Fed Bar Judicial reception last night

The reception last night was a huge success. I think just about every federal judge and magistrate attended. And there were about 500 other attendees. I will post pictures as soon as I have some. Good times...

Next events:

A small luncheon on February 21 for PDs and AUSAs to discuss jury selection with panel of Judge Altonaga, Judge Huck, Jeff Sloman, and Michael Caruso. It's free and lunch will be served.

and

Judge Marcia Cooke to speak at lunch on March 12 at the Banker's Club.

If you are interested in either of these events, please email Lourdes Fernandez: Lourdes_Fernandez@flsd.uscourts.gov

Thanks!

More on Ben

Some interesting points --


1. The Southern District of Florida U.S. Attorney's Office did not sign the indictment. It recused.


2. Ben's legal team has already filed a motion to ask for an early status conference to address "unprecedented" issues.

3. Lots of coverage around the blogosphere and the press. TalkLeft, AbovetheLaw, Discourse, WSJ.

4. Did Ben's politics have something to do with it? Some have contended that because Ben is a liberal Democrat, he may have been targeted. Others disagree. What do you all think?

I note here that I previously posted quotes from Jeff Weiner, a nationally respected criminal defense lawyer who is actively defending Ben publicly and privately. Jeff had one quote in the DBR about his perception about the prosecutor in this case. It did not occur to me that someone -- especially anyone that knew Jeff -- could misread the quote as defending the prosecutor or the prosecution. Apparently, some people did misinterpret Jeff's quote. For that I am sorry, and I wanted to clear this up -- Jeff believes that Ben is innocent and that the prosecution is unjust. He also believes that Ben is being prosecuted because he is a prominent criminal defense lawyer, not a prominent Democrat. The quote from the DBR unfortunately only had this last part and may have left the reader with the wrong impression. I hope this update clears that up.

Sad day

Typically I try to blog objectively and just report what is occurring in our District.

Today I can't do that because what happened this morning in magistrate court should not have happened.

Ben Kuehne, one of the pillars of this community, was indicted on money laundering charges. (read indictment here)

The government's theory of prosecution is outrageous. According to Jay Weaver's article:

Justice Department officials allege that Kuehne broke the law in 2002-03 when he vouched for millions paid by one-time Medellín drug lord Fabio Ochoa Vasquez to his high-profile trial attorney, Roy Black.
Kuehne's research gave Black the confidence -- in the form of legal opinion letters -- to accept payments totaling $3.7 million in fees and $1.3 million in expenses from Ochoa, according to several sources. Kuehne earned a portion of the expense payments -- $220,000 to $260,000 -- from Black for vetting Ochoa's payments.

**

Federal prosecutors face a formidable challenge in proving the case against Kuehne. They will have to prove that Kuehne knew Ochoa's money came from the sale of family assets to drug-trafficking associates...

This means that Ben had to have knowingly and willfully lied to Roy when telling him that the fee was okay. But what motive would Ben have for doing this? The money certainly wasn't enough to risk all of this. And Ben Kuehne of all people wouldn't have done these things for a million dollars. He's as ethical a person and lawyer as I know. I'll comment a lot more on the charges once I've had a chance to digest the indictment which was unsealed this morning in mag court.

We all know the real reason for this prosecution -- to discourage lawyers from taking these kinds of cases.

I went to court to support Ben. Half of the legal community was there to show their support. (He was released on a $250,000 personal surety bond.) Watching this unfold really stuck in my gut. I am still in disbelief. I actually had a case in the past with the lead prosecutor from DOJ. I went up to him to say hello and he exclaimed without prompting: "This is a wonderful day for the government." The comment was unnecessary and it sickened me.

I walked away from him thinking just the opposite. This is a terrible day for our country. Ben will be acquitted. But at what cost to him? And our justice system? Now, more than ever, it's critical to fight for our Constitution and our justice system.

In court, Ben commented to Magistrate Judge Brown: "since I am completely innocent of these charges, I am entering a plea of not guilty.'' He is represented by John Nields and Jane Moscowitz.

A bit of good news -- the case was assigned to Judge Marcia Cooke. As I have commented before, she is as fair and just.

UPDATED -- here's a DBR story about the case.

A good argument for cameras in the courtroom.

Check this out.

The real action occurs at 7:06 on the video counter, followed by moaning from the lawyer (off-camera).

Inspectors at Dyer building today

The David W. Dyer building will be inspected today by lawyers and experts for Ted Klein's family.

I have been informed that, contrary to recent news articles, the Judge did *not* order the cleanup to stop. Instead, he simply permitted the plaintiff's team in the building before the 6 month period for filing a federal tort claim act lawsuit ran.

"Absolved of terrorism, Haitian still in limbo"

Jay Weaver's article on Lyglenson Lemorin's plight can be read here. Lemorin is the acquitted defendant from the Liberty City 7 case who remains jailed by imimgration authorities based on the same conduct even though he is a lawful permanent resident with no prior convictions.

