Back to work...

Hope everyone had a nice new year. It's good to be back. A quick look at what was missed the last week:

1. The Cuban Spies strike back... against their lawyers. From the Miami Herald:

In his appeal, Hernandez, 45, contends that his trial attorney, Paul McKenna, mishandled his defense at a 2001 Miami federal trial by focusing so much on the shoot-down location.

That strategy overshadowed evidence that Hernandez purportedly did not know in advance about the deadly Cuban plot over the Florida Straits, the appeal asserts. Evidence of his advance knowledge was crucial to proving his role in the murder conspiracy.

"In short, Hernandez's lawyer was his worst enemy in the courtroom," his appellate attorneys wrote in a habeas corpus petition filed in Miami federal court.

2. Judge Carnes vs. Judge Tjoflat in Floride Norelus v. Denny's Inc.

Both SFL and Kosher Meatball cover this 2-1 case about sanctions against the Amlongs for a 63-page errata sheet. From Judge Carnes' intro:

No one’s memory is perfect. People forget things or get confused, and anyone can make an innocent misstatement or two. Or maybe even three or four. But not 868 of them. In this case, the plaintiff’s attorneys, William and Karen Amlong, filed a sixty-three page errata sheet containing 868 attempted changes to their client’s deposition testimony, which was the sole source of evidentiary support for their client’s claims. The district court exercised its authority under 28 U.S.C. § 1927 to sanction the Amlongs. This is their appeal, or more specifically their second appeal.

But what struck me was not so much Judge Carnes' colorful way of writing about the case (agree with his decisions or not, he makes reading them fun), but instead how he engages Judge Tjoflat (the concurring judge, District Judge Bowen, did not join in any of these remarks):

• As the magistrate judge found and no one (with the possible exception of the
  dissenting judge on this panel) seriously contests, the improper submission of the
  massive errata document rendered the eight days spent on Norelus’ deposition a
  waste of time and money to say nothing of the time the attorneys were forced to
  spend on the issues created by the document itself.
• Up to this point, we have addressed the issues related to the errata document
  and the award of sanctions as those issues have been raised and defined since that
  document was submitted fourteen years ago. Our dissenting colleague, by contrast, has hatched a brand new theory—a theory that was never raised by the parties, never considered by the district court, and never argued to this Court. The theory
  that he has conjured up is that the errata sheet was really nothing more than a
  “letter” from Karen Amlong to defense counsel. It was not, he insists, an errata
  sheet because he thinks it was never presented to the court reporter or affixed to
  Norelus’ deposition as, he thinks, Federal Rule of Civil Procedure 30 requires. Dissenting Op. at 1. He is wrong on his premises and wrong in his conclusion.
• Instead of recognizing the obvious import of Norelus’ own certification or following our precedent about who has the burden on appeal where there are any ambiguities, the dissenting judge would remake the case entirely along different factual lines, lines that only he sees.
• From its inception, the errata document has been understood by all, except our dissenting colleague, to be a Rule 30 errata sheet.
• That certification itself and its use to assert “exceptions” to the deposition belies the dissent’s far-fetched assertion that the errata sheet was nothing more than a letter from one attorney to another. And there is more.
• The Amlongs, the defendants, the magistrate judge, the district court judge, all three judges of this Court in Amlong I, everyone in the district court after the remand, and both parties in briefing and arguing the present appeal have understood that. Everyone has understood it—except for our dissenting colleague.
• Now, after almost a decade-and-a-half of litigation, he has been able to discern what everyone else has overlooked: that the Rule 30 errata sheet is not really a Rule 30 errata sheet, but it is instead “a document, although entitled ‘errata sheet,’ [which] had no more legal efficacy than a letter.” Dissenting Op. at 22. During a period of almost fifteen years of looking at the document, no one else has ever thought it was just a letter. And no wonder. Treating the errata sheet as nothing more than a letter is like arguing after Gettysburg that the warring sides had been mistaken all along about the bombardment of Fort Sumter, that it was actually nothing more than a diplomatic overture.
• And the dissenting judge’s extraordinary perception does not end there. He
  is even able to perceive that everyone else’s inability to see that the errata sheet isnot really an errata sheet is not the fault of the Amlongs, who designated it an
  errata sheet and have been arguing for almost a decade and a half that is what it is, and not the fault of all the judges who have consistently treated it as an errata sheet, but instead is the fault of—who else is left? Defense counsel, of course. See Dissenting Op. at 2, 19–20, 22–23.
• Even beyond the facts, there is another problem with the dissent’s attempt to inject the not-an-errata-sheet-but-just-a-letter issue into the case at this point. The issue has been defaulted about as many times and in about as many ways as any issue can be.

