John Pacenti knocks it out of the park

He's got two interesting stories in the DBR this morning:

1) Lew Freeman's emails from prison and 2) the age of our district's judges.

Here's a part of the Freeman article:

Other reports from Freeman dispel any notion of a "Club Fed" where white collar criminals enjoy the comforts of home.

He spins a story of when 11 "new spa members" showed up late one night and there was a shortage of mattresses. Inmates learned there were 300 new mattresses at the prison storage but couldn't be touched because they were to be used in case of a hurricane.

The temperature in the prison also fluctuates wildly, he relates. A cold snap in the fall was made even more brutal for inmates by an air conditioner still blowing. Freeman said he bought a wool cap for five tunas and another inmate loaned him a long-sleeved shirt.

"I was petrified of waking up one morning and urinating ice cubes from the freezing," he said.

Then when temperatures returned to normal, the air conditioning unit broke, and Freeman said he stripped down to a T-shirt and shorts at night to stay cool.

He also relates a time when three urinals broke and the hot water was turned off forcing inmates to take cold showers.

"If you wanted a warm shower it was up to you to supply it. No I didn't pee in (the) shower," he wrote.

Freeman spins a lot of bathroom humor. Not a big change from his days on the outside. He revels in the fact that there are private shower stalls, but adds he doesn't think he's in too much danger if he drops the soap: "I am too old and undesirable to this population."

And the age issue article has some interesting comments from our judges. Here's Judge King:

King didn't shy away from the issue. In a 45-minute interview, he talked about telling fellow judges and established attorneys in the community — the old lions of the bar, as he calls them — to alert him or Moreno if he starts to slip. King was articulate and entertaining. He said he takes no medication and seemed chagrined that he had to run to the eye doctor to update his eyeglass prescription.

King, who has been on the bench 40 years, still routinely travels to Key West for trials in the southernmost point of the district and is overseeing multidistrict litigation involving debit card fees. He still does some things old school. He will not sign an order electronically and keeps a paper printout docket of all the cases before him on the corner of his desk.

The judge said he also watches how his rulings hold up on appeal. He said if he is only reversed a couple of times a year among the numerous decisions he makes, he believes he still has what it takes to keep on the bench.

King said another reason judges don't readily retire is because they see the position as a calling.

"The philosophy is that this is sort of like becoming a priest or a rabbi or a minister," he said. "It is a life commitment."

Judge Moreno has a good quote: "Getting older, as in many things, is a good thing. Judges are like good wine, the older they get, the better they get."

Judge Cohn sentences Larry Wilcox to probation

Whew. Jon Baker made many enemies over the years with all of his arrests, so it wouldn't have been easy in jail. From CNN:

Larry Wilcox, the actor who played Officer Jon Baker on the 1970s TV show "CHiPs," was sentenced Friday to three years probation by a Florida judge for conspiracy to commit securities fraud.
Wilcox pleaded guilty in November and had been cooperating with the authorities, according to court documents. In addition to serving three years of probation, he was ordered to perform 500 hours of community service and pay a $100 fine. Along with Erik Estrada as Officer 'Ponch' Poncherello, Wilcox started in the show about two well-coifed, motorcycle-riding California Highway Patrolmen from 1977-1983.
The Securities and Exchange Commission charged Wilcox in October with paying kickbacks to pension fund managers and brokers to manipulate the volume and price of penny stocks and illegally generate stock sales.
The scheme involved more than a dozen other penny stock promoters and the SEC worked closely with the FBI and authorities in Florida in an investigation that involved "undercover operations."
Wilcox faced a maximum of five years in prison, but Judge James I. Cohn decided he deserved a lighter sentence.

In other news, Dennis Kucinich settled the olive pit case. SFL even got an email from him, and he posted some good pics.

"The judge wants to see you, Mark."

That's what a deputy U.S. marshal told Mark Steven Phillips when they arrested him today after 30 years on the run. According to the Miami Herald, Phillips responded: "The judge wants to see me from 30 years ago?" Jay Weaver has more:

A key member of the infamous Miami-based Black Tuna Gang, the biggest U.S. marijuana-smuggling operation of its time, was arrested by the U.S. Marshals Service Thursday morning in West Palm Beach -- more than 31 years after he skipped out of a federal trial.

Mark Steven Phillips, 62, was captured in his rented apartment at Century Village, a senior living community where he had been living in recent months, law enforcement officers said.

Does the Constitution Cafe at the federal courthouse...

