11th Circuit affirms Liberty City 7

Here's the per curiam opinion (the panel was Judge Tjoflat, Judge Martin and a visiting judge) (the original post mistakenly said that Tjoflat wrote the opinion). From the intro:

Burson Augustin, Stanley Grant Phanor, Patrick Abraham, Rotschild
Augustine, and Narseal Batiste (collectively, “Appellants”) were all convicted of
(1) conspiracy to provide material support to a Foreign Terrorist Organization (Al
Qaeda) by agreeing to provide personnel (including themselves) to work under Al
Qaeda’s direction and control, knowing that Al Qaeda has engaged or engages in
terrorist activity, in violation of 18 U.S.C. § 2339B; and (2) conspiracy to provide
material support by agreeing to provide personnel (including themselves),
knowing and intending that they were to be used in preparation for and in carrying
out a violation of 18 U.S.C. §§ 844(f)(1) and (i), and to conceal and disguise the
nature, location, source, and ownership of such material support, all in violation of
18 U.S.C. § 2339A. Abraham and Batiste were also convicted of conspiracy to
maliciously damage and destroy by means of an explosive a building leased to an
agency of the United States (the FBI) and a building used in interstate and foreign
commerce (the Sears Tower), all in violation of 18 U.S.C. § 844(n).1 Additionally,
Batiste was convicted of conspiracy to levy war against the Government of the
United States and to oppose by force the authority thereof in violation of 18
U.S.C. § 2384.

Appellants now appeal their convictions, raising six issues. First, Batiste
and Augustine challenge the district court’s order granting in part the
government’s motion to strike portions of the indictment as surplusage. Second,
Augustin, Phanor, and Augustine each challenge the sufficiency of the evidence
supporting their convictions. Third, Augustin argues that the government’s
involvement in the criminal scheme was outrageous and therefore violated the Due
Process Clause of the Fifth Amendment. Fourth, Batiste and Abraham challenge
several of the district court’s evidentiary rulings relating to the admissibility of lay and expert testimony. Fifth, Batiste argues that limitations on his cross examination of witnesses resulted in cumulative error requiring a new trial. Sixth, all of the appellants challenge the district court’s dismissal of a juror for refusing to follow the court’s instructions on the law. After careful review of the record and the parties’ briefs, and after having had the benefit of oral argument, we
affirm.

11th Circuit considers Liberty City Seven

Jay Weaver has the details about this interesting issue:

The judge’s removal of a woman from the federal jury in one of the nation’s most controversial terrorism trials dominated oral arguments Tuesday, in the appeal of five Miami men convicted of conspiring to aid al-Qaida.

The unidentified woman, known only as Juror No. 4, was dismissed by U.S. District Judge Joan Lenard after deliberating for nearly three days in late April 2009 because the other 11 jurors said she refused to discuss the fate of the remaining defendants in a group originally dubbed the “Liberty City Seven.’’

The ruling led to the juror’s replacement by an alternate juror, a man, and the eventual conviction of the five defendants on material-support conspiracy charges. One other defendant was acquitted.

The removal of Juror No. 4 from the 12-person panel carried great consequences.

Had she been allowed to hold out as the minority juror, prompting a third mistrial in the controversial case, the five defendants could have walked out of the courtroom free, because the U.S. attorney’s office had already said it wouldn’t try them a fourth time.

Defense lawyers said Tuesday that Lenard made a major error about Juror No. 4 that should compel the 11th U.S. Circuit Court of Appeals to throw out the convictions and order a new trial. A decision could take months.

Juror No. 4 “goes in there and makes up her mind,” said attorney Ana Jhones, who represented the ringleader in the Liberty City group. “Does that mean she’s not deliberating? There is evidence that Juror No. 4 was, in fact, deliberating.”

She also said the woman was intimidated by the foreman in the jury room.

But a prosecutor with the U.S. attorney’s office disagreed.

Assistant U.S. Attorney Jonathan Colan said Juror No. 4 indicated to a courtroom deputy even before the start of deliberations that she didn’t want to discuss the evidence. She just wanted to express her opinion.

“Every other juror [questioned by the judge] gave consistent testimony that she turned her back and wouldn’t follow the law,” Colan said.

The convictions of the five men followed two earlier mistrials, which had resulted in the acquittal of one other defendant.

Racial issues come up during jury selection in Liberty City trial

The defense is arguing that the prosecutors are striking all the African-American jurors. The prosecution is arguing that the defense is striking all the Hispanic males. Both sides are giving race-neutral reasons for their strikes. Judge Lenard has halted jury selection and has asked for briefs by Tuesday.

