Abramoff trial date

Judge Huck is apparently ready to try the Abramoff case. For those who practice in this District, you know that Judge Huck is always ready to try cases. The parties had other ideas. According to this law.com article by Julie Kay, trial is currently set for December 12. The judge initially set it for October but after Neal Sonnett (Abramoff's attorney) and Martin Jaffe (Kidan's attorney) pressed about the amount of discovery and other issues, the judge moved it a couple of months. I never understood why these cases get rushed to trial. The government gets as long as it wants (usually years) to investigate and put its case together and the defense gets mere months to review everything the government has and prepare its own case. In any event, it will be interesting to see if it actually goes in December. Any bets?

More Abramoff news...

Jack Abramoff pleaded not guilty yesterday. It made the news here, here, and here. The Sunday Washington Post also had a long article about the case.

Back on-line... (UPDATED)

No air-conditioning. No hot water. No lights. But the worst part of all -- no internet access! Now that we're back on-line, there were two important stories this morning.

1. Jay Weaver reports that "The attorney representing Gilberto Rodriguez Orejuela -- founder of the Cali cartel, which once supplied 80 percent of all the cocaine on U.S. streets -- wants a federal judge to let him withdraw from the case because of the great risk of accepting potentially tainted legal fees from his client. Today, Jose Quiñon will ask U.S. District Judge Federico Moreno for permission to step aside as the Colombian's lawyer because he does not have ''sufficient comfort to proceed with the representation,'' according to court papers.
The judge is likely to assign Rodriguez Orejuela's costly defense to a court-appointed lawyer who would be paid by the U.S. government -- a right normally reserved for poor defendants who cannot afford their own lawyer." The government has really put Quinon and Judge Moreno in a pickle. Of course, the CJA panel is not meant to provide legal services to Gilberto Orejuela. But what is the lawyer or the judge to do? This case really demonstrates the power the government has to keep a presumed innocent defendant from having the lawyer of his choice.

UPDATE-- Judge Moreno let Jose Quinon off the case. See coverage here. Orejuela has until next Wednesday to find a lawyer. If not, a CJA lawyer will be appointed. Stay tuned...

2. Julie Kay reports that the new U.S. Attorney has placed a priority on prosecuting pornography. Not terrorism. Not violent crime. Not drugs. Not white collar crime. Not CHILD pornography. But consenting adult pornography. Can this really be true? Here's some highlights from the article: "When FBI supervisors in Miami met with new interim U.S. Attorney Alex Acosta last month, they wondered what the top enforcement priority for Acosta and Attorney General Alberto Gonzales would be. Would it be terrorism? Organized crime? Narcotics trafficking? Immigration? Or maybe public corruption? The agents were stunned to learn that a top prosecutorial priority of Acosta and the Department of Justice was none of the above. Instead, Acosta told them, it’s obscenity. Not pornography involving children, but pornographic material featuring consenting adults. Acosta’s stated goal of prosecuting distributors of adult porn has angered federal and local law enforcement officials, as well as prosecutors in his own office. They say there are far more important issues in a high-crime area like South Florida, which is an international hub at risk for terrorism, money laundering and other dangerous activities. His own prosecutors have warned Acosta that prioritizing adult porn would reduce resources for prosecuting other crimes, including porn involving children. According to high-level sources who did not want to be identified, Acosta has assigned prosecutors porn cases over their objections."

News and notes

This may be the last post pending Katrina... All federal courthouses close today at 1PM, so until they reopen, check out these two interesting stories.

1. Fascinating article in the Business Review today about how e-mail is being used as a weapon against a corporate defendant in a contract dispute. John O'Sullivan and Jason Kellogg of Akerman Senterfitt are the lawyers for Quantum Communications and have dug up the e-mails that apparently sink defendant Ronald Hale. The case is in front of Judge Martinez. The DBR explained Judge Martinez's reaction when the defendant said he couldn't recall the e-mail: "Judge Martinez, a former prosecutor, did not buy that the dates of the negotiations slipped Hale’s memory. At the Aug. 3 hearing, he likened it to his days as a prosecutor, when he asked a witness if he was on an airplane that crashed in the Colombian jungle with 4,000 pounds of narcotics on it, and the witness said he could not remember. “That’s like telling me you’re asked have any of your children ever died a violent death, and you say, ‘I don’t really remember,’ ” Martinez said from the bench. Days later, Martinez granted the preliminary injunction for Qantum."

