“He’s not in a black hole in Calcutta.”

That was the government prosecutor to Judge Cooke yesterday about Jose Padilla (via the Miami Herald).  Wiki describes the Black Hole of Calcutta this way:

The Black Hole of Calcutta was a small dungeon in the old Fort William, at Calcutta, India, where troops of the Nawab of Bengal, Siraj ud-Daulah, held British prisoners of war after the capture of the Fort on June 19, 1756.
One of the prisoners, John Zephaniah Holwell, claimed that following the fall of the fort, British and Anglo-Indian soldiers and civilians were held overnight in conditions so cramped that many died from suffocation, heat exhaustion and crushing. He claimed that 123 prisoners died out of 146 prisoners held.
However, the precise number of deaths, and the accuracy of Holwell's claims, have been the subject of controversy.

Well, if he isn't in a small dungeon in the ground where everyone dies, then everything must be just fine...

Padilla's lawyer Michael Caruso responded and got the continuance of the sentencing that he was seeking:

Jose Padilla, the convicted terrorist who once called the Fort Lauderdale-area home before joining the ranks of al-Qaida, won his bid Wednesday to delay his resentencing in Miami federal court.
U.S. District Judge Marcia Cooke granted a defense request to postpone the resentencing from Monday until Jan. 29. His lawyer argued the delay would give Padilla — who seemed more disengaged, gaunt and pale than during his Miami trial more than five years ago — extra time to improve his mental health.

Read more here: http://www.miamiherald.com/2012/11/28/3117335/convicted-al-qaida-recruit-jose.html#storylink=cpy#storylink=cpy

Federal Public Defender Michael Caruso said he believes the government has effectively “tortured” Padilla during his incarceration over the past decade and that he would benefit from visits from his Broward relatives at the Federal Detention Center in downtown Miami, where he was transferred recently. His mother and two brothers attended Wednesday’s hearing, but did not comment.
Padilla, 42, is serving a 17-year prison at the Supermax prison in Florence, Colo., where he’s held in isolation almost all day. He faces up to life in prison at his resentencing, after a federal appeals court last year rejected the judge’s initial sentence as too lenient.
“Since his arrest in May of 2002, the government has systematically attempted to destroy Jose by psychologically torturing him and imprisoning him under the severest of conditions,” Caruso, who represented Padilla at his 2007 trial, wrote in court papers. “Not surprisingly, this psychological torture has taken a toll on Jose.”

Read more here: http://www.miamiherald.com/2012/11/28/3117335/convicted-al-qaida-recruit-jose.html#storylink=cpy#storylink=cpy

Former weatherman victimized again? Federal prosecution imminent?

The New York Daily News covers B-Girl "victim" John Bolaris' latest issue (the blog's past coverage of his testimony is here).  Here are some of the tweets:

And from the article:

A former weatherman couldn’t have forecast his latest scandal, in which his fiancé took over his Twitter account while he was sleeping and unleashed a barrage of racy messages for his fans. John Bolaris, who was suspended from his job as a weather anchor for Fox affiliate WTXF in Philadelphia last year amid the bombshell story that he’d been drugged and robbed by beautiful women in Miami in 2010, was back in the headlines on Tuesday after fiancé Erica Smitheman drunkenly took over his Twitter account and repeatedly promised to post nude pictures of herself. The former Playboy model started her Twitter binge on Sunday night, writing, “Hello this is Erica…love John, he loves you all, I guess it’s ok if I send you all a naked photo or two…don’t tell my love.” She continued to write suggestive tweets referring to her modeling past and hinting that she’d taken over Bolaris’s account behind his back. “This is Erica, I did pose in Playboy…so what,” she wrote. “I will post my naked pictures…John Has no clue.” She also shared sexy pictures of herself and took aim at naysayers, as well as bragging that “sex is great” with her fiancé. “I am tweeting, he is sleeping,” she confirmed in a text to Philly.com, which reached out wondering if the reporter’s account had been hacked. “I am drinkinging and can’t take the haters! Lol,” she wrote, telling the paper she’d been ingesting liquid courage in the form of pinot grigio to write the tweets.

Should you be able to record the police?

