Rock, Paper, Scissors, Lunch

I didn't want to forget to thank David for allowing me to guest blog this week while he's away. Thanks David. Enjoy Aspen.

Remember the Order requiring two civil lawyers to play rock, paper, scissors?

In the continuing efforts to show civil lawyers how to get along, here's an order requiring a lunch date between a plaintiff and defense lawyer.

"To take this right away, is to reduce a man to slavery."

by Not Scalia

Judge Patricia Seitz began her Order finding Florida's Third-Party Voter Registration Law unconstitutional with this quote from Thomas Paine. Because this law chilled the rights of third-party groups to register voters, Judge Seitz' decision is a victory for democracy and should be applauded.

You can find the Order here.

Phineas Paist

by Brian Tannebaum

As we prepare for the opening of the new federal courthouse (anyone know the opening date?), now is as good a time as any to learn about Phineas Paist, the architect of many of Miami's most famous landmarks, including the old Miami Federal Courthouse.

Interesting guy, died in 1937, in Miami.

Here's an excerpt from the site about his life:

Around 1920 in Miami Phineas will evolve from his association at the Deering estate [Vizcaya] to become a city planner and lord of architecture for The Coral Gables Plantation heir George Merrick.

Phineas Paists contributions of the Douglas entrance, the Police and Fire Station bldg. and the new Miami Federal Courthouse
will prove to be a unique collection of buildings in the Beaux Arts Style,

Vacation time...

I'm going to be on vacation so I've invited a couple guest-bloggers and have asked prior posters to pitch in while I'm away. I've also asked them to identify themselves at the top of the post so you know who the author is. You can also check at the bottom of the post where the blogger template inserts their name. Enjoy!

In the meantime, here is an interesting article by Vanessa Blum about the Padilla hearings yesterday in which I am quoted.

News and notes

1. Judge Cooke has denied the Government's motion to reconsider dismissal of Count I in the Padilla case.

2. Sun-Sentinel: "Pompano man gets 37 months in prison for plot to hire out illegal workers."

3. Miami Herald: "Lawsuit claims young boys were forced to ride camels." Read the lawsuit here.

The Scalia of the 11th Circuit...

Lawyers who practice in the 11th Circuit like to compare Judge Ed Carnes to Justice Scalia. Here's the opening paragraph of Carnes' most recent opinion addressing whether a district court can dismiss a civil case with prejudice because the plaintiff had filed his complaint and litigated the case up to trial using a false name:

If, as the Bible says, "[a]n honest answer is like a kiss on the lips," Proverbs 24:26 (N.I.V.), a pleading founded on a lie is like a kick in the gut. The question this appeal presents is whether a district court can dismiss a case with prejudice because the plaintiff filed and litigated his complaint under a false name.

Carnes answers yes. Scalia-like? Hat Tip to Orin Kerr.

Santiago Alvarez and Osvaldo Mitat to plead guilty

Cuban exiles Santiago Alvarez and Osvaldo Mitat cut plea deals on one count of conspiring to possess illegal weapons, which carries a five-year maximum prison penalty. The men, who remain in custody, face sentencing Nov. 14. Jay Weaver's article here. The following interesting note from Vanessa Blum's article:

Before his arrest, Alvarez was best known for his support of Cuban militant Luis Posada Carilles. Cuban and Venezuelan authorities accuse Posada of orchestrating the bombing of a Cuban airliner in 1976 that killed 73 people.When Posada mysteriously arrived in Miami in 2005 after years in hiding, Alvarez acted as his chief spokesman and defender. Posada is in federal custody in El Paso, Texas, where he has been held since his arrest on immigration charges.Last year, an immigration judge ruled Posada should be deported but said he could not be sent to Cuba or Venezuela.On Monday, U.S. Magistrate Judge Norbert Garney ruled Posada should be set free while he waits to be deported, according to Posada's El Paso attorney, Felipe D.J. Millan. If a federal district judge upholds the ruling, Posada could be released in about 30 days, Millan said.

"‘Biz op’ scams a quick way to get fleeced"

That's the headline of John Pacenti's DBR article this morning. Looks like the U.S. Attorney's office is doing its best to get some favorable press these days. Here's the intro of the article:

In the world of South Florida schemes and cons, there is always a new way to dress up the same old pig. These days it’s peddling “business opportunity investments” in DVD vending machines, dial-up ATMs, mobile check-cashing units and Internet kiosks to those susceptible to the get-rich-quick American myth. The scam artists have been keeping the U.S. attorney’s office for the Southern District of Florida busy. Federal prosecutors nickname these types of crimes “biz op” — short for business opportunity fraud. U.S. Attorney Alex Acosta said his office is cracking down on scams that have robbed millions of dollars from thousands of victims. Since February 2005, the USAO’s Economic and Environmental Crimes division estimates it has filed charges against about 40 people involved with about a dozen companies. They promised people a way to earn big-time income with relatively little effort in mostly turnkey businesses. Federal prosecutors say members of the public are targeted when they bite on advertisements — television, Internet or others — for a generalized business opportunity. These leads are then passed on to boiler rooms, where skilled phone sales staff peddle the “once-in-a-lifetime” opportunity. The technique has been working for decades. Prosecutors say the companies have defrauded more than 4,000 victims of $60 million.

What struck me about the article was not so much the words, but Alex Acosta's picture... Check out how mean he's looking above:

Remembering 9/11

I was actually in trial on 9/11 -- a false passport case in front of Judge Ungaro. I vividly remember the courtroom deputy handing the Judge a note. We didn't stop at that point but I could see something was wrong. I didn't have a cellphone on, but I did have a beeper (does anyone have beepers anymore) which started to buzz and buzz. Then a second note. This time, Judge Ungaro said we would be taking a recess. I looked at my beeper. I was getting 911 beeps from my wife. I left the building, turned on my cellphone, and called my wife. She told me what was going on and to leave the building because the news was reporting that Miami might be a target. I ended up watching the towers come down in a little pawn shop on North Miami Avenue. It was completely surreal, standing there on the street watching all of this unfold. It's still hard to believe. When the courthouses reopened the following week, Judge Ungaro declared a mistrial...

Please share where you were on 9/11.