...serve unpitted or pitted olives? It's an important question. You see, if they serve unpitted olives, people may get hurt:

Dennis Kucinich is suing the Longworth House Office Building cafeteria because of a sandwich.
You want more? The friendly Cleveland congressman filed suit against a number of companies that supply and run the congressional eatery, because in 2008 he bit into a "sandwich wrap" of some kind and hurt his teeth on an olive pit.

According to the suit: "Said sandwich wrap was unwholesome and unfit for human consumption, in that it was represented to contain pitted olives, yet unknown to plaintiff contained an unpitted olive or olives which plaintiff did not reasonably expect to be present in the food prepared for him, and could not visually detect prior to consumption."

Kucinich claims he suffered "serious and permanent dental and oral injuries" and has sustained "other damages as well," including "suffering and loss of enjoyment."

Kucinich seeks $150,000 in damages. Gawker found video of Kucinich talking on the floor of the house five days after Olivegate, and he seems fine, but just as it's inappropriate to suggest that Jay Cutler was faking his injuries because he could briefly ride a bike on the sidelines, we shouldn't assume that Dennis wasn't suffering from an acute loss of enjoyment as he addressed the House.

Oh boy... Maybe this is why Obama hinted at tort reform during the SOTU.

What else do we have this morning?

• Should Justice skip the SOTU? No, says this op-ed.
• How could you think this guy was really an immigration lawyer?
• Some Jon Stewart awesomeness:
  
  

  The Daily Show With Jon Stewart	Mon - Thurs 11p / 10c
  State of the Union 2011 - Republican Rebuttal
  http://www.thedailyshow.com/
  Daily Show Full Episodes Political Humor & Satire Blog The Daily Show on Facebook

Does anyone use the Bluebook anymore?

Judge Posner certainly doesn't. Here's the intro to his review of the 19th edition:

Nowadays the word “hypertrophy” is used mainly to denote a class of diseases in which an organ grows to an abnormal size because of the uncontrolled growth of the cells that constitute it. But the word is still used occasionally to denote a structure or activity that has grown far beyond any apparent functional need.2 An example is the Egyptian pyramids. The pharaohs needed a secure burial place because they were buried with valuable possessions that they believed they would need in the afterlife. But security didn’t require an immense pyramid of stones above the burial place. This is not to suggest that the elaboration of the pharaonic burial places was mindless; but it served cultural, religious, and political needs remote from the functional need to secure the burial place against thieves.3 Examples of hypertrophy in law abound. The staff of the U.S. Supreme Court is an example. Over the last half century it has grown in both size and quality. There are twice as many law clerks, they are more carefully selected, and they have served a year as a law clerk to a lower court judge, usually a federal court of appeals judge. And because of the creation of the “cert pool” in
which all but two of the Justices participate, the average amount of time that law clerks spend preparing cert memos for the Justices has fallen, even though the number of petitions has risen. This allows the clerks more time to work on the Court’s principal output—opinions in argued cases. Yet the number of such opinions issued by the Supreme Court has fallen by half since 1984, without any discernible increase in quality, though the current Justices are on average as competent and conscientious as their predecessors.

The Bluebook: A Uniform System of Citation exemplifies hypertrophy in the anthropological sense. It is a monstrous growth, remote from the functional need for legal citation forms, that serves obscure needs of the legal culture and its student subculture. Many years ago I wrote a review of The Bluebook, then in its sixteenth edition. My review was naïvely entitled “Goodbye to the Bluebook.”4 The Bluebook was then a grotesque 255 pages long. It is now in its nineteenth edition—which is 511 pages long.

I made a number of specific criticisms of The Bluebook in that piece, and I will not repeat them. I don’t believe that any of them have been heeded, but I am not certain, because, needless to say, I have not read the nineteenth edition. I have dipped into it, much as one might dip one’s toes in a pail of freezing water. I am put in mind of Mr. Kurtz’s dying words in Heart of Darkness—“The horror! The horror!”—and am tempted to end there.

Tuesday News and Notes

1. If a criminal defense lawyer did this, we'd be locked up. For Justice Thomas, it's just a mistake.

2. President Barack Obama has selected White House Deputy Counsel Donald Verrilli Jr. to serve as Solicitor General. From BLT:

If confirmed by the Senate, Verrilli would fill the position now held by acting Solicitor General Neal Katyal, who stepped into the job when Solicitor General Elena Kagan was nominated to the Supreme Court.

Verrilli was the former co-chair of the Supreme Court and Appellate practice group in the Washington office of Jenner & Block from 2000 until he joined the Obama Department of Justice in 2009 as an associate deputy attorney general. While at the Justice Department, Verrilli focused on domestic and national security policy issues.

