She will fill Judge Birch's seat which has been vacant for 1436 days!
HT Glenn Sugameli
Here's the opinion, which is worth reading. We need to clone Judge Gleeson, who concludes this way:Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts. But the fairness of the mandatory sentence has been a matter of dispute, not only for Mr. Holloway, but also for a surprising and most effective advocate: the trial judge, John Gleeson.As Mr. Holloway filed one motion after another trying to get his sentence and his case re-evaluated, Judge Gleeson, of Federal District Court in Brooklyn, began to speak out against those mandatory sentences that he believed were unduly harsh. Mr. Holloway’s 57-year term was more than twice the average sentence in the district for murder in 1996, the year he was sentenced.More recently, Judge Gleeson began his own campaign on Mr. Holloway’s behalf, writing to Loretta E. Lynch, who is the United States attorney for the Eastern District of New York, to request that she vacate two of Mr. Holloway’s convictions. The payoff from Judge Gleeson’s efforts will be apparent on Tuesday in a highly unusual hearing, when the judge is expected to resentence Mr. Holloway, who is 57, to time served.“Prosecutors also use their power to remedy injustices,” Judge Gleeson wrote in a memorandum released on Monday. “Even people who are indisputably guilty of violent crimes deserve justice, and now Holloway will get it.”***Mr. Holloway was charged in 1995 with three counts of carjacking and using a gun during a violent crime (even though it was an accomplice, and not Mr. Holloway, who carried the gun), along with participating in the chop shop. The government offered him a plea deal of about 11 years. He turned it down after his lawyer assured him he could win at trial. Mr. Holloway did not win.For the first conviction on the gun count, the law required Mr. Holloway to receive five years. But for the second and third convictions, the law required 20 years for each one, served consecutively, a requirement known as “stacking,” which some judges and lawyers argue sounds like a recidivism provision, although it can be applied for crimes, like Mr. Holloway’s, committed hours apart that are part of the same trial.None of Mr. Holloway’s co-defendants, who all pleaded guilty, received more than six years. At Mr. Holloway’s sentencing in 1996, Judge Gleeson said that “by stripping me of discretion,” the stacked gun charges “require the imposition of a sentence that is, in essence, a life sentence.” (The remainder of the 57 years was the 12 years required for the three carjackings.) ***In his opinion issued last week, Judge Gleeson said that Mr. Holloway’s sentence illustrated a “trial penalty,” where those willing to risk trial could be hit with mandatory minimum sentences “that would be laughable if only there weren’t real people on the receiving end of them.”
It is easy to be a tough prosecutor. Prosecutors are almost never criticized for being aggressive, or for fighting hard to obtain the maximum sentence, or for saying “there’s nothing we can do” about an excessive sentence after all avenues of judicial relief have been exhausted. Doing justice can be much harder. It takes time and involves work, including careful consideration of the circumstances of particular crimes, defendants, and victims – and often the relevant events occurred in the distant past. It requires a willingness to make hard decisions, including some that will be criticized.This case is a perfect example. Holloway was convicted of three armed robberies. He deserved serious punishment. The judgment of conviction in his case was affirmed on direct review by the Supreme Court, and his collateral attack on that judgment failed long ago. His sentence was far more severe than necessary to reflect the seriousness of his crimes and to adequately protect the community from him, but no one would criticize the United States Attorney if she allowed it to stand by doing nothing. By contrast, the decision she has made required considerable work. Assistant United States Attorney Nitze had to retrieve and examine a very old case file. He had to track down and interview the victims of Holloway’s crimes, which were committed 20 years ago. His office no doubt considered the racial disparity in the use of § 924(c), and especially in the “stacking” of § 924(c) counts. He requested and obtained an adjournment so his office could have the time necessary to make an extremely important decision....This is a significant case, and not just for Francois Holloway. It demonstrates the difference between a Department of Prosecutions and a Department of Justice. It shows how the Department of Justice, as the government’s representative in every federal criminal case, has the power to walk into courtrooms and ask judges to remedy injustices....A prosecutor who says nothing can be done about an unjust sentence because all appeals and collateral challenges have been exhausted is actually choosing to do nothing about the unjust sentence. Some will make a different choice, as Ms. Lynch did here.Numerous lawyers have been joining pro bono movements to prepare clemency petitions for federal prisoners, and indeed the Department of Justice has encouraged the bar to locate and try to help deserving inmates. Those lawyers will find many inmates even more deserving of belated justice than Holloway. Some will satisfy the criteria for Department of Justice support, while others will not. In any event, there’s no good reason why all of them must end up in the clemency bottleneck. Some inmates will ask United States Attorneys for the kind of justice made possible in this case, that is, justice administered not by the President but by a judge, on the consent of the Department of Justice, in the same courtroom in which the inmate was sentenced. Whatever the outcome of those requests, I respectfully suggest that they should get the same careful consideration that Ms. Lynch and her assistants gave to Francois Holloway.
