Happy Thanksgiving!

Just a few things before the break:

1.  Attorney Frank Excel Marley III was convicted yesterday.  Paula McMahon explains:

A South Florida lawyer was found guilty Tuesday of stealing about $1.3 million from the Seminole Tribe of Florida in a fraud conspiracy that went on for several years.
Frank Excel Marley III, 39, of Southwest Ranches, was convicted of one count of wire and mail fraud conspiracy and six counts of theft from Indian tribal organizations after a jury trial in federal court in Fort Lauderdale. The jury found him not guilty of three other counts of theft from the tribe.
Prosecutors told jurors that Marley had submitted bills to the tribe – that were inflated by more than $1 million – in a conspiracy that went on between 2006 and 2011.
Marley, who has been free on bond since his arrest earlier this year, was released pending his sentencing on Feb. 21.

2.  Curt Anderson has this interesting story about a blast from the past:

Federal drug agents are investigating a Florida aircraft leasing business operated by two former champion race drivers who are suspected of providing airplanes to South American drug traffickers, according to court documents and interviews.
Agents from the U.S. Drug Enforcement Administration, FBI and Homeland Security Department raided the Fort Lauderdale offices Monday of World Jet Inc., which is controlled by brothers Don and Bill Whittington. They raced in the Indianapolis 500 and other tracks, teaming up with a third driver to win the France's 24 Hours of Le Mans race in 1979.
Later, both brothers pleaded guilty for their roles in a $73 million marijuana smuggling ring that authorities said financed their racing careers.
Now, according to a DEA search warrant affidavit that relies on several confidential informants, the Whittingtons are suspected of illegally leasing aircraft from Florida to cocaine cartels and laundering drug-related profits through a hot springs resort hotel and a ranch in Colorado.
Mia Ro, a DEA spokeswoman in Miami, confirmed her agency is leading the investigation but declined to provide details. Agents were seen carrying boxes of records and other items from World Jet's offices at Fort Lauderdale Executive Airport on Monday.
No charges have been filed. An employee at World Jet hung up Tuesday when telephoned for comment, and the Whittingtons did not respond to email messages. It wasn't clear if they had attorneys related to the DEA probe.
According to the DEA, World Jet leases or sells aircraft to drug traffickers in Colombia, Venezuela, Mexico and Africa at inflated prices, keeping the plane under the Whittington name or that of a third party and maintaining a U.S. tail number. After a certain period, the aircraft is returned to World Jet.
"In the event that the aircraft is seized pursuant to a narcotics interdiction, both parties can deny responsibility and World Jet Inc. can reclaim the aircraft," the DEA said in the affidavit, filed in Colorado federal court.

 While we are thinking about old times, here's a good one from the Wire:

Snitching ain't easy

That's especially true when you're Scott Rothstein.  For some reason, the feds thought that he shouldn't be required to testify in an upcoming trial.  From Paula McMahon:

Christina Kitterman, one of the lawyers who formerly worked for Rothstein at his Las Olas Boulevard law firm, was charged in August with lying to some of Rothstein's investors to help keep his fraud afloat.
On Friday, a federal judge granted a request from Kitterman's defense attorney, Valentin Rodriguez, to force Rothstein to testify – as a defense witness – in her trial, which is tentatively scheduled for Jan. 6 in federal court in West Palm Beach.
"[Kitterman's] request to compel the production of Scott Rothstein at trial is granted," Senior U.S. District Judge Daniel T.K. Hurley wrote in his order.
But the judge also ruled that Kitterman will have to pay the full cost of moving Rothstein from wherever he is being held, the cost of providing security for him, his prison lodging in South Florida, and the tab for sending him back when he's done.
That happened because prosecutors seemingly were not planning to call Rothstein on their side of the case, a position they did not explain in their court filings.
"The [U.S.] Marshals Service requires a minimum of ten days' notice in order to produce the witness, and that the defendant must bear the cost, in advance, of the transportation, housing and security attendant to the witness' production," Assistant U.S. Attorney Lawrence LaVecchio wrote in court records.
The location where Rothstein is serving his punishment has remained top secret because prosecutors and prison officials think he could be in danger because of his cooperation against people with ties to organized crime. Though Rothstein gave a series of depositions under tight security in the federal courthouse in Miami in late 2011 and 2012, the public and reporters were forbidden from attending. Official transcripts were released later.

Yours truly was also quoted along with some other lawyers:

"The government can't just hide an exculpatory witness and ask for exorbitant amounts of money to produce her accuser so she can confront him in court," said Richard Rosenbaum, a Fort Lauderdale defense attorney who is not involved in the case.
Rosenbaum said he heard from attorneys representing other defendants accused by Rothstein that it would cost an estimated $20,000 to bring Rothstein to testify in South Florida. The U.S. Marshals Service did not immediately reply to a request for comment.
Though Rothstein's allegations are documented on a transcript, Rosenbaum said Kitterman's defense can't "cross-examine the transcript."
Recent revelations in court that Rothstein was helping his soon-to-be ex-wife Kim hide and sell more than $1 million worth of jewelry – after Scott Rothstein was supposedly cooperating and coming clean with prosecutors – have inflicted further damage on Rothstein's trustworthiness as a witness and could make him helpful to the defense, Rosenbaum said.
"It shoots his credibility to pieces," Rosenbaum said of the violation of Rothstein's agreement with prosecutors to tell the truth and confess all of his crimes. "It's also great fodder for the defense when they have Scott on the witness stand … because there he is basically double-timing the prosecution."
David Oscar Markus, a criminal trial and appellate lawyer based in Miami, agreed.
"Rule No.1 of criminal law is 'never trust a rat.' When you're talking about Scott Rothstein, the rat of all rats, Rule 1 is gospel. The feds should know better, but they generally ignore Rule No. 1," Markus said.

