"How FBI moles snared terror suspects"

That's the headline of today's Herald article about the now infamous Miami 7 "terror" case. It has many more details than previous press acounts. It explains the initial meeting between the lead defendant, Narseal Batiste, and the FBI this way:

Batiste, a struggling contractor born in Chicago who headed the local branch here of a Moorish religious sect, became friendly with the store's owner after learning that he was going to Yemen on vacation in October. The store owner happened to be an FBI informant.
After the shopkeeper's return, Batiste, with two of his followers present, laid out his vision. Batiste said that he was a member of the Moorish Science Temple -- a sect that blends Christianity, Judaism and Islam -- and that its members were entitled to their own government within the United States. Violence was the only way, he said, and he explained to the store owner that only extreme Islamic groups, such as al Qaeda, could help.
The shopkeeper told the FBI of Batiste's plans. For FBI agents, the threat was serious enough to have him introduce Batiste to another informant, an Arabic man with a thick accent.
The second man was Mohammad, a friend of the store owner's uncle. Batiste pressed the shopkeeper to find out whether the man knew al Qaeda leader Osama bin Laden, but was told that question was off limits.

So far the press has been very pro-defendant. This article is not at all.

Get well

Apparently Magistrate Judge Theodore Klein is seriously ill. We wish him the very best and hope for a speedy recovery.

Padilla reviewing documents at courthouse

So says this AP article.

Justice Kennedy Speaks Out Against Lengthy Sentences

Once again Justice Kennedy has spoken - federal sentences are too harsh. Period. His latest comments came from a speech at the Ninth Circuit Conference this week.

"If an 18-year-old is growing marijuana for a friend, that's distribution," the Sacramento native told judges, lawyers and court officials at the conference, held at the Hyatt Regency. "If he has his father's .22 rifle, that's a firearm. That will get 15 years. "Did you know what 15 years was when you were 18? I didn't when I was 18."

Justice Kennedy also spoke out against the lobbying efforts of correctional officers' unions adding: "The fact that the prison guards' association lobbies for higher penalties is sick," Justice Kennedy said.

I guess the question is what can be done? It appears, at least thus far, that Justice Kennedy's bark is louder than his bite? He has yet to author an opinion with the same rhetoric of his recent speeches. Whatever one's beliefs are regarding the length of federal sentences, it appears that this debate is far from over.

Cocaine Cowboy movie

Readers of this blog might be interested in Alfred Spellman's and Billy Corben's new documentary, Cocaine Cowboys. Check out the profile in the July issue of Ocean Drive and their
blog.

News and notes

Lots of good stuff in the Review today:

1. Padilla news (subscription required) from Julie Kay: "Defense attorneys involved in the scheduled trial of Jose Padilla and four co-defendants accused of plotting and supporting terrorism are sparing no expense in preparing their defense, including traveling to the Middle East to interview potential witnesses. William Swor, the Detroit lawyer for Kifah Jayyousi, is currently in the Middle East, and Kenneth Swartz, the Miami lawyer who represents Adham Hassoun, is planning on traveling to Jordan and Egypt later this month, according to sources involved in the case. Swartz declined to comment, and Swor was unavailable. It’s unclear whether lawyers for key defendant Padilla also will be traveling to the Middle East. Calls to Andrew Patel of New York and Michael Caruso of the federal public defender’s office in Miami were not returned by deadline. Also last week, Padilla’s lawyers asked the government to initiate a request for “evidence and assistance” from Egypt. No further information about what information Padilla’s lawyers are trying to obtain was available in the court file. Padilla’s attorneys asked for the request to be sealed, so the prosecution team would not find out about it. U.S. District Judge Marcia Cooke denied the request."

2. Former U.S. Attorney news (subscription required) by Carl Jones: Marcos Jiminez is stirring the pot -- "Former U.S. Attorney Marcos Jimenez has filed an unusual petition on behalf of the Miami-Dade Judicial Nominating Commission asking the Florida Supreme Court to override the Legislature and allow the governor to appoint 55 new judges. When the Legislature created the new positions in May it specifically required the judges be elected. Jimenez and the 11th Judicial Circuit JNC — whose nine members were all appointed by Gov. Jeb Bush — asks that the judgeships be filled by appointment by the end of this year. That would mean that Gov. Bush would get to appoint the new judges before he leaves office in early 2007. The surprise move seeks to reverse a delicate compromise reached last year between Republicans and Democrats. Last year, the Republican-controlled Legislature created 55 new judgeships to be filled through appointment by the Republican governor. The deal with the Democrats was that the judgeships created in 2006 would be filled through election. The seats created this year included 35 circuit court judgeships and 20 county court judgeships."

Interesting issue here. Any thoughts?

News and notes

Lots of good stuff in the Review today:

1. Padilla news (subscription required) from Julie Kay: "Defense attorneys involved in the scheduled trial of Jose Padilla and four co-defendants accused of plotting and supporting terrorism are sparing no expense in preparing their defense, including traveling to the Middle East to interview potential witnesses. William Swor, the Detroit lawyer for Kifah Jayyousi, is currently in the Middle East, and Kenneth Swartz, the Miami lawyer who represents Adham Hassoun, is planning on traveling to Jordan and Egypt later this month, according to sources involved in the case. Swartz declined to comment, and Swor was unavailable. It’s unclear whether lawyers for key defendant Padilla also will be traveling to the Middle East. Calls to Andrew Patel of New York and Michael Caruso of the federal public defender’s office in Miami were not returned by deadline. Also last week, Padilla’s lawyers asked the government to initiate a request for “evidence and assistance” from Egypt. No further information about what information Padilla’s lawyers are trying to obtain was available in the court file. Padilla’s attorneys asked for the request to be sealed, so the prosecution team would not find out about it. U.S. District Judge Marcia Cooke denied the request."

2. Former U.S. Attorney news (subscription required) by Carl Jones: Marcos Jiminez is stirring the pot -- "Former U.S. Attorney Marcos Jimenez has filed an unusual petition on behalf of the Miami-Dade Judicial Nominating Commission asking the Florida Supreme Court to override the Legislature and allow the governor to appoint 55 new judges. When the Legislature created the new positions in May it specifically required the judges be elected. Jimenez and the 11th Judicial Circuit JNC — whose nine members were all appointed by Gov. Jeb Bush — asks that the judgeships be filled by appointment by the end of this year. That would mean that Gov. Bush would get to appoint the new judges before he leaves office in early 2007. The surprise move seeks to reverse a delicate compromise reached last year between Republicans and Democrats. Last year, the Republican-controlled Legislature created 55 new judgeships to be filled through appointment by the Republican governor. The deal with the Democrats was that the judgeships created in 2006 would be filled through election. The seats created this year included 35 circuit court judgeships and 20 county court judgeships."

Interesting issue here. Any thoughts?

No bond for old Mafia suspects

Here's the intro from the Sun-Sentinel article on the bond denial in the South Florida Genovese crime family:

A federal judge denied bond Friday to the alleged boss of the Genovese crime family's South Florida operations and three others awaiting trial on charges of extortion, robbery, and money laundering. He will consider bond for another man.U.S. Magistrate Judge Barry Seltzer denied bail for Renaldi ``Ray'' Ruggiero, 72, whom federal prosecutors identified as a Genovese capo or captain, and three of his co-defendants--Joseph Dennis Colasacco, 54, Charles Steinberg, 30, and Mitchell Weissman, 54, said Weissman's attorney John Contini.

