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Unscheduled
October 2004 Term

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Josue Leocal v. John Ashcroft, U.S. Attorney Gen., et al.
No. 03-583

Subject:

Question:
    The court below interpreted 18 U.S.C. 16 to include DUI with serious bodily injury as a "crime of violence"--and therefore an "aggravated felony" as defined under 101(a)(43)(F) of the Immigration and Nationality Act ("INA")--where the statute under which Petitioner was convicted required nothing more than negligence for conviction. That ruling conflicts with decisions of other United States Courts of Appeals and with the interpretation of the Board of Immigration Appeals ("BIA " or "Board").

    The question presented is as follows:
    Whether, in the absence of a mens rea of at least recklessness with respect to the active application of force against another, DUI with serious bodily injury is a "crime of violence" under 18 U.S.C. 16 that constitutes an "aggravated felony" under 101 of the INA?
Decisions:
  • U.S. Court of Appeals - 11th Circuit, Unpublished Order Filed: June 30, 2003
  • United States Supreme Court, Cert. Granted: February 23, 2004

Resources:

Briefs:

    Parties Counsel of Record

For Petitioner Leocal:

J. Sedwick Sollers III
King & Spalding LLP
Washington, DC
For Respondents Ashcroft, et al.:
Theodore Olson
Solicitor General of the United States
Washington, DC


Phil Crawford, Interim Field Office Director, Immigration and Customs Enforcement, et al., v. Sergio S. Martinez
No. 03-878

Daniel Benitez v. Robert A. Wallis, District Director, Immigration and Naturalization Service
No. 03-7434

Subject:

    Detention of Permanent Resident Aliens, Removal, Deportation, Immigration Law
Question:
    Whether [8 U.S.C.] Section 1231(a)(6) and Zadvydas v. Davis, 533 U.S. 678 (2001) compel the release of an arriving alien who was apprehended at the border of the United States, denied admission, and ordered removed from the United States.
Decisions:

Resources:


Briefs:

    Parties     Amicus - Supporting Petitioner Benitez (No. 03-7434) Counsel of Record

For Petitioners Crawford, et al.
    and Respondent Wallis:

Theodore Olson
Solicitor General of the United States
Washington, DC
For Respondent Martinez:
Christine Stebbins Dahl
Assistant Federal Public Defender
Portland, OR
For Petitioner Benitez:
John Stewart Mills
Mills & Carlin
Jacksonville, FL


Reginald A. Wilkinson, Director, Ohio Department of Rehabilitation and Correction, et al. v. William D. Dotson, et al.
No. 03-287

Subject:

Questions:
    This petition arises from one of the many cases considering which prisoner claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). Heck holds that a prisoner cannot advance a claim under 42 U.S.C. 1983 where success on that claim would "necessarily imply the invalidity of his conviction or sentence...unless...the conviction or sentence has already been invalidated." Id. at 487. This is Heck's so-called "favorable termination requirement."

    The Sixth Circuit concluded below that Heck's favorable termination requirement does not cover claims challenging parole procedures because success on those claims would not necessarily guarantee speedier release, but instead would provide only a new parole hearing. This raises the following questions:
  1. When a prisoner invokes 1983 to challenge parole proceedings, does Heck v. Humphrey's favorable termination requirement apply where success by the prisoner on the claim would result only in a new parole hearing and not necessarily guarantee earlier release from prison?

  2. Does a federal court judgment ordering a new parole hearing "necessarily imply the invalidity of" the decision at the previous parole hearing for purposes of Heck v. Humphrey?
Decisions:

Resources:


Briefs:

    Parties Counsel of Record

For Petitioners Wilkinson, et al.:

Douglas R. Cole
State Solicitor General
Columbus, OH
For Respondents Dotson, et al.:
Robert S. Walker
John Q. Lewis
Jones Day
Cleveland, OH


Norfolk Southern Railway Co. v. James N. Kirby, Pty Ltd., et al.
No. 02-1028

Subject:

    Carriage of Goods by Sea Act ("COGSA"), Contracts
Questions:
  1. Whether a cargo owner that contracts with a freight forwarder for transportation of goods to a destination in the United States is bound by the contracts that the freight forwarder makes with carriers to provide that transportation.

  2. Whether federal maritime law requires that terms of a bill of lading extending liability limitations under the Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C. app. 1300-1315, to "independent contractors" used to perform the contract of transportation must be narrowly construed to cover only those independent contractors in privity of contract with the bill's issuer .
Decisions:

Resources:


Briefs:

    Parties     Amicus - Supporting Petitioner Counsel of Record

For Petitioner Norfolk Southern Railway Co.:

Carter G. Phillips
Sidley Austin Brown & Wood LLP
Washington, DC
For Respondents James N. Kirby, Pty Ltd, et al.:
Michael F. Sturley
Austin, TX


Cooper Industries, Inc. v. Aviall Services, Inc.
No. 02-1192

Subject:

    Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Contribution, Clean-Up Costs, Environmental Law
Question:
    Whether a private party who has not been the subject of an underlying civil action pursuant to CERCLA Sections 106 or 107, 42 U.S.C. 9606 or 9607, may bring an action seeking contribution pursuant to CERCLA Section 113(f)(1), 42 U.S.C. 9613(f)(1), to recover costs spent voluntarily to clean up properties contaminated by hazardous substances.
Decisions:

