Episode Two, sponsored by Black’s Law

Roy Black has published a genuinely stirring account of the leader and inspiration that was and is Judge Phillip Hubbart. The essay is poignant and thought-provoking, aspiring to mirror the dedication to excellence personified by its subject. Highly recommended reading, in short.

As a public service, I will encapsulate a significantly more prolix work evincing perhaps not the same commitment to quality as Mr. Black’s. Let’s look just at the majority’s opening line in the en banc Gilbert decision:

Ezell Gilbert, a federal prisoner, wants to have an error of law in the calculation of his sentence corrected based upon a Supreme Court decision interpreting the sentencing guidelines, even though that decision was issued eleven years after he was sentenced.

Truly pregnant: There was an error. At sentencing. No one doubts that. Hell, the Supreme Court said so. But this guy, this “federal prisoner”, wants to have it fixed now.He wants us to correct a sentence eleven years later. Well, where’s it going to stop? How many more of he are there?

All that follows is structured in the predictable way: “He” is a hapless, unrepetent, common criminal. The opinion preempts sympathy by pointing out that, even if he has a point, his sentence might well be the same—then graciously allows that it might be less. Ultimately, it erects “finality of judgment” as the bulwark shielding civilized and free society from such incorrigibles, even taking liberties with Justice Powell, having already violated Justice Holmes.

The short answer to all of it: It is just the sentence, not the judgment, being challenged. Finality is not implicated. Once that dawns, lines like this seem ludicrous: “A federal prisoner’s right to have errors in the calculation of his sentence corrected is not without limits.” No? Well, why not? You can’t just apply the new Supreme Court case and reset the sentence? What’s the big deal? It’s not like anyone’s asking for a trial or anything.

What must have driven Judge Hill to write the scathing dissent D.O.M. quoted at some length the other day is this reduction—this cheapening—of the judicial function from guardian of fairness to administrator of burdens. To claim that there is a higher value than ensuring that Americans are not capriciously incarcerated and that value is finality “of judgment” when really you mean “of penalty” is to abandon excellence as an aspiration. (And they know it; by violently distorting Holmes in ¶ 1, the majority seeks to cloak its abdication with excellence-by-association.) The fright for the future and lack of faith in our institutions that this abandonment symptomizes is so commonplace now that it escapes our notice—until we contrapose it with an image like Roy Black has painted with his essay.

Yesterday at the courthouse

The SEC got a split verdict yesterday in a civil case tried to a jury before Magistrate Judge McAliley. The amended complaint alleged that four people bought Neff Rental stock after receiving inside information that the company was to be acquired.

In December, two of the original defendants entered into settlements, signed by Judge Jordan, that included permanent injunctions against future violations of law. The SEC loves its permanent injunctions because they effectively reduce the burden of proof down to probable cause. But here’s a little nugget of law for defense attorneys and district judges (and future district judges): injunctions against violations of law are neither routine nor automatic. See S.E.C. v. Globus Group, 117 F.Supp.2d 1345 (S.D.Fla. 2000) (Jordan, J.).

The defendant found not liable yesterday was Dr. Sebastian de la Maza, 71-year-old father-in-law to then-Neff CEO and Miami Law graduate Juan Carlos Mas. The theory of defense de la Maza’s attorneys, James Sallah and Jeff Cox, put forth was that de la Maza had followed the stock for years.

And experts get knowledge how exactly?

A new Eleventh Circuit opinion is out today, and it’s the sort of thing that makes you hope for a writ of cert. The government pulled a guy out of prison and had him testify to the jury about how mortgage fraud works. Seriously, that’s just what happened:

Key, a former real estate attorney who was serving time in prison, was called as a witness for the government, and he testified about mortgage fraud.

Let’s pause and reflect for a minute on the fact that we live in a time where federal judges do not even blink when federal prosecutors do this sort of thing; it’s perfectly commonplace.

Okay, ready for the holding now? Here it is:

The district court did not err in permitting Key to testify as a lay witness. Because the part of Key’s testimony that was elicited by the government was based on his own personal knowledge of mortgage fraud, which he had acquired through his experience as a former real estate closing attorney who had engaged in fraudulent transactions of that nature, he did not have to be qualified as an expert under Fed. R. Evid. 702.

