1)  SECURITIES FRAUD:  Lapidus v. Hecht, 99-15835 (9th Cir. Nov. 13, 2000).  To establish standing in an action under the Investment Company Act in connection with a trust's management of a mutual fund where the shareholders seeking standing sought to recover losses sustained by the mutual fund as a result of short sales made without shareholder approval, it was not necessary for the shareholders seeking standing to allege an injury distinct from that suffered by the shareholders generally if the alleged injury is predicated upon a violation of a shareholder's voting rights.  Thompson (author), T.G. Nelson, and Silverman, Circuit Judges.  J. Tabacco of San Francisco, CA, for the plaintiffs-appellants;  I. Traugott of San Francisco, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

2)  COPYRIGHT INFRINGEMENT:  Cook v. Robbins, 98-36242 (9th Cir. Nov. 16, 2000).  To be entitled to damages under 17 USC Sec. 504(b), a plaintiff who alleges copyright infringement need not prove that the defendant's profits were attributable to the allegedly infringing words.  B. Fletcher and Tashima (author), Circuit Judges, and Duplantier, District Judge.  H. Romero of Bellevue, WA, for the plaintiff-appellant / cross-appellee;  P. Selvin of Los Angeles, CA, for the defendants-appellees / cross-appellants.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

3)  INTELLECTUAL PROPERTY:  Leicester v. Warner Brothers, 98-56310 (9th Cir. Nov. 29, 2000).  The 801 Tower in downtown Los Angeles plus four towers that form its streetwall on the south side of the building are part of the "architectural work" (even though they have artistic elements);  Leicester, an artist known for large scale public art, claimed copyright protection for these towers along with other artistic works he created in a courtyard space called the "Zanja Madre."  He registered the whole of Zanja Madre as a "sculptural work" and sued Warner Brothers for infringement when the streetwall became the Second Bank in Gotham in the movie Batman Forever.  The USCA upheld the district court's ruling that pictures taken of the streetwall towers along with the 801 Tower are not infringing pursuant to the exemption for pictorial representations of buildings in the Architectural Works Copyright Protection Act of 1990;  concurring, Judge Tashima noted his disagreement only with the majority's conclusion that the district court found that the streetwall towers were not "conceptually separate" from the building;  on this point, Judge Tashima agreed with the dissent that the district court found only that the four relevant towers are a portion of the architectural work which includes the building and those four towers;  dissenting, Judge Fisher agreed that the district court did not clearly err in finding as a factual matter that the streetwall portion of the Zanja Madre is part of the larger architectural work of the 801 Building, but he did not think that ended the inquiry as he did not think that finding precluded a concurrent finding that the streetwall towers could also be considered conceptually separate from the building (as part of the rest of the Zanja Madre sculpture, for example).  Rymer (author), Tashima (concurring), and Fisher (dissenting), Circuit Judges.  G. Wood of Los Angeles, CA, for the plaintiff-appellant;  R. Schwartz of Los Angeles, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

4)  ENVIRONMENTAL LAW:  Desert Citizens Against Pollution v. Bisson, 97-55429 (9th Cir. Nov. 6, 2000).  An environmental group had standing to sue to set aside a land exchange that did not fulfill the statutory and regulatory requirements in establishing the value of the federal lands to be lost to the use of its members, and the group is not required to speculate as to what the ultimate disposition of the lands will be to establish that the injury will be redressed.  Hug (author), Boochever, and Kozinski, Circuit Judges.  W. Curtiss of San Francisco, CA, for the appellants;  E. Durkee of Washington, DC, for the appellee;  C. Kaiser of Denver, CO, for the intervenors.(Download the full text of this decision at www.ce9.uscourts.gov/) 

5)  ENVIRONMENTAL LAW:  Tinoqui-Chalola Council of Kitanemuk and Yowlumne Tejon Indians v. Southwest Center for Biological Diversity, 99-16384 (9th Cir. Nov. 20, 2000).  The Department of Energy was not required by Sec. 7 of the Endangered Species Act to engage in consultation with the Fish & Wildlife Service prior to the DoE's sale of a national petroleum reserve to Occidental Petroleum, as by passing the National Defense Authorization Act Congress waived the DoE's duty to reinitiate consultation under Sec. 7 as to this sale.  D.W. Nelson, Thompson (author), and Trott, Circuit Judges.  D. Rohlf of Portland, OR, for the plaintiffs-appellants;  G. Goldman of Washington, DC, for the defendants-appellees;  R. Break of Costa Mesa, CA, for the defendant-intervenor-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

6)  BANKRUPTCY / TAXATION:  In re Home America, 98-16631 (9th Cir. Nov. 15, 2000).  In an action brought by the trustee for recovery of a tax refund under 26 USC Sec. 7422 on behalf of the debtors' estate and in which the trustee sought to avoid, pursuant to 11 USC Sec. 549, the debtors' consent to the filing of a consolidated tax return with their common parent corporation and also the parent corporation's election under 26 USC Sec. 172 to relinquish the carryback period for net operating losses attributable to the debtors, the USCA held that the trustee's action was barred by the statute of limitations applicable to the trustee's avoidance powers under Sec. 549, notwithstanding that she sought to exercise that authority in the context of a Sec. 7422 tax refund suit.  Alarcon, Tashima (author), and Silverman, Circuit Judges.  T. Clark of Washington, DC, for the appellant;  B. Norris of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

