Tuesday, May 30, 2006

Back to work

Hope all of you had a good weekend. The HEAT looked good. The weather wasn't horrible. And now the traffic is bearable since school is out...

In the Southern District, things are pretty quiet. If you have any news to report, please let me know. In the meantime, here is some news about Broward County Sheriff Ken Jenne who is being investigated by the feds. Both the Miami Herald and the Sun-Sentinel had articles about it this weekend.

Also, here is a great article about the Enron lawyering from the Washington Post.

Random thought: Remember back in high school on a Sunday night after a long weekend, the dread about having to get up early to go back to school the next day...

Friday, May 26, 2006

News and notes

Before I get out of here for the long (rainy) weekend, here are a couple news and notes from the Sun-Sentinel's Vanessa Blum:

1. Jose Padilla is asking to review classified material, which shouldn't be a problem in this case because it's material he supposedly provided to the feds. Nevertheless, the government is objecting. Here's the issue as framed by the article: "The materials at issue are written records and videotapes of the statements Padilla himself provided to interrogators during his lengthy military detention at a South Carolina Navy brig.All of which poses an unusual conundrum: Padilla's lawyers, who have security clearances, may review the material but cannot discuss it with their client because the information is classified. In a legal brief filed this week in Miami federal court, attorney Andrew Patel [and FPDs Michael Caruso, Tony Natale, and Orlando do Campo] argues that Padilla must be given access to the classified material in order to receive a fair trial."

2. The oath of office case was decided by Judge Middlebrooks, who "ruled that the oath of office in the village of Tequesta does not violate the U.S. Constitution by requiring public officeholders to swear to 'support, protect and defend' the federal and state governments." From the sound of the article and from what those who were present at the hearing told me, the councilman's argument -- by Richard Rosenthal -- was lively and very forceful even though he was facing a very uphill battle.

Have a great weekend...

Tuesday, May 23, 2006

Air Marshals to avoid prosecution

Michael Pasano and Paul Calli represent the air marshals who shot and killed a passenger. The marshals apparently will not be prosecuted.

Here are some snippets from the report:

On December 7, 2005, Mr. Rigoberto Alpizar and his wife boarded American Airlines Flight 924 from Miami International Airport to Orlando, Florida. Shortly thereafter, Mr. Alpizar abruptly traveled down the aisle toward the front of the plane passing Federal Air Marshals 1 and 2. The air marshals followed Mr. Alpizar onto the jetway. Federal Air Marshals 1 and 2 shot and killed Rigoberto Alpizar on the jetway connecting Gate #42 of Concourse D at Miami International Airport to an American Airlines airplane flight 924. Mr. Alpizar expired on the scene.