It's not too late

The South Florida Federal Bar Association Judicial Reception is this Thursday night at the Hyatt from 5:30 to 8. RSVP now to Lourdes Fernandez at: Lourdes_Fernandez@flsd.uscourts.gov

Opening statements in Liberty City 6 case

Here's a nice article by the AP's Curt Anderson summarizing today's openings. Here's some of the back and forth:

Ana M. Jhones, an attorney for alleged ringleader Narseal Batiste, told the new, racially mixed jury of seven men and five women that the FBI agents and prosecutors sought to build a case at any cost against the men from Miami's impoverished Liberty City neighborhood.

"This was about desperation - desperation to justify something that never happened," Jhones said in her opening statement. "We have a fabrication, a setup, of six young black men from Liberty City."

Prosecutors, however, said the FBI was right to aggressively follow tips that the group was discussing the overthrow of the U.S. government through the bombings and forming alliances with Islamic extremist groups. Although the men never obtained any weapons or explosives to carry out any attacks, prosecutors said the crime was in their agreement to do so.

"They had the will, they had the heart, they had the soul to do harm to this country," said Assistant U.S. Attorney Jacqueline Arango. "All they needed was assistance, and al-Qaida was that ticket."

The picture at the upper left is from the Herald article. Pictured are:

Don't clean that mold!

That's what Judge Story ruled in the Dyer mold case (via Julie Kay). From the article:

According to documents that were unsealed Thursday, U.S. District Judge Richard W. Story — sitting in the Miami case — issued the order Monday to preserve evidence in a case that was brought by the children of deceased Magistrate Judge Ted Klein. Klein died of a mysterious respiratory illness that his family believes was caused by years of working at the old courthouse building. "There is a reasonable risk that material evidence located in and around the David W. Dyer Federal Courthouse, relating to a future claim by the Kleins, against governmental entities and/or private entities, will be modified, altered, mitigated, destroyed and/or remediated and that such change will significantly prejudice the Klein family, causing immediate, irreparable and continuous harm because the contaminants, toxins and/or other evidence will be permanently lost," stated Story's order. Story also authorized Klein family attorney Alan Goldfarb and his experts to "inspect, photograph and videotape" the Dyer Building.

Dade County Bar Judicial Poll

The results can be found here.

Seems to me like a very low response rate, so it's probably of little use on the federal side.

When are we going to move into the 21st century and allow cameras in the federal courtrooms so the public can see what's actually happening over here?

Jury picked in Liberty City case

Openings to begin Friday.

Members of Bloods gang indicted

14 of them to be exact. With RICO.

So, their pictures are better than mine...

From yesterday's dedication ceremony of the Atkins' building (via the DBR).

Gag order lifted in part

Judge Lenard held a hearing today on my motion in the Liberty City Seven case regarding the gag order that extended to acquitted defendant Lyglenson Lemorin, his lawyer Joel DeFabio, and DeFabio's agents (me).

On January 12, we filed a motion for clarification of her order, asking how far the gag order reached and who was covered. Then on January 24, Scott Srebnick and I filed a writ of mandamus with the Eleventh Circuit attacking the gag order.

Today, Judge Lenard clarified the earlier gag orders. Lemorin's wife is now free to speak. And all of us can speak about Lemorin's immigration case, so long as we don't touch on the facts of underlying criminal case. Query how we will do that since the immigration case is based on the same facts. We still cannot discuss the facts of the first trial that led to Lemorin's acquittal. Accordingly, we will proceed with our appeal in the 11th Circuit.

Judge Lenard indicated she will be writing an order to memorialize her oral findings today, which I will post.

What struck me most about the hearing was the Government's repeated discussion about trying to protect the rights of the six men still on trial. As Srebnick and I argued in court today, none of those charged men objected to Lemorin speaking to the press. Lemorin has been detained for almost 19 months since the Government issued a press release calling him an agent of al Qaeda who wanted to blow up buildings. He should be permitted to respond to those false allegations in the media to restore his reputation and to shine light on the allegations in his immigration case.

I generally do not blog about cases with which I'm involved, but this is an exception because the gag order affected the blog. So I feel that it's okay to discuss these issues here.

Here's an article from the DBR in today's paper setting out what had occurred up till today. They'll be a bunch more in the paper tomorrow, which I will post.

UPDATE -- here are articles from the DBR, Herald, Sun-Sentinel and the AP about yesterday's proceeding.

C. Clyde Atkins renaming ceremony

It was a beautiful day for a beautiful ceremony this morning, renaming the Tower Building the C. Clyde Atkins United States Courthouse (at 301 N. Miami Avenue).

