Thursday, November 30, 2006

Sal Magluta resentenced

Sal Magluta was resented yesterday to 195 years in prison. The case was set for resentencing becasue the 11th Circuit had reversed one of his counts of conviction. Magluta had asked for a de novo sentencing hearing, which the judge denied. There were also some late fireworks as Magluta's lawyers filed a motion to recuse the night before sentencing, which was also denied. Here is the Herald article about the sentencing.

This decision will certainly be appealed. It will be interesting to see how the 11th Circuit deals with the Booker issues on appeal where Willie Falcon, Magluta's partner, was sentenced to 20 years as part of a deal and Magluta got 195 years for proceeding to trial. Is this reasonable?

Here is an op-ed that Milton Hirsch and I wrote, which was published in the Herald, after Magluta's first sentencing hearing -- but before the Supreme Court breathed life back into the 6th Amendment in Blakely and Booker:

Miami's last cocaine cowboy rode into the sunset last week. Salvador Magluta, considered one of Miami's most notorious narcotics dealers, was prosecuted in federal court for having witnesses murdered and for laundering millions of dollars in drug proceeds. A federal judge then punished Magluta with a 205-year sentence. Magluta, 48, will live in prison till the day he dies. But Magluta was never convicted of the homicides for which he was sentenced. A jury of his peers found Magluta not guilty of the murders, and guilty only of the nonviolent money-laundering charges -- crimes that carry a maximum sentence of 20 years.

The jury's verdict notwithstanding, the judge decided that Magluta was responsible for the homicides and sentenced him accordingly. In a watershed 1997 opinion, the U.S. Supreme Court ruled that federal judges, in imposing sentence, may ignore jury verdicts of acquittal and determine whether defendants have done wrong. The Herald applauded the punishment, and the new U.S. attorney claimed that such a sentence sends a message about justice. It does indeed: The message is that prosecutors can lose and still win, that a jury no longer stands between an accused American and a life sentence.

The jury is a special American institution and has been, until recently, the heart and soul of our criminal-justice system. The jury stands between arbitrary rule and the citizenry, and is a shield against overzealous government. Our Founding Fathers recognized that even an independent judiciary was not enough to protect us against abuses of power. They didn't trust judges to mete out justice on questions of guilt or innocence. To determine the answers to these questions, the Founders wanted the commonsense judgment of citizens. Acting upon the court's 1997 ruling, prosecutors and judges have found ways to end-run jury verdicts and the jury system itself. Judges sentence defendants convicted of lesser charges as though they had committed other, more-serious crimes, even in the face of a not-guilty verdict by a jury. Based on inconclusive evidence, or even rejected evidence, a judge is free to send a man to jail for life. Not guilty doesn't mean anything anymore. Conviction is optional. It is the jury verdict that separates America's legal system from that of so many other nations. All countries, even the worst, have laws, judges, lawyers. Most have trials -- or what are called trials -- and many even have juries. But in too many of those countries a verdict is a foregone conclusion: the prosecution having indicted, the jury is simply a rubber stamp. In Magluta's case the jury's verdict was treated as irrelevant, and because it was Magluta no one cared.

As Justice Felix Frankfurter famously warned: ``It is easy to make light of insistence of scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.''

Monday, November 27, 2006

Back to work

Welcome back to work after the long weekend!
Not much going on in the Southern District of Florida. If you have any news, please email me: domarkus -- at -- hotmail dot com.
In the meantime, here's an interesting article from the weekend about Justice Scalia, "the civil libertarian" by Scott Turow. One of the money lines: "Justice Scalia, especially in the last decade, has frequently taken an expansive view of the Bill of Rights, thus supporting defendants in criminal cases."
Will Alito and Roberts follow suit?

Wednesday, November 22, 2006

Turkey day news and notes

Some of the commenters are expressing frustration that I didn't post the verdict in the Jack Maxwell trial. In my defense, I was traveling over the weekend and just missed the coverage in the Herald, which was buried in the local section. BTW, it was guilty on all counts. Sheesh!

