Most boring post *ever*

This post is coming straight at you from the en banc 11th Circuit. I know, I know -- b-o-r-i-n-g.

1. First up is United States v. Svete. The Court agreed to hear the case en banc. This is going to be followed by all prosecutors and defense lawyers. The panel decision reversed a mail fraud conviction because, the court held, mail and wire fraud offenses do not encompass schemes which are not calculated to deceive a reasonably prudent person. The Court will address whether mail fraud (and related offenses) encompass schemes which are not calculated to deceive a reasonably prudent person? Get fired up baby!

2. Next is Jerry Greenberg v. National Geographic Society. No, not that Jerry Greenberg. This Jerry Greenberg. Can National Geographic reproduce (on a CD set) old magazines with Greenberg's pictures without his permission?

Judge Barkett wrote the majority opinion, which starts out this way:

Appellant National Geographic Society is a nonprofit scientific and educational organization that has published a monthly magazine since 1888.2 The Society also produces televised programs and computer software as well as other educational products through National Geographic Enterprises, a wholly-owned and for-profit subsidiary of the Society. Appellee Jerry Greenberg is a freelance photographer, some of whose photographs were published in four issues of the National Geographic Magazine. For decades, the Society has reproduced back issues of the Magazine in bound volumes, microfiche, and microfilm. In 1997, National Geographic produced “The Complete National Geographic” (“CNG”), a thirty-disc CD-ROM4
set containing each monthly issue of the Magazine, as it was originally published, for the 108 years from 1888 through 1996—roughly 1200 issues of the Magazine. In addition, the CNG includes a short opening montage and a computer program that allows users to search the CNG, zoom into particular pages, and print. Greenberg sued National Geographic, alleging that it had infringed his copyrights by reproducing in the CNG the print magazine issues that included his photographs. The district court disagreed and granted summary judgment in favor of National Geographic, holding that because the CNG constituted a “revision” of
the print issues of the Magazine, the reproduction of Greenberg’s photographs in the CNG was privileged under 17 U.S.C. § 201(c) of the Copyright Act and did not constitute an infringement of Greenberg’s copyrights. However, a panel of this Court in Greenberg v. National Geographic Society (Greenberg I), 244 F.3d 1267, 1275–76 (11th Cir. 2001), reversed and remanded for the district court to “ascertain the amount of damages and attorneys fees that are, if any, due as well as any injunctive relief that may be appropriate.” After a jury trial on damages, the jury returned a verdict against National Geographic in the amount of $400,000.
National Geographic appealed again, this time arguing that the intervening decision of the U.S. Supreme Court in New York Times Co. v. Tasini, 533 U.S. 483 (2001), decided after Greenberg I, mandated a reversal of the jury verdict against it. A second panel of this Court agreed, finding that Tasini compelled a reversal of the jury verdict because, under Tasini’s rationale, National Geographic was privileged to reproduce its print magazines in digital format pursuant to § 201(c) of the Copyright Act. See Greenberg v. Nat’l Geographic Soc’y
(Greenberg II), 488 F.3d 1331 (11th Cir. 2007).5 This Court then vacated the Greenberg II panel opinion and granted rehearing en banc to address the question of whether National Geographic’s use of Greenberg’s photographs in the CNG is privileged.

The conclusion:

In the light of the Supreme Court’s holding in Tasini that the bedrock of any § 201(c) analysis is contextual fidelity to the original print publication as presented to, and perceivable by, the users of the revised version of the original publication, we agree with the Second Circuit in Faulkner and find that National Geographic is privileged to reproduce and distribute the CNG under the “revision” prong of § 201(c).

The CNG—albeit in a different medium than print or microform—is a permissible reproduction of the National Geographic Magazine. Greenberg’s photographs are preserved intact in the CNG and can only be viewed as part of the original collective works in which they appeared. Similar to the microforms of Tasini, which preserve the context of multiple issues of magazines, the CNG’s digital CD-ROMs faithfully preserve the original context of National Geographic’s print issues. The CNG’s additional elements—such as its search function, its
indexes, its zoom function, and the introductory sequence—do not deprive National Geographic of its § 201(c) privilege in that they do not destroy the original context of the collective work in which Greenberg’s photographs appear.21 We REVERSE and REMAND to the district court for proceedings consistent with this opinion.

Supreme Court Term is over

There aren't many jobs where you get the entire summer off -- school teachers and.... Supreme Court Justices.

Here's Linda Greenhouse's summary of the October 2007 Term. She is retiring, so this may be her last article.

Here's a cool graphic from the article on the major cases of the Term:

News and Notes

1. We previously covered the plea/sentencing that went bad in the Shahrazad Mir Gholikhan's case. She was sentenced to 29 months a week after Judge Cohn sentenced her to credit time served. Today, that plea and sentence was vacated because everyone, including the prosecutor and the judge, believed that the guidelines were 0-6 when Gholikhan pleaded guilty. The Sun-Sentinel article is here. Trial coming up in August. Bill Barzee for the defense.

2. The Sun-Sentinel also covers this shocking case here. According to the civil defendants in this case, Florida is an "anti-gay" state. Here's the intro from the article:

The family vacation cruise that Janice Langbehn, her partner Lisa Marie Pond and three of their four children set out to take in February 2007 was designed to be a celebration of the lesbian couple's 18 years together.But when Pond suffered a massive stroke onboard before the ship left port and was rushed to Jackson Memorial Hospital, administrators refused to let Langbehn into the Pond's hospital room. A social worker told them they were in an "anti-gay city and state."Langbehn filed a federal lawsuit Wednesday charging the Miami hospital with negligence and "anti-gay animus" in refusing to recognize her and the children as Pond's family, even after a power of attorney was faxed to the hospital within an hour of their arrival.The case raises questions about the way hospitals deal with same-sex or unmarried partners of patients, which has led to controversy in the past. Hospital industry officials say they are constrained by patient privacy laws that can restrict giving visiting access and medical information to nonrelatives, a stance that some patient advocates have branded as discriminatory.

Local ex-AUSA shines during scandal

The Honors Program has been described as the "jewel" of the Justice Department because it used to have the brightest young lawyers in the country.

But a report was issued this week, explaining how during the Bush Administration, the Honors Program became politicized, screening out qualified applicants because they were members of organizations that appeared to be liberal (like American Constitution Society or Greenpeace) or had other items on their resumes indicating that they weren't staunch right wing Republicans.

There was one bright light, highlighted in the report -- Dan Fridman, a then-AUSA who was doing a detail at Justice in DC (in full disclosure, Dan is a friend of mine and I have blogged about him before here.). Dan was part of the committee chosen to screen applicants for interviews. Dan wanted to screen ... (take a deep breath!) ... based on merit (!!), but was told his job was to weed out the "wackos" (read: the liberals). Dan refused and continued to recommend candidates for interviews based on merit, not on ideology. The money quote of the 100+ page report:

In addition, we believe that various employees in the Department
deserve credit for raising concerns about the apparent use of political or
ideological consideration in the Honors Program and SLIP hiring
processes. For example, Daniel Fridman deserves praise for reporting
his concerns about the process in 2006 to both his supervisor and
Elston and for avoiding the use of improper considerations in his review
of candidates for the Honors Program and SLIP. A few DOJ political
employees also objected to the apparent use of political or ideological
considerations in the hiring process, such as Assistant Attorneys
General Peter Keisler and Eileen O’Connor, and they should be credited
for raising their concerns. Certain career employees, particularly in the
Tax Division and the Civil Division, also pressed concerns about the
hiring process. By contrast, we believe that others in the Department,
such as Acting Associate Attorney General William Mercer and OARM
Director Louis DeFalaise, did not sufficiently address the complaints
about the deselections.

There's a ton more here to read. I enjoyed reading the"Fridman criteria" for receiving an interview:

To identify a subset of highly qualified candidates, we relied on
criteria that one of the Screening Committee members, Daniel Fridman,
described as an indication that the candidates were so highly qualified
that they merited just a quick check before he approved them. Fridman
said that if candidates attended a top 20 law school, were in the top
20 percent of their respective classes, or were at a school that did not
rank students, he tended to approve them automatically unless they
had a C on their transcripts.30 We refer to these criteria as the
“Fridman criteria.”

Here's Keith Olbermann on the whole thing (and he mentions Dan by name):



Of course, anyone who knows Dan, knows he would do the right thing. In fact, see our post here from January 2006:

Congrats to AUSA Daniel Fridman (from this District). He has accepted a special assignment to work with the Acting Deputy U.S. Attorney General Paul McNulty (the #2 guy at DOJ in DC) on shaping the administration's criminal and civil rights policy. Those that know Dan, know that he is a good and fair prosecutor and I hope he uses the time in DC to promote his even-tempered philosophy.

Dan is now at working at Lewis Tein. Congrats to him on how he handled himself in this mess...

Exciting week at the Supreme Court

This is the last week for Supreme Court action, and it has been an exciting one. SCOTUSblog is the place to be, and they've added to the drama with their live-blogging feature each morning at 10am. It's worth checking out -- you'll have to see it tomorrow as that will be the last day for decisions. The big one to be decided tomorrow is the gun case, Heller. Today was also big as the Court ruled that the death penalty cannot be imposed in a child rape case (and any other case) that does not result in death to the victim. 5-4, with Kennedy writing for the majority of usual suspects, and Alito writing for the 4 dissenters. The other big case today was the Exxon punitive damages case in which the Court found that punis were limited to compensatory damages.

Here is SCOTUSBlog on the child rape case:

Barring the death penalty for any crime that does not take the life of an individual victim, the Supreme Court ruled Wednesday that it is unconstitutional to impose the death penalty for the crime of raping a child. If the victim does not die and death was not intended, capital punishment for that crime violates the Eighth Amendment, the Court ruled in an opinion by Justice Anthony M. Kennedy. The case was Patrick Kennedy v. Louisiana (07-343). The broad declaration that death sentences should be reserved “for crimes that take the life of the victim” will apply, the Court said, to crimes against individuals — thus leaving intact, for example, a possible death sentence for treason.Part of the Court’s rationale for nullifying a death sentence for raping a child was that the child victim gets enlisted, perhaps repeatedly, to recount the crime, forcing on the child “a moral choice” that the youngster is not mature enough to make. “The way the death penalty here involves the child victim in its enforcement can compromise a decent legal system,” Justice Kennedy wrote.
The decision split the Court 5-4. It nullified a Louisiana law that provided capital punishment for raping a child under age 12. The law was since amended to apply to raping a child under age 13. Five other states have similar laws.
At the close of Wednesday’s public session, Chief Justice John G. Roberts, Jr., announced that the Court will issue all remaining decisions for the Term at 10 a.m. Thursday. The test case on whether the Second Amendment protects an individual right to possess a gun is among those remaining (District of Columbia v. Heller, 07-290). The others still pending are cases on the constitutionality of the so-called “Millionaire’s Amendment” on campaign finance (Davis v. FEC, 07-320), and on federal regulators’ power to undo wholesale energy sales contracts (Morgan Stanley Capital v. Public Utility District, 06-1457, and a companion case).
Justice Kennedy’s majority opinion in the Louisiana capital case was supported by Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens. Justice Samuel A. Alito, Jr., wrote for the dissenters; he was joined by Chief Justice Roberts and Justices Antonin Scalia and Clarence Thomas.
Justice Alito, rejecting the majority view that there is now a national consensus against executing one who rapes a child, argued that the focus should not be on the fact that only six states now have such laws. More might have taken the step, Alito argued, if the Supreme Court in barring execution for raping an adult in 1977 had not given state legislators “good reason to fear” that they never could pass such a law. The broad dicta in that case, Alito said, was not supported by all of those in the majority in Coker v. Georgia. Since then, the Justice added, state courts have read the Coker opinion in its widest sweep, “stunting legislative consideration” of the death penalty when a child was the victim.

Florida Supreme Court steps in on Conway settlement

We've covered Sean Conway's bar issue and proposed settlement before (He agreed to settle his bar case for calling Judge Aleman on the Broward Blog an "evil, unfair witch" for a public reprimand).

Apparently, the Florida Supreme Court didn't accept the settlement with the bar, asking if Conway's speech was protected by the First Amendment. According to this DBR article:

The Florida Supreme Court is questioning a proposed settlement brokered by The Florida Bar in a disciplinary case against a Fort Lauderdale criminal defense attorney for his critical comments about a judge. The court asked for more information from The Bar and attorney Sean Conway on Monday. It issued an order directing them “to show cause” by July 14 whether “any of the respondent’s comments should be considered protected speech under the First Amendment.”

I hope the Florida Supreme Court does the right thing in the end and dismisses the case brought by the Florida Bar. Kudos to the Court for not rubber-stamping this deal.

Is snitching worth it?

Apparently in the case of William Hames, it wasn't.

He lost his pension. He lost his eye. And it appears that he even lost his will to live. Very sad...

Dan Christensen explores the issue here:

After retired police officer William Hames finally came clean about the gun-planting coverup that rocked Miami this decade -- and helped federal prosecutors convict seven fellow dirty officers -- he sought to pick up the pieces of his life.
Instead, they fell apart.
Two city pension funds voted to strip Hames of retirement benefits, citing his 2004 felony convictions in a case in which his cooperation spared him from prison. They demanded Hames, 60, repay the $548,000 he had received since leaving the force in 1998 after 25 years.
Hames, stocking shelves full-time at Publix to comply with the terms of his probation, hired an attorney and tried to fight back, but the law was against him.
On Feb. 21, two weeks before a Miami appeals court upheld a city forfeiture order, the Vietnam veteran and recovering alcoholic pointed a 9mm handgun toward his face and pulled the trigger in his Orlando-area home.
The blast blew out his left eye, but Hames lived.
''Hames advised when the gunshot did not kill him, he waited a few hours before finally driving himself to the hospital,'' says a Volusia County Sheriff's Office report.

The FPD/CJA conference

The Southern District federal courthouses were mostly quiet Thursday and Friday as the Federal Public Defenders and CJA lawyers had their annual conference, this time in Naples. (Were you there Rumpole?)

The U.S. Attorney's Office was still working though, indicting this high-profile case (via the AP):

A 22-year-old Miami Beach man whose company had a contract to supply the U.S. military with ammunition for forces in Afghanistan has been charged along with three others with providing prohibited Chinese-made ammunition and saying it came from Albania.
Efraim Diveroli and two others charged in the case made their first appearance Friday afternoon in federal court in Miami. A fourth man was being charged in Utah.
Diveroli's company, AEY Inc., was paid more than $10 million for 35 shipments of ammunition that prosecutors say was manufactured in China.
Prosecutors contend AEY Inc. removed markings from containers to hide the fact they were manufactured in China. In each instance, Diveroli certified that the ammunition was manufactured in Albania and submitted an invoice for it, they said.
Diveroli's company was given a $298 million contract by the U.S. Army in 2007 to provide several types of ammunition. It was not clear how much of that contract had been paid, but the first shipment of ammunition listed in court documents was from June 2007.

Here's Alex Acosta, who is getting pretty good at the soundbite:

At a news conference, U.S. Attorney R. Alexander Acosta said that quality control is one reason the government wants to know the manufacturer and origin of ammunition.
He said Diveroli's company "intentionally cut corners" and that it was "risking the lives of our troops and allies." He also said that the ammunition was "old" but did not say when it was manufactured. He said the defendants could face more than ten years in prison if convicted.

Defense lawyer Howard Srebnick (he is co-counsel with Hy Shapiro) responds:

Diveroli's attorney, Howard Srebnick, said in an e-mail that the government has "misconstrued" the law his client is accused of breaking. He said the government knew Diveroli bought the ammunition from the Albanian government and that it was made in China before a munitions embargo.

If you are looking for some time to kill on Monday morning, check out EW's top 100 movies, TV shows, books, videogames, tech, (and others) of the past 25 years here. Pulp Fiction is a fair choice for #1, but my top TV show is Seinfeld. As for video games, I agree with Tetris, but you gotta move Tecmo Bowl way up...

The Onion covers Kozinski

Here.

I haven't covered all the latest twists and turns in the Kozinski case (if you want all of that, see AboveTheLaw).

From the Onion:

"That's nothing. Have you ever seen the stuff on Justice Scalia's website?"

And here's The Daily Pulp's coverage of the Carlos Miller trial.

Blogging about your own criminal trial...

... as a defendant.
UPDATED BELOW

Yup, you can read about photographer Carlos Miller's trial in state court from Miller's perspective.

I find it fascinating. Apparently, the prosecutor asked Judge Joe Fernandez (in state county court) to prohibit Miller from blogging about the trial. Fernandez denied that request.

Interesting that in a trial about First Amendment rights that the prosecutor would ask for the defendant not to be able to blog about the case....

Good for Judge Fernandez.

Hat Tip Rumpole.

UPDATE -- Well, the trial is over. And blogger/defendant Carlos Miller is not happy with the result. And apparently, Judge Fernandez is not happy with Mr. Miller, sentencing him to more probation than requested by the prosecutor.

For real?

If this GamePolitics post is to be believed, the following occurred:

1. Jack Thompson hand-delivered a letter to Chief Judge Moreno.
2. That letter said in part: "We find yesterday that enemy combatants at Guantanamo are to get more due process from federal judges than what I am to have. I guess my "mistake" was not killing 3000 people to make my point... I demand a hearing."
3. After receiving the letter, Moreno sent U.S. Marshals to Thompson's house.
4. Thompson then wrote this letter to Moreno, which said in part:
I was visited today by two U.S. Marshals who were nice gentlemen, and very professional and courteous in their dealings with me. My complaint is not with them...

I have been asking the Justice Department simply to meet with me about [the video game industry's] criminal targeting of me for harm... Our US Attorney here has obstructed that effort... Instead of being afforded the Justice Department investigation to which I am entitled, I get today harassment from that same Justice Department...

When you and the Justice Department dispatch U.S. Marshals to my home because of a letter I wrote you last week complaining about misconduct by District Court Judges here in the Southern District, the purpose of that visit was to intimidate and harass me...

The notion that I pose some sort of physical threat to you or to the judiciary or to anyone else down here is a cruel joke. The two Marshals said, “If you had actually hand-delivered the letter to Judge Moreno, we would be concerned.” To that I said, “But I did. I did that last week because the gentlemen at the metal detectors would not deliver it, and THEY TOLD ME TO DELIVER IT TO YOU. I buzzed into your inner offices on the thirteenth floor, and I politely handed the letter to your clerk, who politely took it.

If I were a danger to anyone, that would have been the time for me to have proven it, right? In fact, I have never threatened anyone in my entire life, and you know that, and the Marshals said they knew that. They were apologetic about being dispatched to my home. This is outrageous, Judge. Simply outrageous.
5. Thompson then sent this letter to the House Judiciary Committee.

Is all this for real?

Thompson always manages to weave in to his letters and motions the current event of the day and then somehow make those events about him. He has material from the Supreme Court Guantanamo case, the Kozinski stuff, and other current events. Sorry for ruining the next half hour of your day as you go read this stuff. You won't be able to turn away....

New Courthouse

The DBR has some info on the new courthouse in today's paper. Here's the article.

Judge Martinez had this to say: "I was perfectly happy where I was. I don't like high-rise buildings. If it was up to me, it would have been an old-fashioned courthouse. But I'm not in charge of the world today."

If federal judges aren't in charge of the world, then who is in charge!?!

Happy Birthday Judge P

We celebrated Judge Peter Palermo's 90th birthday at the new federal courthouse today. Yes, that's 90 years old. Chief Judge Moreno spoke as did Chief Magistrate Judge Bandstra. Lots of federal judges and lawyers were there to smile with Judge P, the very first magistrate in the United States(!!). I really think Judge Palermo must have had a sip from the Fountain of Youth -- the guy gets around better and is sharper than most people 30 years his junior. Here are some pics I took from the party.

In Defense of Kozinski

Even though the LA Times broke the Alex Kozinski story, it now runs an op-ed defending him. I agree that he should respond by saying "So what." This has been way way way overblown. Here's the op-ed in its entirety:

Judge Alex Kozinski's statements about the stash of sexually explicit images he collected and that the public (until this week) could view on his website have been varied, although not necessarily inconsistent: He thought the site was for private storage and offered no public access (although he shared some of the material on the site with friends). People have been sending him this stuff for years (implying that it just accumulates, like junk mail). He might accidentally have uploaded the photos and videos when intending to upload something else. His son did it. There's a different statement we'd like to hear from him, and no, it's not an apology, an expression of regret or even an explanation. It's this: "So what?"Not everyone may like it, but pornography is freely available on the Internet, whether it be from a commercial site dedicated to adults-only material or from the personal site of the chief judge of the U.S. 9th Circuit Court of Appeals. Any adult has, and ought to have, the right to view those sites and to download those photos and videos -- subject, of course, to the strictures of copyright law. People who don't want to see such images can, and should, avoid them. Scolds who argue that judges should uphold a higher standard of decorumthan the common citizen and should somehow be prevented from engaging in such private activity as gathering subjectively amusing or even appalling smut should recall that the 1st Amendment is not limited to high-minded endeavors. The controversy about the site, to which Kozinski blocked public access after a story by Times reporter Scott Glover, would be less engrossing were the judge not so highhanded when holding forth on judicial propriety or taking apart a legal argument. The story might have a higher profile on TV and radio if he were a supposedly typical 9th Circuit liberal, rather than one of the nation's most brilliant conservative legal scholars. But it makes no difference whether the person with the porn site is left or right, smart or dull, a judge or anybody else. It is also true that judges are charged with administering justice and instilling public confidence in the law. Under the circumstances, it makes sense for Kozinski to recuse himself from the obscenity trial he was assigned to hear -- not because there is any readily apparent conflict but because the website controversy has become a distraction and will undermine public trust in the verdict.

Update on Kozinski

Above the Law has all the details here, including that Judge Alex Kozinski has suspended the trial for 48 hours to figure out what to do, and an email from Kozinski himself:

David [Lat]: I can't comment on the trial.
As for the other matter, the server was maintained by my son, Yale, for the entire family. Pictures, documents, music, audio and other items of personal and family interest are stored there so various family members can reach them from wherever they happen to be. Everyone in the family stores stuff there, and I had no idea what some of the stuff is or was -- I was surprised that it was there. I assumed I must have put it there by accident, but when the story broke, Yale called and said he's pretty sure he uploaded a bunch of it. I had no idea, but that sounds right, because I sure don't remember putting some of that stuff there.
I consider the server a private storage device, not meant for public access. I'd have been more careful about its contents if I had known that others could access it.

Here's the latest from the LA Times.

UPDATE -- There are a number of sites that have collected the images from Kozinski's website. See here, for example. Ann Althouse discusses those images and the controversy at this link.

Former Atlanta Mayor Bill Campbell

Fascinating article from the Atlanta Journal-Constitution about former Atlanta Mayor Bill Campbell who is serving a 30 month sentence for tax evasion.

Apparently the Mayor tried to get out of prison early by faking an alcohol problem. In federal prison, you can be released early if you have a drug or alcohol problem (and otherwise qualify)and participate in an intensive rehab program. Campbell participated and was released early, but when the Atlanta prosecutors found out, they flipped and informed BOP that Campbell was making it all up. BOP yanked him back into custody.

Campbell filed suit in front of Judge Ursula Ungaro, but he then withdrew the suit. He's now back in...

Should a federal judge....

...post porn pictures on his personal website (when he is about to start an obscenity trial)? That's the debate after Judge Alex Kozinski did so in United States v. Ira Isaacs, a trial starting this morning. According to the LA Times:

One of the highest-ranking federal judges in the United States, who is currently presiding over an obscenity trial in Los Angeles, has maintained a publicly accessible website featuring sexually explicit photos and videos.Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, acknowledged in an interview with The Times that he had posted the materials, which included a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal. Some of the material was inappropriate, he conceded, although he defended other sexually explicit content as "funny."

Other stuff found on the site:

The sexually explicit material on Kozinski's site earlier this week was extensive, including images of masturbation, public sex and contortionist sex. There was a slide show striptease featuring a transsexual, and a folder that contained a series of photos of women's crotches as seen through snug fitting clothing or underwear. There were also themes of defecation and urination, though they are not presented in a sexual context.

How did Kozinski end up doing a trial (he's the Chief Judge on the 9th Circuit):

The judge said it was strictly by chance that he wound up presiding over the Issacs trial in U.S. District Court in Los Angeles. Appeals court judges occasionally hear criminal cases when they have free time on their calendars and the Isaacs case was one of two he was given, the judge said.

The money quotes:

Kozinski said he didn't think any of the material he posted on his website would qualify as obscene."Is it prurient? I don't know what to tell you," he said. "I think it's odd and interesting. It's part of life."Before the site was taken down, visitors to http://alex.kozinski.com were greeted with the message: "Ain't nothin' here. Y'all best be movin' on, compadre."Only those who knew to type in the name of a subdirectory could see the content on the site, which also included some of Kozinski's essays and legal writings as well as music files and personal photos.The judge said he began saving the sexually explicit materials and other items of interest years ago."People send me stuff like this all the time," he said.He keeps the things he finds interesting or funny with the thought that he might later pass them on to friends, he said.

Correct result?

Sean Conway has agreed to settle his bar case for calling Judge Aleman on the Broward Blog an "evil, unfair witch" for a public reprimand, the Sun-Sentinel has reported here (hat tip Rumpole). When the case was first brought, Fred Haddad, Conway's lawyer, said "If the state court is not sensible enough to dismiss this piece of shit, it will end up in federal court."

And Fred is not happy that Conway settled: "Resolving the case was not my position, and it was not the position that I ever took," Haddad said Tuesday. "However, the lawyer does not make all the decisions." Haddad had said in December that Conway's blog posting was protected speech and that Bar rules restricting attorneys' criticism of judges was overly broad, vague and unconstitutional.

What say you dear readers? Is this the right result? A public reprimand for speaking your mind on a blog? I agree with Haddad on this issue, of course.

Also I reproduce here from the comments section of our last post:

Dear Former Students of Swan,

As a former student and long time friend of Alan Swan, I will be speaking at his memorial service on Saturday (Plymouth Congregational Church in the Grove, 11:30). If you have a good Professor Swan story, I would love to hear from you today or tomorrow. Please feel free to respond to mbarzee@jud11.flcourts.org.
Thank you.
Mary Barzee Flores

Plug

So, usually I don't blog about my cases, but I am making an exception here because the case is going to the Southern District of New York and because it got some press on the excellent White Collar Crime Blog here:

With unemployment high, with people desperate for jobs, we may be seeing more instances of alleged puffing or fraud in the job search process. But one doesn't expect the government to be spending its time prosecuting individuals based upon alleged fraud in the job search.
But Martha Graybow, Reuters, U.S. Businessman Accused of Fraud in Job Search reports otherwise. And to make matters even worse, the government wanted the job seeker detained. The magistrate judge in Miami responded with a $25,000 bond, which the government then sought to stay. And when that was denied, the government headed to New York to secure a stay. Again a denial for the government.

Devil's Advocate

One of my favorite tipster's pointed out this listing in the Florida Bar News Classified section on Friday:


DEVIL’S ADVOCATE - Every lawyer needs another lawyer to bounce ideas off of, and even to be a devil’s advocate, challenging your ideas even more thoroughly and incisively than your opposing lawyer would. If you welcome robust, well-grounded debate as the best way to make your arguments razor-sharp, then call me. George Zadorozny, Attorney-at-Law, Florida Bar ’82, Carlton Fields ’82-’86, J.D. Northwestern ’82, B.A. Yale ’78. $100 per hour. Legal research and writing (pleadings, motions, memoranda, appeals) also available. (727) 389-5973; gzesq@aya.yale.edu. AV rated. Office: New Port Richey, Florida.

I shot the Devil's Advocate an email with a couple of questions and got the following responses.

What gave you the idea for being a Devilʼs Advocate?
As to how I got the idea for my "Devil's Advocate" ad: It came to me a few months ago. For over 20 years now I've been doing contract work for lawyers, doing legal research and writing. Naturally we discuss these projects over the phone. Sometimes in these conversations the lawyer I'm working for advances an idea or an angle or a theory that strikes me as promising but vulnerable--and so I point that out, that is, I point out how the other side could attack us through what looks to me like a weak spot. We usually go on to debate the point vigorously until we're satisfied that we've cast out the vulnerabilities.

