Abramoff to plead? (and cooperate?)

That's the word on the street. Judge Paul Huck gave Abramoff (and his lawyer, Neal Sonnett) until Tuesday to decide whether it's going to be a plea or a trial. I bet lots of Congressmen are hoping he goes to trial...

Happy new year!

Happy and healthy New Year to all.

For your weekend reading, here is some info about the funniest Justice. And to the left is the graphic from the article. I'll never forget when a Miami lawyer continued to confuse Justice Souter and Justice Breyer. Justice Scalia started his questioning of the lawyer by saying, "I'm Scalia." Now that's funny.

Amicus fight

Professor Ricardo Bascuas, on behalf of NACDL, FACDL-Miami, and NAFD, authored an amicus brief in the Cuban Spy case, in support of the panel's determination that venue was improper. Typically these briefs are filed with the consent of both parties. In this case, however, the government has opposed the filing of the brief, making some unbelievable claims. For one, it claims that it's not fair because it doesn't have enough space to respond to the arguments raised by amici -- it even takes a shot at the panel saying that the panel used more words than were given to the government in its brief. In the same breath, it also says that the arguments raised by amici are not relevant. Finally, it asserts that the brief is "partisan." I have never seen the government take such an odd position. Amicus briefs are filed by organizations that have a unique perspective on the subject being debated in court. Of course they have a position. And if the arguments raised aren't relevant, why does the government have to waste any of its space addressing them? In the interest of disclosure, I am NACDL's vice chair of the amicus committee for the 11th circuit and I signed the brief on behalf of NACDL.

Padilla moves

Lots of moves in the Padilla case. The Bushies asked the Supreme Court to order the transfer of Padilla to FDC-Miami to face the indictment filed last month. Lyle Deniston has a lot of great things to say on the subject. Here's his intro:

The Bush Administration, protesting that the Fourth Circuit Court has engaged in an "unprecedented and unfounded assertion of judicial authority," on Wednesday asked the Supreme Court to order the prompt transfer of terrorism suspect Jose Padilla out of military custody and into a regular federal prison. The new filing, escalating the inter-branch constitutional conflict that has now arisen over Padilla, complained that the lower court had made "an unwarranted attack on the exercise of Executive discretion," raising "profound separation-of-powers concerns" if not remedied swiftly. "The Fourth Circuit's order defies both law and logic," the new filing contended. Without waiting to see how the Justices would react to the rapid change of circumstances recently in Padilla's case, Solicitor General Paul D. Clement filed an application to shift Padilla to the Federal Detention Facility in Miami, so that he can face new criminal charges claiming he aided terrorism abroad. The Fourth Circuit last week refused to allow that transfer, saying the government may be trying to undercut Padilla's pending appeal to the Supreme Court. But the Circuit Court also said it would be up to the Supreme Court to decide Padilla's placement, and thus Clement turned to the Justices seeking what the lower court had denied.

Before this latest move, the Herald's Jay Weaver had this coverage of all the latest wrangling. And TalkLeft opines that Padilla's lawyers slap Bush Administration. The Daily Business Review (Julie Kay) had a piece about Padilla's and Hassoun's co-defendant, Kifah Jayyousi, but there is no public link available to review the article. Finally Brian Tannebaum has this to say about criminal defense lawyers in these sorts of cases.

The Southern District of Florida finds itself in the middle of this historic fight between the branches of government.

Justice Cantero still a possibility?

A reader sent this email:

"Possible grist for your blog, but PLEASE KEEP MY IDENTITY ANONYMOUS IF YOU CHOOSE TO USE THIS IN ANY WAY....A few months back, I heard it from a well-placed source that the current Administration is looking for a way to get Raoul Cantero on the 11th Circuit. They are practically counting the days until Judge Barkett is eligible to take senior status, figuring that will give them a "Florida seat" to fill with Cantero. I've also heard that Cantero (like many Florida Supreme Court Justices) would prefer not to live in Tallahassee forever, so he'd be game. Now another possibility may have arisen -- this week Congress returned the nomination of Brett Kavanaugh to the DC Circuit (he's a darling of the Federalist Society right wingers), signaling that his re-nomination (if it occurs in 2006) would be a complete war. One piece of scuttlebut is that that Cantero could be considered for that open seat on the DC Circuit. If so, and if he makes it to the DC Circuit, his age & ethnicity would automatically jump him into the very top tier of any Supreme Court shortlist for the next vacancy. We might just get a Floridian in the Big House yet...."

A couple thoughts -- 1) I hope Judge Barkett doesn't take senior status any time soon. 2) I don't think Judge Cantero would be as conservative as the right hopes. I think the former Judge Davis' clerk would call it right down the middle. 3) Hope everyone had a nice holiday weekend.

Happy Festivus

... for the rest of us.

Padilla staying put

Unbelievable. Judge Luttig, one of the judges on Bush's short list for the U.S. Supreme Court, just gave the back of his hand to Bush's legal strategy on the war on terror, ruling that Padilla will not be transferred to the Southern District of Florida and that the Fourth Circuit opinion will remain intact -- teeing the case up for Supreme Court review.
Lyle Denniston, over at ScotusBlog, has great coverage of this remarkable decision. Here's his intro:

In a deeply serious setback for the Bush Administration's legal strategy for the war on terrorism, the Fourth Circuit Court on Wednesday afternoon kept intact its ruling in the now-celebrated Jose Padilla case, suggesting that the Administration may be trying to manipulate the judiciary by attempting to prevent Supreme Court review. The Circuit panel also raised questions about the government's credibility in claiming a dire need to designate Padilla as an "enemy combatant" and thus to confine him -- for more than three years now -- in a military jail, and about its overall credibility in presenting war on terrorism cases to the courts. The language used in the opinion --
reflecting a studied attempt to be temperate, yet coming out as tellingly sharp-edged -- could only be interpreted as the sternest of judicial rebukes on issues of fundamental importance to President Bush's war against global terrorism. The ruling was doubly effective because it was written by Circuit Judge J. Michael Luttig, who has been considered by President Bush as a potential nominee to the Supreme Court and who is one of the most conservative federal appellate judges in the nation.
The Circuit Court denied the government permission to transfer Padilla out of military custody -- a transfer that had a strong probability of keeping the case out of the reach of the Supreme Court. Padilla's appeal to the Justices is pending (Padilla v. Hanft, docket 05-533), and is likely to be acted upon by the Court in January. At this stage, the first issue for the Justices will be whether to grant or deny review
of the Fourth Circuit's Sept. 9 ruling. Judge Luttig, writing for a three-judge Fourth Circuit panel, said "we believe that the transfer of Padilla and the withdrawal of our opinion at the government's request while the Supreme Court is reviewing this court's decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court." In addition, Luttig said: "We believe that this case presents an issue of such especial national importance as to warrant final consideration by that Court, even if only by denial of further review." Thus, he said, "we deny both the motion [to transfer] and suggestion [to vacate the Sept. 9 decision]."

