Tuesday, July 31, 2007

Matthew Menchel leaving U.S. Attorney's Office

That's a big loss for the office. He was the chief of criminal division and a very skilled trial lawyer. He's headed to a firm with offices in New York and soon to be in Miami... Good luck to Menchel. Now the question is -- who will be named chief of criminal?

Monday, July 30, 2007

Where is everyone?


On most days, you'll find a bunch of reporters in Judge Cooke's courtroom dutifully covering the Jose Padilla trial. Not today. Today, they were all in Bankruptcy Judge Cristol's courtroom for the O.J. book litigation. Here's the AP's Curt Anderson on what happened:

A federal bankruptcy judge Monday awarded the rights of O.J. Simpson's canceled "If I Did It" book to the family of the late Ronald Goldman to satisfy a $38 million wrongful death judgment against the former football star.
U.S. Bankruptcy Judge A. Jay Cristol's decision pushed aside complaints from the family of Simpson's ex-wife, Nicole Brown Simpson, who was slain along with her friend Goldman in a 1994 knife attack.

***

Fred Goldman, Ronald Goldman's father, choked back tears outside the courtroom and said he intends to release the book as a measure of justice to portray Simpson as "a wife-beater, as a murderer, written in his own words."
"After 13 years of trying to get some justice, today is probably the first time we had any sense of seeing light at the end of the tunnel," said Goldman, who attended the hearing with his daughter, Kim. "It's gratifying to see."

Lawyers for Brown's father, Louis Brown, objected to a settlement awarding the rights to Goldman.
The Browns wanted Cristol to give equal rights to all the creditors, rather than allowing the Goldmans to collect the lion's share of any profits from the book.

Camel racing jockey case dismissed

Judge Altonaga threw out the child camel jockey case against Sheikh Mohammed, the Prime Minister of Dubai, and his brother, Sheikh Hamdam, on personal jurisdiction grounds today. The State Department was about to weigh in on the issues of head of state immunity and perhaps other issues in the motion, like international comity.


--David Oscar Markus
www.markuslaw.com
305-379-6667

No questions


That was AG Alberto Gonzalez who was here in the Southern District of Florida today speaking to the National Organization of Black Law Enforcement Executives.

According to this Herald article: "Gonzales talked about federal efforts to curb violent crime, posing for photographs with law enforcement officers but taking no questions from reporters."

Apparently, the SDFLA is a safe place for him: ''It's a safe haven out of Washington,'' said Elsie Scott, president of the Congressional Black Caucus. "It's a place where he can be comfortable and not be booed.''

Inmates dance to Thriller

Check this out!




I don't think the guys over at FDC will be doing this any time soon...

HT: Above the Law.

Blackberry blog from court

Sorry for the quick Monday morning blogging. More to come this afternoon. For now check out this Julie Kay article about a new prosecution unit targeting violent crime.

http://www.dailybusinessreview.com/news.html?news_id=44265


--David Oscar Markus
www.markuslaw.com
305-379-6667

Friday, July 27, 2007

Maintain radio silence


Looks like the Jose Padilla defense is continuing its trial strategy of trying to distance itself from the other two defendants. As the other two mount their defense by presenting witnesses and evidence, Padilla's lawyers are keeping quiet. According to this interesting article by Curt Anderson:


The first week of the defense case in the Jose Padilla terrorism support trial came to a close Friday with Padilla's own lawyers taking virtually no role so far.
"No questions, your honor," said Padilla attorney Anthony Natale, neatly summing up the Padilla defense team's courtroom activity since Monday.
Attorneys for co-defendant Adham Amin Hassoun, who allegedly recruited Padilla for Islamic extremist causes, called four witnesses in the 11th week of testimony in the case. And lawyers for third defendant Kifah Wael Jayyousi actively questioned all four, as did federal prosecutors.


Anderson wonders whether Padilla will present any evidence:


It's been virtual silence from the Padilla corner, and it remains to be seen if Padilla's lawyers will put on any witnesses or ask any questions. Defendants accused of crimes are not legally required to testify or put on any kind of case, with the burden to prove the crimes squarely on the prosecution.
Michael Caruso, one of three federal public defenders representing Padilla, said at the close of the prosecution case that his client deserved acquittal because of lack of evidence. The three defendants are charged with conspiring to murder, kidnap and maim people overseas as part of a North American cell supporting al-Qaida and other Islamic extremist groups around the world.
"There is simply not enough evidence for any reasonable juror to conclude that Mr. Padilla was a willing participant," Caruso said.


We did hear from one interesting witness today regarding co-defendant Adham Hassoun:


For example, Hassoun's father-in-law Mohammed Wannous, 73, came all the way from Helsinki, Finland, to testify for about an hour Friday about one phone conversation he had with Hassoun in 1997. In the call, the two make reference to a Lebanese group, Usbat al-Ansar, that prosecutors say had connections to al-Qaida leader Osama bin Laden.
Wannous said his son-in-law was only kidding around when he said on the call that "we are with" that group.
"He was joking with me, as usual," said Wannous, who testified in Arabic through a court translator. "Because I know he didn't belong to any of them."
Prosecutor John Shipley, however, noted that neither man was laughing when they discussed the matter, although they laughed loudly later in the call when talking about family issues.
"You didn't say in the conversation, 'Adham, you are only joking,'" Shipley said.
"He always jokes," Wannous answered.
Like much of the first week of defense testimony, Wannous had nothing to do with Padilla. Testimony resumes next week and is scheduled to continue through much of August.

Former AUSA making us proud

Broward Circuit Judge Jeffrey Levenson always was one of the fairest prosecutors to deal with when he was an AUSA. Now he is showing how to judge:

The jurors didn't know that the judge presided in his socks and the defendant testified in the judge's shoes.

