Monday, March 31, 2008

No Liberty City verdict yet

Uh-oh... Any bets on when (if) we'll get a verdict?

In the meantime, check out this WSJ Blog story about a South Florida lawyer in the hot seat because of a "joke" he made with a prosecutor:

Consider this scenario: In 1999, Florida lawyer David Lamos was representing J.B. “Pig” Parker, who faced capital charges for his alleged role in the 1982 murder of store clerk Frances Slater (no relation to the Law Blog). Lamos faxed a motion to the prosecutor in the case, Lawrence Mirman, entitled “Reply to Reubuttal to Defendant’s Objection to State’s Motion to Quash.” The letter, which starts with Parker’s name and includes the words “dig dis” in the first sentence, goes on to cite case law in broken English and includes a passage about another case. “His posishun wuz rejected by de Flo’ida Supreme Court. Man!” the letter said. “He awaits ‘esecushun. De state be dig itably distressed cuz de kicker be on da oda’ foot. Man!”
two-page motion was written in what experts later referred to as ebonics, and, according to testimony Lamos gave earlier this month, was intended as a “jest.” On the cover letter to the fax Lamos wrote, “As you can see, my writing improves with revision.” Lamos later asked Mirman, “Ask Bruce if I can have a job?” referring to Bruce Colton, a Florida state attorney.
As reported in this story from the
Palm Beach Post, JoAnn Barone, the public defender now representing Parker at the post-conviction stage, is using the “joke” motion to argue that Lamos wasn’t acting in Parker’s best interest when a judge sentenced Parker to death for the second time. Barone tried to get Lamos to read the letter aloud in the courtroom, above the objections of the prosecutor, but the judge instead read the letter to himself and asked Barone to move on in her questioning.
The Law Blog contacted Lamos to get his side of the story. “I have no idea what [the prosecutors] thought it meant,” said Lamos. “What they were alluding to was a legal motion that, as a joke, was put through a piece of Web-based software that changed the vernacular. But if you look below the surface, the content of the fax was favorable to Parker. I guess what they were trying to make of that was that it amounted to some kind of misconduct in the case. But it had no relevance. It was never made a part of the record, and was never put into evidence. I have no idea where they were going with that. If you look at the content of it, it is ridiculously funny.”

Seems to me that this is ridiculously NOT funny.

Friday, March 28, 2008


So we scooped the Ben Kuehne story yesterday, reporting that new prosecutors were considering dropping some counts in the indictment. A bunch of others (WSJ, DBR, NLJ) picked up on the story with no hat tip to us! How dare they! At least the Review quoted me...

Again, thanks to my tipster for the info...

Thursday, March 27, 2008

Chief Judge Moreno allows cell phones for jurors

Big kudos to the Chief!

From Julie Kay's National Law Journal article:

Jurors and witnesses in South Florida federal trials will no longer have to bury their cellphones in the ground before entering the courthouse. U.S. District Judge Federico Moreno, chief judge for the Southern District of Florida, issued an order last week expanding the use of cellphones in the courthouse to prospective jurors, seated jurors and witnesses. The cellphones may have integrated cameras, he stated.

The issue of cellphones in federal court has been somewhat controversial in South Florida. Previous chief judges refused to even allow lawyers to carry cellphones into the courtroom, both for security concerns and to prevent photographs from being taken. Cameras are not allowed in federal courts nationwide, however a movement is now afoot to change that rule.

Since 2006, lawyers, judges, courthouse employees and federal agents have been allowed to bring cellphones into federal courthouses throughout South Florida, including in Miami, Fort Lauderdale and West Palm Beach. But jurors, reporters and others have complained about the rule. Sometimes unaware of it, visitors to the courthouses have been forced to bury their cellphones in the ground outside the courthouses and retrieve them when leaving.

In his order, Moreno noted that judges may need to contact jurors during recesses and attorneys may need to contact witnesses on short notice.

Because U.S. marshals will inspect all cellphones, security is not a concern, he stated.

"In today's modern world, security concerns are paramount," stated the order. "Yet these security concerns are satisfied by airlines, the White House, and the majority of courthouses in the United States where cellular telephones are permitted. Expanding the list to include these individuals will not diminish the security provided to the occupants of the courthouse, while at the same time enhance the availability of jurors and witnesses to participate in our court proceedings." Moreno did not extend the privilege to the use of laptops.

