Friday, August 31, 2012

Friday News & Notes

1.  An interesting oral argument early this morning in the 11th Circuit (8am start!). I love pirate cases. U.S. v. Bellaizac-Hurtado, Case No. 11-14049: A consolidated appeal in which four defendants are challenging the constitutionality of applying U.S. jurisdiction, under the Maritime Drug Law Enforcement Act, over a vessel transporting cocaine, seized in Panamanian territorial waters, pursuant to Congress's authority "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations."  U.S. Const. art I, § 8, cl. 10. The question is whether drug trafficking in foreign territorial waters is a violation of the "Law of Nations" and thus within Congress's authority to criminalize. Appellate gurus were on the case-- Tracy Dreispul argued the case for the FPD and Jonathan Colan for the USAO.

2.  Judge Richard Posner wrote an cutting piece about Justice Scalia's book on interpretation.  This comes after Scalia made fun of Posner.  Cat fight!  Here's a snippet from Posner's article but the whole thing is really worth a read:

Those are more persuasive points than the dictionary’s definition, and as is often the case, the court got the definition wrong. (Scalia and Garner miss this, too.) A sandwich does not have to have two slices of bread; it can have more than two (a club sandwich) and it can have just one (an open-faced sandwich). The slices of bread do not have to be thin, and the layer between them does not have to be thin either. The slices do not have to be slices of bread: a hamburger is regarded as a sandwich, and also a hot dog—and some people regard tacos and burritos as sandwiches, and a quesadilla is even more sandwich-like. Dictionaries are mazes in which judges are soon lost. A dictionary-centered textualism is hopeless.

3.And while we're in the 11th Circuit, check out this opinion today dealing with Segways and Disney.  Disney didn't want them in the park and people freaked out, including DOJ, a bunch of Attorneys General and others.  The 11th affirmed, basically saying that the settlement was fair in which Disney agreed to "develop a four-wheeled, electric-stand up-vehicle (“the ESV”) for those for whom a stand-up mobility device is a necessity and who are unable to utilize a mobility device that requires sitting, such as an electronic wheelchair or motorized scooter."

4. HAVE A NICE LONG HOLIDAY WEEKEND.

Thursday, August 30, 2012

BREAKING -- William Thomas being vetted for Federal Judgeship

That's been the talk of the town for the past few weeks, but now FBI agents and ABA officials are doing their background on Judge Thomas and the secret is out.

This is fantastic news -- Will Thomas is a great judge and person.  He enjoys a very strong reputation as a trial judge in state court where he has handled both criminal and civil cases.  He also has a federal background having worked at the Federal Public Defender's Office.

Judge Thomas is known as a hard worker, sometimes trying cases late into the night.  And he is known as fair, calling cases right down the middle.  Both sides respect him and he'll make a great federal judge.

Now the only question is timing.  With the election around the corner, will Judge Thomas be nominated and confirmed before the end of the year?  I really hope so.

Wednesday, August 29, 2012

"Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.”

That was Chief Justice John Roberts when we he was an attorney in the Reagan adminstration.

Slate has an article today asking whether the Supreme Court really should be taking the summer off:

Either way, the summer recess comes with some significant costs. Because the justices do not meet to decide whether to grant or deny review in cases during the summer months, thousands of legal petitions pile up during their absence. The court plows through this backlog at their first conference (aptly referred to as the “long conference”) in the last week of September. But they obviously cannot give these petitions the same consideration as those that arrive later in the term. (For this reason, savvy appellate attorneys know that it is best to avoid filing petitions over the summer if they can.)
The impending summer recess can also force the court to rush decisions without taking the time to articulate their reasoning, as at least one scholar argues occurred in the Pentagon Papers case—a momentous case with serious national security implications that was decided in a three-paragraph, unsigned opinion in late June. The summer break was behind the timing of this past term’s health care decision. As was widely reported, a decision had to be made by the end of June because of Chief Justice Roberts’ Malta trip in the first week of July.
When pressing issues arise during the recess, the matter is often handled by a single justice “in chambers” who must make important decisions about whether to grant stays, injunctions, or extensions without consulting with his or her absent colleagues. For example, Justice William Douglas issued an “in chambers” order in August 1973, which put a stop to military operations in Cambodia. He explained that he would normally have referred this question to the full court, but the summer recess made that “impossible.”
The three-month break is particularly galling at a time when the Supreme Court decides fewer cases than any other court in modern times. In recent years, the court has heard an average of about 80 cases a term, which is half the number they heard 20 years ago and makes up fewer than 1 percent of the approximately 10,000 review petitions they receive. The rest of the federal judiciary does not get the same extended summer vacation, and they handle a great deal more cases. It is also a little disconcerting that many of the justices use the time off to generate outside income. Shouldn’t their time be filled by the job they are paid (by all of us year-round working taxpayers) to do?

Tuesday, August 28, 2012

Cool montage

C-SPAN has put together a short string of clips of every presidential candidate since 1984 accept the nomination.  Is Al Gore impersonating a robot?

Monday, August 27, 2012

Tuesday Court update-- Miami and FtL open; Key West, WPB, Ft Pierce closed.