Magistrate recommends that Padilla motions be denied

Magistate Judge Stephen Brown has recommended that Jose Padilla's motions to suppress be denied. Here's the AP article about the rulings. The defense will now appeal to the District Judge, Marcia Cooke. Here's a snippet from the article:

Brown found that Padilla had not been placed immediately under arrest by the FBI when he arrived at Chicago's O'Hare International Airport in May 2002. Since he was not in official custody, Brown said it was not required for the agents to read him his Miranda constitutional rights before interrogating him.

''Defendant was not restrained at any time, by handcuffs or otherwise. Every effort was made for defendant to be made comfortable, in a non-threatening setting,'' Brown said in his ruling released Friday. ``He was never told that he was not free to go.''

Brown also denied Padilla's motion to suppress evidence seized at the airport, rejecting arguments that the material witness warrant eventually used to arrest him was based on statements from one source who claims he was tortured and another who was heavily medicated.

Padilla's attorneys identified one of the sources as Abu Zubayda, a top al-Qaida leader recently transferred from a secret CIA prison overseas to the U.S. detention center at Guantánamo Bay, Cuba. The other source was named as Binyam Ahmed Muhammad, who is also at Guantánamo and claims he was tortured after his arrest in Pakistan in April 2002.

Judges citing blogs

According to the National Law Journal:

Judges have discovered the Internet's 600 legal blogs, citing them at least 32 times in 27 decisions over the last two years. A blog, short for Web log, is a Web page that acts as a continuous journal of the writer's commentary, news and links to related sites. Blogs began, often as personal diaries, in the 1990s but came into their own in recent years among lawyers who use them to share with peers the latest developments in legal specialties. The ability to burrow deeply into a specialized area of the law with continuous updates has an undeniable appeal to practitioners. This phenomenon was not lost on Ian Best, a 36-year-old law school graduate who began a blog, "3L Epiphany," as an independent study project for academic credit at Ohio State University's Michael E. Moritz College of Law. It is a taxonomy of legal blogs. Best counted them, classified them and tracked their development. "The most significant development is judges citing blogs," said Best, who lives in Columbus, Ohio, and is awaiting his bar exam results.

For those of you who are interested, the list is here.

Elections vs. Appointments

There is always debate in Miami about whether judges should be appointed or elected. I find it one of the toughest questions to answer and I go back and forth as to how I feel. But, the voters have spoken. New state judges can be found here. Also, Rumpole -- who looks like he has had a very busy night -- has all the commentary.

"Let me explain the government to you. There’s God, then there’s the president and then there’s my father.”

— Jack Roberts, 6-year-old son of Chief Justice John Roberts, overheard speaking to one of his young peers on the last day of summer camp.

Welcome back

UPDATED
Hope you all had a nice holiday weekend. The Marlins are over .500. The Canes are playing (update -- ugh, they lost). One week till the Dolphins. All is good. (Except that the Crocodile Hunter died). (update -- and except that it is pouring rain on election day. For all your state court judicial election updates, check out Rumpole).

A couple notes...

1) Starting salaries for new associates are up, at least in NY, to $145,000. Any news on Miami salaries?

2) "A former law student has filed a federal class action against St. Thomas University School of Law of Miami, claiming that it is illegally accepting and then expelling more than 25 percent of its first-year class to boost its flagging bar pass rates." Here's the Complaint.

3) According to the Washington Post, terrorism prosecutions are down. "In 2002, federal prosecutors filed charges against 355 defendants in international terrorism cases, the study said. By last year, that number had dropped to 46, fewer than in 2001. Just 19 such cases have been prosecuted so far this year, the study said." Here's the report.

Updated Monday morning:

4) Pictures from the NACDL seminar in Miami.

5) Hunton & Williams in trouble due to defections? Julie Kay's article suggests yes.

Here's a quiz for you:

Which of the following (inconsistent) positions is correct?

A. Defendants accused of being spies for the Cuban government can get a fair trial in Miami despite the anti-Fidel/Cuban sentiment.

B. A Defendant (an immigration agent) accused of civil rights violations in the Elian Gonzalez case could not get a fair trial in Miami because of anti-Fidel/Cuban sentiment.

C. Defendants (anti-Castro activists) accused of weapons offenses are brought to trial in Ft. Lauderdale because they'll be viewed as "terrorists [instead of] heroes." (no fair trial in Miami because of the anti-Fidel/Cuban sentiment).

D. All of the above.

The U.S. Government chose D -- sometimes Miami is a fair venue for trial; sometimes not. Read Jay Weaver's article here.

Another new gossip blog

There's a new legal gossip blog out there -- Above the law -- written by David Lat, the original anonymous blogger (apologies to Rumpole -- Miami's anonymous legal blogger).

Lat plans on doing all kinds of funny stuff. Here's a good example: "Lawyer of the Day" -- showing the court proceeding of a defense lawyer who shows up drunk to court. You can watch the video below:


Drunk Vegas Lawyer causes mistrial Part 2!




Lat also plans on following lawyer weddings, lawyer houses, lawyer hotties, and so on. Here's his latest on weddings, tracking announcements in the NY Times. There was nothing like this when my wedding announcement came out.

Judging the judges

There's a new website out there, The Robing Room, which is rating the federal judges. Here's the Southern District page. Go vote.

Courts closed

All Southern District courthouses are closed tomorrow and Wednesday. Good luck.

Ernesto

Chief Judge Zloch has closed the Key West couthouse today. All other courthouses are open. More updates on the District courthouses here. And you can track the storm here.

News and Notes

The weekend is almost over... some news and notes to begin the week while we wait to see what Ernesto is going to do.

1. The Padilla prosecutors have filed a motion to reconsider with Judge Cooke, asking the judge to reverse herself on the dismissal of count I and on the decision to force the government to elect on count II. Initial coverage of the order here. Nine times out of ten, these sorts of motions are denied. Still no notice of appeal filed.

2. Julie Kay has a very negative article coming out on Monday about how Judge Highsmith handled a situation in which one of his employee's daughters was (apparently) being scammed by some downtown store. It's very difficult to figure out from the article exactly what happened to the daughter, but it's hard to really blame Judge Highsmith for trying to help her if he thought she was really in danger. Still, Professor Jarvis -- without knowing the facts -- jumps all over the Judge and the Marshal.