Show me the money

Well, one of my readers and I got into it a little bit in the comment section.

I wonder how [s]he would feel about this comment in the Daily Business Review today about prosecutors leaving the U.S. Attorney's office: "Said Miami criminal defense attorney David O. Markus: “It’s a good attempt to solve the problem. But ultimately, what we need to do is pay these people more money, as we [also need to] do [for] judges and public defenders.”

The article has lots of good gossip about AUSAs -- some, like Harry Shimkat, have agreed to stay an extra two years in economic crimes. Here's the quote about those who have left:

While the U.S. attorney’s office in the Southern District of Florida has experienced turnover in the past, some liken the departures over the last six months as an exodus. Twenty-two assistant U.S. attorney positions are now vacant in an office with 233 total positions, or almost 10 percent of the office. Among those who have left in the last six months: Lilly Ann Sanchez, former deputy chief of the major crimes division, who became a partner with Fowler White Burnett in Miami; Carlos Castillo, former public information officer, who took a job with Seidman Prewitt Dibello & Lopez in Coral Gables; and Jonathan Loo, who moved to the U.S. attorney’s office in Hawaii. Other departures include Jonathan Lopez, who worked in major crimes and took a job with the Department of Justice in Washington; Eddie Sanchez and Willie Ferrer, who both just left for the county attorney’s office in Miami, and Maria Beguiristain, who last month became an associate at White & Case in Miami. . . . Seth Miles said he left to become an associate at Podhurst Orseck in Miami because “for me it was family reasons and it was just time to go. I knew I didn’t want to be a 40-year career prosecutor.”

Finally, one unidentified prosecutor said: “There’s a lack of vision in the office. There’s no excitement, no clear direction on what we should be focusing on. There’s a leadership vacuum.” Yikes.

Also, following up on my post about Michael Caruso being named Chief Assistant Federal Defender for this District, Julie Kay has this to say:

After losing two chief assistants in one year, Federal Public Defender Kathleen Williams said, tongue in cheek, that she’s required her new second-in-command to sign a “noncompete clause.” Williams, the guest speaker at the Miami chapter of the Federal Bar Association’s monthly luncheon, announced that she named Michael Caruso, 39, an eight-year veteran of the office, as her new chief assistant. Caruso will assist Williams in running one of the largest public defender offices in the country and overseeing 45 assistant public defenders. Caruso replaces former chief assistant Martin Bidwill, who was appointed to a Broward Circuit Court judgeship by Gov. Jeb Bush in October. Bidwill was chief assistant for less than a year, taking the place of Reuben C. Cahn, who left in April to head the San Diego federal public defender’s office. “I’d like to address the rumor that I’ve had trouble keeping chief assistants,” Williams quipped, adding that her new top lieutenant “promised he will not go to the bench, he will not leave the office.” Caruso, who serves on the federal court practice committee, said he’s “extremely honored that Kathy chose me to assist her in leading the office” and will stay in the job “as long as she needs me.” Caruso serves on the federal court practice committee of The Florida Bar and the Southern District of Florida’s local rules committee.

Kidan plea

This one was pretty obvious, but here's the news anyway -- Adam Kidan pleaded guilty to fraud and is likely to be a cooperating witness in a number of different cases, including against Jack Abramoff. Kidan's lawyer is Joseph Conway. Prosecutors are Lawrence LaVecchio and Paul Schwartz. Judge Huck is presiding over the case, which is still set for trial (for Abramoff -- represented by Neal Sonnett) in January. Coverage here and here.

Charges for Air Marshals?

So the Department of Justice has hired two Zuckerman Spaeder lawyers -- Mike Pasano and Paul Calli -- to represent the two air marshals who shot and killed the mentally ill man who said he had a bomb at the Miami airport. Pasano quips in the DBR article that “I guess they have a list of good lawyers somewhere that they call in such cases.” Some lawyers, he noted, won’t take these cases because the government pays “extremely low” fees. Calli said “I’m confident it will be determined [the air marshals] acted reasonably and appropriately under the circumstances.” Brian Tannebaum was quoted in the article saying that no charges would be filed. I completely agree. No chance, no way will charges be filed against these guys. Thoughts?

Boobie boys opinion

The 11th Circuit yesterday decided the "Boobie Boys" case, affirming most of the convictions. The court did reverse two of the convictions for "Jonathon "Moose" Hawthorne and Ben "Bush" Johnson. Judge Barkett wrote the 137 page opinion. The court repeatedly said that the district court erred in admitting all sorts of hearsay and opinion testimony, but for most of the appellants, the court found the error harmless.

Professor Berman has this interesting comment about the case, which also contains a link to the case:

In his opinion for the majority in Blakely, Justice Scalia expresses concern about defendants possible being punished for an uncharged murder and possibly being punished based on weak hearsay testimony proven to a judge only by a preponderance of the evidence. If these issues truly concern Justice Scalia (and other members of the Blakely majority), the Supreme Court ought be interested in a cert. petition coming from today's decision by the Eleventh Circuit in US v. Baker, No. 00-13083 (11th Cir. Dec. 13, 2005) (available here). (Tech warning: the PDF of this opinion is causing Adobe to crash for me sometimes.) Starting at page 124 of an 137-page opinion(!!), the 11th Circuit in Baker affirms long sentences for a number of co-defendants in a large drug conspiracy on the basis of hearsay testimony concerning their involvement in an uncharged murder. Fans of Crawford debates will especially enjoy the court's work in footnote 68, where the Eleventh Circuit
explains why Crawford is to be inapplicable at sentencing.

Hamilton Bank jury in

The jury could not reach a verdict in the Hamilton Bank trial -- US v. Masferrer. Judge Moore declared a mistrial and set the retrial for April. The deliberations took some strange turns -- two jurors were excused for reading the newspaper, requiring two alternates to come into a jury room where there had been 3 days of deliberations. Nonetheless they were required to start considering the case from scratch. Then one of the alternates got sick and an ambulance had to be called to the courthouse. After all this, the jury hung. Defense lawyers were Howard and Scott Srebnick. Prosecutors were Ben Greenberg and Andrew Levy.

