Exhaustion

Trial the last two days from 8:30 am to 6:30pm. I'm tired...

Updates you probably know already:

Openings in the Liberty City 6 today.

Closings in the Joe Cool case and the jury is out.

Good news -- South Florida Lawyer has agreed to guest blog. THANK YOU!

Looking for part-time blogger!

I am trial, probably for the next 4-5 weeks. (Details here). Anyone interesting in helping out while I'm busy?

''He said if I blamed it on him, he was going to turn it around on me."

That was Guillermo Zarabozo, the Joe Cool defendant, testifying on Friday. Here's a snippet of the Herald article:

''I told them what he told me to say,'' Zarabozo testified at the murder retrial in federal court in Miami. ``It was the biggest mistake of my life. I lied. That's why I'm here.''
Zarabozo, testifying after the government rested its case, admitted that he and Archer lied that Cuban ''pirates'' had hijacked the boat on their chartered one-way trip to Bimini and then killed the crew. Zarabozo is charged with 16 counts of conspiracy, hijacking, kidnapping, murder, robbery and use of a firearm in commission of those crimes.
Archer, 36, pleaded guilty before the first federal trial in September and was sentenced to life in prison -- Zarabozo's fate if he is convicted of any of the offenses.
Prosecutors will return on Tuesday to cross examine Zarabozo. It is expected to be an intense confrontation. They have argued that Zarabozo has been lying about his role in the murders.
But rather than try to prove conclusively that Zarabozo fatally shot the crew, prosecutors have unveiled newly discovered evidence showing that he and Archer plotted for months to hijack the chartered vessel to Cuba. The evidence supports the conspiracy charge and refutes Zarabozo's claim that he thought the boat was a charter to Bimini.

Breaking -- Judge Cooke dismisses case against Ben Kuehne's co-defendant for Speedy Trial violation

In a 13-page Order, Judge Cooke has dismissed the case against Gloria Florez Velez, the lead defendant in the Ben Kuehne case for a violation of her speedy trial rights. Henry Bell represents Ms. Velez. More to follow...

To Tase or not to Tase

That's the video from Buckley v. Rackard, 292 Fed. Appx. 791 (11th Cir. Sept. 9, 2008). The ACLU is asking for the Supreme Court to take cert. Here is their press release.

Racial issues come up during jury selection in Liberty City trial

The defense is arguing that the prosecutors are striking all the African-American jurors. The prosecution is arguing that the defense is striking all the Hispanic males. Both sides are giving race-neutral reasons for their strikes. Judge Lenard has halted jury selection and has asked for briefs by Tuesday.

Written Testimony

For those that are interested, here is my written testimony to the Sentencing Commission.

Sentencing Commission testimony

I had the pleasure today to testify before the U.S. Sentencing Commission regarding the 25 year anniversary of the Sentencing Reform Act. Here's the agenda of speakers at the regional hearing, and here's an article from the local paper previewing the hearings.

It was pretty interesting. I provided both written testimony (which I will post when I'm back in Miami tonight) and oral testimony, after which I (and the other panelists) answered their questions.

I am in the Atlanta airport now trying to get home, but I will post more about the day later.

La Bamba and owner guilty

Here's the Herald article. Judge Lenard must be breathing a small sigh of relief that she at least got a verdict on the two lead defendants in the case. The jury was out over two weeks and she was in the middle of starting trial #3 in Liberty City 7. But there weren't verdicts across the board -- the jury hung on two of the defendants, after lengthy and heated deliberations. Apparently the jury foreman resigned as foreman during the deliberations... What's in the water in that jury room? Will the government retry the two hung defendants?

Miami Herald : South Florida prosecutor up for dean of FIU's law school

Dean Alex? Check out this link. Sorry for the sloppy post but I am sending this from my Blackberry as I am testifying today before the US Sentencing Commission. More on that later.

Joe Cool

Jury picked.

Opening statements starting up now.

The usual suspects

Jay Weaver has an article this morning about Alex Acosta being asked to stay until the Spring, and about his possible replacement. The usual suspects are listed: David Buckner, Curt Miner, Jackie Becerra, Mark Schnapp, Willie Ferrer, and Daryl Trawick.

11th Circuit approves book banning -- case not over yet

By Julie Kay

So the 11th Circuit Court of Appeals has ruled in the controversial, three-year-old case of book banning brought by the ACLU against the Miami-Dade School Board. The court, in a 2-1 opinion, reversed U.S. Circuit Court Judge Alan Gold and ruled that the School Board was within its rights to yank the childrens' book Vamos a Cuba due to "factual inaccuracies."
The School Board had argued that the book -- part of a 24-volume series on life in different countries -- portrayed life under dictator Fidel Castro as essentially overly positive. The ACLU brought the case on constitutional/book banning grounds, and the school district has spent a quarter-of-million dollars defending it.
While school board members applauded the ruling, the ACLU promised a certain appeal. Lawyers there are currently deciding whether to request an enbanc hearing before the 11th or go straight to the U.S. Supreme Court, according to ACLU spokesman Brendan Hensler.
"This is the first case where a book was banned for what it doesn't say," Hensler said. "People recognize that book banning is not the solution -- that we shouldn't take books away but add more."
The books, which were replaced on the shelves of school libraries after Gold's ruling, will stay on the shelves until the litigation plays out, he said.
Interesting fact: it's unclear if any of the controversial books are even on the shelves any more. Most were checked out or stolen by souvenir collectors or angry residents.

