Judge Garber Nixes Ochoa Bid for Retrial

SFL here.

Magistrate Judge Garber denies Ochoa motion:

U.S. Magistrate Judge Barry Garber denied the request by Medellín cartel leader Fabio Ochoa, whose lawyer argued that convicted codefendant Alejandro Bernal was not a truthful witness in the 2003 trial.

Attorney Paul Petruzzi cited previously undisclosed evidence showing Bernal had informed federal agents before trial that Ochoa gave $2 million to al Qaeda to help finance the Sept. 11 terrorist attacks. Petruzzi said the prosecution should have turned that evidence over to the defense so it could have challenged Bernal's truthfulness on the witness stand.

But the magistrate judge disagreed.

''Bernal's letter of August 2002 merely sets forth a rumor that Ochoa was involved in assisting in the planning of the Sept. 11 attacks,'' Garber wrote in a four-page order filed this week. ``Such belief was not based on any personal knowledge held by Bernal and is merely speculative without any factual basis.

''As a matter of fact, any reference to terrorist attacks was regarding speculative attacks to take place in Colombia to prevent the extradition of Ochoa to the United States,'' he wrote.

Well, which was it -- financing to conduct the 9/11 attacks, or attacks within Columbia to prevent Ochoa's extradition?

"Well Known" Motorcycle Mechanic Sentenced Before Judge Altonaga

Hi folks!

SFL here, still doin' time at David's fine place while the big man goes to court and cross-examines witnesses -- you know, the stuff we all wish we were doing right now....

Here's what's happening in Judge Altonaga's courtroom:

R. Alexander Acosta, United States Attorney for the Southern District of Florida, and Jonathan I. Solomon, Special Agent in Charge, Federal Bureau of Investigation, announced that defendant Jimmy A. Soto, of Miami Lakes, was sentenced on February 24, 2009, for his participation in a $5.4 million health care fraud and money laundering scheme. U.S. District Judge Cecilia Altonaga sentenced Soto to 140 months' imprisonment.

In December 2008, after a week long trial, a Miami jury convicted Soto of a series of related health care fraud and money laundering charges. The evidence at trial established that Soto conspired with Leonardo Lozada, Eliades Diaz, and Jose D. Claro to defraud Medicare through the fraudulent submission of $5.4 million in durable medical equipment ( DME ) claims during 2005 and 2006. The claims concerned a Hialeah-based DME company operating as Med-Pro of Miami, Inc ( "Med-Pro" ). Medicare paid Med-Pro approximately $1.3 million based on the bogus claims, which were for DME items that were neither prescribed by doctors nor delivered to Medicare patients, most of whom resided in the Treasure Coast area of Florida.

Soto, a well known motorcycle mechanic, was also found guilty of laundering more than a $1million in monies stolen from Medicare. At trial, it was established that Soto recruited his customers and friends to cash several hundred thousand dollars worth of checks for Med-Pro during 2006.

Question -- can someone be a "well known motorcycle mechanic"? The only one I know is that guy from California with all the tattoos (new book cover pictured above), and even he's not that well-known.....

More Complications in the UBS Case

SFL here, still filling in while David does his "trial lawyer" thing.

More on UBS --

Now Judge Gold has a Swiss federal court to possibly contend with:

UBS was sued on Tuesday in a Swiss federal court by wealthy American clients seeking to prevent the disclosure of their identities as part of a tax-evasion investigation by the United States Justice Department.

The lawsuit accuses UBS and Switzerland’s financial regulator, the Swiss Financial Market Supervisory Authority, or Finma, of violating Swiss bank secrecy laws and of conducting what Swiss law considers illegal activities with foreign authorities. It also named Peter Kurer, the chairman of UBS, and Eugen Haltiner, the chairman of Finma, as defendants.

The suit, filed by a lawyer in Zurich, Andreas Rued, on behalf of nearly a dozen American clients, underscores the growing clash between Swiss banking secrecy laws and those of the United States. Tax evasion is not considered a crime in Switzerland. Disclosing client names under Swiss law is a criminal offense and can expose bank executives and officers to fines, prison terms and other penalties.

Oh no -- foreign law possibly impacting our legal process again? Remember that whole Supreme Court controversy a few years back?

Me neither, but Judge Scalia probably does.