News and notes

1. Slow blogging -- sorry for being out of touch the last couple days. I've been going back and forth to Savannah preparing for a big trial scheduled for January 16. The lead prosecutor said in court last week that it was the largest case ever in Savannah. The case is just immense and it's taking up almost all of my time.

2. No bond for Cuban exiles in illegal weapons case -- From the AP: "U.S. District Judge James I. Cohn sided with prosecutors, upholding another judge's ruling denying bail for Santiago Alvarez, 64, and 63-year-old Osvaldo Mitat. They are charged in a seven-count grand jury indictment with illegal possession of machine guns and other weapons - some with serial numbers erased - that were allegedly stored at an apartment complex near Fort Lauderdale owned by Alvarez." "These weapons have no utilitarian purpose other than to harm others," Cohn said. Kendall Coffey, Alvarez's lawyer, said: "These aren't criminals. These are two honorable men. These men will be acquitted at trial."

3. Hamilton Bank trial -- no verdicts yet. Jury has been out a long time. The worst part of being a trial lawyer is waiting for the jury to come back. Terrible.

Middle District News

Hat-tip to one of our anonymous readers:

"Al-Arian acquittals across the board (with a sprinkling of hung counts) -- no convictions!
One defendant, Fariz, was represented by Fletcher Peacock's Middle District defenders."
Read Yahoo news

Press for Anonymous Miami Blog

Julie Kay writes about the Justice Building Blog in today's DBR. Here's the intro to the article:

The dishy Washington, D.C., court blog UnderneathTheirRobes.com, which talked up the “hotties” of the federal bench, disappeared after the assistant U.S. attorney who wrote it was outed last month. But a Miami version debuted last month, and it features the same menu of irreverent judicial gossip and satire, including a poll ranking the sexiest judge on the bench. It’s likely to rile lawyers, judges and elected officials — and be devoured by them. “Welcome to the unofficial Richard E. Gerstein Justice Building blog,” the anonymously written blog reads. “This site will be dedicated to justice building rumor, humor, innuendo and good stories about the judges and lawyers who labor in the world of Miami’s criminal justice.”

Our blog gets a mention:

But two other South Florida lawyer-bloggers, who put their names on their postings, doubt he’ll be able to maintain his anonymity very long. “We’ll see how long he stays in the closet,” said Miami criminal defense attorney David Markus. “E-mails can be traced.” That’s how the Washington blogger was outed. Predicted Miami criminal defense lawyer Brian Tannebaum: “He will be discovered.”

Anyone know who it is?

More judges?

Today's DBR (pass through link required) details a new bill in Congress to add 3 judges to our district, as well as splitting up the 9th Circuit. Although splitting the 9th is talked about every year and is very controversial, we would be the beneficiaries if the bill passes. I'm quoted in the article:

“We are the busiest and best district in the country and we could always use more judges,” said David Markus, vice president of the Florida Association of Criminal Defense Lawyers. If new judgeships are created in South Florida, a battle over where they would be stationed is likely, said insiders. A push to post the new judges in Broward, Palm Beach or Martin counties, where the population is rapidly growing, is expected, although some would likely want the judges based in Miami. “We’d like to see them in our brand new courthouse which is opening next year,” Markus said.

Booker in the 11th Circuit

Hat tip to Doug Berman over at the Sentencing Law and Policy Blog for this head's up:

Law.com this morning has this article discussing the state of Booker appeals in the 11th Circuit. The article reviews the interesting concurrences this week from Judge Tjoflat (discussed here) and Judge Carnes (discussed here). The article also interestingly notes that the "11th Circuit has handled nearly 1,100 decisions in the past 10 months that pertain to Booker, according to a Lexis database search."

Here's the conclusion of the article, which highlights the internal fights in the 11th:

Although a majority of the 12-judge circuit voted not to rehear the Rodriguez case, Tjoflat criticized Carnes' approach in a dissent, saying Carnes will make applying Booker "a meaningless formality in all but the rarest of cases." Carnes' rejoinder came in a 43-page opinion. Carnes wrote that Tjoflat's conclusion "requires not just a set of reading glasses but also a vivid imagination."

Not so fast...

We earlier discussed how the Justice Department was trying to avoid a showdown on the Presidential powers debate in the Supreme Court re Padilla by charging him here in the Southern District of Florida. The Government counted on the fact that the Fourth Circuit would approve of the transfer to this district to face charges. But the Fourth wasn't so happy about the fact that its ruling was based on allegations far more sweeping than those alleged by the Government in its indictment here.

Judge Luttig has asked for the following question to be briefed: "Whether, if the government's motion is granted, the mandate should be recalled and our opinion of Sept. 9, 2005, vacated as a consequence of the transfer and in light of the different facts that were alleged by the President to warrant Padilla's military detention and held by this court to justify the detention, on the one hand, and the alleged facts on which Padilla has been indicted, on the other." The government has until Dec. 9 to file its new brief on that issue. Padilla's lawyers are to file their brief a week later, by Dec. 16.

Lyle Denniston has this analysis over at ScotusBlog.com:

The Fourth Circuit had upheld Padilla's detention on the basis of more serious claims of wrongdoing than the charges contained in the new criminal indictment. The government contended, in seeking to justify his detention, that he had been
planning to release a radioactive bomb in a terrorist plot in this country. The
new indictment levels charges of joining in a terrorist "cell" of activity to support global terrorism efforts. The indictment describes a quite minor role for Padilla.
If the government has no interest in pursuing the more serious charges, for whatever reason, the Fourth Circuit may believe that its September ruling has been undercut. This will become clear after it acts following the new briefing. In the meantime, the Justice Department has until Dec. 16 to file its response to Padilla's appeal to the Supreme Court. The Circuit Court's order may complicate that proceeding, because it will not have ruled on the transfer motion, and the possible withdrawal of its September ruling, by Dec. 16. The government, of course, would be free to ask for a further extention of time to file its response.

No word yet on how this will affect the ongoing Southern District case.

New state court gossip blog

Just wanted to point you all to a fun new blog about the state court justice building in Miami, called Justice Building Blog. Its author is Rumpole, who describes himself* this way:

In order to allow a free and fun discussion of the Justice Building, and because from time to time I need to get my clients a bond, I have assumed the identity of that famed English Defense Attorney Rumpole of the Bailey. What I can reveal is that I am a practicing criminal defense attorney in Miami, Florida who has the same high opinion of Judges, Prosecutors, Civil Lawyers, and stuffed shirts as my fictitious alter ego.

