Justice Souter retiring at the end of the Term

WOW!! Big news!!

Here's ScotusBlog:

Justice David H. Souter has decided to retire when the Supreme Court completes its current Term in early summer, the NBC-TV network reported Thursday night. The 69-year-old jurist, who is completing his 19th year on the Court, has passed word of his plans to others, and the White House has been told, according to the network’s account. Other news organizations also were reporting that Souter has made his decision not to continue serving.
By leaving office this summer, Souter will be giving President Obama time to select and seek Senate approval of the new Chief Executive’s first appointee to the Nation’s highest court before the Court returns for a new Term on Oct. 5. That process could be slowed, however, if the President chooses a nominee who would stir such opposition among conservatives that Senate action could be slowed. With Democrats in control of the Senate, however, Obama’s choice almost certainly would win approval.
Even if the President were to pick a decidedly liberal new Justice, it would not bring a strong shift in the current Court’s direction, since four conservatives along with their sometime ally, Justice Anthony M. Kennedy, tend to control outcomes on many key issues.

Well, now we can start our who will replace Souter sweepstakes. Any chance it's someone from the 11th or our District? We've had prospects before... In fact, the very first post on this blog urged then-President Bush to appoint a Floridian to the Supreme Court. So, who are our best prospects?

John S. Kastrenakes new Circuit Judge in Palm Beach

Another mistrial?

The Liberty City 6 case looks like it's on the way to another mistrial...

UPDATE -- 4PM -- Judge Lenard dismissed the sick juror. She is hearing arguments about replacing that juror with an alternate. Here's the Herald article.

Original post from this morning addressing the problem:

Here's the Herald article:

Jury deliberations in the third terrorism trial of a group of inner-city Miami men accused of collaborating with al Qaeda were delayed Thursday because a juror has fallen ill and cannot return until next week.
Prosecutors argued that the remaining 11 members of the jury should continue to deliberate without the 12th juror, but defense lawyers opposed that recommendation. Instead, they argued that the judge replace the 12th member with an alternate juror, stressing that the panel had only started its deliberations on Monday.

Why would the government want to proceed with 11? Read on...

Defense lawyers seemed especially concerned about the potential loss of the one juror because he is a black man who they believe might be sympathetic to the six defendants, who are also mostly black. They even asked the judge to suspend the deliberations until the 12th juror, whose illness was not disclosed, could return next Wednesday, as recommended by his doctor. ''He's a black juror,'' defense attorney Louis Casuso said. ``He's one of the very few that has no problems.''
U.S. District Judge Joan Lenard rejected suspending deliberations, saying they must continue because of the length of the trial. ''It's really not an issue of race; it's an issue of illness,'' she told the defense team.

What about adding the alternate:

Lenard told both sides to return later Thursday to argue further over adding an alternate as the 12th juror for deliberations, instead of going forward with the 11 existing members. If the judge decides to add an alternate juror, it would be an Hispanic woman.
The judge would then tell the jury to begin its deliberations anew.
The racially mixed, 12-member jury started deliberations on Monday after a two-month trial, but the one juror fell ill early on Wednesday.
They are deciding whether the defendants, dubbed the Liberty City 6, are guilty of conspiring with the global terrorist group, al Qaeda, to blow up the Sears Tower in Chicago along with major federal buildings in Miami and other cities.
The first two trials ended with hung juries and the acquittal of one defendant, a lawful U.S. resident named Lyglenson Lemorin who is facing deportation to his native Haiti.
Prosecutors tried to portray the group's ringleader, Narseal Batiste, as a militant figure who used his Moorish religious organization to recruit followers to destroy the United States. They accused Batiste and his followers of taking an oath to al Qaeda and shooting photographs of target sites in Miami to prepare for their destructive mission.
Defense attorneys attacked the prosecution's case as a setup led by an FBI informant who posed as an al Qaeda representative to lure the men into a fictitious terrorism conspiracy. They said that the men were struggling construction workers trying to help their poor community by establishing the religious group in a Liberty City warehouse.
Awaiting verdicts again on four terror-related conspiracy counts are: Batiste, 35; Patrick Abraham, 29; Stanley Grant Phanor, 33; Rotschild Augustine, 25; Burson Augustin, 24; and Naudimar Herrera, 25. The first two defendants are being held at the Federal Detention Center. The latter four were released on bond after the second mistrial last year.
If convicted on all four charges, including conspiring to provide material support for al Qaeda, each defendant could face up to 70 years in prison.

