Sunday, July 30, 2006

Sentencing in Federal Land...

I typically try to keep this blog neutral and use it as a way to keep up on the exciting cases in this District. But following up on Marc's post below, I think there should be a lot more discussion about sentencing for federal offenses. The leading blog on sentencing is Sentencing Law and Policy by Douglas Berman, which is doing a great job highlighting many of these issues.

I really believe that if more regular people knew about how sentencing really occurs, they would be horrified. Marc highlights the acquitted conduct issue which is baffling to me (the actual 11th Circuit opinion which he references can be read here, and Judge Barkett's concurrence -- blasting the idea of using acquitted conduct at sentencing -- is definitely worth a read; here is Berman's take on this issue). Under the current state of the law, if you are charged with being a felon in possession of a firearm and murder, and a jury finds you not guilty of the murder and guilty of the felon in possession, then a sentencing judge could still sentence you as though you committed the murder. I'm not kidding.

There are many, many other troubling sentencing issues. Here's a few:
  • Why should crack offenders get sentenced on a 100-1 ratio to cocaine users?
  • Why are probation officers allowed to interpret the law and then advise judges of their opinions in an ex parte manner?
  • Why doesn't the Confrontation Clause apply with the same force at sentencing and trial?
  • Why does the preponderance standard apply at sentencing when at trial the standard is beyond a reasonable doubt?
  • Why don't the rules of evidence apply at sentencing?

And the Southern District just saw one of the worst sentencing problems (as serious as using acquitted conduct) -- punishing someone for exercising his right to a jury trial. One of our judges just sentenced Eduardo A. Masferrer to 30 years in prison on a white-collar offense. Thirty *years*! Thirty years ago I was three. In thirty years, Masferrer will be long gone. His co-defendants, who pleaded guilty, were sentenced to 28 months a piece. Ellen Podgor touches on the issue of being punished for proceeding to trial here.

The reason for the huge disparity between trial and plea is in part because some judges, after trial, hit the defendant with all of the guideline adjustments and enhancements possible whereas if there is a plea, both the prosecutor, probation officer, and judge are willing to negotiate those adjustments and enhancements away. This is especially evident in white collar cases like Masferrer's. It is even more true in weaker cases. In weaker cases, the prosecution really wants to bargain for lower sentences (so as not to lose at trial), increasing the risks of testing the government's case at a trial.

It's for this reason -- the enormous risks to defendants -- that trial numbers are way way down, especially in white-collar cases. The solution? I'm not sure. I suspect that our big sentencing changes (i.e. Apprendi/Blakely/Booker) aren't finished (and I'm sure that the Supreme Court will revisit the acquitted conduct issue)... But I never count on those sorts of changes. So my personal decision may sound a bit strange, but I think we (both sides) should just try more and more cases.

Anyway, enough for my Sunday rant. Back to the regular business of the blog....

Saturday, July 29, 2006

Aquitted Conduct

by: Marc David Seitles
In United States v. Faust, the Eleventh Circuit did not find a constitutional problem with enhancing a sentence based on acquitted conduct. While the Eleventh Circuit is not the only circuit to hold the same, it does seem to run contrary to the whole point of why we have trials in the first place. Indeed, I would bet that if you asked 100 people (non lawyers!) whether they could be sentenced for conduct where a jury concluded that he/she was "not guilty," 99 of those folk would say "no way, that's impossible." What do you think?

Notice of Appeal

A funny notice of appeal is making the rounds...

Wednesday, July 26, 2006

News and notes

Quick notes:

1. The National Association of Criminal Defense Lawyers is having their annual meeting here in Miami Beach. It started tonight and it goes through Saturday. The focus is on cross-examination. Tomorrow, legendary defense lawyer Larry Pozner is lecturing. On Friday, we tap the local talent: Albert Kreiger and Jeff Weiner.

2. The Miami 7 "terror" defendants were in Court today before Judge Lenard for the first time. She set trial for March 2007, with discovery to be exchanged by this fall. She also told the parties not to leak to the press.

3. Magistrate Judge Ted Klein's cases have been reassigned temporarily to Judge Torres. The order can be found here on the court's website. Judge Klein is in all of our thoughts.

Tuesday, July 25, 2006

"Vamos a Cuba" back on school shelves

Judge Alan Gold in an 89-page order said the School Board in banning 24 books "abused its discretion in a manner that violated the transcendent imperatives of the First Amendment.'' Here's the Herald article. And here's Matthew Pinzur's blog post covering the story and a teacher's take before the opinion came out.

Monday, July 24, 2006

Padilla lawyers home...

