Judge Zloch sentences Alan Mendelsohn to 4 years (UPDATED)

The prosecutors had asked for 2 years and Mendelsohn's lawyers asked for probation.

From the Herald:

“Most notably, the corruption in this case strikes at the heart of the Florida Legislature,’’ Zloch said. “Dr. Mendelsohn actually facilitated a corrupt democratic process in the Florida Legislature.’’
***
Zloch expressed disgust over the “pay to play" world of Tallahassee politics that Mendelsohn described at his plea hearing in December.

Mendelsohn, initially indicted in September 2009 on 32 fraud charges and later on five tax offenses, had been facing trial in January.

His plea was the ending to a high-profile influence-peddling investigation that stretched from South Florida to Tallahassee. It started when the self-made power broker bragged about his purported connections to then-Gov. Charlie Crist and his inner circle, saying he could get them to kill legislation and investigations that would hurt a Fort Lauderdale viatical insurance business called Mutual Benefits Corp.

UPDATE -- I've mentioned previously that I don't think judges should be permitted to sentence someone above the plea agreement's terms (see, e.g., here, here and here). If the parties in an adversary system agreed that the defendant in this case deserved somewhere between probation and 2 years, a judge should respect that contract or allow the parties to withdraw from it.

It doesn't appear that DOJ really fought for the terms of the agreement. From Curt Anderson's article:

"He isn't accepting responsibility when he says, 'Everybody was doing it,'" Butler said. "That's just not going to cut it."

More from Zloch:

"It is totally inappropriate for the court to give what would amount to a slap on the wrist," Zloch said. "The corruption of public officials, those who took an oath to uphold the law, leads to contempt for the law."
***

Mendelsohn himself apologized profusely, but also said he was proud of health-related state legislation he said he pushed for and noted that since his 2009 indictment "words just can't describe the devastation" suffered by his family and business.

"Who was responsible for this devastation?" Zloch asked.

"I was," Mendelsohn replied. "I am really, really, really, truly sorry."

Lots going on

Thanks to all my peeps for sending lots of tips the last couple of days. There's lots going on:

1. Judge Zloch is in the news. From not letting Bradley Birkenfeld -- the UBS informant -- push off his surrender date to spanking Loring Spolter. The 60 Minutes gambit by Birkenfeld didn't pay off, I guess. As for Spolter, I'm surprised he's getting as much sympathy as he is: check out Bob Norman's blog here.

2. In the wake of a tough year for DOJ, there are new discovery guidelines for prosecutors. Here are the 3 new memos that criminal practitioners on both sides of the aisle will be reading today:

Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group

Requirement for Office Discovery Policies in Criminal Matters

Guidance for Prosecutors Regarding Criminal Discovery

Tom Withers covers the memos here. A snippet from his summary:

The Guidance Memo then directs that the discovery review should cover the following: 1) the investigative agency’s files, 2) Confidential Informant/Witness/Source files, 3) Evidence and Information Gathered During the Investigation, 4) Documents or Evidence Gathered by Civil Attorneys and/or Regulatory Agencies in Parallel Civil Investigations, 5) Substantive Case Related Communications, 6) Potential Giglio Information Relating to Law Enforcement Witnesses, 7) Potential Giglio Information Relating to Non-Law Enforcement Witnesses and Fed.R.Evid. 806 Declarants, 8) Information Obtained in Witness Interviews, a) Witness Statement Variations and the Duty to Disclose, b) Trial Preparation Meetings With Witnesses and c) Agent Notes.
The Guidance Memo then directs that although prosecutors may delegate the process of review to others, they “should not delegate the disclosure determination itself.”