What? How do you possibly square that holding with the rule itself which specifically says that experts are people who gain specialized knowledge through “experience, training, or education”? Has no one on the Eleventh Circuit ever seen My Cousin Vinny?

Something about a civil case

Magistrate Judge Torres entered judgment for the defendants, some music-industry personalities I’ve vaguely heard of but couldn’t pick out of a line-up, in a copyright case brought by some Finns:

Torres on Tuesday approved a motion by Miami-based Timbaland, whose real name is Timothy Mosley, and Nelly Furtado, for summary judgment and refused to allow the Finnish group to seek an overdue copyright and amend its complaint.

Can you make it sound even more boring?

"We're very happy," said GrayRobinson partner Karen Stetson, who represents Timbaland. "We thought from the beginning that this issue was an important one and followed the plain language of the federal Copyright Act. But the other side was trying to get away from the plain language of the Copyright Act."

Can you make it seem utterly crazy?

Stetson, whose co-counsel was Jonathan Gaines from GrayRobinson, said her client spent hundreds of thousands of dollars on discovery and litigation.

Speaking of the music industry and people you’ve never heard of, P.J. Pacifico, whose band used to play in New Haven way back in the day, has a new album out (available on iTunes) that I highly recommend. (Check out his entire oeuvre. You’ll thank me later, as Monk used to say.)

Truthiness at law

D.O.M. has been much pressed for time of late, so I’m going to look at some dissents he’s noted and ultimately make good on his promise to revisit Gilbert. These opinions present a problem I can’t tackle in a single post, so I have to proceed episodically. I want to suggest that what Stephen Colbert dubbed truthiness is spreading through the law like a nasty virus and that, whatever harm truthiness inflicts when spewed by politicians and propagandists, its employ in opinions may be even worse. And the dissenters are sounding the alarm.

D.O.M.’s quote from Judge Wilson’s Duke v. Allen dissent shows that the majority's affirmance of the state courts’ facts is indefensible. “But,” as Justice Scalia recently wrote, “reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand.” Far more grave is this claim by the Duke majority: defense counsel’s saying “‘let the record reflect that the district attorney pointed straight at the defendant when he said that,’ is just an oral motion made by a lawyer; it does not establish the fact of a gesture having been made.”

Leaves you dumbstruck, right? The law now considers a plain statement of fact—let the record reflect—to be a motion. If you’re the dissenting judge, what do you say to that? How do you explain how a record is made to someone who seemingly doesn’t grasp it from the word “record” itself? My first thought was that one could cite a few of the thousands of reported cases where a judge uses the phrase (and maybe for emphasis allude to the scene in My Cousin Vinny where the judge says to the court reporter, “Let the record reflect that counsel is holding up two fingers.”). A judge would hardly make a motion to himself (or to a court reporter), ergo the phrase must not signal a motion.

Judge Wilson chose another tack. In addition to a couple of cases in which counsel used the phrase, he cited evidence gurus Mueller & Kirkpatrick for the proposition that a statement for the record is no motion. But he didn’t cite M&K’s authoritative five-volume Federal Evidence treatise. No, he cited page 17 of their law school textbook, the one I use to teach evidence to UM’s 2Ls and 3Ls. Maybe I’m seeing more than what’s there, but I think that when, in a published case, one judge disputes another judge’s holding with reference to a law school textbook, there’s a veiled message there.

Rick Bascuas to guest blog

Readers of the blog always love when Professor Bascuas is posting. You'll have him all of next week. Enjoy!

WARNING!

Sisters of the Bar, beware:

The central stairs of the new Franklin County Common Pleas Courthouse seem almost to float up from the ground floor, suspended in a foyer of light and glass.
However, the aesthetic appeal of the stairway has an unfortunate side-effect in a building where judges sentence sex offenders: People can see up a woman's skirt from the busy walkway under the stairs.
"If you wear dresses, you're on notice that you might want to take the elevator, as I will be doing," said Judge Julie M. Lynch, who wears dresses exclusively to work.
Although it's probably best not to advertise the issue for fear of abuse, people partial to skirts, dresses and kilts have a right to know about the risk, Lynch said.