Verrilli is a veteran Supreme Court advocate. He has argued 12 cases before the justices and participated in more than 100. His cases have ranged from the intricacies of intellectual property, such as his defense of music industry copyrights in 2005, to the complexities of the death penalty, such as his pro bono work in Wiggins v. Smith.

Besides his work in the Supreme Court, Verrilli also has participated in about 90 cases in federal and state appellate courts, arguing more than 30 appeals. While at Jenner, he was a member of the firm’s governing policy committee and chair of its diversity committee.

A former clerk to Justice William Brennan Jr., Verrilli is a graduate of Columbia Law School.

The solicitor general is the only position in government which, by law, must be filled by someone “learned in the law.”

3. Which Supreme Court Justices will attend the State of the Union tonight? Remember the controversy last year with Obama and Alito getting into it... ATL has the odds of who will show up here.

4. SFL has some (good) advice for Yoss. And Rumpole is right on with his rant about the closing of I95 yesterday. Perhaps all the traffic delayed him in getting me my check... I'm still waiting for the $50 he owes me from last year's bet.

Monday morning hits

1. Who wouldn't pick Justice Kagan for jury duty? (via Washington Post)

2. 9th Circuit judge Stephen Reinhardt was reversed twice last week on the same day. Ouch. (via WSJ)

3. SFL writes the obit for the Miami City Club.

4. "I am not a terrorist." That was Mike Tein's client at the Playstation sentencing last week. Judge Gold sentenced the three defendants to 6 months of home confinement. (via Miami Herald). Disclosure -- I (along with Silvia Pinera-Vasquez) represented one of the defendants in the case.

Justice Scalia complains of an “Alfred Hitchcock line of…jurisprudence.”

A unanimous Supreme Court (per Alito) in NASA v. Nelson upheld the government's right to conduct background checks on employees. Justice Scalia (along with Justice Thomas) concurred, saying that the Court again refused to answer the main questions presented by the case and that the minimalist strategy of the Court is bad for lower courts and others trying to figure out what the case means. From the NY Times:

Justice Antonin Scalia, writing for himself and Justice Clarence Thomas, issued a caustic concurrence. He said he “of course” agreed with the result in the case, saying the plaintiffs’ objections to the background checks were ridiculous.

“The contention that a right deeply rooted in our history and tradition bars the government from ensuring that the Hubble telescope is not used by recovering drug addicts” is, he said, “farcical.”

But Justice Scalia aimed his harshest criticism at the six justices who signed the majority opinion, returning to a theme he pressed last year — that the court is violating its duty and harming its reputation in issuing vague decisions.

“Whatever the virtues of judicial minimalism,” he wrote, “it cannot justify judicial incoherence.”

The majority opinion, he continued, “provides no guidance whatsoever for lower courts” and “will dramatically increase the number of lawsuits claiming violations of the right to informational privacy.” Though the court ruled against the plaintiffs, he said, the majority opinion amounts to “a generous gift to the plaintiffs’ bar.”

Justice Scalia said he would have taken a simpler approach in the case, NASA v. Nelson, No. 09-530.

“I would simply hold that there is no constitutional right to ‘informational privacy,’ ” Justice Scalia wrote.

“Like many other desirable things not included in the Constitution,” he wrote, “ ‘informational privacy’ seems liked a good idea.” But he said it should be enacted through legislation rather than imposed by judges through constitutional interpretation.

While we are on the subject of fun writing, Judge Carnes is at it again, this time in Carolyn Zisser v. The Florida Bar. The intro:

This case reminds us of the observation of the Grand Inquisitor in Gilbert and Sullivan’s The Gondoliers. Upon finding that all ranks of commoners and servants have been promoted to the nobility, he protests that there is a need for distinction, explaining that: “When everyone is somebody, then no one’s anybody.”* The same is true of a state bar’s certification process. If every attorney who practices in an area is certified in it, then no one is anybody in that
field. The easier it is to be certified, the less that certification means. The goal of the Florida Bar’s certification process is to recognize in various fields of specialization exceptional attorneys, meaning those who stand out from others in all of the ways that make an attorney outstanding. To ensure that certification achieves its purpose, the Bar has established a body of rules and procedures, including a confidential peer review process, so that an attorney
certified in an area of practice truly is “somebody” in that field. Without such rules and procedures, the process, the decisions it produces, and the resulting recognition would not amount to much.

*W. S. Gilbert, The Savoy Operas 543 (Wordsworth Editions 1994) (1889) (spelling altered).

In defense of old judges

The blawgosphere is all aflutter about this Slate article criticizing life tenure for federal judges because some really old judges are making mistakes. As if young judges don't. (See the cover of the DBR today about a young Broward state judge who is defending himself before the JQC because he "made a mistake.")