3. Lots of coverage on the shootings from Las Vegas. Just terrible stuff. Here's the video that is making the internet rounds:



And here's Brian Tannebaum's take:

Today at every federal courthouse security will be a little tighter. People will get a second look, maybe a third. There is no correlation between what happened in Las Vegas yesterday and federal court anywhere else. People get angry at the grocery store, at the post office, and at work. But it's like when someone with a shoe bomb tries to blow up a plane, well, you know the rest.We (those who go to court) all have to deal with what happened yesterday. It will happen again, we all know that. But because we cannot stop a sick, angry litigant from sneaking in with a gun, a shotgun, we have to at least pretend we can. The gunman was dressed in black. Watch "no black" be the next addition to the dress code. We can only sigh and understand that this is the world in which we live.It angers me that today I have to mourn the death of a Court Security Officer, a retired cop now one of the guys in blue jackets that waive familiar lawyers through, and say "how you doin' today counsel?". A guy who just "went to work" right after the new year, and left the courthouse dead. Five seconds before he was probably talking to a prosecutor, defense lawyer, or fellow security officer about his New Year's vacation. or the weekend's football games.Pisses me off.


4. Random thought of the day: Why does Blogger say that internet is misspelled?

James Hendrick resentenced to probation

Our prior coverage of the case is here. You remember this one -- the 11th Circuit reversed Judge Highsmith's sentence of probation for James Hendrick, "once Monroe County's powerful government attorney." Well, he was resentenced today before Judge Zloch (because Highsmith retired) and got probation, again. From the Herald article:

U.S. District Judge William Zloch gave Hendrick credit for time already served on probation. That leaves two years and seven months of probation -- nine months of which must be spent under house arrest at Hendrick's home in Key West.
Hendrick had faced up to two-plus years in prison after a federal appeals court upheld his convictions in April but threw out his five-year probationary sentence, saying the punishment wasn't tough enough to fit the crime.
A three-judge panel of the 11th U.S. Circuit Court of Appeals, siding with the government, said Hendrick's sentence was ``unreasonable.'' The court in Atlanta sent the case back to South Florida for resentencing.
But Friday, Zloch essentially adopted the sentence of the trial judge in the case, retired U.S. District Judge Shelby Highsmith -- with the house arrest added on. Zloch also imposed a $50,000 fine and 1,500 hours of community service.
Hendrick, whose hearing was attended by dozens of relatives and supporters, said he was ``relieved'' by the judge's sentence.
``I did wrong, and I should pay for it,'' he told The Miami Herald. ``The currency I should pay with is community service.''
Prosecutor Christopher Clark said the U.S. Attorney's Office will consider whether to appeal.

I'd be surprised if the government appealed again. Judge Zloch went through all of the 3553 factors, so an appeal will be almost impossible for the government. And the appellate analysis from the 11th Circuit didn't rule out the same sentence. In fact, the 11th didn't say much of anything:

The government cross-appeals Hendrick’s below-guidelines sentence. After carefully reviewing the record and considering the arguments that the parties briefed and orally argued, we agree with the government that the sentence is both procedurally and substantively unreasonable. We accordingly vacate it and remand for resentencing.

Enjoy your weekend.

Judge Zloch strikes back

Remember Loring Spolter's wild claims that there was a conspiracy with Judge Zloch and the clerk's office? Well, the DBR reports that it didn't go so well for Mr. Spolter:

District Court Judge William Zloch is considering suspending a Fort Lauderdale employment attorney from practicing in South Florida federal courts for criticizing him in an interview with the Daily Business Review. Fort Lauderdale lawyer Loring Spolter said the former chief judge allows his religious and conservative views to color his decisions. He also commissioned a statistical analysis that Spolter said showed it was impossible for so many of his cases to be randomly assigned to Zloch, only to be dismissed. Cases are assigned in the Southern District through a somewhat weighted wheel system that takes into account where cases are filed and where the action occurred.