2. Eligio Perez, a former Customs Inspector at Miami International Airport, pled guilty yesterday before United States District Court Judge Federico Moreno in federal court in Miami to a criminal indictment charging him with disclosure of confidential government information, in violation of Title 18, United States Code, Section 1905. Under the terms of the plea agreement, Perez agreed to immediately resign from his federal employment and agreed not to seek any other federal or state law enforcement employment. Perez is scheduled to be sentenced on November 2, 2005. Case was prosecuted by Daniel Fridman.

3. Finally, the JNC is accepting applications for U.S. Attorney in this District. The deadline is October 3. Should I apply?

Katrina closes federal courts tomorrow at 1PM

Chief Judge Zloch just announced that the federal courts will close at 1:00 p.m. tomorrow. Below is the text of the advisory, with a link to the court's website.

District Court Operations and Tropical Storm Katrina Chief Judge Zloch announced that all Divisions of the United States DistrictCourt for the Southern District of Florida will be open to the public at 9:00 A.M. on Thursday, August 25th. The Court’s public functions at alllocations will be suspended at 1:00 P.M. in anticipation of the onset ofwind and rain conditions associated with Tropical Storm Katrina. Thisincludes the Court’s locations in Key West, Miami, Fort Lauderdale, WestPalm Beach and Fort Pierce.No new jury trials will be started nor will jurors be called to report onThursday, August 25th. Jurors who are currently sitting on trials mustfollow the instructions of the presiding judges.Criminal duty matters in all Divisions will be conducted before Noon. Alldistrict court staff should report for work as scheduled. A determinationabout the status of continuation of non-public functions will be made bynoon Thursday. A liberal leave approval policy will be observed for staffwho are not able to report to work. Further information about the status ofthe Court’s operations for Friday, August 26th will be available on theCourt’s website: www.flsd.uscourts.gov by 1:00 P.M. Thursday.

Hoeveler assigns homework

So what to do when a law clerk hears a sitting juror bitching on the phone about her service, the other jurors, and saying that she had already made up her mind to convict the defendant? Judge Hoeveler kicked the juror off and then gave her an interesting homework assignment: he told her to read an eight-page printout of an article from the Harvard Journal of Law & Public Policy by Manhattan lawyer Gerald Walpin. Title is "America's Adversarial and Jury Systems: More Likely to Do Justice.'' Hoeveler told the juror to give him a written summary -- within 15 days. "I want you to read that thoroughly. . . . Then write me a letter telling me what you think of it and what you think of the jury system.'' Juror is Kimberly Branam-Callahan Cipolato, who was represented by Joel Kaplan. She's a legal secretary at Duarte & Ariz in Coral Gables. Hoeveler's law clerk is Mandana Dashtaki, 26 year old Harvard grad. Read the whole article by Joan Fleischman here.

New County Attorney

Today the Daily Business Review covers our new county attorney, Murray Greenberg. Everyone loves Murray:

Greenberg starts out in the county’s top legal job with a solid base of goodwill, even from lawyers who have done battle with his office over the years. “Murray is one of the finest lawyers and people I’ve ever known,” said Greenberg Traurig land-use attorney and shareholder Cliff Schulman. “Murray’s a straight shooter, and I think everyone else in that office will follow that lead.” Fort Lauderdale lawyer Bruce Rogow, who represents Citizens for Reform, a business-backed political action committee that supports Alvarez’s campaign for a strong-mayor form of government, said the county attorney’s office “has been a wonderful office with a great reputation under the kind of joint leadership of Bob and Murray.”

Congrats to Murray on this promotion.