Video captures police misconduct in Miami Gardens

Earl Sampson, an employee of a Quickstop in Miami Gardens, was just taking out the garbage. But then he is arrested for trespassing for no reason. Check out the video:



The Herald's Julie Brown has all of the details:

Earl Sampson has been stopped and questioned by Miami Gardens police 258 times in four years.

He’s been searched more than 100 times. And arrested and jailed 56 times.

Despite his long rap sheet, Sampson, 28, has never been convicted of anything more serious than possession of marijuana.

Miami Gardens police have arrested Sampson 62 times for one offense: trespassing.

Almost every citation was issued at the same place: the 207 Quickstop, a convenience store on 207th Street in Miami Gardens.

But Sampson isn’t loitering. He works as a clerk at the Quickstop.

So how can he be trespassing when he works there?

It’s a question the store’s owner, Alex Saleh, 36, has been asking for more than a year as he watched Sampson, his other employees and his customers, day after day, being stopped and frisked by Miami Gardens police. Most of them, like Sampson, are poor and black.

And, like Sampson, many of them have been cited for minor infractions, sometimes as often as three times in the same day.

Saleh was so troubled by what he saw that he decided to install video cameras in his store. Not to protect himself from criminals, because he says he has never been robbed. He installed the cameras — 15 of them — he said, to protect him and his customers from police.

Since he installed the cameras in June 2012 he has collected more than two dozen videos, some of which have been obtained by the Miami Herald. Those tapes, and Sampson’s 38-page criminal history — including charges never even pursued by prosecutors — raise some troubling questions about the conduct of the city’s police officers.

The videos show, among other things, cops stopping citizens, questioning them, aggressively searching them and arresting them for trespassing when they have permission to be on the premises; officers conducting searches of Saleh’s business without search warrants or permission; using what appears to be excessive force on subjects who are clearly not resisting arrest and filing inaccurate police reports in connection with the arrests.

“There is just no justifying this kind of behavior,’’ said Chuck Drago, a former police officer and consultant on police policy and the use of force. “Nobody can justify overstepping the constitution to fight crime.”

But Miami Gardens isn't backing down. They are somehow defending the cops:

Mayor Oliver Gilbert said the allegations made by Saleh about police misconduct are untrue. The city has reached out to him in the past and he hasn’t been cooperative, he said.

“We have repeatedly asked the owner of the store to provide information so we can investigate his allegations and he has refused,” Gilbert said.

However, public records, obtained by the Herald, show that Saleh did provide videos to the city. The state attorney also issued a subpoena for the videos last year, and Saleh and his attorney complied. It’s not clear what, if any, action was taken. The state prosecutor’s records were not yet available on Friday.

“I gave them seven videos,’’ Saleh said. “I gave them to the internal affairs commander, Gary Smith.”

Saleh added that after he filed the internal affairs complaint in August 2012, one of the officers he complained about, Michael Malone, confronted a customer who was part of the complaint.

Saleh said that after the officers started harassing him, his employees and customers, he began to doubt that police were conducting an impartial investigation, and he did stop cooperating. He said that should not have stopped them from collecting their own evidence, given the seriousness of the complaint.

“What about their own video, the videos that officers are supposed to take from their cars?” Saleh asked, contending that each time an officer turns on his lights, the vehicle’s dashboard cam is supposed to activate. Saleh said he requested copies of the police videos corresponding to the arrests he recorded and was told the videos didn’t exist.

“They didn’t exist because the officers never put their lights on,’’ Saleh said.

Police documents show that the city ended its investigation of Saleh’s internal affairs complaint earlier this year, claiming that the storekeeper did not provide sufficient evidence.

Saleh and his attorney say they have spent about $20,000 — most of which was paid to the city for public records — to obtain documents that show police and city leaders conspired to violate the civil rights of its citizens through a program of racial profiling, false arrest, illegal search and seizure and intimidation.

They intend to file a federal civil rights lawsuit early next week against the city.

This is some great investigative reporting by the Herald and not just regurgitation of government press releases. Kudos.

Judge Fay vs. Judge Martin

This opinion about what counts as an aggravated felony got a little heated between Judges Fay and Martin. 

First, a portion of the dissent by Judge Martin:

This case, of course, presents one of the rare instances in which showing deference and comity to the State Court would benefit a federal defendant. But here, in contrast to our usual practice, the Majority shows no comity and no deference to an order of the State Court clarifying the terms of the sentence that it imposed on Mr. Garza-Mendez. The Majority’s refusal to credit the State Court’s clarification of its own sentence is perplexing, especially given that, in my experience, we do not scrutinize State Court judgments in the same way when they result in a harsher sentence for criminal defendants. 

