11th Circuit reinstates charges against Padilla

In a fifteen page opinion, the 11th Circuit has ruled for the Government on its appeal of the order dismissing Count I of the Padilla indictment. Here is the initial coverage by Vanessa Blum. More to follow from me once I've read the opinion. Initial coverage by me here.

Update -- So, I've read the decision. It's pretty bland. But if the law is supposed to make sense to the average citizen, check out these sentences in the concluding section:

Our analysis could stop there, but in light of the rather abstract nature of the
elemental analysis, we think it wise to elaborate briefly on the concept in practical terms. It appears that the trouble in this appeal stems from the interrelatedness of the three counts at issue. As we have noted, § 956 (the charge in Count One) serves as an object offense for § 2339A (the charge in Count Three), which serves as an object offense for § 371 (the charge in Count Two). But while these three charges are interrelated, they are not interdependent. The object offenses on which Counts Two and Three are premised are not themselves elements of those counts. In other words, to use Count Three as an example, the Government need not prove all the elements of § 956, the object offense, in order to satisfy the elements of the substantive § 2339A charge.

Yikes. The law has taken a strange path on prosecutorial decision-making, hasn't it? I think what the court is saying is that the law permits prosecutors to charge the same facts under lots of different legal theories. But does that make any sense? Do you think jurors understand this very fine distinction? Shouldn't we be making it easier for juries, not harder? I think Judge Cooke had the right idea -- the prosecutors need to figure out how it wants to proceed on this case and go forward on that theory. Prosecutions should not be multiple choice tests.

Cocaine Cowboys article

Julie Kay (for Category 305, not the DBR) writes about the Cocaine Cowboys movie here. Fun article and fun stories.

Alito comes to the Southern District of Florida

Seems like the Justices enjoy taking road trips to South Florida. Alito spoke at a luncheon for the Palm Beach County Bar Association last week. He previously spoke at Alex Acosta's investitute. And the Chief was just in town speaking at the University of Miami. (Roberts was interviewed by Jan Crawford Greenburg, who has a new blog and a new book. I'm in the middle of the book, Supreme Conflict, and it's a must read for Court junkies.)

"If we want to continue to attract the best and the brightest to the bench, we need to pay them more than second-year associates."

That's Guy Lewis in yesterday's Miami Herald, commenting on the debate about whether federal judges should be paid more.

"Halliburton sued in alleged Iraq rape of a Florida woman"

Vanessa Blum has the story here (and there are an awful lot of comments that follow from readers):

"Keys for those units were kept in an unsecured, unguarded key box and apparently a large number of employees knew where it was," [Miami attorney John] Spiegel said. "This dangerous situation clearly began with this gentleman having an opportunity to gain access to her studio," he said. "Imagine a woman checking into a hotel and the hotel allowing pretty much anybody access to room keys. I think the public would be outraged."Spiegel said Halliburton also turned a blind eye to alcohol consumption on premises, creating unsafe conditions for the small number of female employees working among hundreds of men.The woman reported the rape the following morning and was flown to a Baghdad hospital where a rape kit was performed to collect DNA samples.After taking several weeks' medical leave in Florida, she returned to Iraq but left permanently in July because of emotional difficulties.The suit seeks compensation for pain and suffering.

“They have stolen the courthouse from the Superior Court of California, and I mean nothing short of that.”

So said Mike Tein in front of Judge Altonaga yesterday. Robert Parks wasn't happy about it and the gloves came off. Julie Kay has the whole story here.

In this corner...

I'm not sure you ever want to be a defendant when the plaintiffs are federal judges. Looks like we're closer to litigation over the new courthouse. Earlier coverage here. Said William J. Zloch, the chief judge for the Southern District of Florida: ``We are frustrated. The general contractor is basically unable to perform and there are numerous problems that have led the GSA to evaluate its legal rights.''

"The lash is about to fall on all"

That was Judge Cooke today during the motion for a rule to show cause in the Jose Padilla case. Judge Cooke showed why she is such a great judge during the hearing -- she took appropriate action for the leak to the NY Times but did not go overboard and order an evidentiary hearing or sanctions.

