Ruling in the Scripps case

The Sun-Sentinel reports here that Judge Donald Middlebrooks dealt a setback Friday to the Scripps Research Institute, ruling that the U.S. Army Corps of Engineers did not do a sufficient environmental analysis prior to approving the Palm Beach County biotechnology project.The 62-page decision does not automatically halt the project, but attorneys for two environmental groups who brought the lawsuit said they will now ask him to stop construction and order the project moved to a less environmentally sensitive location.

Comments!

You should check out the comment sections to the last couple of posts -- There are some really interesting remarks, all made by Anonymous. Who are you?

Breaking news

It's not everyday that we get to break news here on the Southern District of Florida blog, so here goes: Pursuant to the Criminal Justice Act, Judge Moreno has appointed Hugo Rodriguez (at a rate of $90/hour) to represent Gilberto Rodriguez-Orejuela, who is accused of once being the largest cocaine distrubutor in the world.

UPDATE: When it rains, it pours. Here is more breaking news -- the government has decided to ask for rehearing on the Cuban Spy decision. Here is the press release they sent out today: "Today, United States Attorney R. Alexander Acosta and the members of the trial team in United States v. Camp, submitted to the EleventhCircuit Court of Appeals a Petition requesting that all twelve activejudges of the Eleventh Circuit Court of Appeals rehear that case. The Petition respecfully expresses a belief, based on a reasoned and studied professional judgment, that the panel decision in this case is contrary tothe decisions of the Supreme Court of the United States and of the EleventhCircuit, and that consideration by the full Court is necessary to secureand maintain uniformity of decisions in the Eleventh Circuit." The press release was emailed to every news outlet in Miami, even though the brief has not even been filed yet in the 11th Circuit.

Answer to trivia

Anonymous (who are you?!) posted the answer late last night -- The youngest federal judge was Thomas Jefferson Boynton, who was 25 when Abraham Lincoln issued him a recess appointment to the U.S. District Court for the Southern District of Florida on October 19, 1863.

Slow blogging & Trivia

Sorry about the slow blogging recently, but I'm in trial. The jury went out about 2:30 today and still has not reached a verdict... Waiting is the hardest part. In any event, there have been a bunch of interesting pieces in the DBR (about the porn wars making this District the brunt of jokes) and the Herald (about the AG's visit) the last couple of days. I just haven't had time to write about them... Sorry.

In the meantime, Richard B. Rosenthal has emailed me this trivia question, which I reproduce here. Answer to follow in the next couple of days, but use the comment section if you wanna take a guess: Who is the youngest person ever appointed to the federal judiciary, what President appointed him or her, and on what court did he or she serve?

New District Probation Officer

I'm in trial and haven't been able to post much lately, but wanted to let you know that I received the following email today from Jack Bauer (who I always thought was the lead character on 24...) explaining that Reginald D. Michael was the District's next Chief Probation Officer. Congrats to Mr. Michael and good luck to Frank Schwartz:

From: Jack Bauer
To: domarkus@hotmail.com
Sent: Monday, September 26, 2005 8:14 PM
Subject: New CUSPO
I write on behalf of Chief Judge Zloch to announce that the Court’s Judges selected Reginald D. Michael to be the District’s next Chief Probation Officer. Mr. Michael will succeed incumbent Chief Frank Schwartz when he retires later this year, and his official starting date has not yet been established. Mr. Michael earned a Bachelor of Arts Degree in Criminal Justice from Northeast Louisiana University and his experience in the federal probation and pretrial services system has spanned over 18 years. Mr. Michael comes to us from the U.S. Probation Office in the District of Nevada where he currently serves as the Deputy Chief U. S. Probation Officer. He formerly served as a U.S. Probation Officer and Supervising Officer in the Southern District of New York, as a Probation and Pretrial Services Administrator with the Administrative Office, and as Chief of Program Review for Probation and Pretrial Services at the Administrative Office. Mr. Michael possesses a solid background in probation and pretrial services and strong management, leadership and interpersonal skills. The District’s Judges believe Mr. Michael will make an excellent addition to the Probation Unit and that he will prove to be an effective leader within the District and within the federal probation community.