DBR on Brian Andrews

Julie Kay covers the Brian Andrews story in today's DBR. Here's a snippet:

Prosecutors asked a Miami federal judge Thursday to investigate how a South Florida television station obtained a government video of an alleged ringleader of the “Miami Seven” discussing possible terrorist attacks on high-profile buildings. The government made its request one day after U.S. District Judge Joan Lenard refused a defense attorney’s attempt to block WFOR-TV from broadcasting portions of the video for a news story late Wednesday. In court papers, Assistant U.S. Attorneys Jacqueline M. Arango and Richard E. Getchell said the videos were supposed to be part of a sealed record. They asked the judge to conduct a hearing to determine whether a sealing violation had occurred. ***

After learning of the television station’s plans to air portions of the videos Wednesday night, Batiste’s attorney, Ana Jhones of Miami, filed a request for a temporary injunction to prevent the broadcast. “The extent of the discovery obtained is unknown; however, undersigned counsel learned that CBS News obtained all of the video and perhaps some of the audio that have been generated by the government in this case,” Jhones said in her motion. “Undersigned counsel is unsure as to how CBS News obtained this discovery, which is not a matter of public record.” Jhones did not return calls seeking comment before deadline Thursday. None of the other defense attorneys joined in Jhones’ request. Miami criminal defense attorney Gregory Prebish declined to say whether Jhones asked him to join the request to keep the video off the air. Prebish, who represents Augustin, said he is angry that the TV station aired the tapes, particularly since he says the defense attorneys haven’t received all the tapes and discovery yet. The reason: The lawyers, all government-appointed, have not gotten approval to buy the tapes and cannot afford them. “We don’t even have these tapes yet, due to budgetary problems,” said Prebish. “The costs of the tapes are exorbitant.” He declined to state the exact cost. Brian Andrews, a reporter for the station, obtained dozens of discs which contain surveillance video made by federal undercover agents during their investigations.

Leaking...

Narseal Batiste's new appointed lawyer, Ana Jones, came out swinging today -- filing an emergency motion to keep Channel 4 from running a story about the video and audio clips from the discovery in the Miami 7 "terrorism" case. Reporter Brian Andrews, during the story, says that Channel 4 obtained over 20 CDs containing the video, audio, and still pictures. The story doesn't say how he got this material, but this (copying numerous CDs) is usually the way the Government discloses discovery to the defense. I can't imagine the defense gave these materials to the press, so I leave it to you to figure out who did.

I haven't seen Jones' motion, so I don't know the grounds she alleged to keep the news from running a story, but Judge Lenard denied the motion from the bench and the story ran tonight on Channel 4. Here it is. The video is on the right side of the page. Or click here.

UPDATE -- perhaps I spoke too soon. After this report aired, the Government filed a motion asking Judge Lenard to conduct an inquiry as to who on the defense leaked the discovery. The motion says that it did not leak and that the copy service has only released the discovery to the defense lawyers... I still say no way the defense leaked. So based on the Government motion, I predict the copy service, despite its protestations, made a mistake and distributed it.

No appeal yet

As far as I can tell, the Government has not yet filed an appeal from the Padilla order. I thought that it would happen immediately, as happened in the NSA case where the Government filed a notice of appeal the very next day.

Nothing really new to report in the District. If you have any news or topics you want discussed, please email me.

In the meantime, back to a sentencing memo I have to write...

Count I dismissed in the Jose Padilla case

BREAKING NEWS:

Judge Marcia Cooke has dismissed Count I of the indictment against Jose Padilla because it is multiplicitous. In other words, Count I represents the same offense that is also charged in Counts II and III. An indictment is multiplicitous when it charges a single offense multiple times, in separate counts. There are 2 reasons that multiplicitous counts may be prejudicial to a defendant: 1) the defendant may be sentenced twice for only one crime; and 2) multiplicitous counts may improperly prejudice a jury be suggesting that a defendant has committed several crimes, not one. Judge Cooke explained that because "in Counts I, II, and III, the government alleged one and only one conspiracy, with one and only one purpose and object for each of the conspiracy counts," Count I is multiplicitous and must be dismissed. (emphasis in original).

The government, of course, is still free to proceed with its case on Counts II and III. I would guess, however, that the government is going to appeal -- and quickly. Count I -- conspiracy to murder, kidnap, and maim persons in a foreign county, in violation of 18 U.S.C. 956(a)(1) -- is by far the most serious count, carrying a life maximum. Counts II and III carry far less serious maximum penalties (I believe each has a 10 year max on each, although I will check this). An appeal will delay indefinitely the current trial setting in January, so Mr. Padilla will have to spend more time in solitary confinement.

This was a very courageous order by Judge Cooke. The government for far too long has been charging the same crime many different ways for tactical reasons. The more counts in an indictment, the greater the chance a jury will find a defendant guilty of one of the counts. And under the sentencing guidelines, even if there is only a conviction of a single count, the judge can then consider all of the counts and allegations (even acquitted conduct) in calculating a guideline range. Perhaps this order, if affirmed by the Eleventh Circuit, will begin pushing back against this tactic.

In addition to dismissing Count I, Judge Cooke also found that Count II was duplicitious. A charge is duplicitous if it alleges two or more separate and distinct crimes in a single count. The dangers posed by a duplicitous counts in an indictment are three-fold: 1) a jury may convict a defendant without unanimously agreeing on the same offense; 2) a defendant may be prejudiced in a subsequent double jeopardy defense; and 3) a court may have difficult determining the admissibility of evidence. Although the Court made this finding on Count II, it was not dismissed. Instead, the government has until Friday to decide which of the two crimes charged (either the general conspiracy statute under section 371 or the terrorism statute, section 2339) to pursue. Obviously, the government will elect the more serious terrorism section. This decision will also, I'm sure, be appealed.

Most people will announce surprise at these rulings for one of two reasons -- first that Judge Cooke is a Bush appointee or second that counts are almost never dismissed on these grounds. As I have explained before, Judge Cooke is as fair a judge as there is. Judges cannot comment on their opinions. They cannot defend their opinions in the press. I hope that the bar stands up for Judge Cooke and explains these technical aspects of the law to the press. As for the second ground, simply because it does not happen a lot doesn't mean that it shouldn't or that it wasn't correct in this case. It would have been very easy to deny the motion. Judge Cooke should be applauded for doing what she believes is just and right, and compelled by the law, in a very difficult case with lots of political and media pressures. Now we'll get a definitive answer from the 11th as to whether prosecutors will be able to charge one crime as many ways as they can come up with...