Seltzer, prosecutors and attorneys for another defendant, Francis O'Donnell, 47, will continue negotiations for his release on Monday, said Theresa Van Vliet, one of his attorneys. O'Donnell is the head of Coach Industries Group, a financial services company.

Ken Lay is not a convicted criminal

Because he died before his direct appeal was final, Ken Lay's conviction is technically abated, which means that his entire criminal case is treated as though it never existed. (The conviction and sentence of a defendant is vacated when he dies if his appeal is yet to be decided. See Schreiber v. Sharpless, 110 U.S. 76,80 (1884)). My first case at the Federal Defender's office involved this issue, albiet in a different way.

UPDATE -- White Collar Crime Blog has more about the law in the Fifth Circuit:

In a recent Fifth Circuit decision, United States v. Estate of Parsons, 367 F.3d 409 (5th Cir. 2004), the court explained that "the appeal does not just disappear, and the case is not merely dismissed. Instead, everything associated with the case is extinguished, leaving the defendant as if he had never been indicted or convicted." In Parsons, the court vacated a forfeiture order, which means that the government's forfeiture claim against Lay for $43.5 million will be dismissed. The Fifth Circuit explained the rationale for the rule: "The finality principle reasons that the state should not label one as guilty until he has exhausted his opportunity to appeal. The punishment principle asserts that the state should not punish a dead person or his estate." An interesting question is whether one can still describe Lay as having been convicted of a crime, at least in a technical sense, because the law no longer recognizes there having been any criminal case initiated against him.

Bail denied to Miami seven

Magistrate Judge Bandstra denied bond to the suspects charged with plotting to bomb the Sears Tower. Here's the report from Vanessa Blum:


MIAMI - U.S. Magistrate Judge Ted Bandstra on Wednesday denied bond for six of the seven South Florida men arrested last month on charges they planned to bomb the Sears Tower in Chicago and the FBI building in Miami.

Bandstra called the allegations "serious" and said no conditions of release could ensure the safety of the community.

``The charges against each of the defendants are serious charges and constitute counts of violence,'' Bandstra stated, adding that it was ``not relevant that the plans appear to be beyond the abilities of the defendants.''

A lawyer for the plot's alleged ringleader Narseal Batiste called the government's case a "set-up."

"This case is essentially something the government set up to knock it down," said attorney John Wylie.

Happy 4th of July...

... and happy one year birthday to the Southern District of Florida Blog.

We turned one this weekend. This was the first post, urging President Bush to appoint a Floridian to the Supreme Court. I'm shocked that no one listened! But since then, our readership has grown. We're averaging over 175 hits a day during the week. And we've had 32,322 total visits as of this post. Pretty incredible.

And since that first post, our Supreme Court has dramatically changed and the Southern District has continued to get the biggest and best cases in the country. On a personal note, I've started my own firm and have added another child to the Markus clan... It's been a fun year.

Thanks to everyone who reads, emails me with tips, and posts comments.

Miami 7 stuff

The motion to disqualify the FPD was denied. For now, John Wylie is still in the case.

The bond hearing was continued until Wednesday... Here are the details of what happened so far. Looks a little to me like the Government was pre-trying its case because of the bad press it has been getting. I've never seen a bond hearing where the Government shows so many of its cards. Typically the strategy is to show as little as possible because the discovery rules are so restrictive. But here where there have been so many questions about this case, the Government must have figured that it needed to present its case now. The defense gets to present its side on Wedndesday...

Feds arrest alleged South Florida head of Genovese crime family

The AP story here: "Renaldi 'Ray' Ruggiero, whom prosecutors identified as a capo or captain of the family's operations in South Florida, appeared in federal court in Fort Lauderdale Friday morning, along with his co-defendants: Genovese family "soldier" Albert "Chinky" Facchiano, and family associates Joseph Dennis Colasacco, Mitchell Weissman, Francis J. O'Donnell, Clement Santoro and Charles Steinberg."

Motion to disqualify FPD

I just read the Government's motion (filed today by AUSAs Jackie Arango and Richard Getchell) to disqualify the Federal Public Defender's Office from representing Narseal Batiste, the lead defendant in the latest terrorism indictment, due to an actual conflict of interest.* Judge Bandstra will be hearing this motion before the pre-trial detention hearings tomorrow afternoon. Although Scalia's choice of counsel opinion from this week does not apply to appointed counsel cases, it will be interesting to see if the defendant objects if the judge terminates his current counsel. I've heard the PD's office is opposing the motion, which should make for an interesting heairng. More to follow...

*Apparently, the PD's office also represents a potential witness in the case.

UPDATE -- Here's more from the Herald about this witness, nicknamed the Sultan.
ANOTHER UPDATE -- The Daily Business Review has more on the conflict issue here.

Supreme disagreement

Despite the early word on the Roberts' Court -- that everyone was getting along, that there was going to be consensus, and that it was going to be a much different court -- we got back to the old bickering this week. The Court decided three decisions yesterday -- two were 5-4 (the Kansas death penalty case and the right to counsel of one's choice case). In both cases, there were very animated opinions sniping back and forth. And then there was the campaign finance decision, a 6-3 affair but with 6 different opinions for the "winners." Not kidding.

In other very interesting news outside our district, Judge Lewis A. Kaplan (S.D.N.Y.) today ruled, in a must read case, on certain individual defendants’ motions to dismiss an indictment arising from the KPMG tax shelter investigation. (Large pdf here.) The issue was whether the feds properly intimidated KPMG from paying its employees legal fees. Here's Concurring Opinions on what happened:


June 27, 2006
Wild KPMG Fees Decision
posted by Dave Hoffman
Barely one day old, and Gonzalez-Lopez is already making waves in corporate law. To see the connection, however, you’ll have to bear with me for a bit of brush-clearing.
Judge Lewis A. Kaplan (S.D.N.Y.) today ruled on certain individual defendants’ motions to dismiss an indictment arising from the KPMG tax shelter investigation. (Large pdf here.) According to the defendants, their due process rights were violated when the U.S. Attorney pressured their former employer (KPMG) not to advance and reimburse legal fees incurred as individuals defendants. Judge Kaplan found a due process violation, scolded the government, and suggested a new lawsuit against KPMG to recover those legal fees, in which today’s decision would have collateral effect and make the proceedings summary. In short: the decision seems to constitutionalize the right to receive indemnification from your employer.
KPMG had a "longstanding voluntary practice" of paying legal fees where employees required separate counsel in matters arising from the employment relationship, regardless of whether the employee had been charged criminally or civilly with wrongdoing. These arrangements were not memorialized in the partnership agreement governing most of the defendants, nor were there contractual provisions about it. No mention is made in the opinion of the relevant insurance negotiations or provisions.
The background law governing most of the partner-defendants (Delaware) requires neither indemnification nor pre-payment. However, two of the defendants, mere employees residing in California, had a right to indemnification arising out of California statutory law.
Judge Kaplan construed this arrangement as a legal entitlement. At the least, according to Judge Kaplan, the defendants had "every reason to expect that KPMG would pay their legal expenses in connection with the government's investigation." (But this was the sort of expectation, as Judge Kaplan later argued (p.57) that might give rise to a tortuous interference claim). In the alternative, and in a footnote, Judge Kaplan wrote that "arguably" the defendants had a contract "implied in fact from KPMG's uniform past practice and the circumstances of the business." (Fn. 119).
Wow. But how does this contract problem get turned into a Gonzalez-Lopez due process problem? Ah, it turns out that the government has a set of prosecution guidelines to help it determine when to indict a corporation. As a part of those guidelines, the government treated payment of an employee’s legal fees as a blemish on the corporation’s record. And, thus, the U.S. Attorney negotiating with KPMG (itself desperate to avoid indictment) told the Firm that "under the fedaral guidelines misconduct can not be rewarded [by the payment of fees of wrongdoers."]
KPMG got the message. Shortly thereafter, KPMG notified the defendants that their legal fees would be compensated only as long as they cooperated -- they could not take the Fifth, for example. Further, KPMG apparently capitulated to the government's demand by backing away on a recommendation that the defendants obtain counsel.
Judge Kaplan found that this conduct by the government violated the defendants’ right to a fair trial and (I think) to counsel of their choice. In a passage of the opinion I don't really grasp, the court (p. 49) found that the pressure to cooperate exerted by the Thompson memorandum (the relevant prosecutorial guidelines) on KPMG should be subject to "strict scrutiny" because (1) this will be a big trial, requiring "substantial resources"; and (2) the government interfered with the ability of the KPMG defendants “to obtain resources they otherwise would have had." While the government claimed that it only used its guidelines to infer lack of cooperation when the payment of fees was used to impede investigations, the court found that the public perception of such pressure is what matters: "[f]ew if any competent defense attorneys would advise a corporate client at risk of indictment that it should feel free to advance legal fees to individuals in the face of the language of [the guidelines." (p.51) And, under Gonzalez-Lopez, this prejudice creates a per se violation. Judge Kaplan appears to hold that the prosecution guidelines are unconstitutional to the extent that they pressure corporations not to provide indemnification to their employees.
The weirdest part of this interesting decision is the remedy. The court refused to dismiss the indictment (for one, I assume, this would result in an immediate appeal). The government suggested that KPMG be allowed to consider again if it wanted to pay fees, without any threat of retaliation. No go, said the court. Instead, the court said that the defendants must be compensated for all of the expenses they had or would incur. Unfortunately, sovereign immunity bars relief against the government, even though it was the wrong-doer. Instead, the court held that KPMG, a non-party to the proceeding, was obligated to pay. However, the court lacked personal jurisdiction over KPMG. Therefore, the court recommended that the individual defendants sue KPMG. The court would then conduct a “expeditious[]” hearing and provide relief. [There is apparently an arbitration agreement in the partnership agreement which could delay matters, but the court suggested what it thinks of that provision by saying “Assuming that the KPMG Defendants pursue relief against KPMG and that KPMG remains insistent upon its alleged arbitration remedy, the questions whether the arbitration clause properly is so construed and, if so, whether it is void as against public policy [as frustrating the court’s decision] will be addressed . . . .” (fn. 239). Hee.]
To sum up. KPMG, which had no clear contractual obligation to pay these fees, now must do so compelled by a judicial order. The government can not discourage indemnification to criminal defendants as a part of making a decision about the firm's cooprative attitude (or, at least, it can't do so in writing). One possible result of the case: potentially vulnerable firms will draft by-laws or contracts that exclude indemnification absent cooperation, to make clear that the government has the right to demand cooperation from employees.
The prosecutors, scolded by the court as “economical with the truth” (p. 80-81), must be feeling angry. The defendants, 83 pages later, are still going to trial. But the 28 private firms listed in the caption will get paid.

[UPDATE: More at the White Collar Crime Blog.]

New lawyer for Narseal Batiste

Assistant Federal Defender John Wylie is now representing Narseal Batiste, the supposed leader of the terrorist suspects. I've known John Wylie for a long time -- he's a *great* lawyer.

Lawyers for the terror suspects...

Larry Lebowitz of the Miami Herald will be reporting that the lawyers for terror suspects are:

Tony Natale* (Federal Public Defender) for Narseal Batiste (the supposed leader)
Albert Levin for Patrick Abraham
Nathan Clark for Rotschild Augustine
Richard Houlihan for Naudimar Herrera
Gregory Prebish for Burson Augustin

At the hearing, the U.S. Attorney's office objected to the Federal Defender's appointment saying that the office was already representing a witness. Magistrate Judge Patrick White took the parties sidebar and explained that for now the PD's office would be appointed and if a conflict was later proven, both sides could deal with it. The other lawyers on the case are all appointed from the criminal justice act panel.

*Natale is part of the Padilla team. By mentioning Padilla, I've now done what I was complaining about earlier...

Terror indictment

The Sears tower terror case has been indicted in the Southern District of Florida in front of Judge Joan Lenard. Here is the indictment. And here is Judge Lenard's background.

Terror arrests in Miami

Lots of coverage tonight on the alleged terrorists arrested in the Southern District of Florida. Now the question is whether they will be charged and tried here or in some other district...
Also, does is strike you as strange that every article is mentioning that Jose Padilla is awaiting trial in Miami? There is no alleged connection with these arrests and Padilla so why does every single article mention him?

HEAT HEAT HEAT!!

Wow. Unbelievable. We've been waiting for this for so long. So happy for them... especially Zo. When he blocks a shot, it's better than 5 baskets. Wade is beyond words. Shaq delivers on his promise. UD comes up big. Payton's huge shots. Walker's 3rd quarter. Clutch Posey... And how about Riley.

So many great story lines.

Everyone in Miami is dragging a little today from the last 2 months of playoff hoops. But it is such a happy tired feeling... What a great year.

Sorry for rambling.

If the Heat isn't your thing, and you need Southern District news, check out this Padilla report in the Herald (concerning Judge Cooke granting some pre-trial motions for the defense) and a lengthy article about his co-defendant Adham Hassoun in the Daily Business Review.

Abramoff, Kidan get 3 month surrender extension

So reports the AP here. They are in full cooperation mode. I have to imagine that there are a number of nervous congressmen.

Two new state judges

Congrats to two colleagues -- Reemberto Diaz and Barbara Lagoa. Jeb Bush appointed Reemberto to serve as a state trial judge and Barbara to serve as a state appellate judge. I have tried cases with Reemberto Diaz and have had cases with Barbara Lagoa and believe they will make fantastic judges. Below is the Miami Herald squib with the background on both. I wish both of them well. The criminal defense bar will miss Reemberto and the U.S. Attorney's office will miss Barbara Lagoa. Congratulations again to both.

BUSH APPOINTS LAGOA, DIAZ TO BENCH

Gov. Jeb Bush appointed Assistant U.S. Attorney Barbara Lagoa to the Third District Court of Appeal and Miami attorney Reemberto Diaz to the Circuit Court on Friday.

Lagoa, 38, of Coral Gables, will be the first Cuban-American woman to serve on the 11-member appellate court for Miami-Dade and Monroe counties. She fills a vacancy created by the resignation of Judge David Levy.