Here's a picture I took with my cell phone of Chief Judge Moreno presiding over the events. Speakers included:

Senator Bill Nelson, Congresswoman Ileana Ros-Lehtinen, Nilda Pedrosa (for Mel Martinez), Frank Angones, and Judy Korchin.

Atkins' wife and daughter also spoke.

All of the federal judges and magistrates were there and they were retelling stories about Atkins. I never practiced before him, but from what everyone was saying he seemed like a truly good person.

"Thank goodness for courts and judges who know the Constitution and follow the law."

That's the concluding sentence from a glowing editorial about Judge Cooke's handling of the Padilla sentencing. Here's more:

The punishment that Jose Padilla and two codefendants will get for conspiring with Islamic jihadists is both measured and fair. U.S. District Court Judge Marcia G. Cooke could have given Padilla a life sentence, but instead sentenced him to 17 years and four months in prison. That is less time than prosecutors asked for and more than defense lawyers hoped for -- but it is entirely commensurate with the crimes for which the three men were convicted.
This judgment and trial have been good illustrations of how the U.S. justice system should work: an impartial and fair assessment of the facts and evidence, followed by a correct apportionment of punishment, or if the case warrants, relief for the defendants.

And Vanessa Blum describes the jail where Padilla will likely serve this time. Certainly no cake walk:

Within the super-maximum security federal prison in Florence, Colo., rumors tell of a unit for terrorists called "Bombers Row." If it exists — and the Bureau of Prisons isn't telling — that is where Jose Padilla, the man once dubbed the "dirty bomber," will likely serve his 17-year prison term alongside many of the country's most notorious and dangerous criminals. The fortress-like facility outside Colorado Springs, formally ADX Florence, is known to prison experts as the "Alcatraz of the Rockies" and to its roughly 500 inmates as "The Tombs."
ADX is government shorthand for Administrative Maximum U.S. Penitentiary. Lawyers for Padilla use a simpler moniker to describe his possible jail: "hell."

And here's Curt Anderson on the chances of a government appeal:

U.S. prosecutors face steep legal hurdles if they appeal the prison terms imposed on Jose Padilla and two other men convicted of terrorism conspiracy and material support charges because of the broad powers federal judges enjoy in deciding sentences.Only a few years ago, judges were required to more closely follow federal sentencing guidelines and deviations were difficult. But with its 2005 U.S. vs. Booker decision, the U.S. Supreme Court began a series of rulings handing judges far more discretion to vary sentences based on individual circumstances.It was this authority that U.S. District Judge Marcia Cooke relied upon Tuesday when she rejected a sentencing guideline range of between 30 years and life for Padilla and his two co-defendants, settling instead on much lesser prison terms for all three. Prosecutors had argued for life.

And finally, here's Jay Weaver on Padilla's mom's reaction:

After Tuesday's sentencings, Padilla's mother, Estela Ortega-Lebron, shouted ''Praise the Lord'' and ''Hallelujah'' as she left the courthouse.
Ortega-Lebron, who lives in Plantation and attended most of the three-month trial, said the judge's decision not to give Padilla life was proof that her son was not a terrorist.
''He's not a terrorist,'' she said. ``He's not an enemy combatant. He's not al Qaeda or the Taliban. He's a human being.''
Ortega-Lebron, who called the government's treatment of her son ''insane,'' said he has suffered psychologically from his time in isolation in the military brig and in federal detention. ''Mentally, he won't be like me and you,'' she said.

Padilla defendants convicted because of "Obama bin Laden"

That's according to the Daily Business Review today. The entire quote:

"Their attorneys blames their conviction on the numerous times prosecutors used al Qaeda and its leader Obama bin Laden in trial. Cooke also allowed jurors to see a videotape of Obama bin Laden."

WHOOPS!

UPDATE -- on reflection, I'm sorry I posted this. The article is actually very good and has some interesting points and quotes. We all make typos and mistakes. It was mean of me to point it out.

Thoughts on Padilla sentencing

• Many news outlets are referring to the 17 year sentence as "lenient." Since when did 17 years become a lenient sentence? Think about where you were 17 years ago.

• Some commenters are wondering why Padilla's sentence was the longest of the three defendants when his role was arguably the least serious. Answer: He had the worst criminal history. He is a career offender under the sentencing guidelines, while the other two defendants are not.

• Will Padilla get credit for time he served in the naval brig?

• Will the government appeal the sentences? They would very likely lose after the recent Supreme Court cases, Gall and Kimbrough, which gave very wide latitude to district judges in sentencing defendants. If they know they will likely lose, will they still appeal just to make a point?

• Thank goodness for the Supreme Court's Apprendi line of cases. It lets judges judge again at sentencing.

Jose Padilla sentenced

Judge Marcia Cooke sentenced Jose Padilla to just over 17 years today. Co-defendant Adham Amin Hassoun received 15 years and eight months, and Kifah Wael Jayyousi, received 12 years and eight months.