Resources:


Briefs:

    Amicus - Supporting Petitioner Counsel of Record

For Petitioner Cooper Industries, Inc.:

William Bradford Reynolds
Howrey Simon Arnold & White, LLP
Washington, DC
For Respondent Aviall Services, Inc.:
Richard O. Faulk
Gardere Wynne Sewell LLP
Houston, TX


KP Permanent Make-Up, Inc. v. Lasting Impressions, Inc., et al.
No. 03-409

Subject:

    Trademark Infringement, Fair Use, Intellectual Property
Question:
    Does the classic fair use defense to trademark infringement require the party asserting the defense to demonstrate an absence of likelihood of confusion, as is the rule in the 9th Circuit, or is Fair Use an absolute defense, irrespective of whether or not confusion may result, as is the rule in other Circuits?
Decisions:

Resources:


Briefs:
  • [Coming Soon]
Counsel of Record

For Petitioner KP Permanent Make-Up, Inc.:

Michael Machat
Beverly Hills, CA
For Respondents Lasting Impression, Inc., et al.:
Charles C.H. Wu
Wu & Cheung, LLP
Irvine, CA


John F. Kowalski, Judge, 26th Judicial Circuit Court of Michigan, et al. v. John C. Tesmer, et al.
No. 03-407

Subject:

    Guilty Plea, Right to Appellate Counsel, Fourteenth Amendment, Third-Party Standing, Criminal Law
Questions:
    The Michigan Constitution, Mich Const 1963, art I, 20, provides that a criminal defendant who pleads guilty shall not have an appeal of right and shall have a right to appointed appellate counsel "as provided by law." A Michigan statute, Michigan Compiled Law (MCL) 770.3a, provides, with significant listed exceptions, that criminal defendants who plead guilty shall not have appointed appellate counsel for discretionary appeals for review of the defendant's conviction or sentence.
  1. Does the Fourteenth Amendment guarantee a right to an appointed appellate attorney in a discretionary first appeal of an indigent criminal defendant convicted by a guilty plea?

  2. Do attorneys have third-party standing on behalf of potential future indigent criminal defendants to make a constitutional challenge to a state statute prohibiting appointment of appellate counsel in discretionary first appeals following convictions by guilty pleas where the federal courts properly abstained from hearing the claims of indigent criminal defendants themselves?
Decisions:

Resources:


Briefs:
  • [Coming Soon]
Counsel of Record

For Petitioners Kowalski, et al.:

Thomas L. Casey
State Solicitor General
Office of the Attorney General
Lansing, MI
For Respondents Tesmer, et al.:
Mark Granzotto
Royal Oak, MI
For Respondent Kolenda:
Judy E. Bregman
Bregman & Welch
Grand Haven, MI


Koons Buick Pontiac GMC, Inc. v. Bradley Nigh
No. 03-377

Subject:

Question:
    Whether the $1,000 statutory limit originally adopted in 1968 as a cap on Truth in Lending Act (TILA) recoveries under 15 U.S.C. 1640(a)(2)(A)(i) has been rendered inapplicable to that subpart by subsequent amendments to Section 1640(a)(2)(A) -- though there is no evidence of any Congressional intent to effect such a change -- so that parties who suffer no actual damages may now recover far in excess of the previous $1,000 cap.
Decisions:

Resources:


Briefs:

    Amicus - Supporting Petitioner Counsel of Record

For Petitioner Koons Buick Pontiac GMC, Inc.:

Donald B. Ayer
Jones Day
Washington, DC
For Respondent Nigh:
A. Hugo Blankingship
Blankingship & Associates, P.C.
Washington, DC


Donald P. Roper, Superintendent, Potosi Correctional Center v. Christopher Simmons
No. 03-633

Subject:

    Minimum Age for Capital Punishment, Cruel and Unusual Punishment, Eighth Amendment, Fourteenth Amendment
Questions:
    The Supreme Court of Missouri departed from this Court's holding in Stanford v. Kentucky, 492 U.S. 361 (1989), in which the Court upheld statutes under which the minimum age for capital punishment is sixteen. The Missouri court's decision raises two questions:
  1. Once this Court holds that a particular punishment is not "cruel and unusual" and thus barred by the Eighth and Fourteenth Amendments, can a lower court reach a contrary decision based on its own analysis of evolving standards?