In Illinois, the legislature wanted the answer to be no, but the 7th Circuit said the law violated the First Amendment.  The Supreme Court just denied cert, so the injunction is still on the books.  From the Chicago Tribune:

The U.S. Supreme Court on Monday declined to hear an appeal of a controversial Illinois law prohibiting people from recording police officers on the job.
By passing on the issue, the justices left in place a federal appeals court ruling that found that the state's anti-eavesdropping law violates free-speech rights when used against people who audiotape police officers.
A temporary injunction issued after that June ruling effectively bars Cook County State's Attorney Anita Alvarez from prosecuting anyone under the current statute. On Monday, the American Civil Liberties Union, which brought the lawsuit against Alvarez, asked a federal judge hearing the case to make the injunction permanent, said Harvey Grossman, legal director of the ACLU of Illinois.
Grossman said he expected that a permanent injunction would set a precedent across Illinois that effectively cripples enforcement of the law.

It reminds me of this YouTube video:

This Good Wife episode was based on that video. It's a fun watch:

WARNING -- do not forward this blog post!

The police my be reading your email.  According to the NY Times:

Judges and lawmakers across the country are wrangling over whether and when law enforcement authorities can peer into suspects’ cellphones, and the cornucopia of evidence they provide.

 A Rhode Island judge threw out cellphone evidence that led to a man being charged with the murder of a 6-year-old boy, saying the police needed a search warrant. A court in Washington compared text messages to voice mail messages that can be overheard by anyone in a room and are therefore not protected by state privacy laws.

In Louisiana, a federal appeals court is weighing whether location records stored in smartphones deserve privacy protection, or whether they are “business records” that belong to the phone companies.

“The courts are all over the place,” said Hanni Fakhoury, a criminal lawyer with the Electronic Frontier Foundation, a San Francisco-based civil liberties group. “They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protection.”

The issue will attract attention on Thursday when a Senate committee considers limited changes to the Electronic Communications Privacy Act, a 1986 law that regulates how the government can monitor digital communications. Courts have used it to permit warrantless surveillance of certain kinds of cellphone data.

A proposed amendment would require the police to obtain a warrant to search e-mail, no matter how old it was, updating a provision that currently allows warrantless searches of e-mails more than 180 days old. 

When the legislature does act, we get strange decisions from the executive:

 Nearly three years later, in a 190-page ruling, Judge Savage sharply criticized the police.

The first police officer had no right to look at the phone without a search warrant, Judge Savage ruled. It was not in “plain view,” she wrote, nor did Ms. Oliver give her consent to search it. The court said Mr. Patino could reasonably have expected the text messages he exchanged with Ms. Oliver to be free from police scrutiny.

The judge then suppressed the bounty of evidence that the prosecution had secured through warrants, including the text message that had initially drawn the police officer’s attention.

“Given the amount of private information that can be readily gleaned from the contents of a person’s cellphone and text messages — and the heightened concerns for privacy as a result — this court will not expand the warrantless search exceptions to include the search of a cellphone and the viewing of text messages,” she wrote.

Mr. Patino remains in jail while the case is on appeal in the state’s Supreme Court. A lawyer for Mr. Patino did not respond to a request for comment.

Just months before Judge Savage’s ruling, the Rhode Island legislature passed a law compelling the police to obtain a warrant to search a cellphone, even if they find it during an arrest. Gov. Lincoln D. Chafee, an independent, vetoed the bill, saying, “The courts, and not the legislature, are better suited to resolve these complex and case-specific issues.”

 Do we have any privacy any more?

Happy Thanksgiving! (UPDATED)

UPDATE -- Judges Carnes and Hill won't be sharing a turkey this holiday.  Check out Judge Hill's dissenting opinion in Rozier v. United States.  A snippet:

I reluctantly conclude that our court is determined to deny relief to every confined habeas petitioner whose sentence has been unlawfully enhanced under either the career offender guideline or the armed career criminal statute.

***

I must confess I am bewildered that both the United States, through its Department of Justice, and this court appear to rejoice when access to constitutional protection for the correction of admitted and highly prejudicial error is found to be blocked by unmet procedural “safeguards.” On the contrary, I should have thought that the correction of such error would be celebrated by all sworn to uphold the Constitution. As is inscribed in the office rotunda of the Attorney General of the United States, “The United States wins its point whenever justice is done its citizens in the courts.” Some in the Department of Justice seem to believe that the inscription reads, “Justice is done when the United States wins.”