August 27, 2012 - 7:00 pm
In light of the announced reopening of public schools in Miami-Dade and Broward Counties, the United States District Court in Miami and Fort Lauderdale will reopen on Tuesday, August 28, 2012, including Bankruptcy and Probation. The Key West, West Palm Beach and Fort Pierce federal courthouses will be closed on Tuesday, August 28, 2012, as the Monroe, Palm Beach and St. Lucie Counties Public Schools have announced they will be closed. The Key West, West Palm Beach and Fort Pierce federal courthouses will reopen when the school systems in those counties reopen or upon further order of Chief Judge Federico A. Moreno.

Judge Fay is working today

He just issued this opinion (which was joined by Judge Jordan).  This is the funny intro: "On July 23, 2009, Connie Strickland had been 'working on the railroad / All the live-long day.'" And here is the citation from the opinion: "A popular American folk song, the first published version of 'I’ve Been Working on the Railroad' seems to have been in a 1894 Princeton University songbook. See James J. Fuld, The Book of World-Famous Music 309 (Dover, 4th ed. 1996)."

Saturday, August 25, 2012

SDFLA Federal Courthouses Closed on Monday

From the court website:

CLOSURE OF KEY WEST, MIAMI AND FORT LAUDERDALE FEDERAL COURTHOUSES ON MONDAY, AUGUST 27, 2012


During inclement weather periods, the safety of jurors, the public and Court personnel is always a priority. In the event of hazardous weather conditions, including hurricanes and tropical storms, the policy of the Southern District of Florida is to close federal courthouses when the local public schools within a particular county close. In light of the announced closures of public schools in Monroe, Miami-Dade and Broward Counties, the federal courthouses in Key West, Miami and Fort Lauderdale will be closed on Monday, August 27, 2012. Those courthouses will reopen when public schools in those counties reopen or until further order of Chief United States District Judge Federico A. Moreno. In the event of an emergency, information about the U.S. District Court for the Southern District of Florida can be obtained from the following sources:
- The Court’s website: www.flsd.uscourts.gov
- Recorded telephone messages at each courthouse
- Broadcast messages sent to CM/ECF e-filers
- Television announcements
Please note that if the Court’s website is unavailable, the Administrative Office of the U. S. Courts will post emergency messages on behalf of the Court on its website: www.uscourts.gov

Here is Judge Moreno's Administrative Order regarding closures, which explains that when schools in a particular county are closed, so too are the federal courthouses in that county.

Apple crushes Samsung

You've seen all the news already, but you should check out the Verge blog for the best coverage of the verdict and the case.  It's got really good stuff, including that the jury said that it didn't review the 100+ pages of instructions in coming to its verdict.  Who could blame them. 

I also love this shot of the damages calculation, which should be framed in the lawyer's office:

Here's the whole verdict form filled out.

I think the verdict also shows how important opening statements are...  The general consensus was that Apple really won the initial round and that Samsung held its own during the case and  gave a powerful closing. 

Friday, August 24, 2012

Apple/Samsung jury instructions and verdict form

They are impenetrable and 109 pages!  Here's the summary of claims page:

NO. 18 SUMMARY OF CONTENTIONS
I will now again summarize for you each side's contentions in this case. I will then tell you what each side must prove to win on each of its contentions.
As I previously explained, Apple seeks money damages from Samsung Electronics Company ("SEC"), Samsung Electronics America, Inc. ("SEA"), and Samsung Telecommunications America, LLC ("STA"), for allegedly infringing claim 19 of the '381 patent, claim 8 of the '915 patent, claim 50 of the '163 patent, and the D'889, D'087, D'677, and D'305 patents. Apple also argues that SEC actively induced SEA and STA to infringe the patents. Apple also contends that Samsung's infringement has been willful.
Samsung denies that it has infringed the asserted claims of Apple's patents and argues that, in addition, those claims are invalid. Invalidity is a defense to infringement.
Samsung has also brought claims against Apple for patent infringement. Samsung seeks money damages from Apple for allegedly infringing the '941, '516, '711, '460, and '893 patents by making, importing, using, selling and/or offering for sale Apple's iPhone, iPad and iPod products that Samsung argues are covered by claims 10 and 15 of the '941 patent, claims 15 and 16 of the '516 patent, claim 9 of the '711 patent, claim 1 of the '460 patent, and claim 10 of the '893 patent. Samsung also contends that Apple's infringement has been willful.
Apple denies that it has infringed the claims asserted by Samsung and argues that the claims asserted by Samsung are invalid, and for the '516 and '941 patents, exhausted due to Samsung's license to Intel and also unenforceable. Invalidity, exhaustion, and unenforceability are defenses to infringement. Apple also contends that, by asserting its "declared essential" patents against Apple, Samsung has violated the antitrust laws and breached its contractual obligations to timely disclose and then license these patents on fair and reasonable terms.
For each party's patent infringement claims against the other, the first issue you will have to decide is whether the alleged infringer has infringed the claims of the patent holder's patents and whether those patents are valid. If you decide that any claim of either party's patents has been infringed and is not invalid, you will then need to decide any money damages to be awarded to the patent holder to compensate for the infringement. You will also need to make a finding as to whether the infringement was willful. If you decide that any infringement was willful, that decision should not affect any damage award you give. I will take willfulness into account later.
To resolve Apple's claims regarding Samsung's "declared essential" patents, you will need to make a finding as to whether Samsung violated the antitrust laws and whether Samsung breached its contractual obligations. If you decide that Samsung violated the antitrust laws or breached its contractual obligations, you will then need to decide what money damages to award to Apple.
Apple accuses Samsung of diluting Apple's Registered Trade Dress No. 3,470,983. This trade dress relates to the iPhone. Apple also accuses Samsung of diluting two unregistered trade dresses relating to the iPhone. Finally, Apple claims that Samsung has diluted and infringed its unregistered trade dress relating to the iPad.
For each of Apple's trade dress dilution and infringement claims, the first issue you will have to decide is whether the Apple trade dress is protectable (or valid). An asserted trade dress is only protectable if the trade dress design as a whole, as opposed to its individual features standing alone, is both distinctive and non-functional.
For Apple's trade dress dilution claims, the next issues you will decide are whether Apple's trade dress was famous before Samsung started selling its accused products, and whether Samsung's accused products are likely to cause dilution of the asserted Apple trade dresses by impairing their distinctiveness.
Apple's trade dress infringement claim will require you to resolve different issues. You will need to determine whether Apple's trade dress had acquired distinctiveness before Samsung started selling its accused products, and whether Samsung's accused products are likely to cause confusion about the source of Samsung's goods.
If you decide that any Apple trade dress is both protectable and has been infringed or willfully diluted by Samsung, you will then need to decide the money damages to be awarded to Apple.
Samsung denies that it has infringed or diluted any Apple trade dress and argues that each asserted trade dress is not protectable. If a trade dress is not protectable, that is a defense to infringement and dilution.