... according to this DBR article:

"Three defense attorneys in a Miami terrorism case who were trapped in war-torn Beirut while interviewing witnesses got tired of waiting for the U.S. Marines to evacuate them. So they hitched a ride on a Norwegian freighter. The attorneys — Orlando do Campo of the federal public defender’s office in Miami, Andrew Patel of New York City and William Swor of Detroit — along with an Arabic-speaking interpreter they hired arrived in Cyprus last Wednesday and caught flights home the next day."

Friday, July 21, 2006

"Ally of ringleader in Liberty City terrorist plot stalled group's plans"

I missed Vanessa Blum's article yesterday about the Miami 7 terror case with the headline above. Here's the intriguing intro to the article:

The arrival in South Florida of a Chicago man linked to the ringleader of a group accused of plotting to blow up the Sears Tower in Chicago and the FBI building in Miami spoiled the FBI's plans to follow the group longer, according to investigative records.Narseal Batiste, charged with conspiracy to support terrorism and wage war on the United States, summoned his spiritual leader, Sultan Khanbey, to South Florida in early April. His visit occurred just as the FBI prepared to introduce an undercover informant posing as an explosives expert from Europe.At the time, a separate FBI informant posing as an al-Qaida agent already had infiltrated the group and asked Batiste and his followers to participate in a fictional al-Qaida plot to bomb FBI buildings in five cities. Instead of accelerating those plans, Khanbey's arrival led to infighting that disbanded the group before the FBI could gather additional evidence about their willingness to carry out an attack.

What is it good for?

The DBR's Julie Kay reports today on 3 defense lawyers who were trapped in Lebanon. (UPDATE -- THE DBR HAS MADE THE ARTICLE PUBLICLY AVAILABLE HERE). Here's the intro:

Three defense attorneys in a Miami terrorism case who were trapped in Beirut by the conflict between Israel and Lebanon have been evacuated safely to Cyprus.Miami Assistant Federal Public Defender Orlando do Campo and two private lawyers, William Swor of Detroit and Andrew Patel of New York, traveled to Lebanon about three weeks ago. They were there to do research and take depositions in preparation for the scheduled federal trial in September of accused dirty bomber Jose Padilla and four other defendants before U.S. District Judge Marcia Cooke.The lawyers were stuck at a Beirut hotel, according to Swor’s secretary. They had departed for Beirut on July 2 and were supposed to return on July 14. But war broke out July 12 when Israel began its campaign to recover two kidnapped Israeli soldiers. Israel bombed the airport, trapping the lawyers and thousands of other Americans and Europeans in Lebanon.The lawyers had no choice but to stay on at the hotel while the U.S. and other governments made plans to evacuate their citizens.While he was trapped at the hotel, Swor sent daily e-mail updates to a list of colleagues from his laptop computer. A local lawyer who was on the e-mail list described some of Swor’s dispatches.“Day 1: We’re sipping piƱa coladas by the pool. The staff is wonderful.Day 2: We’ve moved into one room. The French got out. This is like Hurricane Katrina all over again — Bush can’t seem to coordinate these things.”At one point, Swor was at a local church while a priest was praying and a bomb went off nearby. The priest didn’t pause, he just prayed faster, Swor reported.Do Campo and Patel represent Padilla. Swor represents Kifah Jayyousi. Padilla, Jayyousi and Adham Hassoun — along with two co-defendants who are in the Middle East and will be tried in absentia — are charged with conspiring to commit terrorism and funding terrorist groups in Bosnia and the Middle East. All have pleaded not guilty.The three attorneys were rescued Wednesday and put on a cruise ship chartered for the rescue effort. They were taken to nearby Cyprus. From there they are expected to fly back to the United States.Sources said the three men may have been rescued by the Swedish government, along with a group of Swedes who also were trapped at the hotel.

Thursday, July 20, 2006

The Hokey Pokey

More wet-foot/dry-foot stuff going on in Miami re the 28 migrants who were attempting to get to the United States. Remember that last week the U.S. charged 3 people with smuggling. At their initial hearing, Assistant Federal Defender Bill Barzee asked that the 28 migrants be kept here as witnesses. The judge said yes. But the U.S. had a problem -- if they brought the Cuban migrants ashore, then they got to stay. So the government kept them on a boat a couple feet out... Today, that changed. According to the AP story:

In an unusual move, 28 Cuban migrants were brought to U.S. soil so they can serve as witnesses in a criminal case against the men accused of organizing their deadly smuggling voyage. The decision announced Thursday also means the migrants can stay permanently in the United States.

U.S. Attorney R. Alexander Acosta said the "unique circumstances" of the case led prosecutors to bring the group ashore under material witness warrants, which could require them to testify before a grand jury or in a trial.