Are you surprised by the 11th Circuit's ruling authored by Judge Ed Carnes? Will the U.S. Supreme Court take a book banning case?

Federal Bar reception

Over 500 lawyers and judges filled the downtown Hyatt tonight for the annual South Florida Federal Bar Association Reception. I forgot to snap pictures... Sorry.

Random thoughts:

I wonder if the judges dread it or whether they enjoy it.

It's also interesting to watch people work the room.

Lots of DBR reporters mingling...

More younger lawyers seem to be coming out. Many of the old guard weren't there.

Very few prosecutors showed up.

A sprinkling of state judges made an appearance.

South Florida Lawyer was there. Rumpole was not.

Breaking: Supreme Court Justice Ginsburg Undergoes Cancer Surgery

From NPR:

Supreme Court Justice Ginsburg Undergoes Cancer Surgery

Supreme Court Justice Ruth Bader Ginsburg has undergone surgery for pancreatic cancer, apparently at an early stage. The court said the 75-year-old Ginsburg had the surgery Thursday at the Memorial Sloan-Kettering Cancer Center in New York. She will remain in the hospital for seven to 10 days, said her surgeon. Dr. Murray Brennan. This was according to a release issued by the court.

"That's a nasty, impolite question."

That was Justice Scalia yesterday speaking to the Palm Beach Bar Association. From the Sun-Sentinel article:

In a room filled with some of Palm Beach County's most powerful people, it took a 20-year-old political science student to throw off U.S. Supreme Court Justice Antonin Scalia on Tuesday afternoon.Student Sarah Jeck stood in front of 750 people and asked Scalia why cameras are not allowed in the U.S. Supreme Court even though the court hearings are open, transcripts are available and the court's justices are open enough to go "out on book tours." Scalia was at the Kravis Center for the Performing Arts in part to do a book signing and wasn't happy at the question."Read the next question," Scalia replied. "That's a nasty, impolite question."Scalia's trademark mixture of humor, confidence and combativeness was on full display Tuesday at a luncheon put on by the Palm Beach County Forum Club and Bar Association.

***

After the luncheon, Jeck said she wasn't offended by Scalia's chilly response and was excited to see him speak. But that doesn't mean she agreed with him."I don't think that it should be up to him what parts the American people can and can't see of the judicial process," she said.

The DBR has more here. And Palm Beach blogger Grey Tesh has this:

Scalia on why there should be no cameras in the courtrooms, particularly in the trial (district) courts:"There's something sick about making entertainment out of people's problems."Maybe. but what about the public learning about minimum mandatory sentences for non-violent drug offenders? About the government not turning over crucial documents until the witness has testified? About how the agent gets to sit in and listen to everybody's testimony before he testifies? About how the snitch (the most culpable defendant) got 3 years for his "cooperation" testimony while his co-defendants are facing life for their minor roles?It's not just entertainment, it can be an education. That's what the American public will get if cameras were in the federal trial courts.Scalia also said "I should be the pinup boy for the criminal defense lawyers."

In the comments, there are calls for the follow up to what I called the most boring post ever. Here is one of the comments:

How about something less prurient and more generally worth noting: the 11th Circuit in an en banc opinion overruled its prior decision in United States v. Brown, 79 F.3d 1550 (11th Cir. 1996), finding that the district court did not err in using the pattern jury instruction for mail fraud, that is, not limiting the mail fraud statute to schemes that would deceive only prudent persons. No matter what your particular persuasion -- prosecutor, defense lawyer, judge, or even criminal -- this is an important decision in white-collar cases. http://www.ca11.uscourts.gov/opinions/ops/200513809op2.pdf

Well, there you have it.

CocoDorm allowed

The Herald headline is: "Judge OK's gay porn filming in Miami."

Headlines don't get much better than that, do they?

The Judge is Judge Cooke.