Sorry for all the bullets, but wow. Is it me, or was that opinion something more than a "diplomatic overture"?

3. SFL won the blog fantasy football league this year. Well done!

4. Mona and I won the Above the Law fantasy football league.

5. I beat Rumpole in the regular season head-to-head football challenge, but we will continue it into the playoffs. It was a fun battle, especially because watching the Dolphins was torture.

6. Tom Goldstein of ScotusBlog is leaving Akin Gump and is going back out on his own. (Via ATL)

Is anyone working this week?

SFL and Kosher Meatball are blogging away, and CM/ECF is alerting me to motions still being filed. But I'm having trouble motivating for the blog. So, I think I'm going to take the week off from blogging. If something exciting happens (not like denials of cert or judges not getting appointed), I'll post it. But if you don't hear from me, have an excellent holiday week and Happy New Year. See you all in a week.

Merry Christmas

Happy Festivus...

...for the rest of us:

"Zee Zee" cleared by Magistrate Judge Johnson

That's Fort Lauderdale cardiologist and prominent Republican fundraiser Zachariah Zachariah (George Bush called him Zee Zee), who was charged civilly with using insider information to make $1 million in illegal stock profits in 2005. He was represented by Curt Miner of Colson Hicks. From John Pacenti's article in the DBR:

[Judge] Johnson said the evidence was not sufficient to show that Zachariah "would be willing to jeopardize his reputation and his career and put his family in harm’s way all for the opportunity to make what was an insignificant profit to him in light of his means at the time."

U.S. District Judge Kenneth Marra adopted Johnson’s findings on Monday, issuing a final judgment in Zachariah’s favor.

Zachariah’s attorney, Curtis Miner, a partner at Colson Hicks Eidson in Coral Gables, said Johnson’s decision is "a pretty stinging rebuke of the government’s case. She said the government’s argument strained credulity."

In a statement, Zachariah said: "I have great faith in our justice system, and I always knew I would be fully vindicated. The government put me through a long ordeal, but I am very happy to turn 100 percent of my attention back to my medical practice. "

Zachariah practices at Holy Cross Hospital in Fort Lauderdale.

Zachariah’s bench trial in front of Johnson lasted nine days over two months this fall.

Awesome new blog

It's called Law and the Multiverse Blog, and the NY Times featured it today:

Is Superman’s heat vision a weapon? If so, would the Second Amendment protect his right to melt pistols and cook hamburgers with it?
You might not have thought to ask these questions. You might have, in other words, a life. But a new blog and the interest it is generating show that there are people who look at an epic battle between superheroes and super-villains and really, really want to know who should be found liable for the broken buildings and shattered streets.

Those people now have a blog called Law and the Multiverse: Superheroes, supervillains, and the law. Kicked off on Nov. 30, it addresses questions like: “What if someone is convicted for murder, and then the victim comes back to life?” And whether mutants are a legally recognizable class entitled to constitutional protection from discrimination.

Law and the Multiverse is the deadpan creation of two lawyers, James Daily, in Missouri, and Ryan Davidson in Indiana. Both are 28; they have only met online but collaborate like old friends.

Mr. Daily said the inspiration for the blog came, as so many great ideas do, over dinner with his wife and friends. They began discussing whether the parallel-dimension versions of a super-villain could somehow be brought to justice in a single trial. Alcohol, he insisted, was not involved. Once he discussed his plans for the blog on Metafilter, a collaborative site where people hash out projects, Mr. Davidson got in touch to offer his ideas and support — or, as he put it: “Hey, this looks awesome! Do you want a collaborator?”

Love it. I like these questions:

Other topics include the admissibility of evidence obtained through mind reading by Professor X of the X-men and whether the RICO Act could be effectively used by prosecutors against the Legion of Doom.

The answers are dry, technical and funny in their earnestness. The Second Amendment, Mr. Daily suggested, would protect many powers, but “at least some superpowers would qualify as dangerous or unusual weapons (e.g., Cyclops’ optic blasts, Havok’s plasma blasts)” that are “well beyond the power of weapons allowed even by permit.” Those super-duper powers would be tightly regulated, if not banned outright.