Prior to joining the U.S. Attorney's Office in 2003, Lagoa was in private practice at the law firm of Greenberg Traurig. She is a graduate of Florida International University with a law degree from Columbia University.

Diaz, 49, of Coral Gables, is filling a vacancy created by the death of Circuit Judge Henry Leyte-Vidal. Diaz is in private practice. He is a graduate of the University of Miami, with a law degree from Nova Southeastern University.

Bomb squad

Julie Kay reports today that there was bomb scare at the federal courthouse. The article is below. Anyone know what case this is?

When police blew up a suspicious box that caused the evacuation of two federal buildings in downtown Miami, they may have blown up a federal criminal case. Authorities evacuated the courthouses Monday due to a bomb scare.

The Miami Police bomb squad responded and destroyed the box, but it may have contained evidence from a just-decided case. The James Lawrence King Federal Justice Building and the David W. Dyer Federal Building both were evacuated at about 2:30 p.m. for an hour or so on Monday. Hundreds of attorneys and courthouse staffers were ushered out of the buildings by federal marshals wearing yellow vests. They were directed to the street in front of the Federal Detention Center while the bomb squad did its work. Federal judges and magistrates were taken out of the building separately and taken to an undisclosed location.

“A special robot went over to the box, and it went kaboom,” said Mark Schnapp, a partner at Greenberg Traurig in Miami who was at the U.S. attorney’s office when the building was evacuated. But according to two lawyers who were present during the bomb scare and did not want to be named, it turned out that the box contained papers and evidence left on the sidewalk by a federal agent.

The two lawyers said the evidence was from a criminal case in which a verdict had just been reached. That evidence included fake guns and wiretap equipment. Lt. Bill Schwartz, a spokesman for the Miami Police Department, confirmed that the box left between the Miami Dade College campus and the James Lawrence King courthouse contained papers. But he said he had no details about the nature of the papers or who left them there. “Someone accidentally put something down,” Schwartz said. “We felt the need to evacuate the buildings.”

Alberto Hidalgo, a spokesman for the U.S. Marshals Service in Miami, confirmed that the box was blown up by the police bomb squad but said he had no information about what was in the box. Matt Dates, a spokesman for U.S. Attorney Alex Acosta, declined to comment on what the box contained. “We don’t talk about security matters,” he said. If the box did contain evidence in the criminal case, it’s unclear how the loss of the evidence may affect any appeal. Some observers found humor in the situation. “That’s smoking-gun evidence,” said Miami criminal defense attorney David O. Markus, “just not in the way that the agent was hoping for.”

"Is it legal to fire a woman because her breasts are too large?"

Via Ann Althouse, that is the legal question presented in the case of Alice Alyse v. the producers (and various other people associated with) Movin' Out (the Billy Joel musical), filed here in Miami. Alice is represented by Larry Klayman. Here's the Washington Post article. Here's the lawsuit. And here is her website (in case you want to judge for yourself).

Bill Clinton & Bill Nelson

I went to the Bill Clinton/Bill Nelson event tonight. Speakers included: Clinton, Nelson, Nelson's wife Grace, his son Billy, Jim Davis, Rod Smith, Alcee Hastings, and Debbie Wasserman-Schultz. Other than Clinton who everyone was there for, I thought Alcee stole the show and the night. All of the speakers joked that Clinton was late, as usual. But he, as always, delivered a magnetic speech -- there is a rock-star quality to the former President.

Interestingly, there were a number of prosecutors in attendance...

Rock Paper Scissors

Since I highlighted the rock paper scissors order from Judge Presnell a couple days ago, the links to this site and the site meter have been exploding (watch out Rumpole). Fun stuff. Even the mainstream media has picked it up, with articles in just about every major newspaper and big-news website (like CNN). Here's an article from the NY Times, which I liked...

June 9, 2006
Lawyers Won't End Squabble, So Judge Turns to Child's Play
By ADAM LIPTAK
Fed up with the inability of two lawyers to agree on a trivial issue in an insurance lawsuit, a federal judge in Florida this week ordered them to "convene at a neutral site" and "engage in one (1) game of 'rock, paper, scissors' " to settle the matter.

Childish lawyers are commonplace, but the use of children's games to resolve litigation disputes is apparently a new development. The judge, Gregory A. Presnell of Federal District Court in Orlando, wrote that his innovation was "a new form of alternative dispute resolution."

The proximate cause of Judge Presnell's ruling, issued Tuesday, was a motion saying the two lawyers in the case could not agree about where to conduct the deposition of a witness. The choices were the building where they both work, four floors apart, or a court reporter's office down the street.

Judge Presnell's order indicated that deciding such things was not part of the job of a federal judge. Still, wary that the lawyers would start a new battle over where to conduct the rock-paper-scissors showdown, Judge Presnell gave them a default site: the front steps of the federal courthouse in Tampa.

That will not be necessary, said David J. Pettinato, a lawyer for the plaintiff. He and his adversary have agreed to meet on June 30, Mr. Pettinato said, at "an undisclosed location."
Mr. Pettinato added that he had been wasting no time since the order came down and had been training with his daughters, who are 5 and 9. They have advised him to open with rock.

Mr. Pettinato said he was inclined to agree "because my case is solid as a rock."
That would be an unusual opening for a lawyer, said Matti Leshem, the co-commissioner of the USA Rock Paper Scissors League, which he described as the governing body of the sport, whose headquarters are in Los Angeles.

"I guarantee you right now," Mr. Leshem said, "that both lawyers will open with paper. Lawyers open with paper 67 percent of the time, because they deal with so much paper."
Mr. Leshem offered to officiate the match. "What I don't want," he said, "is some rogue element of rock-paper-scissors coming down from the bench. When the law takes rock-paper-scissors into its own hands, mayhem can occur."

The second lawyer in the case, D. Lee Craig, declined through a spokesman to preview his strategy. Judging from the spokesman's tone, Mr. Craig did not find the matter especially amusing.

That would be in keeping with the compliment Mr. Craig paid to Mr. Pettinato in a letter last week. "Apparently you think it is in your client's interest to create as much misery and bad feeling as you are able," Mr. Craig wrote. "In those endeavors, you are most able."

A scotch-and-champagne celebration

I had previously posted about Judge Altonga's JNOV in the $78 million verdict against Arriva Pharmeceuticals. Here's Julie Kay's take on the knock the wind out of (or into, depending on what side you're on) your sails ruling. There is a lot of gossipy stuff in here, including how the lawyer who initially lost the case, Jonathan Goodman of Akerman Senterfitt, was dubbed the $78 million man at his firm; the fact that he found out about the verdict while on vacation skiing; and that he sent around an email that was forwarded to everyone in town after Altonaga's ruling vindicating him.

That e-mail soon was copied to just about every lawyer in town. The subject line read: "Fascinating and significant $78 million post-trial victory — If I say so myself (and I do)." Goodman acknowledged the lengthy e-mail was “a blatant example of self-promotion, self-aggrandizement and egomania,” fueled by a scotch-and-champagne celebration. He wrote that “we’re thrilled with the post-verdict result, which is very, very cool.” Not to rival attorney Jim McDonald, who said his team is analyzing the e-mail. “Looks like he had a few drinks when he wrote that,” McDonald said in an interview. “It ain’t over til it’s over, Jonathan. See you at the 11th.”

