Lawyers heart adverbs

The WSJ has a whole article about the love affair:

No part of speech has had to put up with so much adversity as the adverb. The grammatical equivalent of cheap cologne or trans fat, the adverb is supposed to be used sparingly, if at all, to modify verbs, adjectives or other adverbs. As Stephen King succinctly put it: “The adverb is not your friend.”
Not everybody, however, looks askance at the part of speech. Indeed, there is at least one place where the adverb not only flourishes but wields power—the American legal system.
Adverbs in recent years have taken on an increasingly important—and often contentious—role in courthouses. Their influence has spread with the help of lawmakers churning out new laws packed with them.
A U.S. appellate court, for example, this past summer wrestled with the question of whether a defendant could have “knowingly” aimed a laser pointer at a helicopter if he mistakenly assumed the beam wouldn’t reach the aircraft.
Words such as “knowingly,” “intentionally” and “recklessly,” which deal with criminal intent, pop up most frequently, but plenty of other adverbs have enjoyed the spotlight. When the U.S. Supreme Court in June recognized religious protections of closely held companies, justices pondered the significance of an adverb in a 1993 federal statute that guards against laws that “substantially burden” the exercise of religion.
“Indiscriminately” was pivotal in a federal appeals court ruling in January striking down the “net neutrality” rules adopted by the Federal Communications Commission. Preventing broadband providers from charging sites like Netflix more money for faster speeds would effectively treat them like common carriers, which are required by law to “serve the public indiscriminately,” the court said.
In a tax case from the summer, lawyers for the Internal Revenue Service defended their decision to freeze the bank accounts of a former Pennsylvania state senator, only to see their arguments founder on the word “quickly.” Tax law allows the government to immediately freeze the assets of a suspected tax cheat who “appears to be designing quickly” to hide his wealth. But the judge said there was nothing quick about the defendant’s cash and real-estate transactions, which spanned several years.
“Contrary to the ordinary view that adverbs are superfluous, law generally, and criminal law especially, emerges through its adverbs,” James M. Donovan, a legal anthropology professor at the University of Kentucky College of Law, recently wrote in a paper on the subject.
Mr. Donovan, who runs the school’s law library, said that he was immediately drawn to the subject after encountering Mr. King’s “On Writing: A Memoir of the Craft” in a faculty reading group. “His blanket dismissal of the importance of adverbs got me uncomfortable,” said Mr. Donovan, “but it took a while to articulate why.”
The number of adverb-dense disputes over how to properly construe a criminal statute has surged since the 1980s, according to a case-law search conducted by Brooklyn Law School professor Lawrence Solan, author of “The Language of Judges.” On the federal level, he said, the criminalization of white-collar and regulatory offenses in the past 30 years has been especially good for adverbs. So has a trend in courts toward painstakingly precise textual analysis, the professor said.
In point of fact, an adverb once got a hearing before the nation’s most eminent jurists.
A U.S. Supreme Court case in 2009, Flores-Figueroa v. U.S., ultimately turned on the modifying reach of the word “knowingly,” tucked into a federal statute defining the crime of aggravated identity theft.
The petitioner was a Mexican citizen arrested for giving his employer counterfeit Social Security and alien registration cards that displayed his name but other people’s identification numbers. He convincingly argued that the presence of “knowingly” in the law required the government to prove that he knew the IDs were fake.
The justices unanimously agreed with him. “As a matter of ordinary English grammar, ’knowingly’ is naturally read as applying to all the subsequently listed elements of the crime,” Justice Stephen Breyer wrote.
Bryan Garner, editor of Black’s Law Dictionary, is regarded by scholars as the dean of legal prose. He says legislators and adverbs need one another.
Statutes “have to be hyper-literal and generic,” he said. “A fiction writer might say he barreled down the street. There is no way a statute can say, ‘If you barrel your car.’ ”
Says Mr. Garner: “No legislative drafter ever says: Did I pull my readers in? That’s something Stephen King has to ask.”