Here's Judge Fay's response:

The dissent’s assertion that we use comity only when it increases a defendant’s sentence is off the mark. When comity aids defendants in reducing federal sentences, the overwhelming probabilities are there would be no appeals. The dissent does not cite one case in the posture of this case, where defense counsel obtained a clarification order of a state-court sentence well after the state procedural period for challenging the sentence had expired to attempt to alter a later federal sentence in federal court. Under the circumstances of this case, the district judge determined the subsequent state-court clarification order was not entitled to deference, because of the unambiguous language of the sentencing order as well as federal statutory and circuit law. The dissent’s charges impugning the integrity of our court are both outrageous and totally unfounded. 

Woah. It didn't seem to me at all that Judge Martin was impugning the integrity of the court of which she is also a member. It seemed to me that she was pointing out what all criminal practitioners know about appellate courts. Good for Judge Martin. (As an aside, the majority only had one 11th Circuit judge, who was joined by a judge from the court of international trade.) 

Happy Birthday Judge Turnoff!

No cert grants yesterday...

...but a three interesting opinions attached to cert denials.  How Appealing has all of the links, as usual:

Justice Sonia Sotomayor issued a dissent, in which Justice Stephen G. Breyer joined in part, from the denial of certiorari in Woodward v. Alabama, No. 13-5380. In news coverage, Mark Sherman of The Associated Press reports that "Justice Sotomayor faults Ala. death sentences." And Lawrence Hurley of Reuters reports that "Supreme Court declines to hear Alabama death penalty case."
Justice Samuel A. Alito, Jr. issued a statement respecting the denial of the petition for writ of certiorari in Martin v. Blessing, No. 13-169. In news coverage, Lawrence Hurley of Reuters reports that "U.S. justice airs concerns about using race in picking lawyers."
And Justice Alito also issued a dissent, in which Justice Antonin Scalia joined, from the denial of certiorari in Rapelje v. McClellan, No. 12-1480.

Tom Goldstein explains what all of this means at SCOTUSblog: "What you can learn from opinions regarding the denial of certiorari."

Today’s order list from the Court included three opinions respecting the denial of certiorari – i.e., denials of review in which the Justices felt strongly enough about the issue that they went to the effort of writing separately.  Almost always, when a Justice votes to review a case but there are not enough votes to grant certiorari (four are required), the dissent is not publicly noted.  So the parties and lawyers – and litigants in later similar cases – have almost no way of knowing whether the issue generated any interest at the Court.
Two of the opinions today were traditional dissents from the denial of certiorari.  In a habeas corpus case, Rapelje v. McClennan, Justice Alito wrote an opinion (joined by Justice Scalia) arguing that the Court should review the decision by a court of appeals on how to review a summary order of a state court.  In a death penalty case, Woodward v. Alabama, Justice Sotomayor wrote an opinion (joined by Justice Breyer) arguing that the Court should review Alabama’s practice of permitting judges to override juries’ death penalty recommendations.  The two cases illustrate that frequently Justices Scalia and Alito will view the federal habeas laws as imposing the most significant constraints on overturning convictions, while Justices Breyer and Sotomayor will have the most interest in considering issues related to the administration of the death penalty.
The more interesting opinion to me as a matter of Supreme Court practice is Justice Alito’s opinion respecting the denial of certiorari in Martin v. Blessing.  In an opinion of this kind, a Justice agrees that certiorari should be denied but emphasizes that the denial of review does not endorse the lower court’s ruling.  Sometimes the opinion notes a procedural flaw in the case that prevents Supreme Court review.  But sometimes there is a further subtext:  the opinion is a warning shot that some anomalous practices should be stopped without the Court ever having to get involved. ...

 Meantime, trial started for Frank Excel Marley III, a lawyer accused of stealing more than $1 million from the Seminole Tribe.  Paula McMahon has the details:

Marley's former legal assistant, Maria Hassun, 66, of Coral Gables, pleaded guilty to her role earlier this year and agreed to testify against her boss.
She is scheduled to begin serving a year and a day in federal prison on Dec. 13 but prosecutors said they will recommend a sentence reduction for her if she testifies truthfully against Marley. She must also repay $148,658 to the tribe.
Marley's attorney, Bruce Zimet, told jurors Monday that his client is part African-American and part Native American and is still owed a lot of money for unpaid work he did for the tribe. Marley "made millions and millions of dollars" for the tribe and protected them from losing millions.
Marley "became a pawn in a war of power" between factions in the tribe, Zimet said.
And Hassun is a liar who gained Marley's trust, then defrauded him, Zimet said. Hassun told prosecutors that she acted on Marley's instructions when she inflated invoices that were submitted to the tribe.
The prosecution says Marley committed fraud by padding his legal bills and charged for services, travel, phone calls and meetings "that did not occur."

Justice Thomas speaks!

OK, so it wasn't at an oral argument, but it still was quite a talk at the Federalist Society last week.  ATL has the complete write-up here, and it's lengthy.  Here's one clip:

Judge Sykes asked Justice Thomas how the Court has changed over the 22 years he has served on the Court, alluding to various SCOTUS developments of the past two decades, such as the rise of a specialized Supreme Court bar. But as Robert Barnes put it in the Washington Post, CT “didn’t seem particularly interested in Sykes’s questions about the workings of the modern court.” That’s a fair characterization, in light of Justice Thomas’s concise summary of life as a justice:

There are a lot of briefs, and people doing a lot of talking. I mean, it’s law.

