Not Guilty across the board for former Hialeah Mayor Julio Robaina and wife on tax charges

Wow, a big not guilty today before Judge Ungaro on a lengthy tax trial.  From the AP:

Former Hialeah Mayor Julio Robaina and his wife were acquitted Tuesday of all charges following a federal trial on accusations they filed false tax returns and lied to federal agents.

Jurors reached the not guilty verdicts for Julio and Raiza Robaina after about six hours of deliberations.

Prosecutors claimed the couple failed to report about $2 million in income between 2005 and 2010. Some of it was cash payments on high-interest personal loans they made to friends and associates, including a convicted Ponzi schemer.

Testifying for the couple, Raiza Robaina blamed many of the problems on mistakes by the couple's accountant. She insisted they did not submit false tax returns or lie to investigators, and their lawyer said the federal case rested heavily on testimony of the jewelry investment Ponzi scheme operator, Luis Felipe Perez.

It should have been handled through an Internal Revenue Service audit rather than a criminal indictment, defense attorney David Garvin said in closing arguments.

"Each and every one of these issues should have been in the civil audit that never occurred," he said.

Cert grant from the 11th Circuit on an important overcriminalization issue

In Yates v. United States, No. 13-7451, the Supreme Court granted cert on the following issue:

"Whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519, which makes it a crime for anyone who 'knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object' with the intent to impede or obstruct an investigation, where the term 'tangible object' is ambiguous and undefined in the statute, and unlike the nouns accompanying 'tangible object' in section 1519, possesses no record-keeping, documentary, or informational content or purpose."

The Federal Public Defender's Office for the Middle District represents Yates.  It said: "The important question presented to this Court boils down to whether a fish is a 'tangible object' under the 'anti-shredding' criminal provision of the Sarbanes-Oxley Act of 2002, entitled 'Destruction, alteration, or falsification of records in Federal investigations and bankruptcy.' 18 U.S.C. § 1519."

The NACDL amicus brief, written by Bill Shepherd of H&K, begins: "Before this Court is the case of a commercial fisherman and three missing grouper. At the heart of the issue presented is an unconstitutional expansion of federal law, resulting in Petitioner's wrongful conviction. Petitioner's conviction is but one more example of the overcriminalization epidemic."



The 11th Circuit didn't engage on the topic, writing only the following:

B. A fish is a "tangible object" within the meaning of 18 U.S.C. § 1519.

Yates contends the district court erred in denying his motion for judgment of acquittal as to Count II because the term "tangible object" as used in 18 U.S.C. § 1519 "only applies to records, documents, or tangible items that relate to recordkeeping" and "does not apply to . . . fish." [Appellant's Br. at 36.]

"In statutory construction, the plain meaning of the statute controls unless the language is ambiguous or leads to absurd results." United States v. Carrell, 252 F.3d 1193, 1198 (11th Cir.2001) (internal quotation marks omitted). "When the text of a statute is plain, . . . we need not concern ourselves with contrary intent or purpose revealed by the legislative history." United States v. Hunt, 526 F.3d 739, 744 (11th Cir.2008). Further, undefined words in a statute — such as "tangible object" in this instance — are given their ordinary or natural meaning. Smith v. United States, 508 U.S. 223, 228, 113 S.Ct. 2050, 2054, 124 L.Ed.2d 138 (1993). In keeping with those principles, we conclude "tangible object," as § 1519 uses that term, unambiguously applies to fish. See BLACK'S LAW DICTIONARY 1592 (9th ed.2009) (defining "tangible" as "[h]aving or possessing physical form"); see also United States v. Sullivan, 578 F.2d 121, 124 (5th Cir.1978) (noting that cocaine is a "tangible object" subject to examination and inspection under Rule 16(a) of the Rules of Criminal Procedure). Because the statute is unambiguous, we also conclude the rule of lenity does not apply here.

The White Collar Blog, by Ellen Podgor, posted about the case last week:

Perhaps the Supreme Court will agree that in the ocean of crime, this one is a bit fishy.  Following the filing of the Petition for Certiorari and a distribution for conference, the Court requested a response from the government. Amici filed a couple of briefs and it was again distributed for conference. It is now set for distribution a third time, April 25, 2014 (see here). It's a wonderful case for the Court to examine principles of statutory interpretation and how far afield the government can go in using a statute written and intended to stop one form of criminal conduct but being used in an unintended manner. This case also provides the Court the chance to step to the plate and express a view on overcriminalization. (see NACDL amicus brief of William Shepherd here - Download NACDLYATESAMICUS).  There are many other issues in the "fish case" that may also interest the Court, such as how a civil fishing citation became a criminal case with an indictment issued 985 days after the citation. (see Petitioner's Reply Brief - Download Yates Reply to Brief in Opposition). But the real question is whether the Court will order fish this coming Friday at their conference.  

Judges Bloom & Gayles set for Judiciary Committee vote on May 1

Calendar here.

Congrats to both.

