Happy New Year!

I just wanted to wish everyone a happy and healthy new year and thank everyone for stopping by and reading, and for sending tips.

The District changed quite a bit this year and will continue to undergo a transformation in 2013. Should be fun to watch -- and blog about.

Best posts of 2012

Kyle Swenson of the New Times covers local blogs' best posts here, including SDFLA.

I picked the posts about Judge Jordan's confirmation process.  The blog gets lots of traffic when there are posts about new judges and magistrates (thanks to all my tipsters, who get me this information quickly and before the main stream media), and Judge Jordan's confirmation process seemed to get the most attention, including lots of hits from the court family (judges, clerk's office, prosecutors, and defenders) and nationally.


We should have a bunch of new judges to discuss in 2013...

"[The] president’s most enduring legacy."

That's what Federal Public Defender Michael Caruso said about the appointment of judges in Jay Weaver's article about "the new generation" of appointees.

There's some good stuff in the article, including Judge Scola joking that he wished he was "king of the world." I'm not sure there is anything closer than being an Article III judge....

Here's a photo from the article from C.W. Griffin:

Happy Festivus...

... for the rest of us!

(One day late).

Mixed verdicts in B-Girls trial

Three of the four were found guilty of some counts and one was found NG across the board. The Herald coverage is here:

Miami federal jury convicted Stanislav Pavlenko, Albert Takhalov and Isaac Feldman of fleecing hundreds of thousands of dollars from dozens of male customers by racking up bogus bills for champagne, vodka and caviar on their credit cards at Russian-style clubs on Washington Avenue.
A fourth defendant, Siavash Zargari, who did business with Takhalov, was acquitted.
The jury reached its unanimous verdicts on a variety of conspiracy, wire fraud and money-laundering charges after deliberating for five days after an 11-week trial before U.S. District Judge Robert Scola that zigged and zagged with tales about Miami Beach’s underground bar scene. Scola ordered the three convicted men into custody immediately because he found that they gave testimony “I don’t believe was honest.’’ His decision prompted loud wails and crying by relatives in the courtroom. Court security officers had to separate the defendants from their loved ones.

Read more here: http://www.miamiherald.com/2012/12/20/3150589/bar-girls-federal-trial-in-miami.html#storylink=misearch#storylink=cpy

Borked

RIP Robert Bork.  Here are some of the highlights (lowlights?) from the confirmation hearing:

Escape!

Two bank-robbers escaped from a federal lockup facility in Chicago through those little slits as windows (4 inches wide) 15 floors up.  Pretty crazy.  From the Chicago Tribune:

Be civil

Have you seen the joint resolution of 42 South Florida Voluntary Bar Associations and six chief judges in South Florida (federal and state) regarding lawyer civility?  Check it out here:

The South Florida VBAs jointly resolve that they shall work together to actively promote the Oath of Civility and adherence to accepted standards of professional courtesy across the South Florida VBAs’ respective counties;
The South Florida VBAs hereby resolve to jointly promote the above through a series of articles, seminars, membership lunches, press releases, and correspondence directed to members and non-members of the South Florida VBAs’ respective counties; and
The South Florida VBAs, through their respective Officers, Boards of Directors, and Professionalism Committees, shall work with the Chief Judges of South Florida’s courts to promote the above in a manner most likely to improve civility awareness and adherence to accepted standards of professional courtesy.
The South Florida VBAs resolve to promote the Oath of Civility and adherence to accepted standards of professional courtesy to attorneys appearing before the state and federal courts, government agencies, arbitrators and other quasi-judicial forums throughout South Florida.

Good stuff; I think the "civil" lawyers need it more than the criminal lawyers. 

I particularly like the footnote:  "The Addendum shall be a living document that will be intermittently updated as additional bar associations pledge their approval of this Joint Resolution."