Dismissal of some counts in the Ben Kuehne case?

Thanks to a tipster, check out this Government motion for extension of time to respond to the defense motions:

The United States, by and through the undersigned attorneys,
respectfully requests that this Court grant an enlargement of
time for the Government to respond to the Motion of Defendant
Kuehne to Dismiss Count Six of the indictment and for a Bill of
Particulars. Defendants Florez-Velez and Saldarriaga have both
moved to join in the motion to dismiss. The reasons for this
request are set forth herein.
The Government’s responses to the above pleadings are due to
be filed on March 24, 2008. The undersigned prosecutor has
recently become lead counsel in this matter and has undertaken a
review of the current charges in the case. As part of that review
process, there have been discussions at the Department of Justice
concerning whether there should be a voluntary dismissal of these
counts. In that event, the current defense motions would become
Unfortunately, the Department has not been able to reach a
conclusion as to this matter and the undersigned has been
instructed to seek a brief continuance - in the nature of three
weeks - so that the matter can be subject to further discussion.
In accordance with Local Rule 88.9, the undersigned has
personally spoken with Joaquin Mendez, Esquire, counsel for
defendant Saldarriaga, who indicated no objection to the
requested continuance. In addition, John Nields, Esquire,
counsel for defendant Kuehne, has indicated that he has no
objection to the requested continuance. The undersigned left a
voice message for Henry P. Bell, Esquire, counsel for defendant
Gloria Florez Velez, informing him of the request.
A draft order is attached hereto for the Court’s
Respectfully submitted,
/s/ Robert Feitel
United States Department of Justice
1400 New York Avenue, N.W.
Washington, D.C. 20530
Telephone: (202) 307-3586

So, the Government has a new lead lawyer and is now reviewing some of the counts to see if they should be dismissed. Thoughts?

Wednesday, March 26, 2008


The Liberty City 7 (six) case is winding down. Closing arguments started today. Coverage from the usual suspects here, here and here.

Can you imagine if this case hangs again (as the first set of jurors suggested after they couldn't reach a verdict). Would the government try it again? Should they?

As for Ben Kuehne's trial, it's set for Jan 2009.

Tuesday, March 25, 2008

"This prosecution boldly goes where none has gone before."

That's Milton Hirsch (I'm a sucker for Star Trek references) on Ben Kuehne's indictment, which is covered today in the DBR. The article focuses on the defense motions filed in the case.

The AP also had a story this weekend on the case.

Interestingly, Kuehne's lawyers have decided not to comment on the case at all. I guess they can do that because the criminal defense bar has (rightly) rallied behind Ben and comments on his behalf. Edward Bennett Williams has a policy at Williams & Connolly that no one was to comment to the press -- he could have that policy because he was best friends with the owner and editor of the Washington Post and gave lots of background info to the papers. I don't think W&C has that policy anymore.

Thw WSJ Blog covers defense lawyers talking to the press in the Scruggs case here. It's an interesting read.

Monday, March 24, 2008

Trains, Planes, and Automobiles

Or boats... Here's how Chief Judge Kozinski starts out an opinion in NEW HAMPSHIRE INS. v. C’EST MOI, INC.:

KOZINSKI, Chief Judge:
We consider the doctrine that’s on everyone’s lips: uberrimae fidei.

I had no idea either. According to Black's law, the Latin phrase means: The most abundant good faith; absolute and perfect candor or openness and honesty. It's a common phrase for you maritime lawyers.

As for planes, here's John Pacenti's article about seizures related to aircraft.

I know, I know -- this isn't the most gripping post I've ever done. But help me readers -- are there any great trials out there to blog about?

In the meantime, you can check out the other local blogs for fun posts about our state legislature at work allowing exemptions for plumbers re the low underwear law (via Rumpole) or fighting over fees (via South Florida Lawyers). And for my AUSA friends, here's a piece about shackling PDs (don't get too excited).

Thursday, March 20, 2008


Luckily it wasn't in this District. It happened in the Eastern District of New York.

Above the Law has more details including the transcript of the proceeding and the actions of the court reporter, who jumped on the defendant.

When I was a PD, a colleague (who was a former cop) had a client rush the judge. The PD jumped on his back and pinned his arms behind his back as the Marshals watched. It was a pretty funny sight...

Wednesday, March 19, 2008

My Apologies

Sorry for being gone the last couple days.

