Did George Zimmerman commit a federal crime?

There is quite a debate about whether Zimmerman can be charged federally for killing Trayvon Martin.  Zimmerman was not a police officer or acting under color of law, so there is no federal jurisdiction there.  And the shooting did not occur on federal land and the victim was not a federal officer, so nothing there.  But, there is one statute that may apply: 18 U.S.C. 249, Hate Crime Acts, which was just enacted in 2009.  That statute provides:

(a) In General.— (1) Offenses involving actual or perceived race, color, religion, or national origin.— Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—

(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if—

(i) death results from the offense; or

(ii) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

In other words, if Zimmerman killed Martin because of his race, then he can be prosecuted under this section. 

There haven't been too many prosecutions under Section 249.  The internet reveals these two cases:

In May 2011, a man in Arkansas pled guilty under the Act to running a car containing five Hispanic men off the road. As a result, he became the first person ever convicted under the Act. A second man involved in the same incident was later convicted under the Act but has asked for a new trial.


In August 2011, one man in New Mexico pled guilty to branding a swastika into the arm of a developmentally disabled man of Navajo descent. A second man entered a guilty plea to conspiracy to commit a federal hate crime. The two men were accused of branding the victim, shaving a swastika into his head, and writing the words "white power" and the acronym "KKK" on his body. A third man in June 2011, entered a guilty plea to conspiracy to commit a federal hate crime. All three men were charged under the Act in December of 2010.

 These cases seem much clearer cut than Zimmerman's for a federal prosecution.  I'm not a prosecutor, but it seems to me that the Stand Your Ground defense would be much easier to get over for the State than attempting to prove intent under the Hate Crimes Act.  Based on the 911 call and the other publicly known facts, I'm not sure how this is a Stand Your Ground case...

There have been two local Stand Your Ground/Self Defense cases in the news recently.  The Herald covered this one yesterday and the O'Donnells just got a hung jury in Key West on this case where a young man stabbed someone during Fantasy Fest. 

Okay, you guys are probably ready for me to get back to Paris Hilton....

Pictures from Friday's event

SFL posted some of my amateur cell phone pictures over at his blog, but Judge Scott Silverman took some great shots:

Okay, Judge Silverman didn't take the Paris Hilton/Lindsay Lohan picture, but both panels discussed them. See what you missed.

Three-week-old news

It seems that some important findings and conclusions came out while D.O.M.—who has been indefatigable with his exhaustive coverage of Paris Hilton—was out of town. This oversight needs immediate and painstaking correction.

You will doubtlessly recall that the receiver to a film company claims Paris breached a contract by failing to promote the film Pledge This!. Last year, The Chief, applying New York law, held that the receiver was not entitled to reliance damages, i.e., the $8.3 million spent making the movie. (Seems like a lot for a film that The Chief noted was “hardly destined for critical acclaim.” {I hope that doesn’t mean he had to watch it.}) Nonetheless, the receiver might be entitled to some of the $1 million paid to Paris if she has been unjustly enriched. (Not in general—Paris Hilton is obviously unjustly enriched, if anyone is—but with regard to this project.)

So, the receiver had an expert go through a bunch of Paris Hilton’s contracts to figure out what it costs to have her, say, show up at a party and do some “non-meaningful speaking” and what it costs to have her attempt the other kind of speaking. Paris’ lawyers argued, apparently seriously, that this method “fails to value the benefit the producers received from Ms. Hilton’s acting services.” Notwithstanding, about three weeks ago, The Chief decided that Paris failed to deliver $160,000 worth of meaningful speaking.

The next step is for the parties to figure out whether the work Paris did—including her dramatic rendering of protagonist Victoria English, leader of “the most popular and exclusive sorority” at South Beach University—was worth more than $840,000. How could it not be? Briefs are due on October 15, 2010. So, expect a report from D.O.M. on that.

Let's hit it -- 2010

Okay, we're back -- Happy New Year!

Batteries charged and all that. Ready for twenty-ten. Not ready for the traffic after the holiday weekend...

Last year we had Ben Kuehne, Scott Rothstein, and of course, Paris Hilton. Who will we have in 2010?

