Wednesday, August 31, 2005
Tuesday, August 30, 2005
Monday, August 29, 2005
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."
Thursday, August 25, 2005
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?
Wednesday, August 24, 2005
District Court Operations and Tropical Storm Katrina Chief Judge Zloch announced that all Divisions of the United States DistrictCourt for the Southern District of Florida will be open to the public at 9:00 A.M. on Thursday, August 25th. The Court’s public functions at alllocations will be suspended at 1:00 P.M. in anticipation of the onset ofwind and rain conditions associated with Tropical Storm Katrina. Thisincludes the Court’s locations in Key West, Miami, Fort Lauderdale, WestPalm Beach and Fort Pierce.No new jury trials will be started nor will jurors be called to report onThursday, August 25th. Jurors who are currently sitting on trials mustfollow the instructions of the presiding judges.Criminal duty matters in all Divisions will be conducted before Noon. Alldistrict court staff should report for work as scheduled. A determinationabout the status of continuation of non-public functions will be made bynoon Thursday. A liberal leave approval policy will be observed for staffwho are not able to report to work. Further information about the status ofthe Court’s operations for Friday, August 26th will be available on theCourt’s website: www.flsd.uscourts.gov by 1:00 P.M. Thursday.
Tuesday, August 23, 2005
Greenberg starts out in the county’s top legal job with a solid base of goodwill, even from lawyers who have done battle with his office over the years. “Murray is one of the finest lawyers and people I’ve ever known,” said Greenberg Traurig land-use attorney and shareholder Cliff Schulman. “Murray’s a straight shooter, and I think everyone else in that office will follow that lead.” Fort Lauderdale lawyer Bruce Rogow, who represents Citizens for Reform, a business-backed political action committee that supports Alvarez’s campaign for a strong-mayor form of government, said the county attorney’s office “has been a wonderful office with a great reputation under the kind of joint leadership of Bob and Murray.”Congrats to Murray on this promotion.
Monday, August 22, 2005
The article explains that while mostly made up of Republicans, there "are a handful of Democrats" which include: "Mark Schnapp, a former federal prosecutor and a partner at Greenberg Traurig in Miami; Michael Hanzman of Hanzman & Criden in Miami; and Steven E. Chaykin, a former federal prosecutor and a partner at Zuckerman Spaeder in Miami."
Sunday, August 21, 2005
Thursday, August 18, 2005
"The members from the Southern District include chair Justin Sayfie, Roberto Martinez, Barry Silverman, Tom Tew, Mark Schnapp, Luis Perez, Manny Kadre, Gonzalo R. Dorta, Robert Dunlap, Peter S. Sachs, Scott A. Srebnick, Charles Garcia, Dexter Lehtinen, Beverly A. Brame, Jillian Inmon, state Rep. Ellyn Bogdanoff, Thomas Panza, Steven E. Chaykin, Joseph Reiter, and Michael Hanzman. Their first task will be to help select a successor to former Miami U.S. Attorney Marcos D. Jimenez."
2. The Sun-Sentinel reports: "U.S. District Judge Donald Middlebrooks in Miami sentenced Ricardo Contreras, 33, to serve 18 months in prison and three years of supervised release, and Rogino Sánchez, 24, to 15 months in prison and two years of supervised release for illegally transporting people into the United States," almost two months after a young woman they snuck into the country hanged herself in Boynton Beach.
3. Fred Grimm writes about the Abramoff case here. He explains how the federal case is being used in "as a vise to squeeze" out some information about the deal and about the death of Gus Boulis.
Tuesday, August 16, 2005
1. We have an anthrax arrest.
2. We have a huge fraud case, which was written up in the New York Times. More good press for the Lewis Tein firm, which was appointed as the receiver. Guy Lewis is quoted: "These guys were slick. They would have given Barnum & Bailey a run for their money."*
3. And we have possible cooperation from Jack Abramoff in a murder investigation.
*P.T. Barnum and James Bailey (along with the Ringling Bros.) started the Greatest Show on Earth, which was also a great movie (it won movie of the year in 1952).
Sunday, August 14, 2005
I'm also working on putting together links for important District websites that I will list on the blog. Please email me with any thoughts for links that should be included. I'll try to get that up on the site shortly. Thanks to those of you who have emailed me with suggestions for the blog and with tips on cases.
Thursday, August 11, 2005
In other news, seven years the Grinch received. Teach him, it will. I'm not sure if that's Yoda or Seuss speak... sorry.
At first glance, a federal appellate court's decision requiring a new trial for five Cubans accused of spying appears to be a harsh and unwarranted censure of Miami and the prevailing anti-Castro sentiment in this community. The court remanded the case for a new trial -- elsewhere -- because ''pervasive community prejudice'' precluded the probability of a fair trial in Miami for the defendants.
Principle of fairness
No community would find this a welcome message. However, a close reading of the court's 93-page decision suggests that this is not so much a slap at the community as reaffirmation of the principle that fairness is the paramount ingredient of the American system of justice. To understand this decision, it's important to point out what the court did not say, as well as what it said:
• It did not say that the jury was biased. In fact, the court cited an applicable ruling to the effect that the law does not require proof ''that local prejudice actually entered the jury box.'' Where community sentiment is strong (Who can deny that here?) and other factors such as pre-trial publicity come into play, a change of venue is necessary in the interest of fairness, the court said.
• It did not suggest that the defendants should have been acquitted on the basis of the evidence. Indeed, in reviewing the evidence matter-of-factly, the court referred to the defendants as ''agents'' and ''Wasp Network members.'' However, it noted that guilt or innocence based on evidence is not a determining factor when an appellate court reviews whether a change of venue was needed in order to ensure a fair trial.