Oy.  Here is the entire set of instructions:

Apple vs. Samsung Jury Instructions



The 22-page verdict form seems even worse.  Here's one page:


I feel for this jury.  Anyway, stay dry this weekend.  See you Monday.


Wednesday, August 22, 2012

Student who threatened Obama on Facebook gets probation

Curt Anderson has the details of the sentencing before Judge Cooke:
A 21-year-old college student and musician was sentenced Wednesday to three years' probation for posting threats against President Barack Obama on Facebook, a case a federal judge said underscored the perils of impulsive Internet use.
In addition to the probation, which includes four months' home confinement, U.S. District Judge Marcia Cooke ordered Joaquin Serrapio to write a new Facebook post explaining how messages can have permanent dire consequences.
"I want people to speak out. I want us to have dialogue about issues. But I think some of our young people don't realize that cyberspace is forever," Cooke said after sentencing Serrapio. "When you write something in cyberspace, you are writing it for the world."
I'm happy Judge Cooke didn't put him in jail, but house arrest and 3 years of probation seems like a lot to me.  I do like the idea of requiring him to write something on Facebook.

Thoughts?

Read more here: http://www.sacbee.com/2012/08/22/4748518/obama-facebook-threat-gets-fla.html#storylink=cpy

Apple/Samsung closing arguments

Lots of great coverage around the web today of the closings in a packed courtroom.  It sounded like Apple took the show in openings, but Samsung seems to have had a great closing.  From Reuters:

Samsung attorney Charles Verhoeven countered by saying consumers are not confused between the products from the two mobile companies. He urged jurors to consider that a verdict in favor of Apple could stifle competition and reduce choices for consumers.
"Rather than competing in the marketplace, Apple is seeking a competitive edge in the courtroom," Verhoeven said. Apple thinks "it's entitled to having a monopoly on a rounded rectangle with a large screen. It's amazing really."
...
Samsung's Verhoeven said Apple had not shown any evidence that consumers were actually deceived into buying Samsung products instead of the iPhone or iPad.
"Consumers make choices, not mistakes," he said.

Apple had this to say in its initial close:

Apple attorney Harold McElhinny urged jurors to consider the testimony of a South Korean designer who said she worked day and night on Samsung's phones for three months.
"In those critical three months, Samsung was able to copy and incorporate the result of Apple's four-year investment in hard work and ingenuity - without taking any of the risks," McElhinny said.
Apple is seeking more than $2.5 billion in damages from Samsung. An Apple expert said Samsung earned 35.5 percent margins on the phones in the lawsuit from mid-2010 through March 2012, on $8.16 billion in U.S. revenue. Samsung has disputed that figure.
...
McElhinny focused on a meeting between Samsung and Google executives in February 2010, where Google asked Samsung to stop imitating the iPad so closely.
"Samsung executives chose to ignore that demand and continue on the path of copying," he said.

And from Apple's rebuttal (via ArsTechnica):

The contention that Apple doesn’t want to compete is "startling… and it is wrong," said Bill Lee, the Apple lawyer who delivered a final rebuttal.
"No one is trying to stop them from selling smartphones," he said. "All we're saying is: make your own. Make your own designs, make your own phones, and compete on your own innovations."

