11th Circuit decides Padilla case 2-1

Here is the opinion .

Judge Dubina writes the majority, which Judge Pryor joins, affirming the conviction and reversing Jose Padilla's 17 year sentence as too low. Judge Barkett dissents on both the conviction and sentencing holdings. In total, there are 120 pages of opinions. This case seems destined for Supreme Court review.

More to follow...

"We have conduct that shocks the conscience."

That was Chief Assistant Federal Defender Michael Caruso (who should be the next PD after Kathy Williams becomes a judge) at the Jose Padilla oral argument in Atlanta discussing the treatment of his client at the Navy brig:

Convicted terrorism plotter Jose Padilla's attorneys asked an appeals court on Tuesday to throw out his conviction, arguing that he was the victim of "outrageous governmental conduct."

Padilla gained notoriety when he was accused in 2002 of plotting to blow up a radioactive "dirty bomb," though those claims were eventually dropped. He was later convicted along with two others in an unrelated terrorism plot.

Padilla's lawyer told the 11th Circuit Court of Appeals that his client should have been granted an evidentiary hearing before the 2007 trial that would have proved he was being mistreated by the government.

***
In court filings and during arguments Tuesday, Padilla's attorney Michael Caruso contended there should have been an evidentiary hearing before the trial that would have proven he is the victim of "outrageous governmental conduct." He said his client was mistreated and tortured on a Navy brig, charges that federal officials have repeatedly denied.

"There can be no dispute that we have that here - extremely prolonged isolation, psychological and physical abuse, prolonged interrogation," said Caruso. "We have conduct that shocks the conscience."

It will be interesting to see what the Court does on this very sensitive case...

In other news:

SFLawyer covers the Federal Bar lunch here.

The Florida Bar is investigating a number of RRA lawyers (via Miami Herald).

And Scott Rothstein was before Judge Cohn today explaining that because he has known his lawyer Marc Nurik for 30 years (Nurik later said this was an exaggeration), he didn't think there could be a conflict:

Also, prosecutors said that Nurik could have exculpatory information since he worked with Rothstein.

But Rothstein told Cohn that he has no reservations about keeping Nurik as his attorney.

``I believe in his loyalty,'' Rothstein said.

When Cohn asked Rothstein if Nurik may attempt to protect other employees at the firm who prosecutors said may have criminal culpability, Rothstein said:

``I've known Mr. Nurik for 30 years, Judge. I don't believe that is a possibility for him.''

After the hearing, Nurik said that 30 years was an exaggeration -- he said he met Rothstein when he was a student in his trial advocacy class at Nova Southeastern University law school.

Jose Padilla case to be argued in the 11th Circuit this week

And SDFLAers, you won't be able to watch it unless you are in Atlanta tomorrow.

The DBR previews the argument here. Both sides have appealed -- the defense has appealed the conviction and the government has appealed the sentence. Should be interesting to see what the court is focused on during the oral argument.

Here's the intro to the DBR story:

Expect the specter of Osama bin Laden and the torture of detainees to be raised Tuesday during oral arguments in the appeals by reputed dirty bomber Jose Padilla and two co-defendants convicted of sponsoring terrorism abroad. The arguments come just a few weeks after the failed Christmas Day attempt by a Nigerian man linked to the terrorist group al Qaeda to blow up an American airliner. Foremost among the issues before a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta is a decision by the trial judge to allow jurors to see a videotape of al Qaeda leader bin Laden. Attorneys for Padilla, Adham Hassoun and Kifah Jayyousi say the trial was forever tainted when the videotape was played because it linked the defendants to the worst terrorist attack on U.S. soil even though they were charged with other crimes. “The error in the admission of the bin Laden video arose out of tying the architect of the horrific attacks of September 11, 2001, to a case that, as to all defendants, involved conduct which predated these attacks,” Padilla’s attorney, Assistant U.S. Federal Defender Michael Caruso, argues in his brief.

Justice Stevens to retire?

We're a little late on this story, but it's starting to get a lot of traction, so here goes... It looks like Justice Stevens might be on the retirement track as indicated by his lack of hiring law clerks. From the NY Times:

Justice David H. Souter’s failure to hire clerks this spring accurately signaled his decision to step down. On Wednesday, the court confirmed that Justice John Paul Stevens, who is 89, has hired only one clerk, instead of the usual four, for the term starting in October 2010. That ignited speculation that Justice Stevens may be planning to step down next summer.
Or it could merely mean that he is keeping his options open. There is, of course, nothing to prevent Justice Stevens from hiring additional clerks later on. The newest member of the court, Justice Sonia Sotomayor, hired four clerks in short order after her confirmation last month.
The alternative is to hire clerks now for a job that might evaporate later, something Justice Stevens would not do lightly, people who know him said.
“Justice Stevens is a man who cares deeply about treating people with respect,” said Christopher L. Eisgruber, the provost of Princeton University, the author of “The Next Justice: Repairing the Supreme Court Appointment Process” and a former clerk to Justice Stevens.

