“Barr and Rosenstein likely made correct legal decision on obstruction”

That’s the title of my piece in The Hill, examining the obstruction of justice statute and recent Supreme Court cases restricting prosecutors from attempting to broadly use it. The intro:

Mueller March Madness! No new indictments, no collusion, no obstruction charges, but no obstruction exoneration either. Upsets, favorites, and Cinderellas … all depending on your political point of view.
The 4-page summary letter of the Mueller report already has been subject to copious punditry, but very little has been said about the law regarding obstruction of justice. Many will criticize the attorney general as being politically motivated for not proceeding on obstruction charges, but his letter tracked the Supreme Court’s limitations on obstruction of justice prosecutions.

In light of a long line of Supreme Court precedent that has limited various obstruction statutes, even reversing convictions, the decision has legal support. To successfully bring obstruction charges, a prosecutor would have to prove that a defendant did more than lie, get others to lie, or even destroy documents.
The special counsel “did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction.” While the report “does not conclude that the president committed a crime, it also does not exonerate him.” Instead it left “any legal conclusions … to the Attorney General to determine whether the conduct described in the report constitutes a crime.”
Attorney General William Barr, along with Deputy Attorney General Rod Rosenstein, then “concluded that the evidence developed … is not sufficient to establish that the President committed an obstruction-of-justice offense.” The reasons cited in the short letter include:

• “the President was [not] involved in an underlying crime related to Russian election interference”;

• he did not act “with corrupt intent”; and

• there was no “nexus” with the president’s conduct “to a pending or contemplated proceeding.”

Of course none of us knows yet what facts the special counsel found. And it sure sounds like there is quite a bit of evidence “on both sides.” But even assuming some really bad facts for the president, the attorney general made the cautious — and most likely the right — legal decision not to go forward based on recent Supreme Court cases on obstruction.

Please click through and read the whole thing, and give me your thoughts.

Should prosecutors be guided or unguided in their pursuit of a defendant?

Should prosecutors be “guided” or “unguided” in their pursuit of a defendant?

I thought it was interesting that Deputy Attorney General Rod Rosenstein defended Special Counsel Robert Mueller by saying he was a “guided missile.”  One criticism of a “special counsel” is that they are “guided” to investigate a particular person.  That was the criticism of Ken Starr when he was guided into the Clintons.  And that may be the criticism of Mueller, especially now that he is questioning witnesses about Stormy Daniels.

Meantime, here in Florida, what will happen with the Florida Supreme Court if Rick Scott runs against Bill Nelson for that Senate seat.  Here’s the AP:

Here’s the problem: If Scott, a Republican, is elected to replace Democratic U.S. Sen. Bill Nelson, he could be forced to step down nearly a week before his term is scheduled to end. That’s because Congress — at least for now — is scheduled to start its 2019 term on Jan. 3 — before a new governor is sworn into office on Jan. 8.

On paper, and looking back at history, that doesn’t seem like a big deal. Three decades ago, then-Gov. Bob Graham left office early because he was elected to the U.S. Senate.

But an early departure by Scott could complicate a brewing legal fight over the makeup of Florida’s Supreme Court. Scott plans to appoint three new justices on his final day in office. If he leaves early, he could lose his window to do that — although his immediate replacement, Lt. Gov. Carlos Lopez-Cantera, also a Republican, could appoint similar candidates.

Will 4th Circuit split with 11th on cell site tracking?

The entire 4th Circuit considered whether the police need a warrant before getting your location data when your cell phone connects to cell towers.  The en banc 11th Circuit said no in US v. Davis and the Supreme Court denied cert, but the Florida Supreme Court said yes in Tracey.

The Washington Post covered the oral argument here:

Almost immediately Wednesday, questions from the bench centered on whether location information from cellphones is any different than records of banking transactions or landline phone calls.

Defense attorney Meghan S. Skelton said the government had essentially tracked the defendants’ every move, equating cellphone location data to “dragnet surveillance.” Maryland U.S. Attorney Rod J. Rosenstein countered that the information gleaned from cell towers was imprecise, unobtrusive and created by the wireless provider — not the government.

A divided three-judge panel of the court ruled in August that accessing the location information without a warrant for an “extended period” is unconstitutional because it allows law enforcement to trace a person’s daily travels and activities across public and private spaces.

The "light disguise" trend

After asking for its witnesses to testify in "light disguise" in the Ze'ev Rosenstein case(coverage here, here and here), the feds are now asking for the same thing in the Jose Padilla case for an instructor for the CIA. (Judge Dimitrouleas had ruled that the Israeli agents could testify in light disguise but required them to use their real names. Rosenstein ended up pleading guilty, so this issue never came to light at trial and appeal).