Justice Scalia calls other justices insane

I just love it. From his dissent today in Sykes v. United States:

JUSTICE SCALIA, dissenting.
As the Court's opinion acknowledges, this case is “an-other in a series,” ante, at 1. More specifically, it is an at-tempt to clarify, for the fourth time since 2007, whatdistinguishes “violent felonies” under the residual clause of the Armed Career Criminal Act (ACCA), 18 U. S. C.§924(e)(2)(B)(ii), from other crimes. See James v. United States, 550 U. S. 192 (2007); Begay v. United States, 553
U. S. 137 (2008); Chambers v. United States, 555 U. S. 122 (2009). We try to include an ACCA residual-clause case inabout every second or third volume of the United States Reports.

As was perhaps predictable, instead of producing a clar-ification of the Delphic residual clause, today’s opinion produces a fourth ad hoc judgment that will sow further confusion. Insanity, it has been said, is doing the samething over and over again, but expecting different results. Four times is enough. We should admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness. See Kolender v. Lawson, 461 U. S. 352, 357 (1983).
***
We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step — indeed, I think it would be highly responsible — to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.

One year anniversary of Scott Rothstein's plea

Yup, it's been a whole year since he pled guilty.

Rule 35 requires prosecutors to file a motion to reduce a defendant's sentence based on cooperation withing one year. Well, they just got it in, filing the motion to reduce the 50 year sentence yesterday. The government didn't ask for a specific amount of time off of the sentence. So we will have to wait to see what kind of reduction Rothstein gets.

Any predictions?

Quick news and notes for out of town cases

1. Barzee and Pettus are still waiting for a verdict.

2. Another out of town trial -- Matt Menchel is fighting the feds in DC. He is crossing the case agent. From Law360:

Attorneys for four military equipment company executives accused of trying to bribe Gabon government ministers to win contracts sought to undercut the government’s chief informant in the case in Washington federal court Tuesday, alluding to his past appetites for drugs and prostitutes.

Federal Bureau of Investigations agent Christopher Forvour, the lead case agent for the FBI’s sting operation, admitted to Matthew Menchel, attorney for defendant Pankesh Patel, that the FBI knew about informant Richard Bistrong’s previous habits of using cocaine and frequenting prostitutes, which predated his time as an informant.

3. Miamian Nevin Shapiro got 20 years in New Jersey for a billion dollar Ponzi scheme.

4. Health care is being argued in Atlanta today.

"It just works."

Apple announced its upcoming iCloud service yesterday. This is great news for those of you who live on or frequent Miami Beach. Soon, when the police smash your phone to avoid public scrutiny and accountability, you won't have to preserve the evidence by sticking the SIM card in your mouth. Your iPhone will automatically upload the gunplay and mayhem and send it to your iPad and MacBook. We live in wondrous times.

Cert denied for Wesley Snipes

Via AP:

The high court refused Monday to hear an appeal from Snipes, convicted in 2008 on three misdemeanor counts of willful failure to file income tax returns.

Snipes started a three-year term in a federal minimum security prison in December. He has appeared in dozens of films, from "White Men Can't Jump" and "Demolition Man" in the early 1990s to the blockbuster Blade trilogy.

Snipes wanted his trial held in New York City, where he says he lived, but the government brought charges against him in Florida, where Snipes held a driver's license. The lower courts refused to let him have an evidentiary hearing on this issue.

Your Monday Morning moment of Zen

John Edwards indicted by former AUSA in Miami

Jeff Tsai was one of the five lawyers who signed the 19-page indictment against Edwards. Tsai is now at the public integrity section at DOJ in DC.

I like Jeff, and he was one of best dressed lawyers in the USAO, but I think the indictment is one of the weakest I have ever read. It will be interesting to see how it develops. I'm happy that Edwards is fighting it and that he didn't plead.

Barzee, Pettus still waiting for verdict

The jury in the SDNY insider trading case is apparently sending all kinds of notes, asking for definitions of terms and other itmes. Bill Barzee and "Country Dave" Pettus have to just sit and wait and it's not easy. Fridays are always the toughest day waiting for a verdict. You don't want the jury to feel rushed, but the weekends are always difficult for not guilty verdicts. Here's the latest article, which basically says the jury is deliberating.