That's what happened Tuesday when Broward Circuit Judge Jeffrey Levenson gave the shoes off his feet so Michael Fernandez, 22, could put his best foot forward to testify at his trial on a cocaine-trafficking charge.Fernandez mistakenly was brought to court in his jailhouse garb, said defense attorney Jim Lewis. When deputies finally delivered Fernandez's court clothes, his shoes were missing and he would have had to testify in his jailhouse flip flops, Lewis said.

Enter the judge and his size 11s."He took off his black loafers and said, 'Use these,'" Lewis said. "And sure enough, they were just about a perfect fit."

Love it. Well done Judge Levenson. And you may be wondering what happened to the defendant -- not guilty. I wonder what would have happened if the jury would have seen him in prison flip flops...

Thursday, July 26, 2007

11th Circuit vacates drug conviction

Extremely interesting case from the 11th Circuit today, United States v. Lopez-Vanegas. The issue is whether the U.S. drug laws reach conspiracies to distribute cocaine from one foreign country to another, where meetings occurred here in the U.S. The Court said no, reversing two convictions.

From the 11th:

Appellants assert that the agreement to ship cocaine from Colombia to Venezuela to Saudi Arabia to France for distribution throughout Europe does not violate 21 U.S.C. § 846 because the object of the conspiracy – the possession and distribution of cocaine on foreign soil – is not a violation of 21 U.S.C. § 841(a)(1). Thus, the district court should have granted defendants’ motion for acquittal at the close of the Government’s case. The Government asserts that the defendants’ conduct was encompassed by the prohibitions of 21 U.S.C. § 846 and § 841(a)(1), forbidding conspiracy to possess with intent to distribute cocaine. The issue of whether discussions occurring in the United States related to possession of controlled substances outside of the United States with intent to distribute those substances outside of the United States is a crime in the United States is res nova in the Eleventh Circuit. We squarely address that issue now.
***
Because the Court holds that 21 U.S.C. §§ 841 and 846 do not apply extraterritorially, the conduct of Lopez and Salazar does not violate those statutes. The judgments of conviction and sentences issued by the district court are VACATED.

It will be interesting to see how this case is applied in a number of different prosecutions. First, the Padilla defense has raised this argument, saying that even if the Government is correct, the object of the conspiracy deals with conduct overseas. I'm not sure if the statute at issue there contemplates this sort of activity... but if not, watch out. (Second) Update -- I'm told that the statute at issue in the Padilla case does, in fact, address conduct overseas...

Also, what about the cases involving people going overseas to find underage sex. Typically, those cases involve a defendant talking to an undercover travel agent arranging for a trip to another country. To date, these convictions have been upheld even though all the intended activity is occurring in another country. UPDATE -- a helpful reader points out that the statute in these cases, 18 USC 2423, addresses people here travelling in interstate or foreign commerce, which makes it much different than the drug statute addressed above.

Very interesting...

Congrats to Scott Srebnick and Richard Strafer, the defense lawyers on this case.

Wednesday, July 25, 2007

This is why federal judges don't like voir dire

Jury panel queried in masturbation trial.

Thank goodness for Broward County...

UPDATE -- Rumpole gets all serious on this topic here.

SECOND UPDATE -- The guy was convicted. Fred Grimm criticizes the prosecution here.

It's getting hot in here

Apparently it got so contentious yesterday in the Jose Padilla trial that Judge Cooke had to call a timeout for the witness and the lawyers. Here's the AP:

But Awad, in a heated exchange with Assistant U.S. Attorney Brian Frazier, said the money raised at the Florida mosque and elsewhere was not intended to fund terrorists. Awad drew a distinction between terrorism and Islamic mujahedeen who were fighting in defense of Muslims in places like Chechnya, Bosnia and Somalia.
"The mujahedeen were fighting, and in fighting there is killing," Awad testified. "The mujahedeen are honorable people. Terrorists are people who have no goal but to maim and kill."

***
There were several tense exchanges during cross-examination between Awad and Frazier, including one instance when Awad raised his voice and said people who commit atrocities against Muslims "should be killed and taken to justice."
U.S. District Judge Marcia Cooke sent the jury out of the room at that point and told Awad to keep his cool.


More from the Sun-Sentinel:

To federal prosecutors, he is the central figure in a South Florida terror support cell.But Adham Amin Hassoun's lawyers claim their client, a former Sunrise computer programmer, was a philanthropist, not a terrorist.Both sides pushed their positions Tuesday in Miami federal court during heated testimony from the former imam of the Fort Lauderdale mosque that Hassoun and his co-defendant Jose Padilla attended in the mid-1990s.
The questioning grew so contentious, U.S. District Judge Marcia Cooke twice asked jurors to step out of the courtroom so the imam and the attorneys could cool off.

***
Touching on what has been a hot-button issue in the case, Awad insisted those who resort to violence to protect Muslim communities from oppression or ethnic cleansing should not be considered terrorists."I would really appreciate if you do not imply mujahideen and terrorists are the same," Awad told Frazier. "The mujahideen are honorable people. ... Terrorists are people who have no aim and no goal but to maim and kill."
***
"We are required by our religion, by our faith, to help people in need, to help people under attack," Awad said."Did you ever preach an obligation to support mujahideen fighters?" Frazier asked."Mujahideen are people who are defending themselves," Awad said."The answer is yes?" Frazier pressed."No, the answer is no," Awad said.

Although Padilla's lawyers didn't ask any questions of this witness, Padilla was mentioned:

Awad said he bought an airline ticket to Cairo, Egypt, for Padilla with money collected from mosque members. Padilla was moving to the Middle East to study Islam and Arabic, Awad said.

Monday, July 23, 2007

News and Notes




1. Noriega doesn't want to be deported to France. (Miami Herald and pic from Herald)

2. Defense lawyers in Padilla are questioning the translations. (NY Times and AP)

3. "Coral Springs boy, 7, on no-fly list has been delayed at airport three times" (Sun-Sentinel) To the right is his picture, with his mother. How crazy!