***

Zloch asked U.S. Magistrate Judge Robin Rosenbaum to review the matter and make recommendations. She issued a 96-page report July 10, finding Spolter’s accusations were specious after taking testimony on case assignments from Steven Larimore, the district’s clerk of court. “Although a lawyer should be lauded for having the courage to take a stand against any truly biased activity on the part of a court, Mr. Spolter’s actions do not fall into that category,” Rosenbaum wrote. “These statements exceed the bounds of properly raising grounds for recusal or disqualification and instead constitute a personal attack on the presiding judge.” Zloch adopted Rosenbaum’s findings and held a hearing Aug. 20 on whether to sanction Spolter for filing the motions in bad faith. Zloch repeatedly invoked the interview with DBR in the hearing, a transcript shows. “I would like to know how the federal judiciary, the Southern District, gets back its good name after that article,” the judge said. Zloch said he is considering suspending Spolter from practicing in South Florida federal courts for five years. He also is considering a fine, court costs and referring Spolter to The Florida Bar for discipline. The judge told Spolter he could mitigate the sanctions if the lawyer bought a full-page, court-approved advertisement in the Review apologizing for his previous position.

Things that struck me about from the article, which is worth reading in its entirety:

• 96 pages? That's a long R&R! Judge Marcus would be proud of his former clerk.
• What happens if the DBR gives Spolter the ad for free?
• Why can't Spolter keep his mouth shut? (From the article: Zloch said Spolter’s statistical expert recanted his position at Rosenbaum’s hearing. The statistician had said it was nearly impossible for Spolter’s cases to randomly end up with Zloch only to be dismissed. That’s when Spolter stood up and said the judge was wrong. “The expert just called me up last week and spoke to me about this case again, and he said to me that he stood by his testimony,” Spolter said. Zloch retorted to Reinhardt, “He apparently still maintains his position.”) Painful. SFLawyers has a funny post about this.
• Is Judge Zloch the right judge to be deciding the sanctions? Or should some other judge do it?
• Should lawyers be permitted to criticize judges without fear of being reprimanded? (More from the DBR: The Spolter case raises the issue of the free speech rights of attorneys who criticize a sitting judge. Last year, The Florida Bar reprimanded Fort Lauderdale attorney Sean Conway for calling Broward Circuit Judge Cheryl Aleman an “evil, unfair witch” in a blog post that appeared around Halloween 2006. Conway maintained his statements were protected opinions but stipulated to the Bar’s disciplinary decision.)
  
  

Loring Spolter does not like Judge Zloch

And he has alleged a conspiracy involving the clerk to have his cases assigned to Zloch. Yikes.

Here is the study that Spolter relies on to say the assignments aren't random. It's been a while since I took statistics, but the sample size here (Spolter has had 15 cases from 2006-2009) does not seem to be all that significant. Only 5 of those cases were assigned to Judge Zloch.

Anyway, from today's DBR:

Two years ago, Fort Lauderdale employment lawyer Loring Spolter accused U.S. District Judge William Zloch of allowing his conservative political and religious views to color his decisions on the bench. Spolter failed to get Zloch to remove himself from a case centering on overtime pay against SunTrust Bank. But this time the attorney is brandishing a new weapon: statistics. Spolter has filed motions for reconsideration in three cases, asking Zloch to recuse himself because evidence shows Spolter’s cases are predestined to end up before the former chief judge. He said he has suspicions the clerk’s office may be funneling his cases to Zloch.

So what's up with the study:

Judges are randomly assigned cases by computer in what is generally referred to as “the wheel.” Spolter hired Florida Atlantic University professor Dragan Radulovic to look at his case assignments in South Florida over the last 15 years and said “with 99.9 percent certainty the mechanism responsible for judges’ distributions was not random blind assignment.” But there appears to be a problem with the study. Spolter insists the 24 sitting judges are assigned at random throughout a district that stretches from Key West to Fort Pierce. But the current chief judge says it is much more complicated. A tiered system is used that gives weight geographically to where the case is filed as well as how heavy a judge’s docket is at the time, said U.S. District Court Judge Federico Moreno, who took over the chief judge position from Zloch in 2007. For instance, a case filed in Fort Lauderdale would circulate at random among the three judges and one senior judge there. If their case load is heavy, the new case would then be directed to either West Palm Beach or Miami. Zloch is one of the judges who sits in Fort Lauderdale, where Spolter filed all of his cases. Senior judges also take a smaller portion of cases available, and there are special provisions for Fort Pierce, Key West and death penalty cases. For instance, Senior U.S. District Court Judge Donald Middlebrooks, who sits in West Palm Beach, takes a number of Miami cases.