"Smugglers often treat migrants as if they were human cargo," Acosta said. "This must stop."
The 28 migrants were brought to Key West early Wednesday after being detained aboard a Coast Guard cutter at sea since the July 8 chase, which resulted in the death of one Cuban woman. They were transferred to U.S. Customs and Border Protection officials and brought to Miami early Thursday, officials said.


U.S. Magistrate Judge Lurana Snow agreed Thursday to allow all the Cuban migrants in U.S. custody to be released to their relatives in Miami under the guarantee that the families will pay $25,000 per person, if they do not appear in court when necessary.

Tuesday, July 18, 2006

Judge Robert Pineiro on sentencing

Judge Robert Pineiro (or someone pretending to be him) posted the following provocative comment on Rumpole's blog. It's very long for a post, but I think it's worth reprinting (reblogging?) in full. Please feel free to comment on this post. Here it is (hat tip to Marc Seitles):


Judge Roberto M. Pineiro said...
Horace,You have posed some very interesting questions.In response I offer the attached excerpts from a speach I gave some years ago at FIU.Please, excuse my verbosity. You have accused "robed ones" of loving to pontificate so surely, this diatribe must be to your liking as proof positive of your allegations."In order to impose an appropriate and just sentence the judge must factor in the nature of the crime and the nature of individual who has been found guilty of that crime. When I first stated my legal career as an Assistant Dade County State Attorney, 25 years ago, during the dark ages, a judge had full discretion to impose whatever sentence she felt appropriate; the only limitation was the statutory maximum penalty. This gave the judge an opportunity to hand tailor what she thought would be the best sentence for a particular crime and for a particular defendant. The judge would be free to give whatever weight she felt various factors warranted. Without hindrance she could analyze various considerations such as:1.the severity of the crime2.the severity of the injury to the victim3.the injury caused to society by the defendant’s actions4.all the relevant circumstances of the crime 5.the convicts criminal record or lack thereof and his entire past history6.the victim’s need for restitution7.the possibility of rehabilitation8.the possible need to send a message to the community9.a host of other variablesThe law gave the judge full discretion free of any limitation in all cases but one–first degree murder. That crime had a penalty of life in prison with a minimum mandatory sentence of 25 years state prison. This meant that, regardless of any other consideration, the most lenient sentence a person convicted of this crime could receive was twenty-five years in state prison. A spouse who kills his partner to collect an insurance claim would face the same penalty as a spouse who pulls the plug on a terminally ill and suffering partner. In 1977 this was the only minimum mandatory sentence, or “min-man” in legal parlance, on the books.While a judge enjoyed great freedom to fashion the best possible sentence in his estimation this free wheeling discretion led to great disparity of sentences for similar crimes throughout the state. Judges were, in no way, required to try to give similar penalties for similar crimes. There could be great differences in sentencing policies between courtrooms just a few feet apart from each other not to mention differences between cities such as Miami or Tallahassee. In order to promote more uniform sentencing across the state and across the hallway for similar crimes, a laudable goal, the legislature in the early 1980's created sentencing guidelines–thereby bringing mathematics into the art and science of judging. Crimes were categorized by their severity and were given a certain number of points–the higher the number the more severe the crime. Points were also assessed for other factors such as: victim injury, prior convictions, legal restriction at the time of the offense, such as probation, and any additional offenses. All the defendant’s points were then totaled up on a score sheet and the defendant’s guideline sentencing range was computed. Lawyers, many of whom came to the law because they hated the math required for medical school, were shocked to discover they had to learn how to use a calculator. I still don’t know how to use one. That’s why I became a judge; I force the lawyers to use them for me. By law, these guidelines are mandatory and the court must not deviate upwards or downwards absent some very precise and codified circumstances.The sentencing guidelines did provide for more uniformity while allowing the court discretion to sentence within the sentencing range and to determine if any special circumstances exited for mitigation or aggravation of the sentence. The guidelines allowed judges a way of fashioning a sentence for similar crimes in line with other courtrooms around the state. Thus, defendants were treated more equally. The guidelines fashioned a good balance between allowing a judge full discretion to impose a punishment for one certain individual and providing for equal treatment of particular crimes across the state. The guidelines were so successful that the legislature decided that even more uniformity was in order. They