UPDATE -- first article on the board goes to Jay Weaver, here.

Here is the Order.

Here is the CNN article.

"5 charged with organizing Cuban migrant smuggling trips"

Read the Herald AP article here.

I'm out -- have a nice weekend.

Bankest Verdicts

After almost a half a year in trial and 4 weeks of deliberations, the Bankest jury returned guilty verdicts against all defendants, who were taken into custody after the verdicts were read. Now the question is whether the Orlanskys will be punished more harshly for exercising their right to trial. This particular bank fraud trial has been dubbed the biggest in Miami's history. Here's the intro to the Herald article:

Eduardo and Hector Orlansky, the top officers of E.S. Bankest, each face up
to a maximum of 30 years in prison and substantial restitution for conspiring to defraud Espirito Santo Bank of Florida of some $170 million. The Orlanskys and E.S. Bankest manager R. Peter Stanham were taken into federal custody following the verdict Wednesday. The government argued they were potential flight risks because of their ties to other countries. The Orlanskys are from Argentina. Ariadna Puerto, another E.S. Bankest officer, was given home detention. U.S. District Judge Adalberto Jordan set sentencing for Nov. 17. Eduardo Orlansky stared straight ahead and showed no emotion as the jury foreman read the verdict before a packed courtroom. Hector Orlansky shook his head as the guilty counts against his brother were recited. Puerto cried as the counts against her were read. Stanham also teared up as he said his goodbyes to family members before being taken into custody.

Snow White's dwarfs more famous than US judges: poll

Here's a great article that I came across (hat tip: ScotusBlog) about Americans' knowledge of the Supreme Court and government in general. Here are some tidbits:

• Three quarters of Americans can correctly identify two of Snow White's seven dwarfs while only a quarter can name two Supreme Court Justices, according to a poll on pop culture released on Monday.
• Twice as many people (23 percent) were able to identify the most recent winner of the television talent show "American Idol," Taylor Hicks, as were able to name the Supreme Court Justice confirmed in January 2006, Samuel Alito (11 percent).
• Respondents were far more familiar with the Three Stooges — Larry, Curly and Moe — than the three branches of the U.S. government — judicial, executive and legislative. Seventy-four percent identified the former, 42 percent the latter.

What do you think the results in Miami would be if we asked about local judges? I'm afraid to ask...

Janet Reno's speech at NACDL

The National Assocation of Criminal Defense Lawyers recently had its annual meeting in Miami Beach, Florida. Janet Reno spoke. Here is her speech, with an intro from Neal Sonnett.

NG NOTB

Not Guilty North of the Border. What a relief! I'm still convinced there is no better feeling than hearing those two words...

I'll be back in the office today trying to get the computer back in order, catching up on stuff, and then finally getting back to the blog.

Profiling Prosecutors and Public Defenders

This morning's Daily Business Review profiles prosecutors and PDs. AUSAs Ed Nucci, Caroline Heck Miller, and Richard Gregorie are discussed as well as AFPD Faith Mesnekoff. There is also a long story about why public servants join these offices and why many must leave.

Crash

So we didn't finish the North of the Border Trial today as I had hoped. Summations will be Monday, which means a stressful weekend. Even worse, my Microsoft Exchange Server crashed at the office today, and my tech guy tells me that I've probably lost all my data. I thought this stuff never disappears... So do I start from scratch, hire a data recovery team, or try to recreate what I can from different places? UGH!!!!!

Still North of the Border

I'm still in trial and plan on catching up this weekend with SDFLA news. In the meantime, I did notice that the en banc 11th Circuit affirmed Judge Lenard in the Cuban Spy case (USA v. Ruben Campa), in which a panel of the 11th Circuit originally reversed on venue grounds. The original panel (Judges Birch and Kravitch) dissented. And the en banc court remanded to the panel to consider the other issues raised on the appeal. I haven't had a chance to read the opinions which run over 120 pages, but when I do this weekend, I'll post some thoughts. If any of you have read it, please post your comments.

A stranger in a strange land...

Sorry for the slow blogging... I'm in trial in Broward State Court (or as Rumpole would say: North of the Border). Here's an article about the trial if you are interested.

Big news in federal court -- drum roll please -- attorneys are now permitted to bring camera phones into the courthouse. I commend Chief Judge Zloch for amending the old rule prohibiting such phones. Pictures, of coures, are still prohibited..

Congrats to U.S. Attorney Alex Acosta

... who was confirmed today by the Senate.

We wish him, a rumored reader of the blog, all the best.

J. Middlebrooks rules against Sharapova in documentary suit

The AP reports: "A federal judge ruled Wednesday against tennis star Maria Sharapova, saying a Florida production company was entitled to market a documentary on the athlete despite her agents' attempts to halt distribution.U.S. District Judge Donald Middlebrooks said Byzantium Productions Inc. was lawful in its production of two films, 'Anna's Army' and `Russian Women's Tennis.' The documentaries did not violate trademark laws, the judge found."

Padilla trial continued...

... until January 22, 2007. "No further continuances will be granted," according to Judge Marcia Cooke. Here's the AP report.

To be noticed or not to be noticed - that is the question

by Marc David Seitles
For anyone who was wondering whether a defendant and his counsel had to be notified if the district court was going to grant a variance above the advisory guidelines range - the answer is no. Today, in US v. Irizzary, No. 05-11718 (11th Cir. Aug. 1, 2006), the Eleventh Circuit held that "the district court was not required to give Defendant advance notice before imposing a sentence above the advisory guidelines range based on the court's determination that sentences within the advisory guidelines range did not adequately address section 3553(a) sentencing factors."

On a sidenote, who created the term "variance"? A district court shall impose a sentence sufficent but not greater than necessary after considering all the factors set forth 18 USC 3553(a) - and that's it. The sentencing court renders its decision after considering the required statuory language. Therefore, should any decision post Booker truly be called a "variance"? Thoughts?

Judge William Thomas

Former Federal Defender and current State Circuit Judge William Thomas issued a big ruling today in a highly publicized murder case. Rumpole has the scoop here. (And to avoid any confusion, that's not me who was quoted in the article. That's another lawyer with the same first and last name -- different middle names.) UPDATE -- here's Judge Thomas' Order. Worth a read.