The government's main argument for going forward with an evidentiary hearing was to make sure that those who were responsible for trying to "taint the jury pool" were exposed and punished. But if the defense lawyers were truly interested in tainting the jury pool, why leak to the NY Times? Why not leak to television reporters (as was done in this case) or at least the local reporters (who covered the action today here, here, and here). Although Judge Cooke apparently has a subscription, how many Miami jurors actually read the NY Times?

In the end, Judge Cooke took the defense lawyers at their word that "this was a simple misunderstanding, an honest mistake, and it has been rectified. Your honor can rest assured that this matter is at an end. There have been no further disclosures.''

"Panama's Noriega set to be released"

"This year, Panama's ex-leader Manuel Noriega may leave a South Miami-Dade prison where he's been since 1990." In today's Miami Herald, by Gerardo Reyes and Jay Weaver

No Pinch Hitters?

Julie Kay has an article in today's DBR about the Gus Dominguez trial. Judge Moore had refused to grant a continuance in the past. This time, he granted the government's request for a continuance, but he was not happy about it. Apparently the government threatened to dismiss the entire indictment if the continuance wasn't granted. Both sides have reason to be upset -- the defense prepared for trial, made reservations for hotels in the Keys, flew in witnesses and so on because this was a firm trial date. The prosecution is rightfully upset because the lead prosecutor has been ill and in the hospital, which is, of course, good cause to continue the case. What a mess....

Response to Cully Stimson

I wrote this letter to the editor, which was published in today's Herald:

Following 9/11, we gave extraordinary and unprecedented powers to the government's executive branch to fight terror. Therefore, it is critical that we ensure that our civil liberties are protected. Unfortunately, Cully Stimson, deputy assistant secretary of defense for detainee affairs, attacked the lawyers who strive to protect our civil liberties. [He later apologized.]
Still, in a recent radio interview, Stimson called it ''shocking'' that some of the most prestigious law firms in the country were providing pro bono representation to detainees at Guantánamo Bay. Stimson has gone so far as to try to rally American corporations to stop doing business with these law firms.
Stimson blindly attacked those who selflessly volunteered to perform the highest calling of the legal profession, defending those who cannot defend themselves against the unfettered power of government. He also insulted CEOs who understand how important it is to protect our rights and the Constitution.
These lawyers, true patriots, are following in the proud tradition of John Adams who represented British soldiers tried in American courts. Instead of being attacked, the defenders of our Constitution and our country's integrity deserve our thanks.
DAVID OSCAR MARKUS, president,
Florida Association of Criminal Defense Lawyers, Miami chapter, Miami

The editor correctly pointed out in brackets that Stimson has since apologized. But that has been criticized as well.

Any word...

... on who has put their name in for Magistrate Judge in Ft. Lauderdale?

"As rare as four-leaf clovers"

Mike Tein was referring to binding 11(e) pleas in this Sun-Sentinel article about Ze'ev Rosenstein (in which the parties agreed to a 144 month sentence -- see post below). I loved the quote, and I agree with Mike that you rarely see these sorts of deals in federal court where the parties agree on a particular sentence. The judge either accepts the deal and is then bound by the agreement or rejects it. It seems to me that both sides would want to do this more often. It gives everyone certainty, avoids litigation, and avoids appeals... Why don't we see more of these binding deals?

Ze'ev Rosenstein pleads guilty...

...and is sentenced to 144 months (that's 12 years for the math challenged; Update -- My math is actually incorrect. After he is extradited, Rosenstein will have 5 years 4 months to go which will be served in Israel where the pending Israeli case against him, conspiracy to commit murder, will be concurrent and no further prosecutions here or there.)

You remember this case -- the one where prosecutors wanted the witnesses to testify in "light disguise." Previous blog coverage on this case here and here. The AP is reporting on the plea here; Herald here.

Judge Dimitrouleas presided.

