Tough sentencing hearing

What should a judge do when a jury completely rejects the government's case (acquits of all felony charges) but convicts of a sole misdemeanor count?  This issue came up at yesterday's sentencing of former Massey CEO Don Blankenship. The case involved allegations of a cover up of an explosion that killed 29 people. The judge gave the maximum 1-year sentence.  From the AP:

Standing before a federal judge, former coal company executive Don Blankenship expressed sorrow for the families of 29 men killed in his coal mine six years ago but contended that he committed no crime.
"I just want to make the point that these men were proud coal miners. They've been doing it a long time. And they'd want the truth of what happened there to be known," Blankenship said Wednesday, drifting closer toward mentioning his theory that an act of nature, not negligence, caused the deadly explosion in his mine.
The judge told him to stop talking about the explosion and handed down the stiffest sentence allowed for his misdemeanor conviction: one year in prison and a $250,000 fine. ***
A federal jury convicted Blankenship on Dec. 3 of a misdemeanor conspiracy to violate mine safety standards at Upper Big Branch. The jury acquitted him of felonies that could have extended his sentence to 30 years.
The trial wasn't about what caused the explosion, and the judge made that painstakingly clear. U.S. District Judge Irene Berger also ruled that family members couldn't speak at Wednesday's sentencing for similar reasons, saying they weren't eligible for restitution and the cause of the explosion wasn't up for debate in the case.
At Upper Big Branch, four investigations found worn and broken cutting equipment created a spark that ignited accumulations of coal dust and methane gas. Broken and clogged water sprayers then allowed what should have been a minor flare-up to become an inferno.
Blankenship disputes those reports. He believes natural gas in the mine, and not methane gas and excess coal dust, was at the root of the explosion.
Blankenship rose from a meager, single-mother Appalachian household to become one of the wealthiest, most influential figures in the region and in the coal industry, and someone who gives back to the community, the judge noted Wednesday.
"Instead of being able to tout you as one of West Virginia's success stories, however, we are here as a result of your part in a dangerous conspiracy," Berger said.
During the trial, prosecutors called Blankenship a bullish micromanager who meddled in the smallest details of Upper Big Branch. They said Massey's safety programs were just a facade — never backed by more money to hire additional miners or take more time on safety tasks.
Blankenship's attorneys believe he shouldn't have gotten more than a fine and probation, and have promised to appeal. They embraced Blankenship's image as a tough boss, but countered it by saying he demanded safety and showed commitment to his community, family and employees.

More on the possibility of Judge Pryor moving to SCOTUS

The Heritage Foundation gave it short list of judges, and Judge Pryor tops the list:

In addition to an in-depth knowledge of the law and a settled judicial philosophy, a judge must have the backbone to withstand the inevitable onslaught of withering criticism from the mainstream media and the societal elites, cognoscenti, and other habitués who frequent the Georgetown and New York cocktail circuits without moderating his or her view to please them. Although he was speaking about his religious beliefs at the time, Scalia’s words could just as easily apply to conservative judges: “Have the courage to have your wisdom regarded as stupidity. … And have the courage to suffer the contempt of the sophisticated world.”
While there are a number of well-respected organizations within the conservative movement whose views should be solicited and considered, the following non-exclusive list of current judges illustrates the kind of highly qualified, principled individuals the new president should consider—after a thorough review of their backgrounds, records, legal acumen, judicial philosophies, and intestinal fortitude—for nomination to the Supreme Court.


William Pryor Jr. (Judge, 11th U.S. Circuit Court of Appeals)
The former Alabama attorney general made headlines in 2004 when President George W. Bush recess appointed him to the 11th U.S. Circuit Court of Appeals in Atlanta, where he was subsequently confirmed. While he was considered by some as controversial in 2004, during his 12 years on the bench, Pryor has established himself as a serious and thoughtful jurist, and has written on a variety of important issues. He is also a member of the U.S. Sentencing Commission.

One (not so) Shining Moment

Judge Moreno took into consideration that this defendant did a whole lot of good both before and after getting popped in this case.  From Dave Ovalle:

The judge heard a long list of bad stuff about Jorge Hernandez, the heavily tattooed, bodybuilding ex-U.S. Army soldier who ran one of the largest Molly drug rings in Miami history.
Three beautiful women, his ex-lovers facing prison time themselves, blamed Hernandez for fueling their drug addictions while convincing them to help smuggle in kilos of the synthetic drug from China. Two of them accused him of physical and psychological abuse.
One of his buddies insisted he helped Hernandez only to partake in the lifestyle of night clubs, porn stars and luxury rides.
But once he was caught, Hernandez proved to be an ace undercover operative – making drug deals that helped agents bust 13 other people. “The best I’ve seen in my experience,” federal prosecutor Marton Gyires told the judge on Monday during his sentencing.
That cooperation, combined with Hernandez’s impressive service in the military– he served in Iraq and Afghanistan as an Arabic-speaking translator – persuaded U.S. District Judge Federico Moreno to shave some time off what could have been a sentence of at least 10 years in prison. The end result: Hernandez, 37, will serve only four years.
“It wasn’t just service. It was combat duty,” Moreno said. “He should be given credit for his service to the military.”