I've been asked who the author is and have even been asked if it was me. I don't know who it is and it certainly isn't me.

*Although I use the male pronoun, for all we know Rumpole could be a woman. See, e.g., Article III Groupie, A/K/A AUSA David Lat.

Congrats to . . .

Michael Caruso on being named the Chief Assistant Federal Defender for the Southern District of Florida. Michael is one of the finest lawyers I know.

Moving day...

Hope you all had a nice Thanksgiving weekend. The weather in Miami was 75 and sunny all weekend. Today is my first day at the new office, in the Alfred I. duPont Building. In a couple hours I'm taking off to Savannah on business and won't be back until Thursday. I'll do my best to post while I'm there and if not, my co-blogger -- Anonymous -- promises to post.

Bench trial = $60 million

After a bench trial, Judge Gonzalez awarded $60.9 million to a couple whose son suffered severe brain damage when he was born in a Jacksonville Navy hospital two years ago. It is the largest verdict ever under the Federal Tort Claims Act. (I wonder if it is the largest bench trial verdict.)

A couple of interesting points -- first, the case was originally assigned to Judge Graham who had to transfer the case because of Wilma. Second, the law has changed since the filing of the suit so that damages are now capped at $1 million. More coverage here and here. Plaintiffs lawyers were Ervin Gonzalez and Deborah Gander.

Good article on Padilla...

... can be read here on law.com (by Carl Jones).

Marcia Cooke in the spotlight

I've received a bunch of emails from out-of-towners asking about Judge Cooke, the newest judge in this District, and drawing interest because she is the judge assigned to Jose Padilla's case. One of the comments asks whether the government was "judge-shopping" and others like Prof. Froomkin have flat out said that the government specifically selected Judge Cooke by adding Padilla to a superceding indictment. Perhaps DOJ looked at Judge Cooke's resume and saw that she was a Bush appointee and a former AUSA and thought that she would be a push-over for the feds. Froomkin (who I doubt has ever appeared before her) goes so far as to say "the government should not expect a hostile bench." If this is what the government thought, it is dead wrong. Judge Cooke -- to put it in Chief Justice Roberts' words -- calls a strike a strike and a ball a ball, and will not be pushed around by the government. She is known in this community as a fair judge who listens carefully to both sides and calls it right down the middle. She is well liked by criminal defense attorneys and prosecutors alike. (In the interest of full disclosure, I have tried two lengthy trials in front of Judge Cooke.) In addition, I have posted about this case pre-Padilla here.

The interesting aspect of the case for me is that it shows true weakness by the President. Perhaps the administration lost confidence in its legal arguments due to the Supreme Court next week. Combine this with the recent polls and perhaps the feds figured this was an easy out. We'll see...

On a separate note, isn't Miami always the center of this poltically charged stuff -- Elian, Bush v. Gore, Padilla, and so on. Finally, via How Appealing: "Prepared Remarks of Attorney General Alberto R. Gonzales at the Press Conference Regarding the Indictment of Jose Padilla": You can access them online here, while the indictment itself can be viewed at this link. And the memorandum from President Bush authorizing the transfer of Jose Padilla from the control of the U.S. Military to the control of the U.S. Department of Justice is here.

Jose Padilla charged in Miami

Jose Padilla, the so-called "dirty bomber", has been charged in a 11 count indictment in Miami. Attorney General Alberto Gonzalez is expected to announce the charges during an 11 a.m. ET news conference.

As you may recall, Padilla had filed a cert petition with the Supreme Court seeking review of the question of whether "the President has the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial."

A response to the petition from the Justice Department was due next Monday. Interesting timing.

UPDATE (by DOM)-- There's lots to read about this interesting case. Check out ScotusBlog for detailed analysis. Also, in response to the comment, Judge Cooke is handling the case. Here is the indictment. I know Ken Swartz represents one of the co-defendants named Hassoun. I'm not sure if anyone has entered an appearance for Padilla yet. Anyone?

Friends of Luis Posada Carriles denied bond

Magistrate Judge Andrea Simonton denied bond to Santiago Alvarez and Osvaldo Mitat (allies of Cuban exile militant Luis Posada Carriles) because "their mere possession of automatic weapons, grenades and rounds of ammunition amounted to a crime of violence and posed a a danger to the community." More in the Herald article here and the Sun-Sentinel here. AUSA is Randy Hummel and defense attorneys are Dennis Kainen and Kendal Coffey.

News and notes

So I'm sitting here waiting for Bellsouth to install my new phone lines at the new office and I found a computer connected to the internet... Interesting stories today.

First is the DBR article about the internal district rules that were made public. Here's the intro to the article: "The so-called secret rules that federal judges in the Southern District of Florida have been operating by for more than a decade are no longer secret. Under pressure from defense attorneys and the Federal Public Defender Office after an article about the rules was published in the Daily Business Review, the district court in Miami has for the first time made public its internal operating procedures manual. The manual, signed by Chief Judge William J. Zloch Nov. 14, is available for viewing on the court’s Web site. The 20-page manual lays out procedures for how the federal judges assign and reassign cases, how new judges receive cases, jury instructions and magistrate assignments. It also details special powers of the chief judge, which include appointing the chief bankruptcy judge and chief magistrate judge, approving all requests for annual and sick leaves, approving all new courthouse construction projects and architectural plans and reviewing all complaints of judicial misconduct."

Also today's Miami Herald details the sentencing of Haitian informer, Oriel Jean, who got a reduction for his cooperation: "Oriel Jean, the former security chief for ex-President of Haiti Jean-Bertrand Aristide, was sentenced Friday to just three years in prison for his role in helping drug traffickers move tons of Colombian cocaine through Haiti to the United States.
With good reason: The 40-year-old defendant, held in custody since March 2004, gave federal investigators invaluable information on Haiti's drug underworld and the location of fugitives -- and even continued to testify after a cocaine smuggler threatened his life. Indeed, Jean proved to be the prosecution's star witness. At his sentencing hearing in Miami last week, U.S. District Judge Jose Martinez paid Jean a compliment, praising his ''good work'' for the government. The judge then gave him half of the six-year sentence he otherwise would have received for his money-laundering plea deal."

Secret rules no longer secret

A while ago I posted about the "secret" local rules that only the judges had access to. Those rules are now public and available on the court's website dubbed "2006 Internal Operating Procedures."

Muzzled

No more Pit Bull ads. Ft. Lauderdale lawyers John Pape and Marc Chandler were reprimanded and ordered to attend advertising classes for their infamous pit bull ads (and 1800pitbull #). Here's the AP article and here's the opinion.

