RICO Enterprise Need Not Have Any Particular Organizational Structure

The Harvard Law Review has this article on the recent 9th Circuit en banc decision in Odom v. Microsoft Corp.

Improving the Ninth Circuit

Judge Milan D. Smith, Jr. spoke at Harvard Law School and noted that “change is in the air” in the Ninth Circuit.

The Supreme Court accepted only ten cases from the Circuit for the 2007-08 term, almost half as many as in past years.
…
Smith also pointed to recent en banc decisions on the Circuit which have reversed controversial and “out of the mainstream” panel opinions, some of which may not have been re-heard in previous years.

5th Circuit to hear three cases en banc

The 5th Circuit will hear three cases en banc on May 22, 2008. At issue:

U.S. v. Gomez, whether offense of rape by duress under California Penal Code is a “crime of violence” warranting a sixteen-level sentencing enhancement.

In re Volkswagen of Am., Inc., whether the district court abused its discretion in denying Volkswagen’s motion to transfer venue from Marshall, Texas, to Dallas, Texas, pursuant to 28 USC 1404; Volkswagen claims that the only factor weighing in favor of maintaining venue in the Eastern District of Texas was that it was the plaintiff’s choice of forum, but that none of the other public or private interest factors weigh in favor of proceeding in Marshall.

Moore v. Quarterman, the panel of the U.S. Fifth Circuit held that the petitioner failed to exhaust his state court remedies, that Texas’ abuse-of-the-writ doctrine would preclude the filing for further state postconviction relief, and vacated the habeas relief and remanded.

Other coverage on Volkswagen is available here; on Moore, here.

In re Bilski to be argued en banc before the Federal Circuit

The Federal Circuit will hear In re Bilski on May 8, 2008. As one commentator as described the issue,

Here, the patent application at issue claims a “method for managing the consumption risk costs of a commodity.” In rejecting the application, the United States Patent and Trademark Office had objected to issuing a patent for the method on the ground (among others) that it was not restricted to performance by machines and/or did not contain any limitation to prevent it from covering a purely mental process by individuals.

It has proved to be a controversial topic among all interested parties.

Dissent from rehearing en banc on defendant’s jury waiver

In United States v. Boynes (4th Cir.), Judge Gregory dissented from the denial of rehearing en banc. (Michael and Motz also voted to rehear the case en banc, but neither joined Gregory’s dissent.) He argues,

In Boynes’s case, there was insufficient evidence to support a determination that Boynes knowingly, voluntarily and intelligently waived his right [to a jury] at the time the district court granted the motion. There was neither a written wavier signed by the defendant nor a colloquy in which the defendant demonstrated his understanding.

Gregory contends that the 4th Circuit is now at odds with the 10th Circuit in United
States v. Robertson, 45 F.3d 1423, 1430 (10th Cir. 1995).

The underlying opinion may be found here, in which Gregory dissented from the panel’s opinion. (For previous coverage, see The Legal Times.)

Dissent from hearning en banc on AEDPA scope

In Evans v. Thompson (1st Cir.), Judge Lipez, joined by Judge Torruella, dissented from the denial of rehearing en banc. Drawing upon concurrences and dissents in the 6th, 7th, and 9th Circuits, Lipez argues that the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “impermissibly restrict[s] the ability of the federal courts to carry out their constitutional function” in two ways.

First, when determining whether an individual is being held “in violation of the Constitution or laws . . . of the United States,’ 28 U.S.C. § 2254(a), a federal court may now only rely upon the Supreme Court’s clearly established jurisprudence to address the issue, rather than the full array of federal cases. Second, a federal court’s authority to grant habeas relief under § 2254(d)(1) is limited to those cases where a state court has “unreasonably” applied federal law.

Lipez argues that these congressional restraints on judicial reasoning and independent judgment impinge upon the judiciary’s power to “say what the law is.”

The underlying opinion may be found here.

See also How Appealing.

The En Banc Blog

This blog will cover the en banc decisions of the federal appellate courts, including votes regarding a petition for rehearing en banc, oral argument summaries, and notable circumstances surrounding the en banc decisions.