Leave to File Petition for Rehearing Denied March 19, 1990.
See 494 U.S. 1050.
Petition for writ of certiorari to the United States Court of
Appeals for the Third Circuit.
Denied.
Justice WHITE, dissenting.
A question presented in this case is whether liability under the
Racketeer Influenced and Corrupt Organizations Act (RICO), 18
U.S.C., 1961 et seq. (1982 ed. and Supp. V), may be imposed where
neither the " enterprise" nor the "pattern of racketeering
activity" had any profit- making element. The Second and Eighth
Circuits have held that it may not. United States v. Ivic,
700 F.2d
51, 58-65 (CA2 1983) (enterprise or predicate acts must have
financial purpose); United States v. Flynn,
852
F.2d 1045, 1052 (CA8) (enterprise must be directed toward
economic goal), cert. denied, 488 U.S. 974 (1988). The Third
Circuit in this case upheld RICO liability despite the absence of
any economic motivation on the part of the defendants. I would
grant certiorari to resolve the conflict.
On the order list of October 2, 1989, the Court also denied
certiorari in the following cases.
Norton v. United States, No. 88-1889, cert. denied, 493 U.S.
871: The Eleventh Circuit held that law enforcement officers
reasonably relied on warrants calling for the search and seizure of
" 'all corporate records . . . which are evidence and
instrumentalities of the offense set forth in Section 1954 of Title
18 of the United States Code,' " and that the evidence seized
pursuant to that warrant was admissible under the good faith
exception to the exclusionary rule articulated in United States v.
Leon, 468 U.S.
Page 493 U.S.
901 , 902
897 (1984).
867 F.2d
1354, 1360 (1989). The decision of the Eleventh Circuit
conflicts with the Tenth Circuit's decision that a warrant ordering
the seizure of all records "relating to the purchase, sale and
illegal exportation of materials in violation of the Arms Export
Control Act, 22 U.S.C. 2778, and the Export Administration Act of
1979, 50 U.S.C.App. 2410," was so facially overbroad that law
enforcement officers could not reasonably rely on it, United States
v. Leary,
846 F.2d
592, 594 (1988), and a similar decision of the Ninth Circuit
suppressing evidence seized under a warrant seeking " documents,
books, ledgers, records and objects which are evidence of
violations of federal criminal law," Center Art Galleries-Hawaii,
Inc. v. United States,
875 F.2d
747, 749 (1989). The conflict should be resolved.
Bergen v. F/V St. Patrick, No. 88-1960, and Kidd v. F/V St.
Patrick, No. 88-1762, cert. denied, 493 U.S. 871: The Ninth Circuit
held that where a Death on the High Seas Act claim, 41 Stat. 537,
46 U.S.C.App. 761 et seq. (1982 ed., Supp. V), is joined with a
Jones Act claim, 41 Stat. 1007, 46 U.S.C.App. 688 (1982 ed., Supp.
V), neither statutory scheme may be supplemented by an award of
punitive damages under general maritime law.
816
F.2d 1345 (1987), modified,
866 F.2d
318 (1989). This holding is contrary to the Fifth Circuit's
decision in In re Merry Shipping, Inc.,
650 F.2d
622, 625-626 (1981), that punitive damages are available under
general maritime law even when such a claim is joined with a Jones
Act claim. The conflict should be resolved.
Tiller v. Fludd, No. 88-2088, cert. denied, 493 U.S. 872: The
Eleventh Circuit held that Batson v. Kentucky,
476 U.S. 79 (1986),
prohibits the use of race-based peremptory challenges by an
attorney in a civil action. The Eleventh Circuit concluded that the
trial court's participation in the exercise of the peremptory
strikes provided the state action necessary to be a violation of
the Equal Protection Clause.
863 F.2d
822 (1989). The Eighth Circuit has expressed " 'strong doubts'
" whether Batson applies to civil actions, see Swapshire v. Baer,
865 F.2d
948, 953 (1989); Wilson v. Cross,
845 F.2d
163, 164 (1988), and this important issue should be
resolved.