Here is some of the article:

The boys of Cocodorm -- Snow Bunni, J Fizzo, et al -- are staying put, after a federal judge ruled that the gay porn website has a right to film out of its Edgewater home.
Cocodorm.com features black and Hispanic men, known as ''dorm dudes,'' who share a webcam-filled house together.
Miami has tried to shut the house down, arguing it constitutes an adult business illegally operating in a residential area. The city's Code Enforcement Board in 2007 agreed, but Cocodorm responded to the code enforcement proceedings by suing in federal court.
From the outside, the Cocodorm house looks like any other residence. Those who want to see Cocodorm do so via the Internet, with a credit card. Last week, U.S. District Judge Marcia Cooke sided with Cocodorm, basing her ruling on a previous case involving the city of Tampa and another adult website, Voyeurdorm.com.
Like Miami, Tampa tried to use its adult-business zoning laws to close the ''dorm'' in question, in this case occupied by women.
But an appeals court, ruling in the website's favor, found that Voyeurdorm's customers weren't gathering at the Tampa home -- or anywhere else in Tampa. ''As a practical matter, zoning restrictions are indelibly anchored in particular geographic locations,'' the appeals court wrote. With Voyeurdorm, the court added, 'the public offering occurs over the Internet in `virtual space.' ''
Judge Cooke found that the same logic applied to Miami's Cocodorm. City legal staff tried to argue that wording differences between the Miami and Tampa ordinances meant the situations weren't identical, but Cooke disagreed.
''This argument must fail,'' Cooke, in her Jan. 27 ruling, wrote of the city's defense. While acknowledging Miami's ordinance did not contain the exact same language as Tampa's, Cooke wrote ``it is nonetheless its functional equivalent.''

Here's my question -- did Cooke's law clerks have to visit the site?

Cuban 5 cert petition

Read it here.

And here is the SCOTUS Blog post on the case.

Tom Goldstein who runs SCOTUS Blog is counsel of record in the Supreme Court for the five.

Stop the presses -- Snitch's misconduct not disclosed to defense

John Pacenti has the story here about the latest transgression -- this time in a health care fraud prosecution. Orlando do Campo and Joaquin Mendez have filed a lengthy motion arguing their client deserves a new trial. Here's the intro from the DBR article:

In the Justice Department’s stout-hearted fight against health care fraud in the heart of Hialeah, Orlando Pascual Jr. was the perfect snitch.
He was an insider who ran a durable medical goods scam called Med-Source Medical Equipment, and Washington prosecutors used him in at least three trials, court documents show.
Among the five known defendants Pascual helped put behind bars was Dr. Ana Caos, a general practitioner for nearly two decades who was accused of writing fake aerosol prescriptions for the treatment of chronic obstructive pulmonary disease. The 62-year-old is serving five years in the Coleman Federal Correctional Complex near Orlando.
But Caos’ Miami attorneys are trying to overturn her April conviction, saying in court documents that Pascual neglected to mention he ran yet another Medicare fraud with his brother-in-law at an HIV-infusion clinic called Medcore Group, billing the government for $5.5 million in fraudulent services.
Miami criminal defense lawyers Orlando do Campo of do Campo & Thornton and Joaquin Mendez, a solo practitioner, are incredulous that prosecutors informed the defense about Pascual’s second fraud after Caos’ trial, which means the jury didn’t hear the full extent of the government witness’ criminal exploits.
The lawyers said in a Jan. 15 motion for new trial that there is substantial reason to believe from documents filed in the new case that government agents with the FBI and the Department of Health and Human Services’ Office of Inspector General knew about Medcore in 2006 — two years before Caos’ trial.
Caos’ attorneys were informed of the latest charges against Pascual in a June 25 letter, two months after their client’s conviction and a month before her sentencing. The letter said investigators didn’t link Pasqual to the HIV-infusion clinic because his last name was misspelled "Pasquale." (That's my favorite part)
"It is undisputed that Dr. Caos’ trial was severely tainted by Mr. Pascual’s perjury," Caos’ 26-page motion reads. "There is overwhelming evidence to suggest that the government knew or should have known that Mr. Pascual lied on the witness stand."

Back-to-back NGs in Altonaga

The FPD's office has started off the year H-O-T.

We reported earlier on the NG verdict in Judge Altonaga's courtroom this week. Today, AFPDs Helaine Batoff and Sabrina Puglisi get to start their weekend off with a bang -- not guilty on a Friday afternoon, again before Judge Altonaga.

Guest Blogger Extraordinaire

I am excited to announce that Julie Kay has agreed to guest-blog for a while here at the Southern District of Florida Blog. Please join me in welcoming Julie.

''If you shoot a child in Liberty City . . . you may have killed the next president of the United States.''

That was Al Sharpton today in Liberty City. The recap is here.

Anyone watching the new season of Lost? I'm digging it. Here's a recap of last night's episode in case you missed it.

South Florida Lawyer has a new look at the top of his blog... Rumpole has music playing in the background of his blog... I guess we need to step it up.....

Julie Kay on plea agreements going back online

Here.

"A mistrial was declared Monday when a home-invasion robbery suspect smeared human feces on his attorney's face then threw more at the jury."

No, that didn't happen in our courtrooms. It happened in San Diego. But it's hard not to post this story....

In Judge Altonaga's courtroom today, the jury acquitted Brian Stekloff's and Vince Farina's client. I trust that the defendant in that case didn't throw anything at the jury...