News and Notes

1. Liberty City 6, part 3, starts today. (via Herald)

2. The Cuban Spies are petitioning for cert and have brought in super Supreme Court lawyer, Tom Goldstein (of ScotusBlog fame). They are also trying to work out a political resolution to the case. (via Herald)

3. John Pacenti at the DBR covers the Mutual Benefits lawyers who were indicted.

4. The Congressional delegation from South Florida is being sworn in at the new courthouse this morning. Here's a picture of Ileana Ros-Lehtinen from the proceedings.

This and that

Whew -- thankfully, I was able to see the inauguration before my Broward hearing this afternoon. Unbelievable! Even the Broward judge and prosecutor seemed to be in good moods today.

In that vein, we will post the positive article about Alex Acosta, by Julie Kay, not the negative one being discussed by commenters and another blog.

Here's the intro:

When he was named U.S. attorney for the Southern District of Florida, one of the largest and busiest districts in the country with 284 assistant U.S. attorneys, in July 2005, the question on many local lawyers' minds was, "Who is Alex Acosta?"A former assistant attorney general in the Justice Department's civil rights division and staunch conservative who clerked for Justice Samuel A. Alito Jr. and served as president of the Federalist Society at Harvard Law School, Acosta, just 36, had little criminal trial experience and was unknown in Miami legal circles.But the Miami native has earned the respect of many in the South Florida legal community for his hard line on health care fraud, his prosecution of a whopping 13 public officials for corruption — including seven Palm Beach County commissioners and four Hollywood police officers — and his open-door policy with defense lawyers, agents, journalists and members of the community.As a Democratic administration prepares to take office — and he prepares his exit strategy — Acosta, now 40, talked to The National Law Journal about his accomplishments during the last 3 1/2 years, what he has learned on the job and what the future holds.

Some of the questions Julie Kay posed:

NLJ: You've been U.S. attorney of one of the largest, busiest and most prominent districts in the country since 2005. What have been your proudest accomplishments and biggest disappointments?

AA: The job of U.S. attorney is the best job that any attorney can have. The U.S. attorney has the ability to have a direct impact on his or her district. Some of the issues I've chosen to focus on are public corruption, healthcare fraud and more recently mortgage fraud. I believe I have left a lasting impact not only on South Florida but on the issues themselves.Public corruption is of the utmost importance. The fact that the largest law enforcement agency in the state has changed the way business has been done in the region is the most important legacy I'm leaving. Health care fraud is not something I fully understood and was disgusted by when I got here. We have now prosecuted $1.5 billion in health care fraud. This is not victimless crime. That is incredibly significant. To have that kind of impact is gratifying.As far as frustrations, public corruption cases are very important and I'm proud of the fact that we've done them right. In each of the cases, we've brought the charges with overwhelming evidence that resulted in guilty pleas of the officials. This is very important because when a public official gets up and says, "I did this, I broke the law," it sends a message, more than a long, protracted litigation. The flip side of this is [that] public corruption cases take time, and what is most frustrating is seeing and knowing the evidence we have but waiting until our cases are ready. Some people feel these cases are put together in weeks or months, and you can't do that, you have to be thorough. That is frustrating to the community — the fact that you want things to move quickly and they don't. I said in my press conference in Palm Beach, I wish I could say this is the final prosecution, but I fear it is not. There are matters that require additional work.

***

NLJ: Human rights groups like the Center for Justice and Accountability and Human Rights Watch have issued statements commending federal prosecutors for bringing the case. Have you gotten any other reaction and do you think this case will set a precedent?

AA: Human rights groups support it. We've also gotten reaction from victims in Liberia. They never thought that Chuckie Taylor Jr. could be brought to justice. They thought he was above reproach. They realize now that in fact these types of cases can be brought. I think it will set a precedent around the country and other cases will be brought.

NLJ: That was a successful case. A case that has not been as successful has the Liberty Seven/Liberty Six case. That case — in which seven Miami men were charged with scheming to blow up the Sears Tower in Chicago — has been criticized by the press and other groups as far-reaching: that these men were Al Queda wannabes and didn't have the ability to pull anything off. One man was dismissed at trial and the rest were subject to hung juries twice.You're retrying the case for the third time, starting this month. Why, and do you regret bringing this case?