Caraballo-Sandoval v. United States, No. 88-7438, cert. denied,
and Caraballo-Lujan v. United States, No. 88-7480, cert. denied,
493 U.S. 876:
Pursuant to 98 Stat. 2044, 21 U.S.C. 853(a) (1982 ed., Supp. V),
defendants convicted of serious federal narcotics offenses must
forfeit to the United States any assets derived from,
Page 493 U.S.
901 , 903
or used in, the commission of those crimes.
866 F.2d
1343 (CA11 1989). The question here is whether, in this
context, due process requires courts to provide a pretrial hearing
to determine if some likelihood exists that the assets at issue
will ultimately be subject to forfeiture. The Eleventh Circuit's
resolution of this issue in this case conflicts with the Ninth
Circuit's conclusion in United States v. Crozier,
777 F.2d
1376, 1383-1384 (1985). The conflict should be resolved.
Automobile Importers of America, Inc. v. Minnesota, No. 89-72,
cert. denied, 493 U.S. 872: The Eighth Circuit held that the
federal Magnuson-Moss Warranty-Federal Trade Commission Improvement
Act, 88 Stat. 2183, 15 U.S.C. 2301 et seq., does not pre- empt
state efforts to regulate private dispute resolution mechanisms
established by manufacturers to settle warranty disputes with
consumers.
871 F.2d
717 (1989). The Eighth Circuit's decision comports with that of
the Fifth Circuit in Chrysler Corp. v. Texas Motor Vehicle Comm'n,
755 F.2d
1192 (1985), but conflicts with the Fourth Circuit's decision
in Wolf v. Ford Motor Co.,
829 F.2d
1277 (1987). The conflict should be resolved.
Rayner v. Smirl, No. 89-82, cert. denied,
493 U.S. 876: The Fourth
Circuit held that the whistle-blower provision of the Federal
Railroad Safety Act of 1970, 84 Stat. 971, as amended, 45 U.S.C.
441(a) (1982 ed. and Supp. V), pre-empts a state-law action for
wrongful discharge of a supervisory railroad employee who reports
his employer's railroad safety violations.
873
F.2d 60 (1989). In Wheeler v. Caterpillar Tractor Co.,
108 Ill. 2d
502, 92 Ill.Dec. 561,
485 N.E.2d
372 (1985), cert. denied, 475 U.S. 1122, 90 L. Ed. 2d 187
(1986), the Illinois Supreme Court reached a contrary result under
a nearly identical statute, holding that the whistle-blower
provision of the Energy Reorganization Act of 1974, 92 Stat. 2951,
as added, 42 U.S.C. 5851 (1982 ed.), did not pre-empt a state-law
action for wrongful discharge of an employee who reported nuclear
safety violations. The issue should be addressed.
Witters v. Washington Dept. of Services for Blind, No. 89-94,
cert. denied, 493 U.S. 850: Petitioner was disqualified from
receiving vocational aid under a state program that is primarily
federally funded because he wants to study to become a minister.
After the denial of aid to petitioner was upheld by the Washington
Supreme Court,
102 Wash.
2d 624,
689 P.2d
53 (1984), this Court granted certiorari. We reversed,
474 U.S. 481 (1986),
concluding that the Establishment Clause presented no
constitutional bar-
Page 493 U.S.
901 , 904
rier to the vocational aid scheme, and remanded for further
factual development and consideration of the program's legitimacy
under the stricter dictates of the Washington Constitution's
Establishment Clause. On remand, the Washington Supreme Court again
upheld the denial of aid, this time on state constitutional
grounds.
112 Wash. 2d
363,
771 P.2d
1119 ( 1989). Petitioner now presses a free exercise claim
under our Sherbert v. Verner,
374 U.S. 398 (1963), line
of cases. This case presents important federal questions regarding
the free exercise rights of citizens who participate in state aid
programs that permit recipients a private choice in using funds
received and regarding the extent to which state involvement with
religion that does not violate the Establishment Clause is required
by the Free Exercise Clause. The fact that 80 percent of the
program's funding is federal also may raise significant Supremacy
Clause issues. These important federal questions deserve
attention.