7)  BANKRUPTCY:  In re Short, 00-15150 (9th Cir. Nov. 15, 2000).  The income of a live-in romantic companion may be considered in determining a bankruptcy debtor's ability to pay a debt he incurred in a judgment of marital dissolution entered in a California state court where the debtor and his live-in romantic companion were economically interdependent or formed a single economic unit.  Goodwin, Alarcon (author), and McKeown, Circuit Judges.  S. Mikelich of Sonora, CA, for the defendant-appellant;  A. Mitterling of Modesto, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

8)  BANKRUPTCY:  In re Myrvang, 99-35328 (9th Cir. Nov. 21, 2000).  A bankruptcy court's equitable powers do not authorize imposing a monetary penalty to encourage the debtor to make timely payments on a nondischargeable debt.  Goodwin, Alarcon (author), and McKeown, Circuit Judges.  A. Wenokur of Seattle, WA, for the appellants;  L. Engel of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

9)  BANKRUPTCY / ATTORNEYS' FEES:  Renfrow v. Draper, 99-35144 (9th Cir. Nov. 14, 2000).  Where state law governed attorneys' fees and costs under a "hold harmless" provision in a divorce decree, the former spouse was entitled to the attorneys' fees she incurred litigating state law issues, both in her state court proceeding and before the bankruptcy court; upon remand, the bankruptcy court should award only those costs that are "reasonable," as required by the divorce decree.  Goodwin, Alarcon (author), and McKeown, Circuit Judges.  R. Wotipka of Seattle, WA, for the defendant-appellant;  J. Weiss of Seattle, WA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

10)  BANKRUPTCY:  In re Prestige Limited Partnership-Concord, 99-15673 (9th Cir. Nov. 28, 2000).  A secured bankruptcy creditor's violation of California's "security-first, single action rule," Cal. Civ. Proc. Code Sec. 726(a), by bringing an action to collect a written guaranty, did not operate to bar the creditor from recovery on its underlying debt.  Kleinfeld, Tashima (author), and Berzon, Circuit Judges.  E. Yamamoto of Oakland, CA, for the appellant;  H. Binder of Santa Clara, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

11)  LABOR LAW:  Horizon Air Industries v. National Mediation Board, 98-35767 (9th Cir. Nov. 21, 2000).  The National Mediation Board did not violate the due process rights of an employer by notifying employees of the reasons the Board ordered a rerun union certification election.  Browning, B. Fletcher (author), and Gould, Circuit Judges.  M. Scott of Seattle, WA, for the plaintiff-appellant; F. Hunger of Washington, DC, for the defendant-appellee;  R. Gibbs of Seattle, WA, for the intervenor / defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

12)  LABOR LAW  ARBITRATION:  Sprewell v. Golden State Warriors, 99-15602 (9th Cir. Nov. 7, 2000).  An arbitrator's approval of two punishments imposed against a professional athlete, one by his team and the second by the association to which his team belongs, "draws its essence" from the governing collective bargaining agreement ("CBA") where the arbitrator explained in detail that the CBA provision upon which the athlete relied was not intended to deal with the issues of multiple punishments, but rather was designed to emphasize "the imperative of just cause in reviewing the matters of discipline."  D.W. Nelson, Thompson, and Trott (author), Circuit Judges.  P. Utrecht of San Francisco, CA, for plaintiff-appellant Sprewell;  R. Dale of Mill Valley, CA, for the plaintiffs-appellants Thompson, et al; J. Mishkin of New York, NY, F. Rothman of Los Angeles, CA, and M. Moroski of San Luis Obispo, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

13)  LABOR LAW:  Sever v. National Labor Relations Board, 98-71123 (9th Cir. Nov. 6, 2000).  In the absence of governing provisions in a collective bargaining agreement or established past practice, the NLRB should have used the employer's merit rankings to calculate the amount of back-pay that it owes former strikers, instead of pre-strike seniority;  the USCA remanded for a determination of whether the employer met its burden under Augusta Bakery, Inc., 298 NLRB 58 (1990), enforced. 957 F.2d 1467 (7th Cir. 1992), to prove that each employee who resigned to accept pension benefits expressed an unequivocal intent to sever his or her relationship with the company.  Sneed (author), Kleinfeld, and Tashima, Circuit Judges.  T. Reed of Alexandria, VA, for the petitioners Sever, et al;  E. Schulman of San Francisco, CA, for petitioner Alaska Pulp Corp.;  F. Jacob of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