In the Padilla case, the Government isn't asking for for the disguise because the agent is currently assigned overseas, but instead because he could be assigned overseas, according to a statement filed by Suzanne M. Fleischauer, information review officer for the CIA's clandestine service. "For CIA officers to effectively and clandestinely collect intelligence and conduct operations around the world, they cannot openly admit that they work for the CIA," Fleischauer said. "The safety of this covert CIA officer is of paramount concern because of the high-threat areas of the world in which he has worked."

Here is the AP coverage and the Herald coverage.

"As rare as four-leaf clovers"

Mike Tein was referring to binding 11(e) pleas in this Sun-Sentinel article about Ze'ev Rosenstein (in which the parties agreed to a 144 month sentence -- see post below). I loved the quote, and I agree with Mike that you rarely see these sorts of deals in federal court where the parties agree on a particular sentence. The judge either accepts the deal and is then bound by the agreement or rejects it. It seems to me that both sides would want to do this more often. It gives everyone certainty, avoids litigation, and avoids appeals... Why don't we see more of these binding deals?

Ze'ev Rosenstein pleads guilty...

...and is sentenced to 144 months (that's 12 years for the math challenged; Update -- My math is actually incorrect. After he is extradited, Rosenstein will have 5 years 4 months to go which will be served in Israel where the pending Israeli case against him, conspiracy to commit murder, will be concurrent and no further prosecutions here or there.)

You remember this case -- the one where prosecutors wanted the witnesses to testify in "light disguise." Previous blog coverage on this case here and here. The AP is reporting on the plea here; Herald here.

Judge Dimitrouleas presided.

Boo.

Happy Halloween. In that spirit, the government wants its witnesses to wear disguises. Ze'ev Rosenstein's lawyers, Roy Black and Howard Srebnick, think this is a bad idea... Here is the intro from their response to the government motion for its witnesses to wear "light disguises":

Under the government’s proposed procedures, the defense may not conduct its own investigation of the surveillance officers, and instead must accept the government’s claim that "none of these officers have . . . information in their background that would provide ammunition for cross-examination . . . ." [Government’s Motion at 7].

Also under the government’s proposed procedures, the defense and the jury may not see or assess the true emotions and expressions of the surveillance officers while they testify.

Finally, the defense may not cross-examine these anonymous and veiled foreign witnesses about their procedures and techniques, and must accept their testimony that they were at all times able to accurately observe and identify people and what they were doing.

***

President Eisenhower once described face-to-face confrontation as part of the code of his hometown of Abilene, Kansas. In Abilene, he said, it was necessary to "[m]eet anyone face to face with whom you disagree. You could not sneak up on him from behind, or do any damage to him, without suffering the penalty of an outraged citizenry . . . In this country, if someone dislikes you, or accuses you, he must come up in front. He cannot hide behind the shadow." Coy v. Iowa, 487 U.S. 1012, 1017-18 (1988).

A wig, make up, and fake facial hair is not "light disguise," as the government states. It is a complete costume, the shadow to which President Eisenhower refers. After all, the purpose of the disguise is to make the witness look like someone else entirely – to be unrecognizable. In Israel, and presumably in this Court if allowed, the witness will not only wear full facial disguise, but s/he will also wear a turtleneck shirt and a large overcoat, so that only a fake face is seen. If the witness fidgets, the coat will hide it. If he is a bald male and his head perspires when nervous, the wig will hide it. If his mouth twitches slightly, the fake facial hair will hide it. If she is a female and her ears turn red during testimony, the wig will hide it. If the veins on the neck enlarge out of fear or anger, the turtleneck will hide it. If the face turns pale during testimony, the make up will hide it. Essentially, the person on the witness stand will be a fake.

Lots of other good stuff in this response. Any bets on what Judge D will do?

Huh?

Posted by NOT SCALIA:

Prosecutors in the case of Ze'ev Rosenstein want Israeli undercover agents testifying at his Miami trial to wear disguises and use numbers instead of names to protect their identities. Apparently, this is how the agents would testify in Israel.

I guess that this would be a persuasive argument if the trial proceeded in Tel Aviv. Because the government extradited Rosenstein from Israel to the United States to be prosecuted under our Nation's laws, shouldn't the agents testify without disguises and under their real names?

Read Vanessa Blum's article in the Sun-Sentinel here.

