Monday, April 30, 2012

Did secretary at grand jury suite violate grand jury secrecy?

1.     Jay Weaver covers Tamika Jasper-Barbary's motion to dismiss by Scott Srebnick before Judge Scola.  Looks like she has a good shot to prevail:

 Now, her defense attorney says he has uncovered a lack of evidence that could sink the government’s case against her.
The snitch — a convicted trafficker identified only as “L.B.” in the indictment — never testified before a federal grand jury, nor did a panel ever convene to hear his testimony. So, even if Jasper-Barbary had told her husband about L.B., she couldn’t have violated the grand jury’s secrecy or broken any laws, her attorney says.
“I think the government is playing games with this indictment,” Miami attorney Scott Srebnick told U.S. District Judge Robert Scola at a hearing last week. “Now we know there was no Miami grand jury sitting in this case.”
Court documents show prosecutors don’t dispute these facts. They acknowledge that a late November email shows Jasper-Barbary arranged a federal drug agent’s one-on-one interview with L.B. for the following month in a room of the grand jury suite at the downtown Miami federal courthouse.

If there was no grand jury and Jasper-Barbary had no duty of secrecy, then what's the deal:

Srebnick countered that Jasper-Barbary — who made $57,000 a year before her unpaid suspension in January — was not included in the seven categories of people who are obligated under federal law to maintain grand jury secrecy.
“There is no allegation that she or anyone else sought to influence L.B. to provide false evidence to the grand jury, or to avoid the grand jury altogether, or that she intended any harm to L.B,” Srebnick argued in a motion. “The only thing she allegedly did was disclose information, which is not a crime absent a legal duty to maintain secrecy.”

There are also claims of misconduct:

He argued that a Drug Enforcement Administration agent gave “misleading testimony” before a Fort Pierce federal grand jury, which returned the indictment against Jasper-Barbary, her husband and seven others in January. The agent affirmed that the main target of the investigation, Barbary, learned from his wife that Bennett was “being brought before a federal grand jury.”
But that was not the truth, Srebnick argues in court papers, because Bennett was never even scheduled to appear before the grand jury. As a result, the agent’s testimony “infected” the Fort Pierce panel, which proceeded to adopt the “government’s theory” that “Jasper-Barbary joined the drug conspiracies through her alleged obstruction of justice.”

My favorite part of the story:

Agents also found a book in the couple’s home. The title: Busted by the Feds: The Book for Defendants Facing Federal Prosecution.

Read more here:

2.  And by the way, in case you didn't see the post from late Friday evening, the JNC cut the judgeship applicants to three:

Robin Rosenberg
William Thomas
John Thornton

All three are state judges and they are all really good. It will be interesting to see who the President selects. 

Read more here:

Read more here:

Friday, April 27, 2012

BREAKING -- JNC cuts list to 3 for federal judgeship

The three finalists for the Ft. Pierce slot are:

Robin Rosenberg
William Thomas
John Thornton


Federal Friday

Lots happening on this Friday in the SDFLA -- all of the federal practitioners and judges were in West Palm Beach at the Federal Bench and Bar Conference, with one exception.  Congrats to Adam Rabin for putting together a really nice event and to Judge Jordan for his remarks during the lunch hour. 

The one exception is that the Federal JNC members weren't there as they were interviewing the applicants for the Ft. Pierce open seat.  As soon as I hear who made the cut, I will post.  Tipsters, please email me and I will keep it confidential as always.

Thursday, April 26, 2012

Judge Ungaro rules drug testing of state employees unconstitutional

The well-written 37-page order is here

From the Palm Beach Post:

Miami U.S. District Judge Ursula Ungaro Thursday morning ruling that random, suspicionless testing of some 85,000 workers violates the Fourth Amendment ban on unreasonable searches and seizures also raises doubts about a new state law quietly signed by Scott this spring allowing the governor’s agency heads to require urine tests of new and existing workers.
“To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing,” Ungaro wrote in her order issued this morning, citing previous U.S. Supreme Court orders which decided that urine tests are considered government searches.
Scott issued an executive order requiring random drug testing of new hires and all state workers after he took office last year. But he suspended the tests in June after labor unions and the ACLU challenged the order, objecting that the tests are a violation of the constitutional right to protection from unreasonable searches and seizures by the government. Instead, Scott limited his order for all but corrections officers pending the outcome of the Miami case.
Ungaro rejected Scott’s lawyers’ arguments and data showing that about 1 percent of workers at certain agencies who underwent the drug screens tested positive. And she was not persuaded by the governor’s arguments that private sector drug testing shows widespread drug use among workers. She also did not agree that prospective or current state workers could seek employment elsewhere if they object to the tests. New hires, but not current state workers switching jobs, could be required to take the tests, Ungaro ruled.
“All of the upheld drug-testing policies were tailored to address a specific, serious problem. In contrast, the rationale for the Governor’s policy consists of broad prognostications concerning taxpayer savings, improved public service, and reductions in health and safety risks that result from a drug-free workplace,” Ungaro wrote.

Congrats to the ACLU on a great victory.  The governor said he will appeal.

Wednesday, April 25, 2012

TD Bank admits to false statement; changes lawyers (UPDATED)

UPDATE -- Although the SFBJ says that TD Bank acknowledged making a "false statement," that is an overstatement.  The pleading that Greenberg Traurig filed says that it found a document that it previously said did not exist.  It did not say that it or the bank did anything intentionally.  Judge Cooke set a hearing to next month to show cause as to what should occur based on this "incorrect statement."  Above The Law has written a story covering the lawyer who supposedly made the statements and explains that she is no longer with Greenberg.  As for the trial lawyers on the case (on both sides), I can say that they are good and ethical lawyers. 

Wow, this is a big deal.  From South Florida Business Journal:
TD Bank has acknowledged that it made a false statement to a federal judge about evidence in a lawsuit related to the Scott Rothstein Ponzi scheme, according to a notice filed on Tuesday in federal court in Miami.
The bank has also announced that a new law firm will be handling the case, which is on appeal.
TD Bank lost a $67 million jury verdict in January to investors who were bilked by Rothstein. The verdict in Coquina Investments vs. TD Bank is considered to be one of the first ever to hold a bank accountable for aiding and abetting fraud by one of its customers.
Since the verdict, Coquina has filed a previous motion to penalize the bank further for allegedly tampering with another document called a Customer Due Diligence form. The latest controversy over the Standard Investigative Protocol has resulted in U.S. District Judge Marcia Cooke setting a hearing to determine why the bank shouldn’t be held in contempt of court.
In court motions, TD Bank said it had replaced Greenberg Traurig with two new law firms, McGuireWoods and Kasowitz Benson Torres & Friedman. The bank is facing several additional lawsuits related to the Rothstein case, including one by investor Emess Capital. The bank also dropped Greenberg in the Emess case, but Greenberg continues to represent TD Bank in other cases, Acevedo said Wednesday.
TD Bank’s new counsel, including Marcos Daniel Jimenez of Kasowitz Benson in Miami, filed an emergency motion to stay the contempt hearing until the firm can study the case further. In that motion, Kasowitz Benson warned that a conflict of interest may exist among TD Bank employees, the bank and Greenberg Traurig regarding the production of documents in the case.

High profile Broward defendants lose in 11th Circuit... unpublished decisions.

The first is USA v. Fitzroy Salesman:

Defendant Fitzroy Salesman, a former city commissioner in Florida, appeals his convictions and 51-month total sentence for two counts of accepting bribes in programs receiving federal funds, in violation of 18 U.S.C. § 666(a)(1)(B), and two counts of attempted extortion under color of official right, in violation of 18 U.S.C. § 1951. After review and oral argument, we affirm.

The second is USA v. Alan Mendelsohn:

Alan D. Mendelsohn appeals his forty-eight-month sentence imposed after he pled guilty to one count of conspiracy to commit wire fraud, file false tax returns, and make false statements, in violation of 18 U.S.C. § 371. On appeal, Mendelsohn argues that the district court erroneously applied two separate sentence enhancements and that his sentence is substantively unreasonable.
We find no merit in this contention because the charges in the information, the pre-sentence investigation report, and the factual basis for Mendelsohn’s plea all provided Mendelsohn with notice by referring to the harm caused to Florida’s political institutions by his misuse of political action committees and his payments to the Florida legislator.

Monday, April 23, 2012

Monday morning...

I wish I had something exciting to post this morning, but it's pretty quiet.

The Justice Building Blog has been doing an excellent job covering all of the election action, including Rod Vereen's decision to run against Kathy Fernandez-Rundle.  Thank goodness that the public defender, Carlos Martinez, is unopposed.  Carlos deserves it, and he is a good guy.  It's incredible to me that we elect the public defender -- can you imagine a contested election.  What would you run on?  That you fight for indigent defendants more than the other guy.  Not sure that would help...

The John Edwards trial is starting today, and opening statements are due in Clemens this morning. Two pretty wasteful prosecutions if you ask me.