In other news, Curt Anderson covers the 11th Circuit argument concerning cellphone tower data:

In the latest challenge over digital age technology and privacy rights, a federal appeals court wrestled Friday with the authority of law enforcement to obtain and use records from cellphone towers, which reel in a treasure trove of user information every minute and can link suspects to crime scenes.
In Quartavious Davis' case, authorities obtained from cellphone companies more than 11,000 tower location records spanning 67 days, some of which placed his phone near stores hit by a string of robberies in 2010. Davis, 22, is serving a 162-year prison sentence.
The American Civil Liberties Union and other groups say it's too easy for law enforcement officials to get cell tower records and argue that they should be protected by the Fourth Amendment's ban on unreasonable searches and seizures.
"This provides the government with a time machine it has never had before," ACLU attorney Nathan Wessler told the three-judge panel of the 11th U.S. Circuit Court of Appeals. "It's a great wealth of information about your private life."
Current law allows authorities to simply tell a judge the cellphone information is relevant to their investigation for a court order. The ACLU wants a higher legal standard, with investigators required to show probable cause that a crime was or is being committed and obtain a search warrant.
The case follows recent disclosures that U.S. intelligence agencies, including the National Security Agency, routinely scoop up cellphone communications across a broad spectrum of Americans. And cellphone-tower cases have resulted in split verdicts in two other federal appeals courts. It's likely one will wind up before the U.S. Supreme Court, which ruled in 2012 that global-positioning tracking devices attached to suspects' cars constituted a search subject to Fourth Amendment protections.
A judge at Friday's hearing said he sees similarities between that ruling and the cellphone case.
"Why isn't that at least as much an invasion of privacy as a GPS driving down the highway?" Circuit Judge David Sentelle, sitting as a guest judge, asked about cellphone data.
Assistant U.S. Attorney Roy Altman argued that the cellphone tracking is different because it is not collected in real time and because there is no expectation of privacy, with the records already in the hands of a third party: the cellphone company. People are generally aware their phones can keep track of their movements, Altman said.
"You don't have a reasonable expectation of privacy in that instance," he said.

Whoa Whoa Whoa, stop the clock!

Some stuff for you to read during the Bench & Bar conference today:


Retired Justice John Paul Stevens says marijuana should be legal.

Justice Alito says the LSAT counts for too much.

And Justice Scalia doesn't really get HBO.

Here's a picture of the breakfast with 700+ lawyers:

Robaina tax trial heating up

The blog hasn't really covered this tax trial involving the former mayor and his wife before Judge Ungaro, but it looks like there have been quite a number of interesting moments -- like the couple's previous criminal defense lawyer testifying.  And yesterday, the mayor's wife testified.  From the Herald:

The wife of former Hialeah Mayor Julio Robaina stood by her man Wednesday, taking the witness stand in the couple’s federal tax-evasion trial to say they did not cheat on their tax returns by hiding $2 million in income from the U.S. government.
Raiza Robaina, 40, said she was responsible for her family’s household finances and tax returns, including interacting with a certified public accountant who did their joint tax returns. She said that she and her husband relied on their accountant, Pelayo Vigil, for filing correct and accurate returns from 2005 to 2010 — the period covered in the couple’s conspiracy indictment.
The Robainas’ defense attorney, David Garvin, asked her whether there were mistakes on the couple’s tax returns.
“Yes, but they were just that — mistakes,” she testified.
Who made the mistakes? Garvin asked.
“The accountant that we trusted to give us the correct information,” she responded.
She then blurted out that the whole ordeal has been “upsetting” because when others make mistakes, nothing happens. “But when we make mistakes, we get indicted.”

Read more here: http://www.miamiherald.com/2014/04/23/4076606/robainas-wife-testifies-the-couple.html#storylink=cpy

RIP Myles Malman (UPDATE)

He was a good guy, who most recently tried the B-Girls case in Miami before Judge Scola.

I didn't realize he played baseball at Fairleigh Dickinson University.  From their webpage:

Malman graduated from FDU in 1967 and played baseball for three years. He was very active in the baseball alumni program. In 2010, Malman was presented The Pinnacle, the highest award the University bestows upon its alumni. Pinnacle recipients are chosen on the basis of success or distinction in their chosen fields; significant contributions to society and humanity through public or humanitarian service; and outstanding service to the University, or reflection of the unique character of Fairleigh Dickinson in their lives.

In presenting the award, his longtime friend and colleague Robert H. Silbering said, "You have been a dear friend to FDU over the years. As a former member of FDU's baseball team, you generously support a scholarship established in honor of the late baseball coach Harvey Woods. You also give back your time and energy through lectures and mentoring.

Malman was the managing director of Malman, Malman & Rosenthal in Hollywood, Fla. He specialized in criminal and civil litigation, and maintained an extensive national white-collar criminal practice including securities and health-care fraud.

Malman served as Deputy First Assistant and Special Counsel to the United States Attorney of the Southern District of Florida during his lengthy career as a federal prosecutor, managing a 200-lawyer office. He was co-lead counsel in the successful prosecution of Gen. Manuel Noriega on drug and money-laundering charges. In 1992, he received the Attorney General's Award for Distinguished Service in recognition of his litigation skills. Malman handled the only successful federal Civil Rights Act prosecution in the Southern District of Florida and is the recipient of six Department of Justice Superior Achievement Awards for Outstanding Performance.

Over the years, he led and participated in high-profile civil cases, including class-action litigations against manufacturers of silicone breast implants, tobacco, General Motors pickup trucks and others. He also represented and negotiated contracts and business deals for professional players in the National Hockey League and the National Football League.

Malman served on the faculty of the National Institute of Trial Advocacy at Hofstra University Law School and taught in the Intensive Trial Advocacy Program at Widener University Law School. He lectured in criminal and civil trial practice and Florida criminal procedure for the WestBar Review Course. Malman also appeared on national television as an expert in legal matters, consulted on major Hollywood motion picture projects and testified before
Congress on criminal justice matters.

Malman was born in New York City and served as an Assistant District Attorney for 10 years as well as Senior Trial Counsel and adviser to longtime Manhattan District Attorney Robert M. Morgenthau. In the 1960s, he served in the U.S Army Military Police Corps in Vietnam.