The shooting death of Mr. Alpizar, while tragic, is legally justified in light of the surrounding circumstances presented to the air marshals. It should be noted that both air marshals demonstrated remarkable restraint in dealing with Mr. Alpizar. Florida Statute §901.1505(2)(a) and (b) Federal Law Enforcement Officers; Powers, empowers federal officers engaged in the exercise of their federal duties to make a warrantless arrest of any person who commits a felony that involves violence. The statute further empowers them “[t]o use any force which the officer reasonably believes to be necessary to defend … himself or another from bodily harm while making the arrest or any force necessary… in arresting any felon fleeing from justice when the officer reasonably believes either that the fleeing felon poses a threat of death or serious physical harm to the officers or others or that the fleeing felon has committed a crime involving the infliction or threatened infliction of serious physical harm to another person.” When Mr. Alpizar ran onto the jetway stating that he had a bomb and threatened to detonate it, given that he had a backpack strapped to the front of his chest and failed to comply with commands to stop and desist, the air marshals had probable cause to arrest Mr. Alpizar for violations of Florida Statute: 1. §782.04(1) and (2) and §782.051: The attempted murder of the crew member and/or every passenger aboard American Airlines Flight 924 and/or in relative proximity to him, including those in the airport terminal, through a) aircraft piracy and/or b) the unlawful throwing, placing or discharging of a destructive device or bomb and/or c) the murder of another human being and/or d) the commission of a felony that is an act of terrorism or is in furtherance of an act of terrorism, all of which are forcible felonies pursuant to §776.08. 2. §790.161: Making, possessing or throwing projectile. Placing, or discharging any destructive device or attempt so to do, a forcible felony pursuant to §776.08. 3. §790.162: Threat to throw, project, place, or discharge any destructive device, a forcible felony pursuant to §776.08. 4. §790.163: False report about planting bomb, explosive, or weapon of mass destruction. 5. §775.30: Terrorism, a forcible felony pursuant to §776.08. Thus, under §901.1505 the air marshals could make a warrantless arrest of Mr. Alpizar because they reasonably believed he was committing, our would commit, multiple felonies involving violence in their presence. As such, they could use the force they thought necessary to defend themselves and others from bodily harm while making the arrest or in preventing Mr. Alpizar from fleeing because he reasonably appeared to pose a threat of death or serious physical harm to the marshals and others. In addition, under Florida Statute §776.012 Use of Force in Defense of Others, the air marshals could stand their ground and use deadly force because Mr. Alpizar’s actions reasonably conveyed a threat of imminent death or great bodily harm to themselves and others and served to prevent said harm or the imminent commission of a forcible felony as enumerated above. It is factually and legally irrelevant that some passengers did not hear Mr. Alpizar say anything about a bomb. It is clear that those persons toward the front of the aircraft did, as illustrated below. Mr. Alpizar Heard “bomb” Did not hear “bomb” Most notably, the person with the least motive to fabricate, Mr. Alpizar’s wife, admits that her husband said he had a bomb. She also affirmed that her husband failed to comply with F.A.M. 1’s and 2’s repeated commands. Furthermore, it is factually and legally irrelevant whether Mr. Alpizar actually had a bomb. The presence of a bomb would not convert an unjustified shooting into a justified one. Likewise, the absence of a bomb cannot convert a justified shooting into one that is unjustified. Under the same rationale, it is factually and legally irrelevant whether Mr. Alpizar actually suffered from a mental illness or whether he was suffering from an episode of said illness at the time of the shooting. It is factually and legally irrelevant that the air marshals could assume that Transportation Safety Administration personnel cleared Mr. Alpizar to enter the subject concourse, and, thus, posed no threat to persons or aircraft. The air marshal service exists as a contingency in tacit acknowledgement that those with lethal contraband and/or illegal purpose and intent may succeed in boarding an airliner. It is factually and legally irrelevant that Mr. Alpizar’s wife expressed aloud that her husband was sick. There is no evidence that the air marshals ever heard this statement. In fact, those passengers that did hear such comments agree that she made these comments near where she and Mr. Alpizar were seated and/or only after the shooting, but never near the air marshals. Even if the air marshals did, or should have heard, her statements, it would not alleviate the responsibility of the air marshals to deal quickly and decisively with the issue presented. In a post-September 11th and Madrid bombing world, the air marshals were faced with a man on an American Airlines flight clutching a backpack on his chest, claiming to have a bomb and threatening to detonate it while heading back toward the aircraft. Under these circumstances, there simply is no room for delay for the purposes of conducting the type of investigation that hindsight offers. Additionally, the statements by Mr. Alpizar’s wife, if heard by the marshals, are also subject to various interpretations. “He’s sick” is certainly not the type of statement that the ordinary person, given the circumstances, would automatically assume meant that Mr. Alpizar suffered from a mental illness. Furthermore, the air marshals could have interpreted the situation to be that the woman was acting in concert with the man to create the delay and indecisiveness necessary to accomplish their task. It is factually and legally irrelevant whether F.A.M.s 1 and 2 complied with their department’s policies and procedures. Whether the air marshals actions are justified or not in the State of Florida is independent of whether they abided by rules set by a federal agency. For this reason, the department’s policies and procedures, if any, were not evaluated.

Robles bond hearing

Louis Robles had his initial appearance and bond hearing today. Magistrate Judge Brown set a $1.25 million bond and appointed the Federal Defender's Office to represent Mr. Robles. Hector Flores accepted the appointment. Here is the AP article.

Louis Robles indicted

Louis Robles, the well-known personal injury lawyer, surrended to federal authorities yesterday. Apparently he did so before they could arrest him, which was supposed to occur early this morning. He's charged with defrauding more than $13 million from some 4,500 aging law clients ailing from asbestos exposure. Here's Jay Weaver's article in the Miami Herald.

Saturday, May 20, 2006

Scalia v. Feeney

Ann Althouse has this post about Justice Scalia rebuking big fan Tom Feeney.