The WSJ summarizes some statistics from the article:

About 12 percent of the nation’s 1,200 sitting federal district and circuit judges are 80 years or older;

Eleven federal judges over the age of 90 are hearing cases—compared with four just 20 years ago;

The number of octogenarians and nonagenarians on the federal bench has doubled in the past 20 years.

The increase, explains the Slate piece, is largely attributed to a few factors. Life tenure for federal judges is written into the Constitution; people are living much longer lives than they did in 1789; and the job of a federal judge has over the years actually gotten less taxing in many ways.

So what? I miss the old (school) judges from our District -- Davis, Roettger, Spellman, Atkins, Highsmith, etc. Each of them (and others that I'm forgetting -- I must be getting old) had a real sense of justice and brought that to each case. The stories in the Slate piece are horrific, but if there are particular judges who are having issues, then that should be addressed on an individual basis. I don't like the idea of having mandatory retirement for judges. I think they have that in the state system, and it forces good judges off of the bench.

Interestingly, our bench in the Southern District of Florida is now a very young bench. We have no active district judges in their 70s, 80s or 90s. Our Chief judge is in his 50s. Our "older" judges have taken senior status. But even they are young. For example, Judge Huck turned 70 last year, but he seems much much younger and is on top of his game. It would be awful if we forced good judges to retire because they hit a certain age.

Justice Breyer: "And in my experience, too, people did sometimes stick things in my underwear."

Whether their jokes are humorous or not, Supreme Court Justices often get [Laughter]. Not so much when the lawyers try to make a funny. The WaPo has the story here. An excerpt:

Still, nothing is more perishable than what passes for humor at the court. You really have to have been there. To wit, from the transcripts:

JUSTICE BREYER: So you're saying that if the government has the most amazing, let's - I'm trying to think of something more amazing than what I just thought of."

[Laughter.]

Those notations of "[Laughter]" have now formed the basis of two studies of the court. In 2005, Boston University law professor Jay Wexler counted the number of times "[Laughter]" was noted in the court's transcripts, attributed the funny to whichever justice's comments preceded it, and declared Scalia the court's funniest justice.

***

It is from an inexplicable tangle of words from Breyer in a 2009 oral argument about the strip search of a teenage girl, in which the justice was attempting to show that perhaps it was not unusual for children at school to be seen in their underwear.

Justice Breyer: In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay? And in my experience, too, people did sometimes stick things in my underwear -

[Laughter.]

Justice Breyer: Or not my underwear. Whatever. Whatever. I was the one who did it? I don't know.

Here's a diagram of who gets the most laughs.

I hope everyone is enjoying MLK day. Marlon Hill has an excellent op-ed in the Miami Herald that is worth a read.

“Fighting for the rights of men is not a very popular thing to do in America these days.”

Oh boy (no pun intended). Check out ‘Babe’-Loving NY Lawyer Suspects Female Justices Helped Nix His Ladies Night Appeal. I'm not really sure how to describe it.

Other news items:

--As great as President Obama's speech was, did he make the prosecution's job in seeking the death penalty harder?

--The 9th Circuit has this memorial up for Judge Roll. We need to get our courthouses onto the site. If you happen to snap a picture, http://abovethelaw.com/2011/01/a-request-from-chief-judge-alex-kozinski/#more-53068

--Most legal bloggers are obsessed with legal writing, both good and bad. And I've blogged quite a bit about Judge Carnes. Love him or not, he's a very entertaining writer. Here's the intro from the latest installment:

It has long been said that “the price of freedom is eternal vigilance,”* and maybe as a matter of political philosophy it is. When it comes to pretrial release from custody, however, some are willing to pay for freedom with cold hard cash, and the amount of freedom that one on supervised release has increases as the vigilance of his supervising officer decreases. In this case a drug dealer indicted on state charges who was released pending trial bought himself more freedom by bribing the officer whose duty it was to supervise his release. That officer was convicted under a statute that makes this Court’s jurisdiction over the crime dependent on whether the drug dealer’s freedom, or increments of it, involved “any thing of value of $5,000 or more.” See 18 U.S.C. § 666(a)(1)(B).

How should we value freedom and increments of it in monetary terms? There is lyrical authority for the proposition that, “Freedom’s just another word for nothin’ left to lose / And nothin’ ain’t worth nothin’, but it’s free.” [Kris Kristofferson, “Me and Bobby McGee” (Sony BMG 1971).] Rejecting that view in this case, we adopt instead a non-lyrical, free-market approach that pegs the value of freedom and other intangible benefits to the price settled upon by the bribe-giver and the bribe-taker. Under that approach the value in bribes paid by a defendant on pretrial release to his supervising corrections officer in exchange for greater freedom while on release and freedom from jail does satisfy § 666(a)(1)(B)’s monetary requirement.

