"This appeal is about usurping the role of the jury in a criminal trial byrelying upon racial stereotypes."

That's how Judge Pryor started the opinion in United States v. Almanzar. Also on the panel was Judge Carnes and our very own Judge Seitz.

The rest of the opinion's intro:

The key question presented is whether there is sufficient evidence to support a jury verdict that Araceli Almanzar knowingly possessed with the intent to distribute 500 grams or more of methamphetamine. 21 U.S.C. § 841(a)(1), (b)(1)(A). The United States appeals the judgment of acquittal and conditional grant of a new trial entered in favor of Almanzar after a jury found her guilty of the charged offense. During a traffic stop of a truck loaded with 6,665 grams of methamphetamine in a hidden compartment, Almanzar exercised control over the truck and gave both written and verbal consent to its search, lied to a state trooper about the ownership of the truck and her acquisition of it, presented a phony bill of sale, and appeared to be so nervous as to be on the verge of a “panic attack,” with her hands shaking and her mouth dry. Almanzar later admitted that she had lied to the state trooper because her travel by bus from Dallas to Atlanta with her brother to retrieve the truck from two strangers was “suspicious.” She also admitted that she knew the truck contained “something we were not supposed to have.” Before the district court entered a judgment of acquittal, it stated that “life is different for a Hispanic woman in a male dominated culture, . . . the cultural expectations are different and that Hispanic women frequently, basically, do what their male family members ask them to do without asking lots of questions.” The United States argues that the evidence was sufficient to support the jury’s verdict and the district court applied the wrong standard of review, relied on speculation and impermissible stereotypes, considered information not in the record, and substituted its judgment for that of the jury. The United States also argues that the jury’s verdict was not a miscarriage of justice that would support the grant of a new trial. We agree with both arguments of the United States. We vacate in part, reverse in part, and remand with instructions to reinstate the jury’s verdict and conduct further proceedings consistent with this opinion.

Who got this one right -- the district judge or the 11th Circuit?

Trustee Marika Tolz charged with $16 million fraud

The South Florida Business Journal has the story about 64-year-old Hollywood bankruptcy trustee Marika Tolz here. She is charged with misappropriating $16 million in court funds and pocketing $2.4 million of it for herself.

The case is set for first appearance before Judge Garber today at 1:30. Luis Perez is prosecuting and Ben Kuehne is defending. The case is assigned to Judge Lenard. Tolz is charged by way of information so it is evident that a deal already has been struck. In fact the SFBJ is reporting that Ben Kuehne says that Tolz “acknowledges her errors and fully anticipates that all funds will be fully reimburse or restitution made.” More:

Kuehne confirmed that Tolz intends to plead guilty.

“She will be accepting full responsibility for her conduct,” he said.

I asked Kuehne if he could say why Tolz started down the path of corruption. The charges against her suggest she used official funds for person expenses beginning in 2003, but the government’s information in the case doesn’t accuse her of living a “lavish lifestyle,” like other recent fraud cases in South Florida.

“At this point offering any factual description would only be viewed as trying to explain away what happened,” Kuehne said. “She is not attempting to offer excuses.”

Justice Alito doesn't like the First Amendment

He was the lone dissenter in the crush video case. And now he is the lone dissenter in the funeral protester case:

The Supreme Court ruled Wednesday that the First Amendment protects fundamentalist church members who mount anti-gay protests outside military funerals, despite the pain they cause grieving families.

The court voted 8-1 in favor of the Westboro Baptist Church of Topeka, Kan. The decision upheld an appeals court ruling that threw out a $5 million judgment to the father of a dead Marine who sued church members after they picketed his son's funeral.

Chief Justice John Roberts wrote the opinion for the court. Justice Samuel Alito dissented.

Roberts said free speech rights in the First Amendment shield the funeral protesters, noting that they obeyed police directions and were 1,000 feet from the church.

"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and - as it did here - inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker," Roberts said. "As a nation we have chosen a different course - to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

Alito strongly disagreed. "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he said.

Maybe the title to the post is too harsh... Justice Alito did side with corporate First Amendment rights.

In other SCOTUS news, the Court again reiterated that judges weren't tied to the guidelines, even on resentencing cases. In Pepper v. United States, Justice Sotomayor explained that a resentencing court could take into account post-sentencing rehabilitation. Doug Berman has more at his blog, but it is worth pointing out that the Court made sure to reiterate to district courts that there are times that the guidelines are based on "wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted."

In other news, give your thoughts on Magistrate Judge Hopkins.

Cop/Mortgage fraud trial starts

The estimated 5 week trial is in front of Judge Cohn in Ft. Lauderdale. The Herald is covering it here:

The fraud trial of six law enforcement officers accused of helping to run a multi-million dollar home loan scam got underway Tuesday with opening statements in U.S. District Court in Fort Lauderdale.

According to federal indictments filed in July, John Velez, Daryl Radziwon, Casey Mittauer, Joseph DeRosa, all current or former Plantation Police officers, along with Lauderhill Police officer Joseph LeGrasta and FBI Special Agent Robert DePriest, of Plantation, fraudulently secured $16.5 million in mortgage loans in a house-flipping scheme during the housing boom several years ago.

The men are charged with offenses, ranging from conspiracy to mail and wire fraud, to obstruction of justice, and making false statements. All but the false statements charge carry penalties of up to 20 years imprisonment. The latter charge comes with as much as five years of prison time.

Is the case about greed or simple cops?

Federal prosecutors argued that the defendants were willing participants in the plan and had to have known Rodriguez and Gulla were forging documents in their names. Prosecutors also suggested the defendants were motivated by earnings they couldn’t achieve through real estate investments made with their own money and their own credit worthiness.

But defense attorneys opened their cases by arguing their clients were good cops and simple investors, too naive about the workings of fast-paced real estate financing to know their personal information was being used to defraud lenders.

Judge Cohn has to try the case twice:

At the conclusion of this trial, a second trial will start for Joseph Guaracino, his brother Dennis Guaracino, also a former Plantation Police officer, and attorneys Steve Orchard and Stephen Stoll, who allegedly helped seal the fraudulent deals by handling the loan closings.

Some of members of the fraud ring had to be tried separately because they have made incriminating statements about other defendants, and prosecutors believe those statements could tarnish possible convictions and bring about mistrials.

Justice Scalia issues strong dissent in favor of criminal defendant

Here is his intro in Michigan v. Bryant:

Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps as an intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort. Because I continue to adhere to the Confrontation Clause that the Peoplea dopted, as described in Crawford v. Washington, 541
U. S. 36 (2004), I dissent.

The conclusion is strong too:

Judicial decisions, like the Constitution itself, are nothing more than “parchment barriers,” 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges’ policy preferences. Today’s opinion falls far short of living up to that obligation—short on the facts, and short on the law. For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.

Justice Ginsburg also dissented in a short opinion.

Justice Sotomayor, a former prosecutor, wrote the majority opinion, which held:

[The witness] Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a “primary purpose . . . to enable police assistance to meet an on-going emergency.” Davis, 547 U. S., at 822. Therefore, their admission at Bryant’s trial did not violate the Confrontation Clause.

Yikes. I stick to what I have said before that Justice Scalia is the criminal defendant's best friend on this Court. I know that's not saying much, but it's true.