Because these debates are conducted in a spirit of mutual respect, with both of us aiming at the same goal--making the arguments for the client as strong and sharp and unbeatable as possible--we find them not draining at all, but invigorating and cheering.

I've been doing this for many, many years now, and I knew that I was playing devil's advocate, but it wasn't until a few months ago that I suddenly realized that it would be a good thing for me to tell prospective lawyers that that is something that I can offer them--much more than just legal research and writing per se. Of course I still do that too. It all depends on what the lawyer I'm working for wants. Unsurprisingly, lawyers who practice solo particularly value this opportunity for well-reasoned strengthening of their arguments through debate.

Has anyone hired you?
Yes, I've been hired by some lawyers in response to my "Devil's Advocate" ad.

Do you enjoy your work?
I enjoy my work very much--see the second paragraph of the above answer to your first question.

News and Notes

1. Ken Jenne's days in prison. (via Miami Herald and Sun-Sentinel). From Dan Christensen: Once Broward's most powerful politician, ex-Sheriff Ken Jenne now spends his days raising vegetables in the garden of a federal prison camp in rural Virginia.
Jenne, convicted of corruption last fall, talked briefly about his new duties in a three-hour deposition taken six weeks ago in a federal civil rights lawsuit in which he's a defendant.
...''I work in what is called the garden planting various vegetables,'' Jenne, 61, told Fort Lauderdale lawyer Barbara Heyer.

2. Prosecutors object to Joe Cool polygraph. (via Sun-Sentinel):

Federal prosecutors are fighting to make sure jurors never hear that one of the suspects in the murders of four people at sea passed two lie detector tests saying he did not take part in killing any of the crew members on the Joe Cool.Guillermo Zarabozo, 20, of Hialeah and Kirby Archer, 36, of Strawberry, Ark., who were passengers on the boat's ill-fated charter voyage in September, are charged with four counts of first degree murder and could face the death penalty. Their trial is expected to begin this fall.Zarabozo's lawyers say his favorable polygraph results should be allowed as evidence because they corroborate Zarabozo's version of events--that he was lured onto the boat under false pretenses by Archer and did not know anything illegal was going to happen until Archer fired the fatal shots.At a hearing in Miami federal court Wednesday, prosecutor Karen Gilbert said the polygraph evidence should not be allowed because it is not reliable and could have too much influence on jurors.
U.S. District Judge Paul Huck said he would rule after government officials conduct a separate polygraph exam of Zarabozo--a procedure defense lawyers said they welcomed.

Cuban Spy decision from 11th...

... is here.

Haven't had a chance to read it yet, but it's a 1-1-1 opinion. Pryor writes opinion affirming convictions and vacating sentences for 3 defendants. Birch concurs, but states that case should go to Supreme Court on venue issue and that murder issue is very close. Kravitch dissents on whether evidence was sufficient on the murder conviction.

I have a funny feeling this case isn't over...

Katherine Harris upset by Laura Dern's portrayal

After my post about the HBO movie Recount yesterday, I received an email from Suzanne Schmidt, Joe Klock's PR person, informing me that he and Katherine Harris would be on Hannity & Colmes to "discuss[] how Harris was unfairly portrayed in the film and how the film could be nothing further from the truth." Harris and Klock do a nice job on the show (see above for a short clip), but....

I'm still ready to give Laura Dern an Oscar...

More trouble for Kuehne prosecution and other lawyer news

In what already looks like a doomed prosecution against attorney Ben Kuehne, it just got tougher. Yesterday, the Supreme Court decided Cuellar v. United States, which holds (9-0 per Thomas) that the federal money-laundering statue did not require proof of “appearance of legitimate wealth” and the statute could not be satisfied solely by evidence that a defendant concealed funds during transportation. The Kuehne team will be pouring over every word of the opinion, I'm sure...

In other lawyer news, Goeffrey Fieger was acquitted yesteday. His lawyer, Gerry Spence, remains undefeated! Fieger had this to say (apropos of the above case): "I'm very pleased with the American system and the jury. I thank the jury for listening. I hope this puts an end to political prosecutions in the age of Mr. Bush."

And finally, attorney Mel Weiss was sentenced to 30 months (3 months below the advisory guideline range agreed on by the parties).

Recount

So I finally got around to the HBO movie Recount on my TiVo. I really enjoyed it. It threw me back to those days in 2000 when I was attached to the TV watching the twists and turns of the bitter election fight between Bush and Gore. I actually had dreams (nightmares) last night after watching the film...

There were lots of SDFLA references of course, since we were ground zero.

A guy named Phillip Nolen played Ben Kuehne, but he didn't wear the bowtie! Bruce Altman played Mitchell Berger. Laura Dern was an excellent Katherine Harris. The other main players were also very well cast. I may be mistaken but I thought I saw Kendall Coffee sitting as an extra in the Supreme Court scene at the end...
Anyway, if you want to relive some of those moments, it's well worth it.

Judge Highsmith to retire at the end of the year

So we were one year off in our prediction.

John Pacenti covers the latest news here. We will have more on Judge Highsmith soon.

We also send our condolences to friend of blog, Dore Louis, for the passing of his father Paul Louis. Like Dore, Paul was quite a character and quite a lawyer. Here is the beautiful article from the Miami Herald. The intro:

He was a dogged attorney, whose representation of a young black man convicted of murder by an all white jury led to a landmark 1984 ruling by the Florida Supreme Court.
He kept a cane in his downtown Miami office, not because he needed it to walk. He swung it in the air or banged it on the table to make his point.
Even when his clients couldn't pay their legal bill, Paul A. Louis stuck by them.
''He wouldn't give up when he got into a case,'' said Miami-Dade Circuit Judge Paul Siegel, who worked with him in private practice for more than 25 years. ``The law firm might not get paid, but he kept on it.''
Louis, whose legal career spanned nearly six decades, died Saturday at age 85.
Only a battle with throat and liver cancer could sideline Louis. Even as his health deteriorated, he checked in on cases.
''Literally after his voice was gone he was mouthing the names of clients that the firm still had and asking about the status of the cases wanting to be kept up-to-date to offer yes or no opinions on how to proceed,'' said his son, Marshall Dore Louis. ``His loyalty was just tremendous.''

I'm back!

I admit it -- I was on vacation and just got back late last night... That's the reason for the slow blogging. I'm catching up on mail, DBRs, email, and so on. Ahhh, the joy of returning to work. Just a quick skim of the inbox shows that there are some really interesting things going on -- John Pacenti had a great article in yesterday's DBR about attorney's fees in criminal cases, and in today's DBR, Billy Shields discusses how the Justice Building Blog broke a fascinating story about the removal of a state prosecutor from a homicide investigation. Will have more soon.... In the meantime, send me an email if you know of something interesting happening in the new federal courthouse!

NYT: should we elect or appoint our judges?

The New York Times had an interesting piece this weekend concerning an issue we've discussed on this Blog before -- whether judges should be elected or appointed.

Adam Liptak's article contains pretty good arguments as to why judges should be appointed, which is our position as well.

Check it out here: http://mobile.nytimes.com/article?a=168619&f=21&single=1

And let us know your thoughts.