Then there’s this jurisprudential nugget: When Batman, the DC Comics hero, nabs crooks, is the evidence gathered against the bad guys admissible in court? Not if he is working so closely with Commissioner Gordon that his feats fall under the “state actor” doctrine, in which a person is deemed to be acting on behalf of government and thus is subject to the restrictions on government power. In fact, he might be courting a lawsuit claiming violations of civil rights from those who were nabbed.

“Either all of the criminals in Gotham have incompetent attorneys, the state action doctrine in the DC universe is weaker than it is in the real world, or Gordon has actually managed to keep his reliance on Batman a secret,” Mr. Daily wrote. “I’m going to opt for the second explanation.”

HT: MC

Quiet week

Not much to report at the end of this quiet week.

1. Uncle Luke (represented by Richard Brodsky) won before Judge Cooke.

2. Steve Binhak won a criminal environmental trial before Judge Gonzalez. From the PBP:

"It should send a shiver down your spine," Binhak told jurors. "Water seeping underground is connected all over the world. That means your backyard is connected to Florida Bay and the Loxahatchee Wildlife Refuge. Think about that the next time you cut your lawn."

3. Eddie O'Donnell Jr. and Bill Roppolo won a criminal tax trial before Judge Martinez.

Holiday time is a good time to try cases...

Have a nice weekend.

Update-- one other verdict from Friday: Paul Calli and Mike Pasano got a hung jury before Judge Hurley in a business opportunities case.

--DM

Acquitted Lyglenson Lemorin to be deported?

This blog has covered the horrible saga of Mr. Lemorin before. He was the one defendant in the Liberty City 7 case that was acquitted. But no matter, says an immigration judge. He sits in jail, awaiting deportation to Haiti.

This is really an outrage.

The fight is still going on, but it's not looking so good for Lemorin. From the Herald:

Lyglenson Lemorin was acquitted of all charges in the Liberty City Seven terrorism trial three years ago. But he soon faces deportation to earthquake-ravaged Haiti by immigration authorities who still consider him a terrorist sympathizer and threat to national security.

Lemorin's lawyer on Wednesday filed an emergency petition to stop the legal American resident's removal from the United States. The odds are stacked against him, however, because the federal appeals court reviewing his case rarely grants such relief.

``It's a complete tragedy, a complete disregard for human life,'' said Lemorin's immigration attorney, Charles Kuck. ``Haiti is still an unmitigated disaster.''

In court filings, Justice Department lawyers responded that they oppose the emergency petition, saying only that Lemorin won't be deported before Jan. 12.

Haitian-born Lemorin, 35, grew up in Miami. He has been jailed in Georgia, Florida and now Louisiana and could be deported as soon as January. That's when U.S. Immigration and Customs Enforcement resumes deportations of Haitian nationals convicted of crimes in this country. Although Lemorin has no conviction, he is being lumped together with those who do, his lawyer said.

Feds arrest in case where only .01% chance of getting caught

At least that's what the defendant put the odds at in this UBS case (via the AP):

A former banker at Switzerland's UBS AG has been charged with tax fraud conspiracy for allegedly helping a wealthy U.S. client hide assets from the Internal Revenue Service.

Banker Renzo Gadola was named in the charging document filed Tuesday in Miami federal court. The document claims that Gadola and an unnamed second Swiss banker helped an unidentified Mississippi man hide an account at UBS and open another secret account at a second Swiss bank.

Gadola worked at UBS for 13 years, then in early 2009 began working as an independent investment adviser.

Prosecutors say Gadola and the other banker tried to prevent the client from disclosing his secret accounts to the IRS. During a November meeting at a Miami hotel, according to court documents, Gadola told the client the likelihood that his new accounts would be discovered was "practically zero percent."

"You have no link to UBS whatsoever, so 99.9 percent you have nothing to worry about," Gadola told the client, according to court documents.

Speaking of other things that happen only .01% of the time, a federal appellate court today ruled in favor of a criminal defendant in a Fourth Amendment case. And it was a biggie. Orin Kerr from Volokh has all the details of United States v. Warshak from the 6th Circuit, where the court held that email is protected by the warrant clause of the 4th Amendment. That almost deserves an !. (Hat tip: JK).

!!!

SFL isn't the only blogger that can discuss civil cases and exclamation points. From the published decision today in Isabel Diaz v. Jaguar Restaurant, which addressed the issue of whether an affirmative defense was waived or not: "If ever there were a classic case of waiver, this is it!"