You wanna be a federal judge? Read this. "The Path to the Federal Bench" sets out the basic process. Here's my favorite part:

Finally, a word to the wise: Before you are nominated to the federal
bench, you will be subjected to an FBI background check. Have you
ever committed a crime? Failed to pay your taxes? Been embroiled in a
scandal? Staffers from the Department of Justice will likely read
everything you have ever written and will interview members of your
community to determine if you are an appropriate candidate for the
bench. In evaluating your qualifications, subject yourself to The “New
York Times test,” i.e., if anything in your past would embarrass you or—
perhaps more importantly—the president or your home state senators
if it showed up on the front page of The New York Times, then perhaps
pursuing a federal judgeship is not for you.

Judge Zloch sentences Alan Mendelsohn to 4 years (UPDATED)

The prosecutors had asked for 2 years and Mendelsohn's lawyers asked for probation.

From the Herald:

“Most notably, the corruption in this case strikes at the heart of the Florida Legislature,’’ Zloch said. “Dr. Mendelsohn actually facilitated a corrupt democratic process in the Florida Legislature.’’
***
Zloch expressed disgust over the “pay to play" world of Tallahassee politics that Mendelsohn described at his plea hearing in December.

Mendelsohn, initially indicted in September 2009 on 32 fraud charges and later on five tax offenses, had been facing trial in January.

His plea was the ending to a high-profile influence-peddling investigation that stretched from South Florida to Tallahassee. It started when the self-made power broker bragged about his purported connections to then-Gov. Charlie Crist and his inner circle, saying he could get them to kill legislation and investigations that would hurt a Fort Lauderdale viatical insurance business called Mutual Benefits Corp.

UPDATE -- I've mentioned previously that I don't think judges should be permitted to sentence someone above the plea agreement's terms (see, e.g., here, here and here). If the parties in an adversary system agreed that the defendant in this case deserved somewhere between probation and 2 years, a judge should respect that contract or allow the parties to withdraw from it.

It doesn't appear that DOJ really fought for the terms of the agreement. From Curt Anderson's article:

"He isn't accepting responsibility when he says, 'Everybody was doing it,'" Butler said. "That's just not going to cut it."

More from Zloch:

"It is totally inappropriate for the court to give what would amount to a slap on the wrist," Zloch said. "The corruption of public officials, those who took an oath to uphold the law, leads to contempt for the law."
***

Mendelsohn himself apologized profusely, but also said he was proud of health-related state legislation he said he pushed for and noted that since his 2009 indictment "words just can't describe the devastation" suffered by his family and business.

"Who was responsible for this devastation?" Zloch asked.

"I was," Mendelsohn replied. "I am really, really, really, truly sorry."

"Your honor, on behalf of Zvi Goffer, we'll rest."

That was Bill Barzee today in the big insider trading case in the SDNY immediately after the government rested. From Reuters:

A former Galleon Group hedge fund trader did not put on a defense at his insider trading trial, and the judge said the jury will hear closing arguments in the case on Wednesday.

A defense attorney for 34-year-old Zvi Goffer, who once worked at Raj Rajaratnam's Galleon Group and two other trading firms, told the Manhattan federal court judge on Tuesday he would not present evidence or call witnesses to defend his client.

***

The trial is in its third week. It started days after a jury in the same courthouse convicted Rajaratnam of 14 counts of conspiracy and securities fraud in the biggest Wall Street insider trading trial in years.

Go Heat and Go Bill Barzee!

Welcome to Miami

The shooting on South Beach this weekend was caught on tape:

Four Rothstein associates charged

They are: Howard Kusnick (a lawyer), Stephen Caputi (IT department), William Corte (IT department), and Curtis Renie (person who posed as a plaintiff in fake cases). They are all charged by information, so it appears that they have cut deals and are cooperating.

They drew Judges Marra (Kusnick), Dimitroleas (the two IT guys), and Zloch (Renie).