Round 1 to Jim McDonald. Round 2 to Jon Goodman. Round 3... Any bets?

Middle District news

Judge Gregory Presnell from the Middle District of Florida is a favorite of the federal court junkie... This latest order shows why:

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

Case No. 6:05-cv-1430-Orl-31JGG

AVISTA MANAGEMENT, INC.,
d/b/a Avista Plex, Inc.,

Plaintiff,

-vs-

WAUSAU UNDERWRITERS INSURANCE
COMPANY,
Defendant.
______________________________________

ORDER

This matter comes before the Court on Plaintiff’s Motion to designate location of a Rule
30(b)(6) deposition (Doc. 105). Upon consideration of the Motion – the latest in a series of
Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts – it is ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of “rock, paper, scissors.” The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006. If either party disputes the outcome of this engagement, an appeal may be filed and a hearing will be held at 8:30 A.M. on Friday, July 7, 2006 before the undersigned in Courtroom 3, George C. Young United States Courthouse and Federal Building, 80 North Hughey Avenue, Orlando, Florida 32801.

DONE and ORDERED in Chambers, Orlando, Florida on June 6, 2006.

GREGORY A. PRESNELL

United States District Judge

LOVE IT! Okay, so there's going to be a high stakes games of rock-paper-scissors... What is your strategy? Do you start with the safe play of rock or do you get coy and go paper? But then again, maybe you should start with scissors... Ah, the complexity and strategy of a good r-p-s game! It really should have been best of 5 or at least 3 so that the lawyers could get a feel for each other, don't you think?

Jack Bauer or real life?

When I watch 24 every week, I never thought that the torture scenarios that confront Jack Bauer on a weekly basis come up all that often in real life. Apparently, I was wrong. Here's an AP article about Jose Padilla's latest motion to exclude evidence on the basis that it were acquired by use of torture:

Jose Padilla's lawyers want a federal judge to throw out key evidence because the alleged al-Qaida operative's arrest was based on statements from one source who claims he was tortured and another who was heavily medicated and possibly unreliable. The evidence should not be allowed at Padilla's trial set for this fall based on an FBI affidavit "that distorted the facts in an apparent disregard for the truth," Padilla attorneys [Andrew Patel, Michael Caruso, Tony Natale, and Orlando do Campo] said in a court filing.

Kinda scary, no? And I don't think I'm against torture in all cases. I take the view of one of my law school professors, Alan Dershowitz, that we should debate the issue about when torture can be used and who should be accountable when it is. Certainly, a judge should have to approve it where practicable; the standard for employing it would have to be very high; whatever evidence is obtained by use of the torture should not be admissible in court; and it should only be used in life or death situations where absent torture people would die. Even in these *very* limited circumstances, I'm still extremely queasy about it, but it strikes me that there may be a case of mass terrorism where a large number of people would die absent torturing one of the involved terrorists. Suppose a suspect knew the location of a bomb that was to go off in a matter of hours that would kill thousands of people. If that person absolutely refused to disclose where that bomb was, would anyone chose letting the bomb go off over trying to extract the information from the captured terrorist? But Padilla's case is the other end of the spectrum. With Padilla, the feds were trying to build a case against someone who was already in custody. I can't imagine torture in those circumstances could be justified, and certainly such evidence -- if truly acquired by use of torture -- should not be admissible in a court of law.

Pledge Requirement Unconstitutional

Judge Kenneth Ryskamp found a state law requiring students to recite the pledge unconstitutional. Here's the Palm Beach Post article by Rani Gupta:

A federal judge has declared a state law requiring students to stand for the Pledge of Allegiance unconstitutional, stating it violated the rights of a Palm Beach County student who sued the state last year. U.S. District Judge Kenneth L. Ryskamp also ruled unconstitutional the provision of the 1942 Florida law requiring students to obtain permission from their parents to be excused from reciting the pledge. The American Civil Liberties Union cheered Ryskamp's decision as a landmark ruling that upholds all Florida students' free speech rights. "The highest tradition of being an American is freedom of thought and freedom of speech," ACLU attorney James Green said Thursday. "Freedom of speech includes the right to speak and the right not to speak, and not to be forced to speak in a certain way." But conservative legislators decried the decision, which they said was an assault by "liberal" and "activist" judges on the beliefs of the majority. State Sen. Mike Fasano, R-New Port Richey, called the decision "ludicrous." Fasano this year spearheaded an unsuccessful attempt to ask Florida voters to decide whether the state constitution should require students to stand and recite the pledge. Students would have needed a parent's permission to be excused. "What a federal judge has done is taken away patriotism from our schools," Fasano said.

Ryskamp was appointed by President Reagan.

Sentencing seminar

The Fifteenth Annual National Seminar on the Federal Sentencing Guidelines, co-sponsored by the US Sentencing Commission and the Federal Bar Association, begins today. All the particulars of this exciting event are set out in this event brochure. I would have gone, but instead I'm visiting the in-laws in NJ...

News and notes

Jessica Walker of the DBR had two interesting stories yesterday:

1. Holland & Knight raised 1st year associate salaries to $120,000: "In a change of plan, Holland & Knight is bumping salaries for first-year associates in Miami, Fort Lauderdale and West Palm Beach from $105,000 to $120,000. That will include a $5,000 signing bonus. Holland’s move raises the ante for other major South Florida corporate law firms, which are paying $115,000 at most for entry-level associates. Only White & Case in Miami is known to be paying first-years $120,000. Holland’s announcement Tuesday was unexpected, because major salary increases typically are announced around the start of a law firm’s fiscal year. Holland’s fiscal year begins on Jan. 1."

2. "In a dramatic reversal, U.S. District Judge Cecilia Altonaga in Miami overturned a $78 million jury verdict against Arriva Pharmaceuticals and dismissed the case. In a post-trial judgment issued Friday, Judge Altonaga ruled in favor of the Alameda, Calif.-based pharmaceutical company. A Miami jury had awarded Clearwater-based AlphaMedPharma- ceuticals $48 million in compensatory damages in December, and $30 million in punitive damages in January. It was one of the largest patent infringement cases in U.S. history. . . . Arriva, represented by Akerman Senterfitt shareholder Jonathan Goodman, filed a post-trial motion arguing that the verdict should be vacated because the likelihood that AlphaMed actually held a patent to a drug that would be successful was very slim, making the damages awarded unreasonable. "

3. Also here's a story by the Herald's Oscar Corral about the appeal of the detention hearing of alleged Cuban agent Elsa Alvarez before Judge Moore: "The detention of accused Cuban agent Elsa Alvarez was discussed in federal court Wednesday, about five months after she was jailed for allegedly sending information to the Cuban government. Alvarez, a counselor at Florida International University, and her husband, FIU psychology Professor Carlos Alvarez, were arrested in January. The couple is accused of being unregistered agents for Cuba. Jane Moscowitz, a lawyer for Elsa Alvarez, said that a federal judge would decide in the next couple of weeks if Alvarez will be released on bond. Moscowitz said that the court gave a strong indication that it was leaning toward granting Alvarez a bond, subject to certain conditions as she awaits trial. The court did not indicate the amount of the bond, Moscowitz said. ''Elsa and her family are looking forward to being reunited,'' Moscowitz said."