In other district news, Claudio Osorio stipulated to pretrial detention yesterday.  The case is before Judge Altonaga so he won't have to wait too long for a trial (or plea).  Here's Jay Weaver's coverage of the case:

Claudio Osorio once lived in a Star Island mansion overlooking Biscayne Bay.
Today the accused international con man remains stuck in a tiny jail cell in downtown Miami.
Arrested earlier this month, Osorio is awaiting trial on federal charges accusing him of fleecing $50 million from investors and the U.S. government.
Osorio’s defense attorney, Orlando do Campo, said Monday his client chose not to challenge the government’s position that he should be held without bail, citing a recent problem in his bankruptcy case. Osorio, 54, is being held in the Federal Detention Center in downtown Miami.
Magistrate Judge Jonathan Goodman originally granted Osorio a $1 million bond, including a $100,000 deposit to be made by his mother-in-law who lives in his native Venezuela. But the judge put it on hold so that a federal prosecutor, a bankruptcy trustee and Osorio’s bankruptcy lawyer could address a dispute over the source of the defendant’s funds.
The bankruptcy trustee is seeking to have Osorio found in contempt of court for allegedly forging a letter from a Canadian bank that purportedly claimed it had turned over all financial records related to his defunct company, InnoVida Holdings.

Read more here: http://www.miamiherald.com/2012/12/17/3146527/accused-swindler-claudio-osorio.html#storylink=cpy

B-Girls jury still out

They started deliberating on Thursday and could be heard laughing in the jury room on Friday afternoon.  Not sure what that means... But no verdict yet.  As soon as I hear something, I will post it.

The cat comments are weird, but the comment about Judge Rosenbaum's investiture was nice.

And speaking of investitures, the Senate is confirming more district judges... When will Judge Thomas be confirmed?


Finally, Richard Catalano can now listen to Justin Timberlake as loud as he wants.  Here's Richard:    

Excellent piece in USA Today on snitching

By Brad Heath.  Almost one out of every eight federal prisoners have had their sentence reduced for cooperation.  That's a huge number.  And here's an interesting graphic on how that breaks down:

Robin Rosenbaum investiture today...

...in Ft. Lauderdale.  Congrats!

Breathe.

 The Miami Herald has some tips for managing stress in today's paper, and it includes advice from Judge Gold:

Alan Gold, a federal judge for the Southern District of Florida, also practices mindfulness meditation and has become a proponent of teaching practices for stress reduction to attorneys. Gold has advocated for the creation of a task force on the mindful practice of law with the Dade County Bar Association and the local Federal Bar Association.
Gold says he regularly sees attorneys shuffle into his courtroom on the brink of a breakdown. He links erosion in the degree of civility in the profession with lawyers’ inability to cope with extreme stresses.
They may lash out in anger at a co-worker, assistant, client — or even a judge.
“If you recognize you’re in this situation, the next step is to get out of it. The quickest and simplest way is to slow down and take time to focus on your breathing. This is not something that comes naturally for lawyers. It’s counterproductive to their bottom line way of doing business,” he says.

Read more here: http://www.miamiherald.com/2012/12/11/3137810/tips-for-managing-workplace-stress.html#storylink=cpy#storylink=cpy

Lewis and Tein might be breathing easier today after the case against them has suffered another setback. From the DBR:

Another deposition supports Miami law firm Lewis Tein's position in its fight to exonerate itself from accusations that it lied about its fee for representing two Miccosukee tribal members who were sued for wrongful death.
***
This sparked a deposition of Bert, who previously signed an affidavit that his legal fees were in essence loans. Bert is not fluent in English.
In the deposition, which took place Nov. 27 and Dec. 3, Bert appears confused about what constitutes a loan. He first denies there was a loan agreement between the tribe and Lewis Tein.
Lewis Tein, in a Dec. 7 pleading, accused the Bermudez family attorneys of trying to confuse Bert through semantics. The money extended to him and his daughter wasn't specific to Lewis Tein but for legal representation by any firm or lawyer.
"Those lawyers knew or should have know (sic) that Mr. Bert and Ms. Billie did not obtain loans specific to Lewis Tein but were ultimately responsible to pay back the tribe from their future quarterly distributions," stated the motion filed by attorney Paul Calli, a Carlton Fields partner who is representing Lewis Tein.
But in the second day of the deposition, Bert clarified his answers, saying he was just being truthful when his attorney, Jose M. Herrera of Miami, asked him if the loans were earmarked for Lewis Tein.
"When he asked me the question, when Mr. Herrera asked me the question about the loan, I said 'no' because I did not request a loan or assistance to pay the Lewis & Tein (sic) attorney fee specifically," Bert said.
Rodriguez, in the second day of deposition, also asked: "Mr. Bert, did you ever obtain any loans from the Miccosukee tribe to pay for the legal fees generated by Lewis Tein in their representation of you in the Bermudez case?"
Bert answered, "Yes."
Rodriguez then asked if Bert ever answered to the contrary. He replied: "I'm not sure. But because it went through general council approval, I didn't have a separate loan."
An interpreter translating for Bert said he assumed that because the general council approved his request, it didn't constitute a traditional loan.
Rodriguez continued to press Bert on the subject.
"He has told you three ways to Sunday, despite your best efforts, that he knew of the financial arrangement," Calli said. "And that just like Jasper Nelson, the vice chair of this tribe said, it approved these loan payments, those distributions. And you are trying to confuse him with this issue of loans."

