The Ninth Circuit Court of Appeals today released an amended order in BETZ v. TRAINER WORTHAM, No. 05-15704, a federal appeal. The panel consisted of John T. Noonan, Jr., Ronald M. Gould, and Johnnie B. Rawlinson, Circuit Judges.

GOULD, Circuit Judge:
We must decide whether Heide Betz’s federal securities fraud claim is barred by the statute of limitations. We hold that there is a genuine issue of material fact whether Betz’s claim is time barred, and we reverse the district court’s summary judgment for the defendants. I On an appeal of summary judgment we, like the district court, view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in the non-moving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Viewed in the light most favorable to Betz, the facts are as follows:
In 1999, Betz, a retired art dealer, sold her house for $2.2 million. Betz planned to buy a co-op and invest the proceeds of the sale of her house to provide interest income. An employee of First Republic Bank named Carmen Castro introduced Betz to David Como, an employee of Trainer Wortham, an investment subsidiary of First Republic Bank. Como and Castro recommended that Betz invest the proceeds from the sale of her house with Trainer Wortham. Como and Castro assured Betz that, if she invested her $2.2 million with Trainer Wortham, she could withdraw $15,000 per month from her portfolio, for living expenses, without touching the $2.2 million in principal. According to Betz, on June 7, 1999, Betz entered into an oral agreement with Como, who was acting on behalf of Trainer Wortham, giving the defendants control over her $2.2. . .

The opinion filed on October 4, 2007 is amended as follows. The last sentence of the second paragraph in Part I, which reads:
Betz told Como and Castro that she knew nothing about stocks and bonds and that she only would understand the “bottom line,” or total balance, of her account. shall be deleted in its entirety. In addition, the second and third sentences of footnote 4, which currently read: In Davis v. Birr, Wilson & Co., 839 F.2d 1369 (9th Cir.1988), for example, we concluded that summary judgment on the issue of notice was proper because the plaintiff was a well-educated and experienced investor who made suggestions to his broker about his portfolio and who described himself as a “sophisticated investor.” Id. at 1370. By contrast, Betz had informed the defendants that she had no experience with stocks or bonds and would only understand the bottom line of her account statements, and thereafter, if we credit Betz’s testimony, received specific assurances from the president of Trainer Wortham that her account problems would be resolved and that she should forego suit. shall be deleted and replaced with the following text: For example, in Davis v. Birr, Wilson & Co., 839 F.2d 1369 (9th Cir. 1988) (per curiam), a case predating our adoption of the inquiry-plus-reasonable. . .

The Ninth Circuit Court of Appeals today released an order in CORDES v. GONZALES, No. 04-15988, a habeas corpus appeal. The panel consisted of Warren J. Ferguson, John T. Noonan, and Pamela Ann Rymer, Circuit Judges.

On June 30, 2005, the BIA sua sponte reopened the underlying proceeding, vacated its order of removal, and remanded the matter to the Immigration Judge. This stripped us of jurisdiction to enter our opinion, filed on August 24, 2005. See Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir. 2002). This case is different from Lolong v. Gonzales, 484 F.3d 1173, 1177 (9th Cir. 2007), because, here, the BIA remanded to the IJ for “further proceedings” and to enter a “new deci*Michael B. Mukasey is substituted for his predecessor, Alberto R. Gonzales, as Attorney General of the United States, pursuant to Fed. R. App. P. 43(c)(2). 1585 . . .

FERGUSON, Circuit Judge, dissenting:
Because the majority’s decision to vacate our opinion directly contradicts Lolong v. Gonzales, I must dissent. 484 F.3d 1173 (2007) (en banc). This Court’s recent unanimous1 en banc opinion in Lolong compels the conclusion that we retain jurisdiction over this case. Lolong made clear that the order of deportation entered by the Immigration Judge (”IJ”) who initially heard Cordes’s case remains in effect, providing us with a final agency decision to review. Id. at 1178. The majority distinguishes Lolong based on an inconsequential factual issue: the BIA’s remand to the IJ. There is no meaningful distinction between Lolong and this case, and the majority’s attempt to fashion one brings it squarely into conflict with the ruling of the en banc court. In 2001, an IJ found Cordes removable, but granted discretionary relief from removal under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (repealed 1996). In 2003, the BIA explicitly affirmed the finding of deportability, but reversed the grant of relief. . . .

The Ninth Circuit Court of Appeals today released an amended order in JADA TOYS, INC. v. MATTEL, INC., No. 05-55627, a federal appeal. The panel consisted of Harry Pregerson and Johnnie B. Rawlinson, Circuit Judges, and Brian E. Sandoval, District Judge.