Opening statements in Masferrer

Apparently they picked the jury with blazing speed in the Hamilton Bank trial -- opening statements were yesterday. The Miami Herald covers it here. AUSA Ben Greenberg started out his opening, arguing: ''This case is about Eduardo Masferrer's lies and his greed." Howard Srebnick countered, "'This is a case about one man, one citizen disagreeing with his government. . . He disagrees with his government's accounting rules."

Supreme Court denies cert in voting case

The Supreme Court denied cert today in the case involving Florida's lifetime ban on voting rights for convicted felons. Here's the AP story from the Sun-Sentinel. More coverage at Scotusblog.

Hamilton Bank trial to start

Former Hamilton Bank chief executive Eduardo Masferrer's criminal trial starts Monday in front of Judge Moore. He is defended by Howard and Scott Srebnick. The case was transferred from Judge King (pursuant to a secret policy manual) when he recused himself from all criminal cases, which I discussed here.

UPDATE 11/14 -- Speaking of secrecy, the Daily Business Review's cover story today is "Secrecy Slapdown." It discusses in great detail the secret docket problems of this District and the recent Ochoa decision telling the court not to engage in secrecy any longer. I'm trying to get a working link to the article (here it is)... In the meantime, here's the intro:

Last month, a three-judge panel of the 11th U.S. Circuit Court of Appeals chastised judges of the Southern District of Florida for completely hiding cases from public view by placing the cases on a secret court docket. “We … exercise our supervisory authority to remind the district court that it cannot employ the secret docketing procedures that we explicitly found unconstitutional,” the panel said in its unusual reprimand. Defense attorneys, civil liberties groups and the news media celebrated the panel’s words, which came in the course of upholding a drug lord’s conviction and sentence of more than 30 years in prison. Now, one of the South Florida federal judges who agreed to hide a case admits that she made a mistake and vows never to do it again. “Judges are not gods,” U.S. District Judge Patricia Seitz, a seven-year veteran of the federal bench, said in an interview. “Like any human being, we make mistakes. When your mistake is pointed out, you reconsider your action and you promptly make a correction.”

JNC interview

I've just been absolutely swamped lately. I was in Savannah the last two days, and at the end of the month I'm starting my own law practice downtown and trying to get that up and running is insane... But I did have a minute to read a great article in the DBR today (by Julie Kay) about the JNC interview process. The article makes it seem like Acosta got some tough questions. Most believe that he is a shoo-in for the position. The article also mentions that many were disappointed that neither of the two women applicants made the final cut. Here is one snippet from the article:

The commission spent nearly an hour grilling Acosta, who is considered by some a shoo-in for the post due to his Bush administration connections. “An issue that is still hanging out there is your lack of trial experience,” said Scott Srebnick, a Miami criminal defense attorney. “In terms of street credibility, will you be able to make the tough decisions? If you decline a case an agency has been working on for awhile … will the agents think, ‘What does he know, he hasn’t really tried any cases?’ ” Acosta replied that as head of the Justice Department’s civil rights division since 2003, he took on some of the hardest cases. “I haven’t had any pushback from law enforcement,” he said. “Look, the issue of credibility has come up before,” he said. “One-third of all U.S. attorneys across the country have no trial experience. At the end of the day, it’s not just about what your experience is but whether you can sit across the table and know the facts and have the confidence to say, ‘Look, I disagree,’ or ‘Look, this is the argument we need to make.’ ” “The U.S. attorney’s office runs itself,” he added.

JNC recommendations for U.S. Attorney

The JNC sent up three names for U.S. Attorney -- Alex Acosta, Tom Mulvihill, and Ed Nucci.

More en banc coverage

Today, Carl Jones of the Daily Business Review covers the 11th Circuit's decision to rehear en banc the Cuban Spy case. I'm quoted in the article:

Miami criminal defense attorney David Oscar Markus, who’s not involved in the Cuban spy case, said the 11th Circuit doesn’t often grant en banc review of a panel decision. “It’s very rare,” he said. “If it happens a couple of times a year, it’s a lot. But you know what? It was very rare what the panel did.” Markus said there are two possible reasons why the court granted en banc review. “One possibility is they have taken the case to show unity from the court [in overturning the convictions and ordering a new trial],” Markus said. “The other possibility is the rest of the court just disagrees [with the panel] and wants to quickly get rid of this opinion.” Markus noted that the August panel ruling was the first known case of an appellate court overturning a district court judge on a venue question. Another unusual aspect of the case, he said, is that it typically takes months for the full circuit court to decide to rehear a panel decision. The speed with which the court granted en banc review, just weeks after Acosta’s request, took almost everyone by surprise. “Boom, the opinion
came out, the government asked for review, and review was granted almost immediately, which I think does not bode well for defenders of the opinion,” Markus said. No more than two of the judges on the original panel will be able to rehear the case and defend it, Markus said. Judge Birch was the only active member of the 11th Circuit to decide the original case, while Judge Kravitch has the option to take part in the en banc review. Judge Oakes was sitting by designation. Markus said if Judge Kravitch chooses not to participate, a single judge from the original panel “puts a greater onus on Judge Birch to get a consensus on the court.”

The next U.S. Attorney for the district will be...

...one of the six individuals detailed in this Herald article by Jay Weaver. Those are: Alex Acosta, Ken Blanco, Tom Mulvihill, Susan Tarbe, Ed Nucci, and Cynthia Hawkins. Most say that it's hard to imagine that it won't be Acosta, especially after he was named on an interim basis. But initially there was a lot of talk that the job was Tarbe's. I haven't heard anything lately. Anyone else? I wrote on this topic a while ago here.

Return to Normal...

I'm back from Orlando (there is nothing like seeing Disney World through your kid's eyes...) and I see that Chief Judge Zloch has announced that everything is back to normal starting tomorrow. I wonder how jurors selected to sit for long trials are going to feel about it now that they can just get back to work themselves... It should be interesting. Here is the release:

Return to Normal Operations on Monday, November 7, 2005
Chief United States District Judge William J. Zloch announced that the United States District Court for the Southern District of Florida will resume normal hours and operations on Monday, November 7, 2005. Clerk’s Office hours are from 9:00 a.m. to 4:30 p.m. Jurors should call in for reporting instructions at (800) 865-1775. This announcement applies to district court facilities in Miami, Fort Lauderdale, West Palm Beach, Key West and Fort Pierce.