14)  LABOR LAW / REMOVAL:  Prazak v. Local 1 Intl. Union of Bricklayers & Allied Crafts, 98-36129 (9th Cir. Nov. 13, 2000).  On an issue of first impression, the USCA held that state procedural rules applied to a "hybrid" federal-question labor case removed from state court where the plaintiff initially complied with the six-month federal statute of limitations mandated by DelCostello v. International Bhd. Of Teamsters, 462 US 151 (1983), and state procedural rules applied while the lawsuit remained in state court.  D.W. Nelson (author), Reinhardt, and Thomas, Circuit Judges.  R. Melvin of Anchorage, AK, for the plaintiff-appellant; S. Josephson of Anchorage, AK, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

15)  ERISA:  Chappel v. Laboratory Corporation of America, 98-17361 (9th Cir. Nov. 14, 2000).  A ERISA plan beneficiary should have received leave to amend his complaint to state a claim against the administrator of the plan for breach of fiduciary duty in failing to adequately notify him of the existence and terms of a mandatory arbitration provision;  dissenting in part, Judge Fernandez agreed that ERISA claims are arbitrable but not also that the plan administrator breached its fiduciary duties to the beneficiary here as the mechanism ERISA provides to assure that a beneficiary knows about the plan's provisions for seeking review of the plan administrator's decision is the summary plan description, and if that description is clear and the administrator does nothing to prevent reliance upon it, Judge Fernandez could not see how a breach of fiduciary duty has taken place.  Kozinski, Fernandez (dissenting in part), and W. Fletcher (author), Circuit Judges.  R. Rosati of Fresno, CA, for the appellant; M. Bartel of Sacramento, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

16)  EMPLOYMENT DISCRIMINATION:  Coleman v. The Quaker Oats Company, 99-15885 (9th Cir. Nov. 20, 2000).  Plaintiffs who bring an Age Discrimination in Employment Act suit against a former employer under a disparate treatment theory of liability must plead an additional claim of disparate impact in their complaint, or make known during discovery their intent to pursue recovery under that theory;  dissenting, Judge Fletcher thought that, as the employer's reduction in force terminations seriously impacted older employees, regardless of intent the real issue was whether the process had a disparate impact on the older protected members of the work force;  Judge Fletcher thought the majority blinded itself to Ninth Circuit precedent and to what all the parties knew this case was about in refusing to look at disparate impact.  B. Fletcher (dissenting), Canby, and O'Scannlain (author), Circuit Judges.  A. Pederson of Phoenix, AZ, for the plaintiffs-appellants;  M. Harris of Chicago, IL, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

17)  EMPLOYMENT DISCRIMINATION:  Morgan v. National Railroad Passenger Corp., 99-15375 (9th Cir. Nov. 8, 2000).  Where an employer's pre-limitations period discriminatory conduct is part of a series or pattern of discrimination, retaliation, and hostile environment, the continuing violation doctrine applies;  the pre-limitations period conduct should be presented to the jury not merely as background information, but for purposes of liability.  Lay (author), D.W. Nelson, and Thomas, Circuit Judges.  P. Price and Oakland, CA, for the plaintiff-appellant; K. Long-Martin of Oakland, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

18)  TORTS:  Reed v. Pershing County, 99-15250 (9th Cir. Nov. 2, 2000).  Under the discretionary function exception to the Federal Tort Claims Act, the government may not be held liable for injuries sustained by a attendee at a festival conducted on federal lands managed by the Bureau of Land Management, where the decision by the Bureau to issue a permit for the event involved the balancing of competing public policy concerns, including public access, safety, monitoring, resource allocation, and the environment.  Wood (author), Kleinfeld, and Graber, Circuit Judges.  M. Shea of San Jose, CA, for the plaintiff-appellant;  R. Mueller of San Jose, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

19)  CIVIL PROCEDURE:  Crum v. Circus Circus Enterprises, 99-15638 (9th Cir. Nov. 2, 2000).  Where a plaintiff amends her complaint to allege that the amount in controversy exceeds $75,000 and that she had already spent $13,000 for medical services and expected to spend in excess of $36,000 more for future medical expenses, and that she will experience $100,000 in loss of income, it did not appear to a legal certainty that her claim was for less than the jurisdictional amount of $75,000, as required by 28 USC Sec. 1332(a).  D.W. Nelson, Thompson (author), and Trott, Circuit Judges.  G. Kirk-Hughes of Las Vegas, NV, for the appellant;  M. Galane of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

20)  FIFTH AMENDMENT / EVIDENCE:  Doe v. Glanzer, 98-36213 (9th Cir. Nov. 17, 2000).  In a personal injury action brought by a mother on behalf of her minor daughter against the daughters paternal grandfather, the grandfather's invocation of the Fifth Amendment to refuse to answer a question about whether he had taken a penile plethysmography (a test which purports to measure, through electric wires attached to a man's penis, the reactions the man has when presented with certain visual stimuli, in this case pictures of naked girls) cannot be used to draw an adverse inference against him as the test is unreliable and the prejudice to the grandfather would far outweigh the probative value of the negative inference.  B. Fletcher, Hall (author), and Tashima, Circuit Judges.  L. Sirhall of Boise, ID, for the defendant-appellant;  M. Gaffney, of Idaho Falls, ID, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 