Judge Daniel T. K. Hurley...

...is taking senior status.

We are losing a gem of a judge. I recently tried a case with Judge Hurley and he loves being a judge and trying cases. That's evident from being in trial for a month with him. He is courteous to the lawyers and treats both sides with complete respect -- and he is a thoughtful judge. He calls em right down the middle.

We all wish him well.

So, any bets on who President Obama will appoint for that spot?

Ho Hum -- The Princess, A Sex Sting, and UBS

Hey, can you tell it's SFL here?

Yep, still foolin' around while David tries another big case.

So I told you all this UBS thing was big. Here's an update on what went down in Judge Gold's courtroom yesterday:

U.S. District Judge Alan S. Gold set a July 13 hearing on the IRS lawsuit, unless an agreement is reached first. UBS claims that turning over the account names would violate Swiss privacy law and jeopardize the bank's license to stay in business.

"Such violations would expose these (UBS) employees to substantial prison terms, as well as fines, penalties and other sanctions," the UBS lawyers said in a court filing last week. "There is simply no reason to have, nor equity in having, such an expedited process here."

The IRS had sought an accelerated timetable, but Justice Department tax attorney Stuart Gibson and UBS lawyers told Gold at a brief telephone hearing Monday they had agreed on a lengthier process. Gold also set a series of deadlines for court filings.

"I would appreciate the continued efforts to discuss this matter, to narrow down what the legal issues are and the factual issues are," Gold said.

Most judges probably would appreciate that.

What do you know -- the feds bust a Miami Beach sex ring:

Bernabe-Caballero, 34, remained without bond in Miami's Federal Detention Center Monday night and was scheduled for a 10 a.m. hearing Tuesday about extradition to Michigan, where the grand jury in the case had convened.

Bernabe-Caballero's attorney, Rene A. Sotorrio, declined to comment.

Smart move, I wouldn't say anything either if my client was facing these kind of allegations.

And -- can you believe it -- a story about a cocaine princess and federal court.

Sometimes these things write themselves.

More on Kuehne R&R

SFL here, hope you had a nice weekend.

Here's a nice quote from John Pacenti's article on Judge Bandstra's R&R on Ben Kuehne:

If Bandstra’s decision stands, the case would be down to five substantive money laundering counts. Kuehne and Saldarriaga are accused of using a money broker to hide the movement of drug profits into the defense fund. The money broker was an informant working with the government and exchanging pesos for dollars used in U.S. drug stings.

Miami litigator Jane Moscowitz, one of Kuehne’s attorneys, said she was thrilled with the Bandstra ruling.

“It took my breath away that the motion had been granted,” she said.

And us too, Jane.

And here's some more background on the IRS/UBS suit, which is being closely watched in financial and legal circles:

While the deferred prosecution agreement reached between Swiss banking giant UBS and federal prosecutors on Wednesday might have initially looked like a great deal for the government, in reality the Zurich-based bank isn't disclosing nearly as many client names as law enforcement officials are suggesting, says Miller & Chevalier tax partner George Clarke III.

Clarke says that the decision by the Justice Department to file suit against UBS on Thursday in Miami is evidence of this.

Despite forking over $780 million in penalties as part of its deferred prosecution agreement, UBS, represented by Wachtell, Lipton, Rosen & Katz litigation partner John Savarese, managed to secure a pretty good deal for itself, Clarke says.

Sure, not bad for a bunch of carpetbaggers from New York. But what are we, chopped liver?

Another one bites the dust

The government's case against Ben Kuehne is in utter shambles -- Count I (the most serious count) was already dismissed. The case against a co-defendant has been dismissed. And now, Magistrate Judge Bandstra has recommended that Count 7 -- the wire fraud count -- be dismissed against all defendants. It is time for the government to concede defeat, no?

Is It Friday Already?

By SFL

Boy the federal court beat is...a little beat today.

Does it count as SD FL news that I saw Judge Moreno having a nice lunch at La Loggia yesterday?

No, guess not -- darn, where's Julie Kay when you need her?

Anyways, the always-in-trial big man already updated us on Joe Cool. Judge Huck set sentencing for May 6.

Third time's the charm in the Liberty 6 retrial, which is starting to feel like Jarndyce and Jarndyce -- only longer.

