3 of the Torture Convention.  B. Fletcher (author), Kozinski (concurring), and Thompson, Circuit Judges.  FPD M. Stratton of Santa Ana, CA, for the petitioner-appellant;  AUSA M. Bachner of Santa Ana, CA, for the respondent-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

95)  HABEAS CORPUS:  Saffold v. Newland, 99-15541 (9th Cir. July 17, 2000).  Applying Nino v. Galaza, 183 F.3d 1003 (9th Cir. 1999), cert. denied, No. 99-899, 2000 WL 507534 (U.S. May 1, 2000), the USCA held that the district court erred by failing to toll the federal statute of limitations for the entire period during which a state prisoner pursued state habeas relief;  the USCA also held that the "mailbox" rule for pro se prisoners applied to the prisoner's petitions to the state and federal courts for purposes of calculating tolling time under the Antiterrorism and Effective Death Penalty Act of 1996.  B. Fletcher, Canby (author), and O'Scannlain, Circuit Judges.  M. McComb of Davis, CA, for the petitioner-appellant;  S. Cross of Sacramento, CA, for the respondent-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

96)  PRISONER RIGHTS: Wright v. Riveland, 97-36074 (9th Cir. July 11, 2000).  Washington's RCW 72.09.480, which authorizes a deduction of 35% from all funds received by inmates from outside sources to pay for crime victim's compensation and to contribute to the costs of incarceration, does not violate the Eighth Amendment.  Pregerson and Thompson, Circuit Judges, and Moskowitz (author), District Judges.  C. Youtz of Seattle, WA, for the plaintiff-appellant;  D. Carr of Olympia, WA, for the defendant-appellee. (Download the full text at www.ce9.uscourts.gov/) 