SANDOVAL, District Judge:
Defendant-Appellant Mattel, Inc. (”Mattel”) appeals the grant of summary judgment in favor of Jada Toys, Inc. (”Jada”) on Mattel’s federal and state trademark infringement counterclaims. Mattel also challenges the district court’s entry of summary judgment in favor of Jada as to its dilution and copyright claims. We hold that because the district court erred in its application of the relevant infringement test, the district court’s entry of summary judgment in Jada’s favor as to those claims is reversed. We also hold that genuine issues of material fact exist as to Mattel’s copyright and dilution claims and, therefore, the district court’s entry of summary judgment as to those claims in favor of Jada is also reversed. I. FACTUAL AND PROCEDURAL BACKGROUND Jada Toys is a California corporation that specializes in the distribution and sale of miniature diecast toy cars, trucks, and other vehicles. Generally, these vehicles are scale model replicas of actual vehicles. From 2001 to 2004, Jada produced a line of toy trucks called HOT RIGZ. In 2001, Jada filed an application for a trademark registration of the term HOT RIGZ with the United States Patent and Trademark Office (”U.S. PTO”). The trademark was issued by and registered with the U.S. PTO in 2002, though Jada used its HOT RIGZ trademark in advertising material and on its toys and their packaging from 2001 to 2004. . . .

The Ninth Circuit Court of Appeals today released an opinion in TERBUSH v. USA, No. 06-15033, an appeal in a civil action against the United States. The panel consisted of Ferdinand F. Fernandez and M. Margaret McKeown, Circuit Judges, and David G. Trager,1 Senior Judge.

McKEOWN, Circuit Judge:
This case illustrates the intersection of the National Park Service’s (”NPS”) mandate to open federal park lands for recreational use, the scope of NPS’s obligation to provide for visitor safety, and the risks of mountain climbing. In 1999, Peter Terbush was killed by a rockslide in Yosemite National . . .

The Ninth Circuit Court of Appeals today released an opinion in COOK v. SCHRIRO, No. 06-99005, a habeas corpus appeal. The panel consisted of Diarmuid F. O’Scannlain, Susan P. Graber, and Consuelo M. Callahan, Circuit Judges.

CALLAHAN, Circuit Judge:
Petitioner Daniel Wayne Cook appeals the denial of his 28 U.S.C. § 2254 petition. Cook waived counsel and represented himself at trial through sentencing. A jury convicted him of two counts of first-degree murder and the court sentenced him to death under Arizona Revised Statutes §§ 13-503 and 13703. Cook now claims that his decision to waive counsel was involuntary because his original appointed trial counsel was ineffective; that his co-defendant, John Eugene Matzke’s plea agreement violated Cook’s right to a fair trial; and that the . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. MURPHY, No. 06-30582, a criminal appeal. The panel consisted of Alfred T. Goodwin, Stephen Reinhardt, and Milan D. Smith, Jr., Circuit Judges.

REINHARDT, Circuit Judge:
Defendant Murphy appeals the district court’s denial of his motion to suppress evidence seized as a result of two searches. We conclude that one search was lawful and one was not. The first search, a protective sweep of storage units following Murphy’s arrest, was justified by the officer’s legitimate concern about the potential presence of confederates in the area. We conclude that the district court’s ruling as to this search was correct. The second search occurred two hours later, after Murphy, who was residing in the units temporarily, had refused to consent but the officers subsequently obtained consent from the individual who rented the storage units. In light of the Supreme Court’s recent decision in Georgia v. Randolph, 547 U.S. 103 (2006), we reverse the district court’s denial of the suppression motion as to this search. I. On August 4, 2004, officers from the Jackson County Narcotics Enforcement Team followed two individuals, Cozo and Wyman, who were observed purchasing precursor ingredients used to manufacture methamphetamine, to a storage facility. The officers knew that defendant Murphy was staying in storage units rented by Dennis Roper at this facility. They intercepted Wyman as he was driving away from the facility and he told them that Cozo was still inside unit 17. The officers waited outside until Cozo left the unit. Officer Thompson then knocked on the door and Murphy opened it holding a ten-inch piece of metal pipe. Thompson recognized Murphy and knew him to be a methamphetamine manufacturer. Thompson asked Murphy to drop the pipe, but he did not initially comply. Thompson then stepped to the right and asked again; this time Murphy dropped the pipe. From his position, Thompson was able to observe in plain view an operating methamphetamine lab inside the storage unit. As a result, he arrested Murphy. . . .

The Ninth Circuit Court of Appeals today released an opinion in ARRINGTON v. CHARLES DANIELS, No. 06-35855, a habeas corpus appeal. The panel consisted of Stephen Reinhardt, Cynthia Holcomb Hall, and Milan D. Smith, Jr., Circuit Judges.

REINHARDT, Circuit Judge:
This case is the most recent in a series of challenges to the Bureau of Prisons’ (”Bureau” or “BOP”) implementing regulation governing early release of prisoners who successfully complete a residential substance abuse program. The relevant statute provides that the Bureau may reduce by up to one year the prison term of an inmate convicted of a nonviolent felony if the prisoner successfully completes such a program. 18 U.S.C. § 3621(e)(2)(B). The Bureau’s implementing regulation categorically excludes from eligibility for early release under the law those whose “current offense is a felony . . . . [t]hat involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives[.]” 28 C.F.R. § 550.58(a)(1)(vi)(B)(2000). The question presented is whether the Bureau of Prisons violated Section 706(2)(A) of . . .