Supreme Court affirms 11th Circuit...

... in US v. Dean. Chief Justice Roberts opens the opinion this way:

Accidents happen. Sometimes they happen to individuals committing crimes with loaded guns. The question here is whether extra punishment Congress imposed for the discharge of a gun during certain crimes applies whenthe gun goes off accidentally.

With that intro, it's not surprising that the Court said yes and affirmed the 11th Circuit.

In other news, the feds charged a man with trying to get rocket technology to South Korea. Curt Anderson has the story here:

A Korean-American who served prison time for attempting to broker the sale of deadly nerve gas bombs to Iran was indicted Wednesday on new charges of trying to help South Korea obtain advanced Russian rocket hardware and technology.
Investigators also found thousands of e-mails allegedly sent by Juwhan Yun, a 68-year-old naturalized U.S. citizen from Short Hills, N.J., involving other deals for sophisticated radar and air defense systems, short-wave infrared cameras, laser-guided bomb components and missile launch devices.
Yun is quoted in one e-mail as boasting that he has been "the largest one-stop supplier" of sensitive military and similar equipment for South Korea for the past 30 years.

"There is no constitutionally significant difference between masturbating in front of a minor in person versus doing so via web camera."

That's the Eleventh Circuit in USA v. Aldrich. Not sure I have anything to add to that one.

Moving on to other appellate news, the 11th Circuit reversed Judge Highsmith's sentence of probation for James Hendrick, "once Monroe County's powerful government attorney." Here's Jay Weaver's article and here's the opinion. The entire analysis on the sentencing is as follows:

The government cross-appeals Hendrick’s below-guidelines sentence. After
carefully reviewing the record and considering the arguments that the parties
briefed and orally argued, we agree with the government that the sentence is both
procedurally and substantively unreasonable. We accordingly vacate it and
remand for resentencing.

That's it? I understand (sort of) short opinions from appellate courts when they affirm, but to reverse with no analysis...

What say you dear readers? I have taken off moderation, so please be appropriate in the comments.

Cert petition denied for Sal Magluta

Here's the AP:

A reputed cocaine kingpin has lost his fight to reduce his 195-year prison term.
The Supreme Court, acting Monday, rejected an appeal from Salvador Magluta, who was convicted of laundering at least $730,000 in drug money and bribing a juror at an earlier trial. The federal appeals court in Atlanta threw out the bribery count, but otherwise upheld the lengthy sentence.
Magluta asked the high court to take his case to consider whether the government should have been barred from trying him again after a jury acquitted him in 1996 of charges based on the same conduct. He also disputed the sentence's length since the judge acknowledged he took into account money laundering charges on which the jury found Magluta not guilty.
The case is Magluta v. U.S., 08-731.

TalkLeft has coverage of the case here.

Here's $60K to go work somewhere else

Apparently some of the big firms in DC, Boston, and New York are paying people to take a year off and work at a public interest job. Here's the Boston Globe story. Any word of that happening here in Miami?

From the article:

With his degree from Harvard Law School due in June, Juan Valdivieso makes an attractive prospective hire, and last summer, he scooped up a postgraduation job offer from the white-shoe firm Morgan, Lewis & Bockius in his native Washington, D.C.

But as the recession deepens, budgets tighten - even at top-notch law firms. Morgan, Lewis & Bockius e-mailed Valdivieso last month that it would have to defer his employment for a year, until the fall of 2010. But the company threw him a lifeline: It would pay him a $60,000 stipend if he spent the year after graduation at an unpaid public service job. The 28-year-old is looking for work in an organization that will indulge his interest either in civil rights or consumer protection.

What up SDFLA?

It was a nice weekend, no? The weather was fantastic. It was cooler here than in New York this weekend.

Plus, the Heat won. Jermaine O'Neal is showing why we traded for him.


The Dolphins had a nice draft. We addressed our needs and got some big upside with our first couple of picks.

Too bad the Marlins are in a funk after starting the year 11-1... Getting swept back-to-back is ugly.

So what's on tap this week? We may get a verdict in the Liberty City 6 case. Any other trials starting up? Give me a shout and let me know what's going on...

Interesting news in DC -- the prosecutors in the Ted Stevens case have hired lawyers, to be paid for by DOJ. Here's the BLT story on it. Those lawyers can get $200/hour, not to exceed 120 hours a month. Chump change for most of the biglaw former AUSAs being hired...

That's your Sunday night ramble.

Only in South Florida...