  Clearly justice is not the intended beneficiary of these procedural safeguards. On the contrary, the safeguards are designed to protect finality. If these new rules require that finality trump justice, then perhaps, as one member of this panel has opined elsewhere, they are unconstitutional. In any event, I cannot join in this elevation of form over substance; of finality over fairness. Due process is the defining virtue of our system of criminal justice. But we should ask ourselves why. Is it because it achieves finality? Or is it because we believe that, more often than not, we will reach a correct result where certain process is due the criminal defendant. The goal is a correct result – not simply the provision of process. To be sure, we do not guarantee a correct result. But where all know the result is error, to adhere to the process as though it were the end goal is unfair in the purest sense of the word.
This is especially true where the petitioner is in federal custody, not state custody. We safeguard finality for state court convictions out of respect for the dual principles of comity and federalism. Neither of these considerations is due the erroneously sentenced federal prisoner. It seems to me that the majority has striven mightily to avoid granting the writ to someone currently deprived of liberty in violation of law. I am weary of our court’s relentless effort to put more and more procedural angels on the head of the habeas pin. At some point, we must concede, as the Seventh Circuit did recently, that common sense and basic fairness require that we correct these unlawfully enhanced sentences. See Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011).

Tuesday News & Notes

1.  The Court's Holiday Schedule is here.

2.  Former NFL player Louis Gachelin sentenced to two plus years.  (Via Sun-Sentinel).

3.  Lewis/Tein has some good news covered by the DBR and SFL.  UPDATED -- And Rumpole!

4. Alan Dershowitz interviews Jeffrey Toobin.  Really interesting.

5.  Former state prosecutor in Maine cuts his electronic monitor.  Apparently, that's very rare.

6.  The Washington Times updates the judicial nominees and the waiting time.

Judge Seitz taking Senior Status

Rumors have been swirling that Judge Seitz would be taking senior status this month, and it appears that she did so as of November 16, 2012, which is 14 years to the day she was appointed by President Clinton).  So another opening for President Obama, who is quickly reshaping our District Court. 

In other news, the B-Girls trial is still being heard and the testimony of former weatherman John Bolaris was out of a bad movie.  From Jay Weaver:

More than two years after his “nightmare on South Beach,” former TV weatherman John Bolaris remains a little foggy about his close encounter with a couple of Latvian “Bar Girls” who swindled him for $43,000 in bogus booze charges billed to his AMEX card.
On Friday, Bolaris testified in Miami federal court that he didn’t have sex with them, though the thought crossed his mind after meeting the duo at the Delano Hotel in late March 2010. Bolaris, 55, was asked whether the B-girls suggested they go to his room at the Fontainebleau Hotel for a “threesome.”
“No, sir,” Bolaris told defense attorney Roderick Vereen. “In my right state of mind, I would not do that.” Vereen shot back: “What about in your intoxicated state of mind?” ***The following night, Bolaris said he went to dinner at the Delano Hotel, eating sushi and drinking a few glasses of his favorite wine, pinot grigio. He then sat down in the hotel’s Rose Bar for a few more glasses of wine. Nearby, a pair of B-girls were acting like tourists as they took pictures of each other. They struck up a conversation with him.
Bolaris described them as “very cutesy, like the girls next door ... the kind of girls you’d like to marry.” He paid for a round of wine, and later invited them to the Delano’s poolside bar, where he slipped a $50 bill to the bouncer to let them in. He bought another round of wine.
One of the B-girls started rubbing his shoulders from behind, while the other approached from the front to offer him a shot of liquor.
“Come on, do the shot,” she teased. Bolaris said, “No, no.”
But eventually he gave in and downed one.
During his testimony, federal prosecutor Richard Gregorie asked Bolaris if at that point he had the impression they were “hookers.” He emphatically said, “No.”
Gregorie further asked if he went to the Delano looking to have sex. He said he went there for sushi, “not for sex.”

Is this guy serious?  He believed that two girls just came up to him and started rubbing his shoulders at the Delano pool.  And remind me again why this is in federal court.   Lots of other details on the net from the 302 reports and other sources. 

Read more here: http://www.miamiherald.com/2012/11/16/3100889/ex-philadelphia-weatherman-testifies.html#storylink=cpy

Read more here: http://www.miamiherald.com/2012/11/16/3100889/ex-philadelphia-weatherman-testifies.html#storylink=cpy

Sorry for the slow blogging

I'll be back on Monday. Enjoy the weekend.

Judge William Thomas officially nominated to District Court

This is great news and fast. Let's hope that this is how it's going to be in the President's second term. Here is President Obama's press release:

President Obama Nominates Seven to the United States District Courts

WASHINGTON, DC - Today, President Obama nominated Valerie E. Caproni, Kenneth John Gonzales, Raymond P. Moore, Judge Beverly Reid O’Connell, Judge William L. Thomas, Judge Analisa Torres and Derrick Kahala Watson for District Court judgeships.