Sentencing in Federal Land...

I typically try to keep this blog neutral and use it as a way to keep up on the exciting cases in this District. But following up on Marc's post below, I think there should be a lot more discussion about sentencing for federal offenses. The leading blog on sentencing is Sentencing Law and Policy by Douglas Berman, which is doing a great job highlighting many of these issues.

I really believe that if more regular people knew about how sentencing really occurs, they would be horrified. Marc highlights the acquitted conduct issue which is baffling to me (the actual 11th Circuit opinion which he references can be read here, and Judge Barkett's concurrence -- blasting the idea of using acquitted conduct at sentencing -- is definitely worth a read; here is Berman's take on this issue). Under the current state of the law, if you are charged with being a felon in possession of a firearm and murder, and a jury finds you not guilty of the murder and guilty of the felon in possession, then a sentencing judge could still sentence you as though you committed the murder. I'm not kidding.

There are many, many other troubling sentencing issues. Here's a few:

• Why should crack offenders get sentenced on a 100-1 ratio to cocaine users?
• Why are probation officers allowed to interpret the law and then advise judges of their opinions in an ex parte manner?
• Why doesn't the Confrontation Clause apply with the same force at sentencing and trial?
• Why does the preponderance standard apply at sentencing when at trial the standard is beyond a reasonable doubt?
• Why don't the rules of evidence apply at sentencing?

And the Southern District just saw one of the worst sentencing problems (as serious as using acquitted conduct) -- punishing someone for exercising his right to a jury trial. One of our judges just sentenced Eduardo A. Masferrer to 30 years in prison on a white-collar offense. Thirty *years*! Thirty years ago I was three. In thirty years, Masferrer will be long gone. His co-defendants, who pleaded guilty, were sentenced to 28 months a piece. Ellen Podgor touches on the issue of being punished for proceeding to trial here.

The reason for the huge disparity between trial and plea is in part because some judges, after trial, hit the defendant with all of the guideline adjustments and enhancements possible whereas if there is a plea, both the prosecutor, probation officer, and judge are willing to negotiate those adjustments and enhancements away. This is especially evident in white collar cases like Masferrer's. It is even more true in weaker cases. In weaker cases, the prosecution really wants to bargain for lower sentences (so as not to lose at trial), increasing the risks of testing the government's case at a trial.

It's for this reason -- the enormous risks to defendants -- that trial numbers are way way down, especially in white-collar cases. The solution? I'm not sure. I suspect that our big sentencing changes (i.e. Apprendi/Blakely/Booker) aren't finished (and I'm sure that the Supreme Court will revisit the acquitted conduct issue)... But I never count on those sorts of changes. So my personal decision may sound a bit strange, but I think we (both sides) should just try more and more cases.

Anyway, enough for my Sunday rant. Back to the regular business of the blog....

Aquitted Conduct

by: Marc David Seitles
In United States v. Faust, the Eleventh Circuit did not find a constitutional problem with enhancing a sentence based on acquitted conduct. While the Eleventh Circuit is not the only circuit to hold the same, it does seem to run contrary to the whole point of why we have trials in the first place. Indeed, I would bet that if you asked 100 people (non lawyers!) whether they could be sentenced for conduct where a jury concluded that he/she was "not guilty," 99 of those folk would say "no way, that's impossible." What do you think?

Notice of Appeal

A funny notice of appeal is making the rounds...

News and notes

Quick notes:

1. The National Association of Criminal Defense Lawyers is having their annual meeting here in Miami Beach. It started tonight and it goes through Saturday. The focus is on cross-examination. Tomorrow, legendary defense lawyer Larry Pozner is lecturing. On Friday, we tap the local talent: Albert Kreiger and Jeff Weiner.

2. The Miami 7 "terror" defendants were in Court today before Judge Lenard for the first time. She set trial for March 2007, with discovery to be exchanged by this fall. She also told the parties not to leak to the press.

3. Magistrate Judge Ted Klein's cases have been reassigned temporarily to Judge Torres. The order can be found here on the court's website. Judge Klein is in all of our thoughts.

"Vamos a Cuba" back on school shelves

Judge Alan Gold in an 89-page order said the School Board in banning 24 books "abused its discretion in a manner that violated the transcendent imperatives of the First Amendment.'' Here's the Herald article. And here's Matthew Pinzur's blog post covering the story and a teacher's take before the opinion came out.

Padilla lawyers home...

... according to this DBR article:

"Three defense attorneys in a Miami terrorism case who were trapped in war-torn Beirut while interviewing witnesses got tired of waiting for the U.S. Marines to evacuate them. So they hitched a ride on a Norwegian freighter. The attorneys — Orlando do Campo of the federal public defender’s office in Miami, Andrew Patel of New York City and William Swor of Detroit — along with an Arabic-speaking interpreter they hired arrived in Cyprus last Wednesday and caught flights home the next day."

"Ally of ringleader in Liberty City terrorist plot stalled group's plans"

I missed Vanessa Blum's article yesterday about the Miami 7 terror case with the headline above. Here's the intriguing intro to the article:

The arrival in South Florida of a Chicago man linked to the ringleader of a group accused of plotting to blow up the Sears Tower in Chicago and the FBI building in Miami spoiled the FBI's plans to follow the group longer, according to investigative records.Narseal Batiste, charged with conspiracy to support terrorism and wage war on the United States, summoned his spiritual leader, Sultan Khanbey, to South Florida in early April. His visit occurred just as the FBI prepared to introduce an undercover informant posing as an explosives expert from Europe.At the time, a separate FBI informant posing as an al-Qaida agent already had infiltrated the group and asked Batiste and his followers to participate in a fictional al-Qaida plot to bomb FBI buildings in five cities. Instead of accelerating those plans, Khanbey's arrival led to infighting that disbanded the group before the FBI could gather additional evidence about their willingness to carry out an attack.

What is it good for?