Darryl Brice "Mike D" Payne, 47, was found not guilty Thursday by a 12-person jury following a trial of more than two weeks."This is an awesome day for me, and proof that God is alive and in control," said Payne, of Sunrise. "At the end of the day, this was never about fraud or corruption. It was an organized attack on democracy and free speech."During his three-year term as president of International Longshoremen's Association, AFL-CIO, Local Union No. 1526, Payne was accused of using union money to pay for personal travel expenses to Las Vegas, Baltimore, St. Louis and other cities, as well as to buy sports memorabilia.Among the charges alleged in the 55-page federal indictment were conspiracy to steal union assets, stealing union assets, endeavoring to obstruct justice, mail fraud and making false statements.Had he been convicted on the charges, Payne could have faced penalties of between five and 20 years in prison, as well as substantial fines.Payne, who still works as a crane operator at Port Everglades, testified in his own defense. Over a day and a half on the stand, he denied any misconduct."Every trip he took he was authorized to take," said Bruce Zimet, his attorney. "His defense was that what the government claimed had happened was never proved to have happened."
Many months would pass after Miami Lakes Mayor Michael Pizzi wigged out when a couple of sketchy Chicago businessmen bluntly pitched him on a “money grab” for some “bogus” federal grants.After initially backing away, however, prosecutors say Pizzi agreed to rejoin their supposed scam after he was elected to a second term in November 2012.The man who pulled the politician back in was Richard Candia, a likable lobbyist who had raised thousands of dollars for Pizzi’s re-election campaign.
Candia was an unwitting target of an FBI sting operation aimed at the Miami Lakes mayor. After he was confronted by agents last summer, the lobbyist assisted in the undercover probe of Pizzi, who was arrested in August. Candia — convicted himself after confessing to taking bribes — will be in the hot seat this week as the prosecution’s star witness in the suspended mayor’s corruption trial in Miami federal court.
Throughout trial this month, Candia has been described as either a “bag man” or a “liar,” depending on which side is arguing in court. For the 49-year-old Candia, who once moved in Anglo and Hispanic political circles with equal ease, taking the witness stand will probably be the roughest role of his life.If there was any doubt about the high stakes of his testimony, consider what a prosecutor and Pizzi’s defense attorney said about him during opening statements in early July.“He will tell you that he was the insider with Mr. Pizzi,” Assistant U.S. Attorney Jared Dwyer told the 12-person jury. “He will tell you that he and Mr. Pizzi agreed to use Pizzi’s power so that they could get [campaign] contributions and cash.”“And no doubt there will be cross-examination of Mr. Candia, and the allegation will be made that he is just making this up to save himself, to save his own skin and to get out of jail.”Indeed, defense attorney Ed Shohat told the same federal jury: “I will suggest that you are going to find in this case for a variety of reasons that Rich Candia and the truth are estranged. They don’t know each other.”
An Atlanta-based federal appeals court on Friday handed a major defeat to doctors who say they are concerned about gun safety, rejecting their challenge to a Florida law that limits their ability to talk to their patients about firearms.Adopted in 2011, the Florida law among other things forbids health care providers from asking about gun ownership by a patient's family unless the health care provider believes that the information is "relevant to the patient's medical care or safety, or the safety of others." The law says providers may not "discriminate" against patients on the basis of gun ownership. Violations subject the practitioner to possible discipline, including loss of a medical license.***"The act simply codifies that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient's care," wrote Tjoflat.Tjoflat said individual doctors could assert a First Amendment defense in any actions brought against them. "But we will not, by striking down the act, effectively hand plaintiffs a declaration that such a defense will be successful," he said.