Cert from SDFLA

Our appellate correspondent, Richard Rosenthal, writes in:


On Friday the U.S. Supreme Court granted cert on a fascinating case that originated right here in S.D. Fla. Without delving too much into details -- those interested can go to Wyner v. Struhs, 254 F. Supp. 2d 1297 (S.D. Fla. 2003) -- Judge Middlebrooks awarded "prevailing party" attorneys' fees to the ACLU of Florida after it successfully obtained a preliminary injunction that allowed a nude anti-war protest in a public park. But the catch is that after "winning" the preliminary injunction, the ACLU "lost" its request for a permanent injunction because the protest was was one-time deal, rather than a recurring performance. The Eleventh Circuit -- in an unsigned, unpublished opinion -- affirmed Judge Middlebrooks's award of attorneys' fees. Wyner v. Struhs, 179 Fed. Appx. 566 (11th Cir. 2006). Although that unpublished affirmance is not even binding precent within the Eleventh Circuit, it nevertheless conflicted with a Fourth Circuit ruling (Smyth v. Rivero, 282 F.2d 268 (4th Cir. 2002)), and the Supreme Court has now stepped in to resolve the conflict. After the Supreme Court's virtual elimination of attorneys' fees under the "catalyst theory," a Supreme Court ruling in this case could deliver yet another serious blow to civil rights organizations and other "do-gooder" litigants. Stay tuned.....

Padilla trial continued

Judge Cooke continued the Padilla trial until April 16, 2007. This was done, in part, to allow for the mental evaluations to take place.

Picking up on one of Rumpole's recent riffs (read his comments and responses by a Herald reporter) regarding article headlines, here is the headline for a recent Sun-Sentinel article about the Padilla argument in the 11th Circuit: "Lawyers for terror suspects pessimistic as appeals court considers conspiracy charge." So I read the article looking for quotes from the lawyers saying they were pessimistic. There wasn't one! The article, by Vanessa Blum, was well-written and informative, but the headline (which I'm sure wasn't written by her) was absolutely wrong and had nothing to do with the article. How does this happen?

Padilla case goes to Atlanta

The 11th Circuit heard argument today in Jose Padilla's case on Judge Cooke's decision to dismiss Count I of the indictment. More to follow later, but here's Vanessa Blum's (Sun-Sentinel) take of the argument. Heavyweights argued it -- Anne Schultz for the Government and Paul Rashkind for the defense. Both are chiefs of the appellate divisions of their respective offices.

More news and notes

I've been on a news and notes kick lately...

1. "Chief justice off mark on judges' earnings; Judicial pay shouldn't be tied to Congressional salaries": The Miami Herald contains this editorial today concerning Chief Justice Roberts' year end report that I covered here.

2. On Friday, a Broward jury found Michael and Robert McKay guilty of racketeering conspiracy as president and secretary-treasurer of American Maritime Officers, a national labor union based in Dania Beach. Vanessa Blum covers the quick verdict (after a long trial) here. "Defense attorneys for the men said they were shocked by the jury's decision and how quickly it was reached. 'I can't read the jurors' minds, but they certainly didn't have time to go through all of the evidence in the case,' said attorney Neal Sonnett. Lawyer Fred Haddad, who represents Robert McKay, said he would ask U.S. District Judge James Cohn to order a new trial." The case was prosecuted by Robert Tulley.

3. How Appealing blogs here about a new TV show about Supreme Court clerks: "What's next -- Howie Mandel hosting cert. or no cert.? Hollywood's quest to glorify U.S. Supreme Court law clerks will soon reach new heights (or perhaps depths) as Fox Television has given the green light to a new series entitled 'Supreme Courtships.' According to Variety magazine, 'Supreme Courtships revolves around the professional and personal world of six Supreme Court clerks. Tieche and Adelstein Productions ('Prison Break') principals Marty Adelstein and Michael Thorn will produce.' And The Hollywood Reporter says that 'Supreme Courtships, from 20th Century Fox TV and Adelstein Prods., is a comedic drama about the personal and professional lives of six Supreme Court clerks and their supervisors.'" Above the Law has more here.