*The original source of the quotation is not entirely clear. Those words, or ones like them, have been attributed to Thomas Jefferson and others, but a better documented source is John Philpot Curran, an Irish lawyer and politician. In a speech given on July 10, 1790, concerning the disputed election for the mayor of Dublin, Curran said: “The condition upon which God hath given liberty to man is eternal vigilance. . . .” John Philpot Curran, “On the Right of Election of Lord Mayor of the City of Dublin,” speech before the Privy Council, July 10, 1790, in Irish Eloquence: The Speeches of the Celebrated Irish Orators Philips, Curran and
Grattan 15 (Philadelphia, Desilver, Thomas & Co. 1836); see also Wendell Phillips, speech in Boston, Massachusetts, January 28, 1852 in Speeches Before the Massachusetts Anti-Slavery Society, 13 (Boston, Robert F. Wallcut 1852) (“Eternal vigilance is the price of liberty.”).

--Sam Randall, a former Judge Jordan clerk and current AFPD, has filed a very interesting motion to dismiss a gun charge, alleging that the U.S. Attorney's office is selectively prosecuting African-Americans:

The demographic breakdown of federal felon-in-possession prosecutions in Miami
reveals an alarming racial disparity. Since the start of 2009, the Miami Division of the Federal Public Defender’s Office has handled 77 cases in which the defendant was charged with violating 18 U.S.C.§ 922(g)(1). 91% of those defendants were black (70 out of 77). By contrast, in the last year, the Public Defender’s Office for Miami-Dade County has handled 5,692 cases in which the defendant was charged with violating Fla. Stat. § 790.23(1), which similarly proscribes possession of a firearm by a convicted felon. 77% of those defendants were black (4410 out of 5692; see Exhibit A). Moreover, according to the Department of Justice Bureau of Justice Statistics, in 2006 (the most recent year for which data is available), just 49% of felony defendants in Miami-Dade County were black (see Exhibit B, at page 36).

Here's the entire motion:

Dismiss for Racial Bias

Cheers to Judge Peter Palermo

I'm convinced that Judge Palermo has sipped from the Fountain of Youth. This month he completes his 40th year (!!) with the Court. He was sworn in January of 1971 and was the first magistrate judge appointed. He really is an inspiration. Check out the article below from his swearing in and a picture (below) from his swearing in..

Beware the bloggers

Bob Norman has this piece up today about a Broward County Commission who is afraid of bloggers. It's easy to poke fun at some of the dramatic comments she makes.

But, I actually think Norman makes light of what is a more serious issue -- anonymous commenting on blogs. Rumpole and I have discussed it and dealt with it in our own ways, but it's not an easy problem. The anonymity of commenting makes for (unnecessarily) hurtful speech, and oftentimes takes over the blog itself. I haven't found a good solution for this yet. Currently, I moderate comments, but it makes it difficult for a good dialogue to occur in the comments...

Quick hits

1. How do you prosecute a defendant who is deaf, mute, and illiterate, including no known knowledge of sign language? They are trying.

2. Kyle McEntee and Patrick Lynch are ATL's lawyers of the year. Who, you say? Read about em here.

3. Justice Kagan wrote her first opinion, an 8-1 ruling for credit card companies.

4. F. Lee Bailey says he can prove OJ's innocence. I'm not sure it matters much; OJ is in jail for the next 33 years in Nevada.

5. The 11th Circuit is sleeping in this morning:
Inclement Weather
The Court of Appeals and all administrative offices in Atlanta will be operating on Wednesday, January 12, 2011. Employees are asked to report for duty no later than 10:30 a.m. Those employees who believe that they cannot safely arrive for work by that time should follow normal procedures to request annual leave, which will be granted liberally.

11th Circuit in Atlanta is closed today

It's cold there. From the Court's website:

Inclement Weather
Court of Appeals employees should not report for duty at the Tuttle or Godbold Buildings in Atlanta on Monday, January 10, 2011, unless they are specifically directed to do so by a supervisor.

It's a beautiful day in Miami today. Outside the Ferguson Courthouse this morning, there was the swearing in of all the new representatives. Everyone who spoke mentioned John M. Roll and the other victims who died in the tragedy in Tucson, Arizona, and wished a complete and speedy recovery to Representative Gabrielle Giffords. In addition, Chief Judge Moreno gave a nice shout out to Kathy Williams and urged the new reps to get her confirmed. Well done Chief.