From the USAO press release:

The Information against Howard Kusnick alleges that, while an attorney at RRA, Kusnick engaged in a scheme to defraud two clients of RRA by authoring a letter purporting to settle pending litigation in the clients’ favor. In fact, however, no such litigation had been instituted and no such settlement existed. Rather, the purpose of the letter was to lull the clients into believing that RRA was pursuing litigation on their behalf when, in fact, the clients’ funds had been used to pay off earlier investors and to further the investment fraud scheme.

The Information against Stephen Caputi alleges that Caputi at times acted as both a purported banker and plaintiff during meetings with potential investors. For example, the Information alleges that Caputi, posing as an official from TD Bank, provided investors with fraudulent bank statements that reflected purported balances of trust accounts at TD Bank. In this way, Caputi lulled the investors into believing that the account balances were sufficient to fund their investments. On another occasion, Caputi posed as a plaintiff during a meeting with potential investors who had requested to meet with plaintiffs. Caputi pretended to be a plaintiff who had purportedly executed a $10,000,000 settlement agreement, thus raising potential investors’ confidence in the deal.

According to the Information against Curtis Renie and William Corte, these defendants worked at RRA’s IT Department as chief of information technology and as a document management specialist, respectively. Renie and Corte created a fictitious web page copying the legitimate web page of TD Bank. At Rothstein’s direction, the defendants posted false account balances on the fictitious web page to make it appear as if the accounts were well-funded. On one occasion, the defendants modified the phony TD Bank web site to reflect that RRA held between $300 million and $1.1 billion on deposit at TD Bank. In fact, however, no such funds were in the accounts. The false account balances were shown to investors to induce them to invest into the fraudulent investment scheme.

Finale week

American Idol, Dancing with the Stars, Oprah...

Oh, you came here for law stuff. Fine:

1. Judge Dubina's daughter doesn't like the health care law. Here is Martha Dubina Roby's Facebook page. She is a freshman congresswoman from Alabama. Oral argument is in Atlanta on June 8, and the panel is Judges Dubina, Marcus and Hull.








2. Goodwin Liu has given up his bid to be on the 9th Circuit. The Senate should be ashamed.

3. Alan Mendelsohn wants a short sentence.

4. The 11th Circuit debates what "he" means in a prosecutor's closing argument. From Judge Wilson's dissent:

Attempting to bolster the credibility of Mark Duke’s cooperating codefendant, the prosecutor argued the following to the jury:

[Duke’s co-defendant] told the truth, ladies and gentlemen,
and here is how we know it, there’s a witness that you
heard from but he didn’t come in here and talk to you from
this witness stand. After he shot, stabbed, and cut the throat
of Randy Duke, he took Randy Duke’s blood with him
throughout that house.

In doing so, the prosecutor impermissibly commented on Duke’s decision not to testify, in violation of his Fifth Amendment right against self-incrimination. The majority is willing to accept the State’s explanation that the “he” the prosecutor was referring to was not really Mark Duke but was Randy Duke’s “blood.” It is willing to accept that the “blood” is a male “witness” that the jury “heard from.” It is willing to accept that the prosecutor used “2 he” in one sentence to refer to blood and “he” in the next sentence to refer to Mark Duke, without ever indicating any possible change of subject. This makes no sense because it would mean that Randy Duke’s blood “shot, stabbed, and cut the throat of Randy Duke” and that Randy Duke’s blood took itself “throughout the house.” The majority accepts this story even though the State could not consistently or coherently articulate such an argument in the moments after the comment was made, and despite the fact that the prosecutor who spoke it did not dispute that he was referring to Duke. I respectfully part company with my colleagues in accepting this logic.

I do not see how the jury could have possibly interpreted this statement as anything but a comment on Mark Duke’s failure to testify. Accordingly, I dissent.

News & Notes

1. Jeff Weiner has a new book. Check out this very useful resource -- Federal Criminal Rules & Codes plus. It's got everything a federal criminal lawyers needs in one handy place.

2. John Edwards may get charged. Amazing to me that we are wasting our scarce prosecutorial resources going after Edwards for being a scumbag.