4. "Pulling on a Fine Line: Case raises questions about when a N.Y. lawyer may advise snowbirds in Florida." From the intro to the ABA Journal article: "A licensed Florida lawyer may advise clients in that state on New York matters, even if he or she is not licensed in New York.So why can’t a licensed New York lawyer advise Sunshine State residents on New York matters, even though he is not licensed in Florida?" The article continues:

When immigration lawyer M. Ronald Gould raised that question in a lawsuit filed against officials of the Florida Bar, a federal district court gave him an answer he didn’t like.Gould filed his action after the bar, which has enforcement authority over Florida’s professional conduct rules for lawyers, nixed his plan to advertise his availability to advise clients on “New York legal matters only” out of an office in Miami.“I save them money because they don’t have to fly to New York to see a lawyer, and they don’t have to pay a lawyer extra money to come see them,” says Gould, who’s been admitted to practice in New York since 1961 and has lived in Florida nearly three decades. “Many people here still have business in New York, and I want to be available to them.”Gould’s suit argued that the Florida Bar’s restrictions on his advertising violate his free speech rights under the First Amendment and cited his “genuine and credible fear” that the bar would charge him with unauthorized practice of law (a third-degree felony under state law) if he went ahead with his plan. But in a decision issued Aug. 8, District Judge Federico A. Moreno granted the bar’s motion for summary judgment. Gould v. Harkness, No. 04-23178-CIV-MORENO (S.D. Fla.). Gould has appealed the ruling to the Atlanta-based 11th U.S. Circuit Court of Appeals.

"Two defense lawyers can keep fees Feds claimed were tainted"

That's the headline in today's Justice Watch from Julie Kay.

"Miami attorneys Ed Shohat and Bruce Lehr got their best holiday present from federal prosecutors. The government decided to let them keep $757,000 in legal fees from their clients, convicted businessmen Eduardo and Hector Orlansky, which the government had previously argued were tainted. The deal, which was approved by the Department of Justice last week, also gives the government a gift. The Orlansky brothers agreed to forfeit to the government another $750,000 from the sale of a luxury Manhattan condominium. *** Negotiations between Shohat and Lehr and federal prosecutors went on for several months. The consent order approving the deal was signed by Assistant U.S. Attorney Matthew Menchel and Shohat Dec. 28 and by the Orlanskys Dec. 29."

Now the fight turns to the oppressive guideline ranges:

"Meanwhile, Lehr has filed papers seeking a downward departure in sentencing for Hector Orlansky, based on, among other things, his client’s health. Orlansky, 61, has had cancer in his shoulders, colon and vocal chords; suffers from an inner ear disorder called Meniere’s disease; has high blood pressure and cholesterol; and suffers from depression and anxiety. In addition, Lehr argued, Hector Orlansky should get a lesser sentence because he had no criminal history prior to the fraud charges and was “well-respected in the fields of banking and finance.” If the pretrial probation office investigation is adopted by the court, Orlansky would spend a minimum of 151 to 188 months in prison, which would probably amount to the rest of his life. Shohat said he will file a downward departure request for Eduardo Orlansky soon. Judge Jordan has not set a sentencing date. Denied bond requests, the brothers are being held at Miami’s Federal Detention Center."

disclosure -- I'm quoted in the article.

And here's the pitch...

The DBR covers (here) the upcoming trial of sports agent Gustavo Dominguez, which is scheduled to begin in front of Judge Moore in Key West on January 16. "Federal prosecutors have indicated they will call Seattle Mariners shortstop Yuniesky Betancourt and Chicago Cubs catcher Henry Blanco to testify, according to Miami attorney Susan Dmitrovsky, who represents Dominguez. However, the government may have some difficulty in getting the players to testify as many players, including Blanco, are out of the country playing winter ball in South America, Dmitrovsky said." Also alleged: "Co-defendant Hernandez smuggled the wife and daughters of Chicago White Sox pitcher Jose Contreras into the country, and that Hernandez was taped by a cooperating witness admitting doing so. Prosecutors are not alleging that Contreras, who earned $9.6 million in 2006, was smuggled into the country. He is not expected to testify at the trial."

The case is being prosecuted by Ben Daniel and Nathaniel Mandel.

Betancourt's stats can be seen here.
Blanco's here.
Contreras's here.

News and Notes

1. The New York Times reports on Padilla here. The Government has been taking some hits in the press recently on this case and this is another example.