News and notes

Jessica Walker of the DBR had two interesting stories yesterday:

1. Holland & Knight raised 1st year associate salaries to $120,000: "In a change of plan, Holland & Knight is bumping salaries for first-year associates in Miami, Fort Lauderdale and West Palm Beach from $105,000 to $120,000. That will include a $5,000 signing bonus. Holland’s move raises the ante for other major South Florida corporate law firms, which are paying $115,000 at most for entry-level associates. Only White & Case in Miami is known to be paying first-years $120,000. Holland’s announcement Tuesday was unexpected, because major salary increases typically are announced around the start of a law firm’s fiscal year. Holland’s fiscal year begins on Jan. 1."

2. "In a dramatic reversal, U.S. District Judge Cecilia Altonaga in Miami overturned a $78 million jury verdict against Arriva Pharmaceuticals and dismissed the case. In a post-trial judgment issued Friday, Judge Altonaga ruled in favor of the Alameda, Calif.-based pharmaceutical company. A Miami jury had awarded Clearwater-based AlphaMedPharma- ceuticals $48 million in compensatory damages in December, and $30 million in punitive damages in January. It was one of the largest patent infringement cases in U.S. history. . . . Arriva, represented by Akerman Senterfitt shareholder Jonathan Goodman, filed a post-trial motion arguing that the verdict should be vacated because the likelihood that AlphaMed actually held a patent to a drug that would be successful was very slim, making the damages awarded unreasonable. "

3. Also here's a story by the Herald's Oscar Corral about the appeal of the detention hearing of alleged Cuban agent Elsa Alvarez before Judge Moore: "The detention of accused Cuban agent Elsa Alvarez was discussed in federal court Wednesday, about five months after she was jailed for allegedly sending information to the Cuban government. Alvarez, a counselor at Florida International University, and her husband, FIU psychology Professor Carlos Alvarez, were arrested in January. The couple is accused of being unregistered agents for Cuba. Jane Moscowitz, a lawyer for Elsa Alvarez, said that a federal judge would decide in the next couple of weeks if Alvarez will be released on bond. Moscowitz said that the court gave a strong indication that it was leaning toward granting Alvarez a bond, subject to certain conditions as she awaits trial. The court did not indicate the amount of the bond, Moscowitz said. ''Elsa and her family are looking forward to being reunited,'' Moscowitz said."

Back to work

Hope all of you had a good weekend. The HEAT looked good. The weather wasn't horrible. And now the traffic is bearable since school is out...

In the Southern District, things are pretty quiet. If you have any news to report, please let me know. In the meantime, here is some news about Broward County Sheriff Ken Jenne who is being investigated by the feds. Both the Miami Herald and the Sun-Sentinel had articles about it this weekend.

Also, here is a great article about the Enron lawyering from the Washington Post.

Random thought: Remember back in high school on a Sunday night after a long weekend, the dread about having to get up early to go back to school the next day...

News and notes

Before I get out of here for the long (rainy) weekend, here are a couple news and notes from the Sun-Sentinel's Vanessa Blum:

1. Jose Padilla is asking to review classified material, which shouldn't be a problem in this case because it's material he supposedly provided to the feds. Nevertheless, the government is objecting. Here's the issue as framed by the article: "The materials at issue are written records and videotapes of the statements Padilla himself provided to interrogators during his lengthy military detention at a South Carolina Navy brig.All of which poses an unusual conundrum: Padilla's lawyers, who have security clearances, may review the material but cannot discuss it with their client because the information is classified. In a legal brief filed this week in Miami federal court, attorney Andrew Patel [and FPDs Michael Caruso, Tony Natale, and Orlando do Campo] argues that Padilla must be given access to the classified material in order to receive a fair trial."

2. The oath of office case was decided by Judge Middlebrooks, who "ruled that the oath of office in the village of Tequesta does not violate the U.S. Constitution by requiring public officeholders to swear to 'support, protect and defend' the federal and state governments." From the sound of the article and from what those who were present at the hearing told me, the councilman's argument -- by Richard Rosenthal -- was lively and very forceful even though he was facing a very uphill battle.

Have a great weekend...

Air Marshals to avoid prosecution

Michael Pasano and Paul Calli represent the air marshals who shot and killed a passenger. The marshals apparently will not be prosecuted.

Here are some snippets from the report:

INTRODUCTION
On December 7, 2005, Mr. Rigoberto Alpizar and his wife boarded American Airlines Flight 924 from Miami International Airport to Orlando, Florida. Shortly thereafter, Mr. Alpizar abruptly traveled down the aisle toward the front of the plane passing Federal Air Marshals 1 and 2. The air marshals followed Mr. Alpizar onto the jetway. Federal Air Marshals 1 and 2 shot and killed Rigoberto Alpizar on the jetway connecting Gate #42 of Concourse D at Miami International Airport to an American Airlines airplane flight 924. Mr. Alpizar expired on the scene.