An undercover agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) infiltrated Jeremy Halgat’s life for three years before he lured him into drug crimes “designed and engineered by the government.” He had Halgat’s home searched and found nothing. He tried to get Halgat to buy illegal guns and Halgat recited federal gun law. Finally, after many rejected requests and a heavy hand by the agent, ATF Task Force Officer Agostino Brancato got Halgat to play a role in a cocaine sale, in pleas that exploited their false friendship, and Brancato’s false claims of monetary desperation.A federal magistrate judge recommended this week that criminal charges against Halgat carrying a term of up to 20 years in prison be dismissed.
“[T]he government’s investigation deployed techniques that generated a wholly new crime for the sake of pressing criminal charges against Halgat,” Judge Cam Ferenbach wrote.Brancato was investigating Halgat because he was in a suspected motorcycle gang that was the target of a mission known as “Operation Pure Luck.” But Halgat had no criminal record and appeared committed to abiding by the law. Although he was an occasional cocaine user, he stated many times that he had long ago disavowed cocaine trafficking. When Brancato repeatedly asked him over the course of five weeks to buy cocaine, invoking language that they were “familia” and monetary desperation, Halgat repeatedly refused, stating that “I had a wakeup call one day” and on another occasion, “I can’t fucking help. I can’t help.”
Finally, Brancato got Halgat to play a minor role by asking him to introduce him to a friend he knew to be dealer, bringing Halgat along and coaxing Halgat to participate in the transaction Brancato had already scripted. He then falsified records about that first transaction, the court found, and a week later, got him to participate in an even bigger ruse. Brancato asked Halgat to come along to a fake major drug transaction set up to involve a drug courier for a Mexican cartel, an airplane rented by the government, and ten kilograms of cocaine from ATF’s own contraband supply. Brancato told Halgat he needed Halgat to “watch his back” and asked him to bring his guns to protect him. Halgat showed up, and he later accepted $1,000 for risking his life.
ATF used all of this to file felony drug trafficking charges against Halgat. But Judge Ferenbech recommended this week that the charges be dropped, questioning how ATF has in any way furthered the two punishment goals — rehabilitation and deterrence — by actually convincing Halgat to relapse and return to criminal activity he had disavowed.In the biggest trial in the SDFLA right now, the Miami Herald raises covers the defense's strategy to argue that Michael Pizzi was also targeted:
Shohat repeatedly revealed through his line of questioning that Pizzi was interested in the federal grant program only if it would generate money and jobs for Miami Lakes and Medley and would not cost those towns any administrative costs.He pointed out that after Pizzi met with the two undercover agents and Kesti for dinner at the upscale Miami Beach steakhouse, Smith & Wollensky, on Feb. 29, 2012, the mayor got upset because the agents used such blunt language about the nature of the scam for the first time.
As the undercover agents sat in a car with Pizzi in the parking lot, Durkacz told the mayor: “I just want to be clear with you mayor, so that there are not any hard feelings down the road. But, you understand a lot of this s--- is just bogus. What we are doing here is just grabbing money.”Pizzi’s recorded response: “I can’t do it if it’s just bogus. That I can’t do.”
Later, Pizzi emailed Kesti, the lobbyist and FBI informant, to call him. In a recorded phone conversation the next day, the mayor told Kesti that he thought the undercover agents’ language was “over the top” and he wanted to “hold off” on going forward with the federal grant application in Medley.Kesti tried to vouch for the undercover agents, saying he had worked with Durkacz in the past on other grant deals. He also said they just wanted to “share the wealth” with him.
But the mayor warned Kesti: “In our position, you have to be f---ing careful because people might get the wrong impression. … We’re the good guys.”But the prosecution is arguing that it didn't have to push:
After winning his second term, Pizzi allegedly accepted these cash bribes:• $1,000 paid by Candia at a Starbucks in Miami Lakes, for the Medley deal. The cash was allegedly tucked inside a newspaper.• $2,000 paid by the two FBI undercover agents at the billiard hall, for the Miami Lakes grant application.• $3,000 paid by Candia in the storage closet of Pizzi's town attorney office in Medley, for the Miami Lakes deal.Just before making the final payoff last July, Candia was confronted by FBI agents about the alleged scheme. He agreed to cooperate by wearing a wire for the last sting against the mayor.Candia, a critical witness, is expected to testify later this month.
I was born in Toledo, and I grew up in NW Ohio for a part of my childhood. What do I say about Lebron leaving for Cleveland? You have got to be kidding.
I truly love Miami. I spent part of my growing up years in the '50s on the other side of Florida in a magical place called Pass-a-Grille. I connected with my absent grandfather on my mother's side in Miami. I had never met him before. I will never forget that experience.
All of that said, Lebron 's heart is in Cleveland, and I'm glad he followed it.
All the best.
Derrick Anthony DeBruce, an inmate on Alabama’s death row, appeals the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 challenging his death sentence. DeBruce contends that he received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution in both the guilt and the penalty phases of his capital murder trial.
DeBruce was convicted of fatally shooting a customer during the robbery of an AutoZone store which he committed with five other men.1 DeBruce argues that his retained trial attorney, Erskine Mathis, was constitutionally ineffective in failing to cross-examine state witness LuJuan McCants, a co-participant in the robbery who identified DeBruce as the shooter at trial, with McCants’s earlier allegedly contradictory statements. He also argues that Mathis was ineffective in failing to investigate and present evidence about DeBruce’s mental capacity and background during the penalty phase of his trial.
Derrick DeBruce’s lawyers may or may not have been ineffective. I don’t know, and my colleagues don’t either. We can’t know—despite two decades of litigation in state and federal court—because DeBruce failed to develop a record of what his attorneys did (or did not do) in preparation for the penalty phase1 of his capital murder trial. Without a thorough record, it is impossible for DeBruce to overcome the “strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance,” Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984), and impossible for this court to say—as it must to grant relief under § 2254—that the State court’s application of Strickland was “objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409, 120 S. Ct. 1495, 1521, 146 L. Ed. 2d 389 (2000).Judge Martin concurs because she: "feel[s] [she] must respond to the dissenting opinion, and specifically Judge Tjoflat’s repeated statements that Judge Wilson and I 'invent[ed] some facts,' 'embellish[ed] the record,' exhibited a 'lackadaisical relationship with the evidence,' and 'disregard[ed] AEDPA' in deciding this case."
But now our court, evidently possessed of special insight, reverses and grants habeas relief. My colleagues do so by inventing a theory of the case that is both factually unsupported and facially implausible: that DeBruce’s seasoned capital-defense lawyers walked into the penalty phase of trial without knowing anything about the man they were defending. That claim would be dubious standing alone, but here it must overcome the “doubly deferential” standard of review federal courts apply when Strickland and AEDPA operate in tandem. Yarborough v. Gentry, 540 U.S. 1, 6, 124 S. Ct. 1, 4, 157 L. Ed. 2d 1 (2003). To grant relief under this demanding standard, the majority needs unambiguous evidence that DeBruce’s attorneys were incompetent. There is no such evidence, so instead the majority embellishes the record, disregards AEDPA, and succumbs to the “all too tempting” impulse “for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission . . . was unreasonable.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
After thorough consideration of this difficult case, Judge Wilson and I have come to the view that Derrick Anthony DeBruce is entitled to habeas relief. This is quite a serious thing, as Mr. DeBruce has been sentenced to death by the State of Alabama. The federal statutory scheme put in place by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was intended to, and does give great deference to the judgment of a State court decision that adjudicated a federal claim on the merits. See 28 U.S.C. § 2254(d). As it should. “AEDPA recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights.” Burt v. Titlow, ___ U.S. ___, ___, 134 S. Ct. 10, 15 (2013). At the same time, the Supreme Court has admonished federal judges that, “[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041 (2003).
None of the three judges on this panel takes this case lightly. On the one hand, Mr. DeBruce was convicted of killing an innocent man named Doug Battle, who did nothing more than happen by the AutoZone Store in Talladega, Alabama on August 16, 1991. On the other hand, Mr. DeBruce is himself set to die as a result his conviction for killing Mr. Battle. None of the cases involving inmates who are sentenced to death are easy, and Mr. DeBruce’s case is no exception. It was filed in our court about three and one-half years ago on April 6, 2011. Four judges of our court have considered the case during the time it has been pending here. It came from the Northern District of Alabama, where it was filed on September 7, 2004, and stayed pending for more than six years.