 

Miami cops being investigated for gambling by FBI

According to the Miami Herald:

At least a half-dozen Miami Police officers have been targeted by the FBI for their alleged roles in providing protection for a Liberty City sports gambling operation that was uncovered more than a year ago, according to authorities familiar with the case.
At least one Miami officer has been relieved of duty in connection with the investigation into the bookmaking business, which has been shut down, authorities said.
The initial probe by the FBI, which has been assisted by the police department, evolved into a broader investigation involving some of the officers. Arrests of at least six Miami officers — and possibly more — are expected as early as January, according to authorities.

Read more here: http://www.miamiherald.com/2012/12/11/3137268/fbi-investigating-miami-cops-in.html#storylink=cpy

Appellate action

1.  The Supreme Court denied cert in the Hustler pictures case involving nude photos of Nancy Toffoloni Benoit, who was killed (as was her son) by her husband Chris Benoit.  This was the case where the jury awarded $20 million to the family against Hustler, but the judge reduced it to $250,000.  Then the 11th Circuit threw out the award altogether.  The Supremes denied cert. 

2.  The 11th was also busy deciding the case of the 6-toed Hemingway cats, 907 Whitehead Street, Inc. v. Secretary of the United States Department of Agriculture, Case No. 11-14217 (decided December 7, 2012).

The 11th held that the Department of Agriculture can regulate the Hemingway House because people come to see the cats walking around the grounds.  I wonder how the conservatives feel about the most conservative court in the country finding that more regulation was warranted here. 

I'll see your Holiday Spirit and raise...

Chief Judge Moreno has a holiday spirit order of his own, in which he says "in light of the many upcoming holidays, including Hanukkah, Christmas, New Year's Day, Three Kings, Day, the Bowl Championship Series Game, and Martin Luther King, Jr. Day, the Court GRANTS an enlargement of time for all Defendants."  (emphasis added).

Now we have Judge Cooke and Chief Judge Moreno.  Who's next?

Tis the Season....

Another reason you gotta love Judge Cooke.  Here's an order from the docket sheet of DemeRx, Inc. v. Chrysalis Pharma Partners:

12/04/2012

16

ENDORSED ORDER granting nunc pro tunc 15 Plaintiff's Motion for One Day Extension of Time to File Response to Answer, Affirmative Defense, and Counterclaim. Fortunately, counsel may take advantage of my giving spirit during this holiday season. Generally when I state that no further extensions of a given deadline will be granted, my subsequent orders are consistent with my statement. Nevertheless, Plaintiff may have through and including December 4, 2012 to respond to Defendant's Answer, Affirmative Defense, and Counterclaim. Signed by Judge Marcia G. Cooke on 12/4/2012. (eah) (Entered: 12/04/2012)

That's the spirit! 

Other federal judges have filed a class action seeking higher pay.  Here's the complaint.  From Thomson Reuters:

Pay raises for federal judges is a cause célèbre whose top advocate is the nation's top judge, Chief Justice of the Supreme Court, John Roberts. And, back in October, the movement for higher judicial pay achieved a big victory. As On The Case reported, the Federal Circuit Court of Appeals ruled that the six judges who brought a case demanding their authorized raises were entitled to cost-of-living pay increases that would bump up their base salary by about $25,000. Though that ruling was limited to those six plaintiffs, we noted at the time that other judges looking for similar pay increases could simply bring their own suits and cite the Federal Circuit ruling.
Seven additional federal judges, including Marsha Berzon of the 9th Circuit Court of Appeals and Allyson Duncan of the 4th Circuit, did just that late last week, filing a class action in the U.S. Court of Federal Claims. The proposed class would include the more than 1,000 federal judges who have served during the past six years. The suit, filed by attorneys at Susman Godfrey, dedicates more than a page to the October Federal Circuit opinion, styled Beer v. United States.