Gotta love the chief:

All in all, the wheel is more akin to a logarithm than a game of roulette. “It’s not like the Wheel of Fortune,” Moreno said.

Pacenti's article goes on about the wheel and how cases are assigned. It's worth a read.

Google Mistrial

The NY Times has an article about the mistrial in Judge Zloch's courtroom last week after jurors did internet research:

Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.
Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, wasting eight weeks of work by federal prosecutors and defense lawyers.
“We were stunned,” said the defense lawyer, Peter Raben, who was told by the jury that he was on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”
It might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.

Anything judges can do to make sure jurors don't hop on the internet, or is this going to happen in every case?

Props to Judge Zloch

The Green Bag (a journal dedicated to "good writing about the law") announced its annual list of outstanding legal writing for the past year. A order from the Southern District was noted as recommended reading. See In re Beck, 526 F.Supp.2d 1291 (S.D. Fla 2007) (written by Judge Zloch). Here is a link to the order and a link to the list of honorees. We wrote about another Judge Zloch order last week that caught our attention.

Busy!

Each one of these items probably deserves its own post, but I've fallen behind on interesting stories and am going to include them all here in one post. Thanks to all the tipsters and commenters who have been sending me juicy items.

1. The jury is still out in the night vision goggle case. The prosecution gave a 90 minute closing today and Sharhazad Gholikhan gave a 90 minute closing in her own defense. The jury went out around lunchtime and were discharged for the day at 5pm. Vanessa Blum has the details here. Some of my favorite lines from her closing: She said her only crime was a "conspiracy of marriage." She explained she came to the U.S. voluntarily because she was innocent: "I came. Why? Because I'm clean."

2. No COLA increase for federal judges. Tony Mauro at BLT writes it up here. (HT: Captain). “Wrong time. Wrong place,” Sen. Claire McCaskill, (D-Mo.) exclaimed on the Senate floor Dec. 11. “We have families all over this nation that are scared today, that aren’t buying Christmas presents. Federal judges get lifetime appointments and they never take a dime’s cut in pay. They die with the same salary they have today.” To counter: Federal judges are the only federal employees who will begin 2009 without a COLA. James Duff, director of the Administrative Office of the U.S. Courts, acknowledged that these are “challenging times” for the economy, but he added in a statement, “That is no reason for Congress to treat federal judges differently than all other federal employees, including members of Congress.” Our prior coverage on this subject is here.

3. Judge Zloch wrote an 82-page blockbuster order finding the Sex Offender and Registration Act (SORNA), which is part of the Adam Walsh Act, unconstitutional. Here's the Order. It's worth a read. It's hard to summarize such a lengthy opinion here, but it basically says that the Act violates the commerce clause because there is no link with registration and commerce. Here's the conclusion:

While providing Congress with the power to regulate sex
offenders in the manner attempted by SORNA would admittedly aid
Congress in its goal to protect the public, it is not has not among
Congress’s enumerated powers. Congress has never been accorded the
general police power it has sought to exercise in SORNA. See
Lopez, 514 U.S. 596-98 (Thomas, J., concurring); Cohens v.
Virginia, 19 U.S. (6 Wheat.) at 426. Cases are legion that note
that the federal government does not have the residual power held
by the states. E.g., Lopez, 514 U.S. at 584-602 (Thomas, J.,
concurring).
With statutes like those at issue here, Congress’s desire to
aid in the protection of society against sexual predators is
understandable and laudable. However, “the powers of the
legislature are defined, and limited; and that those limits may not
be mistaken, or forgotten, the constitution is written.” Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 175 (1803). Specifically, the
grant of power made under the Commerce Clause is limited. Lopez,
514 U.S. at 552-553 (citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) at
189-95). Therefore, the statutes challenged herein cannot be
upheld. Section 16913 transgresses entirely the limits set on