UPDATE: Judge Zloch also issued an Order on behalf of the entire Southern District of Florida, tolling the speedy trial clock from October 24 through November 4, 2005 due to Wilma. Hat tip, Brian Tannebaum. I feel bad for the clerk's office because J. Zloch directs the clerk to file the Order in every criminal case and to give notice to all parties. What a headache...

Smuggling Blues

Gil Rodriguez and Taboada Cabrera pleaded guilty yesterday in a case involving smuggling Cubans to the United States. During the trip a 6 year old boy tragically died. Coverage here and here.

I will be out of town this weekend (I'm speaking at a sentencing seminar in Orlando tomorrow and then going to spend the rest of the weekend in Disney with my family) so blogging will be very light if at all...

Cuban five

The Miami Herald has this article about the decision to grant en banc review of the Cuban Spy decision. Good article but it has a completely misleading headline -- "Verdict to stand for five Cuban spies." From that headline one would think that the jury verdict was affirmed and that there were no further proceedings. Nothing could be further from the truth. The entire 11th Circuit has decided to hear the case. The Sun-Sentinel article's headline is more accurate: "Appeals court voids Cuban spy decision, will rehear case."

Breaking news -- Cuban Spy en banc

I have it on good authority that the Eleventh Circuit has granted en banc review in United States v. Campa, the cuban spy opinion.

UPDATE: Confirmed. Here is the text of the order:

Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and PRYOR, Circuit Judges*.
B Y T H E C O U R T :
A member of this Court in active service having requested a poll on the suggestion of rehearing en banc and a majority of the judges in this Court in active service having voted in favor of granting a rehearing en banc,
IT IS ORDERED that the above causes shall be reheard by this court en banc. The
previous panel's opinion is hereby VACATED.
__________________________
*Senior U. S. Circuit Judge Phyllis A. Kravitch may elect to participate in further proceedings in these matters pursuant to 28 U.S.C. § 46(c).

Slow blogging

Sorry about the slow blogging, but I still don't have power at home and I typically like to post before I go to work and late at night when everyone else is asleep...

In any event, most of the news is Wilma related and I'm sure everyone is Wilmad out. But if you're not, there is great coverage of how Wilma affected the courts and law firms in the Daily Business Review. All the articles require pass-through links, so it doesn't do any good to post them here. But if you can grab a copy of the Review, it's worth it. I was quoted in one funny article this morning about how half of Miami went to Orlando to ride out the storm. I offered my office (which has power, internet, etc) to any lawyer who needs it, "including prosecutors." To date, no prosecutor has taken me up on the offer...

Still no jury trials until further notice

Here's the latest press release:

United States District Court for the Southern District of Florida Open With Reduced Hours Beginning November 1, 2005 until Further Notice
Chief United States District Judge William J. Zloch announced that the United States District Court for the Southern District of Florida will reopen on Tuesday, November 1, 2005 in all divisions. The Clerk's Office will be open in Miami, Fort Lauderdale, West Palm Beach and Fort Pierce; however, the District Court's hours of operation will be limited to between 9:30 A.M. and 3:30 P.M until further notice.
Southern District of Florida courthouse facilities will be generally open to the public but no new jury trials will commence until further notice. The Court will operate under this reduced schedule in consideration of localized power outages, supply shortages, and the recent conversion to daylight savings time which together may complicate evening commuting.
Information concerning the status of the Court's operations will be posted here on the Court's web site.
Last Updated: Monday, October 31, 2005

Nominee Alito

So the President has nominated Judge Sam Alito to fill O'Connor's seat.

It's an interesting choice, especially when compared to Bush's other two nominations. Roberts was an unknown, but a very smart unknown. It was difficult for either side to really attack him because he was so qualified. Miers was viewed as a not-so-smart unknown. And it was easy for both sides to attack her because she was seen as unqualified. Now we get Alito, a known and smart commodity. He's been a judge for fifteen years and has a long track record, even on issues like abortion. See Planned Parenthood v. Casey (Alito supported abortion restrictions). His record will certainly make the hearings more exciting to watch.

For all the news, background, and gossip I would check out ScotusBlog, How Appealing, Professor Berman's site, and Underneath Their Robes.

Latest press release from court website

United States District Court for the Southern District of Florida Operations on Monday, October 31, 2005
Due to the ongoing community recovery efforts and supply shortages in the aftermath of Hurricane Wilma, Chief United States District Judge William J. Zloch announced that the United States District Court for the Southern District of Florida will be open on Monday, October 31, 2005 subject to the following restrictions: The Clerk's Office will be open in Miami only, and its hours of operation will be reduced to 10 A.M. to 3 P.M. The Clerk's Offices in Fort Lauderdale, West Palm Beach and Fort Pierce will remain closed.
All Southern District of Florida Courthouse facilities will remain generally closed to the public. The Miami Clerk's Office will be available during reduced hours to receive emergency filings. No jury trials or hearings will be held or commenced until further notice.
A further announcement about the status of the District Court’s operations will be made by 4:00 P.M. on Monday, October 31. Information concerning the status of the Court’s operations will be posted here on the Court’s web site.
Last Updated: Saturday, October 29, 2005, at 1:00 p.m.

Wilma Updates

No decisions yet on the opening of the Broward county courthouse. The decision about federal courthouses will be made today at 3PM and can be found on the district's website. For those without power, I'm not sure how they will find out... I'm not sure they care.

Wilma, Meirs, and Easter

So Harriet Miers withdrew her nomination today. I couldn't think of a better time for President Bush to appoint a Floridian for the post. I mean, with Wilma and everything, I think it's the least we can expect! Come on, W, it's time for the first Justice from Florida!

I hope my fellow South Floridians are doing okay. Most of us are still without power, hot water, gas, etc. They say we may get these things by Easter...

