Friday, October 30, 2009

Happy Halloween

So, Judge Cooke sentenced a cooperting UBS guy to probation the other day, and today Judge Cohn sentenced a similarly situated co-defendant to 3 months in prison. Curt Anderson has the details:

A federal judge Friday rejected a plea for probation from a New York businessman who admitted concealing $8 million in secret Swiss bank accounts, imposing instead a three-month prison term in the high-profile tax evasion case.
U.S. District Judge James I. Cohn said toy salesman Jeffrey Chernick deserves credit for his cooperation in the broad U.S. probe of Swiss bank UBS AG. But he said allowing Chernick to avoid prison for filing a false tax return "sends the wrong message" in a case that has made international headlines.
"If the court issues a slap on the wrist, to me the notoriety becomes negative," Cohn said. "It essentially informs the public that you can cheat on your income taxes and get away with probation."
Chernick, 70, had faced between 18 months and two years under federal sentencing guidelines. Prosecutors asked Cohn for a nine-month prison term, noting that Chernick's disclosures led directly to the indictments of a Swiss banker and Swiss lawyer on conspiracy charges as well as charges against other UBS clients in the U.S.


Interesting to see the differences in the judges' comments and the ultimate sentence.

Anyway, I'll leave you all with this video, wishing you all a Happy Halloween:

"I needed a defibrillator."

That was Chief Judge Federico Moreno on how he reacted when he realized that Roberto Martinez was asking for an $11 million bonus, and not $1.1 million. Vanessa Blum has all the details here.

From the intro:

Then Chief U.S. District Judge Federico Moreno first read the final fee request for the Mutual Benefits fraud receivership, he thought lawyers were seeking $1.1 million, not $11 million. Then he realized there was no decimal point, the judge recounted Thursday at a hearing in Miami. “I needed a defibrillator,” he joked. “We’re talking about a lot of money.” It is up to Moreno to resolve a simmering dispute over how richly to compensate lawyers for five years of work on one of the largest scams in South Florida history. Roberto Martinez, the court-appointed receiver, is seeking the $11 million bonus to split between his law firm, Colson Hicks Eidson, and primary counsel Kozyak Tropin & Throckmorton. To date, the two Coral Gables firms have jointly collected about $4 million. Moreno did not say when he would rule on the request. Robert Levenson, regional trial counsel for the Securities and Exchange Commission, argued against any fee enhancement, saying it would reduce payments to bilked investors and award lawyers a windfall equivalent to more than $800 per hour.
Receivers should be viewed as public servants and be paid moderately in fairness to victims, he said. “The investors are only going to recover a fraction of their losses,” Levenson said. “These aren’t corporate, market-rate clients.”

Apprently the investors weren't happy either:

No investors spoke at the hearing. In an Oct. 15 letter to Moreno, one investor said he was “appalled” by the receiver’s request. “Please, let’s get these funds back where they belong — in the hands of the investors — and away from greedy hands,” wrote Ronald Meyers of Sanibel Island.

But there is a strong counter-argument:

But Michael Hanzman, of counsel with West Palm Beach-based Ackerman Link & Sartory, who represented defrauded investors in class action litigation, told Moreno the receivership lawyers “deserve a significant fee enhancement.” He did not specify an amount. “If you want to attract the best and the brightest people to take these cases, you have to pay a reasonable fee,” Hanzman said. “This is not a pro bono case.”

That might be overstating it a bit -- the lawyers made an average of $265/hour. The question is whether they should be paid about $800 hour (which is higher than their typical hourly rates) for what everyone agrees was excellent work or whether receivers should make less than their hourly rates because the goal is to return money to the victims.

What say you dear readers?

Thursday, October 29, 2009

News & Notes

1. There's a new blog in town -- The BrowardBulldog, run by excellent reporter Dan Christensen, with help from Buddy Nevins and Julie Kay. It'll be a regular read, for sure. The first post is about Jerry Frank Townsend, who was falsely imprisoned for murder and rape. He sued in federal court and recovered $2 million. It's an unbelievable story.