What do you all think of this line from the defense opening:

“This case is a 100 percent setup; this is a manufactured crime,” the lawyer, Ana M. Jhones, said in her opening argument, which drew several objections from the prosecution, most notably when she remarked that “taking an oath to Al Qaeda is not a crime.”

True, but do must jurors think it should be?

And finally, more details on the IRS v. UBS showdown unfolding right here in sunny South Florida:

With today’s lawsuit, the U.S. asked a federal judge to enforce its so-called John Doe summonses. On July 1, a federal judge in Miami approved an IRS summons seeking information on thousands of UBS accounts owned or controlled by U.S. citizens. Negotiations between the U.S., Switzerland and UBS have been at a standstill since then, according to a Justice Department filing.

UBS said in a statement that it expected today’s filing.

“UBS believes it has substantial defenses” to the U.S. attempt to enforce the summonses and will “vigorously contest” the case, the bank said in the statement. The bank’s objections are based on U.S. laws, Swiss financial privacy laws, and a 2001 agreement between UBS and the IRS, according to the statement.

Anyone know who has been retained to represent UBS on this? I know a certain humble blogger who's available.

Have a great weekend all!

Joe Cool verdict

Guilty.

I am loving guest-blogger South Florida Lawyer. Great stuff below...

Thanks.

New Plea Agreement Policy Becomes Effective Tomorrow

SFL here, still muckin' around this joint while David tries another big case.

Boy I feel like a dinosaur thinking back to the days when the clerk's office was not automated, and you had to actually walk over to Court to pull a docket or see an administrative order.

Now the clerk can just imprint them directly into the microchip transmitter located behind your retina, saving a lot of time and also something they used to have a long time ago called "trees."

Wait a minute -- that upgrade is set to launch in 2010.

I guess in 09 they're still using old fashioned emails, and I got one earlier today from the clerk that said this:

Administrative Order 2009-2, effective February 20, 2009, provides in part:

ORDERED AND ADJUDGED 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.

Please visit the Southern District of Florida web page at http://www.flsd.uscourts.gov for the full text of Administrative Order 2009-2.

Hmm, I have to think this is a good thing, right?

Guest Blogging At David's Place.

Hi folks, SFL here.

David was kind enough to lend me the keys to his soapbox for a few days because, as you may have heard, he's busy doing IMPORTANT LEGAL STUFF.

In fact, here's a taste of what the big man has been up to this week:

The guiding principle of the medical profession is often stated as "First, do no harm."

But according to federal prosecutor Sean Cronin, Dr. Ali Shaygan operated by a different four-word motto, "Mo' money. Mo' money," with deadly consequences.

Making his opening statement Wednesday to a Miami federal jury, Cronin called Shaygan a drug dealer who sold prescriptions for dangerous narcotics to boost his income.

One of Shaygan's patients, James "Brendan" Downey of West Palm Beach, died in June 2007 after overdosing on methadone prescribed by Shaygan, Cronin said.

Shaygan's attorney, David O. Markus, countered that the 37-year-old physician prescribed appropriate doses of medications to patients who claimed to be suffering from pain and other ailments.

"He had a legitimate medical reason for doing what he did," Markus said. "Because a patient passes away doesn't make the doctor a criminal."

Shaygan, who lives in Miami Beach, is charged with 141 counts of unlawful prescribing and causing Downey's death. If convicted, he faces more than 20 years behind bars.

Geez, all I do is move around money.

Good luck David!

In other SD FL news, all you machers can see if you made the list. No, not the Madoff investment list, but the list of 19,000 offshore UBS bank accounts of American investors who may have been trying to avoid US taxes:

The largest bank in Switzerland, UBS, agreed Wednesday to reveal the names of wealthy Americans whom the authorities suspect of using offshore accounts to evade taxes.

The change in policy is the result of UBS' admitted role in conspiring to defraud the Internal Revenue Service. As part of the agreement, the bank will pay $780 million in damages, and also close all offshore accounts of its American clients.

You can see the filing that was submitted to Judge Cohn here.

Ok ok I know it's not Shakespeare, and I'll see if I can punch it up a bit, but I did promise myself -- out of my deep respect for David -- not to "work blue."

Boy, now I know how Bob Saget feels.

Have a good day everybody!

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.