The sentences mark huge victories for the defense because the advisory sentencing guideline range calculated by the judge was 30 years to life, and the government was asking for life.

Judge Cooke explained: “There is no evidence that these defendants personally, killed maimed or kidnapped.” She also said that she could consider Padilla's harsh treatment in the brig, over government objection.

With good time, Padilla will be released in about 12 years. Assistant U.S. Attorney John Shipley objected to the sentences, calling them unreasonable. It will be interesting to see whether the government appeals the sentences after Gall and Kimbrough, the recent Supreme Court cases which give district courts very wide latitude in sentencing.

The over-under wasn't too far off, I guess.

UPDATE -- a number of people have emailed me asking about Judge Marcia Cooke. Here is original post I wrote about her when the case was first assigned to her division. I think she has demonstrated her independence and courage. Here is what I said about her back then in November 2005:

Perhaps DOJ looked at Judge Cooke's resume and saw that she was a Bush appointee and a former AUSA and thought that she would be a push-over for the feds. Froomkin (who I doubt has ever appeared before her) goes so far as to say "the government should not expect a hostile bench." If this is what the government thought, it is dead wrong. Judge Cooke -- to put it in Chief Justice Roberts' words -- calls a strike a strike and a ball a ball, and will not be pushed around by the government. She is known in this community as a fair judge who listens carefully to both sides and calls it right down the middle. She is well liked by criminal defense attorneys and prosecutors alike.

Big SDFLA day

Judge Cooke will impose sentence this morning in the Padilla case. The CSM asks the following question:

Can a suspected future terrorist receive the same harsh punishment meted out against actual terrorists who were personally involved in planning or carrying out genuine bombings, assassinations, and kidnappings?

The article then tracks some of Michael Caruso's arguments:

In a hearing on Friday, Padilla's lawyer, Acting Federal Public Defender Michael Caruso, argued that there is no comparison between his client's conduct and the conduct of convicted terrorists currently serving sentences of life in prison.
•Richard Reid attempted to detonate a shoe bomb on a crowded commercial airliner over the Atlantic Ocean in December 2001.
•Zacarias Moussaoui admitted to infiltrating the US to serve in a second wave of Al Qaeda attacks similar to the massive 9/11 terrorist attacks.
•Ramzi Yousef planned the 1993 World Trade Center bombing that killed six and injured at least 1,000 and was the mastermind of a foiled 1995 plot to assassinate the pope and simultaneously bomb 11 airliners carrying 4,000 passengers.
•Wadi El-Hage helped plan the 1998 bombing of US embassies in Kenya and Tanzania that killed 224 and injured 4,500.

Professor Berman at his sentencing blog is covering the case here.

And the retrial of another big case starts up today, but I can't comment on it.

"When justice rolls down like water..."

I'm a sucker for great speeches...
Enjoy:

"Courthouse renamed for judge who championed causes for social justice"

More on the renaming of the C. Clyde Atkins courthouse here (by NLJ's Julie Kay).

A Miami federal courthouse will officially be named after a popular deceased judge known for his rulings desegregating Miami schools and championing the rights of homeless people and Cuban and Haitian boat people. The courthouse now known as the "Tower Building" will be officially renamed the C. Clyde Atkins United States Courthouse at a ceremony Jan. 28 outside the courthouse. It is the last of four Miami federal courthouses to be named after a federal judge. Atkins, who died in 1999, was a judge in the southern district of Florida from 1966 until his death at 84 and served as chief judge from 1977 to 1983. He was nominated to the bench by President Lyndon B. Johnson.

Here's what my former boss had to say about him:

Ed Davis, former chief judge of the southern district of Florida and now a partner at Akerman Senterfitt in Miami, said Atkins deserved the honor. "He was very well-liked in the community," Davis said. "He's a wonderful example of what a federal judge should be. He was diligent, he was intelligent, he was hard-working, and he had no agenda except for the interest of justice."

Memo to thugs:

Don't get on YouTube and taunt law enforcement. You end up looking like this.

Money quote --

Alex Acosta: ''He threatened law enforcement, he said come get him, and we granted his wish."

360 to Life

That's the guideline range for Jose Padilla and his two co-defendants as calculated by Judge Cooke. Now the Judge will hear arguments from the lawyers as to what the appropriate sentence is under 3553. In other words, the Judge must determine what sentence is sufficient but not greater than necessary. The guideline range is just one of many factors for the Court to consider and the Supreme Court has said that the guideline range is not entitled to any deference. Should be interesting...

Joking at the Supreme Court

The WSJ Blog points out funny exchanges at the Supreme Court. I reprint their fun post here (by the way, our funniest judge -- according to the poll at the right -- is Chief Judge Moreno, by a wide margin...):

The Law Blog’s Laugh-In At the Supreme Court: Wow

Posted by Peter Lattman

The big news out of the Supreme Court yesterday concerned what they didn’t do. The justices declined to hear an appeal of a D.C. Circuit ruling that terminally ill patients who have run out of medical options have a constitutional right to try experimental drugs that have not yet received FDA approval. Here’s the NYT story and prior Law Blog coverage.