News & Notes

1. "Sport fishing 'shtick' nets probation term for charter boat operator" via Vanessa Blum. If you can't get enough Tom Watts-Fitzgerald, check out this article:

Rejecting a call for harsher punishment, a federal judge on Thursday ordered the owner of a South Florida charter fishing business to serve five years' probation for not reporting sailfish reeled in by customers and killing undersized fish.Stanley Saffan, 58, of Miami Beach, who pleaded guilty to those charges in February, must also pay $210,000 in financial penalties, forfeit one of his Therapy IV boats to the federal government and perform 500 hours of community service work.A crowd of relatives and supporters who turned out for Saffan's two-day hearing showed relief at the sentence, which was well below the 18 to 24 months' prison term sought by federal prosecutors.U.S. District Judge William Zloch barred Saffan, who runs sport fishing charters out of Baker's Haulover Inlet in North Miami Beach, from serving as captain of a vessel during his probation

2. "Gun box allowed as evidence in ghost ship case" via Jay Weaver. Judge Huck rejected the defense's motion to suppress:

An empty gun lockbox -- considered vital evidence in the case of four Miami Beach charter boat members slain at sea -- will be allowed at the trial of two men charged with their murders, a federal judge ruled Wednesday.
U.S. District Judge Paul Huck rejected an attempt by attorneys for defendant Guillermo Zarabozo to suppress evidence gathered by FBI agents at his mother's home -- including the lockbox that may have contained the suspected 9mm handgun used in last fall's killings.
''The point here is not that they found a firearm in a lockbox,'' Huck said. ``It's that they found no firearm in the lockbox.''

DNC lawsuit

From the Miami Herald:

Florida's history of discrimination against African Americans should force the national Democratic Party to count all of the state's delegates at its national convention, a federal lawsuit filed Thursday claims.

The suit, filed by state Senate Democratic Leader Steve Geller and two other Democrats, claims that the federal Voting Rights Act prohibits the national party from stripping the state of its convention delegates as punishment for violating party rules by holding its primary too early.

The civil-rights-era law requires the U.S. Justice Department to approve any significant voting change in Florida to make sure it doesn't disenfranchise minority voters. Geller argues that includes the Democratic National Committee's demand that Florida switch ''from a state-run primary to party-run caucus system'' to avoid losing its delegates.

''This is not about the Hillary Clinton campaign; this is not about the Barack Obama campaign. This is not even about the Florida Democratic Party. This is about democracy and how we value our votes,'' said Barbara Effman, president of the West Broward Democratic Club and a Clinton delegate. Effman joined Geller, an uncommitted superdelegate, and Percy Johnson, an Obama delegate, in the lawsuit.

Here's the lawsuit, filed by Ben Kuehne and Richard Epstein, which was assigned to Judge Marra.

Liberty City 6 on the web

Just got an email about MobLogic.Tv which has this video about the Liberty City 6 and this post titled, "Thought Police":

News & Notes

1. "Former Miami-Dade teacher gets 7 years for enslaving Haitian girl" via the Sun-Sentinel. From the intro of Vanessa Blum's article:
A federal judge on Tuesday sentenced a South Florida woman to seven years and three months in prison for keeping a teenage girl from Haiti in servitude for six years.Maude Paulin, 52, a former Miami-Dade County middle school teacher, was convicted in March along with her mother, Evelyn Theodore, of conspiring to enslave the girl, forcing her to work and harboring an illegal immigrant.Before being sentenced, Paulin apologized to U.S. District Judge Jose Gonzalez Jr., saying she had good intentions when she arranged to bring Simone Celestin from Haiti to live with her family."I love Simone with all my heart," Paulin said. "Unfortunately, I can't change what is already done."

2. "26 charged in migrant smuggling crackdown" via the Miami Herald. Jay Weaver reports:
Federal prosecutors on Tuesday charged 26 South Florida suspects with conspiring to smuggle Cuban migrants in yet another major crackdown on illegal crossings of the Florida Straits.
In the latest 12 indictments, the defendants are accused of trying to bring 225 migrants to South Florida.
Prosecutors also charged two other suspects, Yamil Gonzalez-Rodriguez, 34, and Roberto Boffil-Rivera, 35, with alien smuggling, unlawful possession of a firearm and lying to a federal agent.
After the five Cuban migrants reached U.S. shores on April 21, Rodriguez demanded $25,000 payment, prosecutors said.
Immigration and Customs Enforcement agents and Miami-Dade police detectives recorded two meetings between one migrant and Rodriguez, investigators said. On May 1, he paid Rodriguez $2,000. Six days later, he paid him an additional $3,000.
But Rodriguez was unsatisfied and threatened to shoot the migrant, police said. Rodriguez and Rivera were later arrested. Investigators found a loaded KAHR PM-40 firearm in one of the suspect's cars and pictures of Rivera holding the weapon.

3. Rumpole reports on trying to navigate state court:
We recently received an email from a prominent federal defense attorney who noted his/her travails on a recent Monday morning outing to our humble building. There was no place to park and after a half an hour of circling they parked in the median on a grass strip several blocks away.They got to the courtroom only to be told the prosecutor they had a meeting with had decided not to show up for work that day.A quick trip to the restroom (a clear rookie mistake) produced a few untimely steps in human liquid waste that was on the floor.And finally, beaten down by the heat, the lines, the smelly and dirty bathrooms not to mention the ridiculous belief that the prosecutor who agreed to meet them in court had any intention of actually showing up, they trudged back to their car, tie askew, bathed in sweat, actually longing for Judge Dimeitrouleas’s rocket docket, or for a quick arraignment and trial before Judge Huck, or a nice friendly sentencing before Judge Zlock.

4. "South Florida law firms hit by real estate slump, shed workers" via National Law Journal." Julie Kay explains:
In another sign of the hard times facing the legal industry, particularly in real-estate heavy South Florida, two local law firms — Holland & Knight and Shutts & Bowen — have laid off non-lawyer staffers. On a day that could be dubbed Black Friday in South Florida legal circles, Tampa-based Holland & Knight, one of Florida's largest and most venerable firms with 1,150 lawyers, laid off 70 staffers Friday, including legal secretaries, IT and accounting staff. No lawyers were laid off. The layoffs of about four employees in each of Holland's 17 offices represented 5% of Holland's non-lawyer workforce. Shutts & Bowen, a 200-lawyer, Miami-based firm, Friday laid off nine people, all entry level file clerks or paralegal clerks. No lawyers or legal secretaries were affected. The news comes on the heels of a decision announced internally Friday by Fort Lauderdale-based Becker & Poliakoff to temporarily and immediately chop all lawyer salaries by 12%. The firm, which is heavy in condo and real estate representation, said it was forced to take the action since clients are delaying payment in this lean economic environment.

Supreme Court decides US v. Williams

You all remember this case -- the child pornography case that our own Rick Diaz and Lou Guerra argued before the High Court.

The Court ruled 7-2 against Diaz's client.