In other news, here is the the update on the Coleman prison riot. A snippet:

As for the latest violence, the seven inmates airlifted in separate helicopters to Orlando Regional Medical Center continued to receive treatment Monday under the eyes of armed correctional officers. An eighth with less-serious injuries was being treated at Leesburg Regional Medical Center. For security reasons, the prisoners were listed under fictitious names at the hospitals.The incident started about 2:20 p.m. Sunday, when several inmates began fighting in one of the prison yards for high-security inmates, according to the Bureau of Prisons.When the inmates ignored correctional officers' orders to stop, prison staffers fired several shots.By 3 p.m., emergency medical workers swarmed the facility with nine ambulances, including seven from Lake-Sumter Emergency Medical Services, and one each from Hernando and Marion counties.

Former SDFLA clerk goes to Supreme Court

Congrats to 30-year old Lindsay Harrison, a fifth year associate at Jenner & Block, for arguing before the Supreme Court last week -- her first appellate argument. A bunch of blogs have been covering the argument and Ms. Harrison, who clerked for Judge Gold and Judge Barkett. Here's a bit of an interview from AboveTheLaw:

ATL: First things first. What did you wear? There has been some controversy over how women oral advocates should dress when appearing before the Court.
LCH: I wore a black pantsuit. I was not about to wear a skirt, since they dispensed with that requirement and permitted women to wear pants a few years ago. If women don't take advantage of that opportunity, it sets a bad precedent. And I wore pearls -- my concession to formality.
ATL: You must be one of the youngest people ever to argue before the Court. Have you done any research to figure out where you fall?
LCH: I'm definitely not the youngest. The woman who argued Roe v. Wade, Sarah Weddington, was 26 at the time. Tom Goldstein was 29 when he argued his first case. I turned 30 on January 5.

The whole interview is a fun read.

UPDATE -- Ms. Harrison writes in:

There are actually a bunch of SDFL connections to the argument. An amicus brief was written by Adam Raviv (Marcus clerk) on behalf of FIAC, where my Barkett co-clerk Tania Galloni works. Cecily Baskir, another Barkett clerk, participated in one of my moots. And the argument was attended by both Adam Raviv and Deb Raviv, a King clerk from 03-04. All in all, a great showing for the SDFL.
I've also received a lot of really nice emails from folks in Miami, and it's been great to hear from the community, which I still feel very strongly a part of.

News and Notes

1. Liberty City 6, part 3, starts today. (via Herald)

2. The Cuban Spies are petitioning for cert and have brought in super Supreme Court lawyer, Tom Goldstein (of ScotusBlog fame). They are also trying to work out a political resolution to the case. (via Herald)

3. John Pacenti at the DBR covers the Mutual Benefits lawyers who were indicted.

4. The Congressional delegation from South Florida is being sworn in at the new courthouse this morning. Here's a picture of Ileana Ros-Lehtinen from the proceedings.

Prison riot at Coleman High

Here's the article from CNN. Apparently, 8 inmates were injured, one by gunfire. More info as soon as it's available.

In other news, Vanessa Blum explains that the new U.S. Attorney will likely have different law enforcement priorities:

In the coming months, President Barack Obama will put his own stamp on crime-fighting efforts in South Florida by naming a new U.S. attorney to direct federal investigations and prosecutions.The new president's pick will head an elite office of lawyers and be responsible for translating the priorities of the Obama White House and the Department of Justice into local cases and convictions.The office, now supervised by Republican attorney Alex Acosta, operates largely out of public view, but wields great influence over law enforcement priorities and leads federal, state and local agencies in joint crime-fighting initiatives."A new U.S. attorney could set a different prosecutorial agenda," said attorney Justin Sayfie, who took part in recommending Acosta for the job. "It's an enormous, enormous power."

What do you think the feds should prioritize?

Plea agreements to be available again

We have discussed before (and criticized) the local rule taking plea agreements off-line and hiding them from the public. Here's what we said back then:

This is a silly policy, which is only in place in this District (as far as I know). Hopefully it will be changed soon (the local rules committee is studying it). If there are safety concerns for cooperating witnesses, then those concerns should be addressed in that particular case, but to have a blanket policy making it more difficult to get these documents.... Haven't we learned from the State scandal involving secret docs?

We also noted that Chief Judge Moreno was a judge who believed in courtrooms being open to the public and was generally against things being secret. He said back then in an interview with Julie Kay:

“I’m a very open person,” Moreno said. “My personal feeling is that if something is said in open court, it should be an open record.”

As for plea deals: "Moreno said the court will continue to study another issue that recently has generated controversy — whether plea agreements should be posted online."

Now that they have studied it, the en banc district court has issued administrative order 2009-2, rescinding the old rule making plea agreements secret and ordering:

that as of February 20, 2009, the Southern District of Florida's current policy of providing limited electronic access to plea agreements is rescinded. All plea agreements filed on or after February 20, 2009 will be public documents, with full remote access available to all members of the public and the bar, unless the Court has entered an Order in advance directing the sealing or otherwise restricting a plea agreement.

Well done Chief Judge Moreno and the rest of the court!

UPDATE -- Kathy Williams and AFPD Beatriz Bronis represented the defense on this issue. Congrats to them as well.

Obama stuff

Who was right on the oath flub? Most have sided with Obama, but here's Roberts' side of the story (via Althouse).

Is Obama keeping his Blackberry or some other device? (Hat tip: JK)

More of the same from Obama? Here's a funny Jon Stewart clip:

The Daily Show With Jon StewartM - Th 11p / 10c

Changefest '09 - Obama's Inaugural Speech

Barack Obama Interview
John McCain Interview

Sarah Palin Video
Funny Election Video

This and that

Whew -- thankfully, I was able to see the inauguration before my Broward hearing this afternoon. Unbelievable! Even the Broward judge and prosecutor seemed to be in good moods today.

In that vein, we will post the positive article about Alex Acosta, by Julie Kay, not the negative one being discussed by commenters and another blog.

Here's the intro:

When he was named U.S. attorney for the Southern District of Florida, one of the largest and busiest districts in the country with 284 assistant U.S. attorneys, in July 2005, the question on many local lawyers' minds was, "Who is Alex Acosta?"A former assistant attorney general in the Justice Department's civil rights division and staunch conservative who clerked for Justice Samuel A. Alito Jr. and served as president of the Federalist Society at Harvard Law School, Acosta, just 36, had little criminal trial experience and was unknown in Miami legal circles.But the Miami native has earned the respect of many in the South Florida legal community for his hard line on health care fraud, his prosecution of a whopping 13 public officials for corruption — including seven Palm Beach County commissioners and four Hollywood police officers — and his open-door policy with defense lawyers, agents, journalists and members of the community.As a Democratic administration prepares to take office — and he prepares his exit strategy — Acosta, now 40, talked to The National Law Journal about his accomplishments during the last 3 1/2 years, what he has learned on the job and what the future holds.

Some of the questions Julie Kay posed:

NLJ: You've been U.S. attorney of one of the largest, busiest and most prominent districts in the country since 2005. What have been your proudest accomplishments and biggest disappointments?

AA: The job of U.S. attorney is the best job that any attorney can have. The U.S. attorney has the ability to have a direct impact on his or her district. Some of the issues I've chosen to focus on are public corruption, healthcare fraud and more recently mortgage fraud. I believe I have left a lasting impact not only on South Florida but on the issues themselves.Public corruption is of the utmost importance. The fact that the largest law enforcement agency in the state has changed the way business has been done in the region is the most important legacy I'm leaving. Health care fraud is not something I fully understood and was disgusted by when I got here. We have now prosecuted $1.5 billion in health care fraud. This is not victimless crime. That is incredibly significant. To have that kind of impact is gratifying.As far as frustrations, public corruption cases are very important and I'm proud of the fact that we've done them right. In each of the cases, we've brought the charges with overwhelming evidence that resulted in guilty pleas of the officials. This is very important because when a public official gets up and says, "I did this, I broke the law," it sends a message, more than a long, protracted litigation. The flip side of this is [that] public corruption cases take time, and what is most frustrating is seeing and knowing the evidence we have but waiting until our cases are ready. Some people feel these cases are put together in weeks or months, and you can't do that, you have to be thorough. That is frustrating to the community — the fact that you want things to move quickly and they don't. I said in my press conference in Palm Beach, I wish I could say this is the final prosecution, but I fear it is not. There are matters that require additional work.

***

NLJ: Human rights groups like the Center for Justice and Accountability and Human Rights Watch have issued statements commending federal prosecutors for bringing the case. Have you gotten any other reaction and do you think this case will set a precedent?

AA: Human rights groups support it. We've also gotten reaction from victims in Liberia. They never thought that Chuckie Taylor Jr. could be brought to justice. They thought he was above reproach. They realize now that in fact these types of cases can be brought. I think it will set a precedent around the country and other cases will be brought.

NLJ: That was a successful case. A case that has not been as successful has the Liberty Seven/Liberty Six case. That case — in which seven Miami men were charged with scheming to blow up the Sears Tower in Chicago — has been criticized by the press and other groups as far-reaching: that these men were Al Queda wannabes and didn't have the ability to pull anything off. One man was dismissed at trial and the rest were subject to hung juries twice.You're retrying the case for the third time, starting this month. Why, and do you regret bringing this case?

AA: Every case we have brought has been based on the evidence, and as prosecutors we have to review the evidence and if we believe it's worth bringing, we do so. It's a pending trial so I can't comment. There have been matters that have hung twice and been retried in this office. It does happen. But as I've said before, this will be the third and final time.

Wow, no more retrials. Interesting. I think two mistrials are enough and the case shouldn't be tried a third time. But it is noteworthy that he is saying in advance that it won't be tried again. Jury selection starts this week.... Stay tuned.

A New Hope

I am so bummed... Instead of watching the inauguration tomorrow, I will be stuck in state court in Broward. I kid you not. Shouldn't courts be closed tomorrow? Thank goodness for TiVo.

A big shout out to all the FOB (friends of blog) who are in DC. Please send pics and we will post them.

It's a very exciting time, no matter what political party you belong to. Some interesting questions:

1. Who will President Obama appoint to be the next U.S. Attorney? When will that happen? Any chance that it is Alex Acosta?