"These individuals have demonstrated the talent, expertise, and fair-mindedness Americans expect and deserve from their judicial system," said President Obama.  "They also represent my continued commitment to ensure that the judiciary resembles the nation it serves.  I am grateful for their willingness to serve and confident that they will apply the law with the utmost impartiality and integrity.  Too many of our courtrooms stand empty.  I hope the Senate will promptly consider all of my nominees and ensure justice for everyday Americans.”

 ***

Judge William L. Thomas:  Nominee for the United States District Court for the Southern District of Florida
Judge William L. Thomas has served as a Circuit Judge in Florida’s Eleventh Judicial Circuit since 2005, where he has presided over both civil and criminal matters.  For seven years, from 1997 to 2005, he served as an Assistant Federal Public Defender in the Southern District of Florida, where he represented indigent clients in federal criminal cases.  Judge Thomas began his legal career as an Assistant Public Defender at the Miami-Dade County Public Defender’s Office in 1994.  He received his J.D. in 1994 from the Temple University School of Law and his B.A. in 1991 from Washington and Jefferson College in Washington, Pennsylvania.

***

HT: Glenn Sugameli

Anthony Mangione sentenced...

... to 70 months.

You remember him -- the former ICE chief who was caught with child porn on his computer. He then wiped the computer clean with techniques he learned from his time in ICE.

 The sentence was more than the minimum mandatory 60 month sentence he requested and less than the 87 months requested by prosecutors. Fair sentence?

Sonia Sotomayor on Sesame Street

Enjoy:

Big win for AFPD Tracy Dreispul

Appellate guru Tracy Dresipul has done it again, this time in United States v. Bellaizac-Hurtado.

Judge Pryor starts off his opinion this way, which summarizes the issue and the holding nicely:

This appeal presents a novel issue about the scope of congressional power to
proscribe conduct abroad: whether the Maritime Drug Law Enforcement Act, 46
U.S.C. §§ 70503(a), 70506, exceeds the power of Congress to “define and
punish . . . Offences against the Law of Nations,” U.S. Const. Art. I, § 8, cl. 10, as
applied to the drug-trafficking activities of Yimmi Bellaizac-Hurtado, Pedro Felipe
Angulo-Rodallega, Albeiro Gonzalez-Valois, and Luis Carlos Riascos-Hurtado in
the territorial waters of Panama. Because we conclude that drug trafficking is not
an “Offence[] against the Law of Nations” and that Congress cannot
constitutionally proscribe the defendants’ conduct under the Offences Clause, we
vacate their convictions.

Florida Election Lawyers all dressed up and no where to go

President Obama easily wins, but Florida still not called.  Right now it's Obama up about 45,000 votes or 0.53 percentage points, out of a total of 8.27 million votes, with about 99 percent of the votes counted.  This time though it won't matter how Florida ultimately goes...  I wonder how all of the election lawyers who were geared up just for this scenario are feeling right now. 

So what does Obama's victory mean for the Southern District of Florida.  Some quick thoughts:

1.  Will Thomas will likely be your next federal judge, but it probably won't happen till the beginning of the year.

2.  President Obama will continue to shape this District with intellectual, moderate judges (like Williams, Scola, & Rosenbaum).  Same for the 11th Circuit (like Martin & Jordan).  There are a bunch of district openings coming up, so we will see if Obama does any better with getting judges confirmed quickly in his second term. 

3.  Willy Ferrer will stay on as U.S. Attorney.  It will be interesting to see whether he stays for the entire 4 years.

Any other thoughts?

Field trip to Pakistan

Judge Scola granted the defense motion to take depos in Pakistan, according to Jay Weaver:

In a rare legal move, attorneys for two South Florida Muslim clerics accused of aiding terrorists will be allowed to travel to Pakistan during a Miami trial to question witnesses considered crucial to their defense.
A federal judge has granted permission to attorneys for two former imams of local mosques, father and son Hafiz Khan and Izhar Khan, to travel to Islamabad in February to depose five witnesses during a live video teleconference call with prosecutors remaining in Miami.
Federal prosecutors had opposed the depositions under any circumstances, noting the difficulty of cross-examining the Pakistani witnesses, three of whom were indicted along with the Khans on charges of conspiring to support the Taliban. But the judge disagreed, citing basic fairness.
“All things being equal, the court would prefer that both government and defense attorneys be able to travel to the deposition room in Islamabad,” U.S. District Judge Robert Scola wrote in his 10-page ruling issued Friday.
“But that cannot occur. Government attorneys cannot safely travel to Islamabad to participate in the depositions,” he wrote. “Using [video-teleconferencing] works around this safety problem to preserve evidence critical to defendants combating the charges they face, while still allowing prosecutors to cross-examine [the witnesses].” Scola established logistical requirements for the Feb. 4 depositions, which will take place after the Khans’ trial gets underway in January.
Among them: Two video cameras for the witnesses and deposition room in an Islamabad hotel, and one for the Miami federal courtroom. A Pakistani official must be present in Islamabad to verify the identity of the witnesses. Interpreters must be in Islamabad to translate, and a court reporter must be in Miami to transcribe the depositions live.