Martinez Nelson team up

The Daily Business Review follows up on the new JNC with an article here. "The new Federal Judicial Nominating Commission formed by Republican U.S. Sen. Mel Martinez and Democratic Sen. Bill Nelson marks something of a return to the bipartisan, collaborative model employed by former Sens. Con-nie Mack and Bob Graham in the 1990s. The 56-member statewide JNC announced last week, while heavy with Republicans, includes some Democrats. Martinez, who was elected last November, oversaw the process, while Nelson, elected in 2000, picked about a quarter of the members. According to Skip Dalton, general counsel for Martinez, the two senators will also collaborate on final picks before they’re sent to the White House."
The article explains that while mostly made up of Republicans, there "are a handful of Democrats" which include: "Mark Schnapp, a former federal prosecutor and a partner at Greenberg Traurig in Miami; Michael Hanzman of Hanzman & Criden in Miami; and Steven E. Chaykin, a former federal prosecutor and a partner at Zuckerman Spaeder in Miami."

Blog update

Based on numerous e-mail recommendations, I've added links to our judges in the sidebar. And below the polls, there are a couple of links to blogs and websites that I check. More to follow.

New federal JNC

The Daily Business Review has an article today: New Federal JNC formed for Florida. "U.S. Sen. Mel Martinez, R-Fla., has announced the formation of a new statewide federal judicial nominating commission to provide the White House with recommendations for nominees to the federal courts and top law enforcement posts in Florida. According to Martinez’s office, the 56-member commission was named in cooperation with Bill Nelson, his Democrat counterpart, and other members of the Florida congressional delegation. That could signal a return to the bipartisan federal judicial nominating process that was in place throughout most of the 1990s when Republican Sen. Connie Mack and Democratic Sen. Bob Graham collaborated on federal appointments. In the last few years, the federal JNC was appointed by Gov. Jeb Bush and other leading Republican elected officials, including U.S. Rep. E. Clay Shaw Jr."

"The members from the Southern District include chair Justin Sayfie, Roberto Martinez, Barry Silverman, Tom Tew, Mark Schnapp, Luis Perez, Manny Kadre, Gonzalo R. Dorta, Robert Dunlap, Peter S. Sachs, Scott A. Srebnick, Charles Garcia, Dexter Lehtinen, Beverly A. Brame, Jillian Inmon, state Rep. Ellyn Bogdanoff, Thomas Panza, Steven E. Chaykin, Joseph Reiter, and Michael Hanzman. Their first task will be to help select a successor to former Miami U.S. Attorney Marcos D. Jimenez."

News and notes

1. More FEMA related news here. Yesterday Judge Altonaga sentenced a woman (represented by Miguel Caridad) to five years of probation for fraudulently collecting nearly $10,000 in federal disaster funds.

2. The Sun-Sentinel reports: "U.S. District Judge Donald Middlebrooks in Miami sentenced Ricardo Contreras, 33, to serve 18 months in prison and three years of supervised release, and Rogino Sánchez, 24, to 15 months in prison and two years of supervised release for illegally transporting people into the United States," almost two months after a young woman they snuck into the country hanged herself in Boynton Beach.

3. Fred Grimm writes about the Abramoff case here. He explains how the federal case is being used in "as a vise to squeeze" out some information about the deal and about the death of Gus Boulis.

News and notes

Lots going on:

1. We have an anthrax arrest.

2. We have a huge fraud case, which was written up in the New York Times. More good press for the Lewis Tein firm, which was appointed as the receiver. Guy Lewis is quoted: "These guys were slick. They would have given Barnum & Bailey a run for their money."*

3. And we have possible cooperation from Jack Abramoff in a murder investigation.

*P.T. Barnum and James Bailey (along with the Ringling Bros.) started the Greatest Show on Earth, which was also a great movie (it won movie of the year in 1952).

Update on the Polls

The Southern District of Florida blog has had two polls -- one for the next Supreme Court nominee from Florida (the President didn't listen to our push for a Floridian) and one for the biggest case in this District. There have been 237 votes for next Floridian Justice. 25% have voted for Stanley Marcus. Adalberto Jordan, 21%; Federico Moreno 15%; and Cecilia Altonaga 14%. I'll keep the poll up while we still have Supreme Court mania... The other poll hasn't received as many votes, but the current leader is Bush v. Gore with 30%, USA v. Falcon/Magulta 16%, and the case not filed Iran-Contra 15%. Perhaps two recent in-the-news cases, USA v. Abramoff and the Cuban Spy case, should have been on the list...