Health Care fraud in the DBR

It's Julie Kay's DBR today. She has a whole (cover) section on Medicare fraud, which you can read here. Interesting theories on where health care fraud is coming from -- Jose Quinon says it's from Fidel:


Some lawyers, prosecutors, and agents, however, theorize that the Cuban government is behind Medicare fraud. They argue that the money is routed to Cuba and that’s why prosecutors are never able to get their hands on most of the stolen funds. “I’ve been hearing that Fidel is sending people here to do the fraud for a long time,” Quinon said. A former prosecutor who didn’t want to be identified debunked that theory. “I’ve heard for years, that there are folks … that funnel money back to the island,” he said. “But I have never heard anyone [offer] evidence of a formal tie to the Cuban government.”


Kay's other story deals with Richard Sharpstein's defense of a fraud defendant and prosecutors and agents trying to get him off the case because his law firm represents some of the insurance companies who supposedly have been defrauded. It's getting ugly in that case as agents are calling Sharpstein's firm's clients to inform them of the potential conflict. The case is in front of Judge Hurley and Sharpstein has hired Lewis Tein.


If it wasn't such a busy morning, I'd have more to say about both of these stories. Perhaps later in the day...


Also, check out Jay Weaver's article about Noriega this morning. The litigation is heating up on that case as well as France is trying to get the US to send him there.

Sunday, July 22, 2007

"The actions in this case frankly are disgusting and despicable. It almost defies belief."

That was Judge Graham as he sentenced Detective Thomas Simcox, 50, to just over 11 years (which was more than prosecutors has asked for) and a $100,000 fine. He continued: "On the scale of criminal conduct, this case ranks near the top."

Two other officers fared no better in front of Judge Cohn: Hollywood Police Sgt. Kevin Companion was sentenced to 14 years in prison and Officer Stephen Harrison received a nine-year term.

The case as described by the Sun-Sentinel: "The four officers were arrested in February after an FBI sting caught them — on videotape — dealing in stolen diamonds in Atlantic City; transporting stolen art while using police evidence room receipts as cover; protecting crooked card games; and finally, late last year, running protection for what they thought was a shipment of heroin."

Public corruption cases are always tough on the sentencing judge and the cases always raise a host of issues. Should the sentence be higher for a public official (in this case a police officer) than for someone else who does the same act because the official violates public trust? Or should the sentence be lower if the official has done lots of good for society? Or should these two factors be a wash?

More from the article:

Friday morning's sentencing of Companion, 41, and Harrison, 47, included hours of emotional pleadings, while raising the question of how men who all agreed were caring, compassionate family men and good police officers could turn criminal.The amount of money they received — from $12,000 for Harrison up to $42,000 for Companion — was less than they could have made working overtime and extra details, Hollywood police officials have said."Any sentence would serve not only as punishment of Kevin, but of his family and his kids," a tearful Emily Companion, Sgt. Companion's wife, told U.S. District Judge James I. Cohn as she clutched photos of the couple's two children, her husband crying just a few feet away. "We are suffering every minute of every day."Cohn responded sympathetically: "Ma'am, you know it is always the family who suffers the most. Always." Looking at the pictures, he smiled and said, "your children are beautiful."

Friday, July 20, 2007

Oh boy...

I feel bad for the Kenny Nachwalter lawyer (the original post had her name, but I have since deleted it) who filed a notice to appear for the alleged victim in the Chuckie Taylor case (he's the son of former Liberian president Charles Taylor who has been accused of torture). The problem is that the pleading wasn't filed under seal and the name of this victim is supposed to be secret.

The DBR has the story here.

Any thoughts on whether this article should have been published. Seems newsworthy to me, but others have expressed that the article should not have been written or in the alternative should not have included the victim's name. Thoughts?

Thursday, July 19, 2007

Federal Judges are people too

I love this story in So. Florida Magazine featuring our very own Judge Ursula Ungaro, who golfs in her spare time. How cool. Judge Ungaro, known as one of the smartest and sharpest judges in the district, can also hit the ball pretty well. Although she normally plays at the Biltmore or Granada, she has played as far away as George, South Africa where she "had to fend off the monkeys, who were trying to steal the balls out of [their] bags."

"Miami black market aquarium supplier gets jail term"

From the Miami Herald:

A Miami man will forfeit his boat and spend 10 months in jail for illegally harvesting brilliantly colorful corallimorphs, prized for saltwater aquariums, from the Florida Keys National Marine Sanctuary.
Alexandre Alvarenga, 40, was sentenced Wednesday by U.S. District Judge Adalberto Jordan, who accepted his guilty plea for illegally taking 900 living specimens of Ricordea florida so that he could sell them.


For more on corallimorphs, read here.




Wednesday, July 18, 2007

Governor Crist appoints John Thornton

John Thornton was appointed to the state circuit bench today. Congrats to John -- a wonderful appointment from our Governor.

Tuesday, July 17, 2007

Motions for JOA denied

I'm on the road today, but a reliable source emails me that the motions for judgment of acquittal as to all defendants in the Padilla case were denied.

Defense case to begin Thursday.

For an interesting discussion comparing the government action in Padilla to KPMG, check out www.discourse.net, Professor Froomkin's blog. I will post the exact link when I get back to town.

UPDATE -- here's the link to the interesting post.

Monday, July 16, 2007

Julie Kay interviews Chief Judge Moreno



Lots of good stuff in the article that will make lawyers and non-lawyers happy, like being more permissive with cell phones and laptops. The Chief also plans on making sure that secret dockets are a thing of the past and that all documents are made available to the public:
“I’m a very open person,” Moreno said. “My personal feeling is that if something is said in open court, it should be an open record.”
As for plea deals: "Moreno said the court will continue to study another issue that recently has generated controversy — whether plea agreements should be posted online."
Interesting article and worth a read.