CONCLUSION
The shooting death of Mr. Alpizar, while tragic, is legally justified in light of the surrounding circumstances presented to the air marshals. It should be noted that both air marshals demonstrated remarkable restraint in dealing with Mr. Alpizar. Florida Statute §901.1505(2)(a) and (b) Federal Law Enforcement Officers; Powers, empowers federal officers engaged in the exercise of their federal duties to make a warrantless arrest of any person who commits a felony that involves violence. The statute further empowers them “[t]o use any force which the officer reasonably believes to be necessary to defend … himself or another from bodily harm while making the arrest or any force necessary… in arresting any felon fleeing from justice when the officer reasonably believes either that the fleeing felon poses a threat of death or serious physical harm to the officers or others or that the fleeing felon has committed a crime involving the infliction or threatened infliction of serious physical harm to another person.” When Mr. Alpizar ran onto the jetway stating that he had a bomb and threatened to detonate it, given that he had a backpack strapped to the front of his chest and failed to comply with commands to stop and desist, the air marshals had probable cause to arrest Mr. Alpizar for violations of Florida Statute: 1. §782.04(1) and (2) and §782.051: The attempted murder of the crew member and/or every passenger aboard American Airlines Flight 924 and/or in relative proximity to him, including those in the airport terminal, through a) aircraft piracy and/or b) the unlawful throwing, placing or discharging of a destructive device or bomb and/or c) the murder of another human being and/or d) the commission of a felony that is an act of terrorism or is in furtherance of an act of terrorism, all of which are forcible felonies pursuant to §776.08. 2. §790.161: Making, possessing or throwing projectile. Placing, or discharging any destructive device or attempt so to do, a forcible felony pursuant to §776.08. 3. §790.162: Threat to throw, project, place, or discharge any destructive device, a forcible felony pursuant to §776.08. 4. §790.163: False report about planting bomb, explosive, or weapon of mass destruction. 5. §775.30: Terrorism, a forcible felony pursuant to §776.08. Thus, under §901.1505 the air marshals could make a warrantless arrest of Mr. Alpizar because they reasonably believed he was committing, our would commit, multiple felonies involving violence in their presence. As such, they could use the force they thought necessary to defend themselves and others from bodily harm while making the arrest or in preventing Mr. Alpizar from fleeing because he reasonably appeared to pose a threat of death or serious physical harm to the marshals and others. In addition, under Florida Statute §776.012 Use of Force in Defense of Others, the air marshals could stand their ground and use deadly force because Mr. Alpizar’s actions reasonably conveyed a threat of imminent death or great bodily harm to themselves and others and served to prevent said harm or the imminent commission of a forcible felony as enumerated above. It is factually and legally irrelevant that some passengers did not hear Mr. Alpizar say anything about a bomb. It is clear that those persons toward the front of the aircraft did, as illustrated below. Mr. Alpizar Heard “bomb” Did not hear “bomb” Most notably, the person with the least motive to fabricate, Mr. Alpizar’s wife, admits that her husband said he had a bomb. She also affirmed that her husband failed to comply with F.A.M. 1’s and 2’s repeated commands. Furthermore, it is factually and legally irrelevant whether Mr. Alpizar actually had a bomb. The presence of a bomb would not convert an unjustified shooting into a justified one. Likewise, the absence of a bomb cannot convert a justified shooting into one that is unjustified. Under the same rationale, it is factually and legally irrelevant whether Mr. Alpizar actually suffered from a mental illness or whether he was suffering from an episode of said illness at the time of the shooting. It is factually and legally irrelevant that the air marshals could assume that Transportation Safety Administration personnel cleared Mr. Alpizar to enter the subject concourse, and, thus, posed no threat to persons or aircraft. The air marshal service exists as a contingency in tacit acknowledgement that those with lethal contraband and/or illegal purpose and intent may succeed in boarding an airliner. It is factually and legally irrelevant that Mr. Alpizar’s wife expressed aloud that her husband was sick. There is no evidence that the air marshals ever heard this statement. In fact, those passengers that did hear such comments agree that she made these comments near where she and Mr. Alpizar were seated and/or only after the shooting, but never near the air marshals. Even if the air marshals did, or should have heard, her statements, it would not alleviate the responsibility of the air marshals to deal quickly and decisively with the issue presented. In a post-September 11th and Madrid bombing world, the air marshals were faced with a man on an American Airlines flight clutching a backpack on his chest, claiming to have a bomb and threatening to detonate it while heading back toward the aircraft. Under these circumstances, there simply is no room for delay for the purposes of conducting the type of investigation that hindsight offers. Additionally, the statements by Mr. Alpizar’s wife, if heard by the marshals, are also subject to various interpretations. “He’s sick” is certainly not the type of statement that the ordinary person, given the circumstances, would automatically assume meant that Mr. Alpizar suffered from a mental illness. Furthermore, the air marshals could have interpreted the situation to be that the woman was acting in concert with the man to create the delay and indecisiveness necessary to accomplish their task. It is factually and legally irrelevant whether F.A.M.s 1 and 2 complied with their department’s policies and procedures. Whether the air marshals actions are justified or not in the State of Florida is independent of whether they abided by rules set by a federal agency. For this reason, the department’s policies and procedures, if any, were not evaluated.

Robles bond hearing

Louis Robles had his initial appearance and bond hearing today. Magistrate Judge Brown set a $1.25 million bond and appointed the Federal Defender's Office to represent Mr. Robles. Hector Flores accepted the appointment. Here is the AP article.

Louis Robles indicted

Louis Robles, the well-known personal injury lawyer, surrended to federal authorities yesterday. Apparently he did so before they could arrest him, which was supposed to occur early this morning. He's charged with defrauding more than $13 million from some 4,500 aging law clients ailing from asbestos exposure. Here's Jay Weaver's article in the Miami Herald.

Scalia v. Feeney

Ann Althouse has this post about Justice Scalia rebuking big fan Tom Feeney.

[Justice Scalia]: "No one is more opposed to using foreign law than I am, but I'm darned if I think it's up to Congress to direct the Supreme Court how to make its decisions."Let's have a response from the congressional Scalia fans:

Rep. Tom Feeney (R-Fla.), who has co-sponsored a nonbinding resolution against the use of foreign law, said that Scalia's comments were "like being told your favorite baseball player disagrees with your approach to hitting."Scalia's "brilliance," Feeney said, "has not convinced a majority of the court. He needs our help, even if he doesn't want it."Feeney said that Scalia's remarks may have damaged chances for his resolution's passage, since they will probably be quoted by its opponents.

What a desperate baseball metaphor!

So Feeney thinks Scalia may have undercut his resolution a tad? Perhaps -- just perhaps -- his opponents will now quote his hero against him? How hilariously embarrassing for Feeney. I was only trying to help.

Love him or hate him, Scalia is always entertaining. Whether it's the Sicilian gesture or calling his fellow Justices idiots, he makes things interesting... Plus no rationale person could disagree with him on this one -- Congress has no place telling the Supreme Court how to do its job.

Operation ____________

Based on the previous post, a FOB (friend of blog) has emailed with a contest suggestion: What is the best name of a takedown operation by the feds? We've had some pretty good ones in this District....

Operation Twin Oceans

"Federal authorities in Miami announced the takedown of a major international drug ring Wednesday following a three year investigation, known as Operation Twin Oceans.The global dragnet targeted a drug trafficking organization run by alleged cocaine kingpin Pablo Rayo-Montano. It resulted in more than 100 arrests, the capture of 52 tons of cocaine, and the seizure of roughly $70 million in assets, including three private islands off the coast of Panama and five homes in Broward County, said Justice Department officials." Here's the Sun-Sentinel article. Here's the indictment.

I always wonder who comes up with the names of these operations...

FACDL-Miami Banquet

Last night was the Florida Association of Criminal Defense Lawyers (Miami Chapter) Annual Banquet at the Biltmore. It was a great event -- over 350 guests and over 55 judges attended. We kept the event much shorter this year, allowing the band to actually play some music. Judge Federico Moreno and Richard Klugh were honored. Judge Stan Blake gave a very nice tribute to our fallen judges -- Henry Leyte-Vidal, Manny Crespo, and Linda Dakis. Judge Mary Barzee swore in the officers and directors. And the pressing question of the night was whether Rumpole was in the room... Congrats to Brian Tannebaum on a great year. I'm honored and very humbled to be taking over the reigns this year and am looking forward to it.

3rd DCA Finalists

Some of our federal practioners have made the cut to be considered for an appointment to the Third DCA, our state appellate court for Miami. The six finalists are AUSA Barbara Lagoa, Judge Israel Reyes, AUSA Lisette Reid, AUSA Hugo Black III, Sanford Bohrer and Douglas Stein. The JNC has put together a great group for consideration. This morning's DBR article by Carl Jones explores what sorts of questions are appropriate during interviews. Apparently Ms. Lagoa was asked about whether she could balance motherhood (she recently had twins) and work. Unbelievable that people are still asking these sorts of questions. Shame on them. Here is the beginning of Jones' article:

The issue of improper questioning of judicial candidates emerged anew during this week’s Judicial Nominating Commission interviews of applicants for a 3rd District Court of Appeal seat. During interviews on Tuesday, JNC member Hector Lombana, a Coral Gables lawyer, asked candidate Barbara Lagoa, a federal prosecutor who recently gave birth to twins, whether she felt she could balance motherhood and the workload of serving on the 3rd DCA. The JNC chair, Ramon Abadin, later called the question “inappropriate.” The panel subsequently chose Lagoa as one of six finalists it recommended to Gov. Jeb Bush.

Who Should Argue?