The most hated lawyer in America right now is...

... Judy Clarke, who is going to represent Jared Loughner, who is charged with murdering Chief Federal Judge John M. Roll and others, and attempting to kill Representative Giffords.

She has been the most hated lawyer before, representing the Unabomber, Susan Smith, and Zacarias Moussaoui. She may be the most hated, but she's the reason our system works. What would happen if no lawyer would agree to represent Loughner?

In any event, TalkLeft has an excellent write-up on her:

They don't make defense lawyers any better than Judy. You may remember her from the Susan Smith case in South Carolina, where Smith was charged with drowning her two sons; or the Unabomber case, or the case of Eric Rudolf. Thanks to Judy (and those who helped her), all avoided the death penalty. She also worked on the Zacarias Moussaoui defense team for a while. The AP called her "a one woman dream team."

Judy is a past-President of the National Association of Criminal Defense Lawyers (NACDL), where she's affectionately called "Saint Judy" -- and a friend. She is both a great person and a great lawyer.

From Judy's closing in the guilt phase of Susan Smith:

This is not a case about evil, this is a case about sadness," Clarke said. "She made a horrible, horrible decision to be at that lake that night. She made that decision with a confused mind and a heart that had no hope. But confusion is not evil and hopelessness is not malice."

In the penalty phase of the trial to decide life or death:

Smith's lawyers countered in their opening statement that Smith knows she has "sinned" and "accepts responsibility" for killing her sons.

But defense attorney Judy Clarke also implored the jury to understand that Smith suffered from "mental illness" and had "snapped" on the night of the drownings after a lifetime of emotional trauma. The boys' deaths, Clarke told the jurors, was the result of Smith's own botched suicide attempt.

"Suicide is why we're here. In her own suicidal confusion, she believed the children would go with her, but the body wills to live and Susan jumped out of the car," Clarke said. "Once the car began rolling, those children were lost and Susan's life was lost."

And,

Her voice steady, Clarke rejected [prosecutor] Giese's argument in her 14-minute reply, saying that the boys were the "sunshine" of Smith's life. "Use your common sense, it was not a boyfriend" that propelled the drownings, Clarke told the jury. "Use your common sense, it was not to get rid of an obstacle."

Instead, Clarke urged the jury to see Smith as driven by a "failing life," by emotional problems that stemmed from a father who committed suicide when she was 6 and a stepfather who molested her when she was 16.

"When we talk about Susan's life, we're not trying to gain your sympathy," Clarke said. "We're trying to gain your understanding. Susan Smith tried to cope with a failing life and she sank."

The jury returned a verdict of life in prison.

Judge Hurley: I would have found Joel Williams not guilty

From the Sun-Sentinel:

Charged initially with a money-laundering conspiracy involving Broward County Commissioner Josephus Eggelletion, Joel Williams was sentenced Thursday to just two years of probation for filing false income tax returns.

U.S. District Judge Daniel T.K. Hurley took the prosecution by surprise when he briefly criticized the government's case against Williams, an offshoot of the FBI's high-profile and successful undercover sting on public corruption in Broward County.

The judge said he would have found Williams not guilty of the money-laundering charges "on the grounds of entrapment" and that he felt those charges had been the result of "pie in the sky" created by the government.

Big win for Assistant Federal Defender Daryl Wilcox, who hung the jury the first time around. More:

"I don't absolve him," Hurley said. "I don't suggest that what he did was appropriate but I think he allowed himself to be swept along in something that sounded too good to be true."

In an interview after the sentencing, Williams said he had been stupid and greedy.

"[When] people that you trust and look up to say things, you get overwhelmed and believe them. You put blinders on," he said.

Cross-sex strip searches in jail humiliating and unconstitutional?

Yes, says a 6-5 9th Circuit in this opinion. From the San Francisco Chronicle:

The inmate, Charles Byrd, was in Maricopa County's minimum-security jail awaiting trial in October 2004 when officials ordered searches of everyone in his unit after a series of fights.

Byrd was ordered to strip down to his [boxers] - colored pink, as required for all inmates by Joe Arpaio, the county's hard-line sheriff - and was searched by a female cadet from a training academy. She said she had taken no more than 20 seconds, while Byrd estimated the time at a minute. No contraband was found.

A three-judge appeals court panel ordered Byrd's civil rights suit dismissed in 2009, citing the jail's security needs and past rulings allowing female guards to pat down clothed male prisoners and observe naked male inmates.

But after the full appeals court ordered a rehearing, a majority of Wednesday's panel said cross-gender probes of intimate areas violate the constitutional ban on unreasonable searches.