"Dubai leaders ask judge to dismiss camel racing jockey lawsuit"

That's the headline from this AP article.

From the article, it looks like it was a very animated hearing:

U.S. District Judge Cecilia M. Altonaga did not indicate when she would rule but did ask a number of pointed questions, including whether she has authority over an issue involving people and events in several foreign countries but few ties to the United States.

"All of these claims should be entertained here?" she asked at one point. "None of the parties, none of the interests, none of the defendants are here."

The lawsuit filed last September asks for an unspecified amount of damages for young boys - primarily from Pakistan, Sudan, Mauritania and Bangladesh - who were forced to ride racing camels over a 30-year period in various Persian Gulf countries. The case was brought under a 218-year-old U.S. law known as the Alien Tort Statute, which provides federal courts with jurisdiction over certain civil cases involving foreigners.

But it wasn't easy for the Defendants either:

The Emirates have ended use of children as camel racing jockeys and set up a program with UNICEF to reunite them with their families and provide a range of social and educational services. Agreements between the Emirates and the four jockey source countries also envision creation of a compensation system funded by the Emirates.

Coles told Altonaga that the program is a better way than a lawsuit to address the problem. But the judge questioned whether that was adequate as a legal matter because the case targets the two sheikhs as individuals, rather than as heads of government.

"It doesn't make these individuals accountable in any way," Altonaga said of the jockey program.


Sunday, July 15, 2007

Justice Jordan?

When we first started the blog, we argued that the upcoming High Court vacancies should be filled by a Floridian. And during that Supreme Court mania, some of our own judges, like Cecilia Altonaga and Federico Moreno (and 11th Cir. Judge Marcus and Fla. Sup. Ct. Justice Cantero) were mentioned. But instead we got Roberts and Alito...

Now Tom Goldstein, of SCOTUSBlog, theorizes who will be on the shortlist should a Democrat take the White House in 2008. Here is his original post and his follow-up post.

On the list -- Judge Adalberto Jordan! Goldstein says that Jordan makes the shortlist assuming that he quickly ascends to the Eleventh Circuit. Very exciting...

Our old poll on the subject is still up. The current results for the top three:


Stanley Marcus 38%

Federico Moreno 36%

Adalberto Jordan 9%

Friday, July 13, 2007

Government rests in Padilla

Lots of coverage of the Government resting today in the Jose Padilla trial ON FRIDAY THE 13th!

USA Today has this about the final witness from today:

The final prosecution witness Friday was FBI linguist Joyce Kandalaft, who testified that Hassoun's name and telephone number were on a card containing various names and numbers that Padilla was carrying when he was arrested.
She also testified about notations in Arabic made on checks written by Hassoun to Muslim charities and other entities that included the word "tourism." The government contends the word was code for violent jihad. The notations also frequently mentioned support for "brothers."
"Have you ever known the word brother to mean mujahedeen brother?" asked Assistant U.S. Attorney Russell Killinger.
"Yes, I have," Kandalaft replied.
Kandalaft also testified that Hassoun had included a verse from the Quran on one check that translates to: "And those who do wrong should soon come to know what punishment awaits them."


Strong ending for the Government. It's a nice circle -- tie the defendants together and get back to the coded language.

Then, according to the Herald's Jay Weaver:

"The United States would rest its case in chief at this time,'' prosecutor Russell Killinger said.... U.S. District Judge Marcia Cooke gave a stern warning to the 12 Miami-Dade jurors not to talk about the case with anyone, nor to read or watch anything about it. ''You will have to be extra super-duper cautious,'' Cooke advised the jurors, instructing them to return on Thursday, when the defense will begin its case.

Why do lawyers always talk in "woulds"? I would rest; I would argue; I would call so and so witness. It's weird, no? I do it too, I guess, and I don't know why. I like how Judge Cooke says to be "extra super-duper cautious." I always wonder whether jurors really listen to these instructions or whether they hop on the internet...

Here's the AP article by Curt Anderson, which talks about this blog's coverage. Here's the intro to the article:

For a star defendant whose name is known around the world, Jose Padilla has become almost a bit player in his terrorism support trial and some observers say the federal government may not have proved its case against him.
Prosecutors rested their case Friday after nine weeks, 22 witnesses and dozens of FBI wiretap intercepts played at trial, most of them in Arabic with written translations for jurors. Defense lawyers for Padilla and his two co-defendants begin presenting their case next week.


Despite the strong finish, I'm one of those observers:

"Although everyone has been referring to this case as the Padilla trial, the government's case against Padilla has been pretty thin," said David O. Markus, a Miami defense attorney who has frequently written about the case on his legal blog.

I say this because most of the Government's case, including the vast majority of the phone calls played for the jury, involved the other two defendants. As I said before, I think the case against Padilla really comes down to the terror camp form and whether the jury believes that Padilla filled it out and whether they believe he did so with the intent to murder. If yes on both, convicted. If no on either, NG.

The former U.S. Attorney, Guy Lewis, is another observer:

Former Miami U.S. Attorney Guy Lewis said prosecutors often are forced to present a "watered-down" case when much evidence is classified to protect national security. It's also a tougher case when there's no "smoking gun" or witness who can swear the defendants committed illegal acts.
"It's a loose-knit conspiracy with very few overt acts," Lewis said. "You didn't catch them committing a terrorist act. Talk only, and talk is cheap."


And, of course, there's the jurors dressing up:

Jurors have sometimes shown up for duty in coordinated clothing, most notably in rows of red, white and blue before the July 4 holiday. That has prompted much speculation among lawyers and legal bloggers about whether they are unified or sending a pro-government message.
"If everyone is thinking the same way at such an early stage, defense lawyers get nervous," Markus said. "Or the prosecution could be nervous because this is obviously a happy jury. Happy juries in a terrorism trial might not be good."
Or, he added, they might simply be bored.