[Justice Scalia]: "No one is more opposed to using foreign law than I am, but I'm darned if I think it's up to Congress to direct the Supreme Court how to make its decisions."Let's have a response from the congressional Scalia fans:

Rep. Tom Feeney (R-Fla.), who has co-sponsored a nonbinding resolution against the use of foreign law, said that Scalia's comments were "like being told your favorite baseball player disagrees with your approach to hitting."Scalia's "brilliance," Feeney said, "has not convinced a majority of the court. He needs our help, even if he doesn't want it."Feeney said that Scalia's remarks may have damaged chances for his resolution's passage, since they will probably be quoted by its opponents.

What a desperate baseball metaphor!

So Feeney thinks Scalia may have undercut his resolution a tad? Perhaps -- just perhaps -- his opponents will now quote his hero against him? How hilariously embarrassing for Feeney. I was only trying to help.

Love him or hate him, Scalia is always entertaining. Whether it's the Sicilian gesture or calling his fellow Justices idiots, he makes things interesting... Plus no rationale person could disagree with him on this one -- Congress has no place telling the Supreme Court how to do its job.

Thursday, May 18, 2006

Operation ____________

Based on the previous post, a FOB (friend of blog) has emailed with a contest suggestion: What is the best name of a takedown operation by the feds? We've had some pretty good ones in this District....

Wednesday, May 17, 2006

Operation Twin Oceans

"Federal authorities in Miami announced the takedown of a major international drug ring Wednesday following a three year investigation, known as Operation Twin Oceans.The global dragnet targeted a drug trafficking organization run by alleged cocaine kingpin Pablo Rayo-Montano. It resulted in more than 100 arrests, the capture of 52 tons of cocaine, and the seizure of roughly $70 million in assets, including three private islands off the coast of Panama and five homes in Broward County, said Justice Department officials." Here's the Sun-Sentinel article. Here's the indictment.

I always wonder who comes up with the names of these operations...

Sunday, May 14, 2006

FACDL-Miami Banquet

Last night was the Florida Association of Criminal Defense Lawyers (Miami Chapter) Annual Banquet at the Biltmore. It was a great event -- over 350 guests and over 55 judges attended. We kept the event much shorter this year, allowing the band to actually play some music. Judge Federico Moreno and Richard Klugh were honored. Judge Stan Blake gave a very nice tribute to our fallen judges -- Henry Leyte-Vidal, Manny Crespo, and Linda Dakis. Judge Mary Barzee swore in the officers and directors. And the pressing question of the night was whether Rumpole was in the room... Congrats to Brian Tannebaum on a great year. I'm honored and very humbled to be taking over the reigns this year and am looking forward to it.

Friday, May 12, 2006

3rd DCA Finalists

Some of our federal practioners have made the cut to be considered for an appointment to the Third DCA, our state appellate court for Miami. The six finalists are AUSA Barbara Lagoa, Judge Israel Reyes, AUSA Lisette Reid, AUSA Hugo Black III, Sanford Bohrer and Douglas Stein. The JNC has put together a great group for consideration. This morning's DBR article by Carl Jones explores what sorts of questions are appropriate during interviews. Apparently Ms. Lagoa was asked about whether she could balance motherhood (she recently had twins) and work. Unbelievable that people are still asking these sorts of questions. Shame on them. Here is the beginning of Jones' article:

The issue of improper questioning of judicial candidates emerged anew during this week’s Judicial Nominating Commission interviews of applicants for a 3rd District Court of Appeal seat. During interviews on Tuesday, JNC member Hector Lombana, a Coral Gables lawyer, asked candidate Barbara Lagoa, a federal prosecutor who recently gave birth to twins, whether she felt she could balance motherhood and the workload of serving on the 3rd DCA. The JNC chair, Ramon Abadin, later called the question “inappropriate.” The panel subsequently chose Lagoa as one of six finalists it recommended to Gov. Jeb Bush.

Who Should Argue?

Very interesting article about whether the "solo-practioner" criminal defense lawyer should step-aside to allow a "big firm" or "experienced advocate" to argue before the Supreme Court. In fact the Supreme Court oral argument session had 22 state criminal cases this year. It seems to me that more often that not, the client wants the attorney who has fought for him to argue before the Court, regardless of where the person works or where he went to school. The question remains, however, is the solo-practioner representing the best interest of his client if he has never argued before the Supreme Court? Are the experienced folk who are trying to "take-over" these cases carnivores or justified in trying to present more articulate and persuasive arguments before the Court? Questions to ponder....