The DBR reports the following on courts:

Hurricane Wilma shut down state and federal courts in Miami-Dade, Broward, and Palm Beach counties. Most said they would remain closed through Friday. Officials at most of the courts said they would reopen for business on Monday though that is tentative. The lone exception is the 3rd District Court of Appeal, which covers Miami-Dade and Monroe counties, which will be open Thursday. Hearings Wednesday were canceled at state and federal courts and filings deadlines were expected to be extended. The Florida Supreme Court was expected to issue deadline-extension orders for state courts sometime Thursday. Wilma damaged several Miami-Dade County courthouses, forcing their closure for several days while authorities assess the damage. But the damage was not nearly as severe as that to the main Broward County Courthouse in Fort Lauderdale. Most trials and court proceedings at the main Broward courthouse will be postponed until Nov. 7 as workers make massive repairs to the facility in downtown Fort Lauderdale. About 175 windows were shattered and blown inside the building, water pipes burst, and wind and rain inundated judges’ chambers, court administration offices and the jury room. In the north wing of the building, an inch of water covered the floor. Nevertheless, magistrates are holding first-appearance criminal proceedings at the Broward County Jail In Palm Beach, all Circuit Court business has been suspended through Friday, except for first appearances, shelter hearings, and domestic violence-related matters, according to the court’s Web site. Those proceedings are taking place at the Criminal Justice Complex in West Palm Beach. A court epresentative was not available for comment Wednesday about any damage at court buildings. The four federal courthouses in downtown Miami appeared to have suffered no exterior damage, but did have some interior damage. The court’s Internet site reported that federal courthouses would be closed until further notice. A recorded message at the U.S. Bankruptcy Court said the bankruptcy offices in Miami-Dade, Fort Lauderdale, and West Palm Beach are also closed until further notice. The recording said bankruptcy hearings and creditors’ meetings would be rescheduled. Criminal court judges in Miami-Dade were handling first appearances at the county jail in downtown Miami Tuesday afternoon, and were working on emergency domestic violence intervention requests. Miami-Dade Circuit Court spokeswoman Jill Beach said it was too early to tell when the courts might reopen, although officials were hoping it would be next Monday. “We’re doing everything we can to get safely prepared for reopening for the public and the employees,” Beach said. “There’s no assurances what’s going to happen right now.” The 11th U.S. Circuit ourt of Appeals in Miami canceled oral arguments in Miami for the week. An 11th Circuit court clerk in Atlanta said attorneys should call their case manager to
arrange for deadline extensions, but extensions would be granted on a case-by-case basis. Officials at the 4th DCA in West Palm Beach, which includes Broward and Palm Beach counties, could not be reached Wednesday. The court’s Web site said it would be closed Wednesday and Thursday. No further information has been posted about when the court might reopen. No details of any damage were immediately available. Carl Jones can be reached at cjones@alm.com or at (305) 347-6648.

Wilma update (UPDATED)

None of us thought it was going to be this bad...

I have no internet access at home or work, so I'll do the best I can to get updates to this site. Thanks to Stearns Weaver for lending me an office.

The state courthouses in Miami and Broward are closed the rest of the week.

The federal courthouses are going day by day. Their website has more info. Hopefully they will just close for the rest of the week. **UPDATE -- They listened -- all federal courts in this District are closed the rest of the week.

FDC-Miami is closed to visitors. **UPDATE -- You can call 305-982-1211 to find out when it is re-opening.

Many many offices on Brickell, including Greenberg Traurig, have been blown out.

Cuban Spy panel discussion

The panel discussion Thursday evening regarding the Cuban Spy opinion was very interesting. The panelists -- Judge Edward Davis, Judge Stan Blake, Federal Defender Kathy Williams, and former U.S. Attorney Guy Lewis -- were engaging and lively. The most contentious issue seemed to focus around the last paragraph of the opinion. Even the audience seemed vocally upset about it. This is what the Court said:

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 a 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.

The sentiment was that this language was offensive and that there was no reason to include it. Kathy defended the court's language (as I think she had to -- she is representing one of the defendants in the on-going litigation), arguing that each sentence in that paragraph was true and complimentary.

It does seem to me strange that it was included in the opinion. Query as to whether it would have been included if the defendants were African-American or Jewish. I doubt it. So why include it here? Thoughts?

Wilma

Federal courts are closed Monday due to Wilma. Here is the press release:

Federal District Court Operations and Hurricane Wilma
Chief United States District Judge William J. Zloch announced that United States District Court operations in all divisions be closed Monday, October 24, 2005 due to wind and rain conditions anticipated to develop with the approach of Hurricane Wilma. These closures affect the District Court’s operations in Key West, Miami, Fort Lauderdale, West Palm Beach and Fort Pierce. The District Court 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 will also be closed.
Federal court operations will resume at the regular time in all Divisions on Tuesday, October 25th. Please consult the Court’s website at www.flsd.uscourts.gov for changes to these instructions.

11th Circuit decides USA v. Fabio Ochoa

Today, in a 2-1 decision, the 11th Circuit affirmed the conviction and sentence of Fabio Ochoa, who is said to be one of the high ranking members of the Medellin drug cartel in the 1980s. I haven't had a chance to digest the 83 page opinon, but it looks like it packs a lot in. District Judge Avant Edenfield, sitting by designation, wrote the opinion (which was joined by Judge Hull) and Judge Barkett dissented, arguing that the jury selection process was unconstitutional. More to follow after I've had a chance to read the whole decision.

State of the Blog

Just an update -- this is our 100th post and we have been averaging over 50 visitors a day.

A reminder -- tonight at Greenberg Traurig's office is the American Constitution Society event discussing the Cuban Spy opinion by the 11th Circuit. It should be a great and lively discussion. Will write about it tonight...

Gotcha

Sorry for the slow blogging lately -- very very busy... But here is some news from the Miami Herald about Christopher John Clarkson, aka Stephen Duffy, who has been on the lam for 30 years, using a dead child's identity. Unbelievable story.

First Roberts' Court opinion

Paul Rashkind at the U.S. Supreme Court blog posts this interesting bit of trivia regarding the first opinion of the Roberts' Court. Here's a taste:

A bit of trivia: For whom did the Roberts' Court rule in its historic first published opinion? It ruled in favor of convicted murderer Paul Allen Dye, who sought a writ of habeas corpus based on prosecutorial misconduct. Check out Dye v. Hofbauer, 526 U.S. ___ (2005) (per curiam) here.

Cuban spy panel discussion

The American Constitution Society has put together a panel discussion regarding the Eleventh Circuit's opinion in the Cuban Spy case. Panelists are Judge Stan Blake (11th Judicial Circuit), Former Chief Judge Edward B. Davis (Southern District of Florida) , Former U.S. Attorney Guy Lewis (Southern District of Florida), and Federal Defender Kathleen Williams (Southern District of Florida). I'll be moderating what is sure to be a very lively debate. Any suggestions for questions?

News and notes

The Federal Bar Association's Young Lawyers Division had a luncheon today. Judge Ursula Ungaro was the featured speaker. Very nice turnout. We learned that the new federal courthouse isn't going to open until June 2006. Also, the Southern District is going to implement the all e-filing system, i.e., no paper, in the near future. More on that to follow when I get info.

