Supreme Court Docket



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November 2004

[Download November 1-10, 2004 Argument Calendar PDF]
[Download November 29-30, 2004 Argument Calendar PDF]
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Monday, November 1

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
Counsel of Record

For Petitioner Commissioner of Internal Revenue:
Paul D. Clement
Acting U.S. Solicitor General
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

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:

    Parties
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

Tuesday, November 2

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:

    Parties
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

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

Wednesday, November 3

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:

    Parties
Counsel of Record

For Petitioner Small:
Paul D. Boas
Pittsburgh, PA
For Respondent United States:
Paul D. Clement
Acting U.S. Solicitor General
Washington, DC

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
For Respondent City of Jackson, Miss., et al.:
Glen D. Nager
Jones Day
Washington, DC

Monday, November 8

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:

    Parties
Counsel of Record

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

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:

    Parties
Counsel of Record

For Petitioner Shepard:
Linda J. Thompson
Thompson & Thompson, P.C.
Springfield, MA
For Respondent United States:
Paul D. Clement
Acting U.S. Solicitor General
Washington, DC

Tuesday, November 9

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
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:
Paul D. Clement
Acting U.S. Solicitor General
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:
Paul D. Clement
Acting U.S. Solicitor General
Washington, DC

Wednesday, November 10

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:

    Parties
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

Jill L. Brown, Acting Warden v. William Charles 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:

    Parties
Counsel of Record

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

Monday, November 29

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

Subject:

Question:
    Whether the Controlled Substances Act, 21 U.S.C. 801, et seq., exceeds Congress's power under the Commerce Clause as applied to the intrastate cultivation and possession of marijuana for purported personal "medicinal" use or to the distribution of marijuana without charge for such use.
Decisions:

Resources:

Briefs:

    Parties
    Amicus - Supporting Petitioners     Amicus - Supporting Respondents     Amicus - Supporting Neither Party
Counsel of Record

For Petitioners Ashcroft, et al.:
Paul D. Clement
Acting U.S. Solicitor General
Washington, DC
For Respondents Raich, et al.:
Robert A. Long
Covington & Burling
Washington, DC

Marlon Latodd Howell, aka Marlon Cox v. State of Mississippi
No. 03-9560

Subject:

    Death Penalty, Exhaustion of State Remedies
Question:
    Was petitioner's federal constitutional claim properly raised before the Mississippi Supreme Court for purposes of 28 U.S.C. § 1257?
Decisions:

Resources:

Briefs:

    Parties
Counsel of Record

For Petitioner Howell:
Andre de Gruy
Jackson, MS
For Respondent State of Mississippi:
Judy Martin
Mississippi Attorney General's Office
Jackson, MS

Tuesday, November 30

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:

    Parties
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:
Paul D. Clement
Acting U.S. Solicitor General
Washington, DC

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

Subject:

Question: Decisions:

Resources:

Briefs:

    Parties
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

 

 

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