21)  IMMIGRATION / CLASS ACTIONS:  Catholic Social Services, Inc.  v. INS, 98-16269 (9th Cir. Nov. 21, 2000).  The tolling of the relevant statute of limitations during the pendency of an earlier class action applied to a successor class action filed by illegal resident aliens to challenge the implementation of immigration statutes;  the district court acted within its discretion in granting a preliminary injunction protecting members of the class challenging the INS' advance parole policy as inconsistent with the Immigration Reform and Control Act of 1986;  the district court erred in concluding that the earlier class action prevented it from granting preliminary injunctive relief to members of the class challenging Sec. 377 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996; dissenting, Judge Kozinski, joined by Judges Trott, Fernandez, and T.G. Nelson, thought that every Circuit to have considered the issue (including the Ninth) has held that the rationale of Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983), does not permit the filing of a second or subsequent class action once the original statute of limitations has run;  Judge Fernandez dissented for the reasons set forth in the majority's decision in Catholic Social Services, Inc. v. INS, 182 F.3d 1053 (1999);  Judge Graber concurred in the majority's holding that the plaintiffs who are "constructive front-deskers" may bring an equal protection challenge, but dissented from the remainder of the opinion because she thought that the other claims were time-barred.  Hug, Browning, Reinhardt, Kozinski (dissenting), Trott (dissenting), Fernandez (dissenting), T.G. Nelson (dissenting), Hawkins, Thomas, Graber (dissenting in part) , and W. Fletcher (author), Circuit Judges.  R. Bombaugh of Washington, DC, for the defendants-appellants;  P. Schey of Los Angeles, CA, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

22)  IMMIGRATION:  USA v. Gracidas-Ulibarry, 98-50610 (9th Cir. Nov. 7, 2000).  Sitting en banc, the USCA held that a conviction for attempt to reenter the U.S. without the consent of the Attorney General under 8 USC Sec. 1326 requires a finding that the defendant consciously desired to reenter the U.S. without consent;  concurring in the result, Judge Fernandez found persuasive the reasoning of the majority in USA v. Gracidas-Ulibarry, 192 F.3d 926 (9th Cir. 1999).  Hug, Pregerson, Reinhardt, Fernandez (concurring), T.G. Nelson, Kleinfeld, Thomas, Graber, W. Fletcher, Fisher (author), and Paez, Circuit Judges.  S. Hubachek of San Diego, CA, for the defendant-appellant;  AUSA R. Haines of San Diego, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

23)  IMMIGRATION / INEFFECTIVE ASSISTANCE: Dearinger v. Reno, 98-35861 (9th Cir. Nov. 15, 2000).  An alien's counsel provides ineffective assistance of counsel when he untimely files a petition in the Ninth Circuit for review of a BIA order denying asylum and refusing to withhold deportation.  B. Fletcher, Hawkins (author), and Thomas, Circuit Judges.  D. Dearinger pro se;  J. Davis of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

24)  IMMIGRATION:  USA v. Herrera-Blanco, 98-30342 (9th Cir. Nov. 14, 2000).  An immigration judge did not err by informing an alien who had admitted to convictions for two aggravated felonies, burglary and sexual assault, and whose deportation proceedings did not occur until after the effective date of the Anti-Terrorism and Effective Death Penalty Act, that he was not eligible for discretionary relief.  Goodwin, Alarcon (author), and McKeown, Circuit Judges.  S. Chaffin of Anchorage, AC, for the defendant-appellant;  W. Brown of Washington, DC, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

25)  IMMIGRATION:  Gafoor v. INS, 98-71201 (9th Cir. Nov. 3, 2000).  As the BIA's decision that the petitioner was not eligible for asylum and should be returned to Fiji was not supported by substantial evidence, the USCA remanded the case for a determination of whether recent events supported the petitioner's fear that he will be persecuted if forced to return to Fiji;  dissenting, Judge O'Scannlain thought that the BIA's dismissal of the appeal was supported by substantial evidence and perfectly justified, and that, while the petitioner has endured dreadful misfortune, he has not been persecuted on account of any statutorily enumerated ground.  O'Scannlain (dissenting), Hawkins (author), and Thomas, Circuit Judges.  J. Rodriguez-Choi of San Francisco, CA, for the petitioners;  A. Loughran of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

26)  IMMIGRATION:  Kataria v. INS, 99-70796 (9th Cir. Nov. 21, 2000).  When neither the INS nor the BIA makes an explicit adverse credibility finding, an asylum applicant is deemed to be credible and he need not provide documentary evidence to corroborate testimony he has given in support of his application.  D.W. Nelson, Thompson (author), and Trott, Circuit Judges.  D. Smith of San Francisco, CA, for the petitioner;  C. Ferrier of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