3. Jared Loughner is incompetent. The arrest photo made that pretty clear, no?

4. How Appealing has this info about the panel for Obamacare:

An anonymous source reports that the three-judge panel will consist of Chief Judge Joel F. Dubina and Circuit Judges Frank M. Hull and Stanley Marcus.
Judges Hull and Marcus were both appointed to the Eleventh Circuit by President Clinton. Chief Judge Dubina was appointed to the Eleventh Circuit by the first President Bush. And don't let the fact that all three judges have seemingly male first names fool you, because Judge Hull is female.

Judge Reinhardt quotes 12 Angry Men...

...in this case. HT: MC. Good stuff:

Scene One

Juror #8: I just want to talk.

Juror #7: Well, what’s there to talk about? Eleven
men in here think he’s guilty. No one had
to think twice about it except you.

Juror #10: I want to ask you something: do you
believe his story?

Juror #8: I don’t know whether I believe it or not
— maybe I don’t.

Juror #7: So how come you vote not guilty?

Juror #8: Well, there were eleven votes for guilty.
It’s not easy to raise my hand and send
a boy off to die without talking about it
first. . . . We’re talking about somebody’s
life here. We can’t decide in five
minutes. Supposin’ we’re wrong.

Scene Two

Juror #6: I said . . . this is a very important case
and we should be very convinced that if
the defendant is found guilty that it is
beyond a reasonable doubt. . . .

Foreman: We have spent some time now trying to
understand the reasonable basis for his
doubt, and I personally did not yet
understand it . . . . I would say that twothirds
of the jurors have tried to persuade
— have actively tried to persuade . . .
him that his current view is incorrect.
. . .

Juror #4: Well, I guess he believes from the evidence
that he’s seen that there hasn’t
been sufficient proof. . . .

Juror #5: I think the question may have been
raised: “Do you have a political agenda?”
I think [it] might have been in the
heat of the argument, because it does get
heated back and forth from a bunch of
different people. It may have been said.
. . .

Juror #9: Well, he said this is a serious thing, and
I don’t really feel that there is enough
cause for — or something to that effect.
. . . What he said was, “I wouldn’t want
to take anyone’s freedom away, unless,”
you know, “I was sure that certain things
took place.” . . . .

The first passage above is dialogue from the classic Academy Award-winning 1957 film, Twelve Angry Men, in which Henry Fonda plays a holdout juror who, over two tense hours, convinces his eleven peers that the defendant in a murder trial
should be acquitted. The second excerpt comes from the transcript of proceedings during the petitioner’s murder trial, in which each juror was examined and cross-examined, seriatim and mid-deliberation, after it was reported that one juror was
taking a different view from the others. In the end, the trial court dismissed that juror on the ground that he was “biased” against the prosecution. With an alternate juror in place, the jury returned a guilty verdict.

Twelve Angry Men made for great drama because it violated the sanctity of the jury’s secret deliberations by allowing the audience into the jury room. It was, of course, a work of fiction. We are presented here with a similar intrusion into heated deliberations involving a holdout juror, except that this one took place in open court, and it resulted in a woman being convicted and sentenced to life imprisonment after the holdout was dismissed. Under the precedent that existed when petitioner’s conviction became final (and exists today as well), the trial court’s actions violated the petitioner’s Sixth Amendment rights, as incorporated with respect to the states under the Fourteenth Amendment. We therefore conclude that petitioner is in custody in violation of the Constitution, reverse the judgment of the district court, and remand with instructions to grant the writ.

Justice Kennedy uses pictures in opinion...

... to show the overcrowding in California jails. There's one of them to the left. Yikes, that looks just awful.

Doug Berman asks whether visual aids are appropriate in opinions:

Because it has long been known that a picture is worth a thousand words, I certainly think it appropriate and useful for courts to consider adding visual aids to their rulings. And yet, I also recognize that a move to using more visual images in judicial opinions could open up a very interesting can of pictorial worms. In this Plata case and in some other settings, the visual aids added to opinion have usually been made part of the case's record by one of the parties. But I wonder if it would it be appropriate for an opinion to reprint a dramatic graphic or a special pictorial submitted into the record by the parties. Further still, might some justices or judges even consider creating their own special graphics or even a video to highlight and punctuate the pictures they are trying to create with their words?