The DBR's Julie Kay reports today on 3 defense lawyers who were trapped in Lebanon. (UPDATE -- THE DBR HAS MADE THE ARTICLE PUBLICLY AVAILABLE HERE). Here's the intro:

Three defense attorneys in a Miami terrorism case who were trapped in Beirut by the conflict between Israel and Lebanon have been evacuated safely to Cyprus.Miami Assistant Federal Public Defender Orlando do Campo and two private lawyers, William Swor of Detroit and Andrew Patel of New York, traveled to Lebanon about three weeks ago. They were there to do research and take depositions in preparation for the scheduled federal trial in September of accused dirty bomber Jose Padilla and four other defendants before U.S. District Judge Marcia Cooke.The lawyers were stuck at a Beirut hotel, according to Swor’s secretary. They had departed for Beirut on July 2 and were supposed to return on July 14. But war broke out July 12 when Israel began its campaign to recover two kidnapped Israeli soldiers. Israel bombed the airport, trapping the lawyers and thousands of other Americans and Europeans in Lebanon.The lawyers had no choice but to stay on at the hotel while the U.S. and other governments made plans to evacuate their citizens.While he was trapped at the hotel, Swor sent daily e-mail updates to a list of colleagues from his laptop computer. A local lawyer who was on the e-mail list described some of Swor’s dispatches.“Day 1: We’re sipping piña coladas by the pool. The staff is wonderful.Day 2: We’ve moved into one room. The French got out. This is like Hurricane Katrina all over again — Bush can’t seem to coordinate these things.”At one point, Swor was at a local church while a priest was praying and a bomb went off nearby. The priest didn’t pause, he just prayed faster, Swor reported.Do Campo and Patel represent Padilla. Swor represents Kifah Jayyousi. Padilla, Jayyousi and Adham Hassoun — along with two co-defendants who are in the Middle East and will be tried in absentia — are charged with conspiring to commit terrorism and funding terrorist groups in Bosnia and the Middle East. All have pleaded not guilty.The three attorneys were rescued Wednesday and put on a cruise ship chartered for the rescue effort. They were taken to nearby Cyprus. From there they are expected to fly back to the United States.Sources said the three men may have been rescued by the Swedish government, along with a group of Swedes who also were trapped at the hotel.

The Hokey Pokey

More wet-foot/dry-foot stuff going on in Miami re the 28 migrants who were attempting to get to the United States. Remember that last week the U.S. charged 3 people with smuggling. At their initial hearing, Assistant Federal Defender Bill Barzee asked that the 28 migrants be kept here as witnesses. The judge said yes. But the U.S. had a problem -- if they brought the Cuban migrants ashore, then they got to stay. So the government kept them on a boat a couple feet out... Today, that changed. According to the AP story:

In an unusual move, 28 Cuban migrants were brought to U.S. soil so they can serve as witnesses in a criminal case against the men accused of organizing their deadly smuggling voyage. The decision announced Thursday also means the migrants can stay permanently in the United States.

U.S. Attorney R. Alexander Acosta said the "unique circumstances" of the case led prosecutors to bring the group ashore under material witness warrants, which could require them to testify before a grand jury or in a trial.

"Smugglers often treat migrants as if they were human cargo," Acosta said. "This must stop."
The 28 migrants were brought to Key West early Wednesday after being detained aboard a Coast Guard cutter at sea since the July 8 chase, which resulted in the death of one Cuban woman. They were transferred to U.S. Customs and Border Protection officials and brought to Miami early Thursday, officials said.

U.S. Magistrate Judge Lurana Snow agreed Thursday to allow all the Cuban migrants in U.S. custody to be released to their relatives in Miami under the guarantee that the families will pay $25,000 per person, if they do not appear in court when necessary.

Judge Robert Pineiro on sentencing

Judge Robert Pineiro (or someone pretending to be him) posted the following provocative comment on Rumpole's blog. It's very long for a post, but I think it's worth reprinting (reblogging?) in full. Please feel free to comment on this post. Here it is (hat tip to Marc Seitles):