  2. Is the imposition of the death penalty on a person who commits a murder at age seventeen "cruel and unusual," and thus barred by the Eighth and Fourteenth Amendments?
Decisions:

Resources:


Briefs:

    Parties Counsel of Record

For Petitioner Roper:

Stephen D. Hawke
Assistant Attorney General
Jefferson City, MO
For Respondent Simmons:
Jennifer Herndon
St. Louis, MO


Keyse G. Jama v. U.S. Immigration and Naturalization Service
No. 03-674

Subject:

    Removal of Aliens, Acceptance by Foreign Country
Question:
    Whether the Attorney General can remove an alien to one of the countries designated in 8 U.S.C. 1231(b)(2)(E) without obtaining that country's acceptance of the alien prior to removal.
Decisions:

Resources:


Briefs:

    Parties Counsel of Record

For Petitioner Jama:

Jeffrey J. Keyes
Briggs and Morgan, P.A.
Minneapolis, MN
For Respondent INS:
Theodore Olson
Solicitor General of the United States
Washington, DC


Willard Stewart v. Dutra Construction Company
No. 03-814

Subject:

    Jones Act, "Seaman" Status, Special Purpose Watercraft
Question:
    To qualify for "seaman" status under the Jones Act, a worker must have an "employment-related connection to a vessel in navigation." Chandris, Inc. v. Latsis, 515 U.S. 347, 357 (1995). What is the legal standard for determining whether a special purpose watercraft (such as a dredge) is a Jones Act "vessel"?
Decisions:

Resources:


Briefs:
  • [Coming Soon]
Counsel of Record

For Petitioner Stewart:

David B. Kaplan
The Kaplan/Bond Group
Boston, MA
For Respondent Dutra Construction Co.:
Harvey Weiner
Peabody & Arnold
Boston, MA


Garrison S. Johnson v. James Gomez, et al.
No. 03-636

Subject:

    Temporary Racial Segregation of State Prisoners, Equal Protection Clause
Questions:
  1. Is a state's practice of routine racial segregation of state prisoners for at least a 60-day period subject to the same strict scrutiny generally applicable to all other challenges to intentional racial segregation, or is it excused from such scrutiny and subject only to the more relaxed review afforded under Turner v. Safley, 482 U.S. 78 (1987)?

  2. Does California's practice of routine racial segregation of state prisoners for at least a 60-day period violate the Equal Protection Clause?
Decisions:

Resources:


Briefs:

    Parties Counsel of Record

For Petitioner Johnson:

Bert H. Deixler
Proskauer, Rose, LLP
Los Angeles, CA
For Respondents Gomez, et al.:
Sara E. Turner
Deputy Attorney General
San Francisco, CA


State of Florida v. Joe Elton Nixon
No. 03-931

Subject:

    Ineffective Assistance of Counsel, Defense Strategy, Death Penalty, Criminal Procedure
Questions:
    In a capital murder case, the Florida Supreme Court:
  1. applied an incorrect standard, contrary to Strickland v. Washington, 466 U.S. 668 (1984), Bell v. Cone, 535 U.S. 685 (2002) and Roe v. Flores-Ortega, 120 S.Ct. 1029 (2000), by finding defense counsel ineffective per se under United States v. Cronic, 466 U.S. 648 (1984) despite having found counsel's strategy not to contest overwhelming evidence of guilt but to vigorously contest the sentence in the defendant's best interest and reasonably calculated to avoid a death sentence, and

  2. erred in concluding that Boykin v. Alabama, 395 U.S. 238 (1969) prohibited trial counsel from adopting a strategy, after fully informing his client, without objection, not to contest overwhelming evidence of guilt to protect the best interest of his client in contesting the appropriateness of imposing the death penalty.
Decisions:

Resources:


Briefs:
  • [Coming Soon]
Counsel of Record

For Petitioner State of Florida:

Carolyn M. Snurkowski
Assistant Attorney General
Tallahassee, FL
For Respondent Nixon:
Eric M. Freedman
New York, NY


Cherokee Nation of Oklahoma, et al. v. Tommy G. Thompson, U.S. Secretary of Health and Human Services, et al.
No. 02-1472

Tommy G. Thompson, U.S. Secretary of Health and Human Services v. Cherokee Nation of Oklahoma
No. 03-853

Subject:

Questions:
    Cherokee Nation of Oklahoma, et al. v. Thompson, et al., No. 02-1472
  1. Whether the federal government can repudiate, without liability, express contractual commitments for which it has received valuable consideration, either by spending down discretionary agency appropriations otherwise available to pay its contracts, or simply by changing the law and the contracts retroactively.

  2. Whether government contract payment rights that are contingent on "the availability of appropriations" vest when an agency receives a lump-sum appropriation that is legally available to pay the contracts as is the law of the Federal Circuit under Blackhawk Heating or is the government's liability calculated only at the end of the year after the agency has spent its appropriations on other activities, as the Tenth Circuit ruled below.
    Thompson v. Cherokee Nation of Oklahoma, No. 03-853

    The Indian Self-Determination and Education Assistance Act (ISDA), 25 U.S.C. 450-450n, authorizes the Secretary of Health and Human Services (the Secretary) to enter into contracts with Indian Tribes for the administration of programs the Secretary otherwise would administer himself. The ISDA also provides that the Secretary shall pay "contract support costs" to cover certain direct and indirect expenses incurred by the Tribes in administering those contracts. The ISDA, however, makes payment "subject to the availability of appropriations," and declares that the Secretary "is not required to reduce funding for programs, projects or activities serving a tribe to make funds available" for contract support and other selfdetermination contract costs. 25 U.S.C. 450j-l(b). The questions presented are:
  1. Whether the ISDA requires the Secretary to pay contract support costs associated with carrying out self-determination contracts with the Indian Health Service, where appropriations were otherwise insufficient to fully fund those costs and would require reprogramming funds needed for noncontractable, inherently federal functions such as having an Indian Health Service.