felt that certain crimes were so serious that minimum-mandatories or min-mans should be imposed. In the mid eighties in our country and, more particularly, in our state the “cocaine cowboys” were in full cattle drive mode. Substitute coke and other killer drugs for the cows. Our state was drowning in a deluge of illegal and lethal drugs. The drug trafficking also fostered a bloodbath of drug related murders. The Medical Examiners office had to rent a refrigerated Burger King truck to house the overflow stiffs. Drastic measures were needed to stem the tide. The legislature turned to minimum mandatory statutes; keep the drug dealers in prison for a time certain and, at least, that one charming fellow would be out action for a while. One less criminal for law abiding citizens to worry about. Starting with the one min-man statute on the books in 1977 min-mans have proliferated amazingly since the mid 80's; it’s like bunnies high on viagra. We now have dozens of min-man statutes. They include:1.Possession of more than 25 lbs. of marijuana–3 years min-man2.Possession of more than 2,000 lbs. of marijuana–7 years min-man3.Possession of more that 10,000 lbs. of marijuana–15 years min-man4.Possession of more than 28 grams of cocaine–3 years min-man5.Possession of more than 200 grams of cocaine–7 years min-man6.Possession of more than 400 grams of cocaine–15 years min-man7.Possession of more than 150 kilos of cocaine–Life min-manThere are also min-mans for possession of other drugs. The preceding list is just some examples. The court has no discretion, whatsoever, to impose a lesser sentence. The mid level coke dealer in possession of 199 grams of cocaine faces the same min-man as the mule who swallows balloons filled with 29 grams of cocaine. This is where the persuasion and mediation and the uncommon sense of judging comes in–trying to help convince the prosecution that, perhaps, the equities of a particular case or defendant require a more lenient resolution and convincing the defendant that, if found guilty, the prosecution is in the driver’s seat, so it may be in his best interests to cut his loses and take the state’s plea offer.Interestingly enough, while denying the judge, the elected official ultimately responsible to the electorate, the discretion for leniency the legislature gifted it to the State Attorney’s Office. In actuality, a prosecutor just a few years out of law school is in control of the min-man sentence, as opposed to a veteran jurist with decades of experience and with well earned grey hairs. How does the prosecution exercise it’s discretion to waive the minimum mandatory sentence? By law, the prosecution may waive the min-man if the defendant provides “substantial assistance in the identification, arrest, or conviction of any of that person’s accomplices, accessories, co-conspirators or principals or of any other person engaged in trafficking in controlled substances”. Substantial assistance can, in the first place, be provided by, in effect, ratting out your running buddies; your partners in crime. Well and good, you turn in other criminals who have already committed a crime. Certainly, this is of great benefit to society–some more bad guys off the street equals less crime being committed. However, there is a second way of providing substantial assistance. You can assist in the arrest or conviction of “any other person engaged in trafficking in control substances.” Basically, you will be turning in other people who are not your present partners is crime. How this works is that the police go on a fishing expedition trolling you as the bait. You become a police confidential informant, a C. I., and sent out with instructions to make provable cases for them. You are asked to commit crimes with the intention of arresting future criminals. Some plea agreements call for the informant to bring in a certain number of “fish” and of a certain weight. If you do not succeed, then do not pass go and go to prison for your minimum mandatory sentence. However, if you succeed then you are off the hook. You go free and your fish goes to jail; that is unless he too earns his C. I. wings and goes on the prowl, looking for his own catch to turn in. What if you actually do really, really well, better than expected–hey, lets give you permanent employment and start paying you a bonus for future provable cases. We’ll put you on commission. Who says crime does not pay? You have an untrained, highly motivated and proven bad guy engaging in crime with the court’s blessing. There have been notorious incidents where some of these valued confidential informants have committed perjury, have entrapped otherwise honest citizens; one especially infamous female informant traded sexual favors to help set up cases. Prostitution on behalf of law enforcement may not be the most laudable means of crime prevention. This manner of substantial assistance has become so unsavory that I refuse to accept substantial performance pleas involving this second type of assistance.Regardless of the of type of substantial assistance provided, what type of criminal can provide it? The one time dealer who sees an opportunity to make a quick buck, perhaps at the suggestion, maybe even the urging, of a confidential informant? The moronic, desperate mule who is so behind the 8 ball that he would actually swallow balloons filled