I'm also working on putting together links for important District websites that I will list on the blog. Please email me with any thoughts for links that should be included. I'll try to get that up on the site shortly. Thanks to those of you who have emailed me with suggestions for the blog and with tips on cases.

--David Markus

Tom DeLay, Jack Abramoff, and the Southern District

"Lobbyist Jack Abramoff, a key figure in investigations involving House Majority Leader Tom DeLay, was indicted Thursday by a federal grand jury on fraud charges arising from a 2000 deal to buy casino boats. The indictment, returned by a grand jury in Fort Lauderdale, charges that Abramoff and an associate, 36-year-old New York businessman Adam Kidan, used a fake wire transfer to defraud two lenders out of some $60 million to finance the deal for SunCruz Casinos." The House Ethics Committee is reviewing allegations that Abramoff paid some of DeLay's overseas travel expenses. Abramoff is represented by Neal Sonnett. Kidan is represented by Martin Jaffe. Read more at CNN or the Miami Herald or the Sun-Sentinel.

More Cuban Spy news and the Grinch

The Cuban spy case continues to get lots of coverage. The Sun-Sentinel explains why Miami-Cubans are angry; The Miami Herald has an op-ed defending the 11th Circuit's decision, an article about the future of the case, and an article describing how one groups is asking for their release. The Herald opinion:

At first glance, a federal appellate court's decision requiring a new trial for five Cubans accused of spying appears to be a harsh and unwarranted censure of Miami and the prevailing anti-Castro sentiment in this community. The court remanded the case for a new trial -- elsewhere -- because ''pervasive community prejudice'' precluded the probability of a fair trial in Miami for the defendants.
Principle of fairness
No community would find this a welcome message. However, a close reading of the court's 93-page decision suggests that this is not so much a slap at the community as reaffirmation of the principle that fairness is the paramount ingredient of the American system of justice. To understand this decision, it's important to point out what the court did not say, as well as what it said:

• It did not say that the jury was biased. In fact, the court cited an applicable ruling to the effect that the law does not require proof ''that local prejudice actually entered the jury box.'' Where community sentiment is strong (Who can deny that here?) and other factors such as pre-trial publicity come into play, a change of venue is necessary in the interest of fairness, the court said.

• It did not suggest that the defendants should have been acquitted on the basis of the evidence. Indeed, in reviewing the evidence matter-of-factly, the court referred to the defendants as ''agents'' and ''Wasp Network members.'' However, it noted that guilt or innocence based on evidence is not a determining factor when an appellate court reviews whether a change of venue was needed in order to ensure a fair trial.

• No single factor led the court to decide that only a change of venue could suit the interests of justice. Rather, it cited pre-trial publicity; a variety of other Cuba-related news stories around the same time, most prominently the Elián González controversy, that incited community passions; and ''improper prosecutorial references,'' including a statement that the ''jurors would be abandoning their community'' -- in the court's words -- if they did not convict.
Community passions
All of this, in the court's decision, amounted to a ''perfect storm'' of inflammatory conditions mandating a change of venue. It also noted that, in another legal action around that time, the government itself argued for a change of venue out of Miami on the theory that community passions were not ideal for rendering an impartial verdict in a case involving Cuba.
We do not endorse the notion that an impartial jury cannot be found in Miami to judge a case with Cuban connections. Neither did the appellate court. The court simply found that the interests of fairness would best have been served at the time by moving the spy trial elsewhere before the trial began. In the interest of fairness, we agree.

In other news, seven years the Grinch received. Teach him, it will. I'm not sure if that's Yoda or Seuss speak... sorry.