  2. Whether Section 314 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. No.105-277, 112 Stat. 2681- 288, bars respondent from recovering its contract support costs.
Decisions:

Resources:


Briefs:

    Parties - Cherokee Nation of Okla., et al. v. Thompson, et al., No. 02-1472     Parties - Thompson v. Cherokee Nation of Okla., No. 03-853 Counsel of Record

For Cherokee Nation of Oklahoma, et al.:

Lloyd Benton Miller
Sonosky, Chambers, Sachse,
    Endreson & Perry, LLP
Washington, DC

Carter G. Phillips
Sidley Austin Brown & Wood LLP
Washington, DC
For Tommy Thompson:
Theodore Olson
Solicitor General of the United States
Washington, DC


Gary S. Small v. United States
No. 03-750

Subject:

    Foreign Conviction, Unlawful Possession of Firearm, Criminal Law
Question:
    The statute in question, 922(g)(1) of Title 18, United States Code, makes it unlawful:
    (g) . . . for any person

      (1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year:

      . . .

      to possess in or affecting commerce, any firearm.

    In the instant matter, Petitioner's only conviction occurred in Okinawa, Japan, and it was this Japanese conviction that served as the predicate felony in this 922(g)(1) prosecution. The Petitioner filed a motion to dismiss the indictment arguing that foreign felonies were not intended to count as the term "in any court" means any court in the United States. The motion was denied. While the Third Circuit's affirmance of the lower court is consistent with a 1989 decision of the Fourth Circuit and a 1986 decision of the Sixth Circuit, the Tenth Circuit in 2000 and the Second Circuit, on August 27, 2003, held that foreign convictions do not count. Consequently, a clear conflict exists among the five Circuit Courts which have addressed the issue.

    The question presented, therefore, is whether the term "convicted in any court" contained in 18 U.S.C. 922(g)(i) includes convictions entered in foreign courts.
Decisions:

Resources:


Briefs:

    Petition Phase Counsel of Record

For Petitioner Small:

Paul D. Boas
Pittsburgh, PA
For Respondent United States:
Theodore Olson
Solicitor General of the United States
Washington, DC


Commissioner of Internal Revenue v. John W. Banks, II
No. 03-892

Commissioner of Internal Revenue v. Sigitas J. Banaitis
No. 03-907

Subject:

    Income Tax, Damages, Contingent Fee Agreement Included in Gross Income
Questions:
    Whether, under Section 61(a) of the Internal Revenue Code, 26 U.S.C. 61(a), a taxpayer's gross income from the proceeds of litigation includes the portion of his damages recovery that is paid to his attorneys pursuant to a contingent fee agreement.
Decisions:

Resources:


Briefs:

    Parties - Commissioner of Internal Revenue v. Banks, No. 03-892     Parties - Commissioner of Internal Revenue v. Banaitis, No. 03-907 Counsel of Record

For Petitioner Commissioner of Internal Revenue:

Theodore Olson
Solicitor General of the United States
Washington, DC
For Respondent Banks:
Russell R. Young
Mayer Brown Rowe & Maw
Chicago, IL
For Respondent Banaitis:
Philip N. Jones
Duffy, Kekel, Jones & Bernard
Portland, OR


Azel P. Smith, et al. v. City of Jackson, Mississippi, et al.
No. 03-1160

Subject:

Question:
    Should this Court grant certiorari to resolve the five-to-three circuit conflict over whether disparate impact claims are cognizable under the Age Discrimination in Employment Act?
Decisions:

Resources:


Briefs:

    Parties Counsel of Record

For Petitioners Smith, et al.:

Thomas C. Goldstein
Goldstein & Howe, P.C.
Washington, DC 20016
For Respondent City of Jackson, Miss., et al.:
Glen D. Nager
Jones Day
Washington, DC


David B. Pasquantino, et al. v. United States No. 03-725

Subject:

Question:
    Whether the federal wire fraud statute (18 U.S.C. 1343) authorizes criminal prosecution of an alleged fraudulent scheme to avoid payment of taxes potentially owed to a foreign sovereign, given the lack of any clear statement by Congress to override the common law revenue rule, the interests of both the Legislative and Executive Branches in guiding foreign affairs, and this Court's prior rulings concerning the limited scope of the term "property" as used in the wire fraud statute.
Decisions:

Resources:


Briefs:

    Parties Counsel of Record

For Petitioner Pasquantino, et al.:

Laura W. Brill
Irell & Manella, LLP
Los Angeles, CA
For Respondent United States:
Theodore Olson
Solicitor General of the United States
Washington, DC


State of Illinois v. Roy I. Caballes
No. 03-923

Subject:

    Traffic Stops, Drug-Detection Dogs, Reasonable Search, Fourth Amendment, Criminal Procedure
Question:
    Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.
Decisions:

Resources:


Briefs:
  • [Coming Soon]
Counsel of Record

For Petitioner State of Illinois:

Gary Scott Feinerman
State Solicitor General
Chicago, IL
For Respondent Caballes:
Ralph E. Meczyk
Law Office of Ralph E. Meczyk
Chicago, IL


Gerald Devenpeck, et al. v. Jerome Anthony Alford
No. 03-710

Subject:

    Fourth Amendment, "Objective Reasonableness," Arrest, Probable Cause, Criminal Procedure
Questions:

Under the Fourth Amendment's objective reasonableness test, an arrest is deemed "reasonable" if there is probable cause to believe that a violation of law has occurred. Two judicial circuits find an arrest reasonable if, based on an objective assessment by a reasonable officer, there is probable cause to arrest for any offense. On the other hand, at least five judicial circuits find an arrest to be reasonable only if there is probable cause to arrest for crimes "closely related" to the crime or crimes articulated by the arresting officer. This case presents the following questions:
  1. Does an arrest violate the Fourth Amendment when a police officer has probable cause to make an arrest for one offense, if that offense is not closely related to the offense articulated by the officer at the time of the arrest?

  2. For the purpose of qualified immunity, was the law clearly established when there was a split in the circuits regarding the application of the "closely related offense doctrine", the Ninth Circuit had no controlling authority applying the doctrine, and Washington state law did not apply the doctrine?
Decisions:

Resources:


Briefs:
  • [Coming Soon]
Counsel of Record

For Petitioner Devenpeck, et al.:

Michael P. Lynch
Assistant Attorney General
Olympia, WA
For Respondent Alford:
Randolph Stuart Phillips
Poulsbo, WA


Claude M. Ballard, et ux. v. Commissioner of Internal Revenue
No. 03-184

Estate of Kanter, et al. v. Commissioner of Internal Revenue
No. 03-1034

Subject:

Questions:

Ballard, et ux. v. Commissioner of Internal Revenue, No. 03-184

In this case, the trial was conducted by a Special Trial Judge employed at will by the Tax Court. The Special Trial Judge was required to create a report of factual and legal findings, but his original report has never been made available to the parties, the public, or the reviewing Article III courts. Instead, his superiors on the Tax Court either overruled his factual findings or persuaded him to change his mind, thus creating a factual finding of tax fraud. This entire process took place off the record, and came to light only in a subsequent conversation between two Tax Court judges and a counsel for another party.

The questions presented are:
  1. Whether this secretive process is consistent with the Due Process Clause or the right to effective Article III review?

  2. Whether this secretive process is consistent with 26 U.S.C. 7482, which provides that Article III courts must review Tax Court decisions just as they would decisions of a U.S. district court?
Estate of Kanter, et al. v. Commissioner of Internal Revenue, No. 03-1034

The Tax Court keeps secret, even from the reviewing courts of appeals, the findings of fact and credibility judgments of its special trial judges. By law, these trial judges are required to file reports containing findings of fact and opinion with the Tax Court. Tax Ct. R. 183(b). By law, these findings of fact "shall be presumed to be correct" and the Tax Court is required to give "due regard" to the circumstance that the trial judge "had the opportunity to evaluate the credibility of witnesses." Tax Ct. R. 183(c). Nonetheless, the Tax Court overturns the factual findings, including the credibility findings, of its trial judges without the record revealing those findings or that the Tax Court has overturned them. Secret trial judge reports preclude the courts of appeals from determining whether the Tax Court has complied with the legal constraints described above. Secret trial judge reports also preclude the courts of appeals from reviewing a Tax Court decision on the basis of the entire record on which that decision in fact rests. Federal statutes require that "all reports of the Tax Court * * * shall be public records." 26 U.S.C. 7461(a).

The questions presented are:
  1. Whether the due process clause or the governing federal statutes require that the courts of appeals be able to review Tax Court decisions on the basis of the complete record, including the trial judge's findings of fact that, by law, the Tax Court must presume to be correct.

  2. Whether Tax Court Rule 183 requires judges of the Tax Court to uphold findings of fact and credibility judgments made by their trial judges unless those findings are "clearly erroneous," as the D.C. Circuit has held, or are those findings and credibility judgments entitled to no deference at all, as the Seventh Circuit held in this case.
Decisions:

Resources:


Briefs:

    Parties - Ballard, et ux. v. Commissioner of Internal Revenue, No. 03-184     Parties - Estate of Kanter, et al. v. Commissioner of Internal Revenue, No. 03-1034 Counsel of Record

For Petitioners Ballard, et ux.:

Vester T. Hughes Jr.
Hughes & Luce
Dallas, TX
For Petitioners Estate of Kanter, et al.:
Richard H. Pildes
Cambridge, MA
For Respondent Commissioner of Internal Revenue:
Theodore Olson
Solicitor General of the United States
Washington, DC


Thomas Goughnour, Acting Warden v. William C. Payton
No. 03-1039

Subject:

    Capital Cases, Post-Crime Evidence, "Catch-All" Mitigation Instruction
Question:
    In Boyde v. California, 494 U.S. 370 (1990), this Court upheld the constitutionality of California's "catch-all" mitigation instruction in capital cases, which directs a jury to consider "any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." The mitigating evidence at issue in Boyde was precrime evidence in mitigation. Relying on Boyde, the California Supreme Court held that California's "catch-all" mitigation instruction in this capital case is constitutional as applied to post-crime evidence in mitigation. In a 6-5 decision, the en banc Ninth Circuit held that the California Supreme Court decision was objectively unreasonable "because Boyde does not control this case." The question presented is:
    Did the Ninth Circuit violate 28 U.S.C. 2254(d) when it found the California Supreme Court objectively unreasonable in holding that California's "catch-all" mitigation instruction in capital cases is constitutional as applied to post-crime evidence in mitigation?
    Decisions:

    Resources:


    Briefs:
    • Coming Soon
    Counsel of Record

    For Petitioner Goughnour:

    Andrea Natalia Cortina
    Deputy Attorney General
    San Diego, CA
    For Respondent Payton:
    Dean R. Gits
    Deputy Federal Public Defender
    Los Angeles, CA


    Jennifer M. Granholm, Governor of Michigan, et al. v. Eleanor Heald, et al.
    No. 03-1116

    Michigan Beer & Wine Wholesalers Ass'n v. Eleanor Heald, et al.
    No. 03-1120

    Juanita Swedenburg, et al. v. Edward D. Kelly, Chairman, New York Div. of Alcoholic Beverage Control, State Liquor Auth., et al.
    No. 03-1274

    Subject:

      Twenty-first Amendment, Imporation of Beverage Alcohol, Commerce Clause, Webb-Kenyon Act
    Questions:

    Granholm, et al. v. Heald, et al., No. 03-1116

    Under state law, the Michigan Liquor Control Commission generally bans out-of-state direct shipment of alcoholic liquor to consumers' doorsteps, but permits in-state licensed wineries to direct ship to consumers, and out-of-state wineries to import through in-state licensed wholesalers. Out-of-state wineries may also petition the State Liquor Control Commission for an order permitting them to ship wine directly to consumers in the State. Any denial of such a request may be appealed through the State court system. Section 2 of the 21st Amendment to the United States Constitution expressly prohibits importation of alcoholic beverages into any state for delivery or use, in violation of the laws of the State. The Court of Appeals declared Michigan's alcoholic liquor importation law facially unconstitutional in violation of the Commerce Clause. The question presented is:
    Does Michigan's regulation of the importation of beverage alcohol under the 21st Amendment facially violate the Commerce Clause when it permits in-state licensed wineries to directly ship alcohol to consumers, but requires out-of-state wineries to import its products through licensed in-state wholesalers and to sell its products through licensed retailers or request permission of the Liquor Control Commission to bypass this distribution system and ship directly to consumers?
    Michigan Beer & Wine Wholesalers Ass'n v. Heald, et al., No. 03-1120

    Section 2 of the Twenty-first Amendment of the United States Constitution prohibits importation of alcoholic beverages into any state, for delivery or use therein, in violation of the laws thereof. In the Webb-Kenyon Act, 27 U.S.C. 122, Congress exercised its power under the Commerce Clause to impose essentially the same prohibition by federal statute. Michigan, like many other states, generally prohibits the importation of alcoholic beverages by any unlicensed person. Michigan law permits licensed in-state wineries to ship wine directly to consumers, but does not, as a matter of right, permit out-of-state wineries (which are not licensed by the state) to do so. An out-of-state entity may locate in Michigan and be licensed as an in-state winery. The Sixth Circuit ruled that the Michigan statute is "facially discriminatory" and struck down the prohibition on importation, allowing Michigan consumers to order and receive wine from out-of-state sources without limitation. The questions presented are:
    1. Whether the Sixth Circuit erred in ruling (in conflict with a Seventh Circuit decision upholding a similar Indiana statute against the same challenge) that the Twenty-first Amendment and the Webb-Kenyon Act do not authorize Michigan to enact statutes that prohibit the importation of alcoholic beverages by unlicensed persons, and that the Commerce Clause bars such statutes.

    2. Whether the Sixth Circuit erred in ruling (in conflict with a Fourth Circuit decision with respect to a similar North Carolina statute) that the proper remedy for the alleged discrimination was to invalidate the state's control over importation of alcoholic beverages rather than merely strike the offending exception for in-state wineries.
    Swedenburg, et al. v. Kelly, et al., No. 03-1274
    1. Does New York's discriminatory and protectionist prohibition against direct interstate shipment of wine to consumers violate the Commerce Clause of the U.S. Constitution; and if so, is it "saved" by the 21st Amendment?