In another case we've been covering, Judge D has ruled (in a 14 page Order) on the Government's motion to have its witnesses wear "light disguises." He splits the baby, allowing the light disguises but requiring the feds to turn over the names of the witnesses and allowing cross-examination on the observation posts (which the Government did not want). I can't wait to see what they actually wear to Court. The Order says they can wear makeup, wigs, and facial hair -- as long as the jurors can see their eyes...

Finally, a reader who attended the potrait hanging for former AG Ashcroft writes in from the road: "...[T]he event was very nice, and it was interesting to see Gen. Aschroft sitting in the Great Hall directly underneath the nude statute he had covered up during his tenure with large drapes. The tall statute of the woman on the right of the stage has one breast exposed (a la Janet Jackson). When the current AG introduced Aschcroft, he was pretty funny about it. He said that the contrasts between him and the former AG were pretty obvious, starting off with: 'You know, several members of the media have commented on the different styles between John and me. And I suppose that's true. For example, John likes blue drapes. I happen to like a more open look.'"

Happy Thanksgiving

This is one of the few working days this year where there is no traffic on US1.... I'm not even in town to enjoy it. I hope all of you have a Happy Thanksgiving. If you are looking for a little reading: 1) The Government filed its appellate brief if Padilla; and 2) the trial started for the two brothers in the American Maritime Officers union case and only Sonnett gave opening statement while Haddad reserved. Last Thanksgiving, we were talking about similar items.

Tuesday, November 21, 2006

Power family

Other blogs write about their power couples, so I figured it's fair game to give a shout out to one of our own. Paul Huck Jr. was just named general counsel to incoming Governor Charlie Crist. Huck's wife is recently appointed Third DCA judge Barbara Lagoa. Dad -- who happens to be Federal District Judge Paul C. Huck (pictured to the left) -- must be proud...

Here is Huck Jr.'s bio from the article linked above:
"Paul Huck, General Counsel: Mr. Huck joined the Office of the Attorney General in 2003, serving as the Regional Deputy for South Florida and later as Deputy Attorney General. Prior to joining the Attorney General’s Office, he was a shareholder in the Miami law firm of Kenny Nachwalter. Mr. Huck is a graduate of Princeton University and Harvard Law School."

Trust us...

Magistrate Judge Barry Garber recommended that the motion to suppress the confession of the FIU Professor/Cuban agent be denied and that the motion to dismiss be denied (Jay Weaver, Herald). The defense contended that government agents had promised Carlos Alvarez that if he talked to them, they would not prosecute. That promise was not enough to suppress or dismiss according to the magistrate judge. Alvarez has ten days to appeal to the district court.

Sunday, November 19, 2006

Trial time

Vanessa Blum has the story about a trial starting Monday morning involving the leaders of a Dania Beach-based union, American Maritime Officers. The two criminal defense lawyers, Neal Sonnett and Fred Haddad, represent the defendants. I think these are two of the best trial lawyers in Florida, and it will be fun to see them try a case together because their styles are so different... Anyone who catches some of the trial, please feel free to post a comment.

Friday, November 17, 2006

No joke...


Doe, A Deer, A Female Deer = Sexytime!

Bestiality-oriented necrophiliacs who live in Wisconsin, we bring you some potentially good news. In the next few weeks, a court could hold that you may have your way with whatever animals you please -- as long as they're dead.

From The Smoking Gun:

Meet Bryan James Hathaway, alleged venison lover. The Wisconsin man, 20, is facing charges that he had sex last month with a dead deer. Hathaway, who previously has served time for killing a horse he intended to sexually assault, allegedly found the deer in a ditch alongside a roadway.

Now Hathaway's lawyer has filed a court motion (a copy of which you'll find here) arguing that since the animal was already dead, Hathaway should not face a misdemeanor rap of sexual gratification with an animal. "The statute does not prohibit one from having sex with a carcass," lawyer Fredric Anderson wrote in the motion filed in Douglas County Circuit Court.

Anderson isn't trying to be a wise-ass; he has a plausible argument of statutory interpretation. Here's an account of the court hearing on the motion, from The Daily Telegram:

The Webster’s dictionary defines “animal” as “any of a kingdom of living beings,” Anderson said. If you include carcasses in that definition, he said, “you really go down a slippery slope with absurd results.”

Anderson argued: When does a turkey cease to be an animal? When it is dead? When it is wrapped in plastic packaging in the freezer? When it is served, fully cooked?

Sounds persuasive to us. So how did the prosecution respond? Well, they got a little Platonic on defendant's ass:

“The common and ordinary meaning of a word can be found in how people actually use the word,” Boughner wrote in his response to the motion.
When a person’s pet dog dies, [Assistant District Attorney James Boughner argued], the person still refers to the dog as his or her dog, not a carcass.
“It stays a dog for some time,” Boughner said.... “It did not lose its essence as a deer, an animal, when it died,” he said.

We hope the defendant prevails. 'Cause we're really looking forward to Thanksgiving.

Can You Get Dear With A Dead Deer? [The Smoking Gun]
Case Presents Unprecedented Challenge [The Daily Telegram]

Wednesday, November 15, 2006

News and notes

1. Jack Abramoff is reporting to jail. (CNN)

2. Steve Chaykin and Dan Gelber are reporting to Akerman Senterfit. (Daily Business Review)

3. On Stearns Weaver's motion, Judge Gold is stopping claims services from the unlicensed practice of law in the Exxon case. (DBR)

4. Patagonian toothfish in federal court. (Miami Herald)

5. The 11th Circuit has fast tracked the Government's appeal in Padilla. (Miami Herald)

6. Santiago Alvarez was sentenced to nearly four years in prison and Osvaldo Mitat to 3 years. (Sun-Sentinel)

Tuesday, November 14, 2006

Copy of Padilla Torture response

Here is a copy of the government's response to Jose Padilla's claims of torture, and here is Professor Froomkin's analysis of same.

Torture response

The government has responded to Padilla's claims of torture, denying all of them. Here's the AP story and a brief quote:

"Padilla's conditions of confinement were humane and designed to ensure his safety and security," the government said in its filing. "His basic needs were met in a conscientious manner." That included halal food, some outdoor exercise and medical attention when necessary. Prosecutors said Padilla never made any abuse claims while in military custody. "Padilla's allegations of torture have no merit whatsoever," prosecutors said.

If anyone has the brief, please email it to me and I'll try to post it.

Monday, November 13, 2006

Speaking of chiefs....

Chief Justice John Roberts was in town tonight, speaking at the University of Miami before an audience of about 3,600. For those that weren't able to attend, here's the AP summary. Sounds like the Chief still isn't as bold as is Justice Scalia who spoke at Yale this weekend. Here's a summary of his remarks, in which he says things like this in response to why stick to originalism:

"Originalists can have fun too!"
"I don't pretend to have all of the answers, but I have most of them!"
"My point is not that originalism is perfect, but that it's better than everything else."
"If you are a non-originalist, it's you have zero answers. Every day is a new day for you."
"Stay tuned, if we look at the ceiling next year, we may come up with the answer."
"Unless you can come up with some theory as to how the Constitution evolves, you can't answer anything!"

UPDATE: Here is the Herald article in which our own Judge Mary Barzee is quoted: ''He was so poised and seemed very happy to be here,'' said Mary Barzee, a Miami-Dade Circuit Court judge who attended Monday's event. ``He's clearly a champion of the rule of law.'' The Herald article also has a link to the entire audio, which is pretty cool.