Forget about the strip search; how about having to wear pink underwear in jail? Talk about humiliating...

"Nudity itself is not per se indecent."

That was the Second Circuit, discussing Connie McDowell's scene in an NYPD epidosde. From the AP:

The Federal Communications Commission cannot fine broadcasters for showing a woman's nude buttocks on a 2003 episode of "NYPD Blue," a federal court ruled Tuesday, citing its earlier decision to strike down FCC rules regarding fleeting expletives uttered on live broadcasts as unconstitutionally vague.

The 2nd U.S. Court of Appeals in Manhattan decided Tuesday to nullify a $27,500 penalty that the FCC imposed on ABC and 45 of its affiliate stations after the image was broadcast on the police drama for less than seven seconds in February 2003. The combined fine was greater than $1.2 million.

The appeals court said its finding was consistent with its decision last year that TV stations can no longer be fined for fleeting, unscripted profanities uttered during live broadcasts.

The FCC had created its fleeting-expletive policy after a January 2003 NBC broadcast of the Golden Globe Awards in which U2 lead singer Bono uttered the phrase "f------ brilliant." The FCC said that word in any context "inherently has a sexual connotation" and can lead to enforcement.

Fox Television Stations, owned by Rupert Murdoch's News Corp., and other networks challenged the policy in 2006 after the FCC cited the use of profanity during awards programs that were aired in 2002 and 2003. The FCC has appealed that ruling.

In its Tuesday ruling, a three-judge 2nd Circuit panel wrote that there was "no significant distinction" between its decision in the expletives case and its findings in the "NYPD Blue" case.

The FCC is way over-zealous and over-protective, so the Second Circuit was right to slap the the agency down. Still, broadcasters are afraid of airing anything close to the line, and something more needs to be done than a circuit court opinion... In better news, Howard Stern now has an app!

Efraim Diveroli gets 4 years

From the AP's Curt Anderson:

A youthful arms dealer whose company once boasted a $300 million Pentagon munitions contract was sentenced Monday to four years in federal prison for trying to ship millions of rounds of prohibited Chinese-made ammunition to Afghan forces fighting alongside U.S. troops.

U.S. District Judge Joan Lenard imposed the sentence on 25-year-old Efraim Diveroli, who faced a maximum of five years behind bars after pleading guilty in 2009 to a fraud conspiracy charge. Three other executives in Diveroli's AEY Inc. are awaiting sentencing.

Lenard gave Diveroli credit for accepting responsibility for the crime but said he deserved a serious stint in prison because his scheme could have endangered U.S. military personnel and their Afghan allies. Much of the ammunition was decades old and could have been faulty.

"To participate in such a fraud when people are putting their lives on the line, that makes it so much sadder. For money," Lenard told a courtroom crowded with Diveroli family members and supporters from Miami Beach's tight-knit Jewish community, including two rabbis.

"Mr. Diveroli may have been clever, but not wise," Lenard said.

This was a win for for Diveroli's lawyers, Hy Shapiro and Howard Srebnick, who capped their client's exposure at 5 years and then got acceptance of responsibility credit for their client:

In return for Diveroli's guilty plea to the conspiracy charge, prosecutors dropped another 84 counts against him.

But his legal troubles are not over.

While out on bail awaiting sentencing in the Miami case, Diveroli was arrested in August in the Orlando area by Bureau of Alcohol, Tobacco, Firearms and Explosives agents, charged with being a convicted felon in possession of firearms.

Prosecutors in that case say Diveroli was attempting to broker another major arms and ammunition deal despite no longer having a license to do so and the Miami conviction. After pleading guilty in that case, Diveroli was ordered to forfeit several 9mm handguns and at least two semiautomatic rifles, according to court documents.

In one telephone call secretly recorded by ATF agents, Diveroli told an undercover agent posing as a potential arms buyer that "he keeps getting drawn back into this activity" despite his legal troubles.

"Once a gun runner, always a gun runner," Diveroli is quoted as saying in court papers.

Sentencing in the Orlando case is set for Jan. 25. Diveroli could get an additional 10 years in prison, but will likely get less.

Back to work...

Hope everyone had a nice new year. It's good to be back. A quick look at what was missed the last week:

1. The Cuban Spies strike back... against their lawyers. From the Miami Herald:

In his appeal, Hernandez, 45, contends that his trial attorney, Paul McKenna, mishandled his defense at a 2001 Miami federal trial by focusing so much on the shoot-down location.

That strategy overshadowed evidence that Hernandez purportedly did not know in advance about the deadly Cuban plot over the Florida Straits, the appeal asserts. Evidence of his advance knowledge was crucial to proving his role in the murder conspiracy.