Samsung had to address damages (via C|Net):

A topic for both companies was damages, an amount that varies wildly depending on which expert you listen to. Apple's asking for $2.75 billion, while Samsung's targeting Apple for around $519 million. Verhoeven once again made the case that Apple had grossly overestimated.
"$2.75 billion in damages? Really?" Verhoeven asked. "What does it take to get a certified damages expert to agree with you on that?"
"We don't think Samsung should have to pay any damages," Verhoeven countered. "We don't think we're liable, but we have to address the issue of damages because this is the only chance."
Verhoeven pleaded with jurors to use "common sense" if they were to assign damages, going with Samsung's much smaller $22 million tally. Along the way that included taking a crack at Apple's methodology, which included spending $1.75 million on a program to calculate everything together.

I thought this live blog coverage from the Verge of the closings was fantastic as it had tons of quotes and actual exhibits.  Here's the link for the Apple coverage and the Samsung coverage

I liked these Apple exhibits:


Any predictions?

And if you aren't interested in Apple vs. Samsung, how about some good ol' fashion grammar humor-- "your" going to love it

Monday, August 20, 2012

Monday News & Notes

1.  Leaking from SCOTUS could get you in hot water. (NLJ).

2.  That said, Jay Wexler (a former Ginsburg clerk) has this awesome article in Salon.  Here's what he had to say about writing opinions:

Third, the clerks usually write a first draft of the opinions that their justice has been assigned to write. Some people find this shocking, but it really is not that big a deal. At least in Justice Ginsburg’s chambers, the boss would give us a detailed outline to work from and then, once we turned in our drafts, totally rewrite them.  The best you could really hope for as a clerk is to get a little pet phrase or goofy word or other quirky something-or-other into the final opinion. For example, there may or may not be one Ginsburg opinion from our term which, when read backward, will summon the demon Beelzebub from the seventh level of hell to earth where he will horribly murder the entire human race. On a more innocuous note, when Justice Anthony Kennedy was assigned to write an opinion concerning the import tariffs applicable to permanent press pants baked in giant pants ovens in Mexico, my co-clerk Bill and I worked very hard to convince the Kennedy clerk working on the case to get the words “trousers” and “slacks” into the final opinion. “Trousers” made it into the U.S. Reports, but “slacks” is absent, although whether this is because the clerk failed to put it in his draft or because Justice Kennedy took it out we cannot be sure.

3.  Obama is really horrible with filling judicial vacancies. (NY Times).

President Obama is set to end his term with dozens fewer lower-court appointments than both Presidents Bill Clinton and George W. Bush achieved in their first four years, and probably with less of a lasting ideological imprint on the judiciary than many liberals had hoped for and conservatives had feared.
Mr. Obama’s record stems in part from a decision at the start of his presidency to make judicial nominations a lower political priority, according to documents and interviews with more than a dozen current and former administration officials and with court watchers from across the political spectrum. Senate Republicans also played a role, ratcheting up partisan warfare over judges that has been escalating for the past generation by delaying even uncontroversial picks who would have been quickly approved in the past.
But a good portion of Mr. Obama’s judicial record stems from a deliberate strategy. While Mr. Bush quickly nominated a slate of appeals court judges early in his first year — including several outspoken conservatives — Mr. Obama moved more slowly and sought relatively moderate jurists who he hoped would not provoke culture wars that distracted attention from his ambitious legislative agenda.
“The White House in that first year did not want to nominate candidates who would generate rancorous disputes over social issues that would further polarize the Senate,” said Gregory B. Craig, Mr. Obama’s first White House counsel. “We were looking for mainstream, noncontroversial candidates to nominate.”

4.  CBP is protecting us from fake Christian Louboutin high heels. (Article and picture by CNN).


Friday, August 17, 2012

Michael Caruso informally sworn in yesterday as Federal Defender

That's Judge Williams doing the honors.  The formal investiture will be announced sometime soon.  Congratulations to well-deserving Michael Caruso.

The Apple/Samsung trial has Judge Koh.  But we have Judge Turnoff, who had these gems yesterday (via Sun-Sentinel):

In September, the judge found the two men in contempt of court and ordered them to repay every dime of the fees or explain why they couldn't pay. The two ignored the order for months. Roy had to be arrested in New York last month to answer to the judge.
Mayas had claimed he sold the Miramar home but underwent a change of heart or mind after the judge spelled out the consequences of continuing to test his patience.
Then Mayas skipped a court hearing last week, in part he said, because he got sick after undergoing a colonoscopy. But the judge wasn't buying it .
"There's simply no excuse'' for his failure to show up in court last week, Turnoff told Mayas.
When Coulton's lawyer, Paul Petruzzi, told the judge Mayas had not handed over the keys to his vehicle and his Monarch Lakes home, the judge demanded he turn over the keys in court.
As Mayas fumbled with his briefcase and his keyring for what seemed an unnecessarily long time, the judge cracked: "I bet the colonoscopy was easier than this."
With the house keys in hand and a promise the car would be turned over within hours, Petruzzi said it was a small step toward making things right.
But he said Coulton wasn't particularly enjoying watching his two former lawyers put through the legal wringer.
"This will barely make a dent in what they owe to my client," Petruzzi said. "[Coulton] would be a lot happier if he could just go back in time and have hired a proper lawyer from the start."

Thursday, August 16, 2012

“First, your honor, I’m not smoking crack. I can promise you that.”

That was Apple lawyer William Lee in response to Judge Koh's comment that "unless you’re smoking crack you know these witnesses aren’t going to be called!”  Yikes.