Government to rest in Jose Padilla trial

By lunchtime today, the Government will rest its case in the Jose Padilla trial. Ten weeks, lots of phone calls, expert witnesses, CNN videos, mentions of Playboy, jurors dressing up, reporters being threatened with contempt.... What's next? The defense will argue for judgments of acquittal on Tuesday. If those motions are denied, the jury will return next Thursday.

UPDATED -- THE GOVERNMENT RESTED AROUND NOON TODAY.

Yesterday, an FBI agent said that Padilla was evasive when he was arrested. This from the NY Times:

On Thursday, the Federal Bureau of Investigation agents who arrested Mr. Padilla testified that he was evasive about the four years he spent in the Middle East and Pakistan. The agents said a lengthy interview in an airport conference room yielded nothing substantive about his time overseas.
Special Agent Russell Fincher said Mr. Padilla, an American born in Brooklyn, disclosed which neighborhood of Cairo he had lived in for two years and the first name of his roommate there. But he said he had forgotten the address and his roommate’s last name — a suspicious lapse, Mr. Fincher said, since Mr. Padilla, then 31, could recall where he had lived as a child in Chicago.
Mr. Padilla, who had just returned to the United States on a flight from Zurich, also told the agents that he had married an Egyptian woman but could not remember her telephone number.
“It led me to believe that Mr. Padilla was being evasive with regard to his answers about his travels overseas,” Mr. Fincher said.
Under defense questioning, Mr. Fincher conceded that Mr. Padilla could not recall his mother’s phone number or his most recent address in the United States.
Mr. Padilla was carrying a picture of his baby sons at the time of his arrest, Mr. Fincher said, and a piece of paper with his mother’s contact information. Mr. Padilla told the agents that he had never been to Afghanistan, but that he had gone to Pakistan to study Islam on the advice of a Pakistani he met in Saudi Arabia.


And the Government tried to shore up its position on the training camp form:

Earlier Thursday, a government expert in document analysis testified that Mr. Padilla could have filled out the training camp application in July 2000, the date written on it. But under defense questioning, the expert, Gerald LaPorte, acknowledged that there was no way to determine who filled it out or when.

“I can’t render a conclusion at all,” Mr. LaPorte said.

And this from the AP:

Also Thursday, a Secret Service document analyst testified that the form attributed to Padilla was consistent with others recovered by the CIA in a binder in Afghanistan in December 2001. The forms appeared to be authentic and to have been copied from a single original on the same copying equipment, analyst Jerry LaPorte testified.
There were two types of ink and two different pens used to fill out the supposed Padilla form, he added. LaPorte testified he couldn't tell when the entries were completed, although the form bears a date of July 24, 2000.
Prosecutors expect to rest their case Friday, the end of the ninth week of testimony. Defense lawyers are scheduled to begin next week on their case, which will likely continue into August.



I really think the case against Padilla comes down to whether the jury believes that he filled out this form with the intent to go overseas to join a terrorist camp. If the jury has doubt about how and when Padilla's prints were left on this form, he walks. Thoughts?

Wednesday, July 11, 2007

Shameless self promotion

Yesterday I (along with UM law professor Ricardo Bascuas) filed this lawsuit in an attempt to figure out whether broadcasting legal cockfighting from Puerto Rico on the internet was contrary to 18 U.S.C. 48 or protected by the First Amendment. The website at issue is http://www.toughsportslive.com/

The lawsuit has received considerable buzz in the media and blogosphere. Here's a collection of stories:

1. The New York Times
2. Ann Althouse
3. Volokh Conspiracy
4. The Sun-Sentinel
5. How Appealing
6. Anorak
7. Above the Law
8. Australian Herald Sun

Very exciting....

Tuesday, July 10, 2007

Playboy and the Padilla trial

This blog has covered Playboy and the law in the past.

Now Playboy has been mentioned in the Padilla trial (via the Miami Herald):

The Jose Padilla terror trial turned light for a moment on Tuesday when a defense lawyer attacked the credentials of a government witness while questioning him about his post-9/11 interview with Playboy magazine.

Attorney William Swor lost his bearings as he tried to ask international terrorism expert Rohan Gunaratna about a passage in the November 2002 interview.

''You were not the centerfold,'' Swor quipped, as the dozen Miami-Dade federal jurors laughed.

''It's very important that it was the article on terrorism,'' countered Gunaratna, a Singapore university professor who was born in Sri Lanka. He said he had explain to his mother that former President Jimmy Carter had once done an interview with the "dirty magazine.''

Swor finally got around to asking Gunaratna what he meant when he told Playboy that sometimes the U.S. should ''terminate'' clandestine agents when ''black ops'' run their course. Swor insisted it was a ''euphemism'' for ``kill.''

Gunaratna strongly denied the accusation.

And here's the AP:

Swor repeatedly probed Gunaratna's credentials and previous testimony for inconsistencies. At one point, Swor brought up a November 2002 interview Gunaratna gave to Playboy magazine for a terrorism article in which he criticized the U.S. for being unwilling to "terminate" undercover operatives if things go bad.

"By terminate, you mean kill, right?" Swor said.

"It means you don't work with them any longer," Gunaratna said.
Swor responded skeptically. "You're not just going to give him a pink slip and say, 'See you around,'" he said.

In one of the day's lighter moments, Gunaratna said he wanted the record to show that the Playboy article was on terrorism and had no connection to pornography.

"They might be wondering if I posed naked for Playboy," Gunaratna said, adding that he had a difficult time explaining to his mother how he wound up in the magazine.

Ah, yes. I'm sure the jury was wondering if Gunaratna posed naked for Playboy because he looks a lot like .

I hope the jury doesn't get any ideas for dress up from the Playboy mention.

I think the most interesting news is that the Government is set to rest by the end of the week. I wonder how much of a defense there is going to be (if any).

Okay, okay, here's another picture of Oona (which we got from Abovethelaw).

Baseball agents gets 5 years


Yesterday Judge Moore sentenced baseball agent Gustavo ''Gus'' Dominguez to five years in prison. Legendary pitcher Sandy Koufax wrote this letter in support of Dominguez. The Herald covers the sentencing here. And here's a snippet from the article re Koufax:


Koufax, a southpaw and three-time Cy Young winner while pitching for the Brooklyn and Los Angeles Dodgers in the 1950s and 1960s, met Dominguez through friends at the Dodgers training camp in Vero Beach.
''I have always considered Gus to be a person of strong character and high moral principles,'' Koufax wrote. ``He has an unshakable love for his culture and does his best to serve as a role model to the players he represents, especially Latin players.''
Dominguez's defense team said the agent asked his old friend to travel from Southern California for the sentencing -- but he could not make the trip. Koufax, ranked 26th among The Sporting News' ''100 Greatest Baseball Players,'' instead wrote the letter.

Monday, July 09, 2007

Two very interesting articles from today's papers:

1. Jay Weaver covers the Chuckie Taylor case and explains that the accuser's ID is going to be released:

For months, Miami prosecutors and defense lawyers representing the son of former Liberian president Charles Taylor have wrestled over one main issue: the identity of the man who accused the younger Taylor of torturing him five years ago in a police agent's home in Liberia.
Prosecutors have wanted the information kept a secret for the victim's safety; Taylor's attorneys have sought its disclosure to mount a defense for a September trial in federal court.
Thanks to a recent judge's order, Charles ''Chuckie'' Taylor Jr. and his defense team are finally going to learn his accuser's name.
But there's a catch. Taylor is only allowed to see the alleged victim's name. His lawyers cannot give him ''any tangible materials'' identifying his accuser. Nor can Taylor, who is in federal custody, disclose the accuser's name without his lawyers' approval.
And, his identity cannot be made public by either side until trial.
The strict rules about the alleged victim's name are yet another uncommon development in the unique Miami case against Taylor, a 30-year-old U.S. citizen born in Boston and raised in the Orlando area. It is the first U.S. prosecution of a human-rights violation committed in a foreign country.


2. Vanessa Blum has this article about Padilla co-defendant Amin Hassoun. Blum details how Hassoun is the focus of the government's case and that in the wiretapped calls "Padilla comes across as an almost peripheral figure." Here's a bit more:

In private, Hassoun's views were something less than neighborly.On a 1996 call played for jurors, Hassoun can be heard fuming over a photo published in an Islamic newsletter of a Muslim man shaking hands with Hillary Clinton."The only way to deal with those people is with the sword," he says.Hassoun's lawyers are the first to concede their client's words were sometimes offensive. But that, they say, does not make him a terrorist."He may have ranted and raved, he may have a big mouth, and yes, he did engage in provocative, passionate and political speech, but at all times he did so to help protect and defend Muslims under attack," attorney Jeanne Baker said in her opening remarks to the jury.Hassoun; Padilla, 36; and Kifah Wael Jayyousi, 45, are charged with taking part in a terror cell that sent money, equipment and human recruits to support violent Islamic groups overseas. All three have pleaded not guilty.Though Hassoun and Padilla both initially were arrested just weeks apart in 2002, Padilla's case has drawn more attention because of the "dirty bomber" label and high-profile legal challenges to his 3 ½ year detention without charges at a U.S. Navy brig.

Hitting the ground running

Our new Chief Judge, Federico Moreno, has issued a bunch of administrative orders in his first week on the job. Julie Kay covers all the activity, including "revamp[ing] the way naturalization ceremonies and emergency motions will be handled by assigning judges on a rotating basis to oversee them." The Chief also assigned the judges to different committees. Here's a list of the chairs from the article:

He assigned Judge Joan Lenard to chair the committee on the clerk’s office; Judge Donald Graham to chair the committee on the budget; Judge Jordan to chair the committee on court reporters and interpreters; Judge Huck to chair the committee on magistrate judges; Judge Cooke to chair the committee on probation; Judge Donald Middlebrooks to chair the committee on rules; Judge Martinez to chair the committee on security; and Judge Altonaga to chair the committee on automation. He also appointed Graham as liaison to the Fort Pierce courthouse project; Judge William Dimitrouleas as liaison to the Fort Lauderdale courthouse project; Judge Daniel T.K. Hurley as liaison to the West Palm Beach courthouse project; Graham as liaison to the Criminal Justice Act panel; Judge K. Michael Moore as liaison to the General Services Administration; Judge Alan S. Gold as liaison to the U.S. Bankruptcy Court; and Judge Jordan as liaison to the Volunteer Lawyers Project.

Here are the orders, courtesy of the DBR.

Sunday, July 08, 2007

Fun Padilla coverage in the NYTimes

Sunday's New York Times covers some of the craziness occurring in the Jose Padilla trial. Here we go with some highlights:

Mr. Padilla looks relaxed most days, only seldom betraying tension when his jaw muscles twitch or his shoulders hunch in his business suit. He laughs softly when his lawyers joke, and he smiles at his mother when she comes to court on Fridays. He seems to follow the tortuous proceedings closely, but what he is thinking is anyone’s guess.

What kind of joke could you make to a guy who was held without charges or any real human contact for three years? And isn't it always "anyone's guess" as to what a defendant is thinking?

Where Mr. Padilla eats lunch is one mystery of the trial, . . .

That's a mystery of the trial? Well, here you go -- he's eating in the holding cells in the courthouse. And he usually gets a horrible bologna and cheese sandwich.

. . . but a far larger question looms: What must the jurors be thinking? . . . (One can imagine the jurors in deliberations, arguing over whether “eating cheese” means waging jihad or enjoying a chunk of Gruy√®re.)

Ah, we're back to wondering what others are thinking... I'm willing to bet a lot of money that no juror utters the word Gruyere. Any takers?