I will get back to blogging soon.

In the meantime -- it's March Madness. If you want to win a Supreme Court bobblehead, fill out your brackets here. Quickly!

Or catch up on all the recent cert grants in the Supreme Court (and the Heller arguments).

Of note to many of you -- the Miami Zuckerman Spaeder office has closed as everyone has bolted. Mike Pasano, Steve Bronis, Paul Calli, Tom Meeks, Walter Tache, and Marissel Descalzo are headed to Carlton Fields. Not sure where the other Miami Zuckerman lawyers are headed.

Thursday, March 13, 2008

Greenberg Traurig indicted... Guam (via ABA Journal).

It relates to the Jack Abramoff scandal.

Dersh on Spitzer

Here is Professor Alan Dershowitz's take on the Eliot Spitzer case. I post it because it is very different than the way most of us feel about Mr. Spitzer. Here's a snippet:

The federal criminal investigation that has led to Eliot Spitzer's resignation as governor of New York illustrates the great dangers all Americans face from vague and open-ended sex and money-transaction statutes.
Federal law, if read broadly, criminalizes virtually all sexual encounters for which something of value has been given. Federal money-laundering statutes criminalize many entirely legitimate and conventional banking transactions. Congress enacted these laws to give federal prosecutors wide discretion in deciding which "bad guys" to go after.
Generally, wise and intelligent prosecutors use their discretion properly -- to target organized crime, terrorism, financial predation, exploitation of children and the like. But the very existence of these selectively enforced statutes poses grave dangers of abuse. They lie around like loaded guns waiting to be used against the enemies of politically motivated investigators, prosecutors and politicians.

He concludes:

Lavrenti Beria, the head of Joseph Stalin's KGB, once quipped to his boss, "show me the man and I will find the crime." The Soviet Union was notorious for having accordion-like criminal laws that could be adjusted to fit almost any dissident target. The U.S. is a far cry from the Soviet Union, but our laws are dangerously overbroad.

Both Democrats and Republicans have targeted political adversaries over the years. The weapons of choice are almost always elastic criminal laws. And few laws are more elastic, and susceptible to abuse, than federal laws on money laundering and sex crimes. For the sake of all Americans, these laws should be narrowed and limited to predatory crimes with real victims.


Judge Marcia Cooke speaks at the Federal Bar luncheon

While everyone else is wasting the day looking at "Kristen" pictures, we here at the SDFLA blog have pictures from yesterday's federal bar luncheon. Judge Cooke gave a very entertaining speech and demonstrated why she is so well liked by just about everyone who appears before her.

Tuesday, March 11, 2008

Reminder -- Judge Marcia Cooke to speak tomorrow at lunch

At the Banker's Club at noon.

Cost is $35.

There are a few seats left. You can pay at the door if you RSVP to Lourdes at

See you there!

The mold problem couldn't be any worse, right?


There is mold throughout the James Lawrence King building. From John Pacenti's DBR article:

Another federal courthouse is riddled with mold, according to a private study last fall commissioned by the U.S attorney’s office. The study found mold spores in the air throughout the James Lawrence King building in downtown Miami. U.S. Attorney Alex Acosta said Monday he asked for the study after mold problems at the Dyer Courthouse across the street became public last year following the unusual death in 2006 of a federal judge from a mysterious pulmonary illness. Acosta said the study’s report found “areas of concern” spread throughout the building. He said it was not unusual for one floor to be affected on one side more than the other. He also confirmed a small number of employees have complained about respiratory illness. Sources say some workers have chronic bronchitis.

For our out of town readers, don't be surprised by this -- we have mold in just about every building in Miami. So, what should be done?

Acosta said the study — which he did not release — recommended an upgrade of the building’s air conditioning and humidity control system followed by the cleaning of the air handling units and replacing insulation in air ducts. “I became concerned with the air quality in this building and thought it appropriate and necessary to protect our employees with our own assessment,” Acosta said. “This is a quality of life issue and it needs to get done.” Acosta said air purifiers — purchased out of the U.S. attorney’s office budget — have been located in the most problematic areas. Acosta referred questions about cost of the project to the General Services Administration, which acts the government’s landlord by renting out space in federal buildings.

The bright spot to all of this -- the new building is supposed to open soon:

U.S. District Court Chief Judge Federico Moreno said a certificate of occupancy has been issued and technical services should move into the Wilkie D. Ferguson Jr. courthouse this month.