On the lighter side, let’s bring back a Law Blog feature in very low demand — The Law Blog’s Laugh-In At the Supreme Court! The decidedly unfunny issue on the docket yesterday: federalism. The question, as stated by the Times: What happens when a state chooses to give criminal suspects more protection than the federal Constitution requires?

Leave it to Justice Scalia to make federalism funny. Yesterday, he asked Stephen McCullough, a lawyer for the state Virginia, about the line between valid and invalid state searches. With that, an avalanche of laughter ensued. Get ready to giggle, Law Blog readers!

Justice Scalia: Mr. McCullough, the proposition that you’re arguing, does it apply at the Federal level as well? Suppose — suppose I think that my neighbor next door is growing marijuana and I have probable cause to believe that, all right? So I go in and search his house; and sure enough, there is marijuana. And I bring it to the police’s attention, and they eventually arrest him. Is that lawful search?

McCullough: If there is State action –

Justice Scalia: I’m a State actor, I guess. You know –
(Laughter.)

McCullough: If you have State actors –

Justice Scalia: You know, a Supreme Court Justice should not be –
(Laughter.)

Justice Scalia: — should not be living next door to somebody growing marijuana. It doesn’t seem right.

McCullough: That’s not a smart neighbor.
(Laughter.)

McCullough: If you have State action and you enter into someone’s home, then the Constitution affords a heightened level of protection. But –

Justice Scalia: Don’t dance around. Is it — is it rendered an unreasonable search by the fact that I’m not a law enforcement officer at all?

McCullough: I don’t think the fact of — no. The fact that –

Justice Scalia: So any Federal employee can go crashing around conducting searches and seizures?

McCullough: So long –

Justice Scalia: So long as he has probable cause?

McCullough: That’s correct.

Justice Scalia: That’s fantastic.
(Laughter.)

Justice Scalia: Do you really think that?

McCullough: I think if there is State action, it doesn’t matter that you’re wearing a badge or that you’ve gone through the police academy.

Justice Scalia: Or that you are an administrative law judge at the, you know, Bureau of Customs? It doesn’t matter?

McCullough: I think that’s right. That if you have — if the State -

Justice Scalia: What about a janitor? You’re a janitor, a federally employed janitor.

McCullough: Your Honor –

Justice Scalia: His neighbor is growing marijuana, and he’s just as offended as a Supreme Court Justice would be. Can he conduct a search?

McCullough: I think if he’s doing it on behalf of the State, the answer is yes.

Justice Scalia: Wow.

To recuse or not to recuse...

Judge Gold recused on the Ted Klein mold case. Julie Kay, in the National Law Journal, speculates that the entire Southern District bench may follow suit:

U.S. District Judge Alan Gold in Miami has recused himself from a Freedom of Information case brought by the children of deceased magistrate judge Ted Klein against the General Services Administration. Gold's judicial assistant confirmed Monday that Gold has recused himself from the controversial case. Many are speculating that the entire Southern District of Florida bench will wind up recusing themselves and a judge in another district will hear the case. On Dec. 28, the children of deceased Magistrate Judge Ted Klein filed a complaint in Miami federal court accusing the General Services Administration of failing to comply with a Freedom of Information Act request seeking information about the David Dyer Federal Courthouse.

UPDATE -- This morning a judge from the Nothern District of Georgia has been assigned the case.

"Life or less? Padilla to learn his fate"

Jay Weaver wonders here what will happen to Jose Padilla. The intro to the article:

By week's end, Jose Padilla, a seemingly lost soul who drifted from gang member to Islamic convert to terrorist recruit, will learn whether he spends the rest of his life behind bars.
The decision is likely to hinge on a federal judge's interpretation of a strict sentencing provision of criminal law dealing with terrorism.
Last week, U.S. District Judge Marcia Cooke listened patiently to endless hours of defense argument during a marathon-like sentencing hearing that the former Broward County resident and two co-defendants committed no specific acts to aid extremists in ''violent jihad'' against foreign governments. A jury last summer convicted each on charges of conspiring to commit murder in holy wars and providing ''material support'' to that end.
''Where is the evidence?'' Padilla's attorney, Michael Caruso, declared at one point.

Tom Mulvihill on the front page of the NY Times

Interesting article here about the Venezuelan case that's been getting lots of national and international press.