Since the trial began on May 14, their own lives have sometimes proved more dramatic than the case. One juror’s sister died of cancer last week; she wept during a break the next day, prompting Judge Marcia Cooke to dismiss court early. Another was injured trying to stop a car thief; he was excused.

Judge Cooke is very considerate. The jurors must absolutely love her. I know the lawyers do.

Several times now, the five women and seven men have shown up in color-coordinated outfits. One day, the men dressed in blue and the women in pink. On July 3, the first row wore red, the second white and the third blue, leading bloggers to wonder whether they were worrisomely frivolous or unified — or so patriotic as to condemn all accused terrorists.

I've been picking on the reporter a bit, but now I sorta like her. She mentions our scoop on the jurors wearing colors to court. Why no shout out!! Come on!!

The most interesting things almost always happen when the jurors are not around. That is when the lawyers complain to Judge Cooke, often bitterly, about each other’s conduct and plans. Once in a while they even fix each other with death stares, as if summoning a voodoo curse.

Now this is good stuff. Maybe I should start a new poll -- who has the best death stare in the trial? Please discuss!

Tensions erupt so often that some days it seems the jurors are filing out to their break room every few minutes. The lawyers have fought over whether the government could use the term “violent jihad” (no), whether it could show jurors a CNN interview with Osama bin Laden (yes) and whether the cross-examination of a witness could last longer than direct questioning.

They complain of insufficient warning about exhibits and accuse each other of prejudicing the jury.
“Your honor, this is insanity,” John Shipley, an assistant attorney general, said last week, complaining about a late-night e-mail message he received from one of Mr. Hassoun’s lawyers.

Some more interesting stuff, but time to pick on the reporter a little again. "Assistant Attorney General"? Nope. Try again. Shipley is an Assistant United States Attorney. But I do like the quote. STOP THE INSANITY!

Judge Cooke usually listens patiently [when the lawyers bicker out of the presence of the jury] while the jurors do who-knows-what — coordinate their outfits, perhaps — in the break room. But last week she blew up at Jeanne Baker, a lawyer for Mr. Hassoun, calling her “disrespectful” after Ms. Baker talked over a government objection.
“Tell the jurors to take 10 minutes,” Judge Cooke said, adding, “I’m taking 10 minutes.”
She adjourned court early that day. There are still weeks to go.

Oh boy. Doesn't sound good for Baker. To get Judge Cooke angry, you really have to mess something up.... Even though I picked at the article, I enjoyed it. It's interesting to cover a trial with good lawyering on both sides...

Friday, July 06, 2007

Big shout out to the blog

NBC's Nick Bogert in his weekly "Bogert's Brief" discusses Bush's commutation of Scooter Libby's sentence. He read this post about my initial reaction to the decision to commute the sentence and asked if we could do an interview. The blog gets a prominent mention and the website address is even displayed. Pretty cool. Here's the video.

It's always interesting doing these interviews and seeing what portions they pick to put on the air. (There's an awful lot of me typing and sitting at the computer, which is very strange when they are filming. I kept typing -- this is really weird, this is really weird -- until they told me to stop.)

"Feds: Miami terror cell practiced with paintball"

That's the headline in this AP article about the Miami 7 from Liberty City who are charged with conspiring to blow up the Sears Tower. My favorite part of the article:

Some were clearly bewildered by what had happened to them. One of those arrested in June 2006 even asked the FBI agents interrogating him whether he could have some of the marijuana he had been carrying, according to the statements filed recently in federal court.

That defendant, 23-year-old Naudimar Herrera, asked for ''a rub of my green'' after the agents showed him a videotape of the group swearing loyalty to al Qaeda and its leader, Osama bin Laden, at the direction of an FBI informant the men knew as Mohammed.

''Herrera said that he needed the substance to calm his nerves. . . . Herrera was provided with a bottle of water to drink and was allowed to take a restroom break,'' an FBI summary said.


Classic.

Thursday, July 05, 2007

More thoughts on the Padilla jury

As detailed below, a bunch of different blogs are commenting on the Padilla jury. And we have had some interesting comments too. A person who claims to have been on the Libby jury has written in:


J said...
On the Libby jury, we all wore red on Valentine's Day. This jury is wearing red white and blue for the Fourth of July. It wasn't a sign of anything then and it should not be read as one now. It's simply a way to relieve the tension and boredom of being in the courtroom for all those hours. It's hard to keep up, believe me, when it's summer and you're thinking about what to put on the grill rather than what a poor case the government is putting on.
1:04 PM


Interesting. I'm swamped right now so I can't comment further, but I will try to get to it this weekend.

Happy birthday SDFLA blog

It's been two great years doing this blog. We started Fourth of July weekend two years ago, and since then readership has shot up (last year we were averaging about 175 hits a day, now we are up to well over 300 per day), a bunch of other local blogs have started to cover the courts, and we continue to have fun doing it.

Here is our first post, arguing that the President should appoint a Floridian to the Supreme Court (apparently, he didn't listen!).

And here is our one year anniversary post.

Our second year anniversary post, about the jurors dressing up in the Padilla trial, has gotten a bunch of attention. Thanks to the Volokh Conspiracy, the Wall Street Journal legal blog, Rumpole, Discourse, The National Review, TalkLeft, and a bunch of others for linking to that post. Our numbers are way up because of it...

Tuesday, July 03, 2007

Dress up day...


So, I thought I was being extremely festive today... not only did I dress up my four year old daughter in red, white, and blue for camp, I even wore a red tie to work. That's nothing though.

In the Jose Padilla trial, jurors showed up today all dressed up. Row one in red. Row two in white. And row three in blue. I'm not kidding.

And this isn't the first time the jury has dressed up. A week back, all of the jurors (save one) wore black.

So what do you make of this. On the one hand, the jury might just be having some fun. This is a long trial and it's not a one hour Law and Order show. It's boring.