The dispute arises from the judge's decision to give each side a certain amount of hours to present its case.  Of course, each side wants more now that it has run out.  

From Slashgear:


Today in the ongoing Apple vs Samsung court case Judge Lucy Koh’s patience wore thin as Apple presented a 75-page document highlighting 22 witnesses it would like to call in for rebuttal testimony, provided the court had the time. As those following the case closely know quite well, the case has a set number of hours which are already wearing quite thin. As quoted by The Verge as they sat in the courtroom listening in, Koh wondered aloud why Apple would offer the list “when unless you’re smoking crack you know these witnesses aren’t going to be called!”


Ouch. For the record, Apple lawyer William Lee told Judge Koh that “First, your honor, I’m not smoking crack. I can promise you that.” Crack or no, it seems that Apple will not get the opportunity to bring all of these rebuttal witnesses to the stand, even though Apple’s attorneys offered to shorten the length of the document.

Wednesday, August 15, 2012

11th Circuit kicks Mathurin case on other grounds

This was the case that Judge Cooke ruled a 300 year mandatory sentence for a juvenile was unconstitutional.  Both sides appealed, and the Eleventh Circuit vacated the conviction on speedy trial grounds, and did not mention the sentencing issue.

The issue presented:

This case requires us to decide the narrow question of whether the time
during which plea negotiations are conducted is automatically excludable from the
Speedy Trial Act’s thirty-day window for filing an information or indictment. For
the reasons that follow, we have concluded that the time during which plea
negotiations are conducted is not automatically excludable.


From the conclusion:

We conclude that the time during which plea negotiations were conducted
was not automatically excludable from Mr. Mathurin’s speedy-indictment clock.
That being the case, the government exceeded the maximum thirty-day delay for
bringing the indictment. Under the Act, this means that the charges in the
superseding indictment, as originally set forth in the juvenile information and later
cited in the government’s motion to transfer, must be dismissed.7 See 18 U.S.C.
§ 3162(a)(1). Mr. Mathurin’s convictions must be vacated. However, “we leave it
to the District Court to determine in the first instance whether dismissal should be
with or without prejudice.” Zedner, 547 U.S. at 509, 126 S. Ct. at 1990.

Tuesday, August 14, 2012

News & Notes

1.  Judge Turnoff's daughter is the news for doing good.  Wendy Atrokhov seems like a good egg!

2.  Apple rests.  The judge still isn't happy.  One quote: “I want to see papers, I don’t trust what any lawyer tells me in this courtroom.”  Yikes.

3.  DOJ finally agrees to free innocent prisoners.  Brad Heath of USA Today has the scoop:


The department confirmed Monday that it had instructed its lawyers to abandon legal objections that could have blocked — or at least delayed — the inmates from being set free. In a court filing , the department said it had "reconsidered its position," and that it would drop its legal arguments "in the interests of justice."
The shift follows a USA TODAY investigation in June that identified more than 60 people who were imprisoned for something an appeals court later determined was not a federal crime. The investigation found that the Justice Department had done almost nothing to identify those prisoners — many of whom did not know they were innocent — and had argued in court that the men were innocent but should remain imprisoned anyway.
Neither Justice Department lawyers nor defense attorneys would speculate Monday how many innocent prisoners eventually might be released. Some who were convicted of other crimes might receive shorter sentences; others might be tried for different offenses.
Chris Brook, the legal director of the ACLU of North Carolina, called the move "an encouraging first step," but said "much more has to be done for these wrongly incarcerated individuals." He said the department still had not offered to identify prisoners who were sent to prison for something that turned out not to be a federal crime.

The media have dubbed her the “Queen of the Pacific,” a rare woman who allegedly reached the top of the male-dominated Colombian-Mexican drug world with her feminine mystique.
She was featured in the famous drug ballad titled “The Queen of the Queens,” sung by a band called Los Tucanes de Tijuana. One line in the narcocorrido captured her essence: “The more beautiful the rose, the sharper the thorns.”
Her name: Sandra Avila Beltr├ín. The raven-haired 51-year-old — at least that’s what her arrest form says her age is — will appear in Miami federal court Tuesday for her arraignment and bond hearing. She was extradited last week from Mexico, where she had been arrested in 2007, on charges of conspiring to smuggle loads of cocaine into the United States more than a decade ago.
“She is very Cleopatra-ish, like the Queen of the Nile,” said Miami criminal defense attorney Lilly Ann Sanchez, who represented two other defendants in the same case. “She was able to maneuver her way in a man’s world and use the fact that she was a woman to her advantage in more ways than one.”

Read more here: http://www.miamiherald.com/2012/08/13/2950459/mexican-queenpin-faces-drug-charges.html#storylink=cpy

Monday, August 13, 2012

Michael Caruso officially named Federal Defender

Congrats my friend!

He takes over for Judge Kathleen Williams.

I couldn't think of anyone else who could fill Judge Williams' shoes.

"I have bent over backward ... I have extended every due process to Mr. Roy that the record reflects he denied to his own client."