Judge Roberto M. Pineiro said...
Horace,You have posed some very interesting questions.In response I offer the attached excerpts from a speach I gave some years ago at FIU.Please, excuse my verbosity. You have accused "robed ones" of loving to pontificate so surely, this diatribe must be to your liking as proof positive of your allegations."In order to impose an appropriate and just sentence the judge must factor in the nature of the crime and the nature of individual who has been found guilty of that crime. When I first stated my legal career as an Assistant Dade County State Attorney, 25 years ago, during the dark ages, a judge had full discretion to impose whatever sentence she felt appropriate; the only limitation was the statutory maximum penalty. This gave the judge an opportunity to hand tailor what she thought would be the best sentence for a particular crime and for a particular defendant. The judge would be free to give whatever weight she felt various factors warranted. Without hindrance she could analyze various considerations such as:1.the severity of the crime2.the severity of the injury to the victim3.the injury caused to society by the defendant’s actions4.all the relevant circumstances of the crime 5.the convicts criminal record or lack thereof and his entire past history6.the victim’s need for restitution7.the possibility of rehabilitation8.the possible need to send a message to the community9.a host of other variablesThe law gave the judge full discretion free of any limitation in all cases but one–first degree murder. That crime had a penalty of life in prison with a minimum mandatory sentence of 25 years state prison. This meant that, regardless of any other consideration, the most lenient sentence a person convicted of this crime could receive was twenty-five years in state prison. A spouse who kills his partner to collect an insurance claim would face the same penalty as a spouse who pulls the plug on a terminally ill and suffering partner. In 1977 this was the only minimum mandatory sentence, or “min-man” in legal parlance, on the books.While a judge enjoyed great freedom to fashion the best possible sentence in his estimation this free wheeling discretion led to great disparity of sentences for similar crimes throughout the state. Judges were, in no way, required to try to give similar penalties for similar crimes. There could be great differences in sentencing policies between courtrooms just a few feet apart from each other not to mention differences between cities such as Miami or Tallahassee. In order to promote more uniform sentencing across the state and across the hallway for similar crimes, a laudable goal, the legislature in the early 1980's created sentencing guidelines–thereby bringing mathematics into the art and science of judging. Crimes were categorized by their severity and were given a certain number of points–the higher the number the more severe the crime. Points were also assessed for other factors such as: victim injury, prior convictions, legal restriction at the time of the offense, such as probation, and any additional offenses. All the defendant’s points were then totaled up on a score sheet and the defendant’s guideline sentencing range was computed. Lawyers, many of whom came to the law because they hated the math required for medical school, were shocked to discover they had to learn how to use a calculator. I still don’t know how to use one. That’s why I became a judge; I force the lawyers to use them for me. By law, these guidelines are mandatory and the court must not deviate upwards or downwards absent some very precise and codified circumstances.The sentencing guidelines did provide for more uniformity while allowing the court discretion to sentence within the sentencing range and to determine if any special circumstances exited for mitigation or aggravation of the sentence. The guidelines allowed judges a way of fashioning a sentence for similar crimes in line with other courtrooms around the state. Thus, defendants were treated more equally. The guidelines fashioned a good balance between allowing a judge full discretion to impose a punishment for one certain individual and providing for equal treatment of particular crimes across the state. The guidelines were so successful that the legislature decided that even more uniformity was in order. They felt that certain crimes were so serious that minimum-mandatories or min-mans should be imposed. In the mid eighties in our country and, more particularly, in our state the “cocaine cowboys” were in full cattle drive mode. Substitute coke and other killer drugs for the cows. Our state was drowning in a deluge of illegal and lethal drugs. The drug trafficking also fostered a bloodbath of drug related murders. The Medical Examiners office had to rent a refrigerated Burger King truck to house the overflow stiffs. Drastic measures were needed to stem the tide. The legislature turned to minimum mandatory statutes; keep the drug dealers in prison for a time certain and, at least, that one charming fellow would be out action for a while. One less criminal for law abiding citizens to worry about. Starting with the one min-man statute on the books in 1977 min-mans have proliferated amazingly since the mid 80's; it’s like bunnies high on viagra. We now have dozens of min-man statutes. They include:1.Possession of more than 25 lbs. of marijuana–3 years min-man2.Possession of more than 2,000 lbs. of marijuana–7 years min-man3.Possession of more that 10,000 lbs. of marijuana–15 years min-man4.Possession of more than 28 grams of cocaine–3 years min-man5.Possession of more than 200 grams of cocaine–7 years min-man6.Possession of more than 400 grams of cocaine–15 years min-man7.Possession of more than 150 kilos of cocaine–Life min-manThere are also min-mans for possession of other drugs. The preceding list is just some examples. The court has no discretion, whatsoever, to impose a lesser sentence. The mid level coke dealer in possession of 199 grams of cocaine faces the same min-man as the mule who swallows balloons filled with 29 grams of cocaine. This is where the persuasion and mediation and the uncommon sense of judging comes in–trying to help convince the prosecution that, perhaps, the equities of a particular case or defendant require a more lenient resolution and convincing the defendant that, if found guilty, the prosecution is in the driver’s seat, so it may be in his best interests to cut his loses and take the state’s plea offer.Interestingly enough, while denying the judge, the elected official ultimately responsible to the electorate, the discretion for leniency the legislature gifted it to the State Attorney’s Office. In actuality, a prosecutor just a few years out of law school is in control of the min-man sentence, as opposed to a veteran jurist with decades of experience and with well earned grey hairs. How does the prosecution exercise it’s discretion to waive the minimum mandatory sentence? By law, the prosecution may waive the min-man if the defendant provides “substantial assistance in the identification, arrest, or conviction of any of that person’s accomplices, accessories, co-conspirators or principals or of any other person engaged in trafficking in controlled substances”. Substantial assistance can, in the first place, be provided by, in effect, ratting out your running buddies; your partners in crime. Well and good, you turn in other criminals who have already committed a crime. Certainly, this is of great benefit to society–some more bad guys off the street equals less crime being committed. However, there is a second way of providing substantial assistance. You can assist in the arrest or conviction of “any other person engaged in trafficking in control substances.” Basically, you will be turning in other people who are not your present partners is crime. How this works is that the police go on a fishing expedition trolling you as the bait. You become a police confidential informant, a C. I., and sent out with instructions to make provable cases for them. You are asked to commit crimes with the intention of arresting future criminals. Some plea agreements call for the informant to bring in a certain number of “fish” and of a certain weight. If you do not succeed, then do not pass go and go to prison for your minimum mandatory sentence. However, if you succeed then you are off the hook. You go free and your fish goes to jail; that is unless he too earns his C. I. wings and goes on the prowl, looking for his own catch to turn in. What if you actually do really, really well, better than expected–hey, lets give you permanent employment and start paying you a bonus for future provable cases. We’ll put you on commission. Who says crime does not pay? You have an untrained, highly motivated and proven bad guy engaging in crime with the court’s blessing. There have been notorious incidents where some of these valued confidential informants have committed perjury, have entrapped otherwise honest citizens; one especially infamous female informant traded sexual favors to help set up cases. Prostitution on behalf of law enforcement may not be the most laudable means of crime prevention. This manner of substantial assistance has become so unsavory that I refuse to accept substantial performance pleas involving this second type of assistance.Regardless of the of type of substantial assistance provided, what type of criminal can provide it? The one time dealer who sees an opportunity to make a quick buck, perhaps at the suggestion, maybe even the urging, of a confidential informant? The moronic, desperate mule who is so behind the 8 ball that he would actually swallow balloons filled with poison? The bad guy who, not only, talks the talk, but who also walks the walk of the certified, no-good, down and dirty, poison pedaling scum of a drug dealer? If number three is your final answer, then you’re ready to go on to the next round. Yes, folks the guy most people would want off the streets in a big way has a new lease on life and has been reincarnated as Officer Friendly. Yes, this is the man who enjoys the state’s leniency–the one who least deserves it. The one time dealer knows very little and can’t help the cops. The mule, he’s at the very bottom of the drug dealing totem pole. All he can do is give the name of the person who gave him the drugs, in another country. The prosecution is not in agreement with Jesus Christ’s praise of the old widow who gave one coin to the temple because it was all she had. They’d rather deal with the certified drug dealers who can provide them with lots of gold in the form of substantial assistance. There are other minimum mandatory penalties that apply based upon the geographical situs of a particular crime. If you are in possession of a controlled substance with intent to sell or deliver and are a certain distance from certain facilities, then some min-mans apply. Possession with intent to sell or deliver can be proven to a jury by the amount and packaging of the drugs in your possession. Drug dealers tend to sell drugs in small individualized plastic bags or tin foil. The problem is that drug buyers tend to buy drugs in small individualized plastic bags or tin foil, because that is how dealers sell them. So, how do you differentiate the seller from the buyer? It’s a judgement call for the jury.If you are in possession of a controlled substance with intent to sell or deliver and are within a 1,000 feet of a house of worship, or within a 1000 feet of a child care facility, or within a 1,000 feet of a public or private elementary, middle or secondary school, or within a 1,000 feet of a convenience store, or within 200 feet of a private or public college or university, or within 200 feet of a public park, or within 200 feet of a public housing facility then you face a minimum mandatory penalty of, no questions asked, 3 years state prison. Can any one of you, please, tell me where I can find a place in Miami that is not within the proscribed boundaries of the aforementioned facilities? Unless the state can be persuaded to treat you with leniency, you’ll do your 3 years in the slammer, even if you are an honor student with a drug problem, even if you beg for drug treatment, even if you are a decorated veteran with a “jones” for heroin caused by war wounds, even if you didn’t know that the 7 Eleven was only 999 feet away and you’d never been to it anyway. You are still at the mercy of the state. Certainly, in the aforementioned circumstances you are bound to get some leeway, but you are not legally entitled to it. And well, who knows?You say you’ll take it to the jury. Surely six good people from our community will see you are not really a bad guy; that you’ve never even been arrested before, and give you a break. They won’t find you guilty and send you away for 3 years, day for day, when they find out about how good you are and about how you were addicted because you served our country in war and how unfair the state is being to you. You’re lawyer will tell them to find you guilty of a lesser charge so that the min-mans don’t apply. Wrong. The jury will not find out that you’ve never been arrested before. It is against the law for them to do so. The jury will not find out you were addicted because of your war wounds. The evidence code says it’s not relevant and it is disallowed. The jury will not find out you are facing a minimum mandatory sentence of three years. This too is illegal and will not be allowed in evidence for the jury to hear. The jury is never told the penalty you are facing. Your lawyer will not be able to argue for a finding of guilt to a lesser charge because of the min-mans. The court is legally required to instruct the jury that if there is a finding of guilt it must be for the highest offense which has been proven beyond a reasonable doubt. All of the foregoing will happen because, while I may think your cause is just and that you are deserving of a break, I am a sworn officer of the law and I will follow the law whether I like it or not. My personal feelings have absolutely no say in how I am duty bound to follow the laws by which we must all abide . Absent the state’s magnanimity, you’re goose is cooked... The manic proliferation of these minimum mandatory statutes put the courts on the sidelines in the fashioning of an appropriate sentence. The legislature has let the pendulum swing too much toward lack of discretion and is creating, in many cases, cookie cutter justice. The legislature is to be lauded for giving judges the discretion to upwardly depart in the cases of career criminals and habitual violent offenders to the extent that they can be sentenced to even beyond the statutory maximums. Hopefully, in the future, greater discretion will be exercised in carving out further exceptions to the use of the reasoned discretion of the people’s elected judges. After all, if a judge is doing a poor job by sentencing too leniently, then exercise your right to vote and kick the bum out of office."Judge Roberto M. Pineiro