Perhaps the jury is unified, which might be a poor sign for the defense. If everyone is thinking the same way at such an early stage, defense lawyers get nervous. Or the prosecution might be concerned because this is obviously a happy jury. Happy juries during a terrorism trial might not be good.

The trial is in recess until next Monday so the lawyers will have plenty of time to make themselves crazy over what all this means.

Any thoughts?

Happy Fourth of July!
UPDATE -- Curt Anderson says that in addition to the black and the red, white, and blue, last Friday all the women wore pink and the men blue. What is going on? Anderson also details how the government expert Rohan Gunaratna was scolded by Judge Cooke today for appearing on CNN yesterday. Dan Christensen and Jay Weaver explain here that the expert is under attack by the defense.

Monday, July 02, 2007

Thoughts on Scooter

President Bush's commutation of Scooter isn't that surprising. But his comments about why he commuted the sentence are:

[C]ritics say the punishment does not fit the crime: Mr. Libby was a first-time offender with years of exceptional public service and was handed a harsh sentence based in part on allegations never presented to the jury....

Mr. Libby was sentenced to 30 months of prison, two years of probation and a $250,000 fine. In making the sentencing decision, the district court rejected the advice of the probation office, which recommended a lesser sentence and the consideration of factors that could have led to a sentence of home confinement or probation.

I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend 30 months in prison....

My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby. The reputation he gained through his years of public service and professional work in the legal community is forever damaged. His wife and young children have also suffered immensely. He will remain on probation. The significant fines imposed by the judge will remain in effect. The consequences of his felony conviction on his former life as a lawyer, public servant and private citizen will be long-lasting.

I agree with the President on these points. Defendants shouldn't be punished for conduct which they have not agreed to or which hasn't been proven to a jury beyond a reasonable doubt. First time non-violent offenders in many cases should not receive jail time. There are alternatives to incarceration that work in many many cases and will work for Scooter Libby. We don't have to worry that he will be reoffending.

The problem with the President's reasoning is that the Sentencing Guidelines prescribe this result and his administration continues to push these guidelines in every case, no matter the individual circumstances. This, of course, is wrong -- not just in Scooter's case, but in a great deal of cases. I hope sentencing judges and prosecutors look at the President's comments and see that the Guidelines need not be applied mechanistically in every case.

Cuban spy speaks

BBC World Service program Newshour has the exclusive interview with convicted Cuban spy Gerardo Hernandez, who received a life sentence from Judge Lenard. His case is still on appeal and is set to be argued in August.

Looks to be an interesting interview. Jay Weaver covers it here. Here's the intro:

A convicted Cuban spy network leader admitted in a prison interview that he was an ''agent'' for Cuba's government, but that he infiltrated South Florida to defend his homeland against alleged attacks by Miami exile ``terrorists.''

Gerardo Hernandez, imprisoned for life in a federal penitentiary in California, said he was not guilty of conspiring with the Cuban air force to shoot down exile pilots over the Florida Straits in 1996 as part of his spy mission.

''Absolutely not,'' Hernandez, 40, said in an interview with the BBC World Service program Newshour, which airs today. During the exclusive interview, Hernandez said the ''worst part'' of his imprisonment was not being able to see his wife of 19 years because the U.S. government has rejected giving her a visa.

Hernandez said he also spoke by phone two years ago with Fidel Castro, who said ''he was confident that justice will prevail'' in the spy case.

New Chief Judge

Congrats to Judge Moreno on becoming Chief Judge of the Southern District of Florida. And a big thank you to Judge Zloch for his service over the past 7 years. It's not an easy position and it's mostly thankless. Here's the district's press release about the change. Any thoughts as to how the district will change with the new chief?

PRESS RELEASE

Judge Federico A. Moreno Succeeds Judge William J. Zloch
as Chief United States District Judge for the Southern District of Florida

Effective July 1, 2007, Federico A. Moreno succeeds William J. Zloch as Chief United States District Judge for the Southern District of Florida. Judge Zloch, appointed to the District Court in November 1985, became Chief Judge on July 1, 2000 and was eligible to serve for seven years as Chief Judge. He concluded his seven-year term as Chief Judge on June 30, 2007. Judge Moreno, appointed to the District Court in July 1990, is the next judge in order of seniority eligible to assume the duties of Chief Judge. The duties of the District’s Chief Judge are listed at 3.00.00 of the Southern District of Florida’s Internal Operating Procedures available under “Rules” on the Court’s internet site:
http://www.flsd.uscourts.gov/.

The Southern District of Florida spans eight South Florida counties with a total population estimated at over 6.3 million residents. The District is among the busiest federal trial court jurisdictions in the country and is served by 18 active district judges, five senior district judges, 18 magistrate judges, and about 550 employees. The Court conducts sessions in Key West, Miami, Fort Lauderdale, West Palm Beach, and Fort Pierce.

Chief Judge Moreno’s chambers are located in the James Lawrence King Federal Justice Building, 99 NE Fourth Street, Miami, Florida.

Contact:
Clarence Maddox, Court Administrator
United States District Court
301 N. Miami Avenue
Room 321
Miami, Florida 33128


ADDED: Isn't it nice that we don't have any chief controversies. Check out Rumpole and JAABlog for the craziness in Broward Circuit Court!

Sunday, July 01, 2007

The Government Strikes Back


From all accounts, this past week was the Government's strongest in the Jose Padilla trial. Its expert witness, Rohan Gunaratna, supposedly did a very nice job on direct. Cross-examination will take a while, and with Court in session on Monday and Tuesday only this week, he will likely be on the stand for the next two weeks. Here's the AP on Gunaratna ("A prosecution terrorism expert testified Friday that a form purportedly filled out by Jose Padilla was identical to those used by al-Qaida for recruits to its premier al-Farooq training camp in Afghanistan.").

To top it off, jurors also saw Padilla co-defendant Adham Amin Hassoun in shackles outside the courtroom. Hassoun's lawyers weren't too happy. Mistrial denied.