B-girls trial still ongoing

Some girls flirt with some guys and take them for a bunch of money and we've made a federal case out of it.  And a long one!  It started back in early October!  It's the Energizer Bunny trial. 

David Lat is profiled here in Details. The intro:

Earlier this year, after weeks of hearing rumblings from a network of tipsters, David Lat, the 37-year-old managing editor of Above the Law (ATL), one of the most widely read legal blogs on the Web, published a story he never dreamed possible. In the post, cheekily titled "Where's LeBoeuf? An Update on Doings at Dewey," Lat broke the news that one of most prestigious law firms in the world, Dewey & LeBoeuf, which employed more than 1,300 attorneys in 12 countries in 2007, was on the verge of imploding. "I was flummoxed," says Lat, a former Assistant United States Attorney. "It seemed absurd."

Dewey & LeBoeuf was the child of a 2007 boom-time megamerger between a 100-year-old firm bearing the name of three-term New York governor Thomas Dewey and another old Gotham stalwart that represented some of the nation's biggest utilities and insurance companies. In the legal world, the possible dissolution of Dewey & LeBoeuf was on par with Lehman Brothers' monumental bankruptcy in 2008. Lat, a blogger by trade, had the skinny on what was really happening in those hallowed halls. Armed with a network of inside sources, a dogged reporter's sense, and a good, old-fashioned hunch, Lat dropped the latest in a string of bombs on the beleaguered legal profession.
After that initial post, the doomsday stories—and scoops—came fast and furious: Dozens of partners were leaving (ATL had the names), and an internal memo (leaked to Lat) actually blamed "U.S. legal blogs" for making some of the firm's woes public. That was followed by the announcement of a 60-day-notice policy designed to retain the remaining partners—more than 20 percent had announced their depatures by this time —and reports that Dewey was considering closing three international offices. In late April, Steven Davis was ousted from his role as chairman, and the Manhattan District Attorney's office began a criminal probe to investigate his actions. Finally, on May 28, three months after Lat's first post, Dewey filed for bankruptcy. For Lat and his staff, the story was only just beginning.
"We would get our intel in a number of different ways," he says, citing a flood of e-mails and texts, including information from friends and friends of friends who worked there and a "well-placed source at the firm" who leaked the memo. ATL even unearthed details about the company's downfall in what appeared to be minor stories—like the firm prohibiting lawyers from using Federal Express and not being able to afford black car service. "[Web] traffic during the Dewey period was phenomenal," recalls Lat, whose breaking stories were cited by the Wall Street Journal and the New York Times. Throughout the summer, Lat kept tabs on the key players, digging around for answers about what went wrong and reporting that, even as the firm was sinking, many of its multi-millionaire partners were still pulling in six-figure checks. "They were like pigs at the trough, all muscling each other aside to get a share of the feed," Lat says. "The story delved into a lot of themes, whether it's greed or anxiety or the distribution of spoils in the legal profession." In other words, it was catnip for Lat and the ATL faithful.

The NY Times is covering border searches and whether our devices should be subject to search just because it's the border:

The government has historically had broad power to search travelers and their property at the border. But that prerogative is being challenged as more people travel with extensive personal and business information on devices that would typically require a warrant to examine.

Several court cases seek to limit the ability of border agents to search, copy and even seize travelers’ laptops, cameras and phones without suspicion of illegal activity.

“What we are asking is for a court to rule that the government must have a good reason to believe that someone has engaged in wrongdoing before it is allowed to go through their electronic devices,” said Catherine Crump, a lawyer for the American Civil Liberties Union who is representing plaintiffs in two lawsuits challenging digital border searches.

A decision in one of those suits, Abidor v. Napolitano, is expected soon, according to the case manager for Judge Edward R. Korman, who is writing the opinion for the Federal District Court for the Eastern District of New York.