Congratulations to Judge Federico Moreno

He was just appointed by the Chief Justice of the Supreme Court to serve as a member of the Executive Committee of the Judicial Conference. This is a big honor for our former chief.

Anthony Bosch tests positive for cocaine...

...and Judge Darrin Gayles revoked his bond. From Curt Anderson:

The former owner of the clinic at the center of Major League Baseball's recent performance-enhancing drug scandal had his bail revoked Monday because of recent positive tests for cocaine use.

U.S. District Judge Darrin P. Gayles ordered Anthony Bosch jailed immediately. Bosch tested positive twice in August for cocaine use, after he was released on $100,000 bail under conditions including no use of illegal drugs and random urine testing. Gayles also found Bosch wasn't regularly attending voluntary drug treatment.

"I simply have no confidence in his ability to appear as required," Gayles said at a hearing.

Prosecutors say Bosch's Coral Gables clinic, Biogenesis of America, was involved in a conspiracy to provide performance-enhancing drugs to MLB players and even high school athletes. Fourteen MLB players were suspended following the probe, including a season-long suspension this year for New York Yankees star Alex Rodriguez.

Bosch, 51, is scheduled to plead guilty next week and has been cooperating in the investigation against others who were charged, including possibly testifying in those cases. Assistant U.S. Attorney Michael "Pat" Sullivan, however, said authorities were well aware of Bosch's chronic drug problem and fondness for South Beach nightclubs.

"We knew from our investigation that Mr. Bosch was one who liked to party," Sullivan said.

Bosch attorney Guy Lewis, himself a former Miami U.S. attorney, pointed out that Bosch had not tested positive for cocaine since Aug. 18 and was doing his best to attend a drug treatment program. Lewis denied that Bosch has been frequenting nightclubs and said that he is living up to his cooperation agreement with prosecutors.

"I can tell you he's not out on South Beach," Lewis said. "The last thing he's doing is out being notorious in South Florida. He has a drug problem, though. He is addressing it."

Although Sullivan did not ask for Bosch's bail to be revoked, Gayles refused to simply place Bosch under a curfew or order more frequent urine testing. Gayles also was unmoved by Lewis' comment that Bosch was under a great deal of pressure and was the subject of death threats.

"The pressure on the defendant, I don't find a mitigating factor," the judge said. "I don't find that he's a good candidate to remain out on bond."

Look who is all new and fancy on First Monday in October

Yup, the Supreme Court of the United States is back in business and it has rolled out a new website.

The October 2014 Term starts out with an interesting argument this morning in Heien v. North Carolina, in which the Justices will consider whether a police officer’s mistake of law provides the individualized suspicion that the Fourth Amendment requires to stop a car. Here's the preview from ScotusBlog:

The Supreme Court will open the October 2014 Term on Monday morning by hearing arguments that may bring back bad memories of convoluted law school discussions: may an officer’s reasonable “mistake of law” provide reasonable suspicion to stop a car under the Fourth Amendment? The Court has previously ruled that a reasonable mistake of fact will not violate the Fourth Amendment. Although Jeff Fisher, an experienced Supreme Court litigator, has presented some formidable arguments to rule for Heien, he may face an uphill battle persuading a majority of Justices that a reasonable, but mistaken, interpretation of state law should receive different constitutional treatment.

Judge Darrin Gayles' investiture

It was a packed house:

Some other pictures:

Another monster sentence

This time it's 27 years for mortgage fraud. 27 YEARS! And that's less than the prosecutor was asking for...

From the Tampa Bay Times:

Florida developer Domenic Rabuffo was sentenced Tuesday to more than 27 years in federal prison for a North Carolina mortgage fraud scheme that bilked four major banks out of more than $50 million in loans made to dozens of Floridians who posed as straw buyers.

The Miami man, now 78, is likely to spend the rest of his life behind bars.