From the intro to the article:

One day last August, an airport policewoman in Buenos Aires noticed something peculiar as she was monitoring a baggage scanner: the appearance of six perfect, dense rectangles inside a suitcase.
She asked the passenger, Guido Alejandro Antonini Wilson, one of eight people aboard a private plane chartered by Argentina’s national oil company that flew from Caracas, to open the case. “He became frozen and did not say a word,” the policewoman later said in a radio interview.
When he did open it, nearly $800,000 in cash spilled out.
Mr. Antonini, a businessman with Venezuelan and American citizenship, is now at the center of a spy mystery and diplomatic imbroglio involving Argentina, Venezuela and the United States. American officials portray the episode as a rare glimpse into President Hugo Chávez’s use of oil wealth to spread his influence, saying the cash was destined for the campaign of Cristina Fernández de Kirchner, Argentina’s new president.
Venezuela and Argentina describe it as an amateurish American attempt to smear their governments. Mrs. Kirchner has called the case a “garbage operation” by Americans, while Venezuela’s official news agency claimed this week that it was a plot by the Central Intelligence Agency.

And for those of you who read Spanish, here's' an article in which I am asked about Mulvihill.

P.S. The Sun-Sentinel ran a story this morning about our blog here. Surely, I can post it, right?

Padilla sentencing to continue next week...

Still no sentence for Jose Padilla and his co-defendants. Apparently, sparks are flying (via CSM). And more here from the Sun-Sentinel.

Is there anything more stressful for litigants and judges than sentencing hearings? I'm sure everyone will be relieved when this is over.

Gagged?

Unfortunately, I will not be blogging about the Liberty City 7 case any more until the following issue is cleared up:

As regular readers know, Judge Lenard gagged the defendants for the retrial. She also gagged acquitted defendant Lyglenson Lemorin and his lawyer Joel DeFabio. I recently filed a notice of appearance for Mr. DeFabio to litigate the gag order, and Judge Lenard issued the following order:

"[T]he gag order previously issued by the Court on December 13, 2007 applies to Lyglenson Lemorin, who is now a witness for the defense in this case (see D.E. 772), and his agents, as well as to Joel DeFabio, Esq., who has been appointed by the Court to represent Mr. Lemorin as a witness associated with the defense in this case, and TO MR. DEFABIO'S AGENTS as well. . . " (emphasis added)

Because I am now one of DeFabio's agents, I take it that I cannot speak about the case. I filed a motion to clarify that today, but until that is ruled on, I don't think I will be posting about the case.

Minor roles or leaders or something else?

Apparently, that's one of the big fights at the Jose Padilla sentencing (for all three co-defendants). From the AP:

Prosecutors say the three defendants were part of a conspiracy involving armed conflicts over decades in places like Kosovo, Afghanistan, Somalia and Chechnya and involving tens of thousands of people. Hassoun was depicted as a recruiter, Jayyousi as a financier and propagandist and Padilla as a recruit for al-Qaida.
"The charged conspiracy is exceedingly broad," said Padilla attorney Michael Caruso. "You have to concede that Mr. Padilla played a minimal role."
But prosecutor Russell Killinger said Padilla is "a trained al-Qaida killer" who was recruited to attend an al-Qaida training camp. He called Padilla's bid for a lenient sentence "astonishing."
"He's an instrument of the scheme itself," Killinger said.

The defendant's role in the offense will have an impact on the guideline level and will also impact Judge Cooke's ultimate sentencing decision....

Judge Huck denies Noriega's request to block extradition

Vanessa Blum has the details here:

Miami federal judge signed off on U.S. plans Wednesday to send former Panamanian dictator Manuel Noriega to France to face money-laundering charges, finding the French government has given sufficient assurances it would continue to treat Noriega as a prisoner of war under the Geneva Conventions.The ruling from U.S. District Judge Paul Huck, which followed three earlier court decisions approving the planned extradition, addressed concerns raised by Noriega's attorneys over France's refusal to formally designate Noriega a prisoner of war."Without that status of being declared a prisoner of war, there is no guarantee he will continue to receive those benefits," said Jon May, one of Noriega's attorneys.
Huck disagreed, saying he was satisfied with France's commitment to treat Noriega, 73, in accordance with the Geneva Conventions."What more could Noriega ask for or be entitled to?" Huck asked. "It's the benefits. It's not the nicety that he's called a prisoner of war."

More from the AP:

The ruling clears the way for Noriega's lawyers to appeal his extradition to the 11th U.S. Circuit Court of Appeals in Atlanta. U.S. lawyers say Noriega's extradition will not take place until the legal process is concluded.
"It is on hold," said Assistant U.S. Attorney Sean Cronin.

Federal Bar Association Judicial Reception

The Federal Bar Association will have its 27th Annual Federal Judicial Reception on February 7, 2008 at the Hyatt Regency in downtown Miami from 5:30-8p.m. $35 for government lawyers and $45 for private practitioners if you purchase in advance. Mail your checks to Federal Bar Association, 300 NE 1st Avenue, Rm. 112 Miami, Florida 33132, 305-52305770. Include a self-addressed return envelope for your tix. RSVP now.

Poor Judge Cooke...