1. Law firm handling "Chinese dry wall" cases has that same problem in their office. (Palm Beach Post)

2. "Lauderdale Lakes woman stole ID to pay for tummy tuck, feds say." (Sun-Sentinel)

3. Mutual Benefits sealed documents to remain under seal. (Sun-Sentinel)

Roy Black interviewed on Helio case

Tom Withers, who runs the awesome Federal Criminal Defense Blog out of Savannah, Georgia, has this great interview of Roy Black. Check it out.

Here's the intro question and answer:

Q: Thanks for your time and congratulations on the not guilty verdicts in the Helio Castroneves case. Any indication from the government on whether they will retry the conspiracy count against Castroneves and his sister?

Mr. Black: No, but in our view, the government can't retry Helio on conspiracy because of collateral estoppel. If the jury found no tax deficiency on the substantive evasion counts, then there was no unlawful plan. An agreement to comply with the tax code is not a crime. Or, if the jury found no willfulness on the evasion counts, then there can be no willfulness on the conspiracy. Either way we win. At a minimum we get interlocutory review in 11th Circuit before we start any litigation on this issue, we will meet with the government and see what their views are. There are civil remedies the government should be satisfied with.

Here's a snippet about a funny part of the trial with Bob Bennett:

Q: How was the experience of trying this case with Bob Bennett out of Washington, D.C.? Anything you gained from observing his courtroom demeanor/preparation?

Mr. Black: I have known and worked with Bob before and he is a wonderful lawyer. Not just that but the has a great sense of humor which really connects with the jury. One of the funnier parts of the trial dealt with Hugo Boss suits. The government claimed Helio should have reported the income from getting free suits from them. Our defense was that Hugo Boss was a sponsor of the racing team and Helio had to wear the suits. The claim was pretty petty. The total retail value of the suits was around $12,000. The summary government expert even admitted the amount was not material to the return. I cross-examined the CEO of Hugo Boss about how wonderful their suits were and that they wanted to show them off by having a slim good looking guy like Helio wear them. Then Bob got up, stuck his stomach out (which I can attest goes pretty far) and asked how would the suits look on his body. The jury got a good laugh out of that.

The Fourth Amendment is not dead yet...

...not even in cars. See Arizona v. Gant, decided today (holding that police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest).

The lineup of Justices is interesting -- Scalia votes with the majority while Breyer dissents. I think that right now Justice Scalia might be the most pro-defendant Justice on the Court. No joke.

In other news, check out this editorial in the DBR by Patricia Acosta in which she discusses the recent administrative order allowing reporters to bring in their cell phones, but prohibiting them from using them inside the courtrooms. Here's the conclusion:

A thawing of the federal freeze on electronic access? Hardly. The order — citing federal policies and rules adopted when television cameras were the size of refrigerators and blinding lights were needed to make them work — spells out that while the devices can be brought in, they cannot be used. Use, the order says, would “violate the sanctity of the courtroom and disrupt ongoing judicial proceedings.” Past administrative orders banned only the use of cell phones and cameras inside courtrooms but said nothing about text messaging or e-mailing. This bring-don’t-use rule does not, in my opinion, reasonably advance a legitimate judicial interest nor is it required by the old policies or rules. It assumes that texting is the same thing as 1960s-style broadcasting when that plainly is not the case. It also sets the stage for real disruption when all those BlackBerry-toting scribes rush for the exits after each key development to knock out a few lines, then try to get back in to see what they’ve just missed. The truth is that tapping text on silenced electronic devices is no more disruptive of courtroom proceedings than scribbling on a piece of paper, whispering in someone’s ear, a yawn, or a nod of the head in reaction to a ruling or a critical admission. No significant noise is created by the mere act of pressing the keys of a device to create or view a message. Federal judges themselves type electronic messages throughout trials and hearings. They know this does not disrupt the proceedings. Why then, the rule? It’s obvious. Once the tweeting starts, we’ll have real time, electronic reporting on big federal trials. This won’t harm the dignity of the proceedings, but it will further the case for letting video cameras in the door as well. Of course, the case for allowing that to happen was proven not only 30 years ago but also throughout the last 30 years of Florida state court history, so federal judges ought not be afraid that if they now allow a little twittering to go on, it will force them to do what they should have done long ago. We finally have reached the era where knowledge can be transmitted at the speed of light from almost any place. This technological advancement is here to stay and makes the world a better place. In the courtroom, it allows the journalist instantly to report the defendant’s gasp and the relative’s tears as the freshly rendered verdict shocks through the air. Thirty years ago, the spirit of openness drove seven courageous Florida judges to embrace a bold new technology that made our democracy better. Their federal colleagues need to start down that path somewhere. Tweet.