News and notes

Julie Kay's column, Justice Watch, in the DBR has lots of interesting notes today:

1. It describes in much further detail Alex Acosta's talk last week at the Federal Bar Association lunch. Here's one passage:

[Acosta] announced two new deputies in the major crimes division: Barbara Martinez and Ben Greenberg. They will join Chuck Duross, who Acosta named a deputy several months ago. Deputies play key roles, mentoring and supervising new assistant U.S. attorneys, who all start out in major crimes. Martinez, 34, joined the U.S. attorney’s office in Miami in 2000, after serving three years in the fraud section of the Department of Justice in Washington, D.C. Last year, Martinez received the second-highest honor given to federal prosecutors around the country, the Director’s Award, which is awarded by the Department of Justice. She received the award for her work on a child pornography case involving 100 victims. The defendant was convicted in 2004 and sentenced to 100 years in prison. Greenberg, 35, joined the U.S. attorney’s office in 2000. A skilled litigator, he is currently overseeing two of the office’s most high-profile cases — the prosecution of Z’ev Rosenstein, an alleged Israeli organized crime figure who is charged with a massive Ecstasy drug ring, and the fraud retrial of former Hamilton Bank chairman Eduardo A. Masferrer. Acosta related how Greenberg proudly “claims to have indicted 42 cases in one month” — a record for the office. He is the son of Miami-Dade County Attorney Murray Greenberg. Duross, 35, has worked at the U.S. attorney’s office in Miami since 2001. He previously worked at Kirkland & Ellis in Washington, D.C., for 4 1/2 years. Last year, Duross was named Federal Prosecutor of the Year by the Miami-Dade Chiefs of Police Association. He was honored for his work on Operation Check-Mate, in which 23 defendants were convicted in a massive counterfeit check writing scheme. In addition to announcing his new deputies, Acosta also said he would ask the Department of Justice for bonuses and raises for AUSAs in an effort to stem a high turnover rate. He declined to state how much he would request. With a new AUSA in Miami earning about $70,000, it is virtually impossible for them to afford a home in South Florida’s pricey real estate market, he said. By comparison, starting salaries for new associates at major Miami law firms are between $105,000 and $125,000. And since they cannot earn more than members of Congress, even more senior AUSAs are capped at a salary of $140,000 a year. “We’ve seen turnover similar to patterns seen in New York and California,” Acosta said. “The cost of housing is inordinately high here. Rather than hire a few more prosecutors, I’d rather use the money to reward the ones we have.” Former federal prosecutors later applauded Acosta’s plan. “The pay for federal prosecutors should be increased,” said Peter Prieto, managing partner of the Miami office of Holland & Knight and a former federal prosecutor. “They work very long hours and do highly sophisticated work.” Acosta said he’s also taking steps to replace the 30 or so prosecutors who have left in the last year. He reported that, after months of interviewing, he has hired six new prosecutors. Another initiative Acosta plans to start is a mentoring program to pair up senior litigation counsel, such as Richard Gregorie and Caroline Heck Miller, with younger attorneys. “All the big [USAO] offices have formal training programs, and it’s time Miami does too,” he said. According to several sources, Acosta found out he was chosen as U.S. attorney for the Southern District of Florida about two weeks ago. The White House is expected to forward his nomination to the Senate next month, said the sources who spoke on condition that they not be named.

2. The Hamilton Bank trial starts today. It's take two. Last trial was hung. Defense lawyers are the Srebnick bros.

3. The other big bank case, the Bankest case "was abruptly postponed on April 5 when one of the defendants, former bank president Eduardo Orlansky, underwent emergency gall bladder surgery." His lawyer is Ed Shohat. Prosecuting is Caroline Heck Miller, Matthew Menchel and Ryan Stumphauzen. Hector Orlansky is represented by Bruce Lehr.

4. In non-DBR news, the comments to the last post are fun and are not meant to make anyone upset. I hope everyone took them in that spirit.

Acosta at the Federal Bar Luncheon

Interim (soon to be permanent*) U.S. Attorney Alex Acosta spoke today at the Federal Bar Association Luncheon, praising the assistants in the office, even pointing out many by name. He also cited the large proseuctions currently pending in the district (Abramoff, the Rodriguez brothers, Rosenstein, Hamilton Bank, and others). He mentioned that he was going to focus on training young lawyers in the office and on paying them more (which will require hiring less attorneys) so that he can compete with hiring practices in Miami. The speech was about 15 minutes.

* Acosta emphasized that the articles saying his nomination was imminent were premature and that is only an interim U.S. Attorney.

$10 million bail...

... for Ze'ev Rosenstein "over the objections of federal prosecutors, who said they were concerned that Rosenstein had ready access to huge assets and could readily flee the United States." Rosenstein is represented by Roy Black. AUSA is Ben Greenberg. Magistrate Judge is E. Torres.

This year we are slaves...

... next year may we be free men.

That's how Passover Sedar is concluded.

Howard Srebnick has a great quote playing off of that line for his new client, alleged Israeli crime boss Ze'ev Rosenstein: "This year a prisoner in Miami; next year a free man in Israel." U.S. Attorney Alex Acosta responds: "By prosecuting these cartels and the heads of these cartels, in one strike we clean up the streets." The case is in front of Judge Dimitroleous in Ft. Lauderdale. Here's some coverage of the case.

As for Savannah, we are having court this Saturday... No kidding.

So I again apologize for the really slow blogging.