Hope everyone enjoyed their spring break. It's back to work, and here's what's up:
1. Barry Bonds' trial starts today. Apparently, jail isn't at stake, but his legacy is: a jury will be asked to decide whether baseball's home run king set his historic mark while using a long list of banned drugs.
***
For Bonds, 46, who has not played baseball since he was indicted, the stakes are high - even though most experts doubt he will face prison if convicted.
In 2008, Bonds' trial judge, Susan Illston, sentenced two defendants who were convicted of lying to authorities about steroids in sports to home confinement, not prison. That sets a baseline for sentencing Bonds if he is convicted, experts say.
The trial represents a chance for Bonds to repair a reputation badly tarnished by his association with the BALCO steroid scandal, and, perhaps, to secure a place in baseball history that might otherwise be denied him.
If Bonds is acquitted, his chances of being elected to the Hall of Fame "go way up," said former Major League Baseball Commissioner Fay Vincent. "But if he gets convicted, it's the end of the discussion for at least 30 years."
Roger Clemens, who is on trial next, will be watching this one closely.
2. Interesting case being argued this morning before the Supremes, Davis v. U.S.. The issue: The good-faith exemption to the exclusionary rule allows evidence collected in violation of the Fourth Amendment to be admitted at trial if the police officers conducting the search acted in good faith. Does the good-faith exception to the exclusionary rule apply to a search that was authorized by precedent at the time of the search but is subsequently ruled unconstitutional?
The case came out of the 11th Circuit, and Orin Kerr of the Volokh Conspiracy will be arguing for Mr. Davis. ScotusBlog has great analysis of the case here.
3. You can bet on one thing in Davis -- Justice Alito will vote with the government. From the Sunday NYT: Alito is the least likely justice to show a glimmer of concern for the rights of criminal defendants. He has ruled for the defense in only 17 percent of the criminal cases he has heard since he joined the court, putting him to the right of Roberts, Scalia, Thomas — and every other justice of the past 65 years other than William Rehnquist...
Strangely, the title of the piece is called: "Mysterious Justice." Nothing mysterious about Alito -- he's the most predictably conservative judge on the Court.
4. There's always a lot of talk about how judges should write opinions. Rumpole doesn't like the Judge Selya style of opinion writing (Selya's interview on How Appealing is entertaining). I wonder what he thinks of this.
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Monday, March 21, 2011
Thursday, March 17, 2011
March Madness
Today shows why this is the best week of the year in sports. What great games...
Your news for the day:
1. Welcome to the blogosphere Roy Black at Black's Law. He'll be discussing trial practice -- he already has posted on cross-examination. I can attest to Roy's folder method. I saw him use this method years ago during a trial in Savannah, and I have been using it ever since. (Apropos of Savannah and today, we were in trial on St. Patrick's Day, which is the biggest holiday of the year there. Everything closes down, including most of the streets and courthouses. But not our judge -- he had trial (as he did on most Saturdays during those six weeks). Some of the jurors were very late because of the traffic issues and the judge let them have it. After that, the jurors were much more sympathetic to us.)
2. Some light reading from Judge Jack Weinstein.
3. The AO has issued the stats from 2010. Criminal filings are up, but interestingly, appeals are down:
Filings in the regional courts of appeals dropped 3 percent to 55,992 in FY 2010, due to a 7 percent drop in criminal appeals to 12,797 and a 9 percent drop in administrative agency appeals to 7,813. Bankruptcy appeals declined 15 percent to 678, the smallest number filed since 1982. Civil appeals remained stable, dropping by just 27 appeals to 30,940. Original proceedings in the courts of appeals increased 2 percent to 3,764.
Prisoner petitions fell 3 percent to 15,789. Appeals involving pro se litigants declined 2 percent to 27,209.
Re Criminal filings:
Filings of criminal cases (including transfers) increased 2 percent to 78,428. The number of criminal defendants (including transfers) also rose 2 percent to 100,366, surpassing the previous record of 97,982 set in 2009. Proceedings were concluded against 98,311 defendants, 91 percent of whom were convicted, with 89 percent pleading guilty.
Immigration cases, which climbed 9 percent to 28,046, constituted 36 percent of all criminal cases filed, compared to 34 percent in 2009. The majority of immigration filings involved improper reentry of aliens, and 73 percent of all immigration cases were filed in the District of Arizona, the Southern District of California, the District of New Mexico, and the Southern and Western Districts of Texas.
Filings addressing fraud grew 12 percent to 9,371 for cases, and rose 13 percent to 12,639 for defendants in these cases.
Twenty percent of all criminal cases were drug offenses, compared to 22 percent in 2009. Cases involving drug offenses decreased 5 percent to 15,785, and defendants in those cases declined 2 percent to 29,410. Marijuana cases dropped 10 percent overall, but filings related to possession of marijuana increased, with cases climbing 26 percent to 1,248 and defendants rising 28 percent to 1,305. Drug cases involving non-marijuana offenses declined 3 percent to 10,817, and defendants in those cases fell 2 percent to 21,918.
Firearms and explosives cases, which account for 9 percent of total criminal case filings, declined 7 percent to 7,248. Defendants in those cases dropped 6 percent to 8,376.
Your news for the day:
1. Welcome to the blogosphere Roy Black at Black's Law. He'll be discussing trial practice -- he already has posted on cross-examination. I can attest to Roy's folder method. I saw him use this method years ago during a trial in Savannah, and I have been using it ever since. (Apropos of Savannah and today, we were in trial on St. Patrick's Day, which is the biggest holiday of the year there. Everything closes down, including most of the streets and courthouses. But not our judge -- he had trial (as he did on most Saturdays during those six weeks). Some of the jurors were very late because of the traffic issues and the judge let them have it. After that, the jurors were much more sympathetic to us.)
2. Some light reading from Judge Jack Weinstein.
3. The AO has issued the stats from 2010. Criminal filings are up, but interestingly, appeals are down:
Filings in the regional courts of appeals dropped 3 percent to 55,992 in FY 2010, due to a 7 percent drop in criminal appeals to 12,797 and a 9 percent drop in administrative agency appeals to 7,813. Bankruptcy appeals declined 15 percent to 678, the smallest number filed since 1982. Civil appeals remained stable, dropping by just 27 appeals to 30,940. Original proceedings in the courts of appeals increased 2 percent to 3,764.
Prisoner petitions fell 3 percent to 15,789. Appeals involving pro se litigants declined 2 percent to 27,209.
Re Criminal filings:
Filings of criminal cases (including transfers) increased 2 percent to 78,428. The number of criminal defendants (including transfers) also rose 2 percent to 100,366, surpassing the previous record of 97,982 set in 2009. Proceedings were concluded against 98,311 defendants, 91 percent of whom were convicted, with 89 percent pleading guilty.
Immigration cases, which climbed 9 percent to 28,046, constituted 36 percent of all criminal cases filed, compared to 34 percent in 2009. The majority of immigration filings involved improper reentry of aliens, and 73 percent of all immigration cases were filed in the District of Arizona, the Southern District of California, the District of New Mexico, and the Southern and Western Districts of Texas.
Filings addressing fraud grew 12 percent to 9,371 for cases, and rose 13 percent to 12,639 for defendants in these cases.
Twenty percent of all criminal cases were drug offenses, compared to 22 percent in 2009. Cases involving drug offenses decreased 5 percent to 15,785, and defendants in those cases declined 2 percent to 29,410. Marijuana cases dropped 10 percent overall, but filings related to possession of marijuana increased, with cases climbing 26 percent to 1,248 and defendants rising 28 percent to 1,305. Drug cases involving non-marijuana offenses declined 3 percent to 10,817, and defendants in those cases fell 2 percent to 21,918.
Firearms and explosives cases, which account for 9 percent of total criminal case filings, declined 7 percent to 7,248. Defendants in those cases dropped 6 percent to 8,376.
Wednesday, March 16, 2011
UM Law drops in rankings form 60 to 77
ABT has all the gory details.
Some other quick hits:
SFL has a really entertaining post discussing the FBA luncheon from last week.
Congrats to Peter Raben for this victory.
Thank goodness for the 9th Circuit.
The drugs used to execute defendants in Georgia may have been illegally imported. Lovely.
Howard Stern is the Rolling Stone cover boy.
Some other quick hits:
SFL has a really entertaining post discussing the FBA luncheon from last week.
Congrats to Peter Raben for this victory.
Thank goodness for the 9th Circuit.
The drugs used to execute defendants in Georgia may have been illegally imported. Lovely.
Howard Stern is the Rolling Stone cover boy.
Tuesday, March 15, 2011
Posner vs. Ginsburg
Oh, this one ought to be good. Via the WSJ, seems like Judge Richard Posner doesn't like the way Supreme Court Justices are behaving:
He says mock trials of fictitious characters don’t “contribute to anyone’s enlightenment.” For Judge Posner, the hobby symptomizes the broader ills of contemporary “celebrity culture.”
“That’s the problem with presidents and Supreme Court justices and billionaires. They think that because they are successful in one sphere they’re experts in everything,” Judge Posner says. Supreme Court justices should stop “preening” and return to “their dignified anonymity,” he says.
But Justice Ruth Bader Ginsburg (happy b-day today!) struck back, and laughed when advised of Posner's critique:
“He’s an odd person to say that, considering the range of his writings, including ‘Sex and Reason,’ ” said Justice Ginsburg, a regular mock trial participant.
He says mock trials of fictitious characters don’t “contribute to anyone’s enlightenment.” For Judge Posner, the hobby symptomizes the broader ills of contemporary “celebrity culture.”
“That’s the problem with presidents and Supreme Court justices and billionaires. They think that because they are successful in one sphere they’re experts in everything,” Judge Posner says. Supreme Court justices should stop “preening” and return to “their dignified anonymity,” he says.
But Justice Ruth Bader Ginsburg (happy b-day today!) struck back, and laughed when advised of Posner's critique:
“He’s an odd person to say that, considering the range of his writings, including ‘Sex and Reason,’ ” said Justice Ginsburg, a regular mock trial participant.
Indeed, Judge Posner is among the best-known of the nation’s judges, having been profiled in magazines, contributed to the popular and academic press, and written dozens of books on law, literature, economics and other topics. He also remains a force on the University of Chicago’s law faculty.
At least Posner likes good movies:
Rather than mock trials, the judge prefers modernizing or parodying classic texts. One of his favorites updated a Jane Austen novel from 19th century England to present-day Beverly Hills.
“The movie ‘Clueless’ is a parody of ‘Emma,’” he says, with the Alicia Silverstone character, Cher Horowitz, substituting for Austen’s Emma Woodhouse.
Monday, March 14, 2011
The best trial lawyers are good poker players
At least that's what I've been told. Well, if that's true, naybe soon we will have some trial bots:
Poker bots are not new, but until recently they were not very good. Humans were better at the nuances of the game — at bluffing, for instance — and could routinely beat the machines. But artificial intelligence has come a long way in the last few years, far enough that poker bots are now good enough to win tens of thousands of dollars on major game sites, which are clamping down on them.
***
It turns out to be a lot easier to build a perfect chess player than a poker whiz. Chess is a perfect information game: if you look at a chessboard, you know the exact state of the game from both players’ perspectives. And the rules of the game are not affected by chance, like the drawing of a card.
But in poker, an imperfect information game, there are many unknown variables. A player does not know his opponents’ cards and may not know their style of play — how aggressive they tend to be, for instance, or how often they bluff.
Unlike a chess bot, a poker bot does most of its work before the match, running millions of simulations before the first card is dealt. But even with the large amounts of memory available with today’s computers, storing — or even computing — information for every possible scenario would be implausible.
It used to be that robots could conduct sentencing hearings, but judges now have discretion again, thank goodness. Now the Supreme Court is just trying to make sure that judges know it:
But perhaps his fortunes have turned again. The Supreme Court plucked his petition from the thousands that make their way to the court each year. This month, Pepper won his case in a victory that gives federal judges more leeway to provide second chances to the criminals who come before them.
The ruling will clarify the rules that guide judges as they try to set sentences that both comport with national norms and ensure justice is done in individual cases.
But Pepper v. United States also is a reminder of the real people behind the court's cases. It comes with a story that might make even the most objective balls-and-strikes umpire on the mahogany bench feel a tinge of (can it be said?) empathy.
Justice Sonia Sotomayor, who wrote the court's 8 to 1 decision, summed up the parameters of Pepper's journey through the halls of justice pretty well.
"At the time of his initial sentencing in 2004, Pepper was a 25-year-old drug addict who was unemployed, estranged from his family and had recently sold drugs as part of a methamphetamine conspiracy," Sotomayor wrote. "By the time of his second resentencing in 2009, Pepper had been drug-free for nearly five years, had attended college and achieved high grades, was a top employee at his job slated for a promotion, had re-established a relationship with his father, and was married and supporting his wife's daughter."
UPDATED -- In today's DBR, John Pacenti covers another area where discretion is really needed -- the sentencing of the aging. The sentencing commission has finally changed the guideline in this area, but it's not enough if judges aren't going to consider age. Joel Hirschhorn has some great quotes in the article. Here's one:
"The BOP has a long and sad rich history of finding that those who are sent to their facility are competent to stand trial," Hirschhorn said. "If BOP decides he no longer has frontotemporal lobe dementia and they send him back for sentencing, I will ask the judge to enter an order to give me a sample of the waters the doctors are drinking."
Poker bots are not new, but until recently they were not very good. Humans were better at the nuances of the game — at bluffing, for instance — and could routinely beat the machines. But artificial intelligence has come a long way in the last few years, far enough that poker bots are now good enough to win tens of thousands of dollars on major game sites, which are clamping down on them.
***
It turns out to be a lot easier to build a perfect chess player than a poker whiz. Chess is a perfect information game: if you look at a chessboard, you know the exact state of the game from both players’ perspectives. And the rules of the game are not affected by chance, like the drawing of a card.
But in poker, an imperfect information game, there are many unknown variables. A player does not know his opponents’ cards and may not know their style of play — how aggressive they tend to be, for instance, or how often they bluff.
Unlike a chess bot, a poker bot does most of its work before the match, running millions of simulations before the first card is dealt. But even with the large amounts of memory available with today’s computers, storing — or even computing — information for every possible scenario would be implausible.
It used to be that robots could conduct sentencing hearings, but judges now have discretion again, thank goodness. Now the Supreme Court is just trying to make sure that judges know it:
But perhaps his fortunes have turned again. The Supreme Court plucked his petition from the thousands that make their way to the court each year. This month, Pepper won his case in a victory that gives federal judges more leeway to provide second chances to the criminals who come before them.
The ruling will clarify the rules that guide judges as they try to set sentences that both comport with national norms and ensure justice is done in individual cases.
But Pepper v. United States also is a reminder of the real people behind the court's cases. It comes with a story that might make even the most objective balls-and-strikes umpire on the mahogany bench feel a tinge of (can it be said?) empathy.
Justice Sonia Sotomayor, who wrote the court's 8 to 1 decision, summed up the parameters of Pepper's journey through the halls of justice pretty well.
"At the time of his initial sentencing in 2004, Pepper was a 25-year-old drug addict who was unemployed, estranged from his family and had recently sold drugs as part of a methamphetamine conspiracy," Sotomayor wrote. "By the time of his second resentencing in 2009, Pepper had been drug-free for nearly five years, had attended college and achieved high grades, was a top employee at his job slated for a promotion, had re-established a relationship with his father, and was married and supporting his wife's daughter."
UPDATED -- In today's DBR, John Pacenti covers another area where discretion is really needed -- the sentencing of the aging. The sentencing commission has finally changed the guideline in this area, but it's not enough if judges aren't going to consider age. Joel Hirschhorn has some great quotes in the article. Here's one:
"The BOP has a long and sad rich history of finding that those who are sent to their facility are competent to stand trial," Hirschhorn said. "If BOP decides he no longer has frontotemporal lobe dementia and they send him back for sentencing, I will ask the judge to enter an order to give me a sample of the waters the doctors are drinking."
Friday, March 11, 2011
Friday notes (UPDATED)
1. Gotta love 4th Amendment under-garments. Are those body scanners constitutional anyway?
2. Speaking of the 4th Amendment, did the police violate Charlie Sheen's 4th Amendment rights? Sheen tweeted that he the police were respectful. Good thing for them because Sheen knows how to sue.
3. Say it ain't so Snoop.
4. Judge Posner on a lawyer lying about the number of words in his brief: "We add that the appellants’ brief is rambling, and would be more effective if compressed to 14,000 words."
5. I like when Justice Scalia is angry.
AFTERNOON UPDATE:
6. Judge Camp got 30 days in the grey-bar hotel.
7. The 11th Circuit wades into the world of rap videos and whether they should be played in criminal trials. The Court finds plain error but deems it harmless:
Based upon our independent review of the rap video and the totality of the record, we conclude that it was error under Fed. R. Evid. 403 to play this rap video to the jury. We recognize that the video could be construed to discuss Gamory inasmuch as the lyrics referred to JB, a white crib, a Range Rover, drugs and Hush Money and because the artist in the video, Tone Flowa, wore a necklace with a “JB” insignia that was similar to cuff links seized during the search of Gamory’s residence. But the substance of the rap video was heavily prejudicial. The lyrics presented a substantial danger of unfair prejudice because they contained violence, profanity, sex, promiscuity, and misogyny and could reasonably be understood as promoting a violent and unlawful lifestyle. At the same time, the video was not clearly probative of Gamory’s guilt. We cannot ignore the simple fact that Gamory was not in the video. Neither was there any evidence that Gamory authored the lyrics or that the views and values reflected in the video were, in fact, adopted or shared by Gamory.
We are also mindful of the fact that the government introduced the rap video at the end of its case after it had already presented significant evidence that Gamory was JB and he owned Hush Money Entertainment. These facts were not seriously contested at the time the video was introduced and such evidence was therefore cumulative. In short, the probative value of the rap video was minimal at best, and more importantly was substantially outweighed by the video’s unfair prejudice.
Further, there is little doubt that the rap video was inadmissible hearsay. The rap video contained a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). Subject to certain exceptions not applicable to Gamory’s case, the hearsay statements were inadmissible. See Fed. R. Evid. 802–804. In this Court, the government disavowed that the purpose of the video was to prove the truth of the matter asserted, but the District Court record contradicts that assertion. The prosecutor at trial stated as follows:
I believe that the reference of drug money is Hush Money, drug money is Hush Money which is said repeatedly throughout that video is very relevant to the issues for which are being tried here today, that being that the Government contends that Mr. Gamory is a drug dealer.
***
We conclude that the errors relating to the admission of the rap video were harmless.
So the life sentence sticks. (HT:CC)
2. Speaking of the 4th Amendment, did the police violate Charlie Sheen's 4th Amendment rights? Sheen tweeted that he the police were respectful. Good thing for them because Sheen knows how to sue.
3. Say it ain't so Snoop.
4. Judge Posner on a lawyer lying about the number of words in his brief: "We add that the appellants’ brief is rambling, and would be more effective if compressed to 14,000 words."
5. I like when Justice Scalia is angry.
AFTERNOON UPDATE:
6. Judge Camp got 30 days in the grey-bar hotel.
7. The 11th Circuit wades into the world of rap videos and whether they should be played in criminal trials. The Court finds plain error but deems it harmless:
Based upon our independent review of the rap video and the totality of the record, we conclude that it was error under Fed. R. Evid. 403 to play this rap video to the jury. We recognize that the video could be construed to discuss Gamory inasmuch as the lyrics referred to JB, a white crib, a Range Rover, drugs and Hush Money and because the artist in the video, Tone Flowa, wore a necklace with a “JB” insignia that was similar to cuff links seized during the search of Gamory’s residence. But the substance of the rap video was heavily prejudicial. The lyrics presented a substantial danger of unfair prejudice because they contained violence, profanity, sex, promiscuity, and misogyny and could reasonably be understood as promoting a violent and unlawful lifestyle. At the same time, the video was not clearly probative of Gamory’s guilt. We cannot ignore the simple fact that Gamory was not in the video. Neither was there any evidence that Gamory authored the lyrics or that the views and values reflected in the video were, in fact, adopted or shared by Gamory.
We are also mindful of the fact that the government introduced the rap video at the end of its case after it had already presented significant evidence that Gamory was JB and he owned Hush Money Entertainment. These facts were not seriously contested at the time the video was introduced and such evidence was therefore cumulative. In short, the probative value of the rap video was minimal at best, and more importantly was substantially outweighed by the video’s unfair prejudice.
Further, there is little doubt that the rap video was inadmissible hearsay. The rap video contained a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). Subject to certain exceptions not applicable to Gamory’s case, the hearsay statements were inadmissible. See Fed. R. Evid. 802–804. In this Court, the government disavowed that the purpose of the video was to prove the truth of the matter asserted, but the District Court record contradicts that assertion. The prosecutor at trial stated as follows:
I believe that the reference of drug money is Hush Money, drug money is Hush Money which is said repeatedly throughout that video is very relevant to the issues for which are being tried here today, that being that the Government contends that Mr. Gamory is a drug dealer.
***
We conclude that the errors relating to the admission of the rap video were harmless.
So the life sentence sticks. (HT:CC)
Thursday, March 10, 2011
Great Event for the Steven E. Chaykin Fellowship Trust
Steven E. ChaykinIn Memoriam: 1951-2008
President UM Citizens Board 2007-2008
Member, Florida Bar Board of Governors
A Reception and Private Concert by
DEREK TRUCKS AND SUSAN TEDESCHI BAND
When: Saturday, April 9, 2011
6:30 pm -- Cocktail Reception; 8:15 pm -- Concert
Where: Gusman Hall, University of Miami, Coral Gables Campus
All proceeds benefit the Steven E. Chaykin Endowed Fellowship at the University of Miami School of Law To support students involved with the Center for Ethics and Public Service.
Founded in 1996, the UM School of Law's Center for Ethics and Public Service is an interdisciplinary program devoted to the values of ethical judgment, professional responsibility and public service in law and society. Steven Chaykin was a passionate advocate and supporter of the Center, and these are values that were
synonymous with his life.
Steven E. Chaykin Fellowship Trust
169 East Flagler Street, Suite 1200 - Miami, Florida 33131
Contact Susan for details 305-374-7771
email: susan@mandel-law.com
Here's the website for the Fellowship Trust.
Wednesday, March 09, 2011
Judge Gold is Zen
Judge Gold gave a nice talk today about civility in court. But it wasn't the same old talk. His theory is that stress is causing the incivility among both lawyers and judges. And he gave practical tips for trying to get rid of stress. In fact, Judge Gold is starting a group of lawyers and judges to deal with these issues. So what do you all think we can do to decrease the insane stress and pressure that each of us faces every day?
“My wife tells me what to do.”
That was Matt Gulla, the main snitch against the cops in the mortgage fraud trial, when asked whether another co-defendant told him what to do. "The answer momentarily caught [the defense lawyer] off guard, before he drew a titter throughout the courtroom by retorting that wives are the presumed bosses in the spousal pecking order."
A titter, huh?
That reminds me of the cross-examination question of a special agent getting thrown back at a defense lawyer many years ago: Question: "Aren't all agents special agents?" Answer: "My mom doesn't think so."
More from James Burnett, who is covering the case for the Herald:
“Yes” and “I don’t recall” became mantras Tuesday for Gulla, who has already accepted a plea deal that could send him to jail for less than three years, as defense attorneys pushed him repeatedly to admit carrying out the fraudulent transactions.
Gulla admitted that he and partner Rene Rodriguez, who has also accepted a plea deal, persuaded lenders to approve the applications, by making up fake lease agreements for properties the defendants already owned, to try to show non-existent rental income. Many of the fake leases used the names of Gulla’s high school classmates and in-laws. He said he and Rodriguez also stacked the deck for the accused cops by falsely telling lenders the defendants planned to make the investment properties their primary residences. The ultimate goal, Gulla said, was to secure better interest rates and larger loans for the defendants.
Under stiff cross examination by several defense attorneys Tuesday, Gulla explained how they were able to beat the system: Submitting fake documents and documents intentionally incorrectly filled out on the assumption that lenders simply wouldn’t catch on. Perhaps the most important toothless policy that Gulla and Rodriguez used to their advantage was the Stated Income Program, which essentially allowed potential home buyers to get loans with little to no proof of their income and credit worthiness.
But Gulla insisted the defendants were aware of his deceptions to lenders, and sometimes found humor in it.
He had testified Monday that once he bumped into Mittauer at an attorney’s office, where the alleged fraud ring held mortgage closings. When he asked Mittauer why he was there, Gulla testified Mittauer responded that he was just “trying to figure out where I’m moving this week,” an apparent reference to the frequently used “primary residence” lie.
“It was kind of sad, really,” Gulla said. “We both just kind of laughed about it.”
A titter, huh?
That reminds me of the cross-examination question of a special agent getting thrown back at a defense lawyer many years ago: Question: "Aren't all agents special agents?" Answer: "My mom doesn't think so."
More from James Burnett, who is covering the case for the Herald:
“Yes” and “I don’t recall” became mantras Tuesday for Gulla, who has already accepted a plea deal that could send him to jail for less than three years, as defense attorneys pushed him repeatedly to admit carrying out the fraudulent transactions.
Gulla admitted that he and partner Rene Rodriguez, who has also accepted a plea deal, persuaded lenders to approve the applications, by making up fake lease agreements for properties the defendants already owned, to try to show non-existent rental income. Many of the fake leases used the names of Gulla’s high school classmates and in-laws. He said he and Rodriguez also stacked the deck for the accused cops by falsely telling lenders the defendants planned to make the investment properties their primary residences. The ultimate goal, Gulla said, was to secure better interest rates and larger loans for the defendants.
Under stiff cross examination by several defense attorneys Tuesday, Gulla explained how they were able to beat the system: Submitting fake documents and documents intentionally incorrectly filled out on the assumption that lenders simply wouldn’t catch on. Perhaps the most important toothless policy that Gulla and Rodriguez used to their advantage was the Stated Income Program, which essentially allowed potential home buyers to get loans with little to no proof of their income and credit worthiness.
But Gulla insisted the defendants were aware of his deceptions to lenders, and sometimes found humor in it.
He had testified Monday that once he bumped into Mittauer at an attorney’s office, where the alleged fraud ring held mortgage closings. When he asked Mittauer why he was there, Gulla testified Mittauer responded that he was just “trying to figure out where I’m moving this week,” an apparent reference to the frequently used “primary residence” lie.
“It was kind of sad, really,” Gulla said. “We both just kind of laughed about it.”
Monday, March 07, 2011
741 days
That's how long Judge Hurley has been waiting for Kathy Williams to be confirmed and take over his seat. The Sun-Sentinel covers the story:
"One of the great concerns for the court as an institution is that over time we'll have other vacancies, and if the vacancies aren't filled in a timely manner," legal logjams eventually will prevent people from getting their day in court, he said.
With two of his colleagues - U.S. District Judges Alan Gold in January and Paul Huck in July - joining him on what is known as senior status, his concern is more than academic.
The glacial speed of the U.S. Senate's judicial confirmation process, blamed on partisan politics, has hobbled courts throughout the country.
***
Among local attorneys, the conclusion seems obvious: "It's just partisan politics," Val Rodriguez said.
Miami attorney Neal Sonnett, a former president of the American Judicature Society, which focuses on promoting an independent judiciary, agreed. Last year Republican senators blocked the confirmation process, hoping they would seize control of the Senate in the November elections, he said. Now it appears some are intent on stalling nominations until after the 2012 elections, when they hope to put one of their own back in the White House, he said.
So far, attorneys said they haven't seen lengthy delays in getting cases heard and resolved in South Florida. Chief U.S. District Judge Federico Moreno said the district is lucky because seven senior judges still handle some cases. Further, Hurley said, case filings have slowed, in part, because of the economy.
While he credits the 15 full-time judges with moving cases quickly, attorney Ted Babbitt says eventually something has to give.
"The average person is going to get hurt because they're going to have to wait to have their cases heard," he said.
In other news:
--Maybe trial lawyers should try this on game day.
--The sentencing fight over how much time former Judge Jack Camp should get is probation or a whopping 15 days.
"One of the great concerns for the court as an institution is that over time we'll have other vacancies, and if the vacancies aren't filled in a timely manner," legal logjams eventually will prevent people from getting their day in court, he said.
With two of his colleagues - U.S. District Judges Alan Gold in January and Paul Huck in July - joining him on what is known as senior status, his concern is more than academic.
The glacial speed of the U.S. Senate's judicial confirmation process, blamed on partisan politics, has hobbled courts throughout the country.
***
Among local attorneys, the conclusion seems obvious: "It's just partisan politics," Val Rodriguez said.
Miami attorney Neal Sonnett, a former president of the American Judicature Society, which focuses on promoting an independent judiciary, agreed. Last year Republican senators blocked the confirmation process, hoping they would seize control of the Senate in the November elections, he said. Now it appears some are intent on stalling nominations until after the 2012 elections, when they hope to put one of their own back in the White House, he said.
So far, attorneys said they haven't seen lengthy delays in getting cases heard and resolved in South Florida. Chief U.S. District Judge Federico Moreno said the district is lucky because seven senior judges still handle some cases. Further, Hurley said, case filings have slowed, in part, because of the economy.
While he credits the 15 full-time judges with moving cases quickly, attorney Ted Babbitt says eventually something has to give.
"The average person is going to get hurt because they're going to have to wait to have their cases heard," he said.
In other news:
--Maybe trial lawyers should try this on game day.
--The sentencing fight over how much time former Judge Jack Camp should get is probation or a whopping 15 days.
Friday, March 04, 2011
"This appeal is about usurping the role of the jury in a criminal trial byrelying upon racial stereotypes."
That's how Judge Pryor started the opinion in United States v. Almanzar. Also on the panel was Judge Carnes and our very own Judge Seitz.
The rest of the opinion's intro:
The key question presented is whether there is sufficient evidence to support a jury verdict that Araceli Almanzar knowingly possessed with the intent to distribute 500 grams or more of methamphetamine. 21 U.S.C. § 841(a)(1), (b)(1)(A). The United States appeals the judgment of acquittal and conditional grant of a new trial entered in favor of Almanzar after a jury found her guilty of the charged offense. During a traffic stop of a truck loaded with 6,665 grams of methamphetamine in a hidden compartment, Almanzar exercised control over the truck and gave both written and verbal consent to its search, lied to a state trooper about the ownership of the truck and her acquisition of it, presented a phony bill of sale, and appeared to be so nervous as to be on the verge of a “panic attack,” with her hands shaking and her mouth dry. Almanzar later admitted that she had lied to the state trooper because her travel by bus from Dallas to Atlanta with her brother to retrieve the truck from two strangers was “suspicious.” She also admitted that she knew the truck contained “something we were not supposed to have.” Before the district court entered a judgment of acquittal, it stated that “life is different for a Hispanic woman in a male dominated culture, . . . the cultural expectations are different and that Hispanic women frequently, basically, do what their male family members ask them to do without asking lots of questions.” The United States argues that the evidence was sufficient to support the jury’s verdict and the district court applied the wrong standard of review, relied on speculation and impermissible stereotypes, considered information not in the record, and substituted its judgment for that of the jury. The United States also argues that the jury’s verdict was not a miscarriage of justice that would support the grant of a new trial. We agree with both arguments of the United States. We vacate in part, reverse in part, and remand with instructions to reinstate the jury’s verdict and conduct further proceedings consistent with this opinion.
Who got this one right -- the district judge or the 11th Circuit?
The rest of the opinion's intro:
The key question presented is whether there is sufficient evidence to support a jury verdict that Araceli Almanzar knowingly possessed with the intent to distribute 500 grams or more of methamphetamine. 21 U.S.C. § 841(a)(1), (b)(1)(A). The United States appeals the judgment of acquittal and conditional grant of a new trial entered in favor of Almanzar after a jury found her guilty of the charged offense. During a traffic stop of a truck loaded with 6,665 grams of methamphetamine in a hidden compartment, Almanzar exercised control over the truck and gave both written and verbal consent to its search, lied to a state trooper about the ownership of the truck and her acquisition of it, presented a phony bill of sale, and appeared to be so nervous as to be on the verge of a “panic attack,” with her hands shaking and her mouth dry. Almanzar later admitted that she had lied to the state trooper because her travel by bus from Dallas to Atlanta with her brother to retrieve the truck from two strangers was “suspicious.” She also admitted that she knew the truck contained “something we were not supposed to have.” Before the district court entered a judgment of acquittal, it stated that “life is different for a Hispanic woman in a male dominated culture, . . . the cultural expectations are different and that Hispanic women frequently, basically, do what their male family members ask them to do without asking lots of questions.” The United States argues that the evidence was sufficient to support the jury’s verdict and the district court applied the wrong standard of review, relied on speculation and impermissible stereotypes, considered information not in the record, and substituted its judgment for that of the jury. The United States also argues that the jury’s verdict was not a miscarriage of justice that would support the grant of a new trial. We agree with both arguments of the United States. We vacate in part, reverse in part, and remand with instructions to reinstate the jury’s verdict and conduct further proceedings consistent with this opinion.
Who got this one right -- the district judge or the 11th Circuit?
Trustee Marika Tolz charged with $16 million fraud
The South Florida Business Journal has the story about 64-year-old Hollywood bankruptcy trustee Marika Tolz here. She is charged with misappropriating $16 million in court funds and pocketing $2.4 million of it for herself.
The case is set for first appearance before Judge Garber today at 1:30. Luis Perez is prosecuting and Ben Kuehne is defending. The case is assigned to Judge Lenard. Tolz is charged by way of information so it is evident that a deal already has been struck. In fact the SFBJ is reporting that Ben Kuehne says that Tolz “acknowledges her errors and fully anticipates that all funds will be fully reimburse or restitution made.” More:
Kuehne confirmed that Tolz intends to plead guilty.
“She will be accepting full responsibility for her conduct,” he said.
I asked Kuehne if he could say why Tolz started down the path of corruption. The charges against her suggest she used official funds for person expenses beginning in 2003, but the government’s information in the case doesn’t accuse her of living a “lavish lifestyle,” like other recent fraud cases in South Florida.
“At this point offering any factual description would only be viewed as trying to explain away what happened,” Kuehne said. “She is not attempting to offer excuses.”
The case is set for first appearance before Judge Garber today at 1:30. Luis Perez is prosecuting and Ben Kuehne is defending. The case is assigned to Judge Lenard. Tolz is charged by way of information so it is evident that a deal already has been struck. In fact the SFBJ is reporting that Ben Kuehne says that Tolz “acknowledges her errors and fully anticipates that all funds will be fully reimburse or restitution made.” More:
Kuehne confirmed that Tolz intends to plead guilty.
“She will be accepting full responsibility for her conduct,” he said.
I asked Kuehne if he could say why Tolz started down the path of corruption. The charges against her suggest she used official funds for person expenses beginning in 2003, but the government’s information in the case doesn’t accuse her of living a “lavish lifestyle,” like other recent fraud cases in South Florida.
“At this point offering any factual description would only be viewed as trying to explain away what happened,” Kuehne said. “She is not attempting to offer excuses.”
Wednesday, March 02, 2011
Justice Alito doesn't like the First Amendment
He was the lone dissenter in the crush video case. And now he is the lone dissenter in the funeral protester case:
The Supreme Court ruled Wednesday that the First Amendment protects fundamentalist church members who mount anti-gay protests outside military funerals, despite the pain they cause grieving families.
The court voted 8-1 in favor of the Westboro Baptist Church of Topeka, Kan. The decision upheld an appeals court ruling that threw out a $5 million judgment to the father of a dead Marine who sued church members after they picketed his son's funeral.
Chief Justice John Roberts wrote the opinion for the court. Justice Samuel Alito dissented.
Roberts said free speech rights in the First Amendment shield the funeral protesters, noting that they obeyed police directions and were 1,000 feet from the church.
"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and - as it did here - inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker," Roberts said. "As a nation we have chosen a different course - to protect even hurtful speech on public issues to ensure that we do not stifle public debate."
Alito strongly disagreed. "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he said.
Maybe the title to the post is too harsh... Justice Alito did side with corporate First Amendment rights.
In other SCOTUS news, the Court again reiterated that judges weren't tied to the guidelines, even on resentencing cases. In Pepper v. United States, Justice Sotomayor explained that a resentencing court could take into account post-sentencing rehabilitation. Doug Berman has more at his blog, but it is worth pointing out that the Court made sure to reiterate to district courts that there are times that the guidelines are based on "wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted."
In other news, give your thoughts on Magistrate Judge Hopkins.
The Supreme Court ruled Wednesday that the First Amendment protects fundamentalist church members who mount anti-gay protests outside military funerals, despite the pain they cause grieving families.
The court voted 8-1 in favor of the Westboro Baptist Church of Topeka, Kan. The decision upheld an appeals court ruling that threw out a $5 million judgment to the father of a dead Marine who sued church members after they picketed his son's funeral.
Chief Justice John Roberts wrote the opinion for the court. Justice Samuel Alito dissented.
Roberts said free speech rights in the First Amendment shield the funeral protesters, noting that they obeyed police directions and were 1,000 feet from the church.
"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and - as it did here - inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker," Roberts said. "As a nation we have chosen a different course - to protect even hurtful speech on public issues to ensure that we do not stifle public debate."
Alito strongly disagreed. "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he said.
Maybe the title to the post is too harsh... Justice Alito did side with corporate First Amendment rights.
In other SCOTUS news, the Court again reiterated that judges weren't tied to the guidelines, even on resentencing cases. In Pepper v. United States, Justice Sotomayor explained that a resentencing court could take into account post-sentencing rehabilitation. Doug Berman has more at his blog, but it is worth pointing out that the Court made sure to reiterate to district courts that there are times that the guidelines are based on "wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted."
In other news, give your thoughts on Magistrate Judge Hopkins.
Cop/Mortgage fraud trial starts
The estimated 5 week trial is in front of Judge Cohn in Ft. Lauderdale. The Herald is covering it here:
The fraud trial of six law enforcement officers accused of helping to run a multi-million dollar home loan scam got underway Tuesday with opening statements in U.S. District Court in Fort Lauderdale.
According to federal indictments filed in July, John Velez, Daryl Radziwon, Casey Mittauer, Joseph DeRosa, all current or former Plantation Police officers, along with Lauderhill Police officer Joseph LeGrasta and FBI Special Agent Robert DePriest, of Plantation, fraudulently secured $16.5 million in mortgage loans in a house-flipping scheme during the housing boom several years ago.
The men are charged with offenses, ranging from conspiracy to mail and wire fraud, to obstruction of justice, and making false statements. All but the false statements charge carry penalties of up to 20 years imprisonment. The latter charge comes with as much as five years of prison time.
Is the case about greed or simple cops?
Federal prosecutors argued that the defendants were willing participants in the plan and had to have known Rodriguez and Gulla were forging documents in their names. Prosecutors also suggested the defendants were motivated by earnings they couldn’t achieve through real estate investments made with their own money and their own credit worthiness.
But defense attorneys opened their cases by arguing their clients were good cops and simple investors, too naive about the workings of fast-paced real estate financing to know their personal information was being used to defraud lenders.
Judge Cohn has to try the case twice:
At the conclusion of this trial, a second trial will start for Joseph Guaracino, his brother Dennis Guaracino, also a former Plantation Police officer, and attorneys Steve Orchard and Stephen Stoll, who allegedly helped seal the fraudulent deals by handling the loan closings.
Some of members of the fraud ring had to be tried separately because they have made incriminating statements about other defendants, and prosecutors believe those statements could tarnish possible convictions and bring about mistrials.
The fraud trial of six law enforcement officers accused of helping to run a multi-million dollar home loan scam got underway Tuesday with opening statements in U.S. District Court in Fort Lauderdale.
According to federal indictments filed in July, John Velez, Daryl Radziwon, Casey Mittauer, Joseph DeRosa, all current or former Plantation Police officers, along with Lauderhill Police officer Joseph LeGrasta and FBI Special Agent Robert DePriest, of Plantation, fraudulently secured $16.5 million in mortgage loans in a house-flipping scheme during the housing boom several years ago.
The men are charged with offenses, ranging from conspiracy to mail and wire fraud, to obstruction of justice, and making false statements. All but the false statements charge carry penalties of up to 20 years imprisonment. The latter charge comes with as much as five years of prison time.
Is the case about greed or simple cops?
Federal prosecutors argued that the defendants were willing participants in the plan and had to have known Rodriguez and Gulla were forging documents in their names. Prosecutors also suggested the defendants were motivated by earnings they couldn’t achieve through real estate investments made with their own money and their own credit worthiness.
But defense attorneys opened their cases by arguing their clients were good cops and simple investors, too naive about the workings of fast-paced real estate financing to know their personal information was being used to defraud lenders.
Judge Cohn has to try the case twice:
At the conclusion of this trial, a second trial will start for Joseph Guaracino, his brother Dennis Guaracino, also a former Plantation Police officer, and attorneys Steve Orchard and Stephen Stoll, who allegedly helped seal the fraudulent deals by handling the loan closings.
Some of members of the fraud ring had to be tried separately because they have made incriminating statements about other defendants, and prosecutors believe those statements could tarnish possible convictions and bring about mistrials.
Monday, February 28, 2011
Justice Scalia issues strong dissent in favor of criminal defendant
Here is his intro in Michigan v. Bryant:
Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps as an intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort. Because I continue to adhere to the Confrontation Clause that the Peoplea dopted, as described in Crawford v. Washington, 541
U. S. 36 (2004), I dissent.
The conclusion is strong too:
Judicial decisions, like the Constitution itself, are nothing more than “parchment barriers,” 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges’ policy preferences. Today’s opinion falls far short of living up to that obligation—short on the facts, and short on the law. For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.
Justice Ginsburg also dissented in a short opinion.
Justice Sotomayor, a former prosecutor, wrote the majority opinion, which held:
[The witness] Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a “primary purpose . . . to enable police assistance to meet an on-going emergency.” Davis, 547 U. S., at 822. Therefore, their admission at Bryant’s trial did not violate the Confrontation Clause.
Yikes. I stick to what I have said before that Justice Scalia is the criminal defendant's best friend on this Court. I know that's not saying much, but it's true.
Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps as an intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort. Because I continue to adhere to the Confrontation Clause that the Peoplea dopted, as described in Crawford v. Washington, 541
U. S. 36 (2004), I dissent.
The conclusion is strong too:
Judicial decisions, like the Constitution itself, are nothing more than “parchment barriers,” 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges’ policy preferences. Today’s opinion falls far short of living up to that obligation—short on the facts, and short on the law. For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.
Justice Ginsburg also dissented in a short opinion.
Justice Sotomayor, a former prosecutor, wrote the majority opinion, which held:
[The witness] Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a “primary purpose . . . to enable police assistance to meet an on-going emergency.” Davis, 547 U. S., at 822. Therefore, their admission at Bryant’s trial did not violate the Confrontation Clause.
Yikes. I stick to what I have said before that Justice Scalia is the criminal defendant's best friend on this Court. I know that's not saying much, but it's true.
Clarence Thomas is pissed
Check him out here, via Politico:
From the article:
Supreme Court Justice Clarence Thomas – his impartiality under attack from liberals because of his attendance at a meeting of conservative donors sponsored by the Koch brothers and his wife’s tea party activism – struck a defiant tone in a Saturday night speech in Charlottesville, Va., telling a friendly audience that he and his wife “believe in the same things” and “are focused on defending liberty.”
Delivering the keynote speech at an annual symposium for conservative law students, Thomas spoke in vague, but ominous, terms about the direction of the country and urged his listeners to “redouble your efforts to learn about our country so that you’re in a position to defend it.”
He also lashed out at his critics, without naming them, asserting they “seem bent on undermining” the High Court as an institution. Such criticism, Thomas warned, could erode the ability of American citizens to fend off threats to their way of life.
“You all are going to be, unfortunately, the recipients of the fallout from that – that there’s going to be a day when you need these institutions to be credible and to be fully functioning to protect your liberties,” he said, according to a partial recording of the speech provided to POLITICO by someone who was at the meeting.
“And that’s long after I’m gone, and that could be either a short or a long time, but you’re younger, and it’s still going to be a necessity to protect the liberties that you enjoy now in this country.”
Meantime, the Supremes have decided to take up an arbitration case from our District. More from Pacenti:
A scam targeting law firms is the nexus of a Miami case heading to the U.S. Supreme Court to determine when businesses waive their right to arbitration in consumer litigation.
The U.S. Supreme Court has taken a liking to arbitration and arbitration cases, often siding with businesses that make binding arbitration part of their contracts in the interest of judicial efficiency.
From the article:
Supreme Court Justice Clarence Thomas – his impartiality under attack from liberals because of his attendance at a meeting of conservative donors sponsored by the Koch brothers and his wife’s tea party activism – struck a defiant tone in a Saturday night speech in Charlottesville, Va., telling a friendly audience that he and his wife “believe in the same things” and “are focused on defending liberty.”
Delivering the keynote speech at an annual symposium for conservative law students, Thomas spoke in vague, but ominous, terms about the direction of the country and urged his listeners to “redouble your efforts to learn about our country so that you’re in a position to defend it.”
He also lashed out at his critics, without naming them, asserting they “seem bent on undermining” the High Court as an institution. Such criticism, Thomas warned, could erode the ability of American citizens to fend off threats to their way of life.
“You all are going to be, unfortunately, the recipients of the fallout from that – that there’s going to be a day when you need these institutions to be credible and to be fully functioning to protect your liberties,” he said, according to a partial recording of the speech provided to POLITICO by someone who was at the meeting.
“And that’s long after I’m gone, and that could be either a short or a long time, but you’re younger, and it’s still going to be a necessity to protect the liberties that you enjoy now in this country.”
Meantime, the Supremes have decided to take up an arbitration case from our District. More from Pacenti:
A scam targeting law firms is the nexus of a Miami case heading to the U.S. Supreme Court to determine when businesses waive their right to arbitration in consumer litigation.
The U.S. Supreme Court has taken a liking to arbitration and arbitration cases, often siding with businesses that make binding arbitration part of their contracts in the interest of judicial efficiency.
Saturday, February 26, 2011
Housewives and The Boys
Jay Weaver explores the connection between the Miami Housewives and Willy & Sal:
Long before they made their debuts in The Real Housewives of Miami this week , they played bit parts in a drama with a lot more reality: the life and times of legendary cocaine cowboys Willy and Sal.
Three of the new Bravo show’s trophy wives – Alexia Echevarria, Marysol Patton and Lea Black — shared six degrees of separation with Willy Falcon and Sal Magluta, dubbed “The Boys” during the real Miami Vice era.
Echevarria, 43, was once married to a codefendant who pleaded guilty and cooperated as a government witness in the 1990s drug-trafficking prosecution of Falcon and Magluta.
Patton, 44, was the girlfriend of a convicted, big-time cocaine distributor who also was a cooperating witness in the marquee federal case.
And Black, 56, is married to the famed lawyer Roy Black, who was paid millions to represent Magluta.
On Friday, Roy Black chuckled when a reporter brought to his attention the connections between the reality TV show – the latest incarnation of Bravo’s Real Housewives series — and the Willy-and-Sal case: “It’s so Miami, that’s for sure,” he said.
Long before they made their debuts in The Real Housewives of Miami this week , they played bit parts in a drama with a lot more reality: the life and times of legendary cocaine cowboys Willy and Sal.
Three of the new Bravo show’s trophy wives – Alexia Echevarria, Marysol Patton and Lea Black — shared six degrees of separation with Willy Falcon and Sal Magluta, dubbed “The Boys” during the real Miami Vice era.
Echevarria, 43, was once married to a codefendant who pleaded guilty and cooperated as a government witness in the 1990s drug-trafficking prosecution of Falcon and Magluta.
Patton, 44, was the girlfriend of a convicted, big-time cocaine distributor who also was a cooperating witness in the marquee federal case.
And Black, 56, is married to the famed lawyer Roy Black, who was paid millions to represent Magluta.
On Friday, Roy Black chuckled when a reporter brought to his attention the connections between the reality TV show – the latest incarnation of Bravo’s Real Housewives series — and the Willy-and-Sal case: “It’s so Miami, that’s for sure,” he said.
Thursday, February 24, 2011
Rogue snitches
It should come as no surprise that snitches sometimes go rogue. And today, John Pacenti has an article saying that Scott Rothstein may have gone on a frolic and detour:
Scott Rothstein started out in Plantation as an employment lawyer representing police officers in internal affairs investigations and disputes with the department.
Facing arrest in a $1.2 billion Ponzi scheme, Rothstein again turned to his former Plantation police clients — only this time as potential targets for an FBI sting, according to court documents and defense lawyers in a $16 million mortgage fraud case.
"It was great speaking with you. I think I can help you with your problem," Rothstein said on accused ringleader Joseph Guaracino's voice mail. "Maybe we can hook up for a little Monday Night Football tonight for a little while. Catch a martini, smoke a cigar and catch up on shit."
Defense attorneys want to talk to Rothstein about his weeks spent as a confidential informant in November 2009 shortly before his arrest. They say federal prosecutors have told them the disgraced law firm chairman didn't have authority to contact his former clients or target seven current and former law enforcement officers charged in the mortgage fraud case last June.
But Miami criminal defense attorneys Michael D. Walsh and Jordan Lewin — who represent Guaracino and his brother, Dennis, respectively — say only Rothstein can confirm whether he went rogue while working as an FBI informant.
Scott Rothstein started out in Plantation as an employment lawyer representing police officers in internal affairs investigations and disputes with the department.
Facing arrest in a $1.2 billion Ponzi scheme, Rothstein again turned to his former Plantation police clients — only this time as potential targets for an FBI sting, according to court documents and defense lawyers in a $16 million mortgage fraud case.
"It was great speaking with you. I think I can help you with your problem," Rothstein said on accused ringleader Joseph Guaracino's voice mail. "Maybe we can hook up for a little Monday Night Football tonight for a little while. Catch a martini, smoke a cigar and catch up on shit."
Defense attorneys want to talk to Rothstein about his weeks spent as a confidential informant in November 2009 shortly before his arrest. They say federal prosecutors have told them the disgraced law firm chairman didn't have authority to contact his former clients or target seven current and former law enforcement officers charged in the mortgage fraud case last June.
But Miami criminal defense attorneys Michael D. Walsh and Jordan Lewin — who represent Guaracino and his brother, Dennis, respectively — say only Rothstein can confirm whether he went rogue while working as an FBI informant.
Thursday news and notes
1. DOMA ban now invalid. Via ScotusBlog:
With the approval of President Obama, U.S. Attorney General Eric H. Holder, Jr., notified Congress on Wednesday that the federal government will now argue in court that it is unconstitutional to withhold all federal benefits from same-sex couples who are legally married under their own state’s law. While the government will continue to enforce that part of the Defense of Marriage Act of 1996, Holder said a new evaluation has convinced officials that it violates the Constitution’s guarantee of legal equality. The new position will be advanced first in two new cases pending in federal courts in New York and Connecticut, but also will be put forth in other DOMA cases elsewhere. (A Justice Department news release discussing the new development is here.)
2. Roberts Court says suits against Mazda for bad seatbelts can go forward. Via Jan Crawford:
One of the big raps on the Roberts Court is that it's too sympathetic to Big Business. Today, we got a decision that counters that storyline.
Ever since the Supreme Court made a conservative turn in 2006, critics have pointed to rulings that shut the courthouse door to the little guy--especially the little guy who's trying to sue a giant corporation, such as a manufacturer of medical devices or drugs. In those cases, the Court has said product liability lawsuits are barred under federal law. The rationale is that since federal regulators had approved the devices and the drugs in the first place, the companies aren't liable for defective designs.
What critics don't mention is that some of the liberal justices have been on board with some of those decisions favoring the corporations. And today, the Court showed once again that simplistic narratives aren't always accurate. In a unanimous decision, the justices paved the way for a lawsuit against Mazda Motor Corp., rejecting the company's argument that it should not be subjected to lawsuits over its failure to install shoulder belts in the back seats of its minivans.
3. Pill Mill Mania. Via the Miami Herald:
Narcotics agents across South Florida descended on more than a dozen pain clinics Wednesday, arresting at least 20 people — including five doctors — in the most dramatic effort yet to curb the region’s booming business of illegal prescription narcotics.
The raids from Miami to West Palm Beach were the culmination of a two-year investigation by a task force of federal, state and local investigators, an operation dubbed “Operation Pill Nation.” Undercover agents were dispatched to storefront pain clinics to buy potent painkillers such as oxycodone without any medical justification for the pills, investigators said.
Broward Sheriff Al Lamberti called Wednesday’s raids a new front in a “new kind of drug war”: A war on the massive trafficking of prescription drugs through pain clinics operating with the outward appearance of legitimacy — though inside the clinics, doctors hand out pills without taking medical exams, and armed guards patrol the lobbies.
“Nowadays, the drug dealers are operating out of strip malls,” Lamberti said at a press conference announcing the busts.
Here's the indictment. I have a lot to say about these cases and the new war on drugs. I will post more on this later.
With the approval of President Obama, U.S. Attorney General Eric H. Holder, Jr., notified Congress on Wednesday that the federal government will now argue in court that it is unconstitutional to withhold all federal benefits from same-sex couples who are legally married under their own state’s law. While the government will continue to enforce that part of the Defense of Marriage Act of 1996, Holder said a new evaluation has convinced officials that it violates the Constitution’s guarantee of legal equality. The new position will be advanced first in two new cases pending in federal courts in New York and Connecticut, but also will be put forth in other DOMA cases elsewhere. (A Justice Department news release discussing the new development is here.)
2. Roberts Court says suits against Mazda for bad seatbelts can go forward. Via Jan Crawford:
One of the big raps on the Roberts Court is that it's too sympathetic to Big Business. Today, we got a decision that counters that storyline.
Ever since the Supreme Court made a conservative turn in 2006, critics have pointed to rulings that shut the courthouse door to the little guy--especially the little guy who's trying to sue a giant corporation, such as a manufacturer of medical devices or drugs. In those cases, the Court has said product liability lawsuits are barred under federal law. The rationale is that since federal regulators had approved the devices and the drugs in the first place, the companies aren't liable for defective designs.
What critics don't mention is that some of the liberal justices have been on board with some of those decisions favoring the corporations. And today, the Court showed once again that simplistic narratives aren't always accurate. In a unanimous decision, the justices paved the way for a lawsuit against Mazda Motor Corp., rejecting the company's argument that it should not be subjected to lawsuits over its failure to install shoulder belts in the back seats of its minivans.
3. Pill Mill Mania. Via the Miami Herald:
Narcotics agents across South Florida descended on more than a dozen pain clinics Wednesday, arresting at least 20 people — including five doctors — in the most dramatic effort yet to curb the region’s booming business of illegal prescription narcotics.
The raids from Miami to West Palm Beach were the culmination of a two-year investigation by a task force of federal, state and local investigators, an operation dubbed “Operation Pill Nation.” Undercover agents were dispatched to storefront pain clinics to buy potent painkillers such as oxycodone without any medical justification for the pills, investigators said.
Broward Sheriff Al Lamberti called Wednesday’s raids a new front in a “new kind of drug war”: A war on the massive trafficking of prescription drugs through pain clinics operating with the outward appearance of legitimacy — though inside the clinics, doctors hand out pills without taking medical exams, and armed guards patrol the lobbies.
“Nowadays, the drug dealers are operating out of strip malls,” Lamberti said at a press conference announcing the busts.
Here's the indictment. I have a lot to say about these cases and the new war on drugs. I will post more on this later.
Tuesday, February 22, 2011
Bob Scola tapped to fill Judge Huck's seat
Although it's not official yet, a number of reliable tipsters have emailed me that Circuit Judge Robert Scola Jr. is being vetted to fill Judge Huck's seat. Remember that Scola, along with Jerald Bagley and John O'Sullivan made the JNC's cut to three. Now, the White House is apparently doing its background on Judge Scola. Congratulations!
Judge Scola should have no issues fitting in -- he's close friends with many of the federal judges, including Chief Judge Moreno and Judge Huck. From his bio page:
■Bachelor of Arts, Brown University, 1977
■JD, Boston College School of Law, 1980
■Honors - Cum Laude
■Admitted to Florida Bar, 1980
■Circuit Court Judge, 1995
■Previous Division - Circuit/Criminal
■Private Practice - Criminal Defense, 1986-1995
■Assistant State Attorney, Deputy Chief Assistant/Major Crimes, 1980-1986
Scola has an excellent reputation on the state bench, and he is a great addition to the federal bench. Now let's see if we can get Kathy Williams and Bob Scola confirmed before the end of the year. Plus, there is still one more seat to fill -- Judge Gold's seat. The JNC has not yet solicited applications for that slot.
Monday, February 21, 2011
Sunday, February 20, 2011
Back to blogging
Thanks Jeff Marcus for a very entertaining week of guest blogging.
In taking the bridge back this weekend, I see that the Herald interviewed Lea Black (Roy Black's wife) for her upcoming role in Real Housewives of Miami. She looks great and here's one funny exchange:
Are your friends and family ready for the scrutiny?
I didn’t tell anybody that I did the show until I finished it, and then I denied it up until Bravo said that they had announced it. So I’m getting a lot of people mad at me. I guess I was shy about it. My husband’s law partner, I think he’s ready to call 911 for oxygen.
Friday, February 18, 2011
What Do You Wear to a "Charting Party"?
No, I don't have big weekend plans. And it's a slow pre-holiday weekend news day. So, let's talk healthcare and the Medicare "charting party" case unsealed this week in the SDFLA. DOJ's Medicare Strikeforce has indicted 3 doctors and 17 others, in what the government has dubbed the "nation's largest mental health racket," alleging that unneeded group therapy sessions and sleep studies were being routinely provided at several community mental health centers. Judge Seitz, whose courtroom was my second home as a young AUSA, has drawn the case. The charges stem from an ongoing probe into Miami-based American Therapeutics Corp. Last October, the company and four executives were charged with defrauding Medicare out of more than $200 million dollars. The government claims that medical records were altered at "charting parties" as part of the scheme. [Ok, it's not the go-go "Cocaine Cowboys" days.]
Having spent a lot of time defending and prosecuting health care cases, this case stands out to me for a few reasons. First, doctors have been arrested. You don't see doctors charged very frequently and the stakes could not be higher for them. A conviction, in almost all likelihood, will cost them their medical license and livelihood (not to mention debarment from Medicare). Second, the government is going after medical services provided to patients that are alleged to be unnecessary. Such medical necessity cases focus on medical judgment and proving criminal intent on the part of the physician can be difficult. In the case of mental health services like group therapy, where diagnoses are not black and white, it is even harder. As a defense lawyer, those are facts I like.
Thursday, February 17, 2011
SDS, It's Not.
Above the Law has a funny article about our beloved UM School of Law (again). From Cairo to Coral Gables, revolution is in the air. Apparently, there are stirrings (no doubt inspired by Tahir Square) of a student movement to adopt a "Student Bill of Rights." What rights you wonder, since most of the really good ones (the ones people are dying for in Bahrain and elsewhere) already are covered in our real Bill of Rights. What noble selfless cause has gripped the student body politic? Well, fairer grading of course and less "professor autonomy" in the classroom (the obvious problem in higher education). There are 12 "amendments" posted at ATL but here are my 3 favorite with suggestions in italics:
1) The right of students to be given an unbiased legal education shall not be infringed. [And enforced by a well regulated militia. Amend. II]
2) The right of students to take exams that proportionally cover the material discussed in class and presented in the required reading shall not be contravened. [Or Else Cruel and Unusual Punishment Shall be Inflicted on the Professor. Amend. VIII]
[To reduce professor autonomy in the classroom, all professors shall blow a foghorn in class before lecturing on any tested material.]
3) The right of a student to receive a clear explanation from the professor as to how the student received their grade on any graded assignment. [And then petition the Administration for a redress of grievances. Amend. I]
Hey, I'm all for student energy but let's breathe a little. Yes, UM, like a lot of law schools, has a large student class in a depressed job market. So, I have a lot of sympathy for those hard-working students knee-deep in loan debt stressing about their future. Grades matter. I get that.
But, here's the teachable moment. Law students learning how to succeed under a professor's rules in the classroom is great training for . . . being a lawyer. We practitioners have our own professors (they're called Judges) and they lecture us on courtroom practice, not the other way around.
Wednesday, February 16, 2011
Barry Bonds On Deck; Clemens, Armstrong to Follow?
New developments in the Barry Bonds case now set for trial next month centering around Bond's childhood friend, trainer, and alleged PED pal Greg Anderson. You may recall that Anderson spent a year in the pokey for refusing to testify against Bonds before the grand jury. And Anderson, literally the strong silent type, has not budged since despite a promise from the bench that he'll be jailed for the duration of the trial. All of which posed a major "empty chair" problem for prosecutors or did it? In a surprise, Judge Susan Illston ruled yesterday that portions of an audiotape between Anderson and Bonds' former business partner in which Anderson discussed giving Bonds "the cream" and "the clear" were admissible despite the hearsay nature of the evidence. Judge Illston also has recently suggested that she will tell the jury "something" about why Anderson is not a witness at trial without explicitly mentioning his refusal to testify. Hard to say anything in that spot that isn't downright misleading or prejudicial to Bonds (hmm, "The dog ate our witness"?). So, it looks like an 0-2 count for Barry with Clemens due up later this year. You'd think at some point these guys would listen to some good legal advice and shut up. It's the testifying, stupid. The substance itself, juicing without a prescription, is not the stuff a federal case makes. Everyone knows they're users not traffickers.
Which brings us to today's "Retirement 2.0" announcement by Lance Armstrong, a decision he attributed in part to his "off field" issues (can you say Jeff Novitzky). Rumors have been swirling since the fall about potentially "imminent" charges in the federal investigation. But I am hard-pressed to see a viable charge absent any perjury. Defrauding the U.S. Postal Service out of sponsorship monies? C'mon. Trafficking PEDs to racing teammates? A stretch. Plus, how do you even charge a procedure like blood spinning?
Tuesday, February 15, 2011
Justice Breyer at the DCBA
Great DCBA Event this afternoon at the Hyatt where Justice Stephen Breyer spoke to a packed audience about his new book, "Making Our Democracy Work: A Judge's View," published last September. In the book, Justice Breyer lays out his theory of "pragmatic" jurisprudence, an intellectual counterweight to Justice Scalia's textualist approach. At the talk, Justice Breyer actually credited conversations with Justice Scalia for inspiring him to write the book (now those sessions would be pay-per-view worthy). Justice Breyer was on his game and quite funny at times. You can see why he was known as a great law school professor back in the day. For those that missed or enjoyed like I did, here's a link to a transcript of a Terry Gross ("Fresh Air") interview with Justice Breyer from last September on the book and more.
Monday, February 14, 2011
Yo Ho Ho
You know you've been a bad boy when your lawyer agrees to a low-end sentence of 27 years. Abduwali Muse, the sole survivor of a four-person Somali pirate gang that hijacked the Maersk Alabama in April 2009, will be sentenced Wed. in the SDNY. Muse and his cronies kidnapped 53 people in a five-week stretch before a daring Navy Seal raid freed the hostages. The plea deal avoided a conviction for federal piracy which carries a mandatory life sentence. Muse was somewhere between 16 and 18 years of age at the time of the spree. Prosecutors are arguing for the high-end range which is just shy of 34 years. The NYT has coverage here.My Kingdom for a Home
Ok, it's not quite Shakespeare but the SDFLA criminal trial of former Lancer hedge fund impresario, Michael Lauer, is inching closer to DDay and love is most definitely NOT in the air. They're up to docket entry #917, which is worth the read, and Judge Jordan (who seems to get more than his fair share of big paper cases) is umpiring. It's been a rough go for Lauer who had his assets frozen in a 2003 SEC enforcement action and his Greenwich home auctioned off by the IRS. The asset freeze also cost him go-to lawyer, Norman Moscowitz (always on my speed-dial), but luckily for Lauer the Court qualified him as indigent and appointed an FPD team ably led by Chief Assistant Michael Caruso.
Lauer, now living in NYC, is trying to get the government to pay for his housing during the expected two-to-three month trial in Miami slated to begin at the end of the month or else transfer venue to SDNY. As part of his down-and-out pitch, Lauer pointed to the total asset freeze and ongoing eviction proceedings against him for failure to pay for his NYC apartment rental. Which got the government digging into gumshoe landlord-tenant terrain. In its papers, the government paints Lauer as a closet John Le Carre fan who obtained the said apartment by posing as one "Misha" or "Michal Lauer" with an identity card from, of all places, "the Republic of Poland." The pleading also contains this deadpan scholarly footnote from AUSA Harry Schimkat who gets in the Valentine's mood: According to one internet dictionary, 'Misha' is a Russian nickname for Mikhail. It also means little bear or teddy bear. If the government can prove this up, Lauer may be feeling like this when all is said and done.
Lauer, now living in NYC, is trying to get the government to pay for his housing during the expected two-to-three month trial in Miami slated to begin at the end of the month or else transfer venue to SDNY. As part of his down-and-out pitch, Lauer pointed to the total asset freeze and ongoing eviction proceedings against him for failure to pay for his NYC apartment rental. Which got the government digging into gumshoe landlord-tenant terrain. In its papers, the government paints Lauer as a closet John Le Carre fan who obtained the said apartment by posing as one "Misha" or "Michal Lauer" with an identity card from, of all places, "the Republic of Poland." The pleading also contains this deadpan scholarly footnote from AUSA Harry Schimkat who gets in the Valentine's mood: According to one internet dictionary, 'Misha' is a Russian nickname for Mikhail. It also means little bear or teddy bear. If the government can prove this up, Lauer may be feeling like this when all is said and done.
But beyond the bear humor, there are real issues raised with pre-trial asset freezes. It's been more than 20 years since a 5-4 Supreme Court found, in a drug trafficking case, that depriving a criminal defendant of his ability to pay for a private attorney through an asset freeze does not violate the 6th Amendment. The majority's reasoning was that "a robbery suspect, for example, has no Sixth Amendment right to use funds he has stolen from a bank to retain an attorney to defend him if he is apprehended. The money, though in his possession, is not rightfully his." Of course, the argument presupposes guilt, prior to adjudication, and is a particularly awkward fit in many white collar cases where a defendant earns income from a legitimate financial sector job but stands accused of some type of workplace fraud. In the civil context, a defendant is not even entitled to appointed counsel leaving some once-wealthy defendants to have to go pro se against the SEC and federal regulators. And though in today's climate there is little public sympathy for those accused of financial fraud, the truth is these complex heavy-document cases require hefty resources to adequately defend. To have the Lauers of the world swallow up large amounts of taxpayer-financed indigent defense resources has never made much sense to me. Here's hoping the Supremes revisit this case law in the white collar context soon.
And then there's the added question of trial detention. To detain a defendant, who has complied with bond conditions and has been found to not be a flight risk, during a lengthy out-of-state trial because he cannot afford a hotel, seems unfairly punitive. Well, there's certainly plenty of local foreclosure vacancy. Maybe Judge Jordan will get creative.
Stay tuned . . .
Happy V Day!
The (much) less famous Marcus (but more importantly better Beth Am basketball player) in the house covering for the Big D. I haven't won a grammy or anything but I'm feeling pretty good this morning. At the shiny controls of the Blog mothership, my spiritual journey from prosecutor to defense lawyer is now complete. And the week already is a personal success because I learned the important stuff like inserting pics. Time to put the toys down and figure out something to write for you all. Feel free to email me noteworthy items this week at jeffmarcus@bellsouth.net.
Saturday, February 12, 2011
Welcome a new guest blogger
Starting Monday, I'm excited to announce that we'll have Jeff Marcus guest blogging for the week.
Enjoy!
Enjoy!
Friday, February 11, 2011
Friday
Last night was an unbelievable event for the FBA. Congrats to Brett Barfield for the most well-attended event in recent history.
The District just updated its website, but now there is a push to have all the district courts conform to a template. Not sure why this is what our government should be spending money on. Does it matter if our District's website is the same as the District of Oregon's website? This example of inconsistency doesn't really persuade me:
The home page for the U.S. District Court for Alabama's middle district cheerily offers a "Kids' Corner" where "kids of all ages" can find out more about the federal court system. But if you go to the court's home page for information on filing a judicial misconduct complaint, you'll only find it if you click on the "judges information" tab.
Nebraska's federal district court site, on the other hand, has a tab specifically labeled "judicial misconduct and disability" on its home page. But its "kids' corner" is pretty well hidden under a "community/educational outreach" tab.
Those randomly picked examples of inconsistency between federal trial court Web sites may become a thing of the past because of a recently created "website toolbox" that went out to all 94 district courts late last month.
In other news, Mr. Melendez-Diaz of Supreme Court fame, just won an acquittal. From the Boston Globe:
A Jamaica Plain man has been acquitted in a retrial of a cocaine trafficking case that went to the US Supreme Court and resulted in a landmark decision affecting evidence in criminal trials around the country.
Melendez-Diaz’s appeal of his 2004 cocaine trafficking conviction led to a ruling by the Supreme Court in 2009 that the US Constitution’s Sixth Amendment guarantees defendants in criminal cases the right to confront forensic experts in court.
The ruling invalidated a Massachusetts law that allowed prosecutors to present forensic experts’ reports as evidence without giving defendants a chance to cross-examine them.
During Melendez-Diaz’s retrial, prosecutors followed the new regime laid out by the high court. On Wednesday, they called to the stand a chemist from the state Department of Public Health who testified that the substance allegedly found in the back seat of a police cruiser with Melendez-Diaz and two other men in 2001 had tested positive for cocaine.
Margaret Fox, defense lawyer for Melendez-Diaz, said the verdict was “an enormous relief.’’
“It was a case that really seemed to be about guilt by association,’’ she said. “He’s very thankful he was given a second trial and that the jury got it right.’’
The District just updated its website, but now there is a push to have all the district courts conform to a template. Not sure why this is what our government should be spending money on. Does it matter if our District's website is the same as the District of Oregon's website? This example of inconsistency doesn't really persuade me:
The home page for the U.S. District Court for Alabama's middle district cheerily offers a "Kids' Corner" where "kids of all ages" can find out more about the federal court system. But if you go to the court's home page for information on filing a judicial misconduct complaint, you'll only find it if you click on the "judges information" tab.
Nebraska's federal district court site, on the other hand, has a tab specifically labeled "judicial misconduct and disability" on its home page. But its "kids' corner" is pretty well hidden under a "community/educational outreach" tab.
Those randomly picked examples of inconsistency between federal trial court Web sites may become a thing of the past because of a recently created "website toolbox" that went out to all 94 district courts late last month.
In other news, Mr. Melendez-Diaz of Supreme Court fame, just won an acquittal. From the Boston Globe:
A Jamaica Plain man has been acquitted in a retrial of a cocaine trafficking case that went to the US Supreme Court and resulted in a landmark decision affecting evidence in criminal trials around the country.
Melendez-Diaz’s appeal of his 2004 cocaine trafficking conviction led to a ruling by the Supreme Court in 2009 that the US Constitution’s Sixth Amendment guarantees defendants in criminal cases the right to confront forensic experts in court.
The ruling invalidated a Massachusetts law that allowed prosecutors to present forensic experts’ reports as evidence without giving defendants a chance to cross-examine them.
During Melendez-Diaz’s retrial, prosecutors followed the new regime laid out by the high court. On Wednesday, they called to the stand a chemist from the state Department of Public Health who testified that the substance allegedly found in the back seat of a police cruiser with Melendez-Diaz and two other men in 2001 had tested positive for cocaine.
Margaret Fox, defense lawyer for Melendez-Diaz, said the verdict was “an enormous relief.’’
“It was a case that really seemed to be about guilt by association,’’ she said. “He’s very thankful he was given a second trial and that the jury got it right.’’
Thursday, February 10, 2011
“This was a murder case. His vacation schedule trumped everything. You don’t make decisions based on [when you will be] sipping piña coladas.”
That was Alan Dershowitz, criticizing a judge (during an appellate oral argument) for forcing a defense lawyer to give a closing so that the judge could get to his vacation.
Dersh did give props to the appellate court: Afterwards, Dershowitz said, "The court was extremely well prepared. ... No one can predict the outcome of an appeal."
Dersh did give props to the appellate court: Afterwards, Dershowitz said, "The court was extremely well prepared. ... No one can predict the outcome of an appeal."
Wednesday, February 09, 2011
Omar is coming
Does it count as a win in the 11th Circuit if you get a reversal because the district judge didn't staple his findings on the defendant's objections to the PSI?
What else is going on?
Professor Ogeltree has come up with the coolest law school class ever: “Race and Justice — The Wire.” The Wire has to be a top 5 show of all time, no?
What else is going on?
Professor Ogeltree has come up with the coolest law school class ever: “Race and Justice — The Wire.” The Wire has to be a top 5 show of all time, no?
Tuesday, February 08, 2011
Not a good way to start an opinion if you are a criminal defendant
This appeal involves the reasonableness of the sentence for the robber of a post office who thrust his revolver close to the face of a postal clerk, demanded money, and shouted a racial slur and obscenities and had a history of violent criminal behavior. Harold Leroy Housley Jr. challenges his sentence of 120 months of imprisonment, which is 42 months above the guidelines range of 63 to 78 months, for robbery of money belonging to the United States. 18 U.S.C. § 2114(a).
Odds on whether the next sentence in the opinion is "We affirm" or "We reverse"?
Odds on whether the next sentence in the opinion is "We affirm" or "We reverse"?
Monday, February 07, 2011
Friday, February 04, 2011
“Notice of Appeal Rule 4(a) of Federal Rules of Appellate Procedure. Request Permission to Appeal My 17 Years of Wrongful Conviction"
It's almost impossible for a criminal defendant to win in the 11th Circuit. But the pro se prisoner who filed the above pleading in the court of appeals did just that. From the opinion's intro:
Luis Camejo-Rodriguez seeks relief from his 1995 guilty plea to various cocaine and firearm offenses. In the instant appeal, he argues that the document he filed on September 11, 2009, entitled “Notice of Appeal Rule 4(a) of Federal Rules of Appellate Procedure. Request Permission to Appeal My 17 Years of Wrongful Conviction,” is an application to this Court for an order authorizing him to file a second or successive habeas petition. We conclude that Camejo-Rodriguez does not need such an order because the district court failed to properly notify him of the consequences of re-characterizing an earlier motion as his first § 2255 habeas petition, as required by Castro v. United States, 540 U.S. 375, 383, 124 S. Ct. 786,
792 (2003). Therefore, Camejo-Rodriguez is entitled to file a habeas petition that is not subject to the restrictions placed on second or successive petitions.
UPDATE--Congrats to AFPD Janice Bergman who was appointed by the 11th to represent Mr. Camejo-Rodriguez.
Luis Camejo-Rodriguez seeks relief from his 1995 guilty plea to various cocaine and firearm offenses. In the instant appeal, he argues that the document he filed on September 11, 2009, entitled “Notice of Appeal Rule 4(a) of Federal Rules of Appellate Procedure. Request Permission to Appeal My 17 Years of Wrongful Conviction,” is an application to this Court for an order authorizing him to file a second or successive habeas petition. We conclude that Camejo-Rodriguez does not need such an order because the district court failed to properly notify him of the consequences of re-characterizing an earlier motion as his first § 2255 habeas petition, as required by Castro v. United States, 540 U.S. 375, 383, 124 S. Ct. 786,
792 (2003). Therefore, Camejo-Rodriguez is entitled to file a habeas petition that is not subject to the restrictions placed on second or successive petitions.
UPDATE--Congrats to AFPD Janice Bergman who was appointed by the 11th to represent Mr. Camejo-Rodriguez.
Interesting post about D.C. Circuit nominee
Before Kathy Williams' confirmation hearing, the judiciary committee heard from D.C. Circuit nominee Caitlin Halligan. There's an interesting post from the BLT on how that hearing went. Here's the intro:
Caitlin Halligan followed an often-used script today during her confirmation hearing for the U.S. Court of Appeals for the D.C. Circuit, telling a Senate committee that if confirmed, she would defer to Supreme Court precedent and to the Framers' intent.
But her hour-long testimony made clear that Republicans are laying the ground for possible opposition to her nomination. They questioned Halligan, a longtime New York appellate lawyer, about statements she’s made or signed on to, and they renewed a long-running debate about whether the influential D.C. Circuit has more judges than it needs.
If confirmed, Halligan, 44, would quickly be on the short list for the next Democratic nominee for the U.S. Supreme Court. Four sitting justices are alumni of the D.C. Circuit, and she is President Barack Obama’s first nominee for the D.C. Circuit.
Sen. Chuck Grassley (R-Iowa), the ranking Republican on the Senate Judiciary Committee, warned it might not be easy for Halligan to get there.
“This committee has multiple precedents establishing a heightened level of scrutiny given to nominees for the Court of Appeals of the D.C. Circuit,” Grassley said at the opening of Halligan’s hearing. He listed President George W. Bush’s six nominees for the court — only four of whom were confirmed. “All had a difficult and lengthy confirmation process. This included delays, filibusters, multiple hearings and other forms of obstruction,” he said.
Democrats responded by lauding Halligan’s credentials, including as New York’s state solicitor general and as head of the appellate practice at Weil, Gotshal & Manges. Early in her career, she clerked for former D.C. Circuit Chief Judge Patricia Wald and for Justice Stephen Breyer. She’s now general counsel in the Manhattan district attorney’s office.
“The remarkable thing about Caitlin’s experience is her unique depth of knowledge about the practicalities of government,” said Sen. Chuck Schumer (D-N.Y.).
Under questioning, Halligan, pictured above, kept her answers short and emphasized judicial modesty. She called the Constitution an “enduring” document and echoed conservative jurists’ language about originalism. “If faced with a constitutional question, a judge has to look to the text and attempt to understand the original intent behind those words,” she said.
Caitlin Halligan followed an often-used script today during her confirmation hearing for the U.S. Court of Appeals for the D.C. Circuit, telling a Senate committee that if confirmed, she would defer to Supreme Court precedent and to the Framers' intent.
But her hour-long testimony made clear that Republicans are laying the ground for possible opposition to her nomination. They questioned Halligan, a longtime New York appellate lawyer, about statements she’s made or signed on to, and they renewed a long-running debate about whether the influential D.C. Circuit has more judges than it needs.
If confirmed, Halligan, 44, would quickly be on the short list for the next Democratic nominee for the U.S. Supreme Court. Four sitting justices are alumni of the D.C. Circuit, and she is President Barack Obama’s first nominee for the D.C. Circuit.
Sen. Chuck Grassley (R-Iowa), the ranking Republican on the Senate Judiciary Committee, warned it might not be easy for Halligan to get there.
“This committee has multiple precedents establishing a heightened level of scrutiny given to nominees for the Court of Appeals of the D.C. Circuit,” Grassley said at the opening of Halligan’s hearing. He listed President George W. Bush’s six nominees for the court — only four of whom were confirmed. “All had a difficult and lengthy confirmation process. This included delays, filibusters, multiple hearings and other forms of obstruction,” he said.
Democrats responded by lauding Halligan’s credentials, including as New York’s state solicitor general and as head of the appellate practice at Weil, Gotshal & Manges. Early in her career, she clerked for former D.C. Circuit Chief Judge Patricia Wald and for Justice Stephen Breyer. She’s now general counsel in the Manhattan district attorney’s office.
“The remarkable thing about Caitlin’s experience is her unique depth of knowledge about the practicalities of government,” said Sen. Chuck Schumer (D-N.Y.).
Under questioning, Halligan, pictured above, kept her answers short and emphasized judicial modesty. She called the Constitution an “enduring” document and echoed conservative jurists’ language about originalism. “If faced with a constitutional question, a judge has to look to the text and attempt to understand the original intent behind those words,” she said.
Wednesday, February 02, 2011
Live blogging Kathy Williams' confirmation hearing
Coincidentally, I'm here in DC on a case and am lucky enough to be able to attend Kathy Williams' confirmation hearing, which is about to start. Below is her with Senators Nelson and Rubio.
2:10 Senator Coons is introducing everyone.
2:12 Senator Grassley is reading a statement. Fast reader. He says Kathy's seat has been vacant for two years. That's bad. He also says Clinton's people got confirmed faster. But he says it is time to confirm judges.
2:17 Sen. Nelson: bipartisan effort to move vacancies. Urges speedy consideration of Ms. Williams. Tradition in Florida w JNC to screen and interview. Then suggest 3 names and senators can tell WH if any objections or recommendations. It has always worked in Florida because broad support of legal and non-legal communities.
Now he talks about Kathy's background. Nice remarks about her.
2:22 Sen. Rubio: Kathy went to Duke and "more impressively" UM. More background and awards. Respect of peers. Shout out to CJA committee.
2:25 Sen. Schumer then discusses other nominees. They took Kathy first because Sen. Rubio and Nelson had "pressing business" in the Senate. Schumer said Nominee Halligan won 2 and lost 2 cases in Supreme Court, which shows she is balanced. Grassley quips that she has a better record than the 9th.
3:12 Still on the DC Circuit nominee.
3:21 Okay, on to Kathy! She thanks committee and Florida senators. Also former Florida senators. Thanks family with her. Colleagues. Office peeps. Says her office is back home "multitasking." "The love of her life Mike Mullaney." Her dad, William Williams. Still watching her. Beautiful intro remarks.
Sen. Coons asks KMW about her judicial philosophy: Fair and impartial arbiter. Treat everyone w dignity and respect. Listen well to all parties. Apply law to achieve just resolution.
Coons now asks how being a PD got her ready to be a judge: entire career in fed courts. Will help her substantively and in administration of justice.
Grassley: quotes her speech before federal bar in 2005 re death penalty and foreign law. Kathy says no to using foreign law in applying constitution and says she was trying to provoke thought.
Grassley: Speech before ACLU in 2003 re secret proceedings and evidence. And another speech in 2008 re indefinite detention. Kathy responds with the law from Supreme Court. Also says she would have to recuse in a terrorism case because of Mike Mullaney being chief of anti-terrorism division. Grassley says what about in 20 years. Kathy says she will apply the law.
Coons: what deference would you give to sentencing guidelines? K: start w accurate calculations to guidelines. Would do that in sentencing defendants.
3:50 done! Kathy did awesome!
2:10 Senator Coons is introducing everyone.
2:12 Senator Grassley is reading a statement. Fast reader. He says Kathy's seat has been vacant for two years. That's bad. He also says Clinton's people got confirmed faster. But he says it is time to confirm judges.
2:17 Sen. Nelson: bipartisan effort to move vacancies. Urges speedy consideration of Ms. Williams. Tradition in Florida w JNC to screen and interview. Then suggest 3 names and senators can tell WH if any objections or recommendations. It has always worked in Florida because broad support of legal and non-legal communities.
Now he talks about Kathy's background. Nice remarks about her.
2:22 Sen. Rubio: Kathy went to Duke and "more impressively" UM. More background and awards. Respect of peers. Shout out to CJA committee.
2:25 Sen. Schumer then discusses other nominees. They took Kathy first because Sen. Rubio and Nelson had "pressing business" in the Senate. Schumer said Nominee Halligan won 2 and lost 2 cases in Supreme Court, which shows she is balanced. Grassley quips that she has a better record than the 9th.
3:12 Still on the DC Circuit nominee.
3:21 Okay, on to Kathy! She thanks committee and Florida senators. Also former Florida senators. Thanks family with her. Colleagues. Office peeps. Says her office is back home "multitasking." "The love of her life Mike Mullaney." Her dad, William Williams. Still watching her. Beautiful intro remarks.
Sen. Coons asks KMW about her judicial philosophy: Fair and impartial arbiter. Treat everyone w dignity and respect. Listen well to all parties. Apply law to achieve just resolution.
Coons now asks how being a PD got her ready to be a judge: entire career in fed courts. Will help her substantively and in administration of justice.
Grassley: quotes her speech before federal bar in 2005 re death penalty and foreign law. Kathy says no to using foreign law in applying constitution and says she was trying to provoke thought.
Grassley: Speech before ACLU in 2003 re secret proceedings and evidence. And another speech in 2008 re indefinite detention. Kathy responds with the law from Supreme Court. Also says she would have to recuse in a terrorism case because of Mike Mullaney being chief of anti-terrorism division. Grassley says what about in 20 years. Kathy says she will apply the law.
Coons: what deference would you give to sentencing guidelines? K: start w accurate calculations to guidelines. Would do that in sentencing defendants.
3:50 done! Kathy did awesome!
Tuesday, February 01, 2011
Great events
This Thursday, February 3, from 11:30-1:30 in Courtroom 13-3, the SDFLA will be having an unveiling ceremony for a Black History Exhibit called: "Milestones: A Legal Odyssey."
Later this month there will be a civil rights panel discussion and reception on February 23 from 4-6 pm in the jury room (5th floor), moderated by Professor Charles Ogletree.
You can RSVP at 305-523-5905.
Good stuff.
Later this month there will be a civil rights panel discussion and reception on February 23 from 4-6 pm in the jury room (5th floor), moderated by Professor Charles Ogletree.
You can RSVP at 305-523-5905.
Good stuff.
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