4. Big trial win for David Howard and Scott Sakin before Judge Cooke. Jay Weaver has the story here:

Seventeen defendants pleaded guilty to drug and other charges before trial, but the remaining two, a fired Miami-Dade police officer and his brother, took their chances with a jury -- and won.
Antonio and Glenn Roberts were acquitted of conspiracy charges Tuesday after a two-week federal trial in which prosecutors alleged they participated in a cocaine-selling ring. They also claimed that veteran cop Antonio Roberts, 48, tipped off the ringleader -- a childhood friend -- that he was under investigation.
Last year, the Roberts brothers were arrested in a sweep of drug and gambling organizations. Another Miami-Dade officer, Michael King, 43, and former Miami-Dade jail officer, Marvin ``Cone Head'' Coney, 43, were among those arrested.
King pleaded guilty to federal obstruction charges for tipping Coney off to a law enforcement investigation, and to state racketeering charges for placing bets on pro basketball games. He was sentenced to five years in prison. Coney, the lead drug defendant who grew up with the Roberts, pleaded guilty to federal narcotics trafficking offenses and was sentenced to 10 years.
The FBI-led investigation, involving almost 10,500 recorded phone conversations, failed to convict the brothers because jurors found they played no roles in the North Dade drug network, their lawyers said.
Antonio Roberts was acquitted of four drug-related conspiracy and obstruction charges. Glenn Roberts was found not guilty of conspiring to possess more than five grams of cocaine with intent to distribute.
Antonio Roberts' lawyer, David Howard, said his client, who served as a county police officer for 26 years, was trying to help his friend Coney get his life back on track.



Wednesday, October 28, 2009

First UBS sentencing

Judge Cooke sentenced Steven Michael Rubinstein to probation based on his extensive cooperation with the feds. From the AP's Curt Anderson:

Rubinstein will be on probation for three years, including the year of house arrest with electronic monitoring and travel restrictions. He also must pay a $40,000 fine. Prosecutors had sought a year of prison time, even as they stressed Rubinstein's ongoing importance to the broader UBS investigation.
"The defendant has provided complete and truthful information," said Assistant U.S. Attorney Jeffrey Neiman.
Rubinstein, a Boca Raton resident who is also a citizen of South Africa, said he was "embarrassed and ashamed" by his actions. He pleaded guilty in June to filing a false tax return and has been providing evidence ever since.
"I've tried to make amends as best I can," Rubinstein told Cooke. "I will continue to assist the government in any manner requested."
Outside the courtroom, as Rubinstein hugged his wife, Pamela, his attorney Robert Panoff called it a "fair and just sentence."

Slow

You know it's a little slow when SFLawyers reaches back into the Iqbal well and Rumpole is wishing happy birthday to Teddy Roosevelt. If that's not your thing, you can check up on legal research and writing at UM. Not doing it for you? How about Adam Lambert's new album cover. At least Glee is on tonight:


UPDATE -- no Glee tonight. It's the World Series instead. I dislike both teams, but I'm sure I'll tune in to see the pitching matchup. Too bad I don't have DirecTV as Friday Night Lights starts up tonight, only on satellite...

Monday, October 26, 2009

Judge Cooke affirmed for dismissing count against Ben Kuehne

Great news! Here's the opinion by Judge Barkett.

She starts off discussing the plain language:

Section 1957(a) prohibits knowingly engaging or attempting to engage “in a monetary transaction in criminally derived property that is of a value greater than $10,000 and is derived from specified unlawful activity.” 18 U.S.C. § 1957(a). However, the statute exempts “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution.” 18 U.S.C. § 1957(f)(1). Thus, the plain meaning of the exemption set forth in § 1957(f)(1), when considered in its context, is that transactions involving criminally derived proceeds are exempt from the prohibitions of § 1957(a) when they are for the purpose of securing legal representation to which an accused is entitled under
the Sixth Amendment. Accordingly, the exemption is limited to attorneys’ fees paid for representation guaranteed by the Sixth Amendment in a criminal proceeding and does not extend to attorneys’ fees paid for other purposes.

Barkett then makes short work of the government's argument:

The Government argues that the exemption in § 1957(f)(1) has been “nullified” or “vitiated” because, shortly after the provision was enacted, the Supreme Court held in Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 626 (1989) that the Sixth Amendment right to counsel does not protect the right of a criminal defendant to use criminally derived proceeds for legal fees. However, Caplin & Drysdale, which addresses a different statute governing the civil forfeiture of criminally derived proceeds, has no bearing on § 1957(f)(1) and indeed supports the conclusion that such proceeds have been statutorily exempted
from criminal penalties. The Government has pointed to no principle of statutory construction—nor indeed to any legal principle—that supports the conclusion that
a statutory provision may be “nullified” by a Supreme Court decision on a completely different issue, absent any indication that Congress intended such a result.