with poison? The bad guy who, not only, talks the talk, but who also walks the walk of the certified, no-good, down and dirty, poison pedaling scum of a drug dealer? If number three is your final answer, then you’re ready to go on to the next round. Yes, folks the guy most people would want off the streets in a big way has a new lease on life and has been reincarnated as Officer Friendly. Yes, this is the man who enjoys the state’s leniency–the one who least deserves it. The one time dealer knows very little and can’t help the cops. The mule, he’s at the very bottom of the drug dealing totem pole. All he can do is give the name of the person who gave him the drugs, in another country. The prosecution is not in agreement with Jesus Christ’s praise of the old widow who gave one coin to the temple because it was all she had. They’d rather deal with the certified drug dealers who can provide them with lots of gold in the form of substantial assistance. There are other minimum mandatory penalties that apply based upon the geographical situs of a particular crime. If you are in possession of a controlled substance with intent to sell or deliver and are a certain distance from certain facilities, then some min-mans apply. Possession with intent to sell or deliver can be proven to a jury by the amount and packaging of the drugs in your possession. Drug dealers tend to sell drugs in small individualized plastic bags or tin foil. The problem is that drug buyers tend to buy drugs in small individualized plastic bags or tin foil, because that is how dealers sell them. So, how do you differentiate the seller from the buyer? It’s a judgement call for the jury.If you are in possession of a controlled substance with intent to sell or deliver and are within a 1,000 feet of a house of worship, or within a 1000 feet of a child care facility, or within a 1,000 feet of a public or private elementary, middle or secondary school, or within a 1,000 feet of a convenience store, or within 200 feet of a private or public college or university, or within 200 feet of a public park, or within 200 feet of a public housing facility then you face a minimum mandatory penalty of, no questions asked, 3 years state prison. Can any one of you, please, tell me where I can find a place in Miami that is not within the proscribed boundaries of the aforementioned facilities? Unless the state can be persuaded to treat you with leniency, you’ll do your 3 years in the slammer, even if you are an honor student with a drug problem, even if you beg for drug treatment, even if you are a decorated veteran with a “jones” for heroin caused by war wounds, even if you didn’t know that the 7 Eleven was only 999 feet away and you’d never been to it anyway. You are still at the mercy of the state. Certainly, in the aforementioned circumstances you are bound to get some leeway, but you are not legally entitled to it. And well, who knows?You say you’ll take it to the jury. Surely six good people from our community will see you are not really a bad guy; that you’ve never even been arrested before, and give you a break. They won’t find you guilty and send you away for 3 years, day for day, when they find out about how good you are and about how you were addicted because you served our country in war and how unfair the state is being to you. You’re lawyer will tell them to find you guilty of a lesser charge so that the min-mans don’t apply. Wrong. The jury will not find out that you’ve never been arrested before. It is against the law for them to do so. The jury will not find out you were addicted because of your war wounds. The evidence code says it’s not relevant and it is disallowed. The jury will not find out you are facing a minimum mandatory sentence of three years. This too is illegal and will not be allowed in evidence for the jury to hear. The jury is never told the penalty you are facing. Your lawyer will not be able to argue for a finding of guilt to a lesser charge because of the min-mans. The court is legally required to instruct the jury that if there is a finding of guilt it must be for the highest offense which has been proven beyond a reasonable doubt. All of the foregoing will happen because, while I may think your cause is just and that you are deserving of a break, I am a sworn officer of the law and I will follow the law whether I like it or not. My personal feelings have absolutely no say in how I am duty bound to follow the laws by which we must all abide . Absent the state’s magnanimity, you’re goose is cooked... The manic proliferation of these minimum mandatory statutes put the courts on the sidelines in the fashioning of an appropriate sentence. The legislature has let the pendulum swing too much toward lack of discretion and is creating, in many cases, cookie cutter justice. The legislature is to be lauded for giving judges the discretion to upwardly depart in the cases of career criminals and habitual violent offenders to the extent that they can be sentenced to even beyond the statutory maximums. Hopefully, in the future, greater discretion will be exercised in carving out further exceptions to the use of the reasoned discretion of the people’s elected judges. After all, if a judge is doing a poor job by sentencing too leniently, then exercise your right to vote and kick the bum out of office."Judge Roberto M. Pineiro