Another defendant didn't fare as well:

Moreno also sentenced Seth Daniel Murray, 28, the son of two Miami-Dade corrections officers. Murray also wired money and picked up Molly packages, although his lawyer insisted it was only to “endear” himself to the lifestyle enjoyed by Hernandez.
“If someone says beautiful women, porn stars and ‘you can drive my Bentley,’ most people are going to say ‘yes’,” lawyer Scott Saul said.
Judge Moreno sentenced Murray to 50 months in prison, but not before noting: “The fact that he was enamored with the Hernandez lifestyle – I’m sure that love has dissipated by now.”

Read more here: http://www.miamiherald.com/news/local/crime/article69913522.html#storylink=cpy

Back to Blogging

Hey, sorry about the slow blogging last week.  I was trying a short case before Chief Judge Moore, and now I'm back.  What did I miss?

Housing Market bubble part 2, this time due to foreign investors -- via the Miami Herald:

In Miami, secretive buyers often purchase expensive homes using opaque legal entities such as offshore companies, trusts and limited liability corporations.
Offshore companies are legal as long as the companies declare their assets and pay taxes. But the secrecy that surrounds those companies makes it easy and tempting to break the law.The U.S. Treasury Department is so concerned about criminals laundering dirty money through Miami-Dade County real estate that in March it started tracking the kind of transaction most vulnerable to manipulation: shell companies buying homes for at least $1 million using cash.

Those deals are considered suspicious because a) the real buyers can hide behind shell companies and b) banks aren’t involved in cash transactions, circumventing any checks for money laundering.
Cash deals accounted for 53 percent of all Miami-Dade home sales in 2015 — double the national average — and 90 percent of new construction sales, according to the Miami Association of Realtors.
“A property owned in the name of a shell company is not transparent,” said Jennifer Shasky Calvery, director of the U.S. Financial Crimes Enforcement Network (FinCen), the Treasury agency behind the new policy. “There may be legitimate reasons to be non-transparent, but it’s also what criminals want to do.”
The temporary initiative also applies to Manhattan and expires in August. It requires that real-estate title agents identify the true, or “beneficial,” owners behind shell companies and disclose their names to the federal government. In Miami-Dade, the rules apply to homes sold for $1 million or more. In Manhattan, where real estate is more expensive and where foreign buyers also flock, the threshold is $3 million.
No other jurisdictions are being targeted.

Even a former Supreme Court Justice from Brazil is allegedly involved according to the MH:

When Brazilian news outlets found out then-Supreme Court chief justice Joaquim Barbosa had bought a Brickell condo in 2012, they asked the well-respected jurist how much he paid.
Barbosa refused to say.
The problem? In Florida, real-estate sales are public.
But not Barbosa’s.
Miami-Dade County property records seemed to suggest the 61-year-old paid a big, fat zero for his one-bedroom condo at Icon Brickell, one of the trendy neighborhood’s best-known condo towers.
Buyers are supposed to pay a documentary stamp tax when they close on a property. In Miami-Dade, the tax amounts to 60 cents for every $100 paid for the property. Sales prices aren’t listed on deeds — but they can be calculated from the tax.
The deed for Barbosa’s unit lists no tax. (Even when someone gives their property away to a family member, they pay a nominal tax.)As it turns out, Barbosa didn’t get the apartment for free. The unit’s seller sent the Miami Herald a contract showing Barbosa paid $335,000 in cash. The tax on that sale would have amounted to about $2,000.
Three real-estate attorneys consulted by the Miami Herald could see no reason why Barbosa wouldn’t be subject to the tax.
“This is a very unusual deed,” said one of the attorneys, Joe Hernandez of South Florida law firm Weiss Serota.
It’s not clear why the Florida Department of Revenue didn’t flag the nonpayment and impose a fine. A spokeswoman said the department could not comment on individual cases.
Details of Barbosa’s purchase came to light after a massive leak of documents from inside Panamanian law firm Mossack Fonseca.

Congrats to the Srebnick brothers for their SCOTUS win

The case is Luis v. United States, issued today.  Here's the intro by Justice Breyer:

A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. See 18 U. S. C. §1345. Those assets include: (1) property “obtained as a result of ” the crime, (2) property“traceable” to the crime, and (3) other “property of equivalent value.” §1345(a)(2). In this case, the Government has obtained a court order that freezes assets belonging to the third category of property, namely, property that is untainted by the crime, and that belongs fully to the defendant. That order, the defendant says, prevents her from paying her lawyer. She claims that insofar as it does so, it violates her Sixth Amendment “right . . . to have the Assistance of Counsel for [her] defence.” We agree.

 And here's a picture of Howard arguing the case, from SCOTUSblog: