Joe Cool conviction affirmed...

... in a short non-published opinion, without oral argument. It seems to me that an appellate court should at least have oral argument after a trial that results in a life sentence. I mean, it's just a half an hour to hear argument. Just saying.

In other 11th Circuit news, the court found that a district court errs by admitting a defendant's MySpace page. But, of course, it was harmless, and the defendant's conviction and sentence (of 2005 months) was affirmed. From the opinion:

The MySpace evidence is not evidence of identity: that is, evidence that Phaknikone robbed
banks like a gangster. The subscriber report proved nothing more than
Phaknikone’s nickname, the only name by which Lavivong had already testified he
knew Phaknikone. The profile photographs accompanying the subscriber report
and the photograph of Phaknikone and his ex-wife at a social event offer nothing to
support a modus operandi about the bank robberies. The photograph of a tattooed
Phaknikone, his face completely visible, in a car, holding a handgun sideways in
his right hand, and with a child as a passenger, proves only that Phaknikone, on an
earlier occasion, possessed a handgun in the presence of a child. Although the
photograph may portray a “gangster-type personality,” the photograph does not
evidence the modus operandi of a bank robber who commits his crimes with a
signature trait. The MySpace evidence is not evidence of a modus operandi and is
inadmissible to prove identity.

Because the MySpace evidence fails the first requirement of the Miller test,
we need not address its second and third requirements. The MySpace evidence is
classic evidence of bad character, which was offered by the government to prove
only “action in conformity therewith.” Fed. R. Evid. 404(b). The government
wanted the jury to infer that, because Phaknikone is willing to publish these kinds
of photographs online, under an incendiary alias, he is a gangster who is likely to
rob banks. The district court abused its discretion by admitting the MySpace
evidence.

I have always wondered what would happen if a district court read this opinion and then said -- well, I know it's error, but it's harmless so I will admit it.

The comments were active yesterday in the debate about the probation office. Good stuff.

Is It Friday Already?

By SFL

Boy the federal court beat is...a little beat today.

Does it count as SD FL news that I saw Judge Moreno having a nice lunch at La Loggia yesterday?

No, guess not -- darn, where's Julie Kay when you need her?

Anyways, the always-in-trial big man already updated us on Joe Cool. Judge Huck set sentencing for May 6.

Third time's the charm in the Liberty 6 retrial, which is starting to feel like Jarndyce and Jarndyce -- only longer.

What do you all think of this line from the defense opening:

“This case is a 100 percent setup; this is a manufactured crime,” the lawyer, Ana M. Jhones, said in her opening argument, which drew several objections from the prosecution, most notably when she remarked that “taking an oath to Al Qaeda is not a crime.”

True, but do must jurors think it should be?

And finally, more details on the IRS v. UBS showdown unfolding right here in sunny South Florida:

With today’s lawsuit, the U.S. asked a federal judge to enforce its so-called John Doe summonses. On July 1, a federal judge in Miami approved an IRS summons seeking information on thousands of UBS accounts owned or controlled by U.S. citizens. Negotiations between the U.S., Switzerland and UBS have been at a standstill since then, according to a Justice Department filing.

UBS said in a statement that it expected today’s filing.

“UBS believes it has substantial defenses” to the U.S. attempt to enforce the summonses and will “vigorously contest” the case, the bank said in the statement. The bank’s objections are based on U.S. laws, Swiss financial privacy laws, and a 2001 agreement between UBS and the IRS, according to the statement.

Anyone know who has been retained to represent UBS on this? I know a certain humble blogger who's available.

Have a great weekend all!

Joe Cool verdict

Guilty.

I am loving guest-blogger South Florida Lawyer. Great stuff below...

Thanks.

''He said if I blamed it on him, he was going to turn it around on me."

That was Guillermo Zarabozo, the Joe Cool defendant, testifying on Friday. Here's a snippet of the Herald article:

''I told them what he told me to say,'' Zarabozo testified at the murder retrial in federal court in Miami. ``It was the biggest mistake of my life. I lied. That's why I'm here.''
Zarabozo, testifying after the government rested its case, admitted that he and Archer lied that Cuban ''pirates'' had hijacked the boat on their chartered one-way trip to Bimini and then killed the crew. Zarabozo is charged with 16 counts of conspiracy, hijacking, kidnapping, murder, robbery and use of a firearm in commission of those crimes.
Archer, 36, pleaded guilty before the first federal trial in September and was sentenced to life in prison -- Zarabozo's fate if he is convicted of any of the offenses.
Prosecutors will return on Tuesday to cross examine Zarabozo. It is expected to be an intense confrontation. They have argued that Zarabozo has been lying about his role in the murders.
But rather than try to prove conclusively that Zarabozo fatally shot the crew, prosecutors have unveiled newly discovered evidence showing that he and Archer plotted for months to hijack the chartered vessel to Cuba. The evidence supports the conspiracy charge and refutes Zarabozo's claim that he thought the boat was a charter to Bimini.

No surprise here...

Kirby Archer, the Joe Cool defendant who pleaded guilty, was sentenced to life in prison today. No ruling yet by Judge Huck on the co-defendant's motion for a new trial on all counts.

"We should start from scratch, because justice hasn't been achieved.'

That was AFPD Brian Stekloff for Guillermo Zarabozo in the Joe Cool case asking for a new trial on all counts. He continued: "Everyone in this courtroom knows how this jury reached this inconsistent and irrational verdict: They didn't understand the law." AUSA Karen Gilbert responded: "This scenario is not one where the court should set the verdict aside. We live with it. That's the verdict."

Judge Huck took the matter under consideration and set trial for January on the hung counts. Judge Huck did note that the jury's verdict "raises on eyebrow."

(via Sun-Sentinel, AP, Herald)

"I never believed for a minute that he was guilty of any of the charges, not even the ones we convicted him of"

That's one of the jurors in the Joe Cool case. Articles in the Sun-Sentinel and the Miami Herald detail how at least 3 jurors still believe Guillermo Zarabozo is not guilty of all counts, even the 4 they voted guilty on.

From the Sentinel:

Three jurors in the Joe Cool murder-at-sea trial said Wednesday they felt pressured to convict the 20-year-old defendant on gun charges even though they believed he did not kill anyone or know his companion planned to hijack the boat.One said she voted to convict, even though she felt the man on trial was innocent. Another seemed to believe he had cast a not-guilty vote, though guilty verdicts in federal court must be unanimous.After four days of heated deliberations, the 12 jurors voted Tuesday to convict Guillermo Zarabozo of supplying the firearm used to kill Capt. Jake Branam, 27; his wife, Kelley, 30; his half-brother, Scott Gamble, 36; and the first mate, Samuel Kairy, 27.In interviews with the Sun Sentinel, two women and one man from the panel said they were confused about the gun charges and badgered — even bullied — to vote guilty by fellow jurors.

From the Herald:

''I want to take back my vote to convict. I'm just sick over this whole thing. I think there has been a great miscarriage of justice, and I need to correct it,'' Venora Gray, 51, said.
Her disclosure came one day after she and 11 other jurors deadlocked on the major charges of first-degree murder, kidnapping and robbery in the fatal shootings of four Miami Beach charter boat crew members last year. But they all agreed to convict Zarabozo of four counts of using a firearm in a violent crime -- a charge she and the other panelists did not realize carried a life sentence, she said.
''No one in that jury room knew those were such serious charges,'' said Gray, a waitress from North Miami, who years ago served as a juror in another murder trial and convicted the defendant. ``There was no way I would have voted on that if I had known.''
The jurors' revelations could have a serious impact on an already challenged conviction. Seconds after Tuesday night's verdict, Zarabozo's defense team said the jurors could not convict on the charge of using a firearm to kill when they had not convicted Zarabozo of any of the murder charges.


Judge Huck is having a hearing on Monday to determine whether he should grant a new trial on the four counts on which the jury convicted. These interviews seem to support the defense view that the jurors were confused on the gun count.

As an aside, this bolsters my view that every jury should know the potential penalties of the crimes they are voting on. Judge Jack Weinstein in the Eastern District of New York recently wrote a 200+ page opinion holding that in some cases jurors should know the penalties.

Joe Cool jury hangs on first degree murder counts

That's a victory for the defense.

The jury did convict on 4 gun counts. The prosecution will be happy with some convictions after it looked like the jury would hang on everything yesterday, especially since the potential sentences on those counts are life.

Food for thought -- should Judge Huck order a new trial on all counts because the jury may have been confused on the gun counts based on its previous note and because it appears that the jurors compromised after the Allen charge? If the case has to be retried anyway, why not try the whole thing? What are your thoughts?

Hung?

The Joe Cool jury says it can't reach a verdict: "As a jury we feel stuck in the sand and no hope or expectation that we will be able to move to consensus one way or the other."

Judge Huck read them the Allen charge:

I'm going to ask that you continue your deliberations in an effort
to reach agreement upon a verdict and dispose of this case; and I have
a few additional comments I would like for you to consider as you do so.
This is an important case. The trial has been expensive in time,
effort, money and emotional strain to both the defense and the
prosecution. If you should fail to agree upon a verdict, the case will be
left open and may have to be tried again. Obviously, another trial would
only serve to increase the cost to both sides, and there is no reason to
believe that the case can be tried again by either side any better or
more exhaustively than it has been tried before you.
Any future jury must be selected in the same manner and from the
same source as you were chosen, and there is no reason to believe that
the case could ever be submitted to twelve men and women more
conscientious, more impartial, or more competent to decide it, or that
more or clearer evidence could be produced.
If a substantial majority of your number are in favor of a
conviction, those of you who disagree should reconsider whether your
doubt is a reasonable one since it appears to make no effective
impression upon the minds of the others. On the other hand, if a
majority or even a lesser number of you are in favor of an acquittal, the
rest of you should ask yourselves again, and most thoughtfully, whether
you should accept the weight and sufficiency of evidence which fails to
convince your fellow jurors beyond a reasonable doubt.
Remember at all times that no juror is expected to give up an
honest belief he or she may have as to the weight or effect of the
evidence; but, after full deliberation and consideration of the evidence
in the case, it is your duty to agree upon a verdict if you can do so.
You must also remember that if the evidence in the case fails to
establish guilt beyond a reasonable doubt the Defendant should have
your unanimous verdict of Not Guilty.
You may be as leisurely in your deliberations as the occasion may
require and should take all the time which you may feel is necessary.
I will ask now that you retire once again and continue your
deliberations with these additional comments in mind to be applied, of
course, in conjunction with all of the other instructions I have previously
given to you.

Joe Cool jury still out

They are coming back Monday (one of the jurors can't deliberate tomorrow, so they are taking the day off).

Apparently, people can hear shouting from the jury room....

Vanessa Blum reports on this juror question, which the defense should be happy about:

Would a South Florida man automatically be guilty of a crime for bringing his gun on board the Joe Cool charter vessel, even if he didn't know a crime was going to take place? (emphasis added)

That's what a federal jury panel in the murder-at-sea case asked the trial judge Thursday after two full days of deliberations.U.S. District Judge Paul Huck did not answer the question directly, instead referring jurors to his previous instructions on the law. The jury is still deliberating.At roughly 5:30 p.m., Huck sent home the seven men and five women with instructions to return Monday for continued deliberations. The jury was given Friday off so one juror could attend a funeral.

Interesting. Any thoughts?

Joe Cool defendant testifies

From Vanessa Blum's article:

Zarabozo, in short, matter-of-fact responses to lawyers' questions, said he was on the Joe Cool because Archer told him they would be working a security job in Bimini.Zarabozo said he was in the bathroom when he heard gun shots and emerged to see Archer standing near the lifeless body of Samuel Kairy, the boat's first mate.The corpses of Capt. Jake Branam, his wife Kelley, and Branam's half-brother Scott Gamble were outside on the deck, Zarabozo said.He said Archer ordered him to help dump the bodies overboard and clean the boat."He was pointing my gun at me," Zarabozo said.In her cross examination, prosecutor Karen Gilbert pressed Zarabozo for more details and suggested aspects of his testimony differed from earlier accounts."Sir, it's not hard to remember if it really happened," Gilbert said."All I've done for the past year is try to erase that day from my mind," Zarabozo replied.Zarabozo showed little emotion and seldom glanced at the jury during more than three hours on the witness stand.At one point, his lawyer, Anthony Natale, instructed him to look directly at the jury and answer: "Did you shoot anyone on that boat?""No," Zarabozo said.

The jury will have the case tomorrow....

Openings in the Joe Cool case

The jury was picked in a morning and both sides already have given opening statements. If this was state court, it may have taken a week to pick a jury in a murder case. Not in federal court....

Here's Vanessa Blum and Curt Anderson on openings and Luisa Yanez on jury selection.

Jeffrey Tsai opened for the government.
Tony Natale for defendant Guillermo Zarabozo.

Co-defendant Kirby Archer, who pleaded guilty to life in prison, is not expected to testify for the government. The defense has painted Archer as the criminal and stated in openings that Zarabozo was also a victim.

"I didn't want to go in the life raft. He made me go. He had my gun."

That was Joe Cool defendant Guillermo Zarabozo talking about co-defendant Kirby Archer, who has already pleaded guilty. Zarabozo was testifying today at a motion to suppress.

More from Curt Anderon's AP article:

"What was going through your mind?" asked defense attorney Anthony Natale.
"That I would get shot. He had just shot four people," Zarabozo said.
The hearing Tuesday concerned whether statements Zarabozo made to the Coast Guard and FBI after he and Archer were rescued from the life raft will be allowed at trial. U.S. District Judge Paul Huck ruled those statements could be used because Zarabozo was not under arrest or being interrogated, but simply answering routine search-and-rescue questions.
"That would be a normal Coast Guard procedure and not a nefarious, underhanded attempt by the Coast Guard to obtain criminal information," Huck said.

His trial is scheduled for September.

Life for Archer...

Kirby Archer pleaded guilty today, agreeing to life in prison for his role in the Joe Cool murders.

Guillermo Zarabozo is proceeding to trial. The government announced that the death penalty is also off the table for Zarabozo. When Judge Huck heard this, he moved the trial date up to August, and discharged the court-appointed death penalty lawyer, Bill Matthewman.

Here's the Sun-Sentinel coverage, the AP's and the Herald's.

Morning buzz

Judge Huck has scheduled a hearing July 28 in which Kirby Archer will plead guilty to first degree murder in the Joe Cool case. He will agree to life in prison..

Prosecutors say the 36-year-old Archer and 20-year-old Guillermo Zarabozo hired the charter boat for $4,000 to go to the Bahamas, then tried to divert it to Cuba.

Zarabozo has passed a polygraph and blamed Archer in court papers for killing the captain, his wife and two crew members when they resisted. Should be a fascinating trial...

Here's the news coverage from the Sun-Sentinel, the Herald, and the AP.

News and Notes

1. Ken Jenne's days in prison. (via Miami Herald and Sun-Sentinel). From Dan Christensen: Once Broward's most powerful politician, ex-Sheriff Ken Jenne now spends his days raising vegetables in the garden of a federal prison camp in rural Virginia.
Jenne, convicted of corruption last fall, talked briefly about his new duties in a three-hour deposition taken six weeks ago in a federal civil rights lawsuit in which he's a defendant.
...''I work in what is called the garden planting various vegetables,'' Jenne, 61, told Fort Lauderdale lawyer Barbara Heyer.

2. Prosecutors object to Joe Cool polygraph. (via Sun-Sentinel):

Federal prosecutors are fighting to make sure jurors never hear that one of the suspects in the murders of four people at sea passed two lie detector tests saying he did not take part in killing any of the crew members on the Joe Cool.Guillermo Zarabozo, 20, of Hialeah and Kirby Archer, 36, of Strawberry, Ark., who were passengers on the boat's ill-fated charter voyage in September, are charged with four counts of first degree murder and could face the death penalty. Their trial is expected to begin this fall.Zarabozo's lawyers say his favorable polygraph results should be allowed as evidence because they corroborate Zarabozo's version of events--that he was lured onto the boat under false pretenses by Archer and did not know anything illegal was going to happen until Archer fired the fatal shots.At a hearing in Miami federal court Wednesday, prosecutor Karen Gilbert said the polygraph evidence should not be allowed because it is not reliable and could have too much influence on jurors.
U.S. District Judge Paul Huck said he would rule after government officials conduct a separate polygraph exam of Zarabozo--a procedure defense lawyers said they welcomed.