Congress by the Commerce Clause. It cannot be defended except by
adulteration of the text of the Constitution and controlling
caselaw. Section 2250 also exceeds that grant of power made to
Congress under the Commerce Clause. It is in no way a regulation
of persons in interstate commerce but an exertion of a general
police power through an illusory and impermissible jurisdictional
nexus. Thus, the Court declares that § 16913 is unconstitutional
in that Congress lacks the power to enact the same under the
Commerce Clause. Because an unconstitutional law is no law at all,
Defendant Edward Myers shall go hence without day.

And for you grammar nerds, check out footnote one of the opinion:

Many courts and commentators, especially in the passages
quoted herein, render the possessive of “Congress” as “Congress’.”
For clarity as to the number of congresses being referred to and
staying faithful to the traditional rules of grammar, the Court
will employ the natural construction “Congress’s” when referring to
the possessive singular of our national legislature. See William
Strunk, Jr. and E.B. White, The Elements of Style 1 (4th ed. 2000).

4. The Broward chapter of the Federal Bar is big time. Check out its inaugural 16-page newsletter. The most fun part is the interview with Chief Judge Moreno. His first job in college: working as a janitor at Notre Dame during summers. Favorite Movies: Rudy and Remember the Titans. Favorite Songs: Notre Dame Victory March and God Bless America. (I was sort of with you on the movies, Chief, but those are really your favorite songs?) Favorite Hobbies: Golf, Travel, and Food.

Tons of other fun stuff in the interview. Some good quotes: "When you're a judge you rule your own fiefdom, as Chief you are accountable for the whole kingdom." Courthouses should be like "secular temples" to inspire respect in the community just as cathedrals were built on a grand scale to capture the feeling of a divine presence. "I love jurors and lawyers, and the back and forth of trial and legal arguments."

5. Speaking of Judge Moreno, he sentenced Dr. Ana Alvarez-Jacinto to 30 years in prison today, 8 years more than the sentence recommended by federal prosecutors in this medicare fraud case. Jay Weaver's article is here.

RIP Frederick Zloch

Judge Zloch's father passed away Sunday. Here's a beautiful article about him by Vanessa Blum. From the intro:

Frederick J. Zloch, a longtime Little League coach and announcer at Fort Lauderdale's Lockhart Stadium, died Sunday in Fort Lauderdale. He was 87. A New York native, Mr. Zloch moved to South Florida as a teenager and graduated from Fort Lauderdale High School in 1939. He served with the U.S. Navy in the Pacific theater in World War II. After his discharge in 1945, Mr. Zloch spent more than 35 years as a letter carrier for the U.S. Postal Service. The former high school athlete became known for his involvement in youth sports, serving as a coach, umpire and referee."My dad was a great second father to a lot of the kids in Fort Lauderdale," said son Charles Zloch. Over the years, he mentored hundreds of young athletes and led his Little League team to four consecutive local championships in the early 1960s.
From 1951 to 1986, Mr. Zloch was the voice of the Flying L's, his alma mater's team. In 1960, he announced the game between St. Thomas Aquinas and the Flying L's that inaugurated Lockhart Stadium. In 2002, the city of Fort Lauderdale dedicated a baseball field at Holiday Park to Mr. Zloch. Mr. Zloch's three sons kept up the sporting tradition — all playing high school football in Broward County and later for the University of Notre Dame. Sending his boys to Notre Dame was Mr. Zloch's dream, said youngest son James Zloch: "If you know Fred Zloch, you know how much he loved Notre Dame."