Read more here: http://www.miamiherald.com/2012/11/05/3083483/judge-miami-defense-lawyers-can.html#storylink=misearch#storylink=cpy

Hot girls getting guys drunk on South Beach is now a federal crime?

Jay Weaver covers the B-Girls trial here.  The intro tells a story about a dude spending lots of money after getting wasted:

During the height of the tourist season two years ago, a Philadelphia TV weatherman flew down to Miami Beach for a little fun in the sun.
At the Delano Hotel, John Bolaris was approached by a couple of the Beach’s finest “bar girls.” The sexy duo said they were visiting from Estonia. They ordered rounds of shots, wine and champagne while pecking him on the cheek.
Then they lured the liquored-up Bolaris to a Russian-style nightclub called Caviar Bar on Washington Avenue. Over the next two nights, he signed American Express charge slips for more than $43,000, picking up the tab for extravagantly overpriced Dom Perignon, Beluga caviar and other items, including $2,480 for a modernistic painting of a woman that had been hanging in the bar.
Bolaris’ tale of woe and regret and others like it are coming out in Miami federal court during the trial of five business associates accused of being the puppet masters behind South Beach’s “B-girl” scene, as it is known.
Among the witnesses: B-girl Marina Turcina, who said Bolaris was so smashed he was vomiting on the way back to the Fontainebleau, where he’d been staying.
“He smelled really bad,’’ she said.

 Since when are tales of woe and regret criminal? I haven't been in Court and haven't followed the evidence, but I have heard that there are stories of girls drugging the customers without their knowledge.  Clearly if this happened, it's criminal.  But even if that happened, is it a federal offense? Why isn't this a classic state court crime?

dsf
Read more here: http://www.miamiherald.com/2012/11/03/3081324/russian-mafioso-put-bar-girls.html#storylink=cpy

BREAKING-- PATRICK HUNT NAMED NEW MAGISTRATE

This is great news.

I tried one of my first cases with Pat Hunt and he is a smart, fantastic lawyer.  He'll be a great magistrate.  CONGRATS!

Separate Sovereign Spat

This one should be interesting.  The feds aren't happy with the way Bal Harbour is spending its forfeiture loot.  From the Herald:

The U.S. Justice Department shut down Bal Harbour’s celebrated federal forfeiture program and ordered the police to return more than $4 million, slapping the agency with crushing sanctions for tapping into drug money to pay for first-class flights, luxury car rentals, and payments to informants across the country


After years of seizing millions from criminals, Bal Harbour’s vice squad is now banned from the federal program that allowed the village police for years to seize cars, boats, and cash — and to keep a cut of the proceeds.

In a scathing letter to Police Chief Thomas Hunker, federal agents are demanding the prompt surrender of the millions reeled in last year by a team that operates from a police trailer just blocks from the opulent Bal Harbour Shops.

For years, the small coastal town known for speed traps became one of the most successful in Florida, with plainclothes cops jetting across the nation toting bags stuffed with cash from investigations that had no connection to Bal Harbour — and making few arrests.

The findings, released on Tuesday, were also sent to Mayor Jean Rosenfield, who could not be reached for a comment.

The action by the DOJ’s criminal division comes after a lengthy investigation that began last year with an audit and escalated into a deep probe that turned up a host of problems, including questionable expenses, hundreds of thousands paid to snitches, and missing records.

With all that money, the po-po could've bought this $3 million Matisse ("Odalisque in Red Pants") for their lobby:

 

Actually the pair that stole it (Antonio Marcuello Guzman and Maria Martha Elisa Ornelas Lazo)
pleaded guilty yesterday, and sentencing is scheduled for January 22.  How much do you get for trying to sell a stolen painting worth millions?  More or less than Gupta's 2 years?