Lots of end-of-year blogging:

The White Collar Blog has some fun end of year posts here and here. The bloggers are really looking forward to seeing what the Supreme Court will do with the honest services cases coming up. More on that from me later.
Even the Chief Justice got into the act with this end-of-year report. Here's the intro:

Chief Justice Warren Burger began the tradition of a yearly report on the federal judiciary in 1970, in remarks he presented to the American Bar Association. He instituted that practice to discuss the problems that federal courts face in administering justice. In the past few years, I have adhered to the tradition that Chief Justice Burger initiated and have provided my perspective on the most critical needs of the judiciary. Many of those needs remain to be addressed. This year, however, when the political branches are faced with so many difficult issues, and when so many of our fellow citizens have been touched by hardship, the public might welcome a year-end report limited to what is essential: The courts are operating soundly, and the nation’s dedicated federal judges are conscientiously discharging their duties. I am privileged and honored to be in a position to thank the judges and court staff throughout the land for their devoted service to the cause of justice. Best wishes in the New Year.

While we're on the Supremes, there's more on Scalia's obsession with the (non)word "choate" from the NYT magazine here.

Why does choate get under Scalia’s skin? Bryan A. Garner, who wrote “Making Your Case: The Art of Persuading Judges” with Scalia, told me the justice is “disgusted” by the term’s faulty etymological basis. As Garner himself puts it in his Dictionary of Modern Legal Usage, choate is “a misbegotten word,” since the in- of inchoate is not in fact a negative prefix. Its root, the Latin verb incohare, meaning “to begin, start out,” originated in the metaphor of hitching up a plow, derived from in- (on) and cohum (strap fastened to a yoke).
Stripping the in- from inchoate is known as back-formation, the same process that has given us words like peeve (from peevish), surveil (from surveillance) and enthuse (from enthusiasm). There’s a long linguistic tradition of removing parts of words that look like prefixes and suffixes to come up with “roots” that weren’t there to begin with. Some back-formations work better than others. Unlike Scalia’s improbable analogy of changing insult into sult, back-forming choate is an understandable maneuver for anyone who isn’t a Latin scholar, given that inchoate is in the same semantic ballpark as words that really do have a negative in- prefix, like incoherent and incomplete.
By ruling from the bench on what is and isn’t a word, Scalia is following in the footsteps of his former colleague William Rehnquist, who once interrupted the argument of a lawyer who dared to use the nonstandard word irregardless. “I feel bound to inform you that there is no word in the English language irregardless,” Rehnquist said. “The word is regardless.”

Our previous coverage here.

What would a 2009 roundup be without another story of prosecutorial misconduct, which led to dismissal of the Blackwater case:

The judge, Ricardo M. Urbina of the District's federal court, found that prosecutors and agents had improperly used statements that the guards provided to the State Department in the hours and days after the shooting. The statements had been given with the understanding that they would not be used against the guards in court, the judge found, and federal prosecutors should not have used them to help guide their investigation. Urbina said other Justice Department lawyers had warned the prosecutors to tread carefully around the incriminating statements.
"In their zeal to bring charges," Urbina wrote in a 90-page opinion, "prosecutors and investigators aggressively sought out statements in the immediate aftermath of the shooting and in the subsequent investigation. In so doing, the government's trial team repeatedly disregarded the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the trial team" on such matters.

As for me, well, I came in second in the blog fantasy league, losing in the finals to RichRodisCuban (by a measly 5 points). Congrats on a good year. Here are the final results:

League Champion
RichRodisCuban
2nd
SDFLA Blog
3rd
de la Fins
4th
Steel City Crackers
5th
SouthFloridaLawyers
6th
Male Bondage


Over the break, I watched the great movie -- American President. Here's "the speech," which I could watch again and again:




Also saw Avatar, which was unbelievable. I gave it an A.

That's hot -- Paris wins again...

...this time in the Court of Appeals (the 9th Circuit -- here's the opinion). From Reuters:

The celebrity and heiress Paris Hilton may pursue her lawsuit against Hallmark Cards over its use of her picture and catchphrase "That's hot" on a greeting card, a federal appeals court ruled on Monday.
Hilton had contended that Hallmark violated her privacy and right of publicity by ripping off a scene from her reality TV show "The Simple Life" on a birthday card captioned "Paris's First Day as a Waitress."
A three-judge panel of the U.S. 9th Circuit Court of Appeals rejected Hallmark's argument that its depiction of the Hilton Hotels heiress was protected speech as a matter of law.
It sent the case back to a lower court, which had turned aside Hilton's claim of trademark infringement but rejected other Hallmark defenses.

Paris is now 2-0 in federal court... That's huge:



Hat tip: my commentors and WSJ Law Blog.