George Will has a good op-ed about why juveniles should never be sentenced to life without the possibility of parole here:

In 1958, the court said: “The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Justice Antonin Scalia has warned: “A society that adopts a bill of rights is skeptical that ‘evolving standards of decency’ always ‘mark progress,’ and that societies always ‘mature,’ as opposed to rot.” But even the “originalist” Scalia, although disposed to construe the Constitution’s terms as they were understood when ratified, would today proscribe some late-18th-century punishments, such as public lashing and branding.
Denying juveniles even a chance for parole defeats the penal objective of rehabilitation. It deprives prisoners of the incentive to reform themselves. Some prisons withhold education, counseling and other rehabilitation programs from prisoners ineligible for parole. Denying these to adolescents in a period of life crucial to social and psychological growth stunts what the court in 2005 called the prisoner’s “potential to attain a mature understanding of his own humanity.” Which seems, in a word — actually, three words — “cruel and unusual.”
ATL covers the most influential lawyers (according to Time) here, and the Washington Post explains that lawyers are pretty careful in the Supreme Court when arguing legislative intent.  That's all I have for now.  Email me some tips!

Friday, April 20, 2012

Jury nullification case dismissed

I just love that this guy -- fighting for his right to tell potential jurors to say not guilty -- was pro-se and won.  It really bothered me that the government charged him with a federal crime for protected speech.  From the Times:

The next time the 80-year-old retired chemistry professor takes his protest to the plaza outside the federal courthouse in Manhattan, he may make it home without being locked up.
A federal judge on Thursday ordered the dismissal of an indictment against the professor, Julian P. Heicklen, who had been charged with jury tampering for advocating the controversial position known as jury nullification while outside the courthouse.
Mr. Heicklen had repeatedly stood with a “Jury Info” sign and handed out brochures supporting nullification, the view that jurors who disagree with a law may ignore their oaths and vote to acquit a defendant accused of violating it.
Prosecutors said such advocacy, “directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred.”
But the judge, Kimba M. Wood of Federal District Court, wrote that a person violated the jury tampering statute only when he or she knowingly tried to influence a juror’s decision through a written communication “made in relation to a specific case pending before that juror.”
Judge Wood added that she would not “stretch the interpretation” of the statute to cover speech that was “not meant to influence” a juror’s actions in a specific case.
Mr. Heicklen expressed pleasure at the ruling. “Not just for me,” he said. “I think it’s a major decision for the country.”
He added: “This is better than having them throw me in jail.”
 Well said.  Well done Judge Wood.  The only thing better would have been a jury finding him not guilty....

Wednesday, April 18, 2012

Wednesday news and notes

1.  Congrats to Todd Scher who obtained a new trial for his death-row client before Judge Seitz.  From the NY Times:

These days, Mr. Holland is represented by Todd G. Scher, a Miami Beach lawyer who won in the Supreme Court and persuaded Judge Seitz to order a new trial. A spokesman for the Florida attorney general’s office said prosecutors would ask Judge Seitz to reconsider her ruling.
Mr. Scher said he did not know who would represent Mr. Holland at a retrial. For now, he said, what was clear was that a federal judge had found “a blatant Sixth Amendment violation.”
“It shows that he was right,” Mr. Scher said of his client. “He had concerns about his prior series of lawyer, and his concerns turned out to be valid.” 

2.  Fitzroy Salesman was in the 11th Circuit yesterday, and represented by all-around good person Ashley Litwin.  From the Sun-Sentinel:
Ashley Litwin, Salesman's appeals lawyer, told the judges on Tuesday that Salesman had acted like an NBA star on suspension from his team contract who worked on a beer commercial but wasn't paid for it until after he returned to the team.
But Assistant U.S. Attorney Carol Herman said the analogy wasn't a good one "because elected officials are held to a higher standard than sports figures."
 Really? In Miami, I think sports figures are held to a higher standard...

Tuesday, April 17, 2012

Oh man, this is really bad

Check out this report by the Washington Post:
Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people nationwide, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.

Officials started reviewing the cases in the 1990s after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials. Instead of releasing those findings, they made them available only to the prosecutors in the affected cases, according to documents and interviews with dozens of officials.

In addition, the Justice Department reviewed only a limited number of cases and focused on the work of one scientist at the FBI lab, despite warnings that problems were far more widespread and could affect potentially thousands of cases in federal, state and local courts.

As a result, hundreds of defendants remain in prison or on parole for crimes that might merit exoneration, a retrial or a retesting of evidence using DNA because FBI hair and fiber experts may have misidentified them as suspects.
Now what?  Read the whole piece; it's long but worth your time.