Especially because I am a terrible artist, I hope graphic skills do not soon become essential to being an effective litigator. And yet, in this great new world full or new media, I do not think it is crazy to believe (and fear?) that visual images may begin playing a larger role in judicial decision-making.

I don't think there is anything to fear. Pictures and evidence from lower courts should be made part of opinions. It helps the reader and the public to see what is at issue. I like it.

Bail for 76-year old Imam? UPDATE -- nope

I was planning another rant (see here and here) this morning on the bail reform act and how DOJ's asks for detention way more than it should. But I have a small fire drill this morning on a case that I have to deal with...

John Pacenti and Jay Weaver have articles about the terrorism charges and the bond hearing this morning for Hafiz Muhammad Sher Ali Khan. Needless to say, I'm not sure why there couldn't be conditions of release set for Khan and his son that would ensure that he shows up for court and not engage in criminal activity. It's almost impossible to prepare for any trial, let alone a trial with classified material, while your client is detained (especially in the special housing unit).

I do like that I'll be able to say KHAN on the blog for the foreseeable future:



UPDATE -- Judge Garber denied bond for Khan and his son.

Quick news and notes

1. One of the Mutual Benefits defendants has pled out, which means that Judge Jordan (or whoever takes over his division after he goes up to the 11th Circuit) will only have one lengthy trial, not two. From Jay Weaver's article:

A prominent attorney whose fortunes rose with a Fort Lauderdale viatical insurance company at the center of a $1.25 billion investment fraud case pleaded guilty Wednesday to a single conspiracy charge, marking a major development in the long-running prosecution of executives and others at Mutual Benefits Corp.

Michael McNerney, 62, of Fort Lauderdale, admitted that as its lawyer, he helped the now-defunct company lure thousands of investors worldwide into buying dubious life insurance policies held mostly in the names of people dying of AIDS.

His role was part of an alleged investment scam lasting from 1995 to 2004 that authorities say rivals the $1.2 billion Ponzi scheme of disbarred Fort Lauderdale lawyer Scott Rothstein, convicted last year of selling fabricated legal settlements in a separate criminal case.

The Mutual Benefits and Rothstein cases rank as Florida’s largest fraud prosecutions.

He got a good deal -- a five year cap under Section 371.

2. The 11th Circuit's en banc decision today in Gilbert v. United States has all kinds of great rhetoric. Carnes wrote for the majority on complicated habeas issues, but he characterizes the issue as: "The primary question, in plainer English, is whether a federal prisoner can use a habeas corpus petition to challenge his sentence. Our answer is “no,” at least where the sentence the prisoner is attacking does notexceed the statutory maximum."

There are 105 pages of opinions, and I haven't read them in depth yet. But I found some good passages, especially from the dissents.

Judge Hill starts his dissent with this:

Ezell Gilbert’s sentence was enhanced by eight and one-half years as the result of his being found by the district court – reluctantly and at the explicit urging of the government – to be a career offender. Ezell Gilbert is not now, nor has he ever been, a career offender. The Supreme Court says so.

Today, this court holds that we may not remedy such a sentencing error. This shocking result – urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice – and accepted by a court that emasculates itself by adopting such a rule of judicial impotency – confirms what I have long feared. The Great Writ is dead in this country.

More:

The government even has the temerity to argue that the Sentencing Guidelines enjoy some sort of legal immunity from claims of error because they are not statutes at all, but mere policy suggestions. And the majority appears not to understand that Gilbert’s imprisonment – no matter how his sentence was calculated – is the act of the Sovereign, who is forbidden by our Constitution to deprive a citizen of his liberty in violation of the laws of the United States.

I recognize that without finality there can be no justice. But it is equally true that, without justice, finality is nothing more than a bureaucratic achievement. Case closed. Move on to the next. Finality with justice is achieved only when the imprisoned has had a meaningful opportunity for a reliable judicial determination of his claim. Gilbert has never had this opportunity.

A judicial system that values finality over justice is morally bankrupt. That is why Congress provided in § 2255 an avenue to relief in circumstances just such