"2 Hialeah businessmen busted for bilking Medicare for penis pumps"

That headline, from Jay Weaver's article, really says it all, doesn't it? More:

It's one thing that a pair of Hialeah companies were fraudulently billing Medicare for penis pumps at $395 a pop to supposedly help male patients combat impotence.
It's quite another that Charlie RX and Happy Trips also billed the federal healthcare program for vacuum erection systems to aid female patients battle erectile dysfunction, authorities say.
And what's even more remarkable: Medicare paid the two medical equipment providers $28,600 after they submitted a total of $63,000 in false claims for the erection pumps, according to charges unsealed Monday in federal court in Miami.

Happy Trips indeed.

I'm back

Thanks to my guest bloggers -- SFL, Rumpole, and Rick B.

Now back to work.... I hope everyone enjoys the last good week of traffic because school starts in one week and then US1 and I-95 turn back into parking lots.

A couple of quick hits to start your week:

1. Blago jury still out.

2. Justice Sotomayor jokingly compares herself to J.Lo.

3. Blogger convicted after three tries for threatening comments about federal judges.

4. Justice Ginsburg wants the good ol' days back in the Senate.

5. Justice Scalia OK after tripping.

6. Neal Katyal likely to become 10th Justice.

7. A must read dissent by Judge Kozinski on GPS tracking and the 4th Amendment. The intro:

Having previously decimated the protections the Fourth
Amendment accords to the home itself, United States v.
Lemus, 596 F.3d 512 (9th Cir. 2010) (Kozinski, C.J., dissenting
from the denial of rehearing en banc); United States v.
Black, 482 F.3d 1044 (9th Cir. 2007) (Kozinski, J., dissenting
from the denial of rehearing en banc), our court now proceeds
to dismantle the zone of privacy we enjoy in the home’s curtilage
and in public. The needs of law enforcement, to which
my colleagues seem inclined to refuse nothing, are quickly
making personal privacy a distant memory. 1984 may have
come a bit later than predicted, but it’s here at last.

And the conclusion:

I don’t think that most people in the United States would
agree with the panel that someone who leaves his car parked
in his driveway outside the door of his home invites people
to crawl under it and attach a device that will track the vehicle’s
every movement and transmit that information to total
strangers. There is something creepy and un-American about
such clandestine and underhanded behavior. To those of us
who have lived under a totalitarian regime, there is an eerie
feeling of déjà vu. This case, if any, deserves the comprehensive,
mature and diverse consideration that an en banc panel
can provide. We are taking a giant leap into the unknown, and
the consequences for ourselves and our children may be dire
and irreversible. Some day, soon, we may wake up and find
we’re living in Oceania.

Let's Talk Judicial Appointments!

We might as well, since President Obama and Senator McConnell did the same the other day:

President Obama and Senate Republican Leader Mitch McConnell had their first one-on-one meeting today, and it dealt primarily with one topic: Confirming judges.
Or, more precisely, Republican holds on Obama judicial nominees.

"Right now there are 12 federal judicial nominees that have passed the Judiciary Committee with a unanimous vote," White House spokesman Robert Gibbs said before the meeting. "There are other judges that have been through the process and approved by the Judiciary Committee."

The meeting concerned "a direct discussion about moving those judges," Gibbs said.

The president is "rightly frustrated" at a pace that is "unrivaled and unmatched in its slowness," Gibbs said, and he added that some recess appointments may be in the offing.

Hmm, that's not good.

According to ACS' nifty website judicialnominations.org, there are now 100 vacancies out of 867 seats on the federal bench.

So that's roughly 10 percent of the judicial branch, with nominees cooling their heels for indefinite periods while they await an uncertain fate in the Senate.

My guess is this will have some deleterious institutional effects on the federal justice system, but what do I know?

This is SFL, hoping I'm wrong (again).

Magistrate Judge Brown Addresses Futility of "Notices of Unavailability"

Judge Brown Notice of Unavailability

Hi kids, SFL here.

Regular readers of my blog know I have a special fondness for this case.

In an order entered yesterday, Magistrate Judge Brown addresses the rather pointless of practice of filing "notices of unavailability," a personal pet peeve of mine:

The parties should note that there is no local rule in our Court providing for the filing of same, and no federal rule supporting same.  While the Court is not precluding anyone from filing same, and as a matter of professionalism and courtesy they should be considered, the parties should understand that these filings have no legal significance.

He's right.

This is a dated practice of dubious utility.  If you have a conflict with an actual (as opposed to a possible or  hypothetical future) Court deadline, ask the Court to move it.  If you don't want the opposing party to schedule something while you're on vacation, pick up the phone and ask them about it.