27)  IMMIGRATION:  Scales v. INS, 97-70915 (9th Cir. Nov. 21, 2000).  On an issue of first impression, the USCA held that Sec. 1401 of the Immigration and Naturalization Act does not require a blood relationship between a child born outside the United States and the U.S. citizen parent through whom citizenship is claimed so long as the child is born in wedlock of parents, one of whom is a U.S. citizen.  B. Fletcher and Tashima (author), Circuit Judges, and Duplantier, District Judge.  K. Gilbert of Seattle, WA, for the petitioner;  M. Slack of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

28)  IMMIGRATION:  Cervantes-Gonzales v. INS, 99-70403 (9th Cir. Nov. 14, 2000).  The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 applies to cases pending at the time the statute was enacted.  Reinhardt, Brunetti (author), and Rymer, Circuit Judges.  J. Byrne of San Francisco, CA, for the petitioners;  S. Houser of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

29)  IMMIGRATION:  Richards-Diaz v. Fasano, 99-56530 (9th Cir. Nov. 17, 2000).  Congress intended all of the permanent provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to apply to every alien as of April 1, 1997;  Immigration and Naturalization Act Sec. 212(c) was not one of these provisions.  Boochever, Tashima (author), and Tallman, Circuit Judges.  R. Freitas of San Diego, CA, for the petitioner-appellant;  AUSA S. Bettwy of San Diego, CA, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

30)  IMMIGRATION:  Cruz-Navarro v. INS, 99-70150 (9th Cir. Nov. 15, 2000).  Under the Immigration and Naturalization Act, an asylum applicant's persecution by a homeland guerrilla group due to his membership in a police or military is by itself insufficient to establish persecution on account of membership in a particular social group or political opinion.  Boochever, Tashima (author), and Tallman, Circuit Judges.  K. Kraus of San Diego, CA, for the petitioners;  W. Howard of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

31)  WARRANTLESS ARRESTS:  USA v. Oaxaca, 99-30062 (9th Cir. Nov. 15, 2000).  DEA agents who cross the threshold of an open garage door and place a suspect under warrantless arrest violated the suspect's Fourth Amendment rights and tainted the suspect's sister's consent to search the suspect's bedroom, as she gave her consent only moments after running to the garage where she saw several armed DEA agents and her brother on his knees, already under arrest;  dissenting, Judge Graber expressed her doubts about the breadth of the majority's holding concerning the treatment of the open garage door under the Fourth Amendment as, contrary to the cases relied upon by the majority, the suspect here had willingly left the garage door wide open, the garage is small, while its door is huge, and the garage faces the street at close range, so opening it exposed most of the interior to ready public view;  moreover, even leaving aside those doubts, Judge Graber thought any error in denying the motion to suppress evidence found in the suspect's room was harmless beyond a reasonable doubt.  Ferguson (author), Graber (dissenting), and W. Fletcher, Circuit Judges.  V. Waliser of Medford, OR, for the defendant-appellant;  AUSA R. Thomson of Medford, OR, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

32)  JURISDICTION:  USA v. Corey, 99-10232 (9th Cir. Nov. 20, 2000).  Federal courts have jurisdiction over criminal cases charging a United States citizen with offenses committed at U.S. installations abroad;  dissenting, Judge McKeown thought that 18 USC Secs. 2241(a) and 2242(1) did not apply extraterritorially so as to reach crimes committed on foreign soil.  Kozinski (author), Kleinfeld, and McKeown (dissenting), Circuit Judges.  S. King of Honolulu, HI, for the defendant-appellant;  AUSA L. Matsunaga of Honolulu, HI, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 

33)  EVIDENCE:  USA v. Alvarez-Valenzuela, 99-10374 (9th Cir. Nov. 8, 2000).  From the evidence presented, a reasonable jury could have found that a participant in a conspiracy to transport a large amount of marijuana across the border had actual knowledge or could have foreseen that a gun was present for mutual protection during the transport;  dissenting, Judge Kleinfeld said he agreed with all of the majority's opinion, except as to whether the defendant is responsible for the gun; he noted that the jury's question about the conspiracy instruction indicated that the jurors had a serious concern about the extent of vicarious liability for a co-conspirator's gun;  the evidence was not enough to satisfy a reasonable juror, beyond a reasonable doubt, that the defendant knew about the gun or could reasonably foresee it.  Wood (author),  Kleinfeld (dissenting), and Graber, Circuit Judges.  AFPD M. Simon of Tucson, AZ, for the defendant-appellant;  AUSA R. Miskell of Tucson, AZ, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

34)  EVIDENCE:  Nguyen v. Lindsey, 98-56880 (9th Cir. Nov. 30, 2000).  In separate murder prosecutions based on a shoot-out between rival street gangs in which an innocent bystander was killed, a prosecutor's use of inconsistent evidence of which accused fired the fatal shot did not violate the defendant's due process rights.  Browning, Noonan, and Silverman (author),  Circuit Judges.  F. McBride of Santa Ana, CA, for the petitioner-appellant;  AUSA J. Swain of San Diego, CA, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