Monday, March 10, 2008

Client 9 and the Mann Act

The Mann Act is used quite frequently in this district to prosecute pimps and others who "persuade, induce, entice or coerce" women to cross state lines to engage in prostitution. 18 USC 2422 provides

Whoever knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce, or in any Territory or Possession of the United States, to engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.
This seems like an easy prosecution for the feds if they choose to prosecute Eliot Spitzer, if the allegations are true. He certainly induced the prostitute to travel from New York to DC to engage in prostitution.

Now, should the feds pursue a simple prostitution case just because the prostitute traveled from state to state? There is nothing to suggest that the prostitute was coerced or was forced into this business (in fact, she was making more per hour than just about every lawyer in town). The original Mann Act of 1910 was really meant to outlaw forced prostitution (and was known as the "White Slave Traffic Act.") Although recent cases have greatly expanded the scope of the Act and the prosecution would be permissible, do you think such a prosecution is appropriate?

Trivia -- The most famous person prosecuted under the Mann Act is probably Charlie Chaplin.
TalkLeft has a bunch of good posts, including one exlplaining how the investigation started.

Pending motions list

In this morning's DBR, John Pacenti dimes out the district judges who have the most pending motions. Many judges check these stats out every month and want to make sure they have the lowest number of cases and motions.

When I clerked, Judge Davis would look at the list, but wouldn't really comment on it or seem to care too much about it. He always told us to work hard and not worry about the stats. (I guess his position might have been different if we were at the bottom of the list and not in the middle of the pack.)

Unless there is some glaring problem with a case or a motion that has hung around longer than it should, I think these lists are pretty silly. It's more important to get it right than to do it quickly.

What say you, SDFLA readers? (And pay no attention to Mr. Grumpy in the comments).

Friday, March 07, 2008

Chief Justice on cameras in the Supreme Court

"It's not our job to educate the public. Our job is to decide vitally important cases under the Constitution."

That's what he told a group of high school students in response to a question about why there were no cameras in the High Court.

Is it me or isn't that a very self-important, arrogant and obnoxious answer? I like the Chief Justice, but I disagree with him strongly on this point. How does educating the public at all take away from deciding important cases?

"If the state court is not sensible enough to dismiss this piece of shit, it will end up in federal court."

That was Fred Haddad about the Florida Bar complaint against attorney Sean Conway for his comments on a blog about Judge Cheryl Aleman.

Thursday, March 06, 2008

Liberty City 7 -- prosecution rests

That happened yesterday.

Why aren't there more self surrenders?

Brian Tannebaum has this interesting post on self surrendering defendants to face charges. He argues that defense lawyers should be able to voluntarily surrender a defendant when that person and the lawyer know about the charges in advance:

The purpose of an arrest is to take the defendant into custody and present them before a judge or have them bonded out immediately. It's not a damn prize or game.And I'm tired of prosecutors telling me "I'm not going to interfere with their desire to arrest your client." What are you all so afraid of? Tell the officers/agents, I know this defense attorney, he keeps his word, let his client surrender. If they say no, so be it.

This issue actually comes up quite frequently in this District. Wouldn't it save everyone a great deal of time and resources if there was more cooperation on self surrendering a defendant? What say you SDFLA readers?

Wednesday, March 05, 2008

Joel DeFabio -- back to back Not Guilty verdicts

Hot off his win in the Liberty City 7 case, Joel DeFabio won last night in the Haitian slave case. In both, his client was the only full acquittal.

Here's the Herald article and the Sun-Sentinel article.

ADDED: From the comments, Rumpole jokes:

One more NG within the calendar year and the DOJ will have no choice but to convene a grand jury on obstruction of justice charges. Plus there must be some guidelines enhancement for winning a case and pissing the US attorneys off.

Monday, March 03, 2008

Blog topics

I guess I should be blogging about the new crack guidelines become retroactive today, but instead I'll point you to this funny post at AboveTheLaw about our blackout last week.

Slowwwww blogging

I apologize for the slow blogging recently.

But what's going on in the District? Any news you want to share? Email it to me so I can post about it (anonymously if you'd like).

In any event, I hear that the "Haitian slave" case is coming to a close in the next day or two.

The Liberty City Seven/Six case is plugging along.

The new building is still closed.

And it's March already!