News and notes

1. More Jack Abramoff news at the Herald. Jay Weaver reports here on Ohio Rep. Bob Ney's connection to the case: "Federal authorities want to know whether an obscure Ohio congressman improperly influenced negotiations in the $147 million SunCruz Casinos deal five years ago as a favor to a politically connected lobbyist and his business partner, according to sources familiar with the investigation. Rep. Bob Ney, a Republican better known for touting coal shippers in his district, thrust himself into the sensitive sale in March 2000 when he publicly trashed Fort Lauderdale-based SunCruz owner Gus Boulis in Congress. Sources say investigators want to know whether Ney deliberately sought to handicap Boulis by highlighting his troubles with Florida authorities at a time when the magnate -- pressured by federal prosecutors -- was desperately trying to sell his gambling ships to Washington lobbyist Jack Abramoff and New York businessman Adam Kidan."

2. WHOOPS! In the well-publicized drug prosecution of Evintz Brillant, the government's star witness picked out Justice Department attorney Thomas Pinder when asked to identify the defendant. Assistant U.S. Attorney David Weinstein quickly recovered and asked the witness to stand up and look around the courtroom for Brillant. ''I made a mistake,'' he said. "He's sitting right there, wearing a blue shirt.''

Gilberto Rodriguez-Orejuela to get free lawyer

So reports Jay Weaver. This seems wrong to me. Appointed lawyers are meant for indigent defendants. The man has money. Lots of it. He could spend it at Publix or for a doctor or for clothes. Why not a lawyer?

Judiciary Committee votes 13-5 in favor of Roberts

Final vote: Yes - 13; No - 5

Yes: Specter (R), Hatch (R), Grassley (R), Kyl (R), DeWine (R), Sessions (R), Leahy (D), Kohl (D), Feingold (D), Graham (R), Cornyn (R), Brownback (R), and Coburn (R)

No: (All Democrats) Kennedy, Biden, Feinstein, Schumer, and Durbin.

Professor Ronald Dworkin begins a recent essay about the Committee's confirmation hearings as follows: "Almost every recorded political statement John Roberts has made throughout his life, from adolescence to his nomination as chief justice, suggests that he has strong conservative political convictions and instincts, and many people naturally fear that he will use his great power on the Supreme Court in the service of his politics. He promised that he would not, but the Senate Judiciary Committee should have been more effective than it was in testing that promise. In fact it failed dramatically in its responsibility to do so." Here is the entire essay.

Top Aristede drug cop passed DEA polygraph

As David noted earlier, the trial against Evintz Brillant, Aristede's top drug cop, begins this week. The Herald reports today that Brillant passed a DEA polygraph exam in August 2002. Apparently, the DEA asked Brillant if he ever received a gift or bribe from a drug trafficker; ever provided protection for a cocaine smuggler; or ever participated in any illegal drug activity outside the scope of his official duties. He answered no to all questions.

Now, the government does not want the jury to hear this evidence. Judge Cooke will decide by Friday.

The Herald quotes Brillant's attorney, Howard Schumacher, as saying that he only learned last week from prosecutors that his client had taken the polygraph. This case has been pending for months, why did the government only disclose this evidence on the eve of trial?

The Porn Wars

Come on! This is a joke, right? The feds aren't really placing a top priority on porn, are they? As one FBI agent put it, "I guess we've won the war on terror." Apparently so as AG Gonzales has made porn a #1 priority. I earlier posted about the interim US Attorney's porn wars here. I guess it's time to make the base happy...

Trials and Rita

Last time we underreacted. Now we may be overreacting... At least we can still blog from home...

A bunch of trials were delayed this week due to Rita. I was supposed to start trial on Wednesday; now I'll start on Thursday. In a more publicized case, The Herald reported that: "Jury selection is scheduled to begin later this week in the case against Evintz Brillant, the only one of four former senior Haitian police officials who has not pleaded guilty in the investigation of drug trafficking inside the Aristide government. . . . The trial's scheduled Monday start before U.S. District Judge Marcia Cooke was delayed a few days by the approach of Tropical Storm Rita."

Good luck with the storm today everyone.

Rita

Here is the latest update from the Chief:

Federal District Court Operations and Tropical Storm Rita

Chief United States District Judge William J. Zloch directed that United States District Court operations in all divisions be closed at 3:00 P.M. today and remain closed on Tuesday, September 20, 2005 due to wind and rain conditions anticipated to develop with the approach of Tropical Storm Rita. These closures affect the District Court’s operations in Key West, Miami, Fort Lauderdale, West Palm Beach and Fort Pierce. Federal courthouses in these locations will
be closed to the public, and jurors have been or soon will be instructed to call in for further reporting instructions. The United States Bankruptcy Court is also closed. Court staff are free to leave at 3:00 P.M. today and are instructed not to report for work on Tuesday. Federal court operations will resume at the regular time in all Divisions on Wednesday, September 21 . All staff should report for work at that time. Please check the Court’s website at www.flsd.uscourts.gov for changes to these instructions.

News and notes

1. Sam Burstyn pleaded guilty today. According to the Miami Herald, he faces five years in federal prison, he must forfeit about $200,000 and is expected to lose his law license. ''This is the right thing to do,'' Burstyn, 52, told Judge Zloch during the plea hearing. "Im really sorry . . . I'm just sorry.''

2. Judge Cooke denied a motion to move two accused terrorists out of the special housing unit of the federal detention center today because prosecutors said they could continue spreading Muslim extremism if allowed into the regular jail population. The Herald article is here.

Samuel I. Burstyn to plead guilty

Jay Weaver reports that prominent lawyer Sam Burstyn is scheduled to plead guilty today in front of Judge Zloch.

Another crash

Weird. The day after I posted about the van that crashed traveling between FDC Miami and the JLK Building next door, there was another crash involving marshals and nine inmates. This time it occurred on I95. I was actually sitting on I95 backed up for over an hour because of this accident today. Apparently it was a hit-and-run, which caused the marshal's van to flip at least three times. No one tried to escape and all were transported to the hospital. Some were seriously injured. Hopefully everyone will be okay.

Southern District Crash

Some SDFLA gossip -- As Judge Moreno is waiting to start a trial on Monday morning, the Marshals tell him that the defendant has been in a car accident and won't make it. Where did this accident occur? The Marshals were driving him from FDC Miami to the James L. King building next door! Apparently the tunnel that is typically used to transport prisoners was closed for construction and a marshal had to drive -- about 50 yards. As he was leaving FDC he hit a barricade and the defendant and two other inmates in the car were injured. From what I hear they were shackled and the marshal did not have them secured with seatbelts. The marshal was not harmed. The trial was continued.

Union officials indicted

The Sun Sentinel reports here about the indictment of various maritime union officials. The Indictment alleges that among offenses the defendants embezzled money from union benefit plans for hockey tickets, cigars and personal boat repairs.

I wonder if the timing of the indictment is related to the resumption of the National Hockey League's schedule next month.

Internationalism

During his Senate confirmation hearing, Judge Roberts has been asked about the role of international law in the Court's decision-making process. Judge Roberts has said that he does not believe that the Court should rely on foreign law. The foremost internationalist presently on the Court is Justice Kennedy. This profile of Justice Kennedy recently appeared in the New Yorker. The article focuses on Kennedy's international leanings.

Should the Supreme Court survey or take into account international law when deciding an issue as Justice Kennedy believes? Or should the Court disregard international law as Judge Roberts apparently believes?

Judge Roberts

Very quiet in the Southern District the last couple days, which lets us listen in on the Roberts' hearings. He's only been going for about an hour now, but I think he's doing a great job answering the Senators' questions. This should come as no surprise as he is regarded as one of the best Supreme Court advocates of our generation. He's well-qualified and very smart. He should be confirmed.

UPDATE -- Just came across this Dahlia Lithwick article about the hearings. For my money, this was the most entertaining article I've read.

John Roberts' hearings

Lots of stuff out there on the hearings taking place right now. For the best coverage check out SCOTUSBlog and How Appealing.

No charges for DeFede

It is now official -- the State won't charge Jim DeFede for taping Art Teele's last phone conversation. Although this doesn't prove that DeFede's actions were legal, I think it supports my position in the debate.

UPDATE -- Professor Froomkin over at his blog actually takes the position that the State's decision not to charge supports his position that DeFede commited a crime. He bases his argument on the prosecutor's statement that the "uniqueness of the tragic circumstances" led to the conclusion not to prosecute, not any "special journalistic privilege or legal exception accorded to Mr. DeFede." Anyone buying?

New Ft. Lauderdale courthouse?

The DBR reports today that Broward County has agreed to donate land for a new federal courthouse in Ft. Lauderdale. This has been the subject to a big fight recently because of Judge Zloch's memo to the Judicial Conference to close the Ft. Lauderdale courthouse to save money. According to the article, which I could not find online, "out of 35 new courthosue proposals nationally, Broward's ranks seventh on a priority list."

Still no lawyer for Orejuela

Today Gilberto Rodriguez Orejuela -- alleged founder of the Cali cartel -- rejected Judge Moreno's offer to appoint a lawyer (from the Criminal Justice Act Panel) to represent him and asked for more time to hire a lawyer. Judge Moreno gave him until September 21. I earlier posted about this here. Coverage of today's hearing here.
Disclosure -- I am the representative for the CJA panel for the Southern District of Florida.

Vacation over...