I write separately because I feel I must respond to the dissenting opinion, and specifically Judge Tjoflat’s repeated statements that Judge Wilson and I “invent[ed] some facts,” “embellish[ed] the record,” exhibited a “lackadaisical relationship with the evidence,” and “disregard[ed] AEDPA” in deciding this case. See Maj. Op. at 2, 3, 40, 81. Judge Tjoflat is a nationally known and admired judge who has served as a member of the federal judiciary since 1970, and as a judge for the State of Florida before that. He is not only admired nationally, he is also admired by Judge Wilson and me. Our work would be much quicker, easier and happier if Judge Wilson, Judge Tjoflat and I all agreed on how the law applies to this case—and every other case, for that matter. But if we do our jobs properly, it is inevitable that we will have disagreements. And we disagree here. That being the case, it is incumbent upon each of us, as a part of this difficult process, to lay out how we understand the law to apply to the specifics of Mr. DeBruce’s case. Each of us has honestly assessed this case to the best of our ability, and the opposing views expressed in our respective opinions were reached through a sincere effort to properly perform the role required of us as judges of this Court.
Preve, Rothstein's point man at Banyon, was charged in a criminal information with one count of conspiracy to commit wire fraud. Usually, an information indicates a plea deal has been struck, but Preve's attorney—Ramon A. Rasco, a partner at Podhurst Orsek in Miami—told the Daily Business Review his client hasn't agreed to anything as of yet.
Rasco said the case against Preve is about "omissions," his failure to disclose to investors Rothstein's financial shenanigans in the months leading up to the implosion of the fraud in October 2009.
From July to October 2009, "Preve caused investors and lenders to pay more than $20 million to the Banyon Group by wire transfer for investments in confidential settlements," the information reads.
Rasco noted the information doesn't accuse Preve of having any direct knowledge of Rothstein's settlement financing fraud. "Considering the allegations that have been made against Frank over the years, it is a very, very watered-down version of events," he said.
Preve and Rothstein exchanged thousands of emails, but they met only a handful of times, and Preve did not have an office in Rothstein Rosenfeldt Adler's Fort Lauderdale office as alleged in civil suits, Rasco said.
"He did not have any knowledge of the Ponzi scheme, and he wasn't working with Rothstein, and he certainly did not benefit from it," Rasco said. "What the government is alleging now are basically technical violations."
Rothstein's scam was disguised as an investment strategy where Rothstein would purchase discounted confidential settlements in sexual harassment or employment whistleblower cases.
A 71-year-old homeless man who said he robbed a bank to get medical treatment and a jailhouse roof over his head was sentenced Friday to two years and four months in federal prison.
George Hernandez was a longtime customer at the SunTrust bank on Fort Lauderdale's North Ocean Drive until February, when he gave a teller a note claiming he had a gun and walked out with $4,980.
He left in a cab, gave $2,000 to a homeless family he had befriended and paid for his motel room and medication for his chronic lung disease, his lawyer told U.S. District Judge Federico Moreno.
Hernandez, who said he drank 12 beers a day, was arrested a few days after the robbery. He used a wheelchair and oxygen tube in court.
The judge said it was a sad case but Hernandez's age and medical problems were no excuse. He recommended Hernandez serve his time in a federal prison hospital.
After reading every comment I could get my hands on about whether I should continue to blog (including over 500 blog comments of all sorts, especially critical comments from law professors such as those found here and here, lots of e-mails going both ways but more than a few from experienced lawyers agreeing with my friend, contrasted with spirited support from prominent federal practitioners like that found here and here, together with encouragement from two Nebraska state trial judges and two federal district judges from other districts*) and after a sincere and thorough evaluation of my motivations in writing this blog, I have decided to continue.
I care deeply about federal judicial transparency, I don’t see much of that and if I quit there would be even less of it and none of it from federal district judges. The implicit assumption of the thoughtful lawyer who wrote me is that mystery and mythology are better for the legal profession and the judiciary than transparency, particularly when the transparency revealed is raw. I profoundly disagree.