She has to deal with a lot of sentencing objections in Jose Padilla's case (via the AP).

Go, Dore, Go!

In our continuing Go, Dore, Go! segment, here is Dore Louis from yesterday's hearing in front of Judge Cooke:

An attorney for Jayyoussi, a fundraiser for Muslim causes, launched a more direct assault on the government. ''The CIA and Justice Department destroyed evidence taken from people alleged to be unindicted co-conspirators in this case,'' argued Marshall Dore Louis. ``That's a problem.''

More from the Herald article here.

Jose Padilla sentencing to start today

Any bets as to what Judge Cooke will impose?

The early over-under line is 20 years.

--David Oscar Markus
www.markuslaw.com
305-379-6667

Standby Liberty City 7

Judge Lenard had to continue jury selection because of an emergency situation for one of the defense lawyers. Status conference on Wednesday.

Liberty City 7 retrial

It's now the Liberty City 6, and the retrial starts today, three weeks after the jury hung in the last trial.

Here's coverage by the Herald and AP. What do you think is going to happen? Another mistrial? That's what some of the jurors from trial #1 think (from Jay Weaver's article):

''From now on, they are going to have a hung jury just as we did,'' said Jose Viola, 58, an audio-visual technician for Miami-Dade public schools, who sat on the first panel and thought all of the defendants were innocent.
''There are going to be people who won't have the stomach to send these men to prison because they were set up,'' Viola said. ``And there are going to be people who will want to send them to prison because of al Qaeda.''
Delorise Thompkins, 64, who works at South Miami Hospital, agreed with her colleague on the first jury.
''I think it may hang again,'' she said. ``You're going to find someone always afraid of terrorist groups, but then when you see the evidence, there's not a lot there -- no plans, no papers, no pictures, no nothing, connecting them to Osama bin Laden.''

If that happens, will they go for trial #3?

And while Liberty City starts up, the Padilla sentencing starts Tuesday. Here's Vanessa Blum's coverage.

District news

1. Steven Larimore is our new clerk of court.

2. The Tower Building has been named the Clyde Atkins courthouse. For more on Judge Atkins, read here.

Should an acquitted defendant, his wife and his lawyer be gagged

That's the issue raised in this morning's article by Vanessa Blum:

A federal judge who declared a mistrial last month for six South Florida men charged with conspiring to support al-Qaida is taking aggressive steps to limit publicity related to the case, including silencing lawyers for a man the jury found not guilty.With a sweeping gag order imposed Dec. 13, U.S. District Judge Joan Lenard cited the need to damp down media coverage that could complicate efforts starting Jan. 7 to find impartial jurors to rehear the case.

Her order at the close of the first trial prohibits the defendants, their lawyers, prosecutors, and others, such as agents, investigators and witnesses, from talking to reporters, raising issues for defenders of free speech and drawing a challenge from one of the lawyers covered by the order.

Lenard extended the same restrictions to Lyglenson Lemorin, who was acquitted, and his criminal defense lawyer, as well as an attorney representing the Haitian national in immigration proceedings.The gag order is so broad that federal prosecutors preparing to retry the case contend it applies to Lemorin's wife, who was once listed as a potential defense witness.

I give my opinion in the article, which is that an acquitted defendant and his family should be permitted to speak.

Julie Kay on the new federal courthouse

This story isn't ending...

Check this out.

Here's an update on the lawsuit re Ted Klein, which is now being handled by Alan Goldfarb, not Ervin Gonzalez:

The judges' move to the new building could free up space for occupants of the Dyer Building. Several magistrate clerks, courtroom deputies and interpreters who work in the building have complained of such respiratory problems as double pneumonia, nosebleeds and severe allergies. Water intrusion is apparent in some areas, with peeling wallpaper, stained carpets and musty smells.

Two studies performed at the building since Klein's death concluded there are significant mold and air safety issues in the building, particularly in the basement.

Goldfarb said he is frustrated because the government has promised to provide FOIA information by certain dates and has not met these deadlines. Goldfarb is trying to find out when the government knew there were problems in the building and what action, if any, they took.

The GSA, which received the FOIA requests on Oct. 29, was not available for comment at press time.

Chief Judge Federico Moreno said there is "no problem in the Dyer Building. It's all been remedied. There's only a problem in one part of the basement.".

Happy new year!

Back to work everyone...

It's 2008.

And it's cold today.

We don't have a blogging message as cool as this:

So, we'll just leave it at Happy New Year. Here's to a great 2008.

Rumors of my demise...

...have been greatly exaggerated.

It's just that it's the deadest week of the year. EXCEPT IN STATE COURT! Are you kidding me? Yes, we have anonymous juries and explosions in buildings, but nothing like the Christmas Eve Massacre (reported by Rumpole).

Guinea pigs

According to today's DBR, the probation office will begin moving into the new Wilkie D. Ferguson Jr. federal courthouse in January. But none of the other occupants (including judges) will start moving in yet.