Very interesting article about whether the "solo-practioner" criminal defense lawyer should step-aside to allow a "big firm" or "experienced advocate" to argue before the Supreme Court. In fact the Supreme Court oral argument session had 22 state criminal cases this year. It seems to me that more often that not, the client wants the attorney who has fought for him to argue before the Court, regardless of where the person works or where he went to school. The question remains, however, is the solo-practioner representing the best interest of his client if he has never argued before the Supreme Court? Are the experienced folk who are trying to "take-over" these cases carnivores or justified in trying to present more articulate and persuasive arguments before the Court? Questions to ponder....

News and notes

1. Guilty on all counts for Masferrer. It was front page news for the Herald and the DBR. From what I understand, Judge Moore precluded the defense from the first trial. Start your appellate engines.

2. Fourth Circuit Judge Luttig resigned to go work at Boeing. I'm not a Luttig fan, but we have to pay our judges more or they are gonna keep leaving for higher paying gigs.

3. Tomorrow at noon is the filing deadline for state judges. Lots of coverage over at the Justice Building blog.

Take two...

The jury now has the case in United States v. Masferrer, the Hamilton Bank case. This is the second trial after the first jury couldn't reach a verdict. Ben Greenberg, Peter Outerbridge, and Andrew Levi prosecuted the case. Howard and Scott Srebnick defended.

Special Assesments...

Criminal lawyers are well familiar with special assesments. For every count of conviction, a defendant must pay a $100 special assesment.

Now, Thomas Tew is asking that all members of the Florida Bar pay a $178 special assesment to help pay back victims of Louis Robles. Julie Kay has all the details in her Justice Watch column today. Here is the intro:

The plaintiff attorney in a federal class action lawsuit against The Florida Bar is calling for a $178 special assessment on each of the Bar’s 77,000 members to reimburse victims of disbarred Miami attorney Louis Robles. In motions filed by Miami lawyer Thomas Tew, who represents about 4,000 former Robles asbestos clients, Tew claims that the Bar is being disingenuous in its arguments for refusing to come up with a $13.5 million lump sum payment to cover the clients for the money they lost to Robles. “The Florida Bar evidently believes that the price tag for administering the [Client Security Fund] legally, $178 per active member, is simply too high,” Tew wrote in a recent response to the Bar’s motion to dismiss. “As a result, the constitutional rights of over 4,000 citizens who were swindled by their [Bar-regulated] attorney… have been trampled.”

Tew's proposal strikes me as odd -- why should an entire profession be required to pay almost $200 per person (approx. $15 million) because someone else committed fraud. Thoughts?

Cuban mafia leader to be released

Many of you have been following the "Cuban Mafia" trial in front of Judge Gold. This is the case that was moving at a snail's pace because the lead defendant, 76 year old Jose Miguel Battle Sr., is extremely sick and trial can only be held 3 days a week for a couple hours a day. In fact, a lazy boy chair with a massage function was installed in the courtroom for Battle to sit in. Most times he sleeps through the trial. Trial has been going on for at least 4 months, and was expected (with Battle) to last many more months (which will be followed by a trial on the severed co-defendants). The government finally offered Battle an deal he couldn't refuse. Plead guilty and get a bond with sentencing postponed indefinitely. Battle took it so he could, in his attorney Jack Blumenfeld's words, "die at home rather than in jail.''

Here is the intro from the Herald article by Jay Weaver on the plea:

Jose Miguel Battle Sr., el padrino of the Cuban mafia, has pleaded guilty in the middle of his Miami racketeering trial because of failing health. But it is doubtful the reputed Cuban-American godfather, 76, will live long enough to serve prison time. "He's just very sick,'' said his attorney, Jack Blumenfeld. ``This way, he can die at home rather than in jail.'' The elder Battle, a Bay of Pigs veteran, needs a wheelchair and suffers from kidney and liver failure, diabetes and cardiac problems.

Up in smoke...

A helpful reader points out that the Mexico drug laws don't appear to be going forward:

MEXICO
Fox backtracks, sends drug bill back
President Vicente Fox said he would ask Mexico's Congress to amend a drug decriminalization bill. The decision was praised by the White House, which had voiced serious concerns.
MEXICO CITY - (AP) -- U.S. officials welcomed Mexican President Vicente Fox's decision not to sign a drug decriminalization bill that some had warned could result in ''drug tourism'' in this country and increased availability of narcotics in American border communities.
Fox said Wednesday he was sending the bill back to Congress for changes, just one day after his office had said he would sign into law the measure, which would have dropped criminal penalties for possession of small amounts of marijuana, cocaine, heroin and other drugs.
The president will ask for corrections ``to make it absolutely clear in our country, the possession of drugs and their consumption are, and will continue to be, a criminal offense.''
The White House applauded Fox's decision. Presidential spokesman Scott McClellan said U.S. officials had expressed concerns about decriminalizing drugs. ''We welcome the steps that are being taken by President Fox,'' McClellan said Thursday.
San Diego Mayor Jerry Sanders, who had said he was ''appalled'' by the bill because it could increase drug availability north of the border, also said he was pleased by Fox's decision.
''I'm glad that he's listened to the many voices opposing the bill and made changes that will make good enforcement and not legalize drugs,'' Sanders said. ``We have been a partner with Mexico in fighting against illegal drugs, and this will only help in the long-term in that relationship.''
San Diego is a short drive from the border town of Tijuana, Mexico.
Presidential spokesman Rubén Aguilar said on Thursday that Fox had ''in no way'' yielded to U.S. pressure, but acknowledged that Mexico ``took into account the observations of U.S. authorities.''
Current Mexican law allows judges to drop charges if suspects can prove they are addicts and the quantity they were caught with is small enough to be considered ''for personal use,'' or if they are first-time offenders.
The new bill would have allowed ''consumers'' as well as addicts to have drugs, and delineated specific allowable quantities, which do not appear in the current law.
Under the law, consumers could have legally possessed up to 25 milligrams of heroin, 5 grams of marijuana (about one-fifth of an ounce, or about four joints), or 0.5 grams of cocaine -- the equivalent of about four ''lines,'' or half the standard street-sale quantity.

Criminalizing conduct overseas

Orin Kerr has this post about the legalization of drugs in Mexico:

Mexico to Legalize Possession of Small Amounts of Cocaine, Heroin, Marijuana and Other Drugs
by Orin Kerr

According to the Associated Press, President Vincente Fox of Mexico is set to sign a bill that will legalize the possession of ‘personal use’ amounts of marijuana, cocaine, heroin, and unnamed “other drugs.”
Millions of Americans live near the U.S-Mexico border. In light of that, the Mexico law raises an interesting question: Is it legal for an American citizen to travel to a foreign country where drugs are legal, to take the drugs in that country, and then to return to the United States? I don’t know, but I’m sure some readers do (purely out of academic interest, of course).

This issue is being litigated in this District in another forum -- sex with minors overseas. In some countries, the age of consent is 16 (in some it's less than that). And in many of these countries, prostitution is legal. Congress, however, has criminalized the act of intending to go overseas to engage in prostitution with a minor (as defined by the U.S.). The Federal Defender's Office has an appeal pending questioning whether Congress has the power to criminalize such an act (thought) where if the person carried out the act, he would be violating no law in the other country. Thoughts?