If Stevens does retire, maybe we'll finally get a Floridian to the Supreme Court... Those will be huge shoes to fill.

In other news, the Padilla oral argument will take place on November 17 in Atlanta.

Have a nice long holiday weekend. Sorry for the short post today.

Sentencing question

So will the Liberty City 7 6 5 get more or less time than Jose Padilla? Remember that Judge Cooke sentenced Padilla to 17 years and his co-defendants to less time. (The over-under line was 20 years). Certainly the Liberty City defendants will be citing to Padilla's case and arguing that they should get way less time. We'll set the over-under in this case at 17 years, the same sentence that Padilla received, for the lead defendant. What do you all think the appropriate sentences are now that they have been convicted?

Ben Kuehne receives award

The Florida Association of Criminal Defense Lawyers-Miami Chapter had its annual banquet Saturday night. Of note for this blog, Ben Kuehne received the lifetime achievement award (which the group decided to give him after he was charged, not before as was reported in the NLJ and WSJ blog -- I know this because I was at the meeting where we unanimously agreed on the award). Ben spoke eloquently after he was introduced by Hank Coxe, former president of the Florida Bar.

The Jose Padilla defense team was also given awards. They were introduced by Kathy Williams, who gave a wonderful and fiery talk. Michael Caruso's speech was well done; he spoke about how important it was to have an independent judiciary and he applauded Judge Cooke for upholding her role in this respect.

On the state side, Steve Leifman received the judicial distinction award. He does such good and important work for the mentally ill. His award was well-deserving.

In addition to the awards, it's always fun to people watch at these things.... All in all, a fun night.

UPDATE -- apparently the WSJ blogger was there.

Uma

I'm always fascinated by reports on deliberations. In the recent high-profile trial of the Uma Thurman stalker, a Wall Street Journal reporter was on the jury. Here is her description of the trial and deliberations.

In local news, Jose Padilla co-defendant isn't happy with the jail he's been assigned to. From Curt Anderson's article:

A man convicted along with one-time "dirty bomb" suspect Jose Padilla of supporting al-Qaida wants a federal judge to block the government from sending him to a prison unit where his telephone calls, mail and visitors would be closely monitored.
A lawyer for Kifah Wael Jayyousi, 46, claims that the Communications Management Unit at the federal prison in Terre Haute, Indiana, amounts to "cruel and unusual punishment" and that his inclusion in that unit is discriminatory because it is based partly on his Muslim faith and Arab ethnicity.
Jayyousi is "due to be transferred at any time to this unlawful place of confinement, where he will suffer irreparable harm," attorney William Swor said in court documents filed this week.
Bureau of Prisons spokeswoman Traci Billingsley said Thursday that Jayyousi's religion or ethnicity have nothing to do with the designation at the unit that currently houses 46 inmates. Having all the inmates in one unit ensures that no communication is slipped out by a prisoner not subject to the restrictions.
"They are placed in the unit because their communications need to be closely monitored," Billingsley said.

U.S. District Judge Marcia Cooke, who presided over the trial last year of Padilla, Jayyousi and Adham Amin Hassoun, issued an order Tuesday temporarily preventing the U.S. Bureau of Prisons from transferring Jayyousi from Miami. Cooke scheduled a hearing May 22 on the matter.

Jose Padilla to the Supermax

Jose Padilla was transferred today to Florence, Colorado -- commonly known as the Supermax -- to serve his 17 year sentence.  

News and Notes

1. Sailfish sentences net jail (via AP).

2. Gov't appeal of Padilla sentence covered by Herald.

3. Haitian "slave" testifies (via Sun-Sentinel).

4. YouTube taunter pleads guilty (via Sun-Sentinel).

Let's get ready to rumble!

The government filed its notice of cross-appeal in the Jose Padilla case.

"Thank goodness for courts and judges who know the Constitution and follow the law."

That's the concluding sentence from a glowing editorial about Judge Cooke's handling of the Padilla sentencing. Here's more:

The punishment that Jose Padilla and two codefendants will get for conspiring with Islamic jihadists is both measured and fair. U.S. District Court Judge Marcia G. Cooke could have given Padilla a life sentence, but instead sentenced him to 17 years and four months in prison. That is less time than prosecutors asked for and more than defense lawyers hoped for -- but it is entirely commensurate with the crimes for which the three men were convicted.
This judgment and trial have been good illustrations of how the U.S. justice system should work: an impartial and fair assessment of the facts and evidence, followed by a correct apportionment of punishment, or if the case warrants, relief for the defendants.

And Vanessa Blum describes the jail where Padilla will likely serve this time. Certainly no cake walk:

Within the super-maximum security federal prison in Florence, Colo., rumors tell of a unit for terrorists called "Bombers Row." If it exists — and the Bureau of Prisons isn't telling — that is where Jose Padilla, the man once dubbed the "dirty bomber," will likely serve his 17-year prison term alongside many of the country's most notorious and dangerous criminals. The fortress-like facility outside Colorado Springs, formally ADX Florence, is known to prison experts as the "Alcatraz of the Rockies" and to its roughly 500 inmates as "The Tombs."
ADX is government shorthand for Administrative Maximum U.S. Penitentiary. Lawyers for Padilla use a simpler moniker to describe his possible jail: "hell."

And here's Curt Anderson on the chances of a government appeal:

U.S. prosecutors face steep legal hurdles if they appeal the prison terms imposed on Jose Padilla and two other men convicted of terrorism conspiracy and material support charges because of the broad powers federal judges enjoy in deciding sentences.Only a few years ago, judges were required to more closely follow federal sentencing guidelines and deviations were difficult. But with its 2005 U.S. vs. Booker decision, the U.S. Supreme Court began a series of rulings handing judges far more discretion to vary sentences based on individual circumstances.It was this authority that U.S. District Judge Marcia Cooke relied upon Tuesday when she rejected a sentencing guideline range of between 30 years and life for Padilla and his two co-defendants, settling instead on much lesser prison terms for all three. Prosecutors had argued for life.

And finally, here's Jay Weaver on Padilla's mom's reaction:

After Tuesday's sentencings, Padilla's mother, Estela Ortega-Lebron, shouted ''Praise the Lord'' and ''Hallelujah'' as she left the courthouse.
Ortega-Lebron, who lives in Plantation and attended most of the three-month trial, said the judge's decision not to give Padilla life was proof that her son was not a terrorist.
''He's not a terrorist,'' she said. ``He's not an enemy combatant. He's not al Qaeda or the Taliban. He's a human being.''
Ortega-Lebron, who called the government's treatment of her son ''insane,'' said he has suffered psychologically from his time in isolation in the military brig and in federal detention. ''Mentally, he won't be like me and you,'' she said.

Padilla defendants convicted because of "Obama bin Laden"

That's according to the Daily Business Review today. The entire quote:

"Their attorneys blames their conviction on the numerous times prosecutors used al Qaeda and its leader Obama bin Laden in trial. Cooke also allowed jurors to see a videotape of Obama bin Laden."

WHOOPS!

UPDATE -- on reflection, I'm sorry I posted this. The article is actually very good and has some interesting points and quotes. We all make typos and mistakes. It was mean of me to point it out.

Thoughts on Padilla sentencing

• Many news outlets are referring to the 17 year sentence as "lenient." Since when did 17 years become a lenient sentence? Think about where you were 17 years ago.

• Some commenters are wondering why Padilla's sentence was the longest of the three defendants when his role was arguably the least serious. Answer: He had the worst criminal history. He is a career offender under the sentencing guidelines, while the other two defendants are not.

• Will Padilla get credit for time he served in the naval brig?

• Will the government appeal the sentences? They would very likely lose after the recent Supreme Court cases, Gall and Kimbrough, which gave very wide latitude to district judges in sentencing defendants. If they know they will likely lose, will they still appeal just to make a point?

• Thank goodness for the Supreme Court's Apprendi line of cases. It lets judges judge again at sentencing.

Jose Padilla sentenced

Judge Marcia Cooke sentenced Jose Padilla to just over 17 years today. Co-defendant Adham Amin Hassoun received 15 years and eight months, and Kifah Wael Jayyousi, received 12 years and eight months.

The sentences mark huge victories for the defense because the advisory sentencing guideline range calculated by the judge was 30 years to life, and the government was asking for life.

Judge Cooke explained: “There is no evidence that these defendants personally, killed maimed or kidnapped.” She also said that she could consider Padilla's harsh treatment in the brig, over government objection.

With good time, Padilla will be released in about 12 years. Assistant U.S. Attorney John Shipley objected to the sentences, calling them unreasonable. It will be interesting to see whether the government appeals the sentences after Gall and Kimbrough, the recent Supreme Court cases which give district courts very wide latitude in sentencing.

The over-under wasn't too far off, I guess.

UPDATE -- a number of people have emailed me asking about Judge Marcia Cooke. Here is original post I wrote about her when the case was first assigned to her division. I think she has demonstrated her independence and courage. Here is what I said about her back then in November 2005:

Perhaps DOJ looked at Judge Cooke's resume and saw that she was a Bush appointee and a former AUSA and thought that she would be a push-over for the feds. Froomkin (who I doubt has ever appeared before her) goes so far as to say "the government should not expect a hostile bench." If this is what the government thought, it is dead wrong. Judge Cooke -- to put it in Chief Justice Roberts' words -- calls a strike a strike and a ball a ball, and will not be pushed around by the government. She is known in this community as a fair judge who listens carefully to both sides and calls it right down the middle. She is well liked by criminal defense attorneys and prosecutors alike.

Big SDFLA day

Judge Cooke will impose sentence this morning in the Padilla case. The CSM asks the following question:

Can a suspected future terrorist receive the same harsh punishment meted out against actual terrorists who were personally involved in planning or carrying out genuine bombings, assassinations, and kidnappings?

The article then tracks some of Michael Caruso's arguments:

In a hearing on Friday, Padilla's lawyer, Acting Federal Public Defender Michael Caruso, argued that there is no comparison between his client's conduct and the conduct of convicted terrorists currently serving sentences of life in prison.
•Richard Reid attempted to detonate a shoe bomb on a crowded commercial airliner over the Atlantic Ocean in December 2001.
•Zacarias Moussaoui admitted to infiltrating the US to serve in a second wave of Al Qaeda attacks similar to the massive 9/11 terrorist attacks.
•Ramzi Yousef planned the 1993 World Trade Center bombing that killed six and injured at least 1,000 and was the mastermind of a foiled 1995 plot to assassinate the pope and simultaneously bomb 11 airliners carrying 4,000 passengers.
•Wadi El-Hage helped plan the 1998 bombing of US embassies in Kenya and Tanzania that killed 224 and injured 4,500.

Professor Berman at his sentencing blog is covering the case here.

And the retrial of another big case starts up today, but I can't comment on it.

360 to Life

That's the guideline range for Jose Padilla and his two co-defendants as calculated by Judge Cooke. Now the Judge will hear arguments from the lawyers as to what the appropriate sentence is under 3553. In other words, the Judge must determine what sentence is sufficient but not greater than necessary. The guideline range is just one of many factors for the Court to consider and the Supreme Court has said that the guideline range is not entitled to any deference. Should be interesting...

"Life or less? Padilla to learn his fate"

Jay Weaver wonders here what will happen to Jose Padilla. The intro to the article:

By week's end, Jose Padilla, a seemingly lost soul who drifted from gang member to Islamic convert to terrorist recruit, will learn whether he spends the rest of his life behind bars.
The decision is likely to hinge on a federal judge's interpretation of a strict sentencing provision of criminal law dealing with terrorism.
Last week, U.S. District Judge Marcia Cooke listened patiently to endless hours of defense argument during a marathon-like sentencing hearing that the former Broward County resident and two co-defendants committed no specific acts to aid extremists in ''violent jihad'' against foreign governments. A jury last summer convicted each on charges of conspiring to commit murder in holy wars and providing ''material support'' to that end.
''Where is the evidence?'' Padilla's attorney, Michael Caruso, declared at one point.

Padilla sentencing to continue next week...

Still no sentence for Jose Padilla and his co-defendants. Apparently, sparks are flying (via CSM). And more here from the Sun-Sentinel.

Is there anything more stressful for litigants and judges than sentencing hearings? I'm sure everyone will be relieved when this is over.

Minor roles or leaders or something else?

Apparently, that's one of the big fights at the Jose Padilla sentencing (for all three co-defendants). From the AP:

Prosecutors say the three defendants were part of a conspiracy involving armed conflicts over decades in places like Kosovo, Afghanistan, Somalia and Chechnya and involving tens of thousands of people. Hassoun was depicted as a recruiter, Jayyousi as a financier and propagandist and Padilla as a recruit for al-Qaida.
"The charged conspiracy is exceedingly broad," said Padilla attorney Michael Caruso. "You have to concede that Mr. Padilla played a minimal role."
But prosecutor Russell Killinger said Padilla is "a trained al-Qaida killer" who was recruited to attend an al-Qaida training camp. He called Padilla's bid for a lenient sentence "astonishing."
"He's an instrument of the scheme itself," Killinger said.

The defendant's role in the offense will have an impact on the guideline level and will also impact Judge Cooke's ultimate sentencing decision....

Poor Judge Cooke...

She has to deal with a lot of sentencing objections in Jose Padilla's case (via the AP).