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.''

"Federal Judge Accused of Religious Bias"

The federal judge referred to in the headline for this DBR article (which is going to be published Monday) is William Zloch:

Fort Lauderdale, Fla., attorney Loring Spolter is accusing U.S. District Judge William Zloch of bias in two employment discrimination cases, citing his deep religious beliefs, and wants the judge removed from the cases.

In a 110-page motion for recusal filed last month, Spolter cited Zloch's hiring of several law clerks from Ave Maria Law School, a donation to the Roman Catholic school and his attendance at several junkets for judges sponsored by conservative organizations.

I've had trials and a number of contested hearings in front of the former Chief Judge and have always found him to be fair and impartial. Definitely a no-nonsense judge, which is good. I think he lets both sides try their case. No complaints here...

To cite where a judge hires law clerks is just ridiculous. This motion will go nowhere.

New Chief Judge

Congrats to Judge Moreno on becoming Chief Judge of the Southern District of Florida. And a big thank you to Judge Zloch for his service over the past 7 years. It's not an easy position and it's mostly thankless. Here's the district's press release about the change. Any thoughts as to how the district will change with the new chief?

PRESS RELEASE

Judge Federico A. Moreno Succeeds Judge William J. Zloch
as Chief United States District Judge for the Southern District of Florida

Effective July 1, 2007, Federico A. Moreno succeeds William J. Zloch as Chief United States District Judge for the Southern District of Florida. Judge Zloch, appointed to the District Court in November 1985, became Chief Judge on July 1, 2000 and was eligible to serve for seven years as Chief Judge. He concluded his seven-year term as Chief Judge on June 30, 2007. Judge Moreno, appointed to the District Court in July 1990, is the next judge in order of seniority eligible to assume the duties of Chief Judge. The duties of the District’s Chief Judge are listed at 3.00.00 of the Southern District of Florida’s Internal Operating Procedures available under “Rules” on the Court’s internet site: http://www.flsd.uscourts.gov/.

The Southern District of Florida spans eight South Florida counties with a total population estimated at over 6.3 million residents. The District is among the busiest federal trial court jurisdictions in the country and is served by 18 active district judges, five senior district judges, 18 magistrate judges, and about 550 employees. The Court conducts sessions in Key West, Miami, Fort Lauderdale, West Palm Beach, and Fort Pierce.

Chief Judge Moreno’s chambers are located in the James Lawrence King Federal Justice Building, 99 NE Fourth Street, Miami, Florida.

Contact:
Clarence Maddox, Court Administrator
United States District Court
301 N. Miami Avenue
Room 321
Miami, Florida 33128

ADDED: Isn't it nice that we don't have any chief controversies. Check out Rumpole and JAABlog for the craziness in Broward Circuit Court!

"This strategy of ‘shaking down’ defendants with nightmarishly expensive litigation in pursuit of attorney fees must not be rewarded.”

All sorts of fun stuff in the Review this morning, including an article about attorney's fees. That quote above is from Judge Moreno from a 2003 case and the article discusses a recent Judge Zloch case where a six figure fee was requested in a relatively minor case.

The cover story is also interesting -- it's about Judge Middlebrooks ruling on trade dress infringement in the energy drink world. Everyone wants small 8 ounce bottles with vertical lettering, but that's not enough for an infringement case: "The notion that a company can appropriate a standard 8-ounce bottle, utilize vertical lettering of its product name, and preclude competitors from using that bottle with their own lettering . . . seems to be nothing but a thinly veiled effort to stifle legitimate competition." Attorney fees in that case to American Body Building (to be paid by Vital Pharmaceuticals --VPX) of $360,000.

If energy drinks aren't your thing and you are more into ice cream, then read this Sun-Sentinel story about Carvel's niece wanting to dig him up to study the body for foul play.