D.O.M. called

“You haven’t posted anything.”
That was D.O.M. again, calling from wherever.
“Yup.”
“What about that case where Judge Altonaga got affirmed for asserting jurisdiction over the pre-WWII Germans?”
“Yeah, I saw that.”
“So, why not write something up, Professor?”
D.O.M. only busts out my title when things are dark, so I said,
“Well, you gave the blog over to the people who write comments.”
“I thought you didn’t read the comments.”
“I don’t.”
Beat.
“You’re being too uptight about this.”
That was D.O.M. breaking the silence.
“Maybe.”
Beat.

1600!!!

There's a certain honour with being the blogger to post the 1600th post on David O Markus's famous Southern District Of Florida Blog. And with DOM being out of town and unawares, we decided to grab the honour before he could change his mind and revoke our blogging privileges.

For those of you discriminating enough to read our own humble blog about the Richard E Gerstein Courthouse in Miami, you know that last week we promised- at the possible expense of Mr. Markus's standing in the community and his law license- to post a joke that started off this way: " A rabbi, a priest, President Obama and (insert your favourite federal judge here) walk into Tobacco road...."

But before we get to the punch line, there's this to consider:

Rumpole's person of the day:

Meet Former Jet Blue Flight Attendant Steven Slater. On a flight on Monday inbound to JFK from Pittsburgh, Mr. Slater had a confrontation with an unruly female passenger. (Side note- those gals from the Steel City can be quite a handful when they've had a few Iron City beers in them). Upon landing at JFK, Mr. Slater had all he could take. When the plane stopped taxing, Mr. Sater activated the emergency exit, deployed the emergency slide, grabbed a beer from the beverage cart, and slid off the plane and into instant fame. Mr. Slater got into his car and drove home to Queens where a few hours later a few members of New York's Finest showed up to arrest him on a slate of charges. For those of you who exclusively practice in Federal Court, The NY Times coverage is here.

For those of you who occasionally venture over to State Court, the NY Post coverage is here. (Headline was "Wing-Nut pleads not guilty.")

Punchline: They all walk up to the bar and order a round of beers. And the bartender looks up and sees who has walked in and says: 'what is this, some kind of joke?' "

Sorry folks, this is what happens when DOM goes on vacation.

See You in Court.

HR.

PS-if you want to know something useful about current federal legal developments, read South Florida Lawyer's post just below this one. We craftily waited until he posted number 1599 so we could grab 1600.

11th Circuit Limits "Safety-Valve" Sentencing Relief.

Hi kids, SFL here, killing time while David O undoubtedly does something glamorous and exciting I am sure.

I'm glad I don't do any criminal, because if I did I'd have to use the term "safety-valve" as part of my work.

Instead I'm stuck with delightful words and phrases such as "Celotex," "Iqbal," "Venetian Salami" and "mending the hold."

But for those of you who derive some kind of legal meaning from a safety valve, you may consider this new 11th Circuit opinion of value, which disagrees with several other circuits on this question:

The question we must resolve today is this one: can a district court grant safety-valve relief when reducing a defendant’s sentence pursuant to section 3582(c)(2)? The answer is “no,” because the safety-valve is inapplicable to sentence-modification proceedings.

Best I can tell, the 11th reasons that a Section 3582(c)(2) proceeding is not a "sentencing or resentencing" proceeding, but is instead a "modification of a term of imprisonment."
 
But then later there's a footnote in which the 11th acknowledges "they are in some sense a sentencing proceeding."

So I'm glad crim law makes as much sense as civil litigation?

Big news from the road

Judge Paul Huck has informed President Obama that he will be taking senior status. That makes three current openings; Judge Hurley (to be filled by Kathy Williams); Judge Gold; and now Judge Huck.

Judge Huck has been a wonderful district judge and is regarded as the hardest working judge in the District. I have lots more to say when I can get to a computer instead of this phone. In the meantime, congrats to Judge Huck.

Good luck to...

... Brian Stekloff, who after making a good name for himself at the PD's office, is off to Paul Weiss in DC.

They needed someone to try cases, and they found the right guy.

Straw buyers walk

Four of em... Before Judge D after an 11 day trial. Defendants repped by Phil Horowitz, Alan Kaufman, Brian Tannebaum, and John Wylie. Congrats.

Get ready for the guest bloggers

Taking a little break from the blog for a week. Starting tomorrow, you'll have SFL, Rumpole, and Rick Bascuas entertaining you. Enjoy.

Magistrate feels “like a schoolmarm scolding little boys."