• No single factor led the court to decide that only a change of venue could suit the interests of justice. Rather, it cited pre-trial publicity; a variety of other Cuba-related news stories around the same time, most prominently the Elián González controversy, that incited community passions; and ''improper prosecutorial references,'' including a statement that the ''jurors would be abandoning their community'' -- in the court's words -- if they did not convict.
All of this, in the court's decision, amounted to a ''perfect storm'' of inflammatory conditions mandating a change of venue. It also noted that, in another legal action around that time, the government itself argued for a change of venue out of Miami on the theory that community passions were not ideal for rendering an impartial verdict in a case involving Cuba.
We do not endorse the notion that an impartial jury cannot be found in Miami to judge a case with Cuban connections. Neither did the appellate court. The court simply found that the interests of fairness would best have been served at the time by moving the spy trial elsewhere before the trial began. In the interest of fairness, we agree.
Wednesday, August 10, 2005
The Miami Herald contains this article today. The South Florida Sun-Sentinel reports today that "Court discards convictions of 5 Cubans accused of spying." The Chicago Tribune reports that "U.S. dealt setback on spies; Appellate court rules 5 Cuban agents were unfairly tried in Miami." In The New York Sun, Josh Gerstein reports that "Court Orders New Trial For 'Cuban Five.'"
And BBC News reports that "Havana hails US Cuban spy retrial; The Cuban government has welcomed a US appeal court decision to retry five Cubans convicted of spying."
Now that I've read the opinion a couple of interesting points:
1. Professor Gary Moran (from Florida International University's psychology department) did a venue survey pre-trial. He concluded that it would be impossible to receive a fair trial in Miami. The district court did not credit the survey, but the 11th Circuit quotes from it at length. I've used Gary Moran as a jury consultant and he (and his brother Bill) do great work.
2. The 11th Circuit relies not just on the publicity surrounding this case (of which there was a ton), but also relies on the Elian case, the government's admission in a civil case that there was community prejudice on this issue, witnsses during trial who baited the defense lawyers (even asking them if they were doing Fidel's bidding), and the government's comments throughout the trial (especially during rebuttal closing) mixing references to the Holocaust and Pearl Harbor and complaining to the jury that these "spies sent to destroy" this community had a legal defense "paid for by American taxpayers. "
3. A couple people have mentioned to me that this is the first reported decision of a federal criminal conviction reversed based on the denial of a motion for change of venue.
4. The venue motions were prepared by Joaquin Mendez (who, along with Richard Klugh, argued the issue on appeal) and Bill Norris, which relied on the survey by Moran.
5. Many have criticized the 11th Circuit and its opinion as being "liberal" or supporting "communism." It's an interesting criticism of a court that many would call the most conservative appellate court in the country. It's a recent and troubling trend of criticizing judges and courts when there is disagreement with a decision.
Tuesday, August 09, 2005
The court is aware that, for many of the same reasons discussed above, the reversal of these convictions will be unpopular and even offensive to many citizens. However, the court is equally mindful that those same citizens cherish and support the freedoms they enjoy in this country that are unavailable to residents of Cuba. One of our most sacred freedoms is the right to be tried fairly in a noncoercive atmosphere. The court is cognizant that its judgment today will be received by those citizens with grave disappointment, but is equally confident of our shared commitment to scrupulously protect our freedoms. The Cuban-American community is a bastion of the traditional values that make America great. Included in those values are the rights of the accused criminal that insure fair trial. Thus, in the final analysis, we trust that any disappointment with our judgment in this case will be tempered and balanced by the recognition that we are a nation of laws in which every defendant, no matter how unpopular, must be
treated fairly. Our Constitution requires no less.
Please use the comments to express your thoughts on the case. Read coverage here, here and here.
Sunday, August 07, 2005
Saturday, August 06, 2005
Friday, August 05, 2005
Thursday, August 04, 2005
Wednesday, August 03, 2005
The 1981 act has now become scrutinized in the media, on the Internet and among attorneys in the wake of Teele’s suicide and DeFede’s almost instantaneous firing. Froomkin and Miami criminal defense attorney David Oscar Markus have been debating the legal points of the issue on their Web logs, with Markus arguing that the taping was legal. Froomkin insists that it wasn’t. . . .
Markus ag[ued] that DeFede lacked any criminal intent. “There is a well carved out exception in the law that if you do something out of necessity, you are not criminally liable for doing so,” Markus said. He cited the example of a driver exceeding the speed limit so he could quickly deliver a heart attack victim to the hospital. “If DeFede was taping for some better good, then I think he was doing the right thing and there was no criminal intent,” Markus said.
Very cool that the blog was cited! The rest of the article is excellent, citing Dan Gelber (DeFede's lawyer), Bruce Rogow, Michael Froomkin, and Thomas Julin.
Monday, August 01, 2005
"Who is Alex Acosta? That’s the question South Florida attorneys are asking about the new acting U.S. attorney for the Southern District of Florida.
“No one knows anything about him,” said Brian Tannebaum, president of the Miami chapter of the Florida Association of Criminal Defense Attorneys.
“I haven’t met him yet.” Kathleen Williams, the top federal public defender in South Florida, said, “I have never met the U.S. attorney. He has not practiced in the area, so none of us knows him.” . . .
But what South Florida attorneys do know is causing them some concern — namely that Acosta has never tried a case and has little experience in criminal law. “The word on the street is that he has no criminal law experience,” Tannebaum said. “I would like a U.S. attorney who has experience in criminal justice … who has some working knowledge of criminal justice."
If you know anything about him, please use the notes to fill us in (you can even be anonymous if you'd like).