As Kuehne's legal team has been saying from the start, the government's interpretation yields an absurd result:

As the Government concedes, accepting its interpretation of § 1957(f)(1) would read all meaning out of the exemption. Section 1957 criminalizes only transactions involving criminally derived proceeds. It would therefore make little sense—and would be entirely superfluous—to read § 1957(f)(1) as an exemption from criminal penalties for non-tainted proceeds spent on legal representation, as those funds can always be used for any legal purpose. We do not believe Congress intended such an absurd result, which nullifies the provision and divorces it from its statutory context, thereby violating basic canons of statutory construction.

And congrats to Judge Cooke, who was "eminently correct":

The district court was eminently correct in holding that Defendants are not subject to criminal prosecution under § 1957(a), because the plain language of § 1957(f)(1) clearly exempts criminally derived proceeds used to secure legal representation to which an accused is entitled under the Sixth Amendment.

Now let's see if the government does the right thing and dismiss the rest of the indictment against Ben...

Monday Mashup (Updated)

Pretty tough sports weekend with the Fins and Canes heartbreakers. At least the blog fantasy team whooped SFLawyers. Not a lot happening today.... So let's check out what's going on around the net:

Rumpole has been all over the state court email fiasco.

Perhaps the state judges should take their cue from Justice Thomas and hush. Yes, he was talking about oral arguments:

Thomas — who hasn't asked a lawyer a question during arguments in nearly four years — said he and the other eight justices virtually always know where they stand on a case by reading legal briefs before oral arguments.
"So why do you beat up on people if you already know? I don't know, because I don't beat up on 'em. I refuse to participate. I don't like it, so I don't do it," Thomas said during an appearance before law students at the University of Alabama.
Thomas didn't name names, but fellow conservative Justice Antonin Scalia is generally considered the court's most aggressive questioner during oral arguments. President Barack Obama's lone nominee so far, Justice Sonia Sotomayor, isn't afraid to ask questions either.
Thomas scoffed at the idea that the justices try to use questions to influence the opinions of fellow members of the court.
"All nine of us are in the same building," he said. "If we want to sway each other we know where we are. We don't need oral arguments to do that. It doesn't make any sense to me."

The Supremes will be hearing the juvenile sentencing cases from Florida in a couple weeks. The ABA covers it here:

As any parent knows,” children are different. So said U.S. Supreme Court Justice Anthony M. Kennedy more than four years ago in Roper v. Simmons. There, a deeply divided court ruled 5-4 that executing those who committed murder as ju­veniles vio­lated the Eighth Amendment’s proscription against cruel and unusual punishment. Part of the reason, the court said, was that juveniles were less cul­pable, less mature and less responsible than adults.
“The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character,” Kennedy wrote for the majority.
“From a moral standpoint,” he added, “it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.”
This month the court returns to the subject of juvenile justice by examining what has been termed the penultimate punishment for juveniles, life without parole.
In a pair of cases from Florida, Graham v. Florida and Sullivan v. Florida, the court must determine whether Roper’s reasoning—that juvenile defendants are fundamentally different from adult defendants—extends from the death penalty to life without parole. Arguments are scheduled for Nov. 9.


UPDATE -- Another Vanessa Blum video report this morning!

Friday, October 23, 2009

Why I love Florida's Sunshine law

If you haven't seen this yet, you gotta read Susannah A. Nesmith's piece in the DBR today about the email clash between the state court judges on seniority:

Cueto, elected last year, fired off a letter Oct. 14 questioning Brown’s authority to take away his short-term seniority rights. In his e-mail, Cueto said he had been advised he might have grounds to sue but decided not to.
“I do not want to bring any negative publicity to our branch of government, which is still held in high regard in the community,” he wrote in the e-mail to all judges in the county.
***
Hours after Cueto sent his e-mail, County Judge Robin Faber hit “reply all” to voice his support for Brown’s decision, which he said would “right a wrong, to give judges respect for their years of service, regardless of the distinction between circuit and county.” He noted Brown ran for chief judge this year, saying he would change the seniority rules, and merge circuit and county experience to calculate seniority.
***
Circuit Judge Reemberto Diaz fired off a terse response to Faber’s e-mail.
“Mr. Faber: In the past few weeks, I have received three (3) unsolicited e-mails from you. Let me respond in the order they were received:
1. NO. I don’t know an interior decorator to recommend to you;
2. NO. I don’t want to buy comedy tickets from you;
3. NO. I’m not interested in your misguided opinion about the chief judge’s decision. This is not Craig’s list nor a blog. Have a good day.”
In an interview this week, Diaz found fault high and low. “Quite honestly, I’m not interested in what some county judge has to say about the seniority,” he said.
***
Veteran Circuit Judge Robert Pineiro may have put an end to the e-mail debate last Friday with a tongue-in-cheek note reminding the Miami-Dade judiciary to mind their manners. “Alright, I think it is definitely time to resolve this discussion and bring it to a dignified conclusion — one which will make us proud,” he wrote. “I suggest pies (preferably apple) at 10 paces.”

This is too good to be true, isn't it? Here are the actual emails... there are lots of other nuggets, including judges questioning whether seniority is a right guaranteed by the Constitution.
___________________

More fun stuff -- an order from Judge Pat Kinsey of Escambia County was making the rounds yesterday. Above the Law summarizes the lawsuit: "Albert Freed (pictured) won a trip to Hawaii (not pictured). As part of the vacation celebration, Mrs. Freed bought her husband some new Hanes brand briefs. But Mr. Freed is a husky gentleman, and apparently the new trunks couldn’t contain all of his junk. He sued Hanes, claiming they made 'defective' underwear."

Too much fun for a Friday afternoon.

Thursday, October 22, 2009

Key West courthouse named after Sidney Aronovitz


Here's the Wiki entry for Judge Aronovitz, who was born in Key West. And here is the DBR article about the naming of the Key West courthouse:
President Obama signed a bill this week naming the federal courthouse in Key West for the late U.S. District Judge Sidney M. Aronovitz on recommendations from the Dade County and Key West Bar associations. Aronovitz, who died in 1997, was nominated by President Ford and served as a federal judge for more than 20 years. His career included rulings on abortion, and the cancellation of $4.6 million in fines against Key West boat owners during the Mariel boatlift. Before he became a federal judge, he served on the Miami City Commission from 1962 to 1966, becoming vice mayor in 1965. Aronovitz also was active in community organizations. He was founding chairman of the Dade County Little HUD Housing Authority and Cedars of Lebanon Hospital. His honors included a Gold Medallion award from the National Council of Christians and Jews. Aronovitz was a Key West native whose pioneering grandfather helped found the oldest Conservative Judaism synagogue in Florida in the 1880s. The courthouse that will take his name is at 301 Simonton St.

News & Notes

Stories around town today:

1. Kenneth Welt, the receiver appointed to oversee Lewis Freeman's business, was sued by his brother who asked that Welt's business be put in receivership. (via DBR).

2. Don Diego pleads to 45 years (via Miami Herald). (I thought the Colombian extradition treaty limited potential penalties to 30 years...)

3. The Broward corruption probe is expanding quickly (via Sun-Sentinel).

4. And details are emerging on the undercover agent who worked on the case (via Miami Herald).

Tuesday, October 20, 2009

What is taking so long?


Well, we still don't have any word on our next judge or U.S. Attorney. What could be taking so long? Here's an interesting article from the Washington Post, "Obama Criticized as Too Cautious, Slow on Judicial Posts." Some excerpts:

President Obama has not made significant progress in his plan to infuse federal courts with a new cadre of judges, and liberal activists are beginning to blame his administration for moving too tentatively on what they consider a key priority.
During his first nine months in office, Obama has won confirmation in the Democratic-controlled Senate for just three of his 23 nominations for federal judgeships, largely because Republicans have used anonymous holds and filibuster threats to slow the proceedings to a crawl.
But some Democrats attribute that GOP success partly to the administration's reluctance to fight, arguing that Obama's emphasis on easing partisan rancor over judgeships has backfired and only emboldened Senate Republicans. Some Republicans contend that the White House has hurt itself by its slow pace in sending over nominations for Senate consideration. President George W. Bush sent 95 names to the Senate in the same period that Obama has forwarded 23....
The delays are having a ripple effect in federal courts, where caseloads continue to back up, said Senate Judiciary Chairman Patrick J. Leahy (D-Vt.). Currently, about 90 judicial seats -- about 10 percent of the total -- remain vacant in appeals and district courts.
The White House predicts that nominations and confirmations will pick up soon. "The administration has been working closely with members of Congress to identify a set of uniquely qualified judicial nominees with diverse professional experiences," said Ben LaBolt, an Obama spokesman. "This process has been bipartisan and we have made every effort to make confirmation wars a thing of the past."
But liberal activists argue that Obama needs to quicken the pace, partly for political reasons. "It is incumbent on the Democrats and the White House to push as hard as they can to confirm judicial nominees, given that next year Republicans will make an all-out effort to block candidates as a means to gin up their base before the election," said Nan Aron, president of the Alliance for Justice, an advocacy organization.
Analysts say that unlike Bush, who saw judicial appointments as a way to advance a strict view of the Constitution, Obama has not sharply defined his judicial philosophy. Eric Posner, a professor at the University of Chicago Law School, said that Republicans consider the federal courts crucial to furthering their policy aims by overturning current law, but that Obama is among Democrats who view court appointments mainly as a means of defending the legal status quo.
The State system on the other hand is chugging along. John Kastrenakes was sworn in last Friday by Judge Moreno. Grey Tesh has all the details here, including speeches by Ryon McCabe, Judge O'Sullivan, Andrew Lourie and Michael Cornely.

Sunday, October 18, 2009

Snitching ain't easy

Lots of interesting reading on this beautiful Sunday. The Sun-Sentinel has a couple of interesting stories on snitching:


"Sheila is for Sheila is for Sheila," said Bill Colon, who served two terms as a Sunrise commissioner in the 1980s. "A lot of people will believe that she betrayed their trust."Marvin Langendorf, a Sunrise resident and City Hall gadfly, applauded her courage."There's too much graft going on and no one ever does anything about it," Langendorf said. "People say they can't trust her. But if you don't do anything wrong, you don't have anything to worry about."Those who are not involved in politics likely admire Alu for having the courage to take on an undercover role without training, said Lance deHaven-Smith, a political science professor at Florida State University."If you told your average citizen, 'Other politicians don't trust her,' that would be an endorsement," he said.Call her a snitch or a rat, and Alu has this retort: "I wear that badge with honor."


"Unlike any gangs I've seen before, they stick together," said the gang detective.On June 26, 2008, detectives in "Operation Deep Six" moved in to take down Top 6. Backed by a grand jury indictment that alleged 91 crimes, SWAT teams from three police agencies raided six homes simultaneously.Detectives tracked down the Top 6 leaders, arresting all 12 within a few weeks.Faced with racketeering charges that could put them in prison for up to 30 years, Top 6's leaders cracked.Jessee Thomas and Ernst Exavier were convicted but got reduced sentences for agreeing to testify against their cohorts. Top 6's leader, Futo Charles, also has agreed to cooperate."I know for me to work it down, I have to be 100% truthful about your questions and about my answers or the deal is off," Charles wrote to prosecutors. "I'm willing to do just that."After at least 20 murders, hundreds of shootings and scores of robberies, burglaries and attacks, Top 6 effectively has been silenced. Palm Beach County is safer today because of it, said police officials and prosecutors."We have seen a real drop in crime," said William Shepherd, Florida's statewide prosecutor. "Which is lives. It's not just numbers on the page."


Thursday, October 15, 2009

Robe-itis?

There's been a bunch of funny exchanges this week in the Supreme Court. One tipster sent this one from the attorney's fees case:

CHIEF JUSTICE ROBERTS: Maybe we have a different perspective. You think the lawyers are responsible for a good result and I think the judges are.
(Laughter.)
MR. CLEMENT: And maybe your perspective's changed, Your Honor.
(Laughter.)


I think most lawyers think that the best judges are the ones that remember what it was like to practice....

While we're off topic, let's take a look at Rick Bascuas' entertaining blog, where he claims that Obi Wan was the hero of Star Wars. Rick, what about Han Solo? R2-D2? Come on...



And as we stray even more off-topic: any Gleeks out there?

Wednesday, October 14, 2009

Judge Seitz case goes to Supreme Court

Yesterday the Supreme Court granted cert in Holland v. Florida, which presents the following question:

Whether the Eleventh Circuit erred in denying equitable tolling to the defendant to excuse his late filing of his habeas petition, based on the conclusion that the late filing was due to “gross negligence” of counsel, while factors beyond “gross negligence” are required for equitable tolling; whether equitable tolling is available to toll the statute of limitation under the AEDPA.