News & Notes

1. "Sport fishing 'shtick' nets probation term for charter boat operator" via Vanessa Blum. If you can't get enough Tom Watts-Fitzgerald, check out this article:

Rejecting a call for harsher punishment, a federal judge on Thursday ordered the owner of a South Florida charter fishing business to serve five years' probation for not reporting sailfish reeled in by customers and killing undersized fish.Stanley Saffan, 58, of Miami Beach, who pleaded guilty to those charges in February, must also pay $210,000 in financial penalties, forfeit one of his Therapy IV boats to the federal government and perform 500 hours of community service work.A crowd of relatives and supporters who turned out for Saffan's two-day hearing showed relief at the sentence, which was well below the 18 to 24 months' prison term sought by federal prosecutors.U.S. District Judge William Zloch barred Saffan, who runs sport fishing charters out of Baker's Haulover Inlet in North Miami Beach, from serving as captain of a vessel during his probation

2. "Gun box allowed as evidence in ghost ship case" via Jay Weaver. Judge Huck rejected the defense's motion to suppress:

An empty gun lockbox -- considered vital evidence in the case of four Miami Beach charter boat members slain at sea -- will be allowed at the trial of two men charged with their murders, a federal judge ruled Wednesday.
U.S. District Judge Paul Huck rejected an attempt by attorneys for defendant Guillermo Zarabozo to suppress evidence gathered by FBI agents at his mother's home -- including the lockbox that may have contained the suspected 9mm handgun used in last fall's killings.
''The point here is not that they found a firearm in a lockbox,'' Huck said. ``It's that they found no firearm in the lockbox.''

Joe Cool defendant passes polygraph

Assistant Public Defenders Anthony Natale and Brian Stekloff, along with co-counsel Bill Matthewman, who represent Joe Cool defendant Guillermo Zarabozo, filed a motion yesterday to admit polygraph evidence. Here's the intro:

Mr. Zarabozo has passed scientifically valid polygraph examinations conducted by two separate, leading experts in the field of polygraph examination. Both experts have determined that Mr. Zarabozo truthfully answered questions that demonstrate he did not: (1) commit premeditated murder, i.e., shoot anyone; (2) conspire to commit murder; or (3) commit felony murder. The Eleventh Circuit has held that polygraph evidence is admissible to corroborate the testimony of a witness at trial–here, Mr. Zarabozo. See United States v. Piccinonna, 885 F.2d 1529, 1536-37 (11th Cir. 1989). Moreover, for the reasons discussed in detail below, the science of polygraph examination has evolved to a point where it clearly satisfies the requirements of Daubert. As Justice Potter Stewart stated, “Any rule that impedes the discovery of truth in a court of law impedes as well the doing of justice.” Hawkins v. United States, 358 U.S. 74, 81 (1958) (Stewart, J., concurring). Any effort to deprive a jury from hearing the results of Mr. Zarabozo’s polygraph examinations would run contrary to Justice Stewart’s admonition and would impede justice in this case.

Apparently Zarabozo passed two different polygraph examinations. Here are the questions from the first polygraph:

“1. While on the Joe Cool, did you shoot anyone? Answer – No.
2. Before hearing the first gunshot, had you talked with Kirby Archer
about shooting anyone on board the Joe Cool? Answer – No.
3. Before hearing the first gunshot, had you talked with Kirby Archer
about stealing the Joe Cool? Answer – No.”

And from the second:

“Q1: Regarding what you knew before that charter boat the ‘Joe Cool’ crew was killed and
the boat hijacked last September 22, 2007: Do you intend to answer truthfully each
question about that” A1: Yes.
Q2: Other than what you now know: At any time before the crew members of the Joe
Cool were shot: For any reason did you really know that was going to happen? A2:
No.
Q3: When you said that before the shooting occurred on that boat the Joe Cool; that the
only reason you were on board, was to travel to Bimini and participate in pre-planned
security job with Kirby Archer, did you lie about that? A3: No.
Q4: When you said that you expected to participate in a future CIA assignment with
Kirby Archer either in Cuba or Venezuela after the Bimini security job was done: Did
you lie about that? A4: No.
Q5: When you said that you brought your handgun for use on the Bimini security job and
that it was never intended to be used by you or Kirby Archer to hijack that boat the
Joe Cool: Did you lie about that? A5: No.”