35)  EVIDENCE / CONFRONTATION CLAUSE: Whelchel v. Wood, 98-35052 (9th Cir. Nov. 29, 2000).  The defendant's Confrontation Clause rights were violated by the admission of the tape-recorded statements of two co-defendants which statements did not bear particularized guarantees of trustworthiness;  the recordings were textbook examples of co-defendant statements that are presumptively unreliable.  Schroeder, Beezer, and Hawkins (author),  Circuit Judges.  J. Samson of Olympia, WA, for the defendant-appellant / cross-appellee;  N. Tenney of Spokane, WA, for the plaintiff-appellee / cross-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

36)  DISCOVERY / DEATH PENALTY:  USA v. Fernandez, 99-50738 (9th Cir. Nov. 7, 2000).  A district court may not impose a sanction on the United States for violating a discovery order which bars the government from seeking the death penalty, based on the prosecution's refusal to turn over its confidential pre-decisional death-penalty evaluation form and associated prosecution memorandum, which contained information concerning the Attorney General's pending decision whether to seek the death penalty against the defendants.  Noonan, Trott (author), Berzon, Circuit Judges.  AUSA R. Cheng of Los Angeles, CA, for the plaintiff-appellant;  D. Rubin of San Marino, CA, and L. Bakman of Los Angeles, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

37)  CRIMINAL PROCEDURE:  Anderson v. Calderon, 98-99024 (9th Cir. Nov. 17, 2000).  The petitioner's confession to two killings obtained while he was held for 76 hours in a California jail without the benefit of an arraignment hearing, and in violation of Riverside v. McLaughlin, 500 U.S. 44 (1991), was sufficiently attenuated from the illegality where the defendant volunteered a desire to confess prior to the arraignment violation while his detention was legal;  dissenting, Judge McKeown thought that, as the state had not demonstrated that the Fourth Amendment violations were harmless under the standard of Brecht v. Abrahamson, 502 U.S. 619 (1993), the penalty phase of the petitioner's trial should be reversed.  Trott (author), Fernandez, and McKeown (dissenting), Circuit Judges.  FPD M. Rocconi of Los Angeles, CA, for the petitioner-appellant;  G. Gonzales of San Diego, CA, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

38)  DOMESTIC VIOLENCE / FIREARMS:  USA v. Jones, 99-10462 (9th Cir. Nov. 2, 2000).  18 USC Sec. 922(g)(8), which makes it illegal for persons to possess a firearm if they are subject to a domestic violence protection order, is constitutional.  Aldisert (author), Graber, and Fisher, Circuit Judges.  M. Reichel of Sacramento, CA, for the defendant-appellant;  AUSA N. Wong of Sacramento, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

39)  RIGHT TO COUNSEL:  USA v. W. Wayne Hayes, 99-10405 (9th Cir. Nov. 2, 2000).  A federal criminal defendant did not waive his right to counsel where the court failed to make him aware of the dangers and disadvantages of self-representation;  suggesting that there are consequences in the abstract is not enough;  there must be some description, however, minimal, of the specific dangers and disadvantages of proceeding pro se.  Aldisert (author), Graber, and Fisher, Circuit Judges.  C. Grillo of Fort Lauderdale, FL, for the defendant-appellant;  AUSA L. Osborne of Honolulu, HI, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

40)  RIGHT TO COUNSEL:  USA v. Hatcher, 99-17348 (9th Cir. Nov. 3, 2000).  A defendant's actual and reasonable reliance on retained counsel to file a direct appeal may be sufficient to excuse his procedural default in failing to file a timely post-conviction relief petition in state court.  Thompson (author), T.G. Nelson, Silverman, Circuit Judges.  AFPD D. Johnson of Las Vegas, NV, for the petitioner-appellant;  R. Hulse of Las Vegas, NV, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

41)  RIGHT TO COUNSEL:  USA v. Darnell Hayes, 98-50609 (9th Cir. Nov. 8, 2000).  Sitting en banc, the USCA held that the government's surreptitious taping of a conversation between a co-conspirator and the target of an investigation who is represented by counsel before formal charges are pending against that target does not violate the target's Sixth Amendment right to counsel;  dissenting, Judge Reinhardt, joined by Judges Hug, Graber and W. Fletcher, thought that prior to the majority's decision, no case has suggested that the government may conduct videotaped depositions of key prosecution witnesses for use as substantive evidence at trial while simultaneously eliciting incriminating statements from a defendant outside his counsel's presence.  Hug (dissenting), Schroeder, Reinhardt (dissenting), Fernandez, Rymer (author), T.G. Nelson, Kleinfeld, Graber (dissenting), W. Fletcher (dissenting), Fisher, and Gould, Circuit Judges.  M. Crowley of San Diego, CA, for the defendant-appellant;  AUSA Y. Saide of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

42)  PROSECUTORIAL MISCONDUCT:  USA v. LaPage, 00-50015 (9th Cir. Nov. 2, 2000).  Where the prosecutor's failure to correct the use of a witness's testimony that is known to be a lie may have made a difference in the outcome of the trial, the conviction cannot stand.  Rymer and Kleinfeld (author), Circuit Judges, and Damrell, District Judge.  R. Diamond of Santa Monica, CA, for the appellant;  AUSA J. Thvedt of Los Angeles, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 