2. Who will President Obama appoint to fill the first open Southern District judgeship?

3. Who will sit on the federal JNC to help in these selections?

And finally:

4. Will Rumpole reveal himself?

"My innocent client is being dragged along for the ride."

That's Joel Hirschhorn on the Mutual Benefits case after two judges have recused and the U.S. Attorney and his chief have recused from the case. What is going on?

Here's Vanessa Blum's article, which is extremely interesting. The case is now assigned to Judge Jordan and Eric Bustillo is the AUSA who signed off on the indictment. From the intro:

The biggest financial fraud case in Broward County history is proving too hot to handle for several senior federal law enforcement officials and judges, who have removed themselves from having anything to do with it.Federal prosecutors announced new charges this month in the long-running investigation of Mutual Benefits Corp.--a defunct Fort Lauderdale investment firm whose managers are accused of operating a $1-billion Ponzi scheme.This week, two federal judges assigned to hear the case stepped aside in quick succession with no explanation, according to public court records.The back-to-back judicial recusals, unparalleled in recent memory, followed an unusual decision by the two highest-ranking lawyers in the local U.S. Attorney's Office to have no further involvement in matters related to Mutual Benefits.
Judges and prosecutors generally recuse themselves when they have conflicts of interest, for instance a personal relationship with someone involved or a financial stake in the litigation.Because of secrecy surrounding the recusals, it is not clear whether the Justice Department officials and federal judges have the same conflict.

Quick question -- should judges and prosecutors have to disclose why they recuse from a case?

First federal not guilty of the year?

Bill Matthewman got one yesterday before Judge Marra in a felon in possession case. First not guilty of the year in the District?

UPDATED -- Nope, Matthewman doesn't get the honors. The first NG of the year goes to Tim Day from the Federal Defender's Office before Judge Cohn.

"Nice off the bench"

Brian Tannebaum has been doing a bunch of provocative blogging over at his site. I enjoyed reading this post about Judges being "nice off the bench." Here's a snippet:

A standard description of judges is that he or she is "nice off the bench."When you say a judge is "nice off the bench," it naturally means they are not nice on the bench.Anyone in trial practice has seen this in action. See judge on bench, see judge lambaste lawyer. See judge at social event, see judge as a happy friendly person.

C'est la vie

It doesn't look like it was a good day for Gen. Manuel Noriega.

Here's the AP Report:

A skeptical panel of federal appeals judges questioned Wednesday whether former Panamanian dictator Manuel Noriega has any legal right to challenge his proposed extradition to France to face money laundering charges.
The 11th U.S. Circuit Court of Appeals judges cast doubt at a hearing on claims by Noriega's lawyers that the Geneva Conventions treaties regarding prisoners of war require Noriega be returned to Panama because his sentence for drug racketeering ended in September 2007.
U.S. Circuit Judge Ed Carnes repeatedly asked Noriega attorney Jonathan May whether Congress eliminated the legal underpinnings of Noriega's argument when it passed the 2006 Military Commissions Act. The law created judicial procedures for enemy combatants held at Guantanamo Bay, Cuba, but also could be applied to POWs and anyone else, the judges said.
"Do you disagree with the plain meaning of that language, or what?" Carnes said. "You're using the Geneva Conventions as a source of your client's right ... (the law) says you can't."
May said that was an incorrect interpretation of what Congress sought to do. He insisted the law was meant to apply solely to court proceedings, not an executive branch matter such as extradition.

The Herald article is here.

11th Circuit to hear General Noriega's case

Curt Anderson has this interesting piece about the oral argument before the 11th Circuit regarding whether Gen. Manuel Noriega should be extradited to France or whether he goes back to Panama:

As the only prisoner of war held on U.S. soil, inmate No. 38699-079 gets annual visits from the Red Cross and can wear his military uniform and insignia when he goes to court.
Gen. Manuel Antonio Noriega frequently sees his wife and children, who make the trip to his private bungalow at a federal prison near Miami from their home in Panama. The one-time CIA operative is a dedicated news junkie, reads voraciously about history and politics and is working on a memoir.
Whether the vanquished dictator's story ends in prison or freedom, at home or abroad, depends on how courts in three countries on two continents decide to punish him for his drug-running past.
More than a year ago, Noriega completed his sentence for drug racketeering and money laundering and thought he was headed home. Instead, U.S. officials dropped a legal bomb: Noriega would be extradited to France to stand trial on more money laundering charges.
On Jan. 14, a federal appeals court will hear arguments on Noriega's claim that as a POW he should immediately be repatriated, 19 years after the U.S. invaded Panama to remove him from power.
"Gen. Noriega is not a complainer," said Frank Rubino, one of Noriega's attorneys. "As a soldier, he's been schooled in such a way that he was dealt this hand, and he will play this hand."

***

I've gotten a bunch of emails about the post below on Chris Hansen speaking at the federal bar luncheon. This one is my favorite:

The feds want to hear from an entrapment expert... Perhaps to pick up some tips? What's next -- William Shatner on trial advocacy? Jack Bauer on interrogation techniques? Judge Judy? Stay tuned...