(Soon to be Chief) Judge Moreno

Julie Kay writes today about Judge Moreno becoming Chief of the District in July. The article is very favorable to Judge Moreno (rightfully so). Here is the conclusion to the article:

Moreno was appointed to the bench in 1990 by President George H.W. Bush. He began his legal career as an associate with a civil law firm before becoming an assistant federal public defender in Miami. He then switched back to the private sector, becoming a partner at Thornton Rothman & Moreno in Miami. In 1986, he was appointed a Miami-Dade County Court judge. The following year, he was elevated to the circuit court by Republican Gov. Bob Martinez. Moreno has received numerous awards, including the 2004 Lawyer of the Americas Award, the Outstanding Immigrant Award from Catholic Charities Legal Services, the Pro Bono Service Award of the Cuban-American Bar Association and the “People Helping People” Award from the United Way of Miami-Dade. He is consistently rated near the top in Miami-Dade County Bar Association polls. Miami criminal defense attorney Roy Black calls Moreno “the perfect person for that job.” “He’s so engaging and personable,” Black said. “He treats the lawyers on both sides with courtesy and is the kind of person who can build consensus.”

In the same article, there is discussion about the Bankest sentencings that have been continued. Apparently the guidelines are life. Considering the recent variances in white collar sentencings in Enron, Adelphia, Dynegy, and so on, I don't think Judge Jordan will impose a life sentence.

Thursday, November 09, 2006

Lawyer and Reporter to testify

Judge Martinez is requiring a lawyer and a reporter to testify (over their objections and over the objection of the defense) in a criminal fraud trial. The DBR article by Julie Kay is available for free here.

Wednesday, November 08, 2006

Anything going on?

The District seems awfully quiet. There are a couple trials going on, but nothing is jumping off the pages... Is it Holiday shut-down time already?

For your local election coverage, check out Rumpole. (Federal and State appellate lawyer Marisa Tinkler Mendez won a contested election -- congratulations).

For an interesting story about a bond hearing in front of Judge Seltzer, check out Vanessa Blum's article here.

Also, former AUSA Barbara Lagoa was sworn-in last Friday at the 3rd DCA. It was a beautiful investiture with Judge Huck (her father-in-law) swearing her in. Many Federal Judges and prosecutors (including Alex Acosta and former U.S. Attorneys Guy Lewis and Marcos Jiminez) were in attendance. Congrats to Judge Lagoa.

Monday, November 06, 2006

E-file or else!

Julie Kay writes today about the new e-filing system and how less than 60% of lawyers have signed up. The Chief is angry, issuing an order saying that starting today, if lawyers submit filings by paper, they will have to appear before him personally to respond to an order to show case why they failed to file electronically. Yikes!

Thursday, November 02, 2006

Mr. Abramoff goes to Washington

The government really really wants Jack Abramoff close to Washington, D.C.

Ann Coulter


WEST PALM BEACH, Florida (AP) -- Conservative columnist Ann Coulter has refused to cooperate in an investigation into whether she voted in the wrong precinct, so the case will probably be turned over to prosecutors, Palm Beach County's elections chief said Wednesday.
Elections Supervisor Arthur Anderson said his office has been looking into the matter for nearly nine months, and he would turn over the case to the state attorney's office by Friday.
Coulter's attorney did not immediately return a call Wednesday. Nor did her publicist at her publisher, Crown Publishing.

Knowingly voting in the wrong precinct is a felony punishable by up to five years in prison.
Anderson's office received a complaint in February that Coulter voted in the wrong precinct during a February 7 Palm Beach town council election.
Anderson said a letter was sent to Coulter on March 27 requesting that she clarify her address for the voting records "or face the possibility of her voter registration being rescinded." Three more letters were sent to Coulter and her attorney, but she has yet to respond with the information requested, Anderson said.
In July, Anderson said, he received a letter from Coulter's attorney, Marcos Daniel Jimenez D'Clouet. The letter said the attorney would only discuss the matter in person or by telephone because, he complained, Anderson had given details to the media. Anderson said the matter had to be discussed in writing.
The right-wing commentator also authored a book that said some September 11 widows were "enjoying their husbands' deaths."

Looks like our former U.S. Attorney and previous guest-blogger will be representing her...