"In short, Hernandez's lawyer was his worst enemy in the courtroom," his appellate attorneys wrote in a habeas corpus petition filed in Miami federal court.

2. Judge Carnes vs. Judge Tjoflat in Floride Norelus v. Denny's Inc.

Both SFL and Kosher Meatball cover this 2-1 case about sanctions against the Amlongs for a 63-page errata sheet. From Judge Carnes' intro:

No one’s memory is perfect. People forget things or get confused, and anyone can make an innocent misstatement or two. Or maybe even three or four. But not 868 of them. In this case, the plaintiff’s attorneys, William and Karen Amlong, filed a sixty-three page errata sheet containing 868 attempted changes to their client’s deposition testimony, which was the sole source of evidentiary support for their client’s claims. The district court exercised its authority under 28 U.S.C. § 1927 to sanction the Amlongs. This is their appeal, or more specifically their second appeal.

But what struck me was not so much Judge Carnes' colorful way of writing about the case (agree with his decisions or not, he makes reading them fun), but instead how he engages Judge Tjoflat (the concurring judge, District Judge Bowen, did not join in any of these remarks):

• As the magistrate judge found and no one (with the possible exception of the
  dissenting judge on this panel) seriously contests, the improper submission of the
  massive errata document rendered the eight days spent on Norelus’ deposition a
  waste of time and money to say nothing of the time the attorneys were forced to
  spend on the issues created by the document itself.
• Up to this point, we have addressed the issues related to the errata document
  and the award of sanctions as those issues have been raised and defined since that
  document was submitted fourteen years ago. Our dissenting colleague, by contrast, has hatched a brand new theory—a theory that was never raised by the parties, never considered by the district court, and never argued to this Court. The theory
  that he has conjured up is that the errata sheet was really nothing more than a
  “letter” from Karen Amlong to defense counsel. It was not, he insists, an errata
  sheet because he thinks it was never presented to the court reporter or affixed to
  Norelus’ deposition as, he thinks, Federal Rule of Civil Procedure 30 requires. Dissenting Op. at 1. He is wrong on his premises and wrong in his conclusion.
• Instead of recognizing the obvious import of Norelus’ own certification or following our precedent about who has the burden on appeal where there are any ambiguities, the dissenting judge would remake the case entirely along different factual lines, lines that only he sees.
• From its inception, the errata document has been understood by all, except our dissenting colleague, to be a Rule 30 errata sheet.
• That certification itself and its use to assert “exceptions” to the deposition belies the dissent’s far-fetched assertion that the errata sheet was nothing more than a letter from one attorney to another. And there is more.
• The Amlongs, the defendants, the magistrate judge, the district court judge, all three judges of this Court in Amlong I, everyone in the district court after the remand, and both parties in briefing and arguing the present appeal have understood that. Everyone has understood it—except for our dissenting colleague.
• Now, after almost a decade-and-a-half of litigation, he has been able to discern what everyone else has overlooked: that the Rule 30 errata sheet is not really a Rule 30 errata sheet, but it is instead “a document, although entitled ‘errata sheet,’ [which] had no more legal efficacy than a letter.” Dissenting Op. at 22. During a period of almost fifteen years of looking at the document, no one else has ever thought it was just a letter. And no wonder. Treating the errata sheet as nothing more than a letter is like arguing after Gettysburg that the warring sides had been mistaken all along about the bombardment of Fort Sumter, that it was actually nothing more than a diplomatic overture.
• And the dissenting judge’s extraordinary perception does not end there. He
  is even able to perceive that everyone else’s inability to see that the errata sheet isnot really an errata sheet is not the fault of the Amlongs, who designated it an
  errata sheet and have been arguing for almost a decade and a half that is what it is, and not the fault of all the judges who have consistently treated it as an errata sheet, but instead is the fault of—who else is left? Defense counsel, of course. See Dissenting Op. at 2, 19–20, 22–23.
• Even beyond the facts, there is another problem with the dissent’s attempt to inject the not-an-errata-sheet-but-just-a-letter issue into the case at this point. The issue has been defaulted about as many times and in about as many ways as any issue can be.

Sorry for all the bullets, but wow. Is it me, or was that opinion something more than a "diplomatic overture"?

3. SFL won the blog fantasy football league this year. Well done!

4. Mona and I won the Above the Law fantasy football league.

5. I beat Rumpole in the regular season head-to-head football challenge, but we will continue it into the playoffs. It was a fun battle, especially because watching the Dolphins was torture.

6. Tom Goldstein of ScotusBlog is leaving Akin Gump and is going back out on his own. (Via ATL)