Chris Hansen to speak at Federal Bar Luncheon

This month's guest speaker for the Federal Bar Association's luncheon series is Dateline NBC's Chris Hansen on January 21st at the Banker's Club. Mr. Hansen is a 7- time Emmy winner and renowned correspondent with Dateline NBC. He is perhaps best known for the "To Catch a Predator" series but his investigative reporting includes efforts to expose international identity thieves, child sex rings in Cambodia, counterfeit prescription operations out of China, and international child labor violations. He has also received numerous reporting awards for his coverage of the federal building bombing at Oklahoma City and the mass murders at Columbine, Colorado. Attendance is expected to be high so please RSVP to Celeste Higgins at (305) 530-7000, ext. 109.

"How a mother of two ended up in a plot to smuggle high-tech gear to the enemy."

The Miami New Times covers Shahrzad Mir Gholikhan here. You remember Ms. Gholikhan -- she's the woman who hung a jury before Judge Cohn and then represented herself at the second trial. The New Times has a cover story on her. It's a great read.

That's her in the picture above.

I'll never understand...

...why people don't move their stalled cars out of the center lane of rush hour traffic on US1. ARRRRRGHHHHHH!!!!!!$^!%$(&!%(!*&^%($

Anyway, some interesting stories this morning:

1. Jay Weaver covers the sentencing before Judge Lenard on the Frank Duran Venezuelan suitcase trial. Here's the intro:

A rich businessman convicted of working as an illegal Venezuelan agent in the United States says he should be sent to prison for no more than three years, asserting that the judge in the case said he and his co-defendants had done no harm to this country.
Franklin Duran, who will be sentenced Monday, was the only defendant among five Latin American men indicted in 2007 to fight charges at trial that they had come to South Florida to cover up a hemispheric political scandal.
The men were charged with working on behalf of Venezuela's spy agency to silence a colleague who had been caught with a suitcase stuffed with $800,000. Prosecutors say the money was a gift from Venezuelan President Hugo Chavéz to Argentina's new president.
In November, a federal jury found Duran, 41, guilty of conspiring and operating as an illegal foreign agent who failed to register with the U.S. government -- a pair of offenses that carry up to 15 years in prison.

2. Vanessa Blum discusses the "honest services" statute here in connection with the Palm Beach Commissioner Mary McCarty. Milton Hirsch has this funny quote:

But some defense lawyers complain the law is too vague and public officials have no warning what conduct might land them behind bars."When someone is accused of stealing a box of apples, we know what that is," said Milton Hirsch, a Miami defense attorney. "When someone is accused of stealing the public's right to honest services, what does that even mean?"

3. Speaking of Milton Hirsch, he is running for Circuit Court judge in state court. First fundraiser is February 3 at my office. Email me off-line if you are interested in helping Milt out.

4. And for our out-of-district news, check out this very disturbing NY Times article about a sheriff in Alabama who kept inmates in jail starving so he could make a few extra bucks. And the law may have allowed for it!! Here's the intro:

The prisoners in the Morgan County jail here were always hungry. The sheriff, meanwhile, was getting a little richer. Alabama law allowed it: the chief lawman could go light on prisoners’ meals and pocket the leftover change.
And that is just what the sheriff, Greg Bartlett, did, to the tune of $212,000 over the last three years, despite a state food allowance of only $1.75 per prisoner per day.
In the view of a federal judge, who heard testimony from the hungry inmates, the sheriff was in “blatant” violation of past agreements that his prisoners be properly cared for.
“There was undisputed evidence that most of the inmates had lost significant weight,” the judge, U. W. Clemon of Federal District Court in Birmingham, said Thursday in an interview. “I could not ignore them.”
So this week, Judge Clemon ordered Sheriff Bartlett himself jailed until he came up with a plan to adequately feed prisoners more, anyway, than a few spoonfuls of grits, part of an egg and a piece of toast at breakfast, and bits of undercooked, bloody chicken at supper.

You gotta read the whole article. Crazy.

Today I have a sense of déjà vu. I wish I could say this is the last corruption case, but I fear it is not."

That was Alex Acosta during his press conference re Palm Beach County Commissioner Mary McCarty and her husband, Kevin, accusing them of a "wide-ranging and long-running" conspiracy to enrich themselves through the misuse of her political position. Here is Vanessa Blum's article on the case:

Mary McCarty, 54, an influential Republican powerbroker and longtime commissioner, is charged with conspiring to deprive the citizens of Palm Beach County of their "intangible right to her honest services," federal prosecutors said. She faces up to five years in prison.Prosecutors charged Kevin McCarty, 59, with taking part in and failing to report his wife's crime. He faces a maximum penalty of three years in prison.The new details emerged one day after McCarty resigned and said she would plead guilty to honest services fraud, making her the third county commissioner in recent years to leave office under the cloud of federal corruption charges.