Here's the 11th Circuit opinion. And here's Todd Scher's cert petition. Congrats to Scher for this amazing opportunity. He was appointed CJA and continued to fight for his client, filing a cert petition after the losing before Judge Seitz and the 11th. Getting cert on a habeas case from the indigent docket is almost impossible, so well done!

Tuesday, October 13, 2009

Cuban spy resentenced

Antonio Guerrero, who was originally sentenced to life, was just resentenced to almost 22 years in prison by Judge Lenard after the case was remanded by the 11th Circuit. The parties had agreed to 20 years in prison, but Judge Lenard found that the case warranted a higher sentence.

Here's the Herald coverage and the AP.

Guerrero has about 11 more years to go, but that's a whole lot better than life. Two other spies will have their resentencings soon.

Prior blog coverage here.

Interestingly, the Supreme Court granted cert in Jeff Skilling's case today, which raises a similar issue to that of the Cuban 5 -- can "searing media attacks" taint a criminal trial. The case also raises questions about the honest services statute, which the New York Times highlighted today in the Conrad Black case.

I like this parenthetical in the article:

(The appeals court decision affirming Mr. Black’s conviction, by Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, in Chicago, contained perhaps the best judicial digression of 2008. Discussing a so-called ostrich jury instruction, Judge Posner paused to say that ostriches do not in fact bury their heads in the sand. “It is pure legend and a canard on a very distinguished bird,” he wrote.)

Alrighty then.

Monday, October 12, 2009

Columbus Day edition

What a strange day -- courts are closed, but schools are open. It only took 10 minutes to get downtown on US1... Apparently, the DBR didn't take the day off. All kinds of fun stuff today, including Vanessa Blum's story on billing rates and her awesome video report:



There's also a story securities cases, which SFL likes because of the new Scott Dimond photo.

And John Pacenti dials in on UBS account holders seeking amnesty.

Jay Weaver at the Herald was busy this weekend on Alan Mendelsohn and Helio Castroneves.

Canes are #9... Dolphins will beat the Jets tonight. And the blog fantasy team racked up a win. And that's your Columbus day edition.

Friday, October 09, 2009

FBI raids Lewis Freeman's office

John Pacenti breaks the story here. It may be over parking:

The FBI executed search warrants at the offices of high-profile accountant and attorney Lewis Freeman, who frequently is picked by judges as a court-appointed receiver or trustee for troubled companies in South Florida, sources said. Freeman and the FBI weren’t talking Thursday when asked about the warrants, which sources said were executed late last week. Legal community sources said the Miami and Plantation offices of Lewis B. Freeman & Partners were searched by the FBI. The search warrants are the latest incarnation of Freeman’s troubles with the U.S. government. Freeman sued the Internal Revenue Service in August over $4.5 million civil assessment against him for allegedly promoting a parking deduction plan that the agency called an abusive tax shelter, according to court documents. The FBI’s presence, however, indicates a criminal investigation may be under way, observers said. “When the IRS assesses someone a penalty, it’s not normal to raid an office,” said Fort Lauderdale tax litigator Martin Press, a partner with Gunster. The IRS typically uses the Treasury Department to execute its search warrants. The FBI is part of the Justice Department. The dapper Freeman is considered an expert on receiverships and speaks nationally on the topic. Information about the warrants remains sealed because criminal charges have not been filed against Freeman, a source said.


In Middle District news, Judge Gregory Presmell had this to say about the lawsuit to allow Segways in the Magic Kingdom: "Although some individuals may, with good reason, not want to use those [wheelchairs and scooters] and instead prefer to use a Seqway, that preference -- standing alone -- is not essential to accessing Disney's parks." Ahhh, judicial humor... standing alone... Presnell is the judge who has ordered litigants to play rock-paper-scissors to settle disputes and recently red-lined a lawyer's pleading.

Thursday, October 08, 2009

The defendant “should not be a casualty of the chaos in Mexico.”