On the contrary, that thinking has brought both the legal profession and the judiciary to the brink of disaster. In these polarized times, why should anyone trust us if we judges, particularly federal judges, are not utterly open to examining our motivations and mistakes before the public for whom we serve? Law is not politics, but that assertion now requires proof, not mere belief. ...
In opening statements, Dwyer argued that Pizzi pocketed bribes from a now-convicted Miami-Dade County lobbyist and the undercover agents posing as sleazy businessmen. By dangling bribes in front of him, they talked the mayor into supporting the federal grant proposals purportedly to spur job growth in his community and the neighboring town of Medley.
Dwyer said Pizzi intentionally grabbed the money and campaign checks to line his pockets — a total of $6,750 — knowing that Miami Lakes and Medley would not be benefiting from any federal grants for a jobs feasbility study.
“This case is about a powerful politician who sold his power, who sold his position,” Dwyer told the jurors.
In Pizzi’s defense, Shohat said the federal case was “horribly flawed” on several levels, including the sting operation’s premise, the FBI’s investigative techniques and the prosecution’s get-rich allegation.
“He didn’t sell his office,” argued Shohat, who is handling the defense with three other lawyers, Ben Kuehne, Michael Davis and Ralf Rodriguez. “He didn’t risk his entire career for $6,750.”
The former president of the labor union local representing maritime workers at Port Everglades in Fort Lauderdale went on trial in federal court Tuesday, accused in a 17-count indictment of using false documents to steal thousands of dollars in union funds.And the Pizzi case is off and running, with opening statements this morning (via The Miami Herald):
Darryl Brice "Mike D" Payne, 47, of Sunrise, was president of a union that represents workers who are primarily employed loading and unloading cargo and providing services for the shipping and cruise industries at Port Everglades and elsewhere in Broward County.
Payne used union money to pay for personal travel expenses to Las Vegas, Baltimore, St. Louis and other cities, as well as to buy sports memorabilia, including a signed Miami Heat basketball, according to a 55-page indictment filed in August.
Among the charges are conspiracy to steal union assets, stealing union assets, endeavoring to obstruct justice, mail fraud and making false statements.
The charges carry penalties of between five and 20 years in prison, as well as substantial fines.
Payne, who still works as a crane operator at Port Everglades, was portrayed by his defense attorney Bruce Zimet as a reform-minded labor leader who was targeted by union rivals after he won the presidency of International Longshoremen's Association, AFL-CIO, Local Union No. 1526 in 2007.
The local has more than 800 members, according to its website.
"He implemented change to move the union into the 21st century," Zimet said in his opening statement. "Some were unhappy and formed a campaign to undermine that. Right away they're trying to destroy him."
Prosecutor William Shockley began his case by showing jurors several documents in support of the government's contention that Payne submitted false invoices and work records to cover personal expenses and inflate his years of seniority.
One of the first witnesses to testify was Denise Rodgers, former executive director of the Sistrunk Historical Festival in Fort Lauderdale, a civic organization that had honored Payne in 2008 for what she called his "outstanding contribution to the community."
At a silent auction that year, Payne successfully bid on the signed Heat basketball, a football autographed by former NFL star defensive end Michael Strahan, and a spa massage. The total contribution for all three came to $380, Rodgers testified.
Prosecutors alleged in its indictment that Payne used union funds to pay for those purchases by using a false invoice to lump them in with other legitimate expenses paid to the Historical Festival as charitable donations.
The mail-fraud charge relates to an alleged scheme to deceive officials of the union's pension fund by presenting an altered U.S. Department of Labor document that made it appear as if Payne had received workers' compensation for four years.
In fact, however, Payne had received workers' compensation payments for only about four months, prosecutors allege. Payne submitted the altered document, the government alleges, in order to add years to his seniority and thus increase his pension.
In opening statements, prosecutors will argue that Pizzi pocketed bribes from a now-convicted Miami-Dade County lobbyist and undercover agents posing as sleazy businessmen. They persuaded the mayor to support bogus federal grant proposals purportedly to spur job growth in his community and a neighboring town.
They will contend Pizzi intentionally grabbed the money to line his pockets -- a total of $6,750 -- knowing that Miami Lakes and Medley, where he worked as the town attorney, would not be benefiting from any federal grants.