    2. Does New York's discriminatory and protectionist prohibition against direct interstate shipment of wine to consumers violate the Privileges and Immunities Clause of the U.S. Constitution?
    Decisions:

    Resources:


    Briefs:
    • Coming Soon
    Counsel of Record

    No. 03-1116

    For Petitioners Granholm, et al.:

    Thomas L. Casey
    Solicitor General
    Michigan Attorney General's Office
    Lansing, MI
    For Respondents Heald, et al.:
    James A. Tanford
    Bloomington, IN
    No. 03-1120

    For Petitioner Michigan Beer & Wine
        Wholesalers Ass'n:
    Anthony S. Kogut
    Willingham & Cote, P. C.
    East Lansing, MI
    For Respondents Heald, et al.:
    James A. Tanford
    Bloomington, IN

    No. 03-1274

    For Petitioners Swedenburg, et al.:
    Clint Bolick
    Washington, DC
    For Respondents Kelly, et al.:
    Miguel A. Estrada
    Gibson, Dunn & Crutcher LLP
    Washington, DC


    Ann M. Veneman, Secretary of Agriculture, et al. v. Livestock Marketing, et al.
    No. 03-1164

    Nebraska Cattlemen, Inc., et al. v. Livestock Marketing, et al.
    No. 03-1165

    Subject:

    Questions:

    Veneman, et al. v. Livestock Marketing, et al., No. 03-1164

    Whether the Beef Promotion and Research Act of 1985 (Beef Act), 7 U.S.C. 2901 et seq., and the implementing Beef Promotion and Research Order (Beef Order), 7 C.F.R. Part 1260, violate the First Amendment insofar as they require cattle producers to pay assessments to fund generic advertising with which they disagree.

    Nebraska Cattlemen, Inc., et al. v. Livestock Marketing, et al., No. 03-1165

    Whether the Eighth Circuit erred in holding that the Beef Promotion and Research Act of 1985 ("Beef Act"), 7 U.S.C. 2901 et seq., and regulations promulgated thereunder—which impose assessments on beef producers and importers to fund research, education, and promotional activities carried out by special administrative bodies created by Congress for the express purpose of furthering important governmental objectives under the direct supervision and control of the Secretary of Agriculture—are "unconstitutional and unenforceable.

    Decisions:

    Resources:


    Briefs:
    • [Coming Soon]
    Counsel of Record

    No. 03-1164

    For Petitioners Veneman, et al.:

    Theodore Olson
    Solicitor General of the United States
    Washington, DC
    For Respondents Livestock Mktg. Ass'n, et al.:
    Ronald A. Parsons, Jr.
    Johnson, Heidepriem, Miner,
      Marlow & Janklow, LLP
    Sioux Falls, SD

    Philip C. Olsson
    Olsson Frank and Weeda
    Washington, DC
    No. 03-1165

    For Petitioner Nebraska Cattlemen, Inc., et al.
    Lorane F. Hebert
    Hogan & Hartson, L.L.P.
    Washington, DC
    For Respondent Livestock Mktg. Ass'n, et al.:
    Philip C. Olsson
    Olsson Frank and Weeda
    Washington, DC


    Richard G. Rousey, et ux. v. Jill R. Jacoway
    No. 03-1407

    Subject:

      Individual Retirement Accounts, Bankruptcy Exemptions
    Question:
      Should this Court grant certiorari to resolve the threeway circuit conflict over whether and to what extent Individual Retirement Accounts (IRAs) are exempt from a bankruptcy estate under 11 U.S.C. 522(d)(10)(E)?
    Decisions:

    Resources:

     


    Briefs:

        Parties Counsel of Record

    For Petitioners Rousey, et ux.:
    Thomas C. Goldstein
    Goldstein & Howe, P.C.
    Washington, DC
    For Respondent Jacoway:
    Colli C. McKiever
    Fayetteville, AR


    Roderick Jackson v. Birmingham Board of Education
    No. 02-1672

    Subject:

    Question: Decisions:

    Resources:


    Briefs:
    • [Coming Soon]
    Counsel of Record

    For Petitioner Jackson:

    Walter Dellinger
    O'Melveny & Myers, LLP
    Washington, DC
    For Respondent Birmingham Bd. of Ed.:
    Kenneth L. Thomas
    Thomas, Means & Gillis, P.C.
    Birmingham, AL


    Darin L. Muehler, et al. v. Iris Mena
    No. 03-1423

    Subject:

      Search & Seizure, Police Questioning, Authority to Detain
    Questions:
    1. Whether, in light of this Court's repeated holdings that mere police questioning does not constitute a seizure, the Ninth Circuit erred in ruling that law enforcement officers who have lawfully detained an individual pursuant to a valid search warrant engage in an additional, unconstitutional "seizure" if they ask that person questions about criminal activity without probable cause to believe that the person is or has engaged in such activity.

    2. Whether, in light of this Court's ruling in Michigan v. Summers, 452 U.S. 692 (1981), that a valid search warrant carries with it the implicit authority to detain occupants while the search is conducted, the Ninth Circuit erred in ruling that a two to three hour detention of the occupant of a suspected gang safe-house while officers searched for concealed weapons and other evidence of a gang-related drive-by shooting was unconstitutional because the occupant was initially detained at gun-point and handcuffed for the duration of the search.
    Decisions:

    Resources:


    Briefs:
    • [Coming Soon]
    Counsel of Record

    For Petitioners Muehler, et al.:

    Carter G. Phillips
    Sidley Austin Brown & Wood LLP
    Washington, DC
    For Respondent Mena:
    Paul L. Hoffman
    Schonbrun DeSimone Seplow Harris Hoffman
    Venice, CA


    Melvin T. Smith v. Commonwealth of Massachusetts
    No. 03-8661

    Subject:

      Double Jeopardy, Successive Prosecutions, Insufficient Evidence
    Questions:
    1. Should this Court grant certiorari to directly review Smith's case and decide the question that, constrained by the habeas corpus standard of review, it did not reach in the recent case of Price v. Vincent? That is, whether the double jeopardy clause's prohibition against successive prosecutions is violated where the judge unequivocally rules that the defendant is not guilty because the government's evidence is insufficient but later reverses her finding of not guilty?