Malman is survived by his wife, Jill, and their two children, Parker and Mallory.

UPDATE -- The Miami Herald has this obit:

Myles Malman may not have been a marathon man, but he sure lived like one.
As an attorney, he tried months-long cases, most notably the drug-trafficking prosecution of Panamanian strongman Manuel Noriega in Miami. For clients, he traveled to New York, Russia and Israel. And as an older father, he stayed in shape on the tennis court to keep up with his young son and daughter.
Malman, a New York native who worked for the city's legendary district attorney, Robert Morgenthau, before moving to South Florida in the 1980s to become a federal prosecutor, died of brain cancer on Sunday at his home in Hollywood.
Before his death at age 67, Malman had lived long enough to see a movie in which he appeared — American Hustle — nominated for a Best Picture Oscar. He got a nonspeaking part after he gave some advice to director David O. Russell, who conferred with Malman about a scene filmed on location in the Boston area.
But it was in the courtroom where Malman made his mark, gaining a reputation as a formidable but fair attorney.
Veteran Miami lawyer Norman Moscowitz praised Malman as an “effective and tenacious advocate” as both a prosecutor and defense attorney.
“He was a decent and honorable person and that always came across in court, which is why jurors liked him so much,” said Moscowitz, who worked with him in the U.S. attorney’s office and later on defense cases.

Justice Scalia issues dissent for a DUI criminal defendant

Yes, Rumpole... Justice Scalia is on the right side again. The case is Navarette v. California.

Here's the syllabus of Justice Thomas' opinion:

A California Highway Patrol officer stopped the pickup truck occupied by petitioners because it matched the description of a vehicle that a 911 caller had recently reported as having run her off the road. As he and a second officer approached the truck, they smelled marijuana.They searched the truck’s bed, found 30 pounds of marijuana, and arrested petitioners. Petitioners moved to suppress the evidence, arguing that the traffic stop violated the Fourth Amendment. Their motion was denied, and they pleaded guilty to transporting marijuana. The California Court of Appeal affirmed, concluding that the officer had reasonable suspicion to conduct an investigative stop.
Held: The traffic stop complied with the Fourth Amendment because,under the totality of the circumstances, the officer had reasonable suspicion that the truck’s driver was intoxicated.

From Justice Scalia's dissent, joined by Ginsburg, Sotomayor, and Kagan (Note that Breyer is again ruling in favor of the government):

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) tha tanonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and
(2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point hisword is as good as his victim’s.
Drunken driving is a serious matter, but so is the loss ofour freedom to come and go as we please without police interference. To prevent and detect murder we do notallow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving. I respectfully dissent.

Supreme Court rejects Gov. Scott's cert petition

This was in the drug testing case that Judge Ungaro had. From Curt Anderson:

The U.S. Supreme Court refused Monday to hear an appeal by Florida Gov. Rick Scott on his 2011 executive order that would have required random drug tests for as many as 85,000 state workers.

The ruling lets stand an appeals court decision that Scott's order was too broad. That decision also directed a Miami federal judge to oversee ongoing negotiations between the state and an employee union over which positions could be subjected to random drug tests.

The Supreme Court's refusal to hear the appeal follows a similar decision in late December by a federal judge in Orlando who struck down a Florida law requiring applicants for welfare benefits to undergo mandatory drug testing. Scott, a Republican, is also appealing that case.

The American Civil Liberties Union of Florida, which challenged both drug-testing plans as unconstitutional, said federal courts have clearly rejected blanket mandatory drug testing by the state.

"The question of whether the state has the power to compel all employees to submit to suspicionless searches without good reason is settled and the answer is no," said Shalini Goel Agarwal, the lead ACLU attorney in the state employees case.

Judge Hoeveler set to retire

It's been a good run.

John Pacenti covers the details:

Senior U.S. District Judge William Hoeveler said after more than three decades on the bench that he planned "to continue to work until they carry me out."
It may not come to that. Chief U.S. District Judge Federico Moreno in Miami sent a short memo last month reassigning Hoeveler's 21 cases effective April 1 "pending retirement later this year."
Appointed by President Jimmy Carter in April 1977, the World War II veteran quickly gained a reputation as a legal scholar. The 92-year-old judge oversaw landmark litigation on Everglades pollution, and he presided at the nine-month drug-trafficking and racketeering trial of Panamanian dictator Manuel Noriega.
Hoeveler also oversaw some of the 2000 hearings on whether 6-year-old Cuban refugee Elian Gonzalez should be returned to his homeland. A year earlier, he presided over a Port of Miami public corruption trial.
"The truth is he has left his fingerprints all across the district, not just on the Everglades, but on criminal, civil and environmental law," said former interim U.S. Attorney Guy Lewis, now a partner at Lewis Tein in Miami. "When the chips are down, Judge Hoeveler is the guy who comes through."
Compared to Lincoln
How well-regarded is Hoeveler among members of the Bar in South Florida? Several lawyers compared him to President Abraham Lincoln.
"He acted like Abe Lincoln," said attorney Aaron Podhurst, a partner at Podhurst Orseck in Miami. "He never raised his voice, and he was a fabulous lawyer, and he was a great trial judge."

Thursday's news and notes

1. The dude who disrupted the Supreme Court got time served. From the AP:

A demonstrator who interrupted arguments at the U.S. Supreme Court in February and whose group posted video of the protest online, a first for the court, has been sentenced to time served.

Noah Kai Newkirk of Los Angeles pleaded guilty Tuesday in connection with the Feb. 26 disruption, after which he served a night in jail. After Tuesday's hearing, a Supreme Court policeman gave Newkirk a piece of paper that notified him he is also barred from the court grounds for a year.

After video of his protest was posted online, the Supreme Court, which forbids cameras and all other electronic devices, tightened its security screening. Newkirk declined Tuesday to say how the video of his protest was shot.

Newkirk, a member of the group 99Rise, told a D.C. Superior Court judge overseeing his case that he spoke out to protest the "unprecedented amount of money" corporations are spending on elections. He said the Supreme Court played a role in "deepening that corruption."
...
Newkirk's attorney, Jeffrey L. Light, told the judge Newkirk has no intention of returning to the Supreme Court. But Newkirk said outside the hearing that "it's a hypothetical possibility there may be others."

2. While keeping the Court closed to cameras and punishing those who disrupt the Court, Justice Scalia told a student that he should consider revolting:. From the WSJ:

Supreme Court Justice Antonin Scalia, after delivering prepared remarks before a standing-room-only crowd at the University of Tennessee College of Law on Tuesday, was asked by a student about the constitutionality of the income tax.

Justice Scalia, according to the Knoxville News Sentinel, replied that the government has the right to take his money. “But if reaches certain point, perhaps you should revolt,” he reportedly told the young man.

The justice, who was invited by the law school to present its annual “Rose Lecture,” delivered what he described as his “stump speech.”

He talked about the time he joined with the majority in 1989 in declaring that flag-burning was constitutionally protected speech.

“You’re entitled to criticize the government, and you can use words, you can use symbols, you can use telegraph, you can use Morse code, you can burn a flag,” he said, according to the News Sentinel.

Justice Scalia also said that he and his colleagues on the bench don’t care which party controls the White House, saying the clash of opinions among the justices isn’t partisan.

And he, naturally, offered a defense of his theory of originalism, the belief in a Constitution that’s fixed and unchangeable.

“The Constitution is not a living organism for Pete’s sake,” the justice said, according to the report. “It’s a law. It means what it meant when it was adopted.”

3. Another Rothstein indictment. This time it's Irene Stay. From the Sun-Sentinel:

Federal prosecutors filed a criminal charge Wednesday against Scott Rothstein's former bookkeeper, who became the chief financial officer of his law firm, court records show.

Irene Stay, now Irene Shannon, 50, of Miami, was charged with a lone count of conspiracy to commit money laundering and bank fraud. Prosecutors said she is the 18th Rothstein accomplice to be held accountable.

Shannon played a vital role in Rothstein's $1.4 billion Ponzi scheme, which he operated from 2005 to 2009, according to investigators.
Her job involved overseeing all of the law firm's accounting work from the secured inner sanctum that Rothstein had built in his Las Olas office, according to investigators from the IRS and FBI.

Some of Rothstein's investors alleged in a civil lawsuit that when Rothstein's law partners confronted Shannon after he fled to Morocco in late October 2009, she began crying and repeating the phrase, "I don't want to go to jail."

Fort Lauderdale jeweler Patrick Daoud gets house

Another Judge Marra/Fred Haddad matchup. From Paula McMahon:

Well-known Fort Lauderdale jeweler Patrick Daoud was sentenced to ten months of house arrest and two years of probation on Friday for helping to hide a huge 12.08 carat yellow diamond that Ponzi schemer Scott Rothstein's wife was attempting to conceal from federal authorities.

Daoud, 55,the owner of Daoud's Fine Jewelry in Fort Lauderdale, pleaded guilty to obstruction of justice last year.
***
His crime, prosecutors said, was lying about the diamond under oath when he was summoned to a deposition in federal bankruptcy proceedings in November 2011. He testified that he never received or kept the diamond and later, in June 2012, returned it to Weisman.

"He had the opportunity to do the right thing and chose not to," Assistant U.S. Attorney Lawrence LaVecchio said in court.

Daoud's lawyer, Fred Haddad, said that Daoud was "deliberately kept in the dark" and knew nothing of Rothstein's attempt to hide jewelry and other assets to try to keep her financially afloat after her husband's $1.4 billion investment fraud scheme was exposed in October 2009.

Daoud panicked when he figured out what was going on and got involved in a "misguided attempt to protect" Weisman – who he knew from attending charitable events – and his investment, Haddad said.

"Aside from losing a large sum of money in purchasing the ring, the embarrassment in a community where he is so well-known, [Daoud] has also been branded a felon, with a resultant loss of business," Haddad wrote.

When U.S. District Judge Kenneth Marra asked Daoud if he wanted to say anything before he was sentenced, Daoud hesitantly replied: "I'd rather not."

Judge Pryor says judicial branch disrepected by AG Holder

Some fireworks from the Sentencing Commission last week when 11th Circuit Judge Pryor said that AG Holder disrespected the judicial branch by not opposing the proposed two level decrease in the drug guidelines. More from NLJ:

The United States Sentencing Commission Thursday unanimously approved an amendment to revise sentencing guidelines for non-violent drug offenders, but not before one commissioner accused Attorney General Eric Holder of having “disrespected” the judicial branch’s role in sentencing reform.

“I regret that, before we voted on the amendment, the Attorney General instructed Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” Judge William Pryor, Jr. said at a public hearing in Washington. “That unprecedented instruction disrespected our statutory role, ‘as an independent commission in the judicial branch,’ to establish sentencing policies and practices under the Sentencing Reform Act of 1984.”

Nevertheless, Pryor voted with the seven other Republican and Democratic judges to reduce sentencing guidelines involving drug offenders.

In August, Holder revealed his “Smart on Crime” initiative, which includes recommendations for reduced sentencing, without consulting with the Sentencing Commission—an independent agency within the judicial branch tasked with setting such policies. Although the sentencing reforms themselves were not controversial, Holder’s cavalier approach to separation of powers, including a March memo in which he “instructed the Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” irritated commissioners and alarmed supporters of constitutional separation of powers.

The amendment approved Thursday, aims to reduce federal prison overcrowding by reducing non-violent drug trafficking offenders’ sentences by 17 percent.

Holder did not attend the meeting. Instead, Commissioner Jonathan Wroblewski responded to what he called Pryor’s “very, very, very serious charge.” Wroblewski insisted that what the Attorney General did was “not only lawful, but in the greatest respect of the Justice Department,”

Chief Judge Ricardo Hinojosa stated that he was “surprised” by Wroblewski’s statement. He concurred with Pryor that Holder is setting a “dangerous precedent,” noting that two years ago, the Justice Department testified that it was not ready for reductions in sentencing, but that “all of a sudden, because the Attorney General says so” the DOJ has changed its course.

The meeting concluded with Chief Judge Patti Saris applauding the commission for its unanimous vote. But observers joined Pryor and Hinojosa in condemning Holder’s high-handed approach to constitutional boundaries.

“For those committed to the rule of law, the question now goes beyond whether reducing sentences for dealers in dangerous drugs is wise. It’s whether the Attorney General, the chief law enforcement officer in the United States, is committed to following the law as it exists, or, instead, as he wants and speculates it might become,” William G. Otis a professor at Georgetown University Law Center, said in a statement. “One way to consider this question is to ask whether, if the Attorney General ordered prosecutors to seek increased sentences that were, at the time, only preliminary, those applauding Mr. Holder’s actions would be as enthusiastic as they are today.”

I'm not sure I see the disrespect or the separation of powers issues. The Attorney General can tell his prosecutors what sentences to seek; in fact, he can even go so far as to pick and choose what cases to prosecute. I see the judges' role as a check on the prosecution power in seeking sentences that are too high, not too low. This is an adversary system, so if the executive branch says that a particular sentence is too high, I'm not sure how that is disrespecting the judicial branch. As an aside, the guidelines aren't even based on any empirical data; they are simply made up numbers -- and the Commission voted unanimously to reduce those made up numbers. Had Holder not told his prosecutors to stop seeking the higher sentences, we'd see a flood of 2255s, along with appeals, and I'm sure the judicial branch wouldn't be happy about that.

Judge Marra's sentencing of Christopher George last week demonstrated how the judiciary rightly checks the government. The prosecution asked for a third off of George's sentence for cooperation and the defense asked for way more. Judge Marra correctly said no and gave much less -- about 20%. From Paula McMahon the Sun-Sentinel:

Christopher George, whose highly successful pill mills in Broward and Palm Beach counties made about $40 million, was hoping Friday that his cooperation with prosecutors would earn him a big break on the prison term he is serving.

Though the inmate wasn't in court to witness it, prosecutors formally recommended that he should get close to six years shaved off his 17 1/2 year federal prison sentence and told the judge that they wouldn't object to him getting as much as a 50 percent sentence reduction.

But U.S. District Judge Kenneth Marra was not going for anything even close to that.

"I'm not sure that I want him back out on the streets as quickly as everyone here seems to want — he's a dangerous person," Marra said.

Recalling George's boastful testimony last summer in the trial of two doctors he hired to prescribe massive amounts of painkillers to addicts and other drug, the judge said the former Wellington twin was "proud of being a criminal."

"He was proud of what he did. He was just upset that he got caught," Marra said.

The judge, who has granted sentence reductions for several other co-defendants who helped the prosecution, reminded prosecutors and defense attorney Fred Haddad that he could refuse to reduce George's sentence by even one day.

But mindful that prosecutors investigating tough cases often need the help of cooperating criminals — who will only do the right thing if they know they will receive some kind of reward — Marra said it would be "unwise and damaging to the criminal justice system" to give George no credit at all.

After a long silence, Marra ruled that it was appropriate to take 3 1/2 years off George's prison term – which cuts his punishment to 14 years. Federal inmates usually serve about 85 percent of their sentences, with time off for good behavior.

Tax fraud trial starts for former Hialeah Mayor Julio Robaina

The case is before Judge Ungaro.  The Herald has these details from the start of the trial:

The tax-evasion trial of former Hialeah Mayor Julio Robaina and his wife got underway Friday with opening statements.
A 12-person Miami federal jury, which was picked Thursday, will hear allegations that Robaina and his wife, Raiza, conspired to defraud the federal government by failing to report more than $1 million in income — including $300,000 in cash payments allegedly collected from now-imprisoned investment scammer Luis Felipe Perez. The trial, presided over by U.S. District Judge Ursula Ungaro, could last three weeks.
Before trial, prosecutors Richard Gregorie and Michael Davis argued that the couple had a conflict of interest with being represented by one defense attorney. They claimed that Robaina arranged to be paid in cash by Perez so he could use the money for his alleged mistress and keep it a secret from his wife.
But the Robainas stood united, insisting that the issue would not pose a conflict at trial because Perez and another witness who made the allegation were “liars.”

"I am handcuffed! I am not allowed to do the nasty conservative things I want to do to the country."

That was Justice Scalia during this recent talk at Brooklyn Law School.  More from the WSJ:

If the framers didn't think flogging was cruel or unusual, he continued, then it couldn't, therefore, violate the constitution they wrote.

Before an audience, the sharp bite of Mr. Scalia's imposing demeanor was leavened with a self-deprecating wit. Because of the inviolability of the Constitution's original meaning, he joked, "I am handcuffed! I am not allowed to do the nasty conservative things I want to do to the country."

This answer, like many others, elicited a round of delighted laughter and applause from the law students, who seemed to be cheering Mr. Scalia's clever and occasionally confrontational replies more than they were applauding the substance of his positions. When Mr. Napolitano asked him a question about privacy from government intrusion into the bedroom, he began, "Bedroom is polite language for intercourse—is that right?"

After an hour of interrogation from Mr. Napolitano, Mr. Scalia fielded questions from the audience. The questions didn't seem prescreened, but a few were notably pointed.

"There have been many calls for Justice Ginsburg to retire," one student asked. "Would you take some of the pressure off her and retire instead?"

Amid a roar of laughter, Mr. Scalia gave a teasing response. "I said I would take questions—I didn't say I would answer them."

When another student asked, referring to Mr. Scalia's originalism, "Why should society be bound by laws that were passed only by white male property owners," he hesitated for a few seconds, longer than he had all evening. "That's a reasonable position," he smiled. "You people wanna make a revolt? Do it!"

Should Supreme Court Justices be more tech savvy?

After reading Michelle Olsen's post on the Facebook case coming up, where the briefs have to describe what FB is, query whether these Justices know enough to be ruling on such questions:

The petition includes a rudimentary description of Facebook, a subtle recognition of the justices’ admitted lack of online savvy: Users have “a home page on which the user can post comments, photos, and links to other websites.” They “may become ‘friends’ with other users.”

Justice Elena Kagan has said that the justices do not even use email.

Here's the question involved in this specific case:

A man convicted of making threats using Facebook has asked the U.S. Supreme Court to resolve a circuit split over what constitutes a “true threat.”

Under the pseudonym “Tone Dougie,” Anthony Douglas Elonis posted violent content on Facebook about his wife and others, often in the form of rap lyrics.

Elonis was convicted under 18 U.S.C. § 875(c), which makes it a federal crime to transmit “any threat to injure the person of another” in interstate commerce. There are comparable state laws.

The U.S. Court of Appeals for the Third Circuit rejected Elonis’ appeal.

In February, the University of Virginia School of Law’s Supreme Court Litigation Clinic filed a petition for certiorari on behalf of Elonis. John Elwood, a Vinson & Elkins partner and clinic instructor, is the counsel of record. Elwood is also a former assistant to the solicitor general and clerk to Justice Anthony Kennedy.

The brief in opposition is due April 21, so the justices could act soon on the petition.

Virginia v. Black, a 2003 Supreme Court opinion about cross burning, held that when a “speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,” that is a true threat (emphasis added). Such threats are not protected speech under the First Amendment.

The petition outlines a split among federal courts of appeals and state high courts over Black’s true threat definition. One interpretation focuses on the speaker, while the other focuses on the speaker and the listener.

Does the phrase “means to communicate” require that the speaker subjectively intend a threat, or is it enough that the message sent comes across objectively as a threat?

Drs. Joseph Castronuovo and Cynthia Cadet sentenced

You remember them -- they were acquitted of all the drug charges in front of Judge Marra a few weeks back.  But they were convicted of money laundering.  Many thought they would get very low sentences because of the acquittals. Not so much.  From the Sun-Sentinel:

It seemed like a victory for two doctors last summer when a jury cleared them of federal charges they had caused the overdose deaths of eight patients they treated at some of South Florida's most notorious pill mills.
But both doctors were found guilty of money laundering and a federal judge meted out stiff punishments for those convictions on Friday, saying there was no way the highly educated professionals did not know they were supplying oxycodone to drug dealers and addicts.
Dr. Joseph Castronuovo, who turns 75 in a few days, was sentenced to 18 months in federal prison. Soon after, Dr. Cynthia Cadet, 43, of Parkland, was sentenced to 6 1/2 years in federal prison.
Both are scheduled to surrender to prison authorities in June. Their lawyers said they intend to appeal and hope to be allowed to remain free on bond while the case is going through the appellate courts.
***
U.S. District Judge Kenneth Marra said he carefully followed the jury's verdict that acquitted Cadet of charges that she contributed to the deaths of six of her patients and Castronuovo of causing the deaths of two of his patients.
But he said it was inconceivable that the two doctors, who had stellar reputations, did not know what was going on at the pain clinics, or pill mills.
Former staff and patients testified there were garbage cans filled with cash in the clinics and "patients" who traveled by car from Appalachia to South Florida to get massive prescriptions of pills were clearly addicts. Practically every patient received almost identical doses of the drugs, prosecutors said, and many of them sold those prescriptions to drug dealers, who traded them in rural communities far from South Florida.
Marra referred to security video footage that showed the waiting room at the clinic where Cadet had worked.
"The chaos, the madness that was going on in that facility," made it obvious to all what was going on there, Marra said. He gave the doctors the benefit of the doubt for the first few months they worked at the clinics but said they definitely knew they were working for a criminal operation but continued to take their salaries, which came from tainted funds, he said.
"It's just impossible not to have known that the people were drug addicts," the judge said.

 In other District news from last week, Scott Rothstein's former partner Russell Adler pleaded guilty last week to a count with a 5-year cap.  He avoids the risk of decades in prison.  I don't know any of the facts of Adler's case, but in general I wonder how many innocent people take deals like this to avoid the huge trial penalties that we see in the criminal system.  Tell me in the comments what you think: What percentage of our inmates are innocent people who took a deal to avoid the risks of trial?

“I hate my job, I hate my job”

That was a court reporter in New York, who has put in jeopardy a number of cases, because instead of transcribing cases, he was writing that over and over again.  From the NY Post:

The bizarre antics by Daniel Kochanski, who has since been fired, wreaked havoc on some 30 Manhattan court cases, sources said, and now officials are scrambling to repair the damage.
One high-level source said his “gibberish” typing may have jeopardized hard-won convictions by giving criminals the chance to claim crucial evidence is missing.
Kochanski’s botched transcripts include the 2010 mortgage-fraud trial of Aaron Hand, who was also convicted of trying to hire a hit man to take out a witness against him.
A source familiar with the case said Kochanski’s transcripts of that trial were a total mess.
“It should have been questions and answers — instead it was gibberish,” the source said.
And in a scene right out of 1980’s “The Shining,” where Jack Nicholson’s off-the-rails writer repeatedly types “All work and no play makes Jack a dull boy,” a source said of Kochanski: “He hit random keys or wrote, ‘I hate my job. I hate my job. I hate my job,’ over and over.”
Claudia Trupp, of the Center for Appellate Litigation, said her office was handling the appeals in Hand’s and nine other cases.
“I never had a situation where a single court reporter was responsible for so much damage,” she said.
Kochanski, 43, was fired in March 2012 for misconduct, said Office of Court Administration spokesman David Bookstaver.
Sources said the Manhattan DA’s Office arrested Kochanski and forced him to try to make sense of his shorthand typing.
ut that effort apparently failed. Judges have been holding “reconstruction hearings” at which everyone involved in a case has to testify about what they remember.
“This situation is terrible for everybody,” Trupp said. “It’s very difficult to come up with a sufficient record based on everybody’s recollection years after the event.”
The troubled stenographer’s dad, Ed Kochanski, said his son “became an alcoholic” about five years ago, costing him his marriage and job.
He said his son was in rehab when they last spoke about three years ago.
Ex-wife Heather Kochanski said, “The pressure of that job pushed him over the edge, leading him to lose everything.”
By phone Wednesday, Kochanski denied screwing up his transcripts.
“I never typed gibberish. I always did my job 100 percent. I was let go because of substance abuse,” he said.

"The Romanian Mumble"

Should Alex Michaels be held in criminal contempt for mumbling in Romanian, "futos gutos monte"?  The Third DCA in a 2-1 says yes per Judge Shepherd (with a powerful dissent by Judge Lagoa).  Here's the majority:

The Romanian Mumble

Mr. Michaels’ use of foul language, however, is another matter. On this
charge, Mr. Michaels admitted that while extending his hand toward Mr. Von
Zamft, he mumbled the words “futos gutos monte” at him. Tr. 97. The trial court
immediately knew or gleaned from Mr. Michaels’ scornfulness that the words
meant “F**k You.” Mr. Michaels confirmed the trial judge’s interpretation of the
words during colloquy at the contempt hearing held a few hours later:

THE COURT: You stated that you mumbled Romanian, what do
those words mean?
[Mr. Michaels]: I’m not going to say at this point. They are
obscene words. They are obscene words in Romanian. Again, if

that is somehow contemptuous, then I apologize to everybody [who]
could be insulted by words they do not understand.
I’m going to try in the future to stop even doing that, but I do
speak Romanian. I [have] been in trouble before. I learned it in order
not to offend anybody.
It happened before. Sometimes they realize they don’t
understand the words. They smile, they laugh, they say don’t do it
again.

Tr. 99-100. We are well aware this has happened before and we are not laughing.
Mr. Michaels also has proven “don’t do it again” means nothing to him.2 Neither
do prior sanction opinions from this court, nor prior discipline from the Florida
Bar. See Michaels v. State, 773 So. 2d 1230 (Fla. 3d DCA 2000 ) (affirming a
judgment of direct criminal contempt and a sentence of six months of probation for
violating an order to refrain from making speaking objections); Quinones v. State,
766 So. 2d 1165, 1167 (Fla. 3d DCA 2000) (reporting Mr. Michaels to the Florida
Bar for “unprecedented levels of attorney misconduct”).3
Mr. Michaels somehow is under the impression that cursing in his native
tongue is somehow less contemptuous than cursing in English. However, we defer
to the trial court’s finding, “I know what I saw.” Pursuant to Florida Rule of
Criminal Procedure 3.830, the trial court’s reliance on her sight—coupled with
record support from Mr. Michaels’ own mouth—is sufficient to uphold the finding
of contempt based on “the mumble.” Viewing, as the trial court here did, the
words mumbled in the context in which they were made, see Martinez v. State, 339
So. 2d 1133, 1135 (Fla. 2d DCA 1976), we conclude the trial court correctly
deemed them contemptuous.

Here's the dissent by Judge Lagoa:

 Applying the requisite objective standard, the record does not support a
finding that an isolated, inaudible utterance in Romanian that was not directed at
the trial court is sufficient to sustain a finding of direct criminal contempt. While
Michaels admits that he mouthed an obscenity in Romanian under his breath
during the hearing, it is undisputed that every witness testified that they did not
hear Michaels’s utterance. Moreover, the isolated utterance was done after
opposing counsel had interrupted Michaels’s questioning, walked up to the
podium, shook his fist at Michaels, and threatened to move to have Michaels
involuntarily committed under the “Baker Act.”