Thursday, May 11, 2006

News and notes

1. Guilty on all counts for Masferrer. It was front page news for the Herald and the DBR. From what I understand, Judge Moore precluded the defense from the first trial. Start your appellate engines.

2. Fourth Circuit Judge Luttig resigned to go work at Boeing. I'm not a Luttig fan, but we have to pay our judges more or they are gonna keep leaving for higher paying gigs.

3. Tomorrow at noon is the filing deadline for state judges. Lots of coverage over at the Justice Building blog.

Tuesday, May 09, 2006

Take two...

The jury now has the case in United States v. Masferrer, the Hamilton Bank case. This is the second trial after the first jury couldn't reach a verdict. Ben Greenberg, Peter Outerbridge, and Andrew Levi prosecuted the case. Howard and Scott Srebnick defended.

Monday, May 08, 2006

Special Assesments...

Criminal lawyers are well familiar with special assesments. For every count of conviction, a defendant must pay a $100 special assesment.

Now, Thomas Tew is asking that all members of the Florida Bar pay a $178 special assesment to help pay back victims of Louis Robles. Julie Kay has all the details in her Justice Watch column today. Here is the intro:

The plaintiff attorney in a federal class action lawsuit against The Florida Bar is calling for a $178 special assessment on each of the Bar’s 77,000 members to reimburse victims of disbarred Miami attorney Louis Robles. In motions filed by Miami lawyer Thomas Tew, who represents about 4,000 former Robles asbestos clients, Tew claims that the Bar is being disingenuous in its arguments for refusing to come up with a $13.5 million lump sum payment to cover the clients for the money they lost to Robles. “The Florida Bar evidently believes that the price tag for administering the [Client Security Fund] legally, $178 per active member, is simply too high,” Tew wrote in a recent response to the Bar’s motion to dismiss. “As a result, the constitutional rights of over 4,000 citizens who were swindled by their [Bar-regulated] attorney… have been trampled.”

Tew's proposal strikes me as odd -- why should an entire profession be required to pay almost $200 per person (approx. $15 million) because someone else committed fraud. Thoughts?

Saturday, May 06, 2006

Cuban mafia leader to be released

Many of you have been following the "Cuban Mafia" trial in front of Judge Gold. This is the case that was moving at a snail's pace because the lead defendant, 76 year old Jose Miguel Battle Sr., is extremely sick and trial can only be held 3 days a week for a couple hours a day. In fact, a lazy boy chair with a massage function was installed in the courtroom for Battle to sit in. Most times he sleeps through the trial. Trial has been going on for at least 4 months, and was expected (with Battle) to last many more months (which will be followed by a trial on the severed co-defendants). The government finally offered Battle an deal he couldn't refuse. Plead guilty and get a bond with sentencing postponed indefinitely. Battle took it so he could, in his attorney Jack Blumenfeld's words, "die at home rather than in jail.''

Here is the intro from the Herald article by Jay Weaver on the plea:

Jose Miguel Battle Sr., el padrino of the Cuban mafia, has pleaded guilty in the middle of his Miami racketeering trial because of failing health. But it is doubtful the reputed Cuban-American godfather, 76, will live long enough to serve prison time. "He's just very sick,'' said his attorney, Jack Blumenfeld. ``This way, he can die at home rather than in jail.'' The elder Battle, a Bay of Pigs veteran, needs a wheelchair and suffers from kidney and liver failure, diabetes and cardiac problems.

Friday, May 05, 2006

Up in smoke...

A helpful reader points out that the Mexico drug laws don't appear to be going forward:

Fox backtracks, sends drug bill back
President Vicente Fox said he would ask Mexico's Congress to amend a drug decriminalization bill. The decision was praised by the White House, which had voiced serious concerns.
MEXICO CITY - (AP) -- U.S. officials welcomed Mexican President Vicente Fox's decision not to sign a drug decriminalization bill that some had warned could result in ''drug tourism'' in this country and increased availability of narcotics in American border communities.
Fox said Wednesday he was sending the bill back to Congress for changes, just one day after his office had said he would sign into law the measure, which would have dropped criminal penalties for possession of small amounts of marijuana, cocaine, heroin and other drugs.
The president will ask for corrections ``to make it absolutely clear in our country, the possession of drugs and their consumption are, and will continue to be, a criminal offense.''
The White House applauded Fox's decision. Presidential spokesman Scott McClellan said U.S. officials had expressed concerns about decriminalizing drugs. ''We welcome the steps that are being taken by President Fox,'' McClellan said Thursday.
San Diego Mayor Jerry Sanders, who had said he was ''appalled'' by the bill because it could increase drug availability north of the border, also said he was pleased by Fox's decision.
''I'm glad that he's listened to the many voices opposing the bill and made changes that will make good enforcement and not legalize drugs,'' Sanders said. ``We have been a partner with Mexico in fighting against illegal drugs, and this will only help in the long-term in that relationship.''
San Diego is a short drive from the border town of Tijuana, Mexico.
Presidential spokesman Rubén Aguilar said on Thursday that Fox had ''in no way'' yielded to U.S. pressure, but acknowledged that Mexico ``took into account the observations of U.S. authorities.''
Current Mexican law allows judges to drop charges if suspects can prove they are addicts and the quantity they were caught with is small enough to be considered ''for personal use,'' or if they are first-time offenders.
The new bill would have allowed ''consumers'' as well as addicts to have drugs, and delineated specific allowable quantities, which do not appear in the current law.
Under the law, consumers could have legally possessed up to 25 milligrams of heroin, 5 grams of marijuana (about one-fifth of an ounce, or about four joints), or 0.5 grams of cocaine -- the equivalent of about four ''lines,'' or half the standard street-sale quantity.

Wednesday, May 03, 2006

Criminalizing conduct overseas

Orin Kerr has this post about the legalization of drugs in Mexico:

Mexico to Legalize Possession of Small Amounts of Cocaine, Heroin, Marijuana and Other Drugs
by Orin Kerr

According to the Associated Press, President Vincente Fox of Mexico is set to sign a bill that will legalize the possession of ‘personal use’ amounts of marijuana, cocaine, heroin, and unnamed “other drugs.”
Millions of Americans live near the U.S-Mexico border. In light of that, the Mexico law raises an interesting question: Is it legal for an American citizen to travel to a foreign country where drugs are legal, to take the drugs in that country, and then to return to the United States? I don’t know, but I’m sure some readers do (purely out of academic interest, of course).

This issue is being litigated in this District in another forum -- sex with minors overseas. In some countries, the age of consent is 16 (in some it's less than that). And in many of these countries, prostitution is legal. Congress, however, has criminalized the act of intending to go overseas to engage in prostitution with a minor (as defined by the U.S.). The Federal Defender's Office has an appeal pending questioning whether Congress has the power to criminalize such an act (thought) where if the person carried out the act, he would be violating no law in the other country. Thoughts?

Monday, May 01, 2006

Motion for bond granted...

Here is the order on the motion discussed in the post below:

Docket Text: ORAL ORDER granting [41] Motion for bond; Bond set for Frank Jesus Onetti; Released on Own Recognizance with electronic monitoring and curfew conditions as to Frank Jesus Onetti. Entered by Judge John Antoon II on 5/1/2006. (DJD, )

The judge set a final hearing on the 2255 petition for September.

Congratulations to Marc Seitles on this victory. More importantly, good luck to Brenertt Onetti, the seven year old boy, who will have his father beside him when he has his surgery.

Sweeping too far?

Immigration sweeps and arrests have been in the news a lot the past few days. (Infrequent) Co-blogger Marc Seitles has decided to represent pro-bono a family who has been caught up in all of this. It is a very sad story about a seven year old boy who has leukemia and is scheduled for bone marrow surgery.

His father was picked up in the sweeps. Turns out that the dad previously pled guilty to having a false social security number (so he could work as a janitor). He did not show up to sentencing because his son was so sick, and he was sentenced in absentia to 6 months. Three years later he gets picked up, right before the boy is scheduled for surgery. On Friday, Seitles filed an emergency habeas motion trying to get the father a resentencing and a bond so that he can be with his son for the surgery. It's being heard today. Here's the Channel 4 story. (The Herald article incorrectly suggests that this is in front of immigration officials today; it's not -- it's back before the district judge).

Seitles is very active in the immigration-turned-criminal arena. On Friday, the DBR (J. Kay) ran an article on the new identity theft statute that the U.S. Attorney's office is using in false document cases, which carries a two year minimum mandatory sentence. Seitles was extensively quoted in the article about a different client of his subjected to this new statute...

I'll update the blog later today on the outcome of the hearing. It's scheduled at 1:30...