I think Elaine's boss said it best:

Monday morning quick hits

1. The DBR does its year in review. Lots of bad eggs in the year -- Rothstein, Freeman, Adorno, Tolz... I don't think Santa will be bringing those guys anything this year.

2. I forgot to post the Obama pardon story from a couple weeks ago. He finally pardoned some humans but the list is really a joke. It includes Ronald Lee Foster of Beaver Falls, Pa., who was sentenced to a year of probation and a $20 fine for mutilating coins in 1963. Wow, thank goodness Obama was on top of that one... "The president was moved by the strength of the applicants' post-conviction efforts at atonement, as well as their superior citizenship and individual achievements in the years since their convictions," said White House spokesman Reid Cherlin.

3. No more crush videos: President Barack Obama on Thursday signed into law a bill that outlaws the creation and distribution of so-called animal crush videos -- culminating a remarkably quick response to a Supreme Court decision handed down less than eight months ago.

It was April 20 when the Court, in United States v. Stevens, struck down an earlier federal law that banned a more broadly defined category of depictions of animal cruelty. The Court found that law to be "substantially overbroad" and therefore unconstitutional under the First Amendment, because it could apply to hunting and fishing videos and other legitimate depictions.

The new law, passed with bipartisan support after hearings in recent months, focuses more narrowly on "obscene" animal crush videos in which animals are crushed or burned or otherwise mutilated. The definition ties the offense to obscenity -- which is not protected by the First Amendment -- by noting that the videos appeal to a particular sexual fetish.

“California may be about to execute an innocent man.”

That's the opening line of Judge Fletcher's 100 page dissent from en banc review in the 9th Circuit and the opening line of this NY Times op-ed. This makes my blood boil -- if you can't make it through the entire dissent, you should check out the article. It very persuasively sets forth how Kevin Cooper, a black man in California who faces lethal injection for supposedly murdering a white family, was framed by police. Forget the horrors of an innocent man having spent the last 20 years on death row, how can the judiciary allow the state to execute him when he is "probably innocent" according to Judge Fletcher and 4 other Ninth Circuit judges. The NY Times has called for Governor Schwarzenegger commute the sentence:

This case is a travesty. It underscores the central pitfall of capital punishment: no system is fail-safe. How can we be about to execute a man when even some of America’s leading judges believe he has been framed?

Lanny Davis, who was the White House counsel for President Bill Clinton, is representing Mr. Cooper pro bono. He laments: “The media and the bar have gone deaf and silent on Kevin Cooper. My simple theory: heinous brutal murder of white family and black convict. Simple as that.”

That’s a disgrace that threatens not only the life of one man, but the honor of our judicial system. Governor Schwarzenegger, are you listening?

That's "a pretty sorry state of affairs with respect to what goes on in the statehouse."

That was Judge Zloch during the change of plea for Alan Mendelsohn.

From the AP:

A politically connected eye doctor and prominent fundraiser pleaded guilty Thursday to a federal conspiracy charge, admitting he filed false tax returns, lied to FBI agents and diverted tens of thousands of dollars in contributions for his own use.
During a plea hearing, Dr. Alan Mendelsohn said he got caught up in a Tallahassee pay-to-play system in which politicians reward those who funnel money to the right places and punish people who refuse.
Mendelsohn, who lobbied legislators on various health issues, told U.S. District Judge William Zloch of one instance in which he paid $82,000 to an associate of former state Sen. Mandy Dawson, a Democrat who had demanded repeatedly that Mendelsohn "hire" the aide.
"Otherwise, we had the great fear of being retaliated against legislatively," Mendelsohn told the judge, adding that such practices are common in state government.
Zloch responded that it was "a pretty sorry state of affairs with respect to what goes on in the statehouse."

In other news, Rumpole is covering the very sad story of Judge Robert Pineiro's death. The comments on the blog about him are lovely and I wish his family well during this terrible time.

Judge Cooke's annual holiday party

Judge Cooke has an annual party outside her chambers where she serves lots of delish desserts. Here is Jan Smith partaking in the fun:

Fun with the new SDFLA website

I was looking at the revamped district website (that was discussed here), and there are some neat features it has. For example, you can pull recently filed criminal cases, recently filed civil cases, and recent jury verdicts. You could always do this on CM/ECF, but you had to pay for it. Now it's free. Good stuff.