Additionally, there is nothing in the record to indicate that the utterance
was directed at the trial court, nor is there anything in the record to establish
how the trial court translated Michaels’s mumbled utterance from Romanian
to the English obscenity quoted in its orders. Indeed, the trial court’s two orders
make it clear that the trial court is not even sure whether Michaels muttered “F**k
you” or whether he said something in Romanian. The trial court’s uncertainty
confirms the failure to satisfy the “beyond a reasonable doubt standard” required
for finding an individual in direct criminal contempt. Because the power of
contempt must be exercised rarely and cautiously, “[t]he provocation must never
be slight, doubtful or of shifting interpretations. The occasion should be real and
necessary, not murky, and not ameliorated in some less formal manner.” McRoy,
31 So. 3d at 275; Davila, 100 So. 3d at 264.

The trial court’s order also warrants reversal as the record lacks the
necessary intent required to sustain a finding of direct criminal contempt.
“Criminal contempt requires some willful act or omission calculated to hinder the
orderly functions of the court.” Davila, 100 So. 3d at 264 (emphasis added). See
also Woods v. State, 987 So. 2d 669, 677 (Fla. 2d DCA 2007) (“[A]n intent
beyond mere rudeness was required before the court could adjudicate Mr. Woods
guilty of direct criminal contempt. The trial court had to establish that Mr. Woods'
statement, coupled with his actions, were intended to constitute an imminent threat

to the administration of justice.”); Woodie, 960 So. 2d at 878-79 (“Criminal
contempt requires some willful act or omission calculated to hinder the orderly
functions of the court.”). See generally Ex parte Earman, 95 So. at 762-63 (direct
criminal contempt cannot be sustained where record did not establish intent to
embarrass the court in the administration of justice).
Significantly, nothing in the record establishes beyond a reasonable doubt
that Michaels intended to disrupt or hinder the court proceeding by his inaudible
utterance in Romanian. There is no evidence that Michaels’s isolated utterance
was “calculated to cause harm” – a prerequisite for a finding that the conduct
charged is contemptuous; and the record is also devoid of any evidence of willful
or deliberate intent to disrupt. In fact, the record evidence is to the contrary.
Under oath, Michaels testified that he mouthed a profanity in Romanian, and not in
English, because he did not want to interrupt the proceedings or be offensive.
Moreover, Michaels was reacting to Von Zamft’s threat to Baker Act him, and
Von Zamft’s physical behavior that required his fellow assistant state attorney to
physically restrain him, not any statement or ruling by the trial court. See, e.g.,
Davila, 100 So. 3d at 264 (during contempt hearing, defendant explained that he
was frustrated by the system and his situation so that his statement “F*** the

court” was not calculated “to hinder the functions of the court, but merely spoke[n]
out of understandable frustration”); Woods, 987 So. 2d at 678 (defendant’s

expletive “is somewhat understandable given that he was charged with being a
felon in possession of a firearm though he had never been convicted of a felony”).
See also Ex parte Earman, 95 So. at 762 (unrebutted testimony under oath
established lack of intent and therefore could not sustain adjudication of direct
criminal contempt).

***

Here, the requisite proof required for direct criminal contempt is sorely
lacking. Because the record fails to support a finding of direct criminal contempt
on both charged offenses, I would grant the petition for writ of habeas corpus, and
remand with directions to the trial court to vacate the judgment and sentence for
direct criminal contempt.

Slow blogging

Sorry for the slow blogging yesterday.  I was in federal court in Bowling Green, Kentucky.  Back home now and saw that Judge Scola sentenced Anthony Livoti Jr. to 10 years in prison. 


Paula McMahon has the story:

Shackled and dressed in khaki jail scrubs, Livoti showed the emotion of a scared man fighting to save himself from spending the rest of his life in prison — but he also displayed the skills of a tough attorney who fought for his clients in more than 40 years of lawyering.
"I had a life that was always filled with joy. I now have a life that is filled with sadness," Livoti said, speaking of the three months that he has already spent locked up in the Federal Detention Center in Miami since his conviction.

                                                                           

Livoti, 65, of Fort Lauderdale, was best known as a police union lawyer and for his advocacy work for the gay community. He was convicted in December after a three-month trial.
The Ponzi scheme bought out life insurance policies at discount prices from seniors and people who were dying of AIDS, cancer and other terminal conditions. In what became known as the Mutual Benefits Corp. scam, led by Joel Steinger, the policies were sold to investors who expected to make a profit by receiving the full insured value when the beneficiaries died.
Jurors took an extraordinarily long eight days of deliberations to find Livoti guilty of four charges, including conspiring to commit fraud and money laundering, but found him not guilty of 20 related counts.
Livoti, the only defendant who went to trial in the case, finally acknowledged his guilt in court Tuesday after long denying it.
"I lost my way and I wish I could go back and change it," Livoti said, apologizing to the victims for what he called the "terrible wrong" he committed.
Livoti insisted that he had thought he was innocent of the charges until he went to trial and heard all of the evidence against him. He said he had thought that the problems with Mutual Benefits were caused because medical advances were helping people with AIDS live longer than expected and even survive.
Sentencing guidelines suggested a punishment of 80 years. Assistant U.S. Attorney Karen Rochlin recommended a 30-year term and the defense asked for six years in prison – twice the punishment that Livoti would have received if he took the last plea agreement prosecutors offered before he went to trial.
Livoti, the son of a New York state judge, told U.S. District Judge Robert Scola Jr. that he had already lost his reputation, his career and his freedom.
He begged the judge to give him hope, which he said he had lost, that he would not die in prison and could some day be released to spend the rest of his life with his husband, Michael Porter. He said he also wants to try to make amends for his crimes. The felony convictions mean he will lose his law license.
"Judge, I am a life worth saving," Livoti said.