"Prosecutors say jailhouse snitches won't be called to testify in Joe Cool case"

That's the headline from Vanessa Blum's article discussing the government's filing today. It makes sense not to call these guys, who would just muddy the case up for the government. Smart move.

From Blum's article:

Two jailhouse snitches who say they heard incriminating statements from a suspect in the Joe Cool murder-at-sea case won't be called to testify at trial, federal prosecutors stated in a motion filed Monday evening.Their announcement came after attorneys for Guillermo Zarabozo sought to have the so-called confession thrown out, claiming it violated Zarabozo's constitutional right to be represented by an attorney during questioning.U.S. District Judge Paul Huck set a hearing for Wednesday to discuss the government's filing. Huck canceled a hearing where the inmates, Antwan Hall and Daniel Noel, were expected to testify about the circumstances of their conversations with Zarabozo in Miami's Federal Detention Center.Zarabozo, 20, of Hialeah and Kirby Archer, 36, of Strawberry, Ark. are charged with murdering Joe Cool captain Jake Branam, 27; his wife, Kelley Branam, 30; his half brother, Scott Gamble, 35; and first-mate Samuel Kairy, 27 on Sept. 22.

***

But the confession posed problems for prosecutors. First, it could not be used against Archer, meaning the government would be forced to try the two defendants separately if it came in as evidence. Secondly, the inmates would have obvious credibility problems as witnesses, because they are convicted felons seeking sentence reductions.Most urgently, Zarabozo's lawyers wanted Huck to rule on claims the confession violated Zarabozo's right to counsel. In a motion filed last week, defense lawyers said prosecutors knew Hall and Noel were government snitches and intentionally placed the men next to Zarabozo to illicit a confession.Federal judges have ruled that informants who have pre-existing agreements to gather information for prosecutors may be considered government agents. That would make a jailhouse interrogation illegal unless the suspect's lawyer was present.Prosecutors disputed that was the case, saying the government had "no agreement or prearrangement" with the men to seek a confession from Zarabozo.Still, prosecutors agreed not to use the confession unless Zarabozo took the stand at trial and told a different story.The men's trial is currently set for early June but could be pushed back if the government opts to seek the death penalty.

Joe Cool defendant wants to keep supposed statement out

Looks like the Joe Cool case is starting to heat up again...

At a status today, Judge Huck set a hearing on Guillermo Zarabozo's motion to exclude his supposed statement to a jailhouse snitch for next Wed. Here is the intro to Jay Weaver's article:

A Hialeah man charged with another man in the slayings last year of four Miami Beach charter boat crew members is trying to have his alleged ''confession'' to a jailhouse snitch tossed out before trial this summer.
Guillermo Zarabozo has asked a federal judge to suppress testimony by the government's jail ''informant,'' who claims Zarabozo confessed in custody that his co-defendant fatally shot the victims aboard the Joe Cool at sea last fall.
Zarabozo allegedly told the informant in the Federal Detention Center that Kirby Archer, a fugitive from Arkansas, used Zarabozo's gun to shoot the four after Archer argued with the boat captain about taking the vessel to Cuba.
A hearing on Zarabozo's new motion, filed by attorney William Matthewman, is set for Wednesday before U.S. District Judge Paul Huck.
The lawyer claims Zarabozo's right to counsel under the Sixth Amendment would be violated if the informant -- Antwan Hall, a felon serving 30 months for possession of a firearm -- is allowed to testify for the prosecution at trial on June 23.
''All that matters is whether the government informant deliberately used his position to secure incriminating information from . . . [Zarabozo] when counsel was not present,'' according to the motion.
Matthewman said Hall's cellmate, Daniel Noel, also convicted on firearm charges and serving 24 months, might be used as a witness to corroborate Hall's testimony.