Here's a summary from SCOTUSBlog:

In a second major ruling, the Court — after years of repeatedly nullifying Congress’ efforts to stamp out child pornography on the Internet — finally upheld such a law, a 2003 statute that Congress shaped in a way that it hopes would spare it from the same fate as earlier attempts. In an opinion by Justice Antonin Scalia, the Court found that the 2003 law did not reach too far and that it was not vague in its scope. The decision came on a 7-2 vote in United States v. Williams (06-694).

Here is Justice Scalia's opinion.

Ben Kuehne receives award

The Florida Association of Criminal Defense Lawyers-Miami Chapter had its annual banquet Saturday night. Of note for this blog, Ben Kuehne received the lifetime achievement award (which the group decided to give him after he was charged, not before as was reported in the NLJ and WSJ blog -- I know this because I was at the meeting where we unanimously agreed on the award). Ben spoke eloquently after he was introduced by Hank Coxe, former president of the Florida Bar.

The Jose Padilla defense team was also given awards. They were introduced by Kathy Williams, who gave a wonderful and fiery talk. Michael Caruso's speech was well done; he spoke about how important it was to have an independent judiciary and he applauded Judge Cooke for upholding her role in this respect.

On the state side, Steve Leifman received the judicial distinction award. He does such good and important work for the mentally ill. His award was well-deserving.

In addition to the awards, it's always fun to people watch at these things.... All in all, a fun night.

UPDATE -- apparently the WSJ blogger was there.

Is 23 years an appropriate sentence for a business opporunity fraud case?

That's the question posed by Vanessa Blum in this Sun-Sentinel article:

"A once in a lifetime opportunity." "A part time business that earns a full time income." "Call now!" "Don't miss out!"The late night television ads for the Box Office Express DVD rental machine peddled a dream. But it didn't take long for customers of the Hollywood firm to realize they'd been sold an empty promise.In some cases the machines never came. Sometimes they arrived but didn't work properly. Those that functioned would never yield impressive profits.Today federal prosecutors are asking a Miami federal judge to sentence the founder of American Entertainment Distributors Inc. to 23 years in prison for conspiracy, fraud and violating a court order banning him from selling business opportunities. Russell MacArthur, 43, pleaded guilty to those charges in February.

Prosecutors contended the false statements and inflated profit forecasts MacArthur, used to sell the DVD vending machines at American Entertainment amounted to a massive fraud that cost 400 investors a total of nearly $20 million. His plan all along, according to prosecutors, was to make as much money as possible and then declare bankruptcy and fold.It's an area where federal authorities in South Florida have been cracking down. A string of recent cases targeting so-called "business opportunity fraud" have involved the sale of debit card dispensers, Internet kiosks, payphones and anti-aging devices.So far, 14 individuals affiliated with American Entertainment have been convicted, not including MacArthur's partner, Anthony "Rocco" Andreoni, who died in March just hours before he was set to plead guilty.The defendants had worked for at least 16 other business ventures in which most customers lost almost all their investment, prosecutors alleged.In a recent court filing, MacArthur's attorney, Frank Rubino, asserted that prosecutors have exaggerated financial losses tied to American Entertainment. Most customers received the DVD rental machines they paid for, if not the profits they expected, Rubino said.But prosecutor Patrick Jasperse of the Justice Department's consumer fraud section responded that the machines, which sold for $28,000 to $40,000, had no value because American Entertainment failed to provide locations for them and other services that were promised.

This afternoon, Judge Martinez sentenced MacArthur to 23 and 1/2 years.

UPDATED -- Here's the story of the sentencing by Blum. A couple of reasons for the lengthy sentence:

[Judge] Martinez said MacArthur deserved extra punishment for violating a court order banning him from selling business opportunities and for fleeing to Costa Rica after his indictment in 2005. He pleaded guilty in February.The judge called the DVD rental machine, which sold for $28,000 to $40,000, "a worthless piece of junk."

The defense lawyer responds:
Defense attorney Frank Rubino called the 23-year prison term "excessive" and a sentence more suitable for a drug lord or a terrorist."I'm not making light of this crime, but my god, 10, 12, 13 years is a long time," Rubino said.

The prosecutor:
But prosecutor Patrick Jasperse asked for harsh punishment, saying MacArthur was responsible for stealing the life savings and college funds of retirees and hardworking individuals."Russell MacArthur is a danger to the public," Jasperse said.

Ben Kuehne to receive award from FACDL-Miami this weekend

Saturday night the Florida Association of Criminal Defense lawyer will be having its annual banquet. Ben Kuehne will be receiving the Daniel S. Pearson-Harry W. Prebish Founder's Award, FACDL's highest honor. The Jose Padilla defense team will be receiving the Rodney Thaxton "Against All Odds" award, and Judge Steve Leifman will receive the Gerald Kogan Judicial Distinction Award.

Julie Kay writes about it here.

"The beagle is basically a stomach on four feet."

Why does Tom Watts-Fitzgerald have to disrespect the beagle like that?

Okay, okay -- he was just explaining how the beagles find illegal cavier at the airport (via the Daily Business Review):

Watts-FitzGerald said in some ways the illegal caviar trade is just as dangerous as the illicit drug market. Since Russia began protecting sturgeon and limiting caviar exports, caviar fishermen from surrounding republics struck back. "They blew up the barracks of what was essentially the equivalent of the old KGB. They were trying to make a point," he said. "The M.O. is very similar [to the drug trade]. Illicit wildlife smuggling is an $8 (billion) to $10 billion business." Caviar smugglers use mules to hide shipments just like drug traffickers. In the 1990s, 500 grams of Beluga caviar was discovered at Miami International Airport in a carry-on bag by the Food and Drug Administration's version of drug-sniffing dogs: the beagle brigade. "The beagle is basically a stomach on four feet," Watts-FitzGerald said. "When he smelled the caviar, he just went crazy." Caviar smugglers sometimes simply re-use old paperwork from legitimate shipments to try to import illegal goods. But distributors have been charged millions of dollars in fines.

Here is what the case is about:

With a worldwide shortage of premium caviar due to a shrinking sturgeon population, some black market importers have turned to an American cousin: a prehistoric-looking river creature, the paddlefish.

Paddlefish roe has qualities similar to Russian caviar — arguably the finest in the world. But the fish also is protected in many U.S. states due to overfishing and habitat loss. Federal prosecutors charged a Plantation man and his company, Bemka House of Caviar, with flouting the strict permitting laws protecting the paddlefish by buying it illegally.

And the indictment (assigned to Chief Judge Moreno) is here.

You Tube dude sentenced to 6 1/2 years

You remember this crazy guy -- the one who taunted the cops on You Tube. "We's out here, we fighting a cold war," Rudy Villanueva said on the video. "Metro Dade Gang Unit, here I am baby." Judge Cooke sentenced him to 6 1/2 years over his objection that he was just messing around. Honestly, I just like posting the picture of the guy.

Judge Gold at the Fed Bar luncheon

Judge Gold spoke today at the Federal Bar Luncheon about ethics and used Mark Giminez's "The Color of Law" as the basis for the discussion. It was a very entertaining speech and it was well received. Judge Gold's premise: You can do good and do well as a lawyer. Those ideas are not mutually exclusive. Here are a couple of pictures from the event.

Should Judge Hoeveler recuse in the rock-mining case?