I'm back. Thanks to my guest blogger, ANON, who still wishes to remain anonymous... Hopefully s/he will continue to help me out with the blog. Two quick items before sleep.

1. Steel Hector is no more. It has been gobbled up by Squire Sanders. I originally posted about this here. Steel had lots of trouble lately, but this is a sad close to a law firm with lots of Miami history.

2. Apparently there will be a charging decision soon with Jim DeFede. I'm not sure what they are waiting for, but we'll know soon. Prof. Froomkin and I debated whether DeFede's actions were legal here and here.

DEA agent "incurs judge's wrath"

This blogging is addictive. The Herald reports today about a story that involves drugs & guns, false testimony, and hidden evidence. Why is this story so newsworthy? According to Judge Adalberto Jordan's order, it was a DEA agent who gave false testimony (in the judge's first order, later changed to "misleading") and hid evidence.

Bush nominates John Roberts for Chief Justice

President Bush has nominated John Roberts to succeed William Rehnquist as the next Chief Justice of the United States. The Herald reports the story here.

Chief Justice Rehnquist

Yesterday, the New York Times published a comprehensive obituary.

In Memory of Chief Justice William Rehnquist

I am in Asheville, NC for the long weekend and stole a minute to post this note about the Chief Justice who died last night. Many of us did not always agree with his views, but one cannot disagree with how commited he was to the Court and to the judiciary. During the last 30+ years on the Court, he has truly shaped our country and the courts. For all the coverage on Rehnquist, his possible replacements, and how the Court will function with only 7 or 8 Justices in the coming months, check out the great SCOTUSblog (or its sister Supreme Court Nomination blog). For the news on this subject, HowAppealing is the place to go. And for those that are interested in replacements -- I have said that the next Justice should be a Floridian. In our poll (below on the right), Judge Marcus is leading the pack, with Judges Jordan, Moreno, and Altonaga right behind him. Vote! I will be back in town Wednesday...

"Meth kills"

Says acting U.S. Attorney R. Alexander Acosta in today's Herald (Mr. Acosta is apparently "old school").* The article reports that the Bush administration has begun a nationwide campaign to eradicate the use of the aforementioned drug. Locally, the U.S. Attorney's office has brought two indictments as part of this effort. You can read the story here. The Herald article also cites a webpage where you can see the effects of meth upon a person's teeth. If you want to see go here. But, be forewarned, it is not a pretty picture.



*Back in the early days of the public service announcement (in the late 60's), the Do It Now Foundation convinced Jim Morrison of the Doors to tape an anti-drug ad for their "Speed Kills" radio campaign. Frank Zappa made a splash with an equally ominous spot warning listeners that "In general, this drug will make you just like your mother and father."

Bananas!

Bananas are in federal court. The Miami Herald reports: "Suspicions of banana price fixing in Europe have touched off a rash of U.S. class-action suits against the biggest names in bananas -- Chiquita, Dole and Del Monte -- alleging the corporations conspired to hike the price of the world's most popular fruit. At least eight complaints have been lodged in U.S. District Court in Miami against Chiquita Brands International, Dole Food Co., Fresh Del Monte Produce and Grupo Noboa, alleging the four companies and subsidiaries exchanged information in order to fix banana prices." The article mentions that lawsuits have been filed by numerous firms including Hanzman & Criden of Coral Gables, and Shepherd, Finkelman, Miller & Shah of Fort Lauderdale.

Law.com reports that Judge James Hill (from the 11th Circuit) is not happy with the rule in the 11th Circuit that says that if an argument is not raised in an appellant's initial brief, then it is forever waived -- EVEN IF the Supreme Court changes the law after you have filed your initial brief. I have written about this rule before and have a cert petition pending in the Supreme Court challenging the rule. Here is Judge Hill on the issue: "The Bordons should have claimed relief under Booker -- before Booker was decided! For this precedent I am sorry. Stare decisis is an important doctrine, but I trust that, from time to time, it might be tempered with fiat justitia ruat coelum." (The last four words, from Latin, mean "Let justice be done though the heavens may fall" and are the motto of the Supreme Court of Georgia.) Contrasting the 11th Circuit with other appeals courts that have allowed broader application of Booker, Hill wrote, "I should like to think that a court would want to correct an erroneous sentencing of incarceration -- if an efficient and prudential method could be devised to do so. We must feel that we cannot. Yet, the other circuits in this country seem to be doing so -- and surviving!"

BTW, I am going on vacation to North Carolina tomorrow and may be without access to the internet. If so, and if I can't get my co-blogger (anon) to turn on his computer, then it may be a little quiet until next Wednesday.