That was Judge Turnoff in jailing Emmanuel Roy, the former lawyer who is alleged to have ignored numerous court orders.  SFL has covered this story along the way, but it's worth writing about here as well.  Some interesting tidbits from the Sun-Sentinel:

The judge found Roy had focused his efforts on wringing cash and other valuables out of Coulton's family.
Roy even flew to England and took a $23,000 wedding ring from the finger of Coulton's wife at a meeting, the judge found. He also took a Porsche, tens of thousands of dollars and a Coconut Creek townhouse, the judge found.
Turnoff gave Roy and Mayas 10 days to comply with his order last September but Roy never responded so the judge eventually issued a warrant for his arrest after he failed to show for a July 6 hearing.
On July 12, Roy wrote to Turnoff that he had "always shown great respect to the court."
"I trust that the court will not conclude that I have decided to stump [sic] my nose at it, for any party who does so does it as his own peril," Roy wrote.
Five days later, Roy was arrested in New York on the judge's warrant. He was refused a bond and transferred -- via Oklahoma -- to face the judge, arriving Wednesday at Miami's Federal Detention Center.
Finally facing Judge Turnoff in court Thursday, Roy didn't get into details about the Coulton case. He claimed he's now penniless though he told authorities he had a net worth of about $700,000 in 2009 when he was charged with wire fraud in a federal mortgage investigation in New York. He has pleaded not guilty and is going to trial on that case next month.
Though Turnoff was clearly astounded by Roy's actions, he said he is keeping an open mind and gave Roy and his lawyer time to prepare for an Aug. 16 hearing where Roy can explain himself before the judge makes a final ruling.
...
Turnoff ruled Roy can be released on a $250,000 bond if he can put up $5,000 cash and promises to return for the hearing next week.

If you are looking for a something a little more light-hearted, check out this Jerry Seinfeld short with Ricky Gervais.

Or, if you are a Supreme Court junkie, here's a case from the upcoming Term on whether a house boat is a boat or a house:

As yachts go, Fane Lozeman’s vessel was no Queen Mary. First of all, the two-story, 60-foot boat had no name, motor or way of being steered. She drew only 10 inches of water and had glass French doors on three sides, making the idea of an ocean passage nonsensical. Tied up at the dock in North Beach Village, Fla., she was the functional equivalent of a house down to the sewer line and electrical lines snaking onshore.
That didn’t stop town authorities from getting an order under marine law to seize the vessel and tow it to Miami, after Lozeman failed to heed local ordinances and pay his dockage fees. Now the U.S. Supreme Court is scheduled to decide the question of whether the term “vessel” applies to anything that floats, or should be reserved for things intended to move from place to place. 

Friday, August 10, 2012

“I find what Mr. Cypress pleaded to and agreed to in his proffer was uniquely and sadly American. He was cooking the books.”

That was Judge Kathy Williams in sentencing former Seminole leader David Cypress to 18 months in prison.  Cypress had asked for probation and the government was looking for 2 years.  From Jay Weaver's piece:

His sentencing hearing offered a rare peek into the Seminole Tribe and its Las Vegas-style gambling enterprise, featuring the Hard Rock Hotel & Casino in Broward County. The Cypress case also conjured comparisons to the IRS’s current income-tax crackdown on the Miccosukee Tribe in Miami-Dade County and its former chairman Billy Cypress, no relation.
David Cypress’ lawyer tried to convince the judge that the 61-year-old former tribal council member committed the crime because of “cultural” differences between the Broward-based Seminoles and the rest of America. Defense attorney Joel Hirschhorn said Cypress was a “simplistic man” who didn’t grasp he owed personal income taxes as the tribe underwent a “rags-to-riches” transformation, thanks to its gaming bonanza.
Hirschhorn also argued that Cypress, who apologized in a brief statement, was a victim of the U.S. government, which he said showcased his client as the “poster boy for tax compliance on the reservation, perhaps even in all Indian Country.”
But U.S. District Judge Kathleen Williams was not swayed, despite recognizing the “shameful episodes” of the nation’s mistreatment of Native Americans.***The judge also noted that she could find no evidence of any Native American anywhere in the country being convicted of a tax offense.
Cypress’ prison sentence could have been much worse had federal prosecutors been able to prove he “willfully” committed the double-billing scheme for the entire seven-year period. He was only charged with and pleaded guilty to filing a false tax return in 2007, understating his income by $285,000.
Assistant U.S. Attorney Carolyn Bell, who urged the judge to give Cypress a two-year sentence, mocked the defendant’s argument that his cultural background prevented him from grasping U.S. tax laws. “This was a sophisticated individual,” Bell said. “He was a leader of the Seminole nation.”
Under federal law, the Seminole Tribe’s status as a sovereign nation means the entity itself is not subject to taxes. But once the tribe distributes profits from its gambling casino to members, they are individually responsible for reporting and paying taxes on their annual income tax returns, according to the IRS. 
Very interesting stuff about how the gambling profits are distributed:
In court papers, Hirschhorn revealed that the Seminoles’ gaming profits reached $300 million a year by 2001, with monthly dividends paid to each member. The Seminoles have 3,800 members.Under the distribution formula, every Seminole family of four receives dividends of about $30,000 a month.
Cypress, a notorious big spender who built a massive Mediterranean-style mansion with his millions, was paid a salary of $500,000 on top of the monthly dividend. Like other Seminole council leaders, Cypress controlled a discretionary fund that he tapped to dole out money to family and other tribal members.
Meantime, if you want more Apple/Samsung coverage, check out this piece by Conan:



Read more here: http://www.miamiherald.com/2012/08/09/2943279/ex-seminole-leader-sentenced-to.html#storylink=cpy

Wednesday, August 08, 2012

Youth Unite!