Monday, April 16, 2012

"Which office do I go to get my reputation back?

That was Ray Donovan after he was acquitted.  I was reminded of that quote while posting the Bar letter to Lewis & Tein in the post below, which "regrets any confusion" that was created by saying that the two lawyers were being investigated for perjury or the motion to recuse.  Turns out that the Bar isn't investigating any such thing and is instead merely "monitor[ing] the underlying civil proceedings."  Which office do they go to to get their reputations back?

There's been an awful lot of schadenfreude going around town lately.  Remember Alan Shore's closing argument in Boston Legal:
Shadenfreude. From the German words, Schaden and Freude, damage and joy. It means to take spiteful, malicious delight in the misfortune of others. We used to dismiss this as simply an ugly side of human nature, but it is much much more than that. Recently a Stanford professor actually captured Schadenfreude on a brain scan. It’s a physiological medical phenomenon. When we see others fall it sometimes causes a chemical to be released in the dorsal striatum of the brain which actually causes us to feel pleasure. If you watch the news or read the papers, which of course you don’t because the Judge said not to, but if you did, you would see the undeniable delicious joy of the media and the public over Kelly Nolan’s plight. I have no doubt that you want Kelly Nolan to be punished. She married for money, she had an affair, she carried on naked in the pool with her boyfriend. She’s cold, materialistic, unlikable, and it might bring you all pleasure to see her go to jail. But as for evidence to establish that she committed a murder beyond all reasonable doubt? It just isn’t there. The only possible route to a guilty verdict here is Schadenfreude.

Guy and Mike are good, aggressive lawyers, and people don't like that. The Florida Bar's letter today proves they don't deserve the press they've been getting.

Why one shouldn't rush to judgment....

... even when it's reported in the newspaper.  Lots of people in town have been quick to jump on the Lewis/Tein bar investigation.  Problem is that it was misreported.  Here's the Florida Bar letter from today, apologizing:

April 16, 2012
Mr. Guy A. Lewis
Mr. Michael Ross Tein
Lewis Tein PL
3059 Grand Avenue, Suite 340
Coconut Grove, FL  33133-5166

Re:      Complaint by The Florida Bar against Michael Ross Tein
            The Florida Bar File No. 2012-70,334(11G)

            Complaint by The Florida Bar Bar against Guy A. Lewis
            The Florida Bar File No. 2012-70,335(11G)

Dear Mr. Lewis and Mr. Tein:

Newspapers recently reported information pertaining to your representation of Tammy Gwen Billie and Jimmy Bert, some of which was attributed to The Florida Bar and some of which was not accurate.  Pursuant to our discussions, please be advised as follows:

            1.         The Florida Bar does not now nor did it previously have an investigation                                        pertaining to your Motion to Recuse Judge Dresnick, as was previously reported.

            2.         The matter which is pending at Grievance Committee pertains only to Judge                                  Dresnick's $3500 sanctions order and not to “perjury” or any other issue or                                     allegation, as was previously reported.

            3.         As discussed, the Florida Bar continues to monitor the underlying civil                                           proceedings.
The Bar regrets any confusion caused by the recent news reports.


Chief Branch Discipline Counsel

cc:        Mr. Kendall B. Coffey, Esq.
UPDATE -- The Herald issued this correction today.  They were given the bad information by the Bar:

Because of incorrect information provided by the Florida Bar, a story in Friday's Metro section gave an inaccurate account of the Bar’s investigation into Miami lawyers Guy Lewis and Michael Tein. The Bar is not investigating the lawyers for their assertion — in a recusal motion involving their clients, two Miccosukee Indians — that Miami-Dade Circuit Judge Ronald Dresnick was biased against Native Americans. The story also mischaracterized the status of two other related allegations. The Bar’s grievance committee is investigating Lewis and Tein’s failure to turn over financial records of their clients. The Bar’s staff is monitoring the lawyers’ assertions regarding the source of their clients’ payments.

Secret Service, GSA in trouble

Not a good weekend for the government.

Prostitution in Colombia for the Secret Service...  The cover of the NY Post is pretty funny:

And Jeff Neely of the GSA is going to plead the Fifth today over a conference in Vegas that cost $822,000:

On Thursday, House Oversight and Government Reform Chairman Darrell Issa (R-Calif.) served a subpoena to require Jeff Neely to appear before the committee, according to Democratic committee documents obtained by POLITICO. Neely’s attorney on Friday informed the committee Neely will exercise his right against self-incrimination and requested not to attend the hearing.

What happens in Vegas (and in Colombia) apparently does not stay in Vegas.