Bankest trial coming to a close

The intro from today's DBR article about the Bankest closings:

"E.S. Bankest, the dismantled Miami factoring company accused of obtaining $190 million through fraud, was “basically an empty shell” that survived on lies and deceit for the better part of a decade, federal prosecutors told jurors Monday. After a four-month trial before U.S. District Judge Adalberto Jordan, prosecutors began closing arguments in what the U.S. government calls the largest bank fraud case in Miami history. Other prosecutors, and then defense attorneys, are scheduled to deliver closing arguments through the end of Wednesday before jurors get the case. On trial are brothers Eduardo and Hector Orlansky and other principals of E.S. Bankest. They are accused by the government of committing multiple counts of bank fraud, wire fraud and conspiracy. According to an indictment handed up in December 2003, nine defendants collaborated to inflate the value of collateral for loans obtained from Espirito Santo Bank of Florida. The government accuses the Orlansky brothers, who headed E.S. Bankest, and two other former executives, R. Peter Stanham and Ariadna Puerto, of multiple counts of money laundering and bank fraud. “Bankest companies were basically an empty shell and they grew the company that way for 10 years — with air,” Assistant U.S. Attorney Caroline Heck Miller told jurors in U.S. District Court in Miami."

Ted Klein

I haven't really heard any news on Judge Klein's condition. I wanted to share this nice (anonymous) comment, which was posted tonight:

Anonymous said...
Magistrate Klein (who as we all know should be US District Court Judge Klein), needs our thoughts and prayers. He is one of the finest jurists this court has ever seen. He is exceptionally smart, always prepared, asks great questions and is totally fair and just. He also has a great personality and can tell some great jokes.He is admired by so many. He is loved by so many.Let's hope his daily running and healthy lifestyle pulls him through this terrible illness.
9:46 PM

Interesting hearing on Padilla

More developments in the Jose Padilla case emerged from a pretrial hearing on Padilla's motion to suppress. Apparently he was first stopped on the pretext that he had over $10,000 in cash at the airport but had only declared $8,000. Law enforcement was hiding in a closet because they didn't want to spook him, waiting to confront him about a possible terror attack... The hearing continues tomorrow in front of Magistrate Judge Stephen T. Brown. The whole AP article is here. Here's a snippet:

Russell Fincher, an agent in the FBI's New York-based unit investigating Osama bin Laden, testified at a pretrial hearing in Padilla's terrorism support case that he traveled to Chicago's O'Hare International Airport in May 2002. He wanted to meet Padilla's plane so that he might uncover al-Qaida's plans.

"I believed there was a terrorist act that was going to happen. I believed he had knowledge of that. I needed his help," Fincher said of Padilla. "I didn't want to arrest him."
During an interview over nearly five hours in an airport conference room, Fincher said Padilla talked freely about his criminal past as a Chicago gang member, his conversion to Islam and his travels in Egypt, Pakistan and elsewhere. But when his story didn't add up, Fincher said he confronted Padilla with terrorist allegations and asked if he would testify before a grand jury about his purported al-Qaida connections.

"He stood up and told me the interview was over and it was time for him to go," Fincher said.
Padilla was then arrested on a material witness warrant, which allows a person with direct knowledge of alleged criminal acts to be taken into custody. A month later, President Bush designated him an "enemy combatant" and he was placed in military custody. He remained there until November, when he was charged in an existing Miami case.

Monday's hearing concerned whether Padilla was officially in law enforcement custody during the interview and, if so, whether he was properly advised of his rights as a suspect. Padilla's lawyers said his statements should be barred from trial if those rights were violated.