Pizzi’s defense team will counter that he did not receive some of that cash from the lobbyist, Richard Candia, and the FBI undercover agents claiming to be executives of the phony grant-writing business, Sunshine Universal.
His attorneys will also assert that Pizzi did accept some of that money, but it was a legitimate reimbursement for his own political campaign expenses.
And, they will argue that Pizzi always believed that the federal grant proposals would help Miami Lakes and Medley -- and that they were not a scam.
He is charged with conspiracy and extortion offenses for allegedly accepting $6,750 in mostly cash bribes during an FBI sting operation. In exchange, he supported bogus federal grant proposals purportedly to spur job growth that prosecutors say were only meant to line his pockets.
Pizzi is accused of collaborating with onetime Miami-Dade lobbyist Richard Candia, who flipped for the feds, has pleaded guilty and will testify against him. Two others busted last August on similar charges — former Sweetwater Mayor Manuel Maroño and lobbyist Jorge Forte — have also pleaded guilty and been imprisoned.
Of the four defendants, Pizzi has the most defensible case, and has been the most vocal about his innocence. But for Pizzi to be acquitted, he still must justify to jurors why he accepted alleged cash bribes: $1,000 from Candia at a Starbuck’s cafe; $2,000 from a couple of FBI undercover agents at a billiard hall; and $3,000 from Candia in an office closet at Medley Town Hall, where Pizzi worked as the town attorney.
Pizzi also accepted alleged bribes in the form of $750 check donations for his 2012 reelection campaign from a Miami-Dade lobbyist, Michael Kesti. Kesti, who is not expected to testify at Pizzi’s trial, was paid $114,000 by the FBI, including use of a rented Lexus, to play the role of a government informant in the 2011-13 sting operation.
The biggest question hanging over his trial is whether the voluble Pizzi will take the witness stand in his own defense. “That will be up to my lawyers,” he said.
Pizzi, a Brooklyn native who moved to South Florida in 1988, sees himself as the character Carmine Polito in the Oscar-nominated movie, American Hustle — an over-the-top tale of the FBI’s undercover takedown of a fictional blue-collar New Jersey mayor who lived for his constituents.
“Everyone who has seen American Hustle says that Carmine Polito is Michael Pizzi,” he said. But he leaves out the part that Polito’s character was modeled after an actual 1970s-era Jersey mayor convicted in the FBI’s so-called Abscam sting.
In the Hobby Lobby cases, five male Justices of the Supreme Court, who are all members of the Catholic faith and who each were appointed by a President who hailed from the Republican party, decided that a huge corporation, with thousands of employees and gargantuan revenues, was a “person” entitled to assert a religious objection to the Affordable Care Act’s contraception mandate because that corporation was “closely held” by family members. To the average person, the result looks stupid and smells worse.And here is the federal district judge now discussing whether he should stop blogging.
To most people, the decision looks stupid ’cause corporations are not persons, all the legal mumbo jumbo notwithstanding. The decision looks misogynistic because the majority were all men. It looks partisan because all were appointed by a Republican. The decision looks religiously motivated because each member of the majority belongs to the Catholic church, and that religious organization is opposed to contraception. While “looks” don’t matter to the logic of the law (and I am not saying the Justices are actually motivated by such things), all of us know from experience that appearances matter to the public’s acceptance of the law.*
The Hobby Lobby cases illustrate why the Court ought to care more about Alexander Bickel’s “passive virtues“–that is, not deciding highly controversial cases (most of the time) if the Court can avoid the dispute.** What would have happened if the Supreme Court simply decided not to take the Hobby Lobby cases? What harm would have befallen the nation? What harm would have befallen Hobby Lobby family members who would have been free to express their religious beliefs as real persons? Had the Court sat on the sidelines, I don’t think any significant harm would have occurred. The most likely result is that one or more of the political branches of government would have worked something out. Or not. In any event, out of well over 300 million people, who would have cared if the law in different Circuits was different or the ACA’s contraception mandate was up in the air?