More on the Cuban Five

Howard Bashman does his typical wonderful job covering all the press about this case:
The Miami Herald contains this article today. The South Florida Sun-Sentinel reports today that "Court discards convictions of 5 Cubans accused of spying." The Chicago Tribune reports that "U.S. dealt setback on spies; Appellate court rules 5 Cuban agents were unfairly tried in Miami." In The New York Sun, Josh Gerstein reports that "Court Orders New Trial For 'Cuban Five.'"
And BBC News reports that "Havana hails US Cuban spy retrial; The Cuban government has welcomed a US appeal court decision to retry five Cubans convicted of spying."

Now that I've read the opinion a couple of interesting points:

1. Professor Gary Moran (from Florida International University's psychology department) did a venue survey pre-trial. He concluded that it would be impossible to receive a fair trial in Miami. The district court did not credit the survey, but the 11th Circuit quotes from it at length. I've used Gary Moran as a jury consultant and he (and his brother Bill) do great work.

2. The 11th Circuit relies not just on the publicity surrounding this case (of which there was a ton), but also relies on the Elian case, the government's admission in a civil case that there was community prejudice on this issue, witnsses during trial who baited the defense lawyers (even asking them if they were doing Fidel's bidding), and the government's comments throughout the trial (especially during rebuttal closing) mixing references to the Holocaust and Pearl Harbor and complaining to the jury that these "spies sent to destroy" this community had a legal defense "paid for by American taxpayers. "

3. A couple people have mentioned to me that this is the first reported decision of a federal criminal conviction reversed based on the denial of a motion for change of venue.

4. The venue motions were prepared by Joaquin Mendez (who, along with Richard Klugh, argued the issue on appeal) and Bill Norris, which relied on the survey by Moran.

5. Many have criticized the 11th Circuit and its opinion as being "liberal" or supporting "communism." It's an interesting criticism of a court that many would call the most conservative appellate court in the country. It's a recent and troubling trend of criticizing judges and courts when there is disagreement with a decision.

Cuban Spy case reversed!

Huge news today from the U.S. Court of Appeals for the Eleventh Circuit. The Court, in a 93 page opinion, reverses the convictions for the "Cuban Five" based on venue grounds. This case received quite a bit of press in Miami and was tried in front of Judge Lenard. The appeal has been pending for some time and many were starting to wonder what was going on. The defense lawyers were: Richard Klugh, Kathy Williams, Joaquin Mendez, Orlando do Campo, Phil Horowitz, Paul McKenna, William Norris, Leonard Weinglass, and Jack Blumenfeld. Richard Klugh argued the case to the 11th Circuit. Some have said this this is the first federal case to be reversed on venue grounds. I don't know if that is that case... Anyone? I haven't digested the entire opinion yet, but the last paragraph was interesting:

The court is aware that, for many of the same reasons discussed above, the reversal of these convictions will be unpopular and even offensive to many citizens. However, the court is equally mindful that those same citizens cherish and support the freedoms they enjoy in this country that are unavailable to residents of Cuba. One of our most sacred freedoms is the right to be tried fairly in a noncoercive atmosphere. The court is cognizant that its judgment today will be received by those citizens with grave disappointment, but is equally confident of our shared commitment to scrupulously protect our freedoms. The Cuban-American community is a bastion of the traditional values that make America great. Included in those values are the rights of the accused criminal that insure fair trial. Thus, in the final analysis, we trust that any disappointment with our judgment in this case will be tempered and balanced by the recognition that we are a nation of laws in which every defendant, no matter how unpopular, must be
treated fairly. Our Constitution requires no less.

Please use the comments to express your thoughts on the case. Read coverage here, here and here.

ABA awards Albert Krieger

On August 5, 2005, at the 85th annual meeting of the ABA Criminal Justice Section, Albert Krieger received the Charles R. English Award. The citation read: "Miami defense attorney Albert Krieger isrecognized for providing exceptional service to the Criminal Justice Section while exercising exemplary ethical and professional conduct. In his practice and in his bar-related activities, he has increased the stature and professionalism of lawyers practicing in the criminal justice system, and has enhanced the relationship between prosecutors and the defense bar by promoting fairness and justice over parochial defense and prosecution views." The award was presented by Neal Sonnett, a previous recipient of the award.