Bankest trial coming to a close

The intro from today's DBR article about the Bankest closings:

"E.S. Bankest, the dismantled Miami factoring company accused of obtaining $190 million through fraud, was “basically an empty shell” that survived on lies and deceit for the better part of a decade, federal prosecutors told jurors Monday. After a four-month trial before U.S. District Judge Adalberto Jordan, prosecutors began closing arguments in what the U.S. government calls the largest bank fraud case in Miami history. Other prosecutors, and then defense attorneys, are scheduled to deliver closing arguments through the end of Wednesday before jurors get the case. On trial are brothers Eduardo and Hector Orlansky and other principals of E.S. Bankest. They are accused by the government of committing multiple counts of bank fraud, wire fraud and conspiracy. According to an indictment handed up in December 2003, nine defendants collaborated to inflate the value of collateral for loans obtained from Espirito Santo Bank of Florida. The government accuses the Orlansky brothers, who headed E.S. Bankest, and two other former executives, R. Peter Stanham and Ariadna Puerto, of multiple counts of money laundering and bank fraud. “Bankest companies were basically an empty shell and they grew the company that way for 10 years — with air,” Assistant U.S. Attorney Caroline Heck Miller told jurors in U.S. District Court in Miami."

Monday, July 17, 2006

Ted Klein

I haven't really heard any news on Judge Klein's condition. I wanted to share this nice (anonymous) comment, which was posted tonight:

Anonymous said...
Magistrate Klein (who as we all know should be US District Court Judge Klein), needs our thoughts and prayers. He is one of the finest jurists this court has ever seen. He is exceptionally smart, always prepared, asks great questions and is totally fair and just. He also has a great personality and can tell some great jokes.He is admired by so many. He is loved by so many.Let's hope his daily running and healthy lifestyle pulls him through this terrible illness.
9:46 PM

Interesting hearing on Padilla

More developments in the Jose Padilla case emerged from a pretrial hearing on Padilla's motion to suppress. Apparently he was first stopped on the pretext that he had over $10,000 in cash at the airport but had only declared $8,000. Law enforcement was hiding in a closet because they didn't want to spook him, waiting to confront him about a possible terror attack... The hearing continues tomorrow in front of Magistrate Judge Stephen T. Brown. The whole AP article is here. Here's a snippet:

Russell Fincher, an agent in the FBI's New York-based unit investigating Osama bin Laden, testified at a pretrial hearing in Padilla's terrorism support case that he traveled to Chicago's O'Hare International Airport in May 2002. He wanted to meet Padilla's plane so that he might uncover al-Qaida's plans.

"I believed there was a terrorist act that was going to happen. I believed he had knowledge of that. I needed his help," Fincher said of Padilla. "I didn't want to arrest him."
During an interview over nearly five hours in an airport conference room, Fincher said Padilla talked freely about his criminal past as a Chicago gang member, his conversion to Islam and his travels in Egypt, Pakistan and elsewhere. But when his story didn't add up, Fincher said he confronted Padilla with terrorist allegations and asked if he would testify before a grand jury about his purported al-Qaida connections.

"He stood up and told me the interview was over and it was time for him to go," Fincher said.
Padilla was then arrested on a material witness warrant, which allows a person with direct knowledge of alleged criminal acts to be taken into custody. A month later, President Bush designated him an "enemy combatant" and he was placed in military custody. He remained there until November, when he was charged in an existing Miami case.

Monday's hearing concerned whether Padilla was officially in law enforcement custody during the interview and, if so, whether he was properly advised of his rights as a suspect. Padilla's lawyers said his statements should be barred from trial if those rights were violated.

Sunday, July 16, 2006

"How FBI moles snared terror suspects"

That's the headline of today's Herald article about the now infamous Miami 7 "terror" case. It has many more details than previous press acounts. It explains the initial meeting between the lead defendant, Narseal Batiste, and the FBI this way:

Batiste, a struggling contractor born in Chicago who headed the local branch here of a Moorish religious sect, became friendly with the store's owner after learning that he was going to Yemen on vacation in October. The store owner happened to be an FBI informant.
After the shopkeeper's return, Batiste, with two of his followers present, laid out his vision. Batiste said that he was a member of the Moorish Science Temple -- a sect that blends Christianity, Judaism and Islam -- and that its members were entitled to their own government within the United States. Violence was the only way, he said, and he explained to the store owner that only extreme Islamic groups, such as al Qaeda, could help.
The shopkeeper told the FBI of Batiste's plans. For FBI agents, the threat was serious enough to have him introduce Batiste to another informant, an Arabic man with a thick accent.
The second man was Mohammad, a friend of the store owner's uncle. Batiste pressed the shopkeeper to find out whether the man knew al Qaeda leader Osama bin Laden, but was told that question was off limits.


So far the press has been very pro-defendant. This article is not at all.

Friday, July 14, 2006

Get well

Apparently Magistrate Judge Theodore Klein is seriously ill. We wish him the very best and hope for a speedy recovery.

Wednesday, July 12, 2006

Justice Kennedy Speaks Out Against Lengthy Sentences

Once again Justice Kennedy has spoken - federal sentences are too harsh. Period. His latest comments came from a speech at the Ninth Circuit Conference this week.

"If an 18-year-old is growing marijuana for a friend, that's distribution," the Sacramento native told judges, lawyers and court officials at the conference, held at the Hyatt Regency. "If he has his father's .22 rifle, that's a firearm. That will get 15 years. "Did you know what 15 years was when you were 18? I didn't when I was 18."