With that attitude, it’s no wonder that Justice Thomas has been silent all these years (at least in terms of asking questions of counsel during oral argument).
But don’t mistake his lack of participation in oral argument for boredom or disinterest. He talked about how a clerk just brought him a draft opinion in a pending case, apologizing for how boring the issue is — by the way, if you have a boring case under submission at SCOTUS, Justice Thomas might be writing your opinion — and he disagreed with that clerk. He explained to Judge Sykes how much he enjoys his work at the Court:

Even the most boring cases are fascinating to me….
I love the cloistered life; I was in the seminary. I love my law clerks. I have this wonderful work to do.

No, I’m not exaggerating the Oprah-esque outpouring of love. As Robert Barnes put it, in an article entitled Clarence Thomas: The Supreme Court’s most happy fella, “the 65-year-old Thomas was full of ‘love’: for his colleagues, for his law clerks, for his life.”
But not, it should be noted, for stare decisis. Justice Thomas — who must have a Word macro that says, “this case does not raise / the parties have not argued [issue X], but in an appropriate case, this Court should revisit [issue X] — had the following exchange with his interlocutor:

Judge Sykes: Stare decisis doesn’t hold much weight with you?
Justice Thomas: Oh it does. But not enough to keep me from going to the Constitution.

Cue the standing ovation. To quote Justice Willett again, #Nerdvana.
Justice Thomas is patient enough to wait for history to catch up with him, comparing some of his jurisprudence to “a fine wine — it just needs aging.” He noted that it took the first Justice Harlan, author of the great dissent in Plessy v. Ferguson, sixty years to be vindicated.
The high-stakes cases, which cluster toward the end of the Term, can produce tension and frayed nerves. Judge Sykes asked Justice Thomas about this, and whether he’s eager to escape the building by summer. CT diplomatically responded that he doesn’t really have such problems, which led Justice Scalia to call out from the audience: “I get out of there as soon as I can!”

Friday news & notes (UPDATED)

UPDATE -- CONGRATULATIONS to Alicia Valle.  Today is her formal investiture at the courthouse. 

1.  The comments to the last post got interesting.  Go weigh in.

2.  Amy Howe of SCOTUSblog spoke to the Federal Bar Association in Miami on Wednesday.  It was a great talk to a packed house.  She said that if she and Tom Goldstein sell the blog, they plan on staying on to continue their roles in running it.

3.  Ted Cruz says the Obama administration is taking "radical" positions before the Supreme Court because it loses 9-0 a lot.  From the BLT:

According to Cruz, who headed Morgan Lewis & Bockius’s Supreme Court and appellate practice until his was elected to the Senate in 2012, the Obama administration is not pursuing “reasonable litigating positions within the bounds of ordinary discourse. These positions are extreme, and they are united by one thing: an embrace of unchecked federal government power.”

As an example, he pointed to U.S. v. Jones, which involved the government’s bid to place a GPS tracking device on a suspected drug dealer’s car without a warrant. “If the Obama Justice Department had prevailed, the federal government would be able to electronically track all of our movements,” he said. “Let me mention an aside. For those of you who have cell phones, please leave them on. I want to make sure President Obama hears everything I say.”

4.  Russell Adler was suspended for 90 days.  From the Sun-Sentinel:

Adler's lawyer, Fred Haddad, called the suspension an overreaction to misconduct that would have resulted in a reprimand if Adler had not been connected to Rothstein.
"This all comes about because he was, like millions of others, wounded by Rothstein," Haddad said. "Russell Adler has been very successful after leaving that firm. He'll be back, when this suspension is over, same as ever – on top, trying cases and winning."
It's still not clear whether Adler will face criminal charges in connection with his association with Rothstein, who is serving a 50-year prison sentence after pleading guilty to federal charges in 2010.
Adler agreed to pay $350,000 to settle a civil suit in 2011 filed by bankruptcy attorneys looking to recover money for investors scammed by Rothstein's firm.
"Who knows what the feds are going to do," said Haddad, who challenged Rothstein's credibility as a witness who could implicate others in his wrongdoing. "He's less reliable now than when he was a lawyer. He can't be trusted."

Gotta love Fred Haddad. 

5.  It's the 150th anniversary of the Gettysburg address, and lots of people are giving their rendition of it here.  (I'd like to hear Haddad!).  You can watch Crist, Rubio, Wasserman-Schultz, and even Alyssa Milano.  I like this Colbert rendition:

Black Federal Judges

The Atlantic has an in depth piece about how President Obama is doing with his goal of diversity on the federal bench.  Here's the section on the 11th Circuit and Florida:

11th U.S. Circuit Court of Appeals
The 11th U.S. Circuit Court of Appeals represents Alabama, Florida, and Georgia. Its territory comprises the highest percentage of blacks—approximately 25 percent—of any federal judicial circuit in the country. Today, there are eight judges on "active" status on the bench there and eight more on "senior" status. Of these 16 jurists, only one is black—Judge Charles Wilson, who was appointed by President Bill Clinton in 1999. Judge Wilson, in turn, replaced Judge Joseph Hatchett, the first black judge ever to serve in the 11th Circuit since its creation in 1981. There has never been a black female judge on the 11th Circuit.
There have been six vacancies on the 11th Circuit since President Obama took office in January 2009. He has not nominated a single black man or woman to fill them. He has nominated instead one Latino man and four white women. The Senate has confirmed two of these nominees—Adalberto Jordan and Beverly Martin, both of whom were Clinton district court appointees. As set forth below, there is currently a vacancy, for an "Alabama" spot on the 11th Circuit, that is so new the White House has not yet named a nominee for it.
By contrast, four of the 15 judges currently on the 4th U.S. Circuit Court of Appeals are black (two of whom were appointed to their post by President Obama, the other two by President George W. Bush). The territory of the 4th Circuit comprises a slightly smaller percentage of blacks—23 percent—than does the 11th Circuit. Even the 5th U.S. Circuit Court of Appeals, still by far the most conservative in the nation, has two black federal appeals judges—one appointed by President Obama, the other by Bill Clinton.

Florida
The black population of Florida in 1970, the first census year following the Voting Rights Act of 1965, was 15.3 percent. Today, according to U.S. Census Bureau figures, it is 16.6 percent. Today, only three of the state's 37 federal trial judges are black women. The first, Marcia Cooke, arrived on the bench just nine years ago, a nominee of George W. Bush. The second, Mary Scriven, arrived in 2008, another Bush nominee. The third, Charlene Honeywell, was nominated by President Obama during his first term.
There are currently four federal district vacancies in Florida (and a fifth is on its way). To the spot vacated by the aforementioned Jordan, the president has nominated the aforementioned Thomas, who would become the first openly gay black man to serve on the federal bench.  The president has nominated another black man, Brian Davis, to another federal district position in Florida. Senator Rubio withdrew his hold on the Davis nomination in September but still opposes the Thomas bid. That leaves three vacancies for which the White House has not yet made a nomination.
One of those trial court vacancies was created recently by a promotion. Last week, to replace Judge Rosemary Barkett on the 11th Circuit, President Obama nominated a white woman named Robin S. Rosenbaum. He had appointed Judge Rosenbaum only last year to a spot in the Southern District of Florida, which she will leave if confirmed to the 11th Circuit. So there is no black 11th Circuit nominee from Alabama. And no black 11th Circuit nominee from Florida. Judge Wilson, the Clinton appointee, still stands alone.

SCOTUSblog for sale (UPDATED with Kim Rothstein's sentence)

I wonder how much it will go for. We can ask co-founder Amy Howe at tomorrow's federal bar luncheon.  Here's the AP:

The blog got a huge boost in credibility when it hired veteran reporter Lyle Denniston, who began covering the Supreme Court during the Eisenhower administration. Goldstein attracted a deep-pocketed sponsor in Bloomberg Law, the legal research unit of Bloomberg LP, and says he now spends $500,000 a year on the blog. The relationship with Bloomberg is in its third and final year, Goldstein said.
Next year, Goldstein said he intends to sell SCOTUSblog. To that end, he wants a formal press credential for Denniston, whose pass is courtesy of a Boston public radio station for which he works only rarely, and maybe even Howe.
The formal recognition he seeks is part of a series of moves aimed at making SCOTUSblog more attractive to prospective buyers. "We put more effort into covering the Supreme Court than any other organization in American history," Goldstein says, including in his claim even specialty legal publications like the American Lawyer.
The court, though, has remained noncommittal about how to treat SCOTUSblog. Court spokeswoman Kathy Arberg said she is reviewing the credentialing process for the first time in nearly 40 years. "We won't act on any pending requests until we have completed that process," Arberg said.

I'm also putting this blog for sale if anyone is interested... We'll start the bidding at $1 million.



In other news, Kim Rothstein is to be sentenced today.  I really don't see how sending her to jail does anyone any good.  Probation is sufficient here.  The Sun-Sentinel has background on her sentencing memo by David Tucker:

Just days before Kim Rothstein will be sentenced for hiding expensive jewelry from federal authorities, the former socialite has filed for divorce from her imprisoned Ponzi schemer husband, court records show.
"Last week, Kim filed for divorce from Scott Rothstein," her attorneys wrote in a sentencing memo filed Friday in federal court in Fort Lauderdale.
Her husband physically and mentally abused her, openly cheated on her, controlled her every move and kept her in the dark about his crimes, her defense team said.
When she confronted him, she said, he yelled at her: "You can't walk away from me, Kimmy. I'm the President of [expletive] Florida and I'll say when you can come and go!"
Kim Rothstein and her friend Stacie Weisman are to be sentenced Tuesday afternoon. Both women admitted they tried to hide about $1 million worth of jewelry from federal authorities after Scott Rothstein admitted he ran the biggest investment fraud scheme in South Florida history.
It was her husband's idea to hide the jewelry from prosecutors and bankruptcy authorites who were seizing the couple's ill-gotten assets, Kim Rothstein's defense attorneys say, but she takes full responsibility for doing it. The couple communicated through coded letters about their plan while Scott Rothstein was held at a secret location before he was imprisoned, the lawyers wrote in court records.
"Kim is fully responsible for her behavior. However, it was her husband, Scott Rothstein who originally requested that she take some family heirlooms, watches and other items of value as insurance," her lawyers, David Tucker and David Kotler, wrote in court records. "Scott also recommended that Kim turn these items over to someone whom she trusted to sell them."
Kim Rothstein claims that through their coded letters, her husband supervised the sale of the assets they were trying to hide from authorities and also her attempts to get the loot back so she could "come clean" with authorities after realizing how much legal trouble she was in.

UPDATE -- Judge Rosenbaum sentenced Kim Rothstein to 18 months in prison. 

Is 10 days in jail sufficient for someone who sent an innocent man to jail for 25 years?

I'd like to hear your thoughts on this.

Here is the NY Times story covering the issue:

For what may be the first time on record, a former prosecutor in Texas is going to jail for failing to turn over exculpatory evidence in a murder trial. The 10-day jail sentence for the prosecutor, Ken Anderson, is insultingly short — the victim of his misconduct, Michael Morton, spent nearly 25 years in prison. But because prosecutors are so rarely held accountable for their misconduct, the sentence is remarkable nonetheless.
In 1987, Mr. Morton was convicted of beating to death his wife, Christine, and sentenced to life in prison. He maintained his innocence, and in 2010 DNA testing confirmed that he was not the killer.

Even before a Texas court vacated Mr. Morton’s conviction, his lawyers alleged that Mr. Anderson, the prosecutor in his case, had deliberately withheld evidence that would have exonerated him. During Mr. Morton’s trial, the judge had ordered Mr. Anderson to turn over any such evidence and received only a few documents in return. In fact, Mr. Anderson possessed many documents he did not turn over, including a transcript of a phone conversation revealing that the Mortons’ 3-year-old son had described his mother’s killer as a “monster” who was not his father.

Mr. Anderson, who later became a judge, has said he did not consider the judge’s order official because it was not written down. But he was fully aware of his ethical duty to disclose important exculpatory evidence and that a failure to disclose violates due process rights under the Constitution. In April, a judicial investigation found probable cause to believe that Mr. Anderson was in criminal contempt for withholding the documents. On Friday, he pleaded no contest. In addition to receiving the jail sentence, he was disbarred and stripped of his law license.

This case may sound extreme, but prosecutorial misconduct is far too common, and the remedies for it, if any, usually come long after the harm has been done. Criminal defense lawyers have called for judges to issue a standard written order reminding prosecutors of their ethical duty and to warn them of contempt charges if they do not comply. Prosecutors should welcome this practice to reinforce professional standards and identify the wrongdoers among them.

It's official -- Robin Rosenbaum nominated to 11th Circuit

Here's the President's press release:

President Obama Nominates Judge Robin S. Rosenbaum to Serve on the United States Court of Appeals

WASHINGTON, DC – Today, President Barack Obama nominated Judge Robin S. Rosenbaum for a seat on the United States Court of Appeals.

President Obama said, "Judge Rosenbaum has a long and impressive record of service and a history of handing down fair and judicious decisions. She will be a thoughtful and distinguished addition to the 11th Circuit, and I am extremely pleased to put her forward.”

Judge Robin S. Rosenbaum:  Nominee for the United States Court of Appeals for the Eleventh Circuit

Judge Robin S. Rosenbaum is a United States District Court Judge in the Southern District of Florida, a position she has held since her appointment in 2012.  Since 2009, Judge Rosenbaum has also taught as an adjunct professor at the University of Miami School of Law.  From 2007 until her confirmation to the district court, Judge Rosenbaum served as a United States Magistrate Judge for the Southern District of Florida.  From 1998 to 2007, she was an Assistant United States Attorney in the same district, where she served as Chief of the Economic Crimes Section in the Fort Lauderdale office beginning in 2002.   Before joining the United States Attorney’s Office, Judge Rosenbaum clerked for Judge Stanley Marcus on the United States Court of Appeals for the Eleventh Circuit in 1998, worked as a litigation associate at Holland & Knight from 1996 to 1997, and served as staff counsel at the Office of the Independent Counsel in Washington, D.C. from 1995 to 1996.  She began her legal career as a trial attorney at the Federal Programs Branch of the United States Department of Justice from 1991 to 1995.   Judge Rosenbaum received her J.D. magna cum laude in 1991 from the University of Miami School of Law and her B.A. in 1988 from Cornell University.

Congrats to Judge Rosenbaum!

In other Rosenbaum news, she was assigned to handle the Homesick Hijacker case.  Apparently in mag court today, Mr. Potts protested the proceedings going forward:

"I would like to — I'm new at this stuff," Potts told U.S. Magistrate Judge Alicia Otazo-Reyes. "With total respect — I have to protest these proceedings."

But Otazo-Reyes cut Potts off before he could explain, saying all she wanted to know was whether he could afford a lawyer. Potts said he had earned about 200 Cuban pesos a month as a farmer outside Havana and had no other appreciable assets or income.

The judge appointed a federal public defender to represent him and Potts did not speak again about his objection.

 

Now the question is, who will this case get dumped on...  But before Judge Rosenbaum gets confirmed, she will have to sentence Kim Rothstein next week.  That should be interesting.