    2. There is a split of opinion among the United States Courts of Appeals and among the state courts on the question of whether, in similar situations, trial judges violate the double jeopardy protection against successive prosecution by withdrawing an already granted verdict of not guilty. Should this Court grant certiorari to clarify its jurisprudence?
    Decisions:

    Resources:


    Briefs:
    • [Coming Soon]
    Counsel of Record

    For Petitioner Smith:

    David J. Nathanson
    Boston, MA
    For Respondent Massachusetts:
    Cathryn A. Neaves
    Massachusetts Attorney General's Office
    Boston, MA


    David Whitfield v. United States
    No. 03-1293

    Haywood Eudon Hall, aka Don Hall v. United States
    No. 03-1294

    Subject:

      Overt Acts, Conspiracy to Commit Money Laundering, Criminal Law
    Question:
      Is commission of an overt act an element of the crime of conspiracy to commit money laundering under 18 U.S.C. 1956(h)?
    Decisions:

    Resources:


    Briefs:
    • [Coming Soon]
    Counsel of Record

    For Petitioner Whitfield:

    David Whitfield, pro se Coleman, FL
    For Petitioner Hall:
    Thomas C. Goldstein
    Goldstein & Howe, P.C.
    Washington, DC
    For Respondent United States:
    Theodore Olson
    Solicitor General of the United States
    Washington, DC


    Reginald Shepard v. United States
    No. 03-9168

    Subject:

    Question:
      Whether under the amended Armed Career Criminal Act ("the Act"), 18 U.S.C. 924(e), a 15-year mandatory minimum sentence is required for anyone convicted as a felon in possession of a firearm who has three or more prior convictions for a "violent felony" or "serious drug offense?"
    Decisions:

    Resources:


    Briefs:
    • [Coming Soon]
    Counsel of Record

    For Petitioner Shepard:

    Linda J. Thompson
    Thompson & Thompson, P.C.
    Springfield, MA
    For Respondent United States:
    Theodore Olson
    Solicitor General of the United States
    Washington, DC


    Dennis Bates, et al. v. Dow Agrosciences LLC
    No. 03-388

    Subject:

      [Coming Soon]
    Question:
      [Coming Soon]
    Decisions:

    Resources:


    Briefs:
    • [Coming Soon]
    Counsel of Record

    For Petitioners Dennis Bates, et al.:

    Kimberly S. Keller
    The Keller Group
    San Antonio, TX
    For Respondent Dow Agrosciences LLC:
    Dean T. Barnhard
    Barnes & Thornburg
    Indianapolis, IN


    City of Sherrill, New York v. Oneida Indian Nation of New York, et al.
    No. 03-855

    Subject:

      [Coming Soon]
    Question:
      [Coming Soon]
    Decisions:

    Resources:


    Briefs:
    • [Coming Soon]
    Counsel of Record

    For Petitioner Sherrill, NY:

    Ira S. Sacks
    Gursky & Partners, LLP
    New York, NY
    For Respondents Oneida Indian Nation
         of New York, et al.:
    Michael R. Smith
    Zuckerman Spaeder, LLP
    Washington, DC


    George J. Tenet, Individually and as Director of Central Intelligence and Director of the Central Intelligence Agency, et al., v. John Doe, et ux.
    No. 03-1395

    Subject:

      [Coming Soon]
    Question:
      [Coming Soon]
    Decisions:

    Resources:


    Briefs:
    • [Coming Soon]
    Counsel of Record

    For Petitioners Tenet, et al.:

    Theodore Olson
    Solicitor General of the United States
    Washington, DC
    For Respondents Doe, et ux.:
    Steven W. Hale
    Perkins Coie
    Seattle, WA


    John D. Ashcroft, Attorney General, et al. v. Angel McClary Raich, et al.
    No. 03-1454

    Subject:

      [Coming Soon]
    Question:
      [Coming Soon]
    Decisions:

    Resources:


    Briefs:
    • [Coming Soon]
    Counsel of Record

    For Petitioners Ashcroft, et al.:

    Theodore Olson
    Solicitor General of the United States
    Washington, DC
    For Respondents Raich, et al.:
    Robert A. Long
    https://pview.findlaw.com/view/2585228_1
    Washington, DC


    Charles Russell Rhines v. Douglas Weber, Warden
    No. 03-9046

    Subject:

      [Coming Soon]
    Question:
      [Coming Soon]
    Decisions:

    Resources:


    Briefs:
    • [Coming Soon]
    Counsel of Record

    For Petitioner Rhines:

    Roberto A. Lange
    Davenport, Evans, Hurwitz & Smith, LLP
    Sioux Falls, SD
    For Respondent Weber:
    Craig M. Eichstadt
    South Dakata Attorney General's Office
    Pierre, SD


     

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