AA: Every case we have brought has been based on the evidence, and as prosecutors we have to review the evidence and if we believe it's worth bringing, we do so. It's a pending trial so I can't comment. There have been matters that have hung twice and been retried in this office. It does happen. But as I've said before, this will be the third and final time.

Wow, no more retrials. Interesting. I think two mistrials are enough and the case shouldn't be tried a third time. But it is noteworthy that he is saying in advance that it won't be tried again. Jury selection starts this week.... Stay tuned.

Monday morning...

Wanna know why our justice system is totally screwed up -- look here. That's the Herald article explaining that Lyglenson Lemorin , the only Liberty City 7 defendant who was acquitted, has just been ordered deported. So to review -- the other defendants are out on bond waiting for their third trial, while Lemorin -- WHO WAS FOUND NOT GUILTY -- is stuck in an immigration jail waiting to be deported because an immigration judge found that he did the same things for which a jury said no.

Here is the Herald article:

A year after being acquitted on terrorism conspiracy charges in the Liberty City 7 case, a Haitian-born Miami man has been ordered deported by an immigration judge.
Lyglenson Lemorin won acquittal on criminal charges last December after persuading a federal jury that he was only marginally involved in the so-called Liberty City 7, a band of devotees of an inner-city religious group the government contends conspired to blow up the Sears Tower in Chicago and Miami's FBI building in 2006.
Lemorin fled with his family to Atlanta to get away from the group's leaders.
But Kenneth Hurwitz, an immigration judge at the Krome Avenue detention center who conducted a weeklong removal hearing in August, concluded in a 135-page ruling received by Lemorin's attorneys Friday that the Haitian native, a legal U.S. resident, did provide ''material support'' to a group he knew had plans for attacks.
The standard of proof is lower in immigration court, which is not a fully independent tribunal but part of the U.S. Department of Justice.
The material support Hurwitz cites: Lemorin's work for group leader Narseal Batiste's stucco business. His ruling concedes Lemorin did not participate in the main activities the group undertook in furthering alleged plans for attacks -- including surveillance photos and videos of potential targets or the alleged ''kidnapping'' of a pair of government informants who infiltrated the group.
But Hurwitz said Lemorin's knowledge of the surveillance, along with his pledging a contested ''oath'' to al Qaeda administered by one of the informants, was sufficient to classify him as a terrorist supporter, even though the judge concluded Lemorin was ''technically'' not a member or supporter of al Qaeda.
Lemorin testified he did not understand the oath and believed Batiste was, in the judge's words, ''talking crap'' about attacks to draw money from the FBI informants.
But, Hurwitz wrote, ``It does not matter if he believed that the organization was not going to commit terrorist acts. The court also does not believe that he did not understand what he was doing when he took an oath to support an organization that has forcibly opposed the United States.''
It's unlikely that Lemorin -- who has been held in immigration detention since his acquittal -- will be deported anytime soon.
His Atlanta attorney, Charles Kuck, said he will argue to Hurwitz that Lemorin should be allowed to remain in the United States because he could be tortured or mistreated if returned to Haiti. Kuck said he will appeal Hurwitz's decision if necessary.
That could take months. In the meantime, he expects Lemorin, who is being held in rural Georgia, to remain in detention and separated from his children and his ill wife, who are in Miami.
Four of Lemorin's co-defendants are free on bond following two mistrials. Batiste and the other five defendants are set for a third trial in January.

Someone explain to me how this is just.

In related news, Joel DeFabio was a finalist for most effective criminal justice lawyer in 2008 for his representation of Lemorin in the criminal trial. The most effective lawyers were Stephen Carlton, John Kastrenakes and Antonia Barnes for their prosecution of Palm Beach politicians. Other finalists were: Richard Lubin, Michael Metz, Douglas Hartman & Bruce Reinhart (for their successful health care fraud defense); and Ken Swartz, Marc Seitles & Steve Amster (for their successul drug trafficking and money laundering defense). Congrats to all of the winners and finalists for great results, especially my office-mate Marc, but how doesn't DeFabio win this one hands down? The other winners & finalists are here.

And finally while we are on the Review, John Pacenti covers Judge Peter Fay's speech from the Bench & Bar conference. He covers the portion dealing with judicial pay and Fay explains that district judges should get a raise from $169,000 to $342,000. I agree that $169K is way too low. First year associates in New York make more. So dear readers -- what are your thoughts? How much should district judges be making?