In that case, Pascal Abidor, who is studying for his doctorate in Islamic studies, sued the government after he was handcuffed and detained at the border during an Amtrak trip from Montreal to New York. He was questioned and placed in a cell for several hours. His laptop was searched and kept for 11 days.

According to government data, these types of searches are rare: about 36,000 people are referred to secondary screening by United States Customs and Border Protection daily, and roughly a dozen of those travelers are subject to a search of their electronic devices.

Courts have long held that Fourth Amendment protections against unreasonable searches do not apply at the border, based on the government’s interest in combating crime and terrorism. But Mr. Pascal’s lawsuit and similar cases question whether confiscating a laptop for days or weeks and analyzing its data at another site goes beyond the typical border searches. They also depart from the justification used in other digital searches, possession of child pornography.

“We’re getting more into whether this is targeting political speech,” Ms. Crump said.

Big shoes to fill

The Federal Defender's Office and Carlton Fields have some big shoes to fill.  Beatriz Bronis (Deputy Chief of Appeals at the PD's office) and Stephen Bronis (a partner at CF) are starting the next phase of their lives.  From what I hear, neither is retiring, but Beatriz is leaving the office and Steve will be cutting back but still associated with CF.  Congratulations and good luck!  Both are fantastic lawyers and will be missed.

Two words best describe the majority opinion: “wrong” and “dangerous.” UPDATED with hilarious Kozinski video

That's how Chief Judge Kozinski starts his dissent in United States v. I.E.V.  You gotta love his writing style:

My colleagues ignore these intractable realities and focus
instead on irrelevancies. They mention twice (so they must
think it’s pretty important) that the dog didn’t alert to
weapons. Maj. Op. 10, 16-17 n.6. But the dog did alert to
possible illegal activities that are often accompanied by
firearms. The majority also mentions twice (ditto) that the
dog alerted to possible drugs or humans, as if this matters.
Id. at 10, 18 n.6. It doesn’t: If the dog alerts to something
that might be drugs or humans, that something could be
drugs.
The majority mentions three times (ditto!) that I.E.V. and
his brother were teenagers, as if that matters. Maj. Op. 8, 10,
16. Teenagers are perfectly capable of carrying drugs and
killing people with guns. Teen kills cop, then self, Chicago
Tribune (June 20, 2007), available at
http://articles.chicagotribune.com/2007-06-20/news/07062
00859_1_kills-teen-cop.
The majority mentions four times (DITTO!!!) that San
Ramon didn’t testify, Maj. Op. 3, 5, 19, 20, and argues that
we may not “assum[e] that [he] ‘might legitimately have been
looking for’ a weapon,” id. at 20 (quoting Miles, 247 F.3d at
1015). ...
***

From the conclusion:

It’s easy enough, sitting safely in our chambers, protected
by U.S. Marshals with guns and dogs, surrounded by concrete
barriers and security cameras, to say that officers in the field
had no cause to fear for their safety. But if we’d been there
when I.E.V. and his brother pulled up in their car, heard the
police dog alert and seen one of the suspects fidget like he
was reaching for a weapon, I’d have dived for cover into the
nearest ditch, and my guess is I wouldn’t have been the first
one there.

Update:  One of the funniest videos I've seen (h/t AP):



2.  John Pacenti covers the upcoming trial before Judge Scola involving the issue of depos in Pakistan.  They don't have the Federal Public Defender's resources (because their client has been dismissed out of the case), so preparing has been tough:

In interviews with the Daily Business Review, the attorneys for the father-and-son imams talked about the undertaking and gave a preview of what they plan to argue in front of a jury next month.
It's a defense that will partly center on free speech, a government informant who infiltrated the clerics' mosques and whether the defendants knew money sent to Pakistan was earmarked for the Taliban.
"This is like putting on a wedding for a thousand people with a staff of two," said Joseph Rosenbaum, the Miami attorney for Izhar Khan. "This is a tremendous undertaking."
"Surprisingly, it seems no one has had to do live encrypted video depositions from Pakistan to Miami before. Go figure," said Khurrum Wahid, a partner at Wahid Vizcaino in Pompano Beach. He represents the father.