Next term is the time for the Supreme Court to go quiescent–this term and several past terms have proven that the Court is now causing more harm (division) to our democracy than good by deciding hot button cases that the Court has the power to avoid. As the kids say, it is time for the Court to stfu.***
*“Americans continue to take a dim view of the U.S. Supreme Court’s performance, perhaps in part because most still think the justices base their decisions on their own political agenda rather than the law.” Rasmusssen Reports, (Tuesday, June 24, 2014) (Only “26% Rate Supreme Court’s Performance Positively.”).
**Bickel was not trying to protect the Court itself. On the contrary, he realized that there were “hot button” cases that an anti-democratic Court would of necessity be required to resolve. It was for those rare “fate of the nation” cases, where the Court’s legitimacy mattered most to public acceptance of a really important decision, that required the Court to conserve this very scare resource.
***Thanks to June Edwards, one of the smartest lawyers I know, for stimulating this post last evening (July 4, 2014) as we sat on her pleasant patio overlooking a fire works display that illuminated the entire City of Omaha from our perch in the western hills. By the way, Charlie, the dog, was fine because Joan must have fed him 3 or 4 burgers plus all manner of other treats.
The sad truth is that these are hard times for would-be Atticus Finches. The trend has left practitioners pondering where the next great generation of trial attorneys will be forged if not in the courtroom. Arbitration and mediation hearings?
Alternative dispute resolution is just one epitaph that may end up on the American trial's tombstone. Long criminal sentences, skyrocketing costs and even technology can share in its demise, according to trial attorneys.
An updated study due soon by legal scholar Marc Galanter, who has been charting trial declines for years, finds the trend unremitting. He noted only about 1 percent of federal cases go to trial now, and the number of state court trials also have fallen off the cliff.
"There is not much lower for it to go," said Galanter, a professor emeritus at the University of Wisconsin School of Law. "Whether we are coming to the end of the trial as an institution, that remains to be seen."
Galanter's newest article on the decreasing number of trials will appear in the magazine Daedalus, the Journal of the American Academy of Arts and Sciences, in the summer issue devoted to the topic of courts.
The most reliable data available comes from federal courts, he said.
In 2012, 3,211 civil cases went to trial nationally compared to 5,802 in 1962, a drop of 44 percent, despite increases in case filings."In other words, the ratio of trials to filings in 2012 is only about one-12th what it was 50 years earlier," Galanter wrote.The Wilkie D. Ferguson Jr. Federal Courthouse in Miami is hardly bustling these days. U.S. District Judge Federico Moreno said it's all relative, noting he was in trial at the time.Arbitration has indeed cut down on federal civil trials, and sentencing discretion has contributed to a similar decline on the criminal side, he said."The numbers have gone down since I started," said Moreno, who took the bench in 1990. "We probably had too many trials. The first year I had like 50 jury trials."
The network is among dozens of church-based organizations across the country that have sued over the contraception requirement in the health care law. The broadcaster argues contraception, drugs that induce abortion and voluntary sterilization are not part of health care and, therefore, the government shouldn't force the network to provide them as part of its employer-sponsored health plan.Alito wrote that the U.S. Supreme Court decision is limited to contraceptives. “Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer's religious beliefs,” he said.He suggested that the government could pay for pregnancy prevention or could provide the same kind of accommodation available to religious-oriented, not-for-profit corporations.When those groups say providing the coverage violates their religious beliefs, their insurer or a third-party administrator pays for the birth control. The employer doesn't have to arrange for the coverage or pay for it, and the government reimburses insurers through credits against fees owed under other provisions of the health care law.That accommodation is the subject of separate legal challenges, and the court said Monday that profit-seeking companies could not assert religious claims in such a situation.The network said it was pleased by the Supreme Court decision.“The Supreme Court decision in the Hobby Lobby case was a great affirmation of the constitutional right to freedom of religious expression,” network chairman and CEO Michael P. Warsaw said in an emailed statement. “While the Hobby Lobby decision did not directly resolve EWTN's case, this afternoon's injunction from the appellate court allows us to press forward without facing the government's crushing fines.”The network is relieved and encouraged by Monday's court actions and looks forward to making its case before the 11th Circuit, Warsaw said.“The fact that the Supreme Court believes that the government has an obligation to use the least restrictive means of accomplishing its goals is very helpful to the EWTN case,” he said. “EWTN has raised similar arguments with regard to the government's 'accommodation' scheme for faith-based organizations.”