Urquhart & Hassell v. Chapman & Cole, No. 89-107, cert.
denied, 493 U.S. 872: Petitioner asked us to consider the Fifth
Circuit's decision that an abuse-of-discretion standard applies in
a case under Federal Rule of Civil Procedure 11 when courts of
appeals review district court determinations on questions of law
and fact.
865 F.2d
676 (1989). Other Circuits have applied a de novo standard to
questions of law in this context. See, e.g., Zaldivar v. Los
Angeles,
780 F.2d
823, 829 (CA9 1986). We should resolve this conflict.
Enco Manufacturing Co. v. Clamp Manufacturing Co., No. 89-199,
cert. denied, 493 U.S. 872: A question presented in this case is
whether a district court's finding of a likelihood of confusion in
a trademark infringement matter under 43(a) of the Lanham
Trade-Mark Act, 60 Stat. 449, as amended, 15 U.S.C. 1125(a ), is
reviewable under the "clearly erroneous" standard, as a finding of
fact, or de novo, as a conclusion of law.
870
F.2d 512 (CA9 1989). I have noted before that federal courts
disagree over this question. See Euroquilt, Inc. v. Scandia Down
Corp., 475 U.S. 1147, 90 L. Ed. 2d 346 (1986) (WHITE, J.,
dissenting from denial of certiorari); Elby's Big Boy of
Steubenville, Inc. v. Frisch's Restaurants, Inc., 459 U.S. 916
(1982) (same). We should resolve the conflict.
MEBA Pension Trust v. Rodriguez, No. 89-206, cert. denied, 493
U.S. 872: The Fourth Circuit held that the Employee Retirement
Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29
U.S.C. 1001 et seq. (1982 ed. and Supp. V), ap-
Page 493 U.S.
901 , 905
plies to a denial of benefits, when the denial is based on an
action by the plan prior to ERISA's effective date.
872 F.2d
69 (1989). Other Courts of Appeals have held to the contrary.
See, e.g., Menhorn v. Firestone Tire & Rubber Co.,
738 F.2d
1496, 1501 (CA9 1984). This conflict should be resolved.
Boyd v. Alabama, No. 89-5053, cert. denied, 493 U.S. 883: The
Alabama Supreme Court held that a warrantless search of an
automobile in police custody need only be supported by probable
cause. A showing of exigent circumstances is not required.
542 So.
2d 1276 (1986). Although this Court's decisions in cases such
as United States v. Johns,
469 U.S.
478, 484, 885 (1985); California v. Carney,
471 U.S. 386d 406 (1985);
and Michigan v. Thomas,
458 U.S. 259, 261-262,
3080-3081 (1982) (per curiam), appear tohave foreclosed a contrary
position, some courts have continued to require a showing of
exigent circumstances before validating a warrantless automobile
search, see, e.g., United States v. Alexander,
835 F.2d
1406, 1410 (CA11 1988); United States v. Hepperle,
810 F.2d
836, 840 (CA8 1987 ). We should address this issue.
Farrell v. Illinois, No. 89-5233, cert. denied, 493 U.S. 872,
110 S. Ct. 202: The Illinois Appellate Court held that petitioner's
affirmative response to a judge's question during his initial
appearance regarding whether petitioner was going to hire an
attorney was not enough to invoke petitioner's Sixth Amendment
right to counsel under Michigan v. Jackson,
475 U.S. 625 (1986), and
so did not bar further police-initiated interrogation. 181
Ill.App.3d 446, 129 Ill.Dec. 636, 536 N.E.2d 476 (1989). The
Illinois Supreme Court denied discretionary review. 126 Ill. 2d
562, 133 Ill.Dec. 672, 541 N.E.2d 1110 (1989). This holding is
directly contrary to the holdings of Fleming v. Kemp,
837 F.2d
940, 947 (CA11 1988) (per curiam ), and Wilson v. Murray,
806 F.2d
1232, 1235 (CA4 1986), cert. denied, 484 U.S. 870 (1987). The
conflict deserves our attention.
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