The Ninth Circuit Court of Appeals today released an opinion in ANDERSON v. TERHUNE, No. 04-17237, a habeas corpus appeal. The panel consisted of Mary M. Schroeder, Stephen Reinhardt, Sidney R. Thomas, Barry G. Silverman, M. Margaret McKeown, Kim McLane Wardlaw, William A. Fletcher, Ronald M. Gould, Richard A. Paez, Richard C. Tallman, Johnnie B. Rawlinson, Richard R. Clifton, Consuelo M. Callahan, Carlos T. Bea, and Sandra S. Ikuta, Circuit Judges.

McKEOWN, Circuit Judge:
It is likely that few Americans can profess fluency in the Bill of Rights, but the Fifth Amendment is surely an exception. From television shows like “Law & Order” to movies such as “Guys and Dolls,” we are steeped in the culture that knows a person in custody has “the right to remain silent.” Miranda is practically a household word. And surely, when a criminal defendant says, “I plead the Fifth,” it doesn’t take a trained linguist, a Ph.D, or a lawyer to know what he means. Indeed, as early as 1955, the Supreme Court recognized that “in popular parlance and even in legal literature, the term `Fifth Amendment’ in the context of our time is commonly . . .

SILVERMAN, Circuit Judge, with whom RAWLINSON, Circuit Judge, joins, concurring in the judgment:
The Supreme Court has taken pains to remind us that “[a]n unreasonable application of federal law is different from an . . .

BEA, Circuit Judge, concurring in part, dissenting in part:
I concur in the majority’s holding that Anderson unambiguously invoked his privilege against self-incrimination under the Fifth Amendment to the United States Constitution. Anderson repeatedly invoked his right to remain silent–”I don’t even want to talk about this no more”; “I’m through with this” and “I plead the fifth”–yet the police did not honor Anderson’s right to remain silent until he finally requested an attorney. Only at that point did the police do what they should have done in the first place–cease the interrogation. Given. . .

TALLMAN, Circuit Judge, with whom CALLAHAN, Circuit Judge, joins, dissenting:
Lewis Carroll was right: “When I use a word . . . it means just what I choose it to mean, neither more nor less.” Lewis Carroll, Alice’s Adventures in Wonderland 163 (Donald J. Gray ed., W.W. Norton 1973) (1871). My colleagues in the majority fixate on the words “plead the Fifth” lifted in isolation from a portion of the transcribed interview without giving the required level of deference to the trial court’s findings of fact after an evidentiary hearing, which included the entire tape recording and the testimony of the interrogators. No one disputes that Jerome Alvin Anderson, a known felon on parole, admitted to killing his acquaintance and friend, Robert Clark: Anderson admitted, “I shot [Clark].” Nor does anyone dispute that Anderson answered questions for nearly two and one-half hours before making the statement, “I plead the Fifth.” The California courts examined Anderson’s statement in the full context of his confession. Following an evidentiary hearing, the Shasta County Superior Court Judge made a factual finding that “while the defendant articulated words that could, in the isolation, be viewed as an invocation of his right to remain silent, the defendant did not intend to terminate the . . .

The Ninth Circuit Court of Appeals today released an opinion in RENDON v. MUKASEY, No. 05-77064, an administrative appeal. The panel consisted of Mary M. Schroeder, Cynthia Holcomb Hall, and Jay S. Bybee, Circuit Judges.

BYBEE, Circuit Judge:
In this case, we consider whether a state felony conviction for possession with intent to sell a controlled substance contains a trafficking element. We conclude that it does and therefore it qualifies as an aggravated felony under the immigration laws. . . .

The Ninth Circuit Court of Appeals today released an opinion in KALILU v. MUKASEY, No. 06-75425, an administrative appeal. The panel consisted of Dorothy W. Nelson, Stephen Reinhardt, and Carlos T. Bea, Circuit Judges.

PER CURIAM:
Abraham Kalilu (”Kalilu”), a twenty-seven-year-old native and citizen of Liberia, seeks review of the Board of Immigration Appeals’ (”BIA”) adverse decision determining that he filed a frivolous asylum application, denying his claims for asylum and withholding of removal, denying his request for voluntary departure, and denying his motion to reopen. Petitioner raises two principal challenges to the BIA’s decision.1 First, he argues that the BIA’s frivolousness determination cannot be sustained because he was not afforded the required procedural safeguards, including notice and an opportunity to respond. Second, he argues that the BIA abused its discretion in denying his motion to reopen so that he could have an opportunity to pursue adjustment of status on the basis of his. . .