Justice Kennedy also spoke out against the lobbying efforts of correctional officers' unions adding: "The fact that the prison guards' association lobbies for higher penalties is sick," Justice Kennedy said.

I guess the question is what can be done? It appears, at least thus far, that Justice Kennedy's bark is louder than his bite? He has yet to author an opinion with the same rhetoric of his recent speeches. Whatever one's beliefs are regarding the length of federal sentences, it appears that this debate is far from over.

Tuesday, July 11, 2006

Cocaine Cowboy movie

Readers of this blog might be interested in Alfred Spellman's and Billy Corben's new documentary, Cocaine Cowboys. Check out the profile in the July issue of Ocean Drive and their
blog.

Monday, July 10, 2006

News and notes

Lots of good stuff in the Review today:

1. Padilla news (subscription required) from Julie Kay: "Defense attorneys involved in the scheduled trial of Jose Padilla and four co-defendants accused of plotting and supporting terrorism are sparing no expense in preparing their defense, including traveling to the Middle East to interview potential witnesses. William Swor, the Detroit lawyer for Kifah Jayyousi, is currently in the Middle East, and Kenneth Swartz, the Miami lawyer who represents Adham Hassoun, is planning on traveling to Jordan and Egypt later this month, according to sources involved in the case. Swartz declined to comment, and Swor was unavailable. It’s unclear whether lawyers for key defendant Padilla also will be traveling to the Middle East. Calls to Andrew Patel of New York and Michael Caruso of the federal public defender’s office in Miami were not returned by deadline. Also last week, Padilla’s lawyers asked the government to initiate a request for “evidence and assistance” from Egypt. No further information about what information Padilla’s lawyers are trying to obtain was available in the court file. Padilla’s attorneys asked for the request to be sealed, so the prosecution team would not find out about it. U.S. District Judge Marcia Cooke denied the request."

2. Former U.S. Attorney news (subscription required) by Carl Jones: Marcos Jiminez is stirring the pot -- "Former U.S. Attorney Marcos Jimenez has filed an unusual petition on behalf of the Miami-Dade Judicial Nominating Commission asking the Florida Supreme Court to override the Legislature and allow the governor to appoint 55 new judges. When the Legislature created the new positions in May it specifically required the judges be elected. Jimenez and the 11th Judicial Circuit JNC — whose nine members were all appointed by Gov. Jeb Bush — asks that the judgeships be filled by appointment by the end of this year. That would mean that Gov. Bush would get to appoint the new judges before he leaves office in early 2007. The surprise move seeks to reverse a delicate compromise reached last year between Republicans and Democrats. Last year, the Republican-controlled Legislature created 55 new judgeships to be filled through appointment by the Republican governor. The deal with the Democrats was that the judgeships created in 2006 would be filled through election. The seats created this year included 35 circuit court judgeships and 20 county court judgeships."

Interesting issue here. Any thoughts?

News and notes

Lots of good stuff in the Review today:

1. Padilla news (subscription required) from Julie Kay: "Defense attorneys involved in the scheduled trial of Jose Padilla and four co-defendants accused of plotting and supporting terrorism are sparing no expense in preparing their defense, including traveling to the Middle East to interview potential witnesses. William Swor, the Detroit lawyer for Kifah Jayyousi, is currently in the Middle East, and Kenneth Swartz, the Miami lawyer who represents Adham Hassoun, is planning on traveling to Jordan and Egypt later this month, according to sources involved in the case. Swartz declined to comment, and Swor was unavailable. It’s unclear whether lawyers for key defendant Padilla also will be traveling to the Middle East. Calls to Andrew Patel of New York and Michael Caruso of the federal public defender’s office in Miami were not returned by deadline. Also last week, Padilla’s lawyers asked the government to initiate a request for “evidence and assistance” from Egypt. No further information about what information Padilla’s lawyers are trying to obtain was available in the court file. Padilla’s attorneys asked for the request to be sealed, so the prosecution team would not find out about it. U.S. District Judge Marcia Cooke denied the request."

2. Former U.S. Attorney news (subscription required) by Carl Jones: Marcos Jiminez is stirring the pot -- "Former U.S. Attorney Marcos Jimenez has filed an unusual petition on behalf of the Miami-Dade Judicial Nominating Commission asking the Florida Supreme Court to override the Legislature and allow the governor to appoint 55 new judges. When the Legislature created the new positions in May it specifically required the judges be elected. Jimenez and the 11th Judicial Circuit JNC — whose nine members were all appointed by Gov. Jeb Bush — asks that the judgeships be filled by appointment by the end of this year. That would mean that Gov. Bush would get to appoint the new judges before he leaves office in early 2007. The surprise move seeks to reverse a delicate compromise reached last year between Republicans and Democrats. Last year, the Republican-controlled Legislature created 55 new judgeships to be filled through appointment by the Republican governor. The deal with the Democrats was that the judgeships created in 2006 would be filled through election. The seats created this year included 35 circuit court judgeships and 20 county court judgeships."