Metrorail riders face searches

Larry Lebowitz has this article in the Miami Herald telling us that Metrorail riders will now be subject to searches. Put aside the constitutional issues for a sec -- what a waste of resources! If a terrorist chooses Miami as a target, it seems that the rail would be low on the list of possible strikes... In any event, Milton Hirsch and I debated the profiling issue in the Champion a couple years ago. Milt takes the position that profiling is constitutional while I say that it isn't.

Judge Moreno moving on up?

Chief Justice Rehnquist spent some time in the hospital this week and the rumors are starting to fly once more about his replacement. Judge Moreno is mentioned in this USA Today article.

Miami-Dade school employees arrested for oxycontin

For those wondering who Alex Acosta is, he's our new U.S. Attorney, and he's started with a bang: 29 people -- mostly Miami-Dade school employees -- were arrested today in an oxycontin ring: "Of those charged in an 84-count federal grand jury indictment unsealed Thursday, five are Miami-Dade school bus drivers, 13 are school bus attendants and one is a former school bus driver now driving a city bus. Two school custodians, a cook and a cashier were also charged, along with a Miami doctor and five other people." Read more in this Sun-Sentinel article. The article says more arrests are coming and Acosta stated, "We felt it prudent and necessary to take action with the information we already had.'' Although no teachers have been arrested, this will be an interesting story to follow and I'm sure the teacher blogs (like South Florida Educators) will be discussing it...

No more Steel Hector?

Steel Hector & Davis has always been known as a huge Southern District powerhouse. But it looks like it won't be around for long. According to today's Business Review, Steel "is close to finalizing a deal to merge with Cleveland-based Squire Sanders & Dempsey." According to the article, Steel is going to be "gobbled up" because it has "suffered financial setbacks recently and has been plagued by partner defections amid much speculation about its ability to stay afloat."

Crystalizing the DeFede debate and a SDFLA mention

Jessica M. Walker of the Miami Daily Business Review wrote a nice piece (you need a password to access) this morning exploring the legality of the DeFede/Teele tapes. And I'm not just saying that because she mentioned this blog and my debate with Prof. Froomkin:

The 1981 act has now become scrutinized in the media, on the Internet and among attorneys in the wake of Teele’s suicide and DeFede’s almost instantaneous firing. Froomkin and Miami criminal defense attorney David Oscar Markus have been debating the legal points of the issue on their Web logs, with Markus arguing that the taping was legal. Froomkin insists that it wasn’t. . . .

Markus ag[ued] that DeFede lacked any criminal intent. “There is a well carved out exception in the law that if you do something out of necessity, you are not criminally liable for doing so,” Markus said. He cited the example of a driver exceeding the speed limit so he could quickly deliver a heart attack victim to the hospital. “If DeFede was taping for some better good, then I think he was doing the right thing and there was no criminal intent,” Markus said.

Very cool that the blog was cited! The rest of the article is excellent, citing Dan Gelber (DeFede's lawyer), Bruce Rogow, Michael Froomkin, and Thomas Julin.

Who is Alex Acosta?

So wonders the Daily Business Review this morning in a piece (you need a password to access) about the new acting U.S. Attorney in the Southern District, R. Alexander Acosta:

"Who is Alex Acosta? That’s the question South Florida attorneys are asking about the new acting U.S. attorney for the Southern District of Florida.

“No one knows anything about him,” said Brian Tannebaum, president of the Miami chapter of the Florida Association of Criminal Defense Attorneys.

“I haven’t met him yet.” Kathleen Williams, the top federal public defender in South Florida, said, “I have never met the U.S. attorney. He has not practiced in the area, so none of us knows him.” . . .

But what South Florida attorneys do know is causing them some concern — namely that Acosta has never tried a case and has little experience in criminal law. “The word on the street is that he has no criminal law experience,” Tannebaum said. “I would like a U.S. attorney who has experience in criminal justice … who has some working knowledge of criminal justice."

If you know anything about him, please use the notes to fill us in (you can even be anonymous if you'd like).