11th Circuit Judge Dubina has taken senior status

It became official on his birthday October 26.  (h/t Glenn Sugameli).

President Obama now has another seat to fill in the 11th.  Robin Rosenbaum is being vetted for the recently vacated seat by Judge Barkett.

The Court has a number of open seats on the 11th right now and has a chance to really reshape the Court.  Let's see what happens.

"Homesick Hijacker"

This guy has been on the lam for 30 years but is planning to argue that he has served his time because he did 13 years in a Cuban prison.  From Curt Anderson:

An American who hijacked an airliner to Cuba nearly 30 years ago as a self-described revolutionary flew back home Wednesday to face U.S. justice.

FBI agents took William Potts, 56, into custody shortly after his charter flight from Havana landed at Miami International Airport, said FBI spokesman Mike Leverock. Potts faces a 1985 federal indictment charging him with air piracy for hijacking a Piedmont Airlines flight in 1984.

In interviews prior to leaving Cuba, Potts said he was seeking “closure” and hoped to convince U.S. prosecutors to give him credit for the 13-plus years he spent in Cuban prison for hijacking the flight. The U.S. charge carries a sentence of between 20 years and life in prison, according to federal prosecutors.

“My position is I am a free man. I have served my time,” Potts said. “But they seem to have another concept. They are going to take control of me. I will be under their authority.”

It wasn’t immediately clear how the U.S. attorney’s office would proceed and exactly when Potts would make his first court appearance. He was taken from the airport to the FBI’s Miami field office.

 

I think this case may be pre-guidelines, so the judge will have quite a bit of leeway at sentencing.  Any predictions?

Fascinating argument in the Supreme Court about the federalization of all crime

The case, Bond v. United States, raised the issue of whether the feds could charge a woman who poisoned her husband under the country's treaty power.  Bond was represented by Paul Clement and the government by U.S. Solicitor General Donald B. Verrilli, Jr.

SCOTUSblog has a nice summary of the intense questioning on both sides:

But Verrilli seemed to be tested more rigorously in trying to persuade the Court not to start drawing lines to limit treaty power or treaty implementation, as the more conservative Justices — sometimes using sarcasm — challenged his core argument.  The conservatives were joined in their challenges by Justice Stephen G. Breyer, who often is a strong defender of national government power.
But it was Breyer who seemed to irritate Verrilli the most, when the Justice discussed how open-ended the weapons treaty was — so much so that it might even reach disgraced cyclist Lance Armstrong’s use of performance-enhancing drugs — and pressed Verrilli to say what limits, if any, there were on the treaty’s reach.  “Hypotheticals are just hypotheticals; they are not real cases,” Verrilli shot back.
Verrilli, though, also had to face some tart responses.  Justice Samuel A. Alito, Jr., said that the hypotheticals the Justices were reciting were not real cases “because you haven’t prosecuted them.”  Alito went on to test the government position by noting that, a few days ago, he and his wife had passed out “chemical weapons” to children — that is, Halloween chocolate.  He noted that “chocolate is poisonous to dogs,” and the treaty bans the use of any chemical harmful to animals as well as humans.
When Justice Breyer commented lightly that “there was chocolate all over the place,” Verrilli bluntly commented: “This is serious business.”
Chief Justice John G. Roberts, Jr., repeatedly questioned the Solicitor General about whether there is any constitutional limit on Congress’s power to enter treaties or implement them, and whether a treaty could give Congress the authority to claim ”national police powers.”   Verrilli answered that it would be ”unimaginable that the Senate would ratify” such a treaty.
But that answer prompted Justice Anthony M. Kennedy to say: “It seems unimaginable that you did bring this prosecution (of Carol Bond).”
Justice Antonin Scalia even brought into the argument the current controversy over same-sex marriage, suggesting that the government’s argument was so sweeping that the U.S. could join in a treaty approving same-sex marriage, and requiring Congress to pass a law making that binding nationally, on all of the states.  Verrilli, Scalia suggested, was trying to “drag Congress into areas where it has never been before.”  The Solicitor General answered that the Constitution’s structure, with checks and balances, put limits on treaty-making and treaty-implementation.
Verrilli argued that there was no dispute over whether the chemical weapons treaty was valid, so the implementing law should be, too, because “there is no daylight” between what each covered.  But Justice Scalia directly disputed the point, saying the implementing law went considerably further.

All of the pundits are concluding that the Court will rule for Bond, which would be fantastic. It's time to start reigning in the federal prosecution of local crime. We'll see.

Round 1 to the IRS over Colley Billie

Yesterday, Judge Williams ordered him to sit for a deposition, saying that he could not just assert a blanket 5th Amendment right to silence. Instead, he would have to assert it question by question, document by document in response to IRS questioning.

Then the parties can come back before the court to determine whether those assertions were valid or not.

What's the over/under on how many times in the depo he asserts the 5th?  I'm putting the line at 50.

Is bond jumping a real problem?

The Miami Herald ran a big story this weekend on Medicare fraud defendants jumping bail, even including a "gallery of rogues."  The article is worth a read and the numbers at first blush seem alarming:

Gonzalez and some 30 other defendants have been captured over the last half-dozen years, with the pace of arrests beginning to pick up this year. There are still another 150 fugitives from outstanding Medicare fraud cases in South Florida, most of them Cuban-born immigrants who fled to Cuba, Mexico, the Dominican Republic and other Spanish-speaking countries to evade federal trials.