Judge Hoeveler says he doesn't "consider [himself] biased" in the rock-mining case in which he was just reversed. (Read the 2-1 opinion here). Although the 11th Circuit did not remove "the respected" Judge Hoeveler from the case, it did say that he had "predetermined" to ban the practice at issue. And as John Pacenti points out in his Daily Business Review article, the Judge has had his issues with environmental cases before.
So should he recuse? Or do we give him the benefit of the doubt? The appellate court did not take Judge Hoeveler off the case, so unless he thinks he should recuse, he will continue to be the judge.

The Herald had on op-ed yesterday saying that Judge Hoeveler has the opportunity to strengthen his opinion:

In lifting an injunction banning three rock mining permits in Northwest Miami-Dade County and remanding the case back to U.S. District Judge William Hoeveler for reconsideration, an appellate panel left the door open for the judge to review and strengthen his decision. A three-judge panel of the U.S. 11th Circuit Court of Appeals found that Judge Hoeveler didn't show proper deference to the U.S. Army Corps of Engineers' decisions to issue more rock-mining permits in a case pitting rock miners against environmental groups.


Here's the rest of the op-ed, which gets a couple facts wrong (including that it was a 3-2 decision instead of a 2-1 decision) but it provides an interesting argument nonetheless:

In July, Judge Hoeveler issued an injunction against permits requested by three of nine mining companies. The Corps hadn't given enough consideration to the proximity of mining activities to Miami-Dade's drinking-water wellfield, the judge said. He wanted a new environmental study, which the Corps agreed to conduct. But the miners appealed, and in doing so launched personal attacks against the judge, perhaps hoping that he would be removed from the case.
The 11th Circuit panel wisely kept Judge Hoeveler on the case. After reading the ruling, our advice to both sides: Don't pop the Champagne corks just yet. The 3-2 appellate-court majority said Judge Hoeveler appeared to have made up his mind, regardless of the evidence, in finding that rock mining in Miami-Dade's Lake Belt ''is a bad thing.'' The judges also said that he misread the scope of the National Environmental Policy Act and how the Corps interpreted it in permitting more mining in the Lake Belt. NEPA, said the panel, allows the Corps to determine that, even though an activity like mining may damage or even destroy an environment, economic value can outweigh environmental concerns.
That said, the appellate judges took pains to make it clear that Judge Hoeveler had not erred in his ruling. In fact, the panel's third judge, Phyllis Kravitch, dissented, writing that Judge Hoeveler's ban on mining in the Lake Belt to protect the water supply was justified under the Clean Water Act.
Which will it be, NEPA or the Clean Water Act? In addition to its concerns for wellfield protection, the U.S. Fish and Wildlife Service had questions regarding the endangered wood stork during the permitting process. There were other issues about wetlands destruction, too. Ultimately, the Corps shortened the lifetime of the permits and required mitigation via wetlands acquisition by the miners.
Judge Hoeveler nevertheless found reason to want more information on what threat mining could pose for wellfield contamination. We don't find that unreasonable, nor for that matter, did the appellate panel. The appellate court said that Judge Hoeveler would have to find firmer ground upon which to uphold a ban on the three permits. That's fair to both sides.

Here's the original Herald article explaining the 11th Circuit's opinion in more detail.

New Building

STOP THE PRESSES! There have been court proceedings in the new building. Some of the judges have moved in, others are moving this week, and the most junior judges.... well.... it's still going to be a while. But progress is progress. Here's a picture of the inside.

So, who's going to have the first trial?

And a reminder: Judge Gold will be speaking this Wednesday at the Federal Bar Association luncheon at the Banker's Club at noon. RSVP to Lourdes_Fernandez@flsd.uscourts.gov

Uma

I'm always fascinated by reports on deliberations. In the recent high-profile trial of the Uma Thurman stalker, a Wall Street Journal reporter was on the jury. Here is her description of the trial and deliberations.

In local news, Jose Padilla co-defendant isn't happy with the jail he's been assigned to. From Curt Anderson's article:

A man convicted along with one-time "dirty bomb" suspect Jose Padilla of supporting al-Qaida wants a federal judge to block the government from sending him to a prison unit where his telephone calls, mail and visitors would be closely monitored.
A lawyer for Kifah Wael Jayyousi, 46, claims that the Communications Management Unit at the federal prison in Terre Haute, Indiana, amounts to "cruel and unusual punishment" and that his inclusion in that unit is discriminatory because it is based partly on his Muslim faith and Arab ethnicity.
Jayyousi is "due to be transferred at any time to this unlawful place of confinement, where he will suffer irreparable harm," attorney William Swor said in court documents filed this week.
Bureau of Prisons spokeswoman Traci Billingsley said Thursday that Jayyousi's religion or ethnicity have nothing to do with the designation at the unit that currently houses 46 inmates. Having all the inmates in one unit ensures that no communication is slipped out by a prisoner not subject to the restrictions.
"They are placed in the unit because their communications need to be closely monitored," Billingsley said.

U.S. District Judge Marcia Cooke, who presided over the trial last year of Padilla, Jayyousi and Adham Amin Hassoun, issued an order Tuesday temporarily preventing the U.S. Bureau of Prisons from transferring Jayyousi from Miami. Cooke scheduled a hearing May 22 on the matter.

"If there is a verdict for her and she is ordered to be released, how can the verdict be changed so suddenly!!!!!!!!!"

That was the defendant's mom after Judge Cohn sentenced Shahrazad Mir Gholikhan to 29 months a week after sentencing her to credit time served. I've tried not to blog about the case because I was involved for a brief time early on in the litigation. Here is the intro from Vanessa Blum's article:

Shahrazad Mir Gholikhan, an Iranian woman accused of trying to export night vision goggles, thought her guilty plea last month would be her ticket back to her family.The federal prosecutor had recommended a term of time served for the 30-year-old mother's role in the illegal plot to trade with Iran, a U.S.-designated terrorist nation. U.S. District Judge James Cohn imposed the sentence at an April 25 hearing in Fort Lauderdale federal court.But on Tuesday that smooth resolution unraveled. Determining the sentence had been a mistake, Cohn extended Gholikhan's prison term from time served to two years and five months.Under the law, federal judges can amend sentences within seven business days that result from "arithmetic, technical, or other clear error."


Gholikhan's lawyer Bill Barzee had this to say:

William Barzee, Gholikhan's attorney, called the resentencing unfair and un-American, saying after the hearing that his client feels like she's back in Iran."I don't think it's fair to [agree on a sentence] and have someone plead guilty and then come back and ask the court for a do-over," Barzee said in court Tuesday.

And a sentencing professor commented:

Jonathan Rosenthal, a Fort Lauderdale defense lawyer who teaches sentencing at Nova Southeastern University, said he found a description of Gholikhan's resentencing "troubling" because the guidelines are only one factor judges should consider."I don't understand how on Monday a sentence of four-and-a-half months is reasonable, but on Tuesday, all of a sudden, that sentence is no longer reasonable," Rosenthal said. "Judges are not supposed to give guidelines any undue weight."

It's a valid point. If a sentence of credit time served is reasonable, how can a sentence of 29 months be reasonable the next day -- especially when the prosecutor had agreed to credit time served. If the situation was reversed -- and the defendant didn't like her sentence -- would a judge allow her to come back to court?