Bond for alleged Katrina scammer

Magistrate Judge Patrick White set bail at $125,000 (the Sun-Sentinel article, which is otherwise good, does not mention whether this is a corporate surety bond, 10% bond, or personal surety bond) for the supposed Katrina scammer, Gary S. Kraser. Defense lawyer is Alvin Entin. Prosecutor is Joan Silverstein.

A Love That Was Benched by Their Careers

For those of you interested more in gossip than in jurisprudence, here is a interesting story from the Los Angeles Times concerning the relationship between nominee Harriet Miers and Justice Nathan Hecht of the Texas Supreme Court. Justice Hecht you might remember offered several quotes regarding his friend's nomination. Here is one: When the conservatives ''find out what this president knows about Harriet,'' he said, ''they are going to be happy as clams.'' Hecht also offered this quote about Ms. Miers in an article published last year: ''She always remembers everybody's birthday and has a present for them,'' he said. 'She'll be finding a present for them in the middle of the night. `Can't it wait until next week?' 'No,' she'd say. 'It has to be done now.' '' This is important. I don't have to tell you what happened at the Court last year when everyone forgot Justice Scalia's birthday.

Increase in criminal case filings

Julie Kay of the Daily Business Review has an interesting article (pass through link required) today summarizing her interview with Michael Clemens, special agent in charge of the Miami FBI office. Trying to deflect all the criticism regarding the "porn wars" Clemens says that they are continuing to focus on terrorism and have also devoted more resources to fraud. “We really had a spike in investigations after 2001. Most divisions did,” he said. “If we had a terrorist attack here, believe me, I would move 100 percent of our agents to counterterrorism. But it’s not necessary now.” I am also quoted in the article agreeing that filings are up. Kay refers to the blogosphere: "Since the Review first reported [about the priority on porn], agents and prosecutors are aghast at the notion, the issue has become fodder for comedians, late-night talk show hosts and bloggers around the world who questioned why law enforcement should devote limited resources to something that may be perfectly legal." The Daily Business Review is doing a good job following the blogs.

Brillant acquittal

Evnitz Brillant was acquitted today in front of Judge Marcia Cooke, the Herald reported here. What a huge win for the defense. The buzz at the courthouse was that this guy had no chance. Props to Howard Schumacher, Brillant's lawyer. Interesting moments in the trial: 1) the star witness picked out a DOJ lawyer as the defendant; and 2) the court excluded a polygraph test that the defendant passed.

Bush taps SDFLA for state bench

Congratulations to Marty Bidwell, Chief Assistant Federal Defender from the Southern District of Florida on his appointment to the Circuit bench. Bush also elevated Jeffrey Levenson, former AUSA from the Southern District of Florida, to the Circuit bench. Having litigated with Marty and against Jeff, I can say without hesitation that both are fantastic appointments. Congrats to both of you.

More Judges?

Hat tip to Brian Tannebaum:

BILL CALLS FOR MORE FEDERAL JUDGES FOR FLORIDA-- Ft. Myers News-Press,
http://www.news-press.com, October 6, 2005.
U.S. Rep. Katherine Harris today [Oct. 6] joined U.S. Rep. Ileana Ros-Lehtinen to announce legislation to authorize additional federal judgeships for Florida. Harris and Ros-Lehtinen introduced the Judgeships for Justice Act, H.R. 3953, to provide resources to address a growing need for additional judicial representation. Currently, weighted case filings per judgeship in Florida's Middle District are 47.7% above the standard set by The Judicial Conference of the United States; and in the Southern District, 19.3% above the standard. Prosecutions of fraud, drugs, firearms and immigration are putting a strain on the administration of justice in
Florida. Based on this workload data, in its most recent report the conference recommended the creation of seven permanent, and one temporary federal judgeships for Florida.

Applicants for U.S. Attorney

Julie Kay and the Business Review detail the applicants for U.S. Attorney in the District: "Six current or former federal prosecutors, including two women, have applied for the position of U.S. attorney for the Southern District of Florida, one of the largest and highest-profile districts in the nation. Florida Federal Judicial Nominating Commission chair Michael Grindstaff said he had received applications by Wednesday from interim U.S. Attorney Alex Acosta; Thomas Mulvihill, Acosta’s first assistant; Cynthia Hawkins, an assistant U.S. attorney in Orlando; and Edward Nucci, a West Palm Beach-based senior litigation counsel for the U.S. attorney’s office. In addition, Susan Tarbe, a former assistant U.S. attorney and current partner at Colson Hicks Eidson in Coral Gables, told the Daily Business Review that she had applied."

Hurry up and wait!

Ya’ll want my spot?! Hurry up and wait!
Ya’ll want me to stop?! Hurry up and wait!
Ya’ll want me shot?! Hurry up and wait!
Ya’ll hurry up and wait! Ya’ll hurry up and wait!
I’ve been brought up,
By street cats who didn’t get caught up
Like that New Jack Nino Brown at da Carter
I’m da new Tony Montana, only I’m just aLittle bit smarter!
-- Pitbull, Hurry up and Wait

Well, if you haven't gotten your fill of Pitbull, read this Herald article, which details:

Pitbull fans may have a new CD to put on their Dear Santa list this upcoming holiday season. A Miami judge has found that Slip-N-Slide Records can release an album of the Cuban-American rapper's old tracks that his current label, TVT Records, sought to block. In a 26-page opinion, U.S. District Court Magistrate Stephen Brown said Miami-based Slip-N-Slide has the right to issue the LP Welcome to the 305 as long as it affixes a sticker to it stating ``contains previously unreleased material.'' ''We couldn't be happier,'' said Slip-N-Slide attorney Richard C. Wolfe. "We think the
judge absolutely understood this case.''

In other news, the U.S. Attorney's Office is fighting internet fraud re Hurricane Katrina. Gary Kraser has been arrested for his website, www.AirKatrina.com.

And the office filed its petition asking for rehearing in the 11th on the Cuban Spy Case.

No Floridian

Well, we didn't get a Floridian. We got Harriet Miers. No one knows much about her yet. She's Bush's lawyer at the White House. She's never been a judge. She was charged with finding O'Connor's replacement. I guess she said PICK ME!

UPDATE -- Some, like Tom Goldstein, are already predicting that she will not be confirmed. I tend to agree, especially because she will be compared to the super-smart, well-qualified Roberts, who was a no-brainer.

New Justice and New Term

Tomorrow starts the Roberts Court. It should be interesting. And the good money is on Bush nominating a new Justice this week for O'Connor's seat. How about a Floridian already! This may be your last chance to vote in our Floridian poll...

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.

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?