 1)  LICENSE AGREEMENTS:  Beckman Instruments, Inc. v. Cincom Systems, 99-55111 (9th Cir. July 25, 2000) (unpublished).  Hug (concurring and dissenting) and Thompson, Circuit Judges, and Restani, Court of Intl. Trade Judge.
            The District Court for the Central District of California, Judge Real presiding, entered judgment for Beckman Instruments and Systems Management Specialists (SMS) (collectively "the appellees").  Cincom argued that the district court erred when it granted the appellees judgment as a matter of law and denied Cincom's motions for summary judgment.
             The USCA reversed in part and remanded with instructions to assign the case to a different district court judge.  The parties agreed that the central issue on appeal was whether the district court properly construed the License Agreement between Cincom and Beckman as authorizing Beckman to out-source certain technical support work to SMS.  Cincom maintained that the USCA's decision in the interlocutory appeal ("Beckman I") established conclusively that the License Agreement did not authorize SMS's activities.  The USCA disagreed.  As a general rule, decisions on preliminary indications do not constitute law of the case and parties are free to liti-gate the merits.  Here, the appellees offered new evidence to the district court that had not been presented in Beckman I.  The law of the case doctrine does not apply.  However, the USCA agreed with Cincom that the district court erred when it concluded that the License Agreement authorized SMS to copy and use Cincom's software.  As Cincom insisted, the License Agreement only authorized Beckman's use of the software, a right that was non-transferable:  The License Agreement explicitly prohibited Beckman from "selling, giving or leasing" Cincom's software to anyone without Cincom's express written approval.              Notwithstanding this language, the appel-lees maintained that Beckman was entitled to out-source to SMS as part of its right to "use" the software.  They argued that Beckman was authorized to "use" the software in any fashion not prohibited by the License Agreement, including having SMS copy the software on Beckman's behalf.  The USCA noted that the Circuit has rejected the argument that license agreements permit that which they do not prohibit.  Moreover, although Beckman was entitled to "use" the software, that did not give it the right to authorize others to copy the software, even on its behalf.  The License Agreement not only regulated how the software could be used, but who could use it.  The appellees argued that the License Agreement was only intended as a means to ensure the confidentiality of the software. Thus, they argued, the License Agreement authorized any activity, so long as it did not affect the confidentiality of Cincom's software.  The USCA rejected this argument.  The License Agreement clearly covered both how and by whom the software may be used.  The USCA also rejected the appellees' argument that the License Agreement should be construed as authorizing SMS's activities because, in a completely separate transaction with another licensee, Allergen, Cincom negotiated a supplemental agreement to cover out-sourcing.  The appellees argued that this supplemental contract shows that the License Agreement contemplated out-sourcing.  The USCA found no merit in this argument either.  The fact that Cincom and Allergen deemed it necessary to enter into an additional agreement to cover out-sourcing indicates that the License Agreement did not authorize out-sourcing in the first place.  In sum, the License Agreement only authorized Beckman's use of the software, not SMS's.  Cincom thus had a viable claim that SMS's out-sourcing activities constituted, among other things, copyright infringements.  It properly presented a motion for summary judgment on that and related claims.
            The district court denied Cincom's motion for summary judgment on its claims for (1) copyright infringement;  (2) contributory copyright infringement;  (3) breach of contract;  (4) inducing breach of contract;  (5) misappropriation of trade secrets; and (6) unfair competition.  To establish a copyright infringement, a plaintiff must show ownership of the copyright and copying of protected expression beyond the scope of a license.  Contributory infringement is established by showing that a defendant had knowledge of the infringing activity, and induced, cause or materially contributed to the infringing conduct of another.  Cincom argued that the appellees infringed its copyrights in various ways.  It asserted, and it was uncontroverted, that SMS made copies of the software when it "opened" and "closed" Cincom's database system, used the software on Beckman's behalf, and made back-up copies of Beckman's files, which contain the software.  Cincom's motion also established that Beckman made an unauthorized distribution of Cincom's software when it sold SMS a computer disk drive and contained Cincom's software.  Finally, it was uncontroverted that SMS ran Cincom software on a second hard disk and used the software in disk defragmentation operations.  The district court determined that these activities were authorized by the License Agreement.  However, the USCA found there were not.  These activities infringed Cincom's copyrights.  The USCA thus reversed the district court's denial of Cincom's motion for summary judgment on its copyright infringement claims.
            Cincom next argued that the district court erred when it denied Cincom's motion for summary judgment on its breach of contract claim.  The USCA agreed.  The License Agreement provided that it would be "construed and enforced according to the laws of the State of Ohio."  Under Ohio law, a plaintiff may establish a breach of contract claim by showing:  (1) the existence of a binding contract; (2) that the plaintiff performed its contractual obligations; (3) that the defendant failed to fulfill contractual obligations without legal excuse; and (4) that the plaintiff suffered damages as a result.  Here, the License Agreement explicitly prohibited the sale, gift, or lease of the software.  Under its service agreement with SMS, Beckman transferred Cincom's software to SMS.  Beckman breached the contract.  The USCA thus reversed the district court's denial of summary judgment on Cincom's breach of contract claim.  The USCA also found that the district court did not err in denying Cincom's motion for summary judgment on its claim against SMS for inducing a breach of contract.  To prevail on a claim for inducing a breach of contract, a plaintiff must show (1) the existence of a valid contract, (2) the defendant's knowledge of the contract and intent to cause the breach' (3) breach of the contract by the contracting party;  (4) which breach was caused by the defendant's wrongful and unjustified conduct; and (5) damages suffered as a result.  Although Cincom showed that SMS was aware of the License Agreement and knew that it did not provide for unapproved access to the software, Cincom has not shown that SMS intended for Cincom to breach the License Agreement  Instead, Cincom only established that SMS intended to cause the acts that constituted the breach.  The USCA thus affirmed the district court's denial of summary judgment on Cincom's claim for inducing a breach of the contract.
            Cincom also argued that that the district court erred by denying summary judgment on its claims for misappro-
priation of trade secrets and unfair competition.  Cincom argued that it established that Beckman misappropriated Cincom's trade secrets in its software and manuals because Beckman (1) allowed SMS access to Cincom software; (2) sold SMS the hard disk containing the Cincom software; and (3) allowed an SMS employee to retain Cincom's manuals containing trade secret information.  Cincom further argued that these acts of misappropriation constituted unfair competition under Cal. Bus. & Prof. Code Sec. 172.  The USCA concluded that Cincom was not entitled to summary judgment on these claims.  The Circuit has repeatedly held that although computer software can qualify for trade secret protection, a plaintiff must specifically identify the trade secrets and show that they were, in fact, trade secrets.  Cincom only established that the software was subject to a confidentiality agreement.  It did not also show that the software or the manuals were trade secrets.  Although Cincom may be able to prevail on these claims at trial, Cincom has yet to establish that the software or the manuals held any trade secrets.  The USCA thus affirmed the district court's denial of Cincom's motion for summary judgment with respect to its trade secrets and unfair competition claim.
           Judge Hug dissented from Section II A and B, which in effect granted summary jugment to Cincom on its copyright infringement claim.  He thought there was a genuine issue of material fact as to whether Beckman and SMS made fair use of Cincom's software.  The evidence was that SMS's copying was done solely in furtherance of servicing Beckman's computers, a use that Beckman was entitled to make of the software.  The majority also relied on the restriction in the Licensing Agreement that Beckman will not sell, give, or lease the software.  However, Judge Hug thought that on the transfer for use solely to service Beckman's own computers, there was a genuine issue of material fact as to the intent of the parties and the use that was actually make of the software.  With respect to Section III, Judge Hug thought that a reassignment of the case was not justified.  Judge Hug concurred in the remainder of the opinion.