Order List

October 14, 2009 Supreme Court Update

Greetings, Court fans!
The Court added four more cases to its 2009 docket today, including Skilling v. United States (08-1394), where the Court will review the conviction of former Enron CEO Jeffrey Skilling. That case presents two issues for review: "1. Whether, to convict petitioner of conspiring to commit wire fraud by depriving his employer and its shareholders of the right to petitioner's honest services (18 U.S.C. §§ 1343 and 1346), the government was required to prove that petitioner intended to obtain some private gain, and, if not, whether 18 U.S.C. § 1346 is unconstitutionally vague. 2. Whether the court of appeals correctly held that petitioner was tried by an impartial jury despite any prejudicial pretrial publicity about the case." (Given that the parties agreed to excuse 119 jurors based on their responses to juror questionnaires alone, this second issue should be pretty interesting.)
In United States v. Marcus (08-1341), the Court will determine: "Whether the [Second Circuit] court of appeals departed from this Court's interpretation of Rule 52(b) of the Federal Rules of Criminal Procedure by adopting as the appropriate standard for plain-error review of an asserted ex post facto violation whether ‘there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct.'"
Justice Sotomayor recused herself since she sat on the Second Circuit panel that decided the case. In fact, she authored a concurring opinion suggesting that while the majority's result was compelled by existing Circuit precedent, she did not believe that precedent was entirely faithful to Supreme Court authority in the area of plain error review for ex post facto violations. This analysis may well have provided the momentum for the cert grant, even without her vote.
Health Care Service Corp. v. Pollitt (09-38), presents two federal jurisdiction issues: (1) "Whether the Federal Employees Health Benefits Act ("FEHBA"), 5 U.S.C. §§ 8901-14, completely preempts – and therefore makes removable to federal court – a state court suit challenging enrollment and health benefits determinations that are subject to the exclusive federal remedial scheme established in FEHBA." (2) "Whether the federal officer removal statute, 28 U.S.C. § 1442(a)(1), which authorizes federal removal jurisdiction over state court suits brought against persons ‘acting under' a federal officer when sued for actions ‘under color of [federal] . . . office,' encompasses a suit against a government contractor administering a FEHBA plan, where the contractor is sued for actions taken pursuant to the government contract."
The Court's final cert grant came in a death penalty case, Holland v. Florida (09-5327), where the Court will decide whether the "gross negligence" of state-appointed counsel can ever be a basis (absent bad faith, dishonesty, divided loyalty or mental impairment) for equitably tolling the limitations period for filing a habeas corpus petition, where, for example, the counsel failed to file the petition on time despite repeated admonitions from his client to do so.
That's all for now and likely for the week. Thanks, as always, for reading!
From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400