2. "Compensation: Empty-handed": That's the headline in this DBR article about Tom Tew's lawsuit against the Florida bar being dismissed with prejudice in federal court. "About 4,000 asbestos clients of disbarred attorney Louis Robles will have to find another way to recoup the $13.5 million their former lawyer stole from them after a federal judge threw out their claim against The Florida Bar. In an unusual class action suit filed last January, the plaintiffs claimed a security fund maintained by the Bar to compensate clients victimized by dishonest attorneys applied to them, and their claims should be paid in full. The suit argued that the Bar’s failure to pay a lump sum denied the plaintiffs their due process and equal protection rights under the U.S. Constitution. But U.S. District Judge Willis B. Hunt Jr. of Georgia disagreed in a dismissal order Dec. 22. He denied the plaintiffs’ claims with prejudice, barring them from re-filing. The judge, who handled the case after the recusal of Miami judges, concluded the 11th Amendment gives the Bar immunity because it is a regulatory arm of the state Supreme Court."

News and Notes

1. Listen to Nina Totenberg's story on Jose Padilla here. Lots of interesting stuff, including high-ranking government officials stating that it was the government's intent to incapacitate Jose Padilla. Totenberg quotes an official who says that it would be in the government's interest to have the Court declare Padilla incompetent and send him to a medical facility.

2. Justice John Paul Stevens says he is a "moderate conservative" in an interview about Gerald Ford. Fun to watch...

3. "Greenberg Traurig Reached $7.6 Million Settlment with FDIC": Greenberg Traurig agreed to pay the FDIC $7.6 million for its role as a legal adviser to the now defunct Hamilton Bank of Miami, according to a June settlement between the FDIC and Greenberg.

We're Back

Welcome back to work, and thanks for sneaking away for a few minutes to check in here. (You won't find any resolutions or wish lists here. For that check out Rumpole or Brian Tannebaum.)

The last two weeks have been quiet in the District, but things always heat up to start the year. For example, lots should be happening with the biggest case in the District (and probably the country) -- the Padilla case. Oral argument on the Government's expedited appeal will be heard this month. Also, Padilla will be evaluated by a jail doctor shortly. And soon to follow will be hearings on Padilla's allegations regarding torture and misconduct.

To start the year, I'll give you the end of year report from Chief Justice Roberts, which can be read here (hat tip to the usual suspects -- Doug Berman, ScotusBlog, and How Appealing). It's an interesting read, asking for only one thing: higher salaries for federal judges to ensure the independence of the judiciary. He also notes that the pay problem has had other consequences -- judges are starting to come mostly from the public sector where in the past most judges came from private practice. Even though it's a pretty dry subject, the Chief is such a great writer, making the report fun to read.

Here's the intro:

Between December 19 and January 8 there are 32 college bowl games–but only one Year-End Report on the Federal Judiciary. I once asked my predecessor, Chief Justice William H. Rehnquist, why he released this annual report on the state of the federal courts on New Year‘s Day. He explained that it was difficult to get people to focus on the needs of the judiciary and January 1 was historically a slow news day–a day on which the concerns of the courts just might get noticed.

This is my second annual report on the judiciary, and in it I am going to discuss only one issue–in an effort to increase even more the chances that people will take notice. That is important because the issue has been ignored far too long and has now reached the level of a constitutional crisis that threatens to undermine the strength and independence of the federal judiciary.

I am talking about the failure to raise judicial pay. This is usually the point at which many will put down the annual report and return to the Rose Bowl, but bear with me long enough to consider just three very revealing charts prepared by the Administrative Office of the United States Courts.

The appendix is also interesting. Here's a portion from the Appendix:

Nationwide, the number of criminal appeals dropped by 5% to 15,246 filings, after rising by 28% in 2005 in response to the Booker decision. Despite that decline, the number of criminal appeals in 2006 surpassed by more than 25% the number of filings in the years before the Court's decision in Blakely v. Washington, 542 U.S. 296 (2004)....

The number of criminal cases filed in 2006 decreased by 4% to 66,860 cases and 88,216 defendants. The decline stemmed from shifts in priorities of the United States Department of Justice, which directed more of its resources toward combating terrorism. The number of criminal cases filed in 2006 is similar to the number of cases filed in 2002, when criminal case filings jumped by 7% following the terrorist attacks on September 11, 2001. Although the number of criminal case filings declined in 2006, the median time for case disposition for defendants climbed from 6.8 months in 2005 to 7.1 months in 2006. The median time period, which was 27 days longer than in 2004, reflected an increase in the time that courts needed to process post-Booker cases.

Anyone have the numbers for this District?