43)  PROSECUTORIAL MISCONDUCT:  Downs v. Hoyt, 99-35266 (9th Cir. Nov. 15, 2000).  A state criminal prosecutor did not violate a criminal defendant's constitutional rights by failing to disclose investigational material that might have provided evidentiary leads where the withheld matter did not turn up any exonerating or impeaching evidence;  the defendant's contention amounted to speculation that the withheld material might have led to some admissible evidence which might have been sufficiently favorable to meet the standard of USA v. Bagley, 473 U.S. 667 (1985).  Kozinski and Kleinfeld, Circuit Judges, and Schwarzer (author), District Judge.  AFPD W. Willis of Portland, OR, for the petitioner-appellant;  J. Klapstein of Salem, OR, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

44)  PROSECUTORIAL MISCONDUCT:  Drayden v. White, 99-15184 (9th Cir. Nov. 14, 2000).  A state criminal prosecutor's soliloquy in the voice of a murder victim during closing argument constituted prosecutorial misconduct.  Aldisert, Graber (author), and Fisher, Circuit Judges.  AFPD D. Fermino of San Diego, CA, for the petitioner-appellant;  J. Friedlander of San Francisco, CA, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

45)  JUROR MISCONDUCT:  Green v. White, 99-17124 (9th Cir. Nov. 13, 2000).  A juror engaged in prejudicial misconduct by concealing a felony conviction that would have disqualified him from jury service under California law.  Lay (author), D.W. Nelson, and Thomas, Circuit Judges.  M. Satris of Bolinas, CA, for the petitioner-appellant;   R. Matthias of San Francisco, CA, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

46)  LACEY ACT:  USA v. Fejes, 99-30144 (9th Cir. Nov. 14, 2000).  For purposes of Sec. 3373(d)(1)(B) of the Lacey Act, the "sale" of wildlife  encompasses both an agreement to receive consideration for guiding or outfitting services to the hunters who took the wildlife in violation of Alaska law, and also the actual provision of such services.  Goodwin, Alarcon (author), and McKeown, Circuit Judges.  A. Parnes of Ketchum, ID, for the defendant-appellant;  E. Ying of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

47)  COMPUTER HACKING:  USA v. Middleton, 99-10518 (9th Cir. Nov. 16, 2000).  18 USC Sec. 1030(e)(8)(A), which criminalizes causing damage "to one or more individuals," includes damage to a corporation.  Graber (author), Fisher, and Berzon, Circuit Judges.  D. Cohen of San Francisco, CA, for the defendant-appellant;  AUSA J. Wilson of San Francisco, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

48)  ADULT STATUS FOR JUVENILES:  USA v. M.C.E., 99-30362 (9th Cir. Nov. 3, 2000).  Residential burglary, a crime that carries with it a substantial risk of violence, is a crime of violence that serves to trigger the mandatory transfer of a juvenile offender to adult status under 18 USC Sec. 5032, the federal juvenile crime statute.  Goodwin, Alarcon, and McKeown (author), Circuit Judges.  FPD R. Gombiner of Tacoma, WA, for the defendant-appellant / cross-appellee.  AUSA R. Westinghouse of Seattle, WA, for the plaintiff-appellee / cross-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

49)  DUE PROCESS:  Jones v. Smith, 99-56405 (9th Cir. Nov. 7, 2000).  The omission of a premeditation charge from a state court attempted murder information combined with its inclusion in the jury instruction constituted a variance or an amendment to the information;  because premeditation was a sentence enhancing provision under California law on the date the petitioner's conviction became final, the discrepancy between the information and jury instruction was a variance subject to harmless error review;  however, since the petitioner had actual notice that he was being charged with premeditated attempted murder, the error was harmless.  Browning, Hall (author), and Silverman, Circuit Judges.  M. Marshall of Pasadena, CA, for the petitioner-appellant;  E. Kehr of Los Angeles, CA, for the respondents-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

50)  SPEEDY TRIAL:  USA v. Lopez-Osuna, 99-50627 (9th Cir. Nov. 7, 2000).  Time accounted for by a defendant's waiver of the right to be indicted on a charge and an agreement to proceed by way of information on a related charge under a plea agreement is attributable to "other proceedings" under 18 USC Sec. 3161(h), and not counted in the period between arrest and indictment under the Speedy Trial Act.  Noonan, Trott (author), and Berzon, Circuit Judges.  M. Hall of San Diego, CA, for the defendant-appellant;  AUSA A. Perry of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

51)  MENTAL HEALTH TREATMENT PROGRAMS: Sharp v. Weston, 99-35015 (9th Cir. Nov. 30, 2000).  A state's ongoing development of a treatment program by mental-health professionals appointed to provide constitutionally adequate treatment for civilly committed sexually violent predators, did not preclude federal court scrutiny of the sufficiency of the mandated changes;  the district court properly held that although the treatment center had made some progress, it needed to take further steps to bring a constitutionally adequate program into reality, which justified continued court supervision.  Schroeder, Beezer, and Hawkins (author), Circuit Judges.  S. Coats of Olympia, WA, for the defendants-appellants;  J. Phillips and K. Jones of Seattle, WA, for the plaintiffs-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