That was Hector Flores in the New York Times today, speaking for his client -- a former federal ICE agent, Richard P. Cramer. From the Times:

According to the complaint, on a number of occasions Mr. Cramer used his position to search federal databases and a California state database to see if certain unidentified drug trafficking organization members were informants for American law enforcement.
The complaint says he passed that information along to his cartel handlers, charging $2,000 for one D.E.A. document, as well as information on how federal agents conduct drug investigations and recruit informants.
Mr. Cramer, the complaint said, at one point invested $40,000 in a 2007 plot to smuggle 660 pounds of cocaine to Spain from Panama, passing through United States seaports.
The load was seized, and that turn of events set off a dispute involving Mr. Cramer, a drug lord and lower-level traffickers that included a hunt for informants, according to the complaint.
The drug agency last August arrested an unidentified participant in the plot who, along with other confidential sources, provided information that culminated in Mr. Cramer’s arrest.

Tuesday, October 06, 2009

Oral arguments at the Supreme Court



So I snuck out a bit early from my meeting today and went over to the Supreme Court. I sat in the attorney room for the tail end of the Stevens case, which addressed whether the First Amendment trumped the statute prohibiting the sale of depictions of animal cruelty. From what I heard, the case will be 8-1 in favor of the criminal defendant Stevens, holding that Section 48 -- prohibiting the sale of depictions of animal cruelty -- is unconstitutional. The one Justice that seemed to say that Congress could pass such a statute was Alito.

Then I actually got into the courtroom and saw the oral argument in Johnson v. United States, a sentencing case from the Eleventh Circuit addressing whether under the federal Armed Career Criminal Act a prior state conviction for battery is in all cases a “violent felony,” even when the state held that offense does not have as an element the use or threatened use of physical force.

It's amazing how close they let members of the Supreme Court bar sit to the Justices. It's like sitting in the front section of the movie theatre before the stadium seating starts. Very close. In this case Justices Scalia and Breyer were going at it. Scalia was clearly in favor of the criminal defendant and Breyer was clearly against. It will be a close case, probably 5-4... I would bet in favor of the defendant. Scalia used a hypo that made everyone laugh -- he asked whether if he told the government lawyer to shut up or he would flick her with his index finger, then would he be committing a violent felony. The government lawyer said yes... Any unwanted touching counted. Scalia didn't agree. Sotomayor was also an active questioner. Breyer kept asking about the "mine run" case, which sounded weird after the 4th or 5th time he used that term. He also took a jab at Scalia, saying if one were to read the legislative history of the statute, which some of his colleagues didn't do, it would be clear that Congress intended to cover this conduct. Chief Justice Roberts said that Congress could have been clearer and used the word battery if it wanted all battery cases covered.

UPDATE -- here's SCOTUSBlog's coverage of the Stevens' case.

PICTURES:

Monday, October 05, 2009

Supreme Court to hear dogfighting video case

Brian Maloney summarizes Stevens v. United States here. The issue is an interesting one: whether the First Amendment protects videos depicting animal cruelty. The Third Circuit found that the First Amendment did in fact protect such videos. From ScotusBlog:

The en banc Third Circuit overturned Stevens’s conviction, holding that the statute was unconstitutional on its face as a content-based prohibition on protected speech. The court first held that the speech regulated by § 48 is protected under the First Amendment. In its view, only one of the established categories of unprotected speech – child pornography – is even somewhat similar to the speech prohibited under § 48. The Supreme Court’s opinion in New York v. Ferber, holding that child pornography is not protected speech, set forth a number of factors to consider when determining whether to “create” a new category of unprotected speech. Applying these factors to the case at hand, the Third Circuit emphasized that although preventing cruelty to animals is “appealing . . . to our sensibilities,” it is not a compelling governmental interest in the context of free speech. Thus, it held, § 48 fails strict scrutiny because “it serves no compelling government interest, is not narrowly tailored to achieve such an interest, and does not provide the least restrictive means to achieve such an interest.”

I had a similar case involving cockfighting videos, detailed here but the case never got ruled on as we had to voluntarily dismiss the complaint. Shoot, this could have been my ticket to the Supreme Court...

First Monday in October

It's that time again, and I'm actually in DC for the day. Unfortunately, I'm not getting over to the Court for the first day of oral arguments this Term.

I'll post if I can get to a laptop later today; if not carry on in the comment section.

Sunday, October 04, 2009

Friday, October 02, 2009

Judge Graham is looking for a law clerk...

... to start now! Here's the vacancy posting.

Also check out SFLawyer for good coverage of Judge Jordan's recent dismissal of a case involving a lesbian woman and her children who were not allowed to visit her dying partner's bedside at Jackson. The Herald's story is here. The NYT piece is here.