The whole opinion is definitely worth a read. Here's a snippet:

• My practice is to preliminarily review every motion called an “emergency” the day it
  is filed. However, other cases, motions filed, scheduled hearings and settlement conferences do not afford me the luxury of dropping everything to hear a party’s perceived “emergency” especially when it involves a case that has already taken an inordinate amount of the court’s time (to the detriment of other litigants who need decisions in their matters) to resolve yet another in a series of routine discovery disputes. Thus, as the motion has worked its way up the tall stack of other matters on my desk, there are no longer any depositions to take.
• I am not the Maytag repairman of federal judges desperately hoping for something to do.
• Counsel for Plaintiff could not resist replying. Mr Kossack’s reply adds up the number of Mr. Cannon’s improper objections during Mr. McCurdy’s deposition and compares them to the number of improper objections Mr. Cannon accuses him of making. Not wanting to miss an opportunity to engage equally unseemly “tit-for-tat,” Mr Kossack pads his reply with gratuitous comments which include a reference to counsels’ respective choice of beverages during depositions.
• To ensure that reading the 185 pages of these exchanges was not a complete waste of time, I assigned this motion to a law student extern to prepare a legal memorandum to further his education. In a short period of time he was able to prepare a well-written, concise memo which identified a large number of state and federal cases throughout the country articulating the standards for making deposition objections and identifying improper conduct for which lawyers have been admonished or sanctioned. He correctly concluded that both lawyers engaged in misconduct which violated Rule 30(c)(2).
• The exchanges related in excruciating, repetitive detail in the moving and responsive papers and their attachments were painful to read. If I was an elementary school teacher instead of a judge I would require both counsel to write the following clearly established legal rules on a blackboard 500 times.
• Although these papers, and the conduct they relate, make me feel like a school marm scolding little boys, I am the judge whose duty it is to decide this motion. Accordingly, Mr. Kossack and Mr. Cannon are admonished for engaging in conduct which I know you know violates Rule 30(c)(2). You are better men and better lawyers than the conduct in which you have engaged illustrates.

Being on a plane...

... with 8 rows is not fun. Tampa for the day. Back tonight.

Tuesday News and Notes

1. Moving sucks.

2. The FBI is taking the absurd position that Wikipidea shouldn't use its emblem.

3. Law.com covers the Irey case.

4. Roberts v. Kagan, per Dahlia Lithwick.

5. More on Kagan -- she is only 6th SCOTUS law clerk to become Justice.

6. Miranda is losing its teeth.

7. Obama is having a tough time getting judges confirmed. Another article on it here.

8. Conrad Black writes on his time in a federal prison. The whole thing is worth a read:

In the Coleman Low Security compound, there are 1,800 residents and it is a little universe terminally addicted to gossip about the custodial system and especially the goings-on of the group confined there. By this time there were large numbers of journalists and photographers clustered at the gate of the Coleman complex and ongoing television coverage watched with some bemusement by my fellow residents in the television rooms of the residential units.
A steady stream of well-wishers from all factions of the compound came to say goodbye, as I put my books and papers and a few clothes items into cardboard boxes. (The only article of clothing that I took that was not among the few things I had bought myself was the nondescript brown shirt bequeathed to me when he left by the don of one of the famous New York gang families).
The Mafiosi, the Colombian drug dealers, (including a senator with whom I had a special greeting as a fellow member of a parliamentary upper house), the American drug dealers, high and low, black, white, and Hispanic; the alleged swindlers, hackers, pornographers, credit card fraudsters, bank robbers, and even an accomplished airplane thief; the rehabilitated and unregenerate, the innocent and the guilty, and in almost all cases the grossly over-sentenced, streamed in steadily for hours, to make their farewells.
Most goodbyes were brief and jovial, some were emotional, and a few were quite heart-rending. Many of the 150 students that my very able fellow tutors and I had helped to graduate from high school, came by, some of them now enrolled in university by cyber-correspondence.

New digs

Personal post: I've moved office space to right across the street from the Federal Courthouse in Miami (the address is 40 N.W. Third Street, Courthouse Center, Penthouse 1, Miami, Florida 33128). And I've added two great lawyers -- Margot Moss and Mona Markus-- to join Robin Kaplan and me. 

Margot (pictured right) was a partner at Fowler White and before that was an assistant public defender for 10 years.  Mona (left)graduated Harvard Law School a year after I did. She was a partner at Stearns Weaver, where she has worked for 11 years.

I am very excited about the move and the growth of the Firm, which will now be called Markus & Markus (instead of David Oscar Markus PLLC). I have some work to do on the website...

I will be sharing space with a bunch of other lawyers, including Marc Seitles, Richard Klugh, Hector Flores, William Barzee, and Ivlis Mantilla.