My problem with the article though is that there is no discussion about how many defendants actually appear for court after being released on bond.  In fact, the statistics kept by the Bureau of Justice show that the overwhelming majority of criminal defendants released on bond show up for all court appearances at much less cost to the taxpayer than housing them at the Federal Detention Center.

And what about the 150 Medicare defendants that are still on the run?  Well, later in the article, it is revealed that 90 of those 150 are not out on bond and do not even know that they are charged:

The FBI has maintained a list of at least 90 South Florida Medicare fraud fugitives identified by name, compiled by Special Agent Bryan Piper. The bureau, assisted by Health and Human Services-Office of Inspector General, also has a list of an additional 90 defendants who have been charged by sealed indictment, but also are suspected of having fled the region. As a result, they are unaware they are wanted in Miami, and agents don’t want to tip them off.

Finally, most fugitives get caught:

So far, about 30 fugitives have been busted. Culp said that most South Florida fugitives typically get caught while they are on the lam in foreign nations, or when they return to this country through Miami International Airport.

So I hope that the article does not dissuade judges from granting bond.  In the overwhelming number of cases, bond is appropriate, and it works.

Read more here: http://www.miamiherald.com/2013/11/02/v-fullstory/3728532/fbi-tracking-down-medicare-fraud.html#storylink=cpyT

Read more here: http://www.miamiherald.com/2013/11/02/v-fullstory/3728532/fbi-tracking-down-medicare-fraud.html#storylink=cpy

Independent judges beware

It's incredible to me that more lawyers aren't upset about the attack on the independence of the judiciary.

First up is the Second Circuit deciding on its own to remove a judge (without any request from the parties) because she said that she wasn't afraid to rule against the government.  From Jeff Toobin's piece:

The United States Court of Appeals for the Second Circuit just chastised Shira Scheindlin, the trial judge in the case challenging the constitutionality of the N.Y.P.D.’s stop-and-frisk policy, for speaking out about the issue while the trial was going on. In a ruling today, the appeals court said Scheindlin’s statements suggested that her “impartiality might reasonably be questioned.” As a result, all further proceedings in the case, in which Scheindlin found that that city residents’ rights had been violated, will be transferred to another trial judge. The appeals court, in a footnote, in particular cited Scheindlin’s statements to me in a piece for The New Yorker, as well as to the AP and the New York Law Journal. (I have some familiarity with this sort of thing. )
This is preposterous. The Second Circuit took this action on its own, without even a request from the city (the defendant in the case). Apparently, it took the view that there had been such an egregious violation of the rules of judicial conduct that the court had to act on its own—sua sponte, as the lawyers say. It also stayed Scheindlin’s rulings aimed at reforming stop-and-frisk.
Scheindlin did nothing wrong. She talked about her judicial career and her history on the bench in a way that illuminated the work that all judges do. In my experience, it’s a common complaint from judges that the public doesn’t understand their work, and doesn’t care about what they do. Scheindlin’s conduct in this case exemplified the independent tradition of the judiciary. She should be honored for it, not scolded.

Next up is the GOP blocking a nominee to the Court of Appeals in DC:

Next Republicans, who have accused the president of trying to tip the court’s ideological balance in Democrats’ favor, quickly dispensed with the nomination of Patricia Ann Millett to the United States Court of Appeals for the District of Columbia Circuit. A former government lawyer whose husband serves in the military, she has worked in both Republican and Democratic administrations. The White House chose her as a test of how far Republicans would go to derail a qualified nominee.

***

Republican objections to Ms. Millet had nothing to do with her judicial temperament or political leanings. Instead, Republicans said they wanted to refuse Mr. Obama any more appointments to the appeals court, which is widely recognized as second only to the Supreme Court in importance and often rules on politically significant matters like presidential authority and campaign finance.

“Our Democratic colleagues and the administration’s supporters have been actually pretty candid,” said Senator Mitch McConnell of Kentucky, the Republican leader, who pressed his members hard to vote no. “They’ve admitted they want to control the court so it will advance the president’s agenda.”

Another confrontation — on these nominations or others — seems inevitable. Even as Republicans pledged to stop Ms. Millett, two more nominees to the appeals court were working their way through the Senate confirmation pipeline. Robert L. Wilkins, a Federal District Court judge, cleared the Senate Judiciary Committee on Thursday by a 10-8 party-line vote. Cornelia T. L. Pillard, a Georgetown law professor, was already approved by the committee and is awaiting a vote on the Senate floor.

The court is split evenly with four Republican and four Democratic appointees among the judges who regularly hear cases. Among the judges who are semiretired, five are seen as conservative, one as liberal.

There are still three vacancies that Mr. Obama is trying to fill. Republicans are pushing a bill that would eliminate those seats permanently because they argue the court has a light caseload.

That has prompted Democrats to accuse Republicans of trying to change the rules simply because they do not like the president who is picking judges.

“The judiciary is too important to play partisan games with,” said Senator Dianne Feinstein, Democrat of California. “And that’s exactly what’s going on here.”