493 U.S. 901 (1989)

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U.S. Supreme Court


493 U.S. 901

Michael McMONAGLE, et al., petitioners,

Supreme Court of the United States

October 10, 1989

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.


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, [493 U.S. 901 , 903]

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