Liberty City 7 update

Judge Lenard has ordered an anonymous jury in the next Liberty City 7 trial. (via Miami Herald). Very bad news for the defense.

Here's the intro to the article:

A federal judge on Friday aired concerns about the possibility of jury tampering in the upcoming retrial of an alleged homegrown terrorism group and ordered that Miami-Dade jurors be selected anonymously for the high-profile proceeding.U.S. District Judge Joan Lenard cited numerous reasons for her order -- including a jury list handed by one defense lawyer to his client's mother so she could pray for an acquittal during first trial deliberations last week. Lenard noted that it was a ''pristine list'' with all 12 of the jurors' names and ''X'' marks next to six of them.''At this point, it's unclear to the court what that list was about,'' she said.Her order -- an edict normally seen in organized crime or major drug cases -- means that potentially hundreds of Miami-Dade voters who receive jury summonses for the retrial in January will be referred to by number, not by name. The judge also ordered the U.S. Marshals to provide criminal background checks on all prospective jurors for both sides.***''I do find there is strong reason to believe the jury needs protection,'' Lenard said. ``Here we have defendants accused of being members of a terrorist cell.''

On the other hand, Judge Lenard ordered the government to keep Lyglenson Lemorin here in the United States because he may be needed for the next trial. (via Sun-Sentinel). From the article:

U.S. District Judge Joan Lenard cautioned the government against moving ahead "with lightning speed so that he would not be available to testify.""I don't know if it's on a fast track or not on a fast track," Lenard said. "I have to protect the rights of these defendants and I intend to do so."

So, do we start calling the case the Liberty City 6 now?

Jailhouse snitch?

Apparently someone at the federal jail claims that a defendant in the Joe Cool case confessed. Smells fishy to me. Here and here are the articles.

Holiday cards

The Wall Street Journal Blog likes Stearns Weaver's holiday card....

The following text accompanies this picture:

Past contributions by our firm have enabled the Daily Bread Food Bank to deliver over 1.3 million meals to those in need in our community.
This year, we decided to contribute a truck to help make the deliveries a little easier.
When you see this truck in our community, you may notice that our name is not on it. That is because the gift of this truck is made in your honor. It would not have been possible without you.

Where in the world is Lyglenson Lemorin?

Check out this AP story, by Curt Anderson, about the one defendant who was acquitted in the Liberty City 7 case. Even when you win, you lose....

A U.S. jury did not think Lyglenson Lemorin was involved in a terrorism conspiracy to topple Chicago's Sears Tower and bomb FBI offices, but he did not walk out of court a free man.
Instead, federal agents took the legal U.S. resident to Georgia, where he remained Wednesday facing possible deportation to his native Haiti, his attorneys said. And Lemorin could be forced to return to court early next year in Miami to testify in the retrial of his co-defendants in the so-called "Liberty City Seven" case.
Lemorin's treatment has led people involved in the case to question the government's motives, especially if he is charged with largely identical terrorism-related offenses in deportation proceedings.

We also haven't had a Go Dore Go segment in a while, but the article quotes blog favorite Dore Louis:

His lawyers didn't know where he was until Monday, and Lemorin told them he feared he would be taken to the U.S. terrorist detention center at Guantanamo Bay, Cuba. A Miami lawyer who represents a co-defendant in the Jose Padilla terrorism case said Lemorin was afraid for good reason.
"This is a category of individuals who are subjected to different rules," said attorney Marshall Dore Louis, who is not involved in the Liberty City Seven case. "I think anybody who is in that system should be terrified about what the government is going to do."

Anonymous Blog dies

Thank goodness it's not Rumpole.

Still, it's sad that StuckonthePalmetto is dead. It was one of the best blogs in South Florida. Here's the Herald report on what happened...

DBR covers Federal Bar Luncheon

John Pacenti's Justice Watch column today details Chief Judge's Moreno's take on the two big sentencing decisions from last week that he spoke about at the federal bar lunch:

Chief U.S. District Judge Federico Moreno doesn’t expect a pair of U.S. Supreme Court decisions reinforcing the sentencing discretion of federal judges to create much of a ripple. “There will be a little bit of change,” he told the Federal Bar Association last week. The affable judge kept lawyers in stitches as he addressed the association for the first time as chief judge.
***
Moreno told the association that most sentences will fall within the guidelines but he expects the number of sentencing appeals to drop. In an interview afterward, the judge said the guidelines play an important role. “It eliminates disparities between different judges,” he said. “I like the guidelines because that’s what they are — guidelines — they are not mandatory sentences.” But he also welcomes the latest decisions guaranteeing more discretion to district judges. “We know the case and the individual,” he said. “It gives the opportunity for the exception if someone is young or if something is unusual. Sometimes people do fall outside the standards.”