Ch-ch-ch Changes

Lots of change going on over at the U.S. Attorney's office. Multiple sources have told me that:

Ben Greenberg is now the 1st Assistant U.S. Attorney
Ed Stamm is Chief of Criminal
Ed Nucci has the new position of "Managing Assistant U.S. Attorney for the Northern Offices"
Marcus Christian is the "Executive Assistant U.S. Attorney" in charge of hiring and recruiting
George Karavestos is the Chief of Narcotics
Joan Silverstein is the Chief of Economic and Environmental crimes
Bob Senior is the Chief of Public Integrity

Congrats to all.

"Put simply, Epstein believes he is above the law."

That was the statement by Peter Prieto and Steve Marks after they filed a civil complaint against Jeffrey Epstein for violating his agreement to pay the victims of his sexual offenses. The case landed before Judge Gold. Here's the AP story by Curt Anderson:

Billionaire sex offender Jeffrey Epstein is violating an agreement with federal prosecutors by refusing to pay more than $2 million in legal fees to attorneys representing a dozen of his victims, according to a new federal lawsuit.
Epstein, a New Yorker who owns a Palm Beach mansion, a Paris apartment, a 70-acre Caribbean island and a 7,500-acre New Mexico ranch, could ultimately face federal prosecution stemming from his alleged assaults on mostly teenage girls if he continues to refuse to pay the fees, the victims' attorneys said Tuesday.

***
Under the deal Epstein signed with prosecutors in 2007, he would avoid federal charges and potentially lengthy prison sentences as long as he abided by several conditions — including paying fees for lawyers representing victims.
His failure to pay, according to the lawsuit, is a "material breach" of that agreement that could open the door to federal criminal prosecution, according the lawsuit filed in Miami federal court late Monday. An attorney for Epstein did not immediately respond to an e-mail seeking comment and the Miami U.S. attorney's office — which signed the agreement with Epstein — declined comment.
Epstein, a 57-year-old investor, pleaded guilty in Palm Beach County in 2008 to two state prostitution counts and was designated a sex offender. He was sentenced to 18 months in jail following by a year of house arrest, which he is currently serving at his $6.8 million Palm Beach residence.

I guess today is civil day at the blog...

Judge Cooke to get a piece of the Scott Rothstein case

Well, SFL hasn't used Scribd in a while, so I figured I get in on the fun. Here's a complaint filed by David Mandel against Scott Rothstein and TD Bank for civil RICO that landed before Judge Cooke:

Coquina Complaint

Coquina, an investment partnership based in Texas, alleges that TD Bank was complicit with Rothstein in the Ponzi scheme. According to the complaint, Coquina’s representatives met directly with Rothstein and Regional Vice-President Frank Spinosa at TD Bank’s corporate offices in Fort Lauderdale. At that meeting, Spinosa allegedly vouched for both Rothstein and the safety of the Coquina’s investments.

Also of interest, last week Spinosa’s counsel informed the parties in the RRA bankruptcy proceeding that his client intends to invoke his Fifth Amendment rights against self-incrimination and will refuse to answer deposition questions.

This is the case that keeps on giving...

In other news, Rumpole is railing on Justice Scalia because he dissented in the Graham case yesterday. What Rumpole doesn't tell you is that Scalia also dissented in United States v. Comstock, in which the Supreme Court said that federal law allows a district court to order the civil commitment of a mentally ill federal prisoner beyond the date he would otherwise be released. Scalia said that Congress didn't have authority to pass such a law under the necessary and proper clause. He's not perfect, but Scalia is the best friend a criminal defendant has in the Supremes.

Heroes vs. Villians

Update-- I guess this is Justice Kennedy day. Today he wrote for the Supreme Court that a life sentence for a juvenile was unconstitutional where the defendant did not commit murder. He cited evolving standards of decency and also world standards. It's a fascinating read, especially in light of his comments on Friday regarding empathy and sentencing. More to follow.

Justice Kennedy doesn't like to pick sides or call himself the swing voter. On Friday, I posted John Pacenti's coverage of Kennedy's speech to the Palm Beach County Bar Association. His quote about being the swing voter is traveling around the blogosphere: "It has to me the imagery of these wild spatial gyrations. I don't swing around the cases. They swing around me. My jurisprudence is quite consistent."

In addition to Pacenti, the Palm Beach Post covered the talk here and the Palm Beach Daily News here:

"The Constitution doesn’t just belong to a bunch of judges and lawyers — it’s yours,” he told the students. “The principles of the Constitution and of freedom must be taught ... That’s how our heritage is handed down from one generation to the next.”
Kennedy told the group about a friend of his who had been an appellate judge for six months, when he listened to an argument from an attorney about how the trial judge had erred. The attorney closed his argument by saying the trial judge was new and had only been on the bench for three months.
“My friend leaned over and said, ‘It may interest you to know I’ve only been on this bench for six months,’” Kennedy said. “And without missing a beat, the lawyer said, ‘It’s surprising, your honor, how much a judge can learn in 90 days.’”
While speaking before a group of attorneys and judges, Kennedy was asked how he reads the enormous amount of briefs.
Kennedy told them he sometimes takes difficult cases home to read as he listens to opera music.
“I sometimes have one-opera cases and sometimes two-opera cases,” he said. “An attorney in the room raised his hand and said, ‘I have a rule like that when I write those briefs. I have a one-six-pack brief and a two-six-pack brief.’”

Justice Kennedy speaks to PB Bar Association

John Pacenti has the details here. The whole thing is definitely worth a read, but here is a part:

Under Chief Justice John G. Roberts, Kennedy voted with the majority 92 percent of the time in the 2008-2009 term. On the 23 decisions decided by 5-4 votes, Kennedy was in the majority in all but five. “I don’t swing around the cases. They swing around me,” he said. “My jurisprudence is quite consistent.”

In one of his many jokes during the speech, Kennedy was asked what makes an “activist court.” He replied, “An activist court is a court that makes a decision you don’t like.”

But Kennedy also was serious. He said it’s important to teach the young about the Constitution and its importance because the law in other countries is considered a threat, not a blessing for society.

When asked if empathy has a place in judicial rulings at the highest levels, Kennedy said absolutely. He said prison sentences in the United States are eight times longer than in other Western countries for the same crimes.

“If lack of empathy means you close your eyes to the law’s decree, that’s just silly,” Kennedy said. “Capital defendants in a single windowless 12-by-8 cell for 20 years waiting for their sentence. You are not supposed to know this when you are a judge?” He said mandatory minimum laws passed by state legislatures are cost foolish and have created a failing penal system. In conclusion, Kennedy said he expects the dynamic to change among justices when Kagan, if confirmed, joins the court. “It’s a new table. It’s a new court,” he said.

It's Friday!

Took a quick trip to the Middle District yesterday. I think I can fly to Tampa, drive to the Pinelas county jail, see my client, drive back to the airport, and fly back to Miami quicker than I can walk across the street to FDC and see a client there.

I know this is off-topic, but this is too good to pass up -- from the Miami Herald: "Principal tells parent to 'eat s--- and die'." Whoops! The dreaded e-mail mistake where you hit reply instead of forward.

If you haven't had enough Kagan coverage, here's what Tom Goldstein says are 3 overlooked issues:

First, as Nina Totenberg first reported, Kagan signed this letter in 2005 strongly protesting Lindsay Graham’s amendment to limit the Guantanamo Bay detainees’ access to federal courts. This is far more direct evidence of Kagan’s views on executive powers in foreign affairs than the isolated statement in her confirmation hearings that has been invoked as supposedly showing her support for Bush-era policies. The letter should assuage liberal opponents, but raises the question whether Graham and other moderate Republicans may vote against her.

Second, as the New York Times reported, Miguel Estrada unambiguously endorsed Kagan’s confirmation. Estrada is a hero of conservatives, given his treatment when he was nominated by President Bush to the D.C. Circuit. The endorsement gives Democrats and the White House ammunition to argue that Republicans are simply playing politics.

Third, as Jim Oliphant reported, Kagan signed a memo while working in the White House stating that President should sign an assault weapons ban. And as Greg Stohr of Bloomberg has reported, while clerking for Thurgood Marshall, Kagan wrote that she was “not sympathetic” to the claim that the District of Columbia’s handgun ban violates the Second Amendment; that is the claim the Supreme Court accepted in the Heller case. Both statements by Kagan reflected the position of her employers – the White House and Justice Marshall – and her brief statement as a law clerk about the Second Amendment claim (literally a single short sentence) represented the view of every court of appeals. But those statements will almost certainly be enough to cause the NRA, with its considerable influence, to formally oppose the nomination.

Old debate pops up again

Jay Weaver is reporting that Judge Lenard didn't accept the plea deals in a health-care fraud case in which patient files were sold to personal injury lawyers. Judge Lenard is concerned that the punishment agreed to does not fit the crime:

Ruben E. Rodriguez, the ringleader, would face up to 12 years in prison. His wife, Maria Victoria Suarez, 52, would face up to five years.
``These charges are much too serious -- much too serious for our community,'' Lenard said. ``Violations of the law in the healthcare industry have become too much the norm [in Miami-Dade]. There are real victims here.''
Rodriguez, 62, who attended the hearing in a wheelchair because of poor health, has pleaded guilty to two conspiracy offenses and aggravated identity theft.
He admitted he stole Jackson records of patients' names, addresses, telephone numbers and medical diagnoses and sold them to several attorneys in exchange for kickbacks. He also admitted stealing records from an ambulance company dating back to 1995.
In exchange for the confidential information, lawyers paid Rodriguez hundreds of thousands of dollars after settling injury claims on the patients' behalfs, prosecutors say. One unidentified personal-injury attorney wrote 27 checks totaling $85,250 to a shell company incorporated by Rodriguez between 2006 and 2009.
On Tuesday, Lenard said she could not decide whether to accept Rodriguez's guilty plea until she reviewed sentencing guidelines for his offenses to make sure the penalties were tough enough.

We've discussed before the issue of whether judges should be able to reject plea deals -- the last time it came up was in the Robles case:

Query -- does a federal judge have the power to reject this sort of deal? Because this is a charge bargain deal, can't the government just dismiss the other counts on its own, leaving only the ten year maximum count? I think the real question is whether the government will have the heart to do this after Judge Gold has said he will not approve the deal. If in our adversarial system of justice the prosecution believes that a deal is fair, should a judge step in?

From another post on the subject:

The Louis Robles case has pitted prosecutors against the judiciary. The government and the defense had worked out a deal for Robles -- 10 years in prison plus restitution -- and that deal had the blessing of the receiver and almost all of the victims.Judge Gold, however, won't accept the deal, saying it's too lenient. The government recently filed a 16 page motion for reconsideration explaining why the plea made sense. Judge Gold denied that motion, which now leaves the government with two choices. It can try a case that neither party wants to try. Or it can dismiss the counts that carry more than a 10 year maximum, leaving Judge Gold with no choice but to sentence Robles to 10 years, even after a trial.Oftentimes, defense lawyers complain that sentencing is driven by prosecutors and that it should be left to judges to sentence, not executive officers. In this case, prosecutorial discretion is important in capping the sentence.Any thoughts on what the U.S. Attorney's office should do? Should they defer to the judge or stand up for their position?

What do you all think of this issue?

Joe Cool conviction affirmed...

... in a short non-published opinion, without oral argument. It seems to me that an appellate court should at least have oral argument after a trial that results in a life sentence. I mean, it's just a half an hour to hear argument. Just saying.

In other 11th Circuit news, the court found that a district court errs by admitting a defendant's MySpace page. But, of course, it was harmless, and the defendant's conviction and sentence (of 2005 months) was affirmed. From the opinion:

The MySpace evidence is not evidence of identity: that is, evidence that Phaknikone robbed
banks like a gangster. The subscriber report proved nothing more than
Phaknikone’s nickname, the only name by which Lavivong had already testified he
knew Phaknikone. The profile photographs accompanying the subscriber report
and the photograph of Phaknikone and his ex-wife at a social event offer nothing to
support a modus operandi about the bank robberies. The photograph of a tattooed
Phaknikone, his face completely visible, in a car, holding a handgun sideways in
his right hand, and with a child as a passenger, proves only that Phaknikone, on an
earlier occasion, possessed a handgun in the presence of a child. Although the
photograph may portray a “gangster-type personality,” the photograph does not
evidence the modus operandi of a bank robber who commits his crimes with a
signature trait. The MySpace evidence is not evidence of a modus operandi and is
inadmissible to prove identity.

Because the MySpace evidence fails the first requirement of the Miller test,
we need not address its second and third requirements. The MySpace evidence is
classic evidence of bad character, which was offered by the government to prove
only “action in conformity therewith.” Fed. R. Evid. 404(b). The government
wanted the jury to infer that, because Phaknikone is willing to publish these kinds
of photographs online, under an incendiary alias, he is a gangster who is likely to
rob banks. The district court abused its discretion by admitting the MySpace
evidence.

I have always wondered what would happen if a district court read this opinion and then said -- well, I know it's error, but it's harmless so I will admit it.

The comments were active yesterday in the debate about the probation office. Good stuff.

It's Elena Kagan

That's the (leaked) word from last night and this morning. Tom Goldstein called it months ago and his coverage over at ScotusBlog is unbelievable. Here's Tom's summary of his recent posts, but there's a whole lot more over there:

1. On February 23, I wrote explaining that Justice Stevens would retire, Justice Ginsburg would not, and the President would nominate Elena Kagan to fill the Stevens seat. Most of the post is devoted to discussing why the President would choose her over other candidates.
2. After Stevens’ retirement, on April 27, I returned to the selection, explaining that I continued to believe that the President would select Kagan, albeit for reasons that had less to do with electoral politics than was true in February.
3. On Saturday, we published a very extensive piece on Kagan, discussing both her professional history and claims made for and against her, as well as the breakdown of likely votes in the confirmation process.
4. Earlier this evening, before the announcement leaked, I discussed at length both the likely confirmation process and the substance of the ten principal issues that will be debated by her defenders and opponents.

Item #3 is a 10,000 word essay about Kagan. If you have some time today, it's worth skimming.

In other news, the DBR (John Pacenti) covers the debate about whether PSIs are really needed after Booker. Professor Rick Bascuas said this: "Today's federal probation officers see themselves primarily as law-enforcement agents rather than agents of mercy." Rick has written extensively on the issue here.

This can't be true, can it?

According to the JAABlog, a Broward judge said: "If the jury comes back not guilty, I'm going to slit my throat" in a DUI case: "Luckily for the Judge's throat, they did come back guilty, after which the defense attorney successfully disqualified Ireland from further proceedings. Now it's up to another judge to read the trial, and sort out a bunch of messy issues. Not to be outdone, another county judge was recently overheard commenting how people of Mexican descent 'love beer.' Only in Broward, baby!" This can't be true, can it?

Tons of great coverage of the Supreme Court while we wait for Obama to pick Stevens' successor.

On why Stevens wears a bow-tie: "The truth is that I can't tie a four-in-hand." The rest of the Washington Post article is great.

SG Kagan had to deal with a dicey political question while at Harvard. Here's Professor Mnookin on how she decided not to fight the feds even though she believed the government was wrong: "Elena is very good at reading the lay of the land, at having a sense of who is where on what issue and what the art of the possible might be, who can be influenced, who cannot. In that sense of being political, she is extremely gifted. She’s very purposeful."

Kagan is also watching the honest services cases very closely. For the criminal practitioners out there, let's make no mistake -- if Kagan is selected, she will not be even close to as liberal as Justice Stevens on criminal justice issues.

Speaking of honest services cases, NACDL and the Heritage Foundation just issued a report explaining how Congress is continuing to criminalize too many acts and is doing so without including a mens rea element. The entire report "How Congress is Eroding the Criminal Intent Requirement in Federal Law" can be read here.

Pictures Pictures Pictures

I know you all are upset with me -- I missed Star Wars day yesterday (May the 4th be with you). So, I won't miss Cinco de Mayo today...

Another day, another attack on JAABlog and Bill Gelin, this time from a lawyer upset with a picture he posted. Here's the basic question -- do the Florida Bar Rules apply to lawyer-run blogs? And if so, did Gelin violate any rules by posting the picture? Bob Norman (and now SFL and Rumpole) have weighed in. I'm sure you can guess my opinion -- Gelin has nothing to worry about on this one. (Yesterday, I had picture day at the blog. True, they weren't like the one posted at JAABlog, but one of them included a state rep looking at naughty pictures. Do the Florida Bar Rules prohibit me from posting that picture? No way.)

Okay, back to the news of the blog. Tony Mauro wrote an article about minority clerks. Our own Judge Martinez is quoted:

Judge Jose Martinez of the U.S. District Court for the Southern District of Florida said that, in recent years, he has seen "way more [minority] applicants for clerkships — and they're getting better."
Recruiting minorities for clerkships has long been a challenge, Martinez said, because of missed educational opportunities and also because good candidates often have massive law school tuition debt to pay off. "We're competing for the top-notch minority lawyers with the big firms," Martinez said. "We have to show them it is a long-range benefit to be a clerk — it's a hell of a stepping-stone."
One helpful tool for doing that, Martinez said, has been the American Bar Association's 10-year-old Judicial Clerkship Program, which has provided hundreds of minority law students with internships that expose them to clerkship possibilities on both federal and state courts. The students see that "this is a viable thing for them to do," Martinez said.
But Judge Reggie Walton of the U.S. District Court for the District of Columbia said he has seen no recent increase in minority applicants for clerkships. "I don't receive the numbers I would like," he said. "They have so many other opportunities to make a lot more money than you can make as a law clerk."
Walton, who generally looks for applicants with a couple of years of law firm experience, said it is nearly impossible to hire minorities away from high-paying firms when he can only pay clerks less than $80,000 a year and when the firms are making "a big push to keep them on board." A recent clerk, Walton said, took a $100,000 pay cut from a major Washington firm to clerk for him.
Walton, himself an African-American, added that, with females outnumbering males among black law students, "the most difficult demographic to attract is the African-American male. The disparity is stark."

Picture day

Three pictures of the day:

1. State Senator likes porn:

2. Phillies fan tasered:

3. Supreme Court doors are closed:

and one item without a picture -- apparently the 11th Circuit is investigating a judge.

Monday morning...

Feels like summer is here, no?

SFL already has posted on the FBA BABC. It was a good event. Tons of people showed up, and most of the judges were there. Big shout out to Adam Rabin and Brian Spector for their hard work. From the criminal bar perspective, I thought it was interesting to see the prosecutors and criminal defense lawyers engaging each other on a variety of topics, including sentencing, discovery, cooperating witnesses, and so on. I got a lot out of it. To the left is one such discussion taking place. Good stuff...

Today is Willy Ferrer's first day on the job. Should be interesting to see how things shake out...

We miss you Paris

She wasn't in court today for a follow-up hearing on her case before Judge Moreno. The AP covers the hearing here.

See everyone tomorrow at the Doral for the Bench & Bar conference.

UPDATE -- Even though Paris wasn't in court today, Dan Marino was. He was testifying in O.J. McDuffie's state court med mal case.

Judge Kozinski says we need cameras in the courtroom

And I wholeheartedly agree. From the Above the Law post on his comments:

Kozinski started his talk by going over some of the arguments he has made before [PDF] in support of cameras (e.g., studies show cameras don’t affect the proceedings, quoting his “old boss” Warren Burger — “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”).
It wouldn’t be like the O.J. trial, which decidedly set the cameras-in-the-courtroom movement back. Kozinski advocates stationary cameras that would not zoom in, zoom out, or otherwise overly dramatize the courtroom events. Kozinski acknowledged that if you were to choose between a O.J. media circus or reports from informed journalists like Nina Totenberg or Linda Greenhouse, one might be happy to live without cameras.
But that’s not usually the choice one has. Kozinski pointed to the “long, slow decline of the newspaper industry” and the “rise of a much more diffuse style of coverage” as a major reason why cameras should be brought into courtrooms. Increasingly, the public is relying on “pseudo-journalists” (aka bloggers) for their instantaneous legal news.
“On the Internet, the loudest voice gets the most attention,” said Kozinski, who said that tends to lead to a distortion of the coverage of a case. He also raised the risks of relying on unknown bloggers, pointing to the case of “Dr. Flea.”

Someone explain to me why our federal courtrooms should be closed to the public.

More associates charged...

...but this time it isn't Rothstein's people; it's Lew Freeman's. Here's the information charging Jose Wong and Steven Jockers. Like Rothstein's COO, they are charged in an information, which is a clear sign that they've already cut a deal. According to the USAO press release:

Jose Wong began working as an employee at LBFP in1992. Wong held various accounting positions in LBFP, and was ultimately promoted to comptroller at LBFP. In this position, Wong performed all the bookkeeping related to LBFP’s operating accounts and managed Lewis B. Freeman’s personal finances. Wong also prepared financial reports, such as bank reconciliations and cash-flow reports, on a number of matters to which Freeman had been appointed as the fiduciary. Additionally, Wong deposited a large number of unauthorized checks payable to LBFP from the fiduciary accounts into the LBFP operating accounts.
Steven Jockers worked as an employee at LBFP since1998. Jockers frequently assisted Freeman and other principals of LBFP in the day-to-day functions required to maintain receiverships, liquidating trusteeships, and assignments for the benefit of creditors. Jockers also did bookkeeping and prepared financial reports, such as bank reconciliations and cash-flow reports, on a number of matters to which Freeman had been appointed as the fiduciary.
It is estimated that Freeman issued more than 100 unauthorized checks and consequently misappropriated more than $6 million from fiduciary accounts he was responsible for safeguarding.

The case is assigned to Judge Lenard.

Happy 50th...

... to SG Elena Kagan (soon to be Justice Kagan?). If you haven't been over to ScotusBlog recently, you should check it out. They have been doing incredible in-depth reports on the short-listers for Justice Stevens' seat. Here's one example -- an interesting post about how Stevens won a coin-flip to get his clerkship:

Art Seder and John Stevens, meanwhile, were both interested in the alleged Rutledge clerkship possibility. Dean Green and his colleagues gave the young men the impression that Northwestern could not or would not recommend one of them over the other. Seder and Stevens thus were told to decide between themselves, by flipping a coin, which of them would be the school’s nominee to Justice Rutledge. They did so, just the two of them, in private, at the law school and without particular drama. Stevens won the flip. And his friend Seder abided by that result—he did not ask, for instance, to change the contest to the best two out of three flips.

Scott Rothstein's right-hand charged

Chief operating officer Debra Villegas was charged Tuesday with conspiring to launder money from his massive investment racket (via Miami Herald). Here's the indictment which got assigned to Judge Zloch.

UPDATE -- an astute reader points out that it's an information, not an indictment, and that it says it will take the parties zero days to try the case. Looks like Ms. Villegas has worked out a deal to plead and cooperate...

Now that Manuel Noriega ...

... is gone (on a plane to France), who is going to get that special wing in the prison, which has a TV, window, exercise equipment and a phone?

“These two judges are fed up with the government’s efforts to clean up the Everglades.”

Nothing like a good Guy Lewis quote on Monday Morning. He's talking about Judges Moreno and Gold. He continues: “You’ve got two of the finest judges in the district, and both are as patient as Job, and they have come to the conclusion that enough is enough.”

The DBR article covering the Everglades cleanup is here. Some more:

Lewis said Gold and Moreno have drawn a line in the sand after giving government agencies the benefit of the doubt for years. “They want to believe their orders are going to be complied with and the government in good faith is going to clean up our backyard, and it’s not happening,” Lewis said. “It’s a shame it’s gotten to the point the tribe and others have to go in and say, ‘Please, judge, force government to live up to its lawful obligation.’ It’s extraordinary.” Everglades restoration has been slow going, but a $7.8 billion restoration plan signed by President George W. Bush and Florida Gov. Jeb Bush in 2003 shows limited success. “Rule No. 1 in politics is the big dogs eat first,” Guest said. “There is a lot of talk and not much walk. … Everglades restoration entered into a Dark Ages under the Bush administration. The projects didn’t get funded even though they were spending money on all sort of things. They built up this giant budget deficit, and it didn’t go to Everglades restoration, and it could have.”

***

Lehtinen said Everglades water quality has been somewhat improved thanks to a judiciary that wants to see the cleanup project through. “If you beat them about the head and shoulders enough with court orders, you do see some progress,” he said. “These judges are critical.”

"Anything is possible when a criminal defendant makes himself the government’s darling in an effort to obtain a reduced prison sentence."

That was Paul Calli in this morning's DBR discussing Scott Rothstein and his upcoming (but delayed) sentencing. More from Paul:

Calli warned prosecuting a case built on the word of master criminals like Rothstein is especially unreliable. “You take a guy who is nothing but a con man and you rely on him to accuse others. He has a built-in incentive to lie,” he said.

Jeff Weiner represents someone that Rothstein has cooperated against:

He said it was “sad and pathetic” that the federal government would turn to the state’s top scam artist to entrap his client. He contends the government is delaying Rothstein’s sentencing in hopes of reforming his reputation for the witness stand. The postponement “is only to keep from being sentenced so the government can bolster his credibility, which he has none, against the many people he has cooperated against,” Weiner said.

I wonder if Jeff will be able to get Rothstein to pass out on the stand...

Sentencing is currently scheduled for June for Rothstein before Judge Cohn. My best guess is that he gets somewhere between 20 and 25 years. What do you all think?

Willy Ferrer confirmed

Congrats to him and 4 other new U.S. Attorneys.

Your Thursday Morning Laugh

"For the tremendous philanthropic support he provides, the University of Miami is proud to name the Student-Athlete Lounge after Nevin Shapiro."

D'oh!

Newly minted SEC chief Eric Bustillo has come out of the box swinging with a $900 million Ponzi case against Mr. Shapiro. Shapiro is also charged in New Jersey and surrendered yesterday. He is represented by Mike Tein, Guy Lewis and Kate Meyers.

8-1 Supreme Court strikes down law banning videos of animal cruelty

Rick Bascuas and I have had a lot to say on this issue as we represented the plaintiff in a similar case involving cockfighting videos. After the oral argument in Stevens (the dogfighting video case), I had this to say:

From what I heard, the case will be 8-1 in favor of the criminal defendant Stevens, holding that Section 48 -- prohibiting the sale of depictions of animal cruelty -- is unconstitutional. The one Justice that seemed to say that Congress could pass such a statute was Alito.

Too bad I can't call football games that well! Today, the Supreme Court ruled 8-1 in favor of the defendant Stevens and invalidated the statute. Alito was the one dissenter. From the New York Times:

In a major and muscular First Amendment ruling, the Supreme Court on Tuesday struck down a federal law that made it a crime to create or sell dogfight videos and other depictions of animal cruelty.

Chief Justice John G. Roberts Jr., writing for the majority in the 8-to-1 decision, said the law created “a criminal prohibition of alarming breadth” and that the government’s aggressive defense of the law was “startling and dangerous.”

***

As a general matter, Chief Justice Roberts wrote, “the First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh its costs.” He continued, “Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”
Having concluded that the First Amendment had a role to play in the analysis, the chief justice next considered whether the law on animal-cruelty depictions swept too broadly.
The 1999 law was enacted mainly to address what a House report called “a very specific sexual fetish.”
“Much of the material featured women inflicting the torture with their bare feet or while wearing high-heeled shoes,” according to the report. “In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter.”
When President Bill Clinton signed the bill, he expressed reservations, prompted by the First Amendment, and instructed the Justice Department to limit prosecutions to “wanton cruelty to animals designed to appeal to a prurient interest in sex.” But since then, the government has used the law in several prosecutions for trafficking in dogfighting videos.
Chief Justice Roberts said the law applied even more broadly. Since all hunting is illegal in the District of Columbia, for instance, he said, the law makes the sale of magazines or videos showing hunting a crime here.
“The demand for hunting depictions exceeds the estimated demand for crush videos or animal fighting depictions by several orders or magnitude,” he wrote.
The law contains an exception for materials with “serious religious, political, scientific, educational, journalistic, historical or artistic value.” Those exceptions were insufficient to save the statute, the chief justice wrote.
“Most hunting videos, for example, are not obviously instructional in nature,” he said, “except in the sense that all life is a lesson.”
Justice Samuel A. Alito Jr. dissented, saying the majority’s analysis was built on “fanciful hypotheticals."

I demand a retraction!

Today's DBR (John Pacenti) covers the Jonathan Goodman imminent appointment as magistrate judge (filling Judge Garber's seat). We previously broke the story here. From the article: "U.S. District Chief Judge Federico Moreno wouldn't confirm blog reports last week that judges in the district have picked the Miami lawyer."

The article goes on to discuss how Kathy Williams and Willy Ferrer are still waiting for their appointments (Kathy to the bench and Willy to U.S. Attorney). Ferrer, at least, has been nominated (and will likely be confirmed this week or next). Kathy's file is apparently on the President's desk. I'm not sure what Obama is waiting for. It's really outrageous.

Pacenti says that Michael Caruso is "the odd-on favorite" to take over the Federal Defender's job when Kathy finally gets nominated: "David O. Markus, a former federal prosecutor, said Caruso is the natural choice. ... Markus, who runs the Southern District of Florida blog, ..."

Well, at least the blog got mentioned...

Kobie Gary gets 30 months

I'm not sure whether this was a guideline sentence or not as none of the articles explain. Here's the most in depth piece. Willie Gary had this to say about his son after the sentencing:

"I want to thank God for giving me my son alive because based on the guys he was hanging with and the things they were doing, rather than be in a courtyard I could be in the graveyard.”

Update-- from what I'm hearing, this was a win for the defense as the government was seeking a leadership enhancement which would have resulted in a much higher sentence of at least 5 years. Can anyone confirm?

Cocodorm case heard by 11th Circuit

You remember this case, right? It's the one where Judge Cooke ruled that operating a porn site from inside one's home is permitted in a residential area. The 11th Circuit heard argument yesterday, and John Pacenti covered it here. Judge Pryor wasn't sympathetic:

In 11th U.S. Circuit Court of Appeals panel indicated Thursday that the keyhole should be closed on Internet porn sites broadcasting from private residences, saying the sites constitute a business and could violate municipal zoning ordinances. “We live in the world of reality TV. People will watch anything,” said Judge William H. Pyror, one of three judges hearing the city’s appeal. His comments came during oral arguments in the city of Miami’s appeal to enforce municipal codes at a two-story colonial home north of downtown Miami used by cocodorm.com, a gay sex site that provides in-home camera feeds to subscribers. The house at 503 NE 27th St. is essentially a production studio because independent contractors provide a service for a salary, room and board, the appellate judge said. But U.S. District Judge Marcia Cooke ruled last year in favor of cocodorm’s parent company, Flava Works, citing a 2001 ruling by the 11th Circuit that concluded such homes did not constitute adult entertainment business because the product was essentially in cyberspace.
***
Benjamin told the panel, which included 11th Circuit Judge Peter Fay and Senior U.S. District Judge Jordan J. Quist, visiting from Michigan, that neighbors were undisturbed by the residents. The only difference is cameras were set up in every nook and cranny to record their daily lives, which happened to include lots of sex. The red house’s windows are whited out. There was only one vehicle parked there Thursday.

I was with Judge Cooke on this one, but it looks like it might get sent back for additional hearings:

Benjamin repeatedly referred to the 2001 decision when a panel ruled a home transmitting online images of copulating college co-eds did not violate Tampa’s zoning ordinance banning adult businesses in residential areas.
***
The court indicated it most likely would send the case back to Cooke with instructions that the Tampa case is not controlling.

"Glacial slowness''

That's what Judge Alan Gold said about the EPA in a "blistering" order that accuses the agency of ignoring the judge's previous orders. From reporter Andy Reid:

U.S. District Judge Alan Gold in Miami blamed the U.S. Environmental Protection Agency and the Florida Department of Environmental Protection for failing to heed his 2008 ruling that directed the agencies to enforce water-cleanup standards that were supposed to begin in 2006.
Instead, federal and state officials have opted for a 10-year extension to enforce tougher standards to clean up phosphorus in water that flows to the Everglades.
On Wednesday, Gold ordered the EPA and DEP to ``immediately carry out'' his previous mandates or face fines and sanctions for violating the federal Clean Water Act.
Gold also called out the South Florida Water Management District, which leads Everglades restoration. Gold said the district ``has chosen to ignore'' the court's call to enforce the water-quality standard.
``The hard reality is that ongoing destruction due to pollution within the Everglades Protection Area continues to this day at an alarming rate,'' Gold said in his ruling.

Gold isn't the only judge who is upset:

Gold became the second federal judge in recent weeks to raise concerns about the repercussions of the U.S. Sugar land deal on already-overdue Everglades restoration efforts.
U.S. District Judge Federico Moreno on March 31 ordered construction to resume on an Everglades restoration reservoir that had been shelved as the district tried to finalize the still-pending U.S. Sugar deal.
The unfinished reservoir in western Palm Beach County has already cost taxpayers almost $280 million.
The Miccosukee Tribe, which contends that Everglades restoration is off course, filed the legal challenges that led to both judges' rulings.
The tribe has also teamed with U.S. Sugar competitor Florida Crystals to wage a legal fight to try to stop the U.S. Sugar land deal.
They argue the deal threatens to take money from other restoration efforts, such as the reservoir, and would lead to further restoration delays.
"You are supposed to be cleaning up the water,'' Miccosukee attorney Dexter Lehtinen said. "They are abandoning the already existing plans. It's a deliberate ignoring of the requirements.''

He wanted to be a lawyer like his father, whom he admired and attempted to emulate.”

That was Mycki Ratzan in her sentencing memo for Kobie Gary. The sentencing was continued till this Friday because the DEA agent passed out under cross-examination by Jeff Weiner last week. The TCPalm covers the upcoming hearing and Kobie's background here:

In middle school, obese and hurting from a birth defect that “bowed” both legs, Kobie O. Gary was an ambitious student — determined to follow the path of his famed Stuart attorney father, Willie Gary.
***
Now, despite a “life-long dream” of attending law school, Gary’s defense attorneys admit his guilty plea in January to conspiracy to manufacture and distribute more than 100 marijuana plants has likely squelched that plan.
“Certainly this conviction ... could prevent him from getting a license to practice law,” Ratzan noted to U.S. District Judge K. Michael Moore. Prosecutors have targeted Gary as the boss of a Hobe Sound marijuana grow house seized in October that netted 237 plants.

New names to consider for Justice Stevens' seat

Here's the report:

A federal judge from Montana and the dean of Harvard's law school are among several names being added to the short list of potential nominees to the U.S. Supreme Court, a government source said.
Sidney Thomas, a 14-year veteran on the U.S. Court of Appeals for the 9th Circuit, is being vetted by the White House, said the source, who has been regularly consulted in the selection process.
Two women who were not on other published lists of potential candidates are now being seriously considered.
Harvard Law school dean Martha Minow has been on the school's faculty since 1981. And Elizabeth Warren heads the Congressional Oversight Panel, which reviews government efforts to boost the shaky financial and private investment sector. Neither woman has judicial experience.
Sources close to the selection process said the new names represent an effort to expand what had been a short list of candidates, many of them left over after last year's court vacancy was filled by Justice Sonia Sotomayor.

I think Martha Minow would be fantastic. She was my law school advisor so I got to know her a little bit: she's smart, compassionate, and hard-working.

Comment policy

So, should we keep the comment policy the same? Right now, you can post anonymously, but I moderate the comments to keep the hateful stuff from going up. Here's a NY Times piece about some new ways of moderating comments...

In other news, apparently people are upset with the law school clinics out there. Seems silly to me, but Rick Bascuas beware...

I'm searching for something locally to write about, but these tips aren't helping much.

So, back to Justice Stevens stuff then. How about Hilary Clinton for Supreme Court Justice?

Monday morning monsoon

Traffic on US1



- Posted using BlogPress from my iPhone

Your afternoon funny

I didn't know that Guam had the chance of capsizing... Oy.

"My dear Mr. President"

That's how Justice John Paul Stevens, who turns 90 this month, addressed the letter to President Obama in his resignation letter of today. Here's the Washington Post article:

[H]e will leave the court at the conclusion of the current term at the end of June. Stevens said he was announcing now so that the president would have time to make a nomination and the Senate to confirm in time for the start of the court's new term next October.
It will be Obama's second Supreme Court appointment after Justice Sonia Sotomayor, who was named last year to replace retiring Justice David Souter.
Stevens was appointed to the high court by President Gerald Ford, and joined the court on Dec. 19, 1975. His retirement is not a surprise and the White House has been preparing for the opening. Aides and Democrats close to the process name three people as likely frontrunners for the job: Solicitor General Elena Kagan, who Obama made the first woman to hold that post, and two appellate court judges, Diane Wood of Chicago and Merrick Garland of Washington.
Kagan and Wood were interviewed by Obama last spring before he nominated Sotomayor to the court.

Down goes ...

... the DEA agent.

Jeff Weiner's cross must have been pretty good in the Kobie Gary (Willie's son) case. Here's the press coverage of what happened:

After a day and a half in federal court, convicted pot grower Kobie O. Gary will have to wait another week to learn his fate after the lead DEA agent in the case fainted Thursday on the witness stand, prompting the judge to clear the packed courtroom.
U.S. District Judge K. Michael Moore rescheduled Gary’s sentencing for April 16.
The abrupt cancellation came just before 2 p.m., as DEA Special Agent Darren Singleton, who’d been under intense questioning by Miami attorney Jeffrey Weiner, was about to reply when his head fell forward, hitting the stand in front of him.
Court officials scrambled to his aid.

***

After a lunch break, Weiner was grilling Singleton about those phone calls and inconsistent statements Gibson appeared to make, compared to what he’d told authorities in two prior statements detailing his involvement.
Moments before Singleton fainted, Weiner had been accusing Gibson of lying to authorities, and had suggested Singleton knew Gibson was lying on Thursday.
As he left court with his extended family, Willie Gary expressed concern for the agent.
“I just hope he’s okay,” he said.

Reports are coming back that the agent is okay and feeling better. That's a better result than the Scopes Monkey Trial, where William Jennings Bryan died shortly after testifying for the prosecution and after the withering cross examination by Clarence Darrow.

Seven defendants get hung jury in Judge Graham trial

UPDATE -- Sad to report that Judge Graham's mother passed away, so he wasn't present to declare the mistrial. It was Judge Jordan who did so while Judge Graham travelled out of town. Our thoughts are with Judge Graham...

After a two-month trial and over a week of deliberations, Judge Graham Judge Jordan declared a mistrial today in a mortgage fraud case. Interestingly, shortly before trial, Judge Graham severed the case, finding that a trial of 15 defendants at once would be too unyieldly. It will be interesting to see if the government retries this group of defendants before the next batch, or how it will work...

SECOND UPDATE -- A tipster emailed me that the lawyers are: Mike Smith; Len Fenn; Isreal Encinosa; Peter Patanzo; Scott Sakin; Orlando do Campo and Sherri Romano. Congrats to them.

2 out of 3 ain't bad

Or in this case, 4 out of 6. Salesman was convicted of 4 of the 6 counts against him and is looking at about 7 years in federal prison. Judge Cohn revoked bond and sentencing will be in about 2 1/2 months.


- Posted using BlogPress from my iPhone

"I am not going to testify, your honor"

That was Fitzroy Salesman to Judge Cohn yesterday as both sides rested. Today, closing arguments and the jury should have the case by lunchtime.

Everyone is starting to gear up for the Justice Stevens' retirement. The top three choices to fill his spot. from the AP:

Two of the three top contenders, Judge Diane Wood, 59, of the federal appeals court in Chicago and Solicitor General Elena Kagan, 49, were finalists last year when Obama chose Sonia Sotomayor to replace Justice David Souter.
Judge Merrick Garland, 57, of the federal appeals court in Washington, is a former high-ranking Justice Department official who is well respected and considered least likely to engender significant Republican opposition.
The three high court prospects have different strengths and weaknesses. But even conservative activists say any of the three would likely win confirmation in a Senate in which Democrats control 59 seats. Yet Republican Sen. Jon Kyl of Arizona said Sunday he would not rule out delaying tactics if Obama nominates "an overly ideological person."
A fight over a second Obama Supreme Court nominee could rev up both Democratic and Republican fundraising machines for the November election, even though Stevens' replacement by a liberal-leaning justice would not alter the court's ideological balance.

Still no Floridian.... (although Stevens does live in Ft. Lauderdale...)

I'm back

A big shout out to Rick Bascuas for stepping in last week while I was taking a little time with the kids for Spring Break.


Some quick hits from while I was away:


1. Willie Gary's son is about to be sentenced by Judge Moore in Ft. Pierce. He has a new lawyer (Jeff Weiner) who will be "supervising" 6 other lawyers.


2. Miami's own Robert Glazier will be arguing Krupski v. Costa Crociere, case no. 09-337 in the U.S. Supreme Court this month for the Respondent. Also on the brief is David Horr, Stephanie Wylie, and Brian Scarry of Horr, Novak & Skipp. Here's the opinion from the 11th Circuit, which affirmed Judge Altonaga. The case in a nutshell: The plaintiff was injured on a cruise ship. Shortly before the limitations period ran, the plaintiff filed suit, but named as defendant the ticket seller, rather than the operator of the vessel. About five months later, after the limitations period ran, the plaintiff sued the proper defendant, the operator of the vessel. The question is whether the claim against the proper defendant relates back to the time of filing of the original complaint. The Supreme Court granted certiorari to address conflicting interpretations of Federal Rule of Civil Procedure 15(c).



3. Your top ten for the blog bracket:

SJ Scott

Fake Ed Williams fakeedwilliams

Rothstein's Cell Mate Nicholas

Dan Dan

Male Bondage II 3boysathome

Fake Bill Barzee Fake

ND in ND Jacob

Scooby Snacks quinnelk

SDFLA Blog * David

Medina other half


4. Apparently Rick's call for comments left some of you asking for the blog to be opened up again so that there wouldn't be moderation. Here's the thing -- it would be a lot easier for me not to screen the comments, but people are vicious in the comments and that's not what the blog is for. So I screen them. If you think a comment should go up and it doesn't, email me and we'll talk about it. But I'm not going to let the blog be used for anonymous attacks against people.

5. Wednesday, April 14 will be the fourth Federal Bar luncheon of the season at the Bankers Club. Honorable Barry Garber and Bob Josefsberg of Podhurst Orseck will be speaking.

Signing off

One of the things I’ve been telling the JV-FPD team is that you can tell a lot about someone from reading what they write, even if it isn’t about them. So, you come to feel like you know your favorite author or your favorite musician pretty well. (P.J.’s band used to play at Bar in New Haven and their cassette was in my big yellow Sony Walkman when I walked to the D.C. Metro every day for my 2L internship. So, we go way back.)

For that reason, it was with not a little irritation that I read the two articles about Justice Stevens in the big newspapers today. The Post tracked him down in his SDFla home up in Fort Lauderdale (giving me an excuse to post this in D.O.M.’s space). The Times piece gives a Washington byline, so I guess Adam Liptak did his work by telephone. What irritates me is that they both described him as leading the Court’s “liberal wing” which is just wrong. I have no problem with certain justices being slapped with ideological tags, but insisting that they all should bear one—that Stevens should—is simplistic. At least the Times let J.P.S. say that it’s wrong and explain a little something about having a jurisprudential philosophy.

If the writing wasn’t already on the wall, it is now. Stevens is out, probably in the next few days, with an outside chance that he’ll stay one more term, which is a far greater loss than the articles hint at. All the media care about is that the president will appoint another “liberal” because they don’t get that it’s intelligence and wisdom that matter. And I’m out, too. Back to my own page.

Your own bathroom and $27 million

That’s apparently what you get if you are abandoned by the spy who loved you. And married you. And then went back to Cuba. With the Ray Bans you bought him. As the New Times reports, Ana Margarita Martinez blames the Cuban government for her husband leaving her and somehow was awarded a $7 million default judgment by Miami-Dade Circuit Judge Alan Postman plus $20 million in punitive damages. And she feels absolutely entitled to the money: “Cuba has a debt with me. And Cuba has to pay it.”

Really, lady? You think you’ve got problems? Well, the Associate Dean is trying to get me to teach Evidence three days a week instead of giving me the two-day schedule I asked for. Since I only have to work at all because Cuba took my grandfathers’ stuff, by your logic Cuba should give me at least $80 million. Did I mention there’s been talk about my having to teach in the early morning?

To collect her “debt,” Martinez sued the charter companies who fly between the U.S. and Cuba, alleging that payments they make to a Cuban entity should be garnished to ease her pain. The charter companies removed the case to the SDFla, where the United States just filed a memo with The Chief saying that Martinez gave up her right to seek punitive damages and that she is not authorized to garnish anything anyway. It reads: “¿Que rayos se trae esta descarada?” Actually, los federales seem to be saying that furthering our foreign policy interests is more important than avenging a broken heart. Romance is dead in Washington.

This is not a book you’re reading.

“I thought you didn’t read the comments.”
“I don’t. But I look at whether there are comments.”
“You said they were unaccountable and irrelevant.”
“They are.”
“So what’s the problem?”

That was D.O.M. losing patience with me again. He’s not as bothered by the drop in audience participation as I am. I’m starting to feel like those old people who slowly read the news on NPR, oblivious that they’re producing nothing but a white noise machine.

“Isn’t this a participatory medium? Isn’t the whole point that it’s democratic and open so that everyone can throw his two cents in?”
“So that you can not read what they write?”
“Why are we going in circles with this? What I’m saying is that no one is throwing any cents in. Why does it matter whether I read them?”
“Look, I have work to do. I’ll talk to you later.”
“Whatever, man.”

This land is your land, this land is my land.

In a case filed when I was in high school, the Chief agreed with the Miccosukees yesterday that their lands are being polluted while Florida and the United States figure out how to fix the Everglades. From what I can tell, Special Master John Barkett had recommended a few years back that a reservoir be built. But then the Governor announced a plan to buy up all of U.S. Sugar’s land, which would be even better than a reservoir. Then the economy tanked, and Florida could no longer afford to buy lots of vacant land. Plus, as the Times suggested earlier this month, the whole idea is economically dubious.
The whole matter of restoring the Everglades is, from what I can tell from these filings, really complicated and involves science and phosphorous levels and a case about a permit before Judge Middlebrooks that I don’t even want to get into. Anyway, yesterday, the Chief said, enough is enough; let’s get on with it:

The Court has afforded a good deal of time for the parties to pursue the land deal and determine its viability before compelling the construction of the EAA A-1 Reservoir. Indeed, the Court is only now adopting the Special Master’s Report of July 5, 2006. ... Circumstances have changed despite the best efforts of Governor Crist and the State Parties to materialize a deal that would benefit Everglades Restoration, beyond the benefits of the EAA A-1 Reservoir. The Tribe, however, has convinced this Court with its practical arguments that their lands will ultimately be sacrificed to nutrient pollution and the time has come for the Court to require the parties to abide by commitments made in this litigation.

Still, construction may not be exactly imminent. Citing federalism concerns and noting that technology may open avenues that were unavailable in 2006, the Chief noted that the parties could file 60(b)(5) motions and that Barkett could revise his recommendation.

Dexter Lehtinen represents the Tribe.

It’s only too hard for you.

Even though I actually went downtown today and even had lunch at La Loggia, I didn’t come across anything weird or strange. So, chew on this:

The Supreme Court decided today by a 5-4 vote that José Padilla’s lawyer could and should have advised him regarding the immigration consequences of pleading guilty. This José Padilla was not born in the United States. He pled guilty to a drug crime but claimed his lawyer told him that the plea would not affect his permanent residency. (Ha!) Justice Stevens lets you know how this is going to turn out in his opening lines:

Petitioner Jose Padilla, a native of Honduras, has been a lawful permanent resident of the United States for more than 40 years. Padilla served this Nation with honor as a member of the U. S. Armed Forces during the Vietnam War.

OK, got it, he wins. (J.P.S., by the way, served in the Pacific from the time he was 22 to the time he was 25. It freaks out the law students when I tell them, “When Stevens was your age, he was fighting the Japanese.” I think they have trouble comprehending that anyone who fought in WWII is still alive, much less holding down a job, much less writing opinions.)

Skipping ahead, we find that four Justices of the Supreme Court do not believe that a defendant’s counsel should try to explain the immigration consequences of pleading guilty because it’s too hard. Alito and Roberts say in their concurrence that defense lawyers would be better off saying nothing more than that adverse immigration consequences may result: “Because many criminal defense attorneys have little understanding of immigration law, it should follow that a criminal defense attorney who refrains from providing immigration advice does not violate prevailing professional norms.” And Scalia and Thomas go even further and say that anything other than the sentence is beside the point:

In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised. The Constitution, however, is not an all-purpose tool for judicial construction of a perfect world ... .

How this was not 9-0 entirely escapes me. How is banishment not a criminal penalty? Wasn’t exile to Siberia a favored punishment of the czars or am I misremembering something? Is this supposedly not punishment because it’s specified in Title 8 rather than Title 18? The more offensive part of this is that the Justices never disclaim expertise over any corner of the law comprised by their vast general jurisdiction. They have no trouble grasping the finer points of criminal law and immigration law as well as patent law, military law, antitrust, bankruptcy, labor, tax, admiralty, whatever. But that’s Alito, Scalia, Roberts, and Thomas—not you.

How the ball bounces

Judge Marra just dealt a blow to the successor to the investors in the failed restaurant and memorabilia emporium, D. Wade’s Place, something I had no idea had ever existed. It seems, according to the order dismissing the complaint, that there is no legal basis for their contention that Dwyane (that’s how that’s apparently spelled) was monopolizing memorabilia by failing to perform on a contract that gave the investors

the right to use his name, fame, nickname, initials, autograph, voice, video or film portrayals, facsimile or original signature, photograph, likeness, and image or facsimile image without Wade’s consent to create personalized memorabilia featuring Wade which could be sold at the restaurants.

I know, I know. You’ve just experienced a certain loss of innocence. Basketball’s all just about making money. Let’s move on.

Plaintiff alleges that the relevant product market in this case is Dwyane Wade personalized sports memorabilia. Plaintiff contends that “[t]here is no substitute for Wade-personalized sports memorabilia (‘Wade Memorabilia’), especially in southern Florida, where the Miami Heat plays."

Quoting heavily from a series of antitrust decisions, Judge Marra observed, and I’m paraphrasing here, that things that are cool—e.g., a Yale education, the make-up from Cats, tickets to Phantom, Pepsi, NBC Must See TV—do not constitute their own relevant markets just because they’re cool.

Bilzen Sumberg &c. and the Tampa outpost of DLA Piper filed the motion.

(Having come to the end of this post, I have to confess that I’m a little surprised D.O.M. doesn’t have Blog tags for the Heat or Wade.)

It’s quiet ... too quiet

I didn’t mention this when D.O.M. called and said he needed to focus on work for a while, but I have no idea what’s going on in the SDFla. Judge Jordan dropped by my JV-FPD class last week to explain what goes on behind the curtain at the Eleventh Circuit—which went so well I could have sold tickets. But other than that I’ve pretty much been buried by work without contact with the outside world. Skimming over the Blog, it seems like all I missed was that Justice O’Connor came to town to cut the ribbon on the new courthouse cafeteria. Or something. Anyway, as far as I can tell, there’s nothing going on. The DBR’s web site reports that the deal between UBS and the U.S. may be unraveling. Whatever. That impasse was in the news the last time I was pinch-hitting in this space. Look, people, the whole reason why this district merits its own blog is that weird and bizarre stuff happens here. If you’re all just going to behave normally, then what’s the point?

Spring Break Guest Blogger (WITH AN UPDATE RE MAGISTRATE POSITION)

I'm taking Spring Break off from blogging. You'll be happy to know that Professor Rick Bascuas has agreed to step in for the week. Rick can usually be found blogging over here. See you guys soon.

UPDATED -- Well, just before I got off the grid, I got a tip that the new magistrate position went to Jonathan Goodman. I have no idea whether this is correct or not as I have not been able to confirm it. But since I'm not a real journalist, I figured I would post it. If it is JG, I congratulate him and believe he will be great! If I'm wrong, please let me know so I can fix this...

So who is the new Magistrate?

The judges interviewed and then picked the new magistrate today. But the choice isn't public yet. When asked who was selected, Chief Judge Moreno said this:

"The most qualified applicant was chosen pending an FBI investigation. Consistent with the rules of the Judicial Conference it remains confidential until finalized."

But once the FBI calls start, it will be all over town.... If you all hear anything, send me an email and I will keep it confidential. Thanks!

Previous coverage here.