Since he was jailed without bail after his indictment in January, Rabuffo has been hospitalized several times and had carotid surgery to restore the flow of blood to his brain. His lawyers say he also has diabetes and a degenerative spinal disc problem that has in a wheelchair.

U.S. District Judge K. Michael Moore noted that the mortgage fraud scheme contributed to the country’s economic decline and indicated his sentence was partially designed to deter others.

Rabuffo is appealing the jury verdict that found him and several others guilty of conspiracy to commit mortgage fraud and multiple counts of bank fraud.

Rabuffo’s lawyer at sentencing Tuesday in Miami said a 60 month sentence would be appropriate.

Assistant U.S. Attorney Dwayne Williams asked for the 327 month sentence, slightly more than 27 years and at the top of the sentencing guidelines for a defendant with his record.

UPDATE -- Meantime, Scott Rothstein's ex-partner Stuart Rosenfeldt was sentenced this morning by Judge Cooke to a 33-month prison term on conspiracy conviction.

Irfan Khan Strikes Back

You remember Irfan Khan, the supposedly big terrorism case that was dismissed a few summers ago. Well, Khan is seeking revenge. From the AP:

Irfan Khan, a naturalized U.S. citizen from Pakistan with a wife and two children, worked hard to realize the American dream after arriving in this country in 1994. He held jobs in South Florida as a taxi driver, service technician and operated a limousine company. He was an avid cricket player. Then he stepped up to a California computer industry job in 2011 that promised a good living.

A short time later, Khan was indicted along with his father and brother - both Muslim imams at South Florida mosques - with conspiring to provide up to $50,000 to the Pakistani Taliban terror group. Khan spent 319 days in solitary confinement before federal prosecutors abruptly dropped all charges in June 2012.

"It was very, very hard," Khan said of his days spent praying and reading in that lonely cell.

Later, a federal judge ordered the acquittal of Khan's brother for lack of evidence, although their elderly father, Hafiz Khan, was convicted at trial and sentenced to 25 years behind bars. He's serving that time at a federal prison in North Carolina.

Now, Irfan Khan is suing the U.S. government for malicious prosecution, accusing authorities of essentially manufacturing a non-existent case against him. He is seeking potentially tens of millions of dollars in damages. A Miami federal judge refused the Justice Department's attempt to get the case dismissed, and it's headed for a June 2015 trial date.

I simply look at this as another opportunity to post one of my favorite clips:

Poll on Judge Fuller

The Daily Report is running a poll on what should happen to Judge Fuller.  Here's the poll, and here's the latest from Alyson Palmer of the DR on what's going on:

The Associated Press reported that it obtained a recording of the 911 call made by the woman, identifying herself as Kelli Fuller. According to the AP, the woman said she needed paramedics, saying, "He's beating on me. Please help me."
Fuller agreed to spend up to 24 weeks in a domestic violence intervention program and undergo an alcohol and substance abuse assessment to resolve the resulting misdemeanor battery case against him. His criminal defense lawyer has said that Fuller made no admission of guilt and that if Fuller completes the program, the case against him will be dismissed and his arrest record expunged.
Fuller said in a statement issued then that he regretted the incident, calling it embarrassing. He said he agreed to pre-trial diversion "after consulting with my family, and deciding that it was in everyone's best interests to put this incident behind us. While I regret that my decision means that the full and complete facts regarding this incident will likely not come out, I have no doubt that it is what is best for all involved."
Meanwhile, the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit has initiated an investigation into the matter. Although only Congress can remove a judge from office through the rarely-used power of impeachment, the federal courts by statute have some power to discipline their own judges.
Each federal appeals court's Judicial Council, made up of appellate and district court judges, can impose a range of punishments that include censure and asking a judge to retire voluntarily. If a Judicial Council concludes that a judge may have engaged in conduct that might constitute grounds for impeachment, the council must refer the matter to the national Judicial Conference, which in turn can send the matter to the U.S. House of Representatives for possible impeachment proceedings.