Judge Kathleen Williams issued a temporary injunction this week, addressing a law that prohibited campaign contributions from minors.  From Curt Anderson:

A two-decade-old Florida law limiting the contributions minors may make to state and local political campaigns is an unconstitutional infringement on free speech rights, a federal judge ruled Tuesday.
U.S. District Judge Kathleen Williams issued a temporary injunction blocking enforcement of the law, which capped contributions by Floridians 17 and under to $100 per election in state and local campaigns. Adults 18 and up can contribute $500. The law does not apply to federal campaigns, which have contribution limits of $2,500 per election for all donors regardless of age.
Williams sided with Boca Raton teenager Julie Towbin and the American Civil Liberties Union, which sued on her behalf. Towbin, then 17, decided not to attend a $150-a-ticket fundraising dinner for the Palm Beach County Democratic Executive Committee after she was warned it might violate state law.
Towbin, a former congressional page, said in a statement issued by the ACLU that the decision "means my voice is no longer worth one-fifth of someone else's."
"This isn't just a victory for minors, it's a victory for the First Amendment," she said.
The law was enacted in 1991 because of perceptions that children might be used to make corrupt contributions, attorneys for Florida argued. They cited cases in other states in which adults used children's donations to evade contribution limits, although none of them occurred in Florida.
Williams, in a 36-page opinion, said there was no evidence that state authorities had ever prosecuted any minors for violating contribution limits and scant proof of any ongoing problem. She also brushed aside state arguments that eliminating the cap would benefit wealthier minors and that it was carefully designed not to violate free speech rights.

Read more here: http://www.miamiherald.com/2012/08/07/2937898/judge-voids-fla-limit-on-minors.html#storylink=cpy

Tuesday, August 07, 2012

Anything is possible.


Except... getting GSA to shape up the Dyer building.  From John Pacenti:
A congressional subcommittee hammered the General Services Administration on Monday for allowing Miami's historic federal courthouse to linger unused for five years. Members even wondered aloud if the scandal-plagued agency should be disbanded.The hearing at the David W. Dyer Federal Building and U.S. Courthouse was held by the House Subcommittee on Economic Develop-ment, Public Buildings and Emergency Management.A GSA administrator told the panel it's not so easy to convert the Dyer building into offices for the U.S. Bankruptcy Court or the federal defender's office, two of the possibilities suggested.The courthouse with the coquina stone facade shares its electrical grid with the C. Clyde Atkins Courthouse next door, there is the persistent mold problem, and tunnels to transport prisoners connect the building to others in the federal complex.John Smith, a public service administrator with the GSA, estimated the cost of bringing the building up to speed for tenants, federal or private, would be about $10 million.The panel was not sympathetic."Can we actually abolish the agency and have a private agency pick up the ball and run with it?" subcommittee chair Jeffrey Denham, R-California, asked rhetorically.
More from Curt Anderson at Huffington Post:
Opened in 1933, the 166,577-square-foot Dyer building is on the National Register of Historic Places. But it has been deteriorating for years and has an extensive mold problem in South Florida's hot and humid climate. Still, maintaining the vacant structure costs taxpayers about $1.2 million a year, Mica said.
...
Last week, just as the hearing was announced, GSA said it filed a "Request for Information" asking Miami developers and the business community for suggestions on what to do with the Dyer building.
"It seems the GSA only takes action when we hold hearings," Denham said.

And from Jay Weaver:
Their colleague, Mario Diaz-Balart, R-Miami, who sits on the House Appropriations Committee, compared the Dyer Courthouse to the famous Biltmore Hotel in Coral Gables, saying repeatedly he was “speechless” that GSA officials had done nothing to breathe life back into it.
“Frankly, there’s no excuse for it,” Diaz-Balart said.
In chorus, the lawmakers said there are some 14,000 federal properties like the Dyer Courthouse that are empty or not fully used. As they spotlighted the waste of taxpayer dollars, they also portrayed the GSA as an agency under siege for questionable spending on bonuses and lavish staff conferences in Las Vegas and other resorts.

Read more here: http://www.miamiherald.com/2012/08/06/2936382/lawmakers-chide-us-for-wasting.html#storylink=cpy

What a shame...  For those of you who haven't been in the central courtroom, you are really missing out.  I haven't been in a better courtroom.  You really feel like a lawyer:

Monday, August 06, 2012

Trial Tactics

I love following a good trial, and the Apple vs. Samsung fight is high drama.  Plus the case has the added bonus of seeing behind the Apple curtain.  Here's the latest from the WSJ:
On Friday, Scott Forstall, a senior vice president who oversees the software used on the company's mobile devices, testified that as early as January 2011, an Apple executive advocated that the company build a tablet with a 7-inch screen. Apple has generally disputed the appeal of devices smaller than its 9.7-inch iPad, despite reports the company is developing a smaller model.
In cross-examination, Mr. Forstall said Eddy Cue, now head of Apple's Internet services efforts, had used a 7-inch Samsung tablet for a time, and sent an email to Chief Executive Tim Cook that he believed "there will be a 7-inch market and we should do one."
Mr. Forstall also testified that Apple in 2004 placed unusual rules around how it would assemble a team to build the iPhone, or "Project Purple," as it was called then.
Mr. Forstall said co-founder Steve Jobs told him he couldn't hire anyone from outside the company to work on the user interface, or the buttons and images that appear on the screen. So, he said, he found "superstars" from within Apple and said he was starting a secret project and he wanted help.
He recalled telling them, "If you choose to accept this role, you will work harder than you ever have in your entire life."
Mr. Forstall described "locking down" one floor of the company's buildings at first with cameras and keycard readers to beef up security regarding the project. He also took to calling it the "purple dorm," after the project's code-name, purple. They also put a sign up on the front door with the words "Fight Club" written on it, referring to the hit book and movie in which characters are told not to talk about what they were doing.
Samsung wasn't sanctioned for the Quinn press release, but the judge wasn't happy:
Information that was not shared with jurors has triggered some of the biggest fireworks so far in the trial, which kicked off with jury selection Monday and testimony Tuesday and Friday. U.S. District Judge Lucy Koh blocked Samsung from introducing evidence that it says shows the iPhone design was inspired by Sony products, an attempt to weaken Apple positions that the iPhone was an original design copied by Samsung.
A Samsung representative shared the information with reporters, prompting a request from Apple for the court to sanction Samsung. On Friday, Judge Koh denied Apple's request, but criticized Samsung's legal team and polled each juror individually to make sure they hadn't read about it.
"I will not let any theatrics or sideshow keep us from doing what we're here to do," she said.
Koh didn't have any Pink Panther references though as did our very own Judge Cooke:
Cooke did not issue sanctions against any of the lawyers from Greenberg Traurig, whose chairman, Cesar Alvarez, had issued an apology to the judge during a May sanctions hearing after admitting “mistakes were made.”
In her 30-page ruling, the judge compared the firm and TD Bank’s legal defense to a popular comedy movie, saying “it often times appears that this litigation was conducted in an Inspector Clouseau-like fashion.
“However, unlike a ‘Pink Panther’ film, there was nothing amusing about this conduct, and it did not conclude neatly.”


Meantime, a jury acquitted John Keker's client in New York but issued an interesting statement along with its decision:
As Beau Brendler sat in the jury box listening to the government's case against a former Citigroup midlevel executive, the same question kept entering his mind.
"I wanted to know why the bank's C.E.O. wasn't on trial," said Mr. Brendler, who served as the jury's foreman. "Citigroup's behavior was appalling."
Despite that sentiment, Mr. Brendler and his fellow jurors - a group that included a security guard, a lab technician and a full-time musician in a rock 'n' roll band - cleared the former Citigroup executive, Brian Stoker, of wrongdoing over his role in selling a complex $1 billion mortgage bond deal during the waning days of the housing boom.
But even as the jury reached a consensus that the Securities and Exchange Commission failed to prove its case, it was left with an uneasy feeling that the verdict inadequately described its feelings about Citigroup's conduct.
"We were afraid that we would send a message to Wall Street that a jury made up of regular American folks could not understand their complicated transactions and so they could get away with their outrageous conduct," Mr. Brendler said. "We also did not want to discourage the government from investigating and prosecuting financial crimes."
So the jurors did something extremely rare: They issued a statement alongside their verdict.
"This verdict should not deter the S.E.C. from continuing to investigate the financial industry, review current regulations and modify existing regulations as necessary," said the statement, which was read aloud by Judge Jed S. Rakoff in Federal District Court in Manhattan on Tuesday.
Mr. Brendler, a 48-year-old freelance writer, wrote the sentence after soliciting input from the seven other jurors. He scratched it out on a yellow sheet ripped from a legal pad, wrapped it around the verdict form and put both in a sealed envelope that was delivered to the judge.
"It wasn't a particularly eloquent statement, but we hoped it would get a point across," Mr. Brendler said.
Keker used Where's Waldo in closing:
In explaining the verdict, both Mr. Dawson and Mr. Brendler said that they believed that Mr. Stoker was made a scapegoat for the industry's sins. In his closing statement, Mr. Stoker's lawyer, John W. Keker, hammered away at that point, arguing that his client "shouldn't be blamed for the faults of banking any more than a person who works in a lawful casino should be blamed for the faults of gambling."
Mr. Keker underscored this point by showing the jury an illustration from "Where's Waldo?," the children's book in which readers are challenged to find the hidden title character. He likened his client to Waldo, suggesting that Mr. Stoker, 41, was merely a blip in Citigroup's vast C.D.O. universe.
"Most of this trial had nothing to do with Brian Stoker," Mr. Keker said.
Mr. Dawson said that the "Where's Waldo?" allusion resonated.
"I'm not saying that Stoker was 100 percent innocent, but given the crazy environment back then it was hard to pin the blame on one person," Mr. Dawson said. "Stoker structured a deal that his bosses told him to structure, so why didn't they go after the higher-ups rather than a fall guy.