Liberty City 6 on the web

Just got an email about MobLogic.Tv which has this video about the Liberty City 6 and this post titled, "Thought Police":

Liberty City to be tried a third time

Trial to be set for the Fall.

Here are the minutes from today's hearing:

Government announced they will proceed with a third trial. Deft. Herrera’s motion for bond is granted; $50k ps co-signed by father; deft Abraham’s moton for bond is denied; Prebish’s m/withdraw granted, the Court to appoint counel w/in 2/3 days, further status set for 4/30/08 @8:30am. Trial expected to start sometime in the fall.

UPDATE -- from Vanessa Blum's article:

"We've worked very hard this past week reviewing everything in this case and considering it very, very seriously," said prosecutor Richard Gregorie. "The United States has decided it's necessary to proceed, your honor, one more time."U.S. District Judge Joan Lenard set a hearing for next week to decide on a new trial date. She said she would likely schedule the trial for late 2008.Acknowledging that two juries have been unable to resolve the case, Gregorie said the U.S. Attorney's Office would agree to the release of four defendants on bond.
Prosecutors oppose bond for the group's purported ringleader Narseal Batiste, 34, and Patrick Abraham, 28, who is an illegal U.S. resident.

Weekend reading

1. Ben Kuehne. The feds decided to drop the obstruction count, but added a wire fraud count:

Federal prosecutors have added and subtracted charges in the money-laundering indictment brought against prominent Miami attorney Ben Kuehne and two others.
In a superseding indictment filed Friday, the Justice Department added a wire-fraud conspiracy count but dropped an obstruction of justice charge.

2. Trials. in 2007, the SDFLA had 155 trials, more than any other district, followed by SDNY (108), MDFL (108), SDTX(106) and WDTX(105). In fact, we had more trials than the entire 1st Circuit, and almost as many as the 3rd and 10th Circuits.

3. Libery City 7. Vanessa Blum examines why the government is having so much trouble in this case -- perhaps it was because they arrested too early:

The failure of federal prosecutors to convict any members of an alleged South Florida terror cell after two trials highlights the obstacles in a legal strategy of arresting terror suspects before they strike.That approach, known as preemption, has been the Justice Department's mandate since the attacks of Sept. 11, 2001, drove home the potentially lethal consequences of not acting soon enough to stop terrorism.But moving too quickly may have doomed the so-called Liberty City 7 case by leaving prosecutors without sufficient evidence to back up their sensational allegations that the men wanted to launch a ground war against the U.S. government.Violent rhetoric caught on tape from the group's leader and a grainy video of the defendants swearing an oath of allegiance to al-Qaida have not been enough to convince jurors the men were conspiring to join forces with the terror group and not, as defense lawyers argued, simply playing along in a scheme for money.

4. There is a white collar seminar in the Middle District coming up with some impressive speakers.

Judge Martinez speaks at the Federal Bar Association today

As expected, he was entertaining and the turnout to see him speak was great.

Apparently, the judges have been delayed moving into the new building because GSA forgot to order them the audio-visual equipment. This is not even funny anymore!

The buzz at the luncheon, of course, was whether the feds would retry the Liberty City group.

Liberty City mistrial

The Liberty City jury hung for a second time today. Judge Lenard will have a hearing next Wednesday to find out if the government will proceed a third time and if so, when that trial will be rescheduled. Lots of coverage from all the regulars.

I will re-post my questions from an earlier entry:

Well then SDFLA readers, should the government retry the case for a third time?

Don't two mistrials demonstrate that the government has a proof problem? [edited to get rid of the double negatives referenced in the comments]. When do we reach that point? After 5 hung juries? 10? I think 2 is the number....

What about bond? If there is a mistrial, and the government decides to proceed a third time, certainly the remaining six should receive bond. Pretrial detention for defendants who haven't been convicted after two trials can't be right.

The court appointed lawyers must be sweating. One of these long CJA trials is enough to cripple a practice, but two back-to-back is almost impossible to come back from. If a third trial were to start up right away, I'm not sure how these lawyers could keep their private practices up and running...

I also feel terrible for the prosecutors trying the case. Their lives have been turned upside by the many months in back-to-back trials. And the decision to retry the case isn't theirs. The decision most likely isn't even being made here in Miami. It probably is being made by some lawyer in DC who won't have to endure 3 trials.

My prediction is that despite all of the above, the case will be tried a third time.

Finally, I feel for Judge Lenard. Can you imagine having to sit through the same lengthy trial 3 times. Shoot me now!