52)  SENTENCING:  USA v. Scheele, 99-30388 (9th Cir. Nov. 2, 2000).  In calculating relevant drug quantities, the sentencing judge should err on the side of caution and consider the margin of error, particularly when a slightly lower estimate yields a significantly smaller sentence.  D.W. Nelson, Reinhardt (author), and Thomas, Circuit Judges.  D. Dattan of Anchorage, AK, for the defendant-appellant;  AUSA M. Rosenbaum of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

54)  SENTENCING:  USA v. Martinez, 99-50659 (9th Cir. Nov. 16, 2000).  The California conviction in this case for transporting marijuana into the state did not support a career-offender enhancement under the Sentencing Guidelines for importation and possession of marijuana with intent to distribute;  dissenting in part, Judge Trott thought the district court was correct to conclude that this conviction was for importing marijuana, and because the operative federal career offender definition of a "controlled substance offense" includes an offense under state law that prohibits importing of marijuana, he thought that the federal career offender enhancement was appropriate.  Boochever, Trott (dissenting in part) and Berzon (author), Circuit Judges.  S. Charlick of San Diego, CA, for the defendant-appellant;  AUSA G. Vega of San Diego, CA, for the plaintiff-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

53)  SENTENCING:  USA v. Chea, 99-10431 (9th Cir. Nov. 16, 2000).  Under Sentencing Guideline Sec. 5G1.3(c), as amended in 1994 and again in 1989, the failure of a district court to consider a defendant's undischarged term of imprisonment for a state conviction when imposing a sentence for a federal offense requires resentencing;  in resentencing the defendant and giving due consideration to the undischarged state term of imprisonment, the district court should apply the 1994 version of Sec. 5G1.3(c) and its required methodology;  in the event Sec. 5G1.3(c) is amended yet again before the defendant is resentenced, the district court should conduct its own ex post facto analysis and apply whichever version is more favorable to the defendant, be it the 1994 version or a new version in effect at the time of resentencing.  Reinhardt, Brunetti, and Rymer (author), Circuit Judges.  K. Landau of Oakland, CA, for the defendant-appellant;  AUSA L. Gray of San Francisco, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

55)  DEATH PENALTY:  Sandoval v. Calderon, 99-99010 (9th Cir. Nov. 6, 2000).  In the penalty phase of a state capital criminal prosecution, the defendant was denied a fair trial when the prosecutor's closing argument invoked divine authority and paraphrased a well-known Biblical passage as support for imposition of the death penalty as a penalty sanctioned by God;  the USCA thus held that the petitioner is entitled to habeas relief from his death sentence;  dissenting in part, Judge Fisher said he agreed with all of the majority's opinion, except its resolution of the petitioner's self-representation claims.  Schroeder (author), Hawkins, and Fisher (dissenting in part), Circuit Judges.  J. Kahan of Los Angeles, CA, for the respondent-appellant / appellee;  M. Araujo of Beverly Hills, CA, for the petitioner-appellee / appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

56)  STAY OF EXECUTION:  Miller v. Stewart, 00-99017 (9th Cir. Nov. 7, 2000).  The USCA granted a county public defender's motion to proceed as next friend and to stay the execution of an Arizona prisoner under sentence of death who declined to seek federal habeas relief and refused representation in so doing by the particular public defender office;  in circumstances in which no court had determined the defendant's competency to choose to die or the voluntariness of his decision, there was sufficient record evidence to require an evidentiary hearing as to his competency;  concurring, Judge Fisher noted that, as there had never been a hearing focused on the defendant's competency to waive his appeal rights and submit to execution, there existed a question as to the defendant's competence sufficient to support the USCA's jurisdiction to issue a stay of execution pending an evidentiary hearing;  Judge Rymer dissented from that part of the majority's "unprecedented" view that there is a difference of constitutional magnitude between what the majority characterizes as "competency to choose to die or the voluntariness of his decision" and competency to make legal decisions and the voluntariness of those decisions.  Reinhardt, Rymer (dissenting in part), and Fisher (concurring), Circuit Judges.  J. Hall of Tucson, AZ, for the petitioner-appellant;  D. Northup of Phoenix, AZ, for the respondents-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

57)  HABEAS CORPUS:  Lyons v. Crawford, 99-17351 (9th Cir. Nov. 13, 2000).  A petitioner for habeas corpus relief under 28 USC Sec. 2254 exhausts available state remedies only if he characterized the claims he raised in state proceedings specifically as federal claims and either references specific provisions of the federal constitution or statutes or cites to federal case law;  the standards of explicitness apply equally to pro se litigants.  O'Scannlain (author), Leavy, and Gould, Circuit Judges.  AFPD D. Johnson of Las Vegas, NV, for the petitioner;  D. Holmes of Carson City, NV, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/