Interesting issue here. Any thoughts?

Friday, July 07, 2006

No bond for old Mafia suspects

Here's the intro from the Sun-Sentinel article on the bond denial in the South Florida Genovese crime family:

A federal judge denied bond Friday to the alleged boss of the Genovese crime family's South Florida operations and three others awaiting trial on charges of extortion, robbery, and money laundering. He will consider bond for another man.U.S. Magistrate Judge Barry Seltzer denied bail for Renaldi ``Ray'' Ruggiero, 72, whom federal prosecutors identified as a Genovese capo or captain, and three of his co-defendants--Joseph Dennis Colasacco, 54, Charles Steinberg, 30, and Mitchell Weissman, 54, said Weissman's attorney John Contini.

Seltzer, prosecutors and attorneys for another defendant, Francis O'Donnell, 47, will continue negotiations for his release on Monday, said Theresa Van Vliet, one of his attorneys. O'Donnell is the head of Coach Industries Group, a financial services company.

Wednesday, July 05, 2006

Ken Lay is not a convicted criminal

Because he died before his direct appeal was final, Ken Lay's conviction is technically abated, which means that his entire criminal case is treated as though it never existed. (The conviction and sentence of a defendant is vacated when he dies if his appeal is yet to be decided. See Schreiber v. Sharpless, 110 U.S. 76,80 (1884)). My first case at the Federal Defender's office involved this issue, albiet in a different way.

UPDATE -- White Collar Crime Blog has more about the law in the Fifth Circuit:

In a recent Fifth Circuit decision, United States v. Estate of Parsons, 367 F.3d 409 (5th Cir. 2004), the court explained that "the appeal does not just disappear, and the case is not merely dismissed. Instead, everything associated with the case is extinguished, leaving the defendant as if he had never been indicted or convicted." In Parsons, the court vacated a forfeiture order, which means that the government's forfeiture claim against Lay for $43.5 million will be dismissed. The Fifth Circuit explained the rationale for the rule: "The finality principle reasons that the state should not label one as guilty until he has exhausted his opportunity to appeal. The punishment principle asserts that the state should not punish a dead person or his estate." An interesting question is whether one can still describe Lay as having been convicted of a crime, at least in a technical sense, because the law no longer recognizes there having been any criminal case initiated against him.

Bail denied to Miami seven

Magistrate Judge Bandstra denied bond to the suspects charged with plotting to bomb the Sears Tower. Here's the report from Vanessa Blum:


MIAMI - U.S. Magistrate Judge Ted Bandstra on Wednesday denied bond for six of the seven South Florida men arrested last month on charges they planned to bomb the Sears Tower in Chicago and the FBI building in Miami.

Bandstra called the allegations "serious" and said no conditions of release could ensure the safety of the community.

``The charges against each of the defendants are serious charges and constitute counts of violence,'' Bandstra stated, adding that it was ``not relevant that the plans appear to be beyond the abilities of the defendants.''

A lawyer for the plot's alleged ringleader Narseal Batiste called the government's case a "set-up."

"This case is essentially something the government set up to knock it down," said attorney John Wylie.

Tuesday, July 04, 2006

Happy 4th of July...

... and happy one year birthday to the Southern District of Florida Blog.

We turned one this weekend. This was the first post, urging President Bush to appoint a Floridian to the Supreme Court. I'm shocked that no one listened! But since then, our readership has grown. We're averaging over 175 hits a day during the week. And we've had 32,322 total visits as of this post. Pretty incredible.

And since that first post, our Supreme Court has dramatically changed and the Southern District has continued to get the biggest and best cases in the country. On a personal note, I've started my own firm and have added another child to the Markus clan... It's been a fun year.

Thanks to everyone who reads, emails me with tips, and posts comments.

Saturday, July 01, 2006

Miami 7 stuff

The motion to disqualify the FPD was denied. For now, John Wylie is still in the case.

The bond hearing was continued until Wednesday... Here are the details of what happened so far. Looks a little to me like the Government was pre-trying its case because of the bad press it has been getting. I've never seen a bond hearing where the Government shows so many of its cards. Typically the strategy is to show as little as possible because the discovery rules are so restrictive. But here where there have been so many questions about this case, the Government must have figured that it needed to present its case now. The defense gets to present its side on Wedndesday...