Who will be the next U.S. Attorney?

Inside Track has a post here about the slow selection process. Here's a piece:

While other states are starting the interview process, the federal Judicial Nominating Commission in the Sunshine State still has not issued a notice seeking applications to replace Miami U.S. Attorney Alex Acosta, whose term is up this summer. Acosta is interviewing Wednesday for the dean’s position at Florida International University’s law school.
The delay in calling for applications could mean that Acosta’s top assistant, Jeff Sloman, would likely serve as acting U.S. attorney. Sloman, a Democrat, is said to be interested in the job permanently.
Meanwhile, another potential applicant has emerged: Broward Circuit Judge Ilona M. Holmes.
After President Obama was elected and a turnover in U.S. attorneys was apparent, talk centered on Greenberg Traurig attorney Jackie Becerra, a Hispanic woman and the former right hand to U.S. Attorney Marcos Jimenez. But word is she’s happy at Greenberg, and her office confirmed Friday that she just adopted a baby. So, congratulations to Jackie.
Another name in the mix is Miami-Dade Assistant County Attorney Wilfredo Ferrer, a former federal prosecutor.
Other legal eagles who have surfaced as possible Acosta replacements are in alphabetical order David Buckner with Kozyak Tropin & Throckmorton in Coral Gables, Brian Miller at Akerman Senterfitt in Miami, Curtis Miner at Colson Hicks Eidson in Coral Gables, Mark Schnapp of Greenberg Traurig, Miami-Dade Circuit Judge Daryl Trawick and Bruce Udolf at Berger Singerman in Fort Lauderdale.
Diversity came up as an issue for women, blacks and Cuban-American Democrats looking at the makeup of the 56-member commission. Among the names mentioned so far, Holmes and Trawick are black, and the rest are white males.

Will the feds retry Helio Castroneves?

As you all know by now, the jury acquitted Helio Castroneves and his co-defendants of all counts, save for one conspiracy count. Technically the government has the ability to retry Helio on that count. But will they?

In the past, this U.S. Attorney's office has retried defendants after hung juries -- for example, we are on the third Liberty City trial, and the office retried the Joe Cool case after it hung. But this is different because the jury acquitted Helio of every substantive count. I would be really surprised if the feds chose to retry this one count. The sense is that Helio won the trial and was vindicated, so a retrial would look petty and vindictive. Plus, there's no reason to believe that the next jury would have any more reason to find Helio guilty after the first jury rejected almost the entire case. What say you readers -- should the U.S. Attorney's office retry Helio on the one hung count?

(p.s. Rumpole, let me know if you want to double down on your last bet).

Helio Castroneves found not guilty

All three defendants found not guilty. The jury hung on one count as to Helio... I can't imagine that they would retry it. Congrats to him and his defense team.

Rumpole, get that Benjamin ready

The jurors in the Helio case asked for the opening statements to be read back today. Judge Graham said no, telling the jurors that opening statements weren't evidence. From Jay Weaver's article:

The jury said it reached a verdict on two tax-evasion counts against the 33-year-old Castroneves and deadlocked on five others -- including the leading conspiracy charge.
The panel also said it reached a verdict on one charge against the driver's sister/manager, Katiucia Castroneves, 35, but deadlocked on the other six.
Jurors said they did reach a verdict on four counts against Castroneves' sports lawyer, Alan R. Miller, 71, of Michigan, including the main conspiracy charge. Miller was not charged in the three other tax-evasion counts in the indictment.
One of Castroneves' lawyers, Roy Black, urged the judge to bring the deliberations -- now in their sixth day -- to a close. He asked Graham to announce the partial verdicts and to declare a mistrial on the deadlocked counts.
The judge refused.
Miller's attorney, Robert Bennett, then asked Graham if he would at least announce the jury's verdict for his client, saying the anticipation was ``sheer agony.''
Federal prosecutor Matt Axelrod opposed disclosure, raising concern about courtroom ''reaction'' if the jury's verdict on Miller was revealed at this point.
The judge sided with the government, denying Bennett's request.
It appears from the defense lawyers' requests in court that they're confident Miller may have been acquitted and that the jury may also have acquitted the Castroneves siblings on a least a few of the tax-evasion charges. A mistrial declared on the remaining counts would be an additional setback for the government.