Order in Paris Hilton case

Judge Moreno ruled in Paris Hilton's favor on Monday (background here) -- she does not have to pay $8.3 million even though her film “Pledge This!’’ bombed. From Judge Moreno's order: “The court finds compelling evidence in the record that ‘Pledge This!’ lost money because the film’s inexperienced producers hastily cobbled together a wholly inadequate marketing plan.’’

But Judge Moreno's best case forever isn't over. He wants further briefing (and potentially a further hearing) on the issue of whether she has to repay any part of her $1 million compensation. Yay, more Paris Hilton in federal court.

Great piece on the Chief

John Pacenti covers Judge Moreno here

From the intro:

When socialite Paris Hilton came to town for a civil trial, she was upstaged by none other than Chief U.S. District Judge Federico Moreno.

Pragmatic, smart and funny, the Miami jurist stopped seasoned attorneys who were litigating the question of whether Hilton adequately promoted her film box office bomb "Pledge This!," to ask incisive questions. Since it was a bench trial, Moreno was serving as a jury of one and had no need for rote legal arguments.

Despite his good humor, Moreno is a stickler for proper courtroom decorum. He gently chastised an out-of-town attorney representing Hilton repeatedly for failing to stand up when addressing him. He prompted an out-of-town attorney in another case to borrow a tie before speaking at the courtroom lectern. Given the judge's jocularity and ready smile, the attorney asked if he was kidding.

The judge wasn't.

Moreno said his insistence on decorum is based on respect for the institution.

"I think a federal courthouse, or any courthouse for that matter, is a secular temple," he said. "We dress in robes because it's a secular temple. People dress in suits, and I think people behave better when they are dressed better."

More on JNC picks

Between Paris Hilton and the JNC posts, the blog has been on fire lately. Thanks to everyone for stopping by. I have been stuck in trial the last two weeks (if you are in the courthouse, come by Judge Jordan's courtroom and say hello), so I apologize for the slower than usual posts. John Pacenti over at the DBR has been covering the JNC process. Here's a nice article about what's going to happen now:

What happens next? Not all 20 members of the region’s Judicial Nominating Commission are sure. Some members thought that traditionally Florida’s U.S. senators — Democrat Bill Nelson and Republican Mel Martinez — would pick just one name for each position to forward to the White House. But that’s not the case. The rules state that if the senators voice no reservations, all of the JNC’s picks will be forwarded to President Obama so he can narrow the field to one selection for each office.. “As long as Sen. Nelson has been in office, it’s been that way,” said Matt Nosanchuk, Nelson’s legislative counsel in Washington. ... The commission process itself is ever-evolving. “The process has changed back and forth over the years,” said Guy Lewis, who served as an acting U.S. Attorney based in Miami. “It’s almost like making a sausage. I used to love Tennessee Pride Sausage, but I’d never want to know what goes into making it.”

Gotta love Guy. I guess he's trying to keep up with his partner Mike Tein, who is the most quotable guy in the district.

We didn't get to cover the Marshal interviews, but the JNC narrowed the list to William Berger, David C. Nieland and Glen M. Wilner. Unfortunately, the current Marshal -- Christina Pharo -- withdrew her name from consideration before the interview process. Pharo was a great Marshal...

The polls are up below. Vote!

Paris Hilton update

So I still don't know who made the final 3 for U.S. Attorney. Where are you tipsters? In the meantime, here's more on Paris from Above The Law.

Best blog post forever

Paris Hilton is on the stand. And Judge Moreno is getting in on the act. In one exchange, Moreno was puzzled by the title of Hilton's current reality show, "My New BFF." "What does that mean?" he said. After Hilton gave the full title "Paris Hilton's My New Best Friend Forever" the judge remarked "This will be my best case forever." Without missing a beat, Hilton replied "You're my best judge forever."

Hat Tip: Curt Anderson

More from Curt Anderson's article:

The trial is being heard by Chief U.S. District Judge Federico Moreno, who reacted with surprise when Hilton gave him a little wave before testifying. "I've never had a witness wave at me before," the judge cracked.
At one point, Hilton was testifying about how full her schedule was during rehearsals for her next film, 2008's "The Hottie & The Nottie," when Moreno interrupted.
"Was it better than this one?" the judge said, referring to "Pledge This!".
"It was really good," Hilton answered with a giggle. Along with the heels, Hilton wore an all-black sleeveless dress tied at the back and sported diamond rings and a bracelet.

Paris Hilton to tesify Friday

She'll testify today, most likely after lunch. Here's how she looked this morning.