Allen charged

The Liberty City jury sent another note that they were hung. Judge Lenard gave the dynamite charge, called the "Allen" charge. Here is the coverage of the Allen charge from the first trial.

Here is the text of the pattern 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.

Liberty City thoughts

Let's assume this trial ends in a mistrial, like the trial before it did.

Well then SDFLA readers, should the government retry the case for a third time?

Don't two mistrials demonstrate that the government has a proof problem? [edited to get rid of the double negatives referenced in the comments]. When do we reach that point? After 5 hung juries? 10? I think 2 is the number....

What about bond? If there is a mistrial, and the government decides to proceed a third time, certainly the remaining six should receive bond. Pretrial detention for defendants who haven't been convicted after two trials can't be right.

The court appointed lawyers must be sweating. One of these long CJA trials is enough to cripple a practice, but two back-to-back is almost impossible to come back from. If a third trial were to start up right away, I'm not sure how these lawyers could keep their private practices up and running...

I also feel terrible for the prosecutors trying the case. Their lives have been turned upside by the many months in back-to-back trials. And the decision to retry the case isn't theirs. The decision most likely isn't even being made here in Miami. It probably is being made by some lawyer in DC who won't have to endure 3 trials.

My prediction is that despite all of the above, if there is a hung jury, the case will be tried a third time.

Liberty City jury deadlocked?

The jury sent a note saying they were deadlocked today. Judge Lenard ordered them to keep trying...

Interesting state case

Rumpole has been covering an interesting state case about how far our drug laws really reach. In closing argument, the defense lawyer argued (via Miami Herald):

''The only thing that is clear in this case is that the government is completely abusing its power in applying the law to my client,'' Morris told the jury, to the objection of the prosecution. Circuit Judge Jacqueline Hogan Scola told the jury to disregard the comment.

I love trials and evidence questions -- so I put this to you, my loyal blog readers: is this argument objectionable? Should the objection have been sustained? By my asking the question, I'm sure you know my opinion...

BTW, still no news on Liberty City. This jury has been out longer than LB7. Would the govt try it a third time?

"Is it against the law to swear an oath to al-Qaida, agreeing to abide by the directives of al-Qaida?"

That was the fascinating question that the Liberty City 6 jury asked Judge Lenard today.

Curt Anderson from the AP has more here.

Unsurprisingly, the government said that the Court should answer the question Yes, while the defense said No.

According to Anderson: "U.S. District Judge Joan Lenard answered with her own note telling jurors to carefully read her instructions in the case, particularly those describing material support to a foreign terrorist organization." *** "This is a determination for them to make," Lenard said outside the jury's presence. "They may see it as providing material support or they may not."

This is not an easy one -- In a pure vacuum, it's obviously not a crime to swear an oath to al-Qaida. The question is whether it's a crime in this case -- did the defendants have the requisite intent to offer material support for a terrorist organization? In that sense, the oath can be viewed as evidence.... So I think Judge Lenard's answer was the appropriate one, although probably not altogether satisfying to either party or to the jurors.

Trials...

The Liberty City 7 (six) case is winding down. Closing arguments started today. Coverage from the usual suspects here, here and here.

Can you imagine if this case hangs again (as the first set of jurors suggested after they couldn't reach a verdict). Would the government try it again? Should they?

As for Ben Kuehne's trial, it's set for Jan 2009.

Liberty City 7 -- prosecution rests

That happened yesterday.

Opening statements in Liberty City 6 case

Here's a nice article by the AP's Curt Anderson summarizing today's openings. Here's some of the back and forth:

Ana M. Jhones, an attorney for alleged ringleader Narseal Batiste, told the new, racially mixed jury of seven men and five women that the FBI agents and prosecutors sought to build a case at any cost against the men from Miami's impoverished Liberty City neighborhood.

"This was about desperation - desperation to justify something that never happened," Jhones said in her opening statement. "We have a fabrication, a setup, of six young black men from Liberty City."

Prosecutors, however, said the FBI was right to aggressively follow tips that the group was discussing the overthrow of the U.S. government through the bombings and forming alliances with Islamic extremist groups. Although the men never obtained any weapons or explosives to carry out any attacks, prosecutors said the crime was in their agreement to do so.

"They had the will, they had the heart, they had the soul to do harm to this country," said Assistant U.S. Attorney Jacqueline Arango. "All they needed was assistance, and al-Qaida was that ticket."

The picture at the upper left is from the Herald article. Pictured are:

Jury picked in Liberty City case

Openings to begin Friday.