McCarty could plead guilty as soon as next week. She is being prosecuted under the same statute that landed former commissioners Tony Masilotti and Warren Newell five year prison terms.

Chuckie Taylor sentenced

The government was asking for 147 years. The over-under was 100 years. So if you took the under, call your bookie -- he was sentenced to 97 years.... With good time, that's about 82 years.

Here's Jay Weaver's coverage.

“I’m still clinging to my BlackBerry. They’re going to pry it out of my hands.”

No, that wasn't one of the recently sentenced white-collar defendants in our district. It was our President-Elect Obama. Gotta love the guy. Here's the ABA Journal article on the BlackBerry dispute.

Speaking of Obama, is it possible that he keeps Alex Acosta as U.S. Attorney? Read Julie Kay's article here.

News and Notes

1. Pharmed sentencing: 9 years, top of the guidelines. From the Herald article:

Saying she was concerned about maintaining community values, U.S. District Judge Patricia A. Seitz Wednesday sentenced Carlos and Jorge de Céspedes to nine years in prison.
Despite testimony that they had given millions to charity, the judge decided the brothers -- who built up and then destroyed the Pharmed medical supply company -- should be sentenced at the top of the recommended guidelines of seven to nine years.
She said the brothers had been ''two-faced for too long'' and noted that the fraud against Kendall Regional Medical Center had gone for 14 years. The brothers had also pleaded guilty to a count of tax evasion. They will serve the sentences concurrently.


2. Helio Castroneves: The already great legal team adds superstar Roy Black to represent Helio along with David Garvin. Roy's partner Howard Srebnick represents sister Kati, and Bob Bennett and Lily Ann Sanchez represent the third defendant, an attorney. AUSA Matt Axelrod represents the government.

Govt appeals order in Ben Kuehne case

Here's the text of the notice:

Notice is hereby given that the United States of America, plaintiff/appellant in the
above-captioned case, pursuant to 18 U.S.C. § 3731 and Fed. R. App. P. 4(b)(1)(B)(i), hereby
appeals to the United States Court of Appeals for the Eleventh Circuit from the Order Granting
Defendant's Motion to Dismiss Count One of the Third Superseding Indictment (Docket Entry
192) entered in the above entitled matter on December 22, 2008.
DATED this 7th day of January, 2009.
Respectfully submitted,
MATTHEW W. FRIEDRICH
ACTING ASSISTANT ATTORNEY GENERAL

PAUL O'BRIEN, CHIEF
Narcotic and Dangerous Drug Section
Robert Feitel
United States Department of Justice
Criminal Division Narcotic and Dangerous Drug Section

I wonder why this was filed so quickly, and why they didn't wait until after President-Elect Obama became President. The case likely will now be placed on hold for a while during the appeal.

Disturbing story from state court

There has been a bunch of news about this Order out of Broward state court, disqualifying the state attorney's office for listening in on attorney-client conversations in a first degree murder prosecution.

The State took a breath-taking position -- because the call originated from jail, the inmate waived the attorney-client privilege. The judge quickly dismissed this position. The defense argued that the case should be dismissed for the egregious violation. The judge didn't go that far, but did disqualify the entire prosecution office from the case.

Two questions for you. Does this happen over here? And if it did ever happen, what would the likely result be. I put two polls for you below:

How frequently do AUSAs listen in on attorney client phone calls from FDC?
	Never
	Rarely
	Often
pollcode.com free polls

If an AUSA did listen in on an attorney client conversation, the likely result in this District would be:
	Case dismissed
	Disqualification of the AUSA
	Disqualification of the entire USA office
	Evidence suppressed
	Nothing
pollcode.com free polls

Judge Cooke has all the fun...

She just got the huge Mutual Benefits indictment (a viatical fraud case alleging over $1 billion in fraud), which includes two local lawyers -- Michael McNerney and Anthony Livoti, Jr.

Here is the indictment.

The government is estimating a whopping 120 days for trial. In this economy, how is it going to be possible to seat a jury for such a case. Does a jury consisting of senior citizens and unemployed citizens help the defense or the prosecution?

Monday news and notes

Ahhhh, Monday morning after a holiday weekend. So much fun. Here's what's happening:

1. Pharmed sentencing today. (via Sun-Sentinel & Herald) Here are the letters in support of leniency, the government's sentencing memo, and the defense sentencing memo. Quick summary: government says the guidelines are appropriate; defense says they are too high.

2. The Chief Justice released his year end report. Quick summary: judges need more money.

3. More on Ben Kuehne. (via DBR). Quick summary: the case against him sucks.

4. Medicare fugitives. (via Herald). Quick summary: every now and then, people flee as they did in this case.

Dead Friday

Anyone working today?

Back to regular blogging on Monday.

2009 should be exciting -- trial #3 of Liberty City 7, trial #2 of Joe Cool, trial (or dismissal) of the Ben Kuehne case, Dolphin playoffs, and possibly 2 new district judges in the SDFLA because of judges taking senior status. What else?

Have a nice long weekend.

Happy New Year!