Don't worry; there's nothing wrong in looking, right Mr. President? (Here's Professor Althouse's take on the picture)

I heart Paris

I had another matter in the courthouse this afternoon, so I snuck over to Judge Moreno's courtroom to see the Paris Hilton trial.

I watched a bit of both opening statements. Judge Moreno was on his A-game, asking lots of questions in his engaging and witty way. He even asked a funny question about the rule against perpetuities. Another exchange -- Lawyer: I'm here to make your life easier judge. Moreno: You are failing so far. Moreno wondered out loud why the case had not settled and asked whether Paris could simply promote the movie this weekend to settle the matter.

Paris was laughing at Judge Moreno's jokes and nodding her head in agreement during much of the proceeding. She wore a black and white sleeveless dress, a black headband, and pig-tails. UPDATE -- I added a picture of her (with one of her lawyers) walking into the courthouse so you could see for yourselves.

Paris, oh Paris

The Paris Hilton trial starts tomorrow. Our prior coverage is here. I imagine it's going to be a circus (as far as circuses go in federal court; remember no tweeting or blogging!) in the Chief Judge's courtroom tomorrow. I'm hoping to get an exclusive blog interview with Paris... if I do, what questions should I ask her, my dear readers?

Here's Curt Anderson's preview of the case:

In an odd intersection of showbiz and securities fraud, proving a claim that Paris Hilton was a lousy pitchwoman would benefit investors jilted by a Ponzi scheme she had no part in.
A federal lawsuit set to go to trial Thursday against Hilton contends she didn't do enough to promote the 2006 sorority hijinks movie "Pledge This!" and seeks about $8 million in damages from Hilton and her company, Paris Hilton Entertainment Inc.
One of the main investors in the box-office bomb was once a high-flying concert and theater promoter from Miami named Jack Utsick, who was listed as one of the movie's producers. When the admittedly bad movie lost money, his now-defunct Worldwide Entertainment Group took a financial hit.
But it's not Utsick who's suing Hilton. Rather, the lawsuit stems from an effort to repay people ripped off in what federal securities investigators say was a $300 million Ponzi scheme hatched by Utsick. Hilton's work on the film had nothing to do with the scheme.
The Securities and Exchange Commission said Worldwide Entertainment was a multimillion-dollar fraud and won a civil judgment earlier this year against Utsick and several associates. A federal judge appointed attorney Michael Goldberg as receiver to collect as much money as possible for some 3,300 wronged investors.
It was Goldberg who filed the lawsuit against Hilton. He claims she failed to adequately promote the DVD release for "Pledge This!" and that she deprived the film's investors of $8.3 million in profits by not cooperating.

What about the defense:

Hilton and her attorneys claim she went the extra mile to plug the movie, which played in just 25 theaters and made only about $2.9 million worldwide, according to court documents. Hilton, 28, is expected to testify in the three-day bench trial before U.S. District Judge Federico Moreno.
In a deposition, Hilton said she did promotion events at the Cannes Film Festival in France, appeared at the movie's Chicago premiere and generally mentioned it publicly whenever possible.
"Any chance I got, any red carpet, any press, if I was doing something for another product, even if I wasn't asked about it, I would just bring it up," she said.

Quick Hits

Sorry about the slow blogging this week. It's summer and I'm swamped... What up with that?

Okay, to the news:

1. General Noriega has filed a cert petition.
2. Paris Hilton starts trial tomorrow in front of Judge Moreno. Steven Binhak and Michael Weinstein represent her.
3. UBS trial next week.
4. Federal JNC interviews for judge and U.S. atty coming up.
5. Palm Beach is moving firearms cases to federal court. (The State Attorney there says it's because the min-mans in federal court are higher than in state court. But there is no min-man for being a felon in possession of a firearm in the federal system.)
6. More on SexyLexus and White & Case.
7. There's lots of mortgage fraud.
8. Boeis tops Wells.
9. AUSA Scott Ray is leaving the office. Going away party next Thurday at Tobacco Road. Good luck to Scott.
10. The Marshals are busy.

D.O.M. canned me

Honestly, I don't know how D.O.M. does this and runs a practice. It's like being Dick Vitale and Coach K for the same game. Anyway, a week of wearing just one hat was nearly more than he could take. And this morning's little joke certainly didn't help. As soon as he saw that, my blogging was done. He was all, "You're totally out of hand," and, "You're not taking blogging seriously," and, "People depend on this," and the whole nine. I know, I know: It's like Stewart firing Colbert for being too silly, but he was pretty mad.

"Did you say you were going to apply to be U.S. Attorney?"

"I said I was thinking about—"

"And you're not going to apply, are you?"

"Of course not, but I'm pretty sure people got that."

"And did you not use my PACER account for a post about Paris Hilton?"

"Sure, but—"

"And did you not ignore all the comments from my readers?"

"Stop crossing me, D. I'm not some government agent," I said. "At least as far as you and Acosta know."

D.O.M. went slackjawed. He had the exact look that Carrie Underwood's boyfriend must have had when he saw what she did to his truck.

"What?" I said. "Too soon?"

Paris to answer questions from The Chief's witness chair?

The media are giddy over poor Paris' deposition in connection with Goldberg v. Paris Hilton Entertainment, Inc., a case pending before The Chief. Tew Cardenas represents the receiver for a local company that invested in a movie Paris was in but allegedly did not do enough to promote. Judging from some of the excerpts, I don't really know what they expected her to do. I can't even tell from her answers whether the questions that presumably instigated these were asked by her lawyers or the receiver's:

"Any chance I got, any red carpet, any press, if I was doing something for another product ... I would just bring it up, 'Oh, my new sorority film, it's going to be sexy, it's going to be really hot girls'—like I really, you know, did my best."

About her role as an executive producer:

"I'm not sure what a producer does, but—I don't know, help get cool people in the cast."

And the quote that everyone is jumping on, in response to who paid her cell phone bill:

"I don't know. I'm assuming, like, whoever pays my bills. I never ask about that stuff."

Seems like she's her own worst enemy, doesn't it? I mean, look at her—she's wearing heels on South Beach, and that hipster she's with is too self-involved to let her know that just isn't safe.

Even though this is being reported all over the Internet, only the Associated Press appears to have done original reporting, so these quotes are all we have of her deposition. But SDFla Blog doesn't just pilfer other people's news. We look into these important matters to put our own unique spin on them. (For this, we use D.O.M.'s PACER account.) Here it is:

Apparently, it's going to be a bench trial, if it comes to that. Can you just imagine what this will be like for The Chief? Or for this poor Paris creature? Incidentally, I love that The Chief denies Paris Hilton Entertainment's motion to seal certain documents with this flourish of rhetorical questions:

Many of the documents in Exhibit 1 are not financial records. For example, what is the need to file under seal the resume of CPA David Nolte, the list of his appearances in other court proceedings and his publications? Certainly those items need not be filed under seal. Also, how do the parties intend to proceed to trial and discuss the financial concepts in this case? Will it not be done in an open courtroom? If so, then why should it be sealed now?

That's basically the entire order. Classic stuff. I mean, you can almost hear his voice, can't you?

Paris in Miami

Paris Hilton has been sued in Miami federal court for not promoting a movie she was in, National Lampoon's Pledge This . The case, available here, landed before Judge Martinez. Here's the Herald article on the case. From the intro:

As if starring in the flop flick National Lampoon's PledgeThis wasn't bad enough, socialite Paris Hilton now has been sued for refusing to promote the film when it was released.
Hilton's breach of contract cost the producers of the film ''lost revenue and profits,'' according to the suit, filed in Miami federal court Tuesday.
A call to Hilton's Los Angeles attorney wasn't immediately returned.
Fort Lauderdale lawyer Michael I. Goldberg, a court-appointed receiver of the film's production company -- The Entertainment Group Fund -- filed the suit against Hilton and her company, Paris Hilton Entertainment.
The Entertainment Group Fund is an affiliate of Worldwide Entertainment Group, a one-time concert promoter that now stands accused of fleecing $300 million from investors.
Entertainment Group paid Hilton $1 million to star in Pledge This, filmed in South Florida.

This should be fun.

Maybe I'm a sucker, but...

... I feel bad for Paris Hilton.

If she wasn't a celebrity, she wouldn't be treated this way. She'd be on house arrest right now and that would be it. She probably wouldn't have even gotten the 45 day sentence in the first place (for driving with a suspended license).

I actually think the fight between the judge and the jail as to who controls release dates and other prison decisions is very interesting. Most would think that of course the judge trumps the jail, but criminal practitioners know that judges oftentimes defer to jailors and marshals even though I believe that judges would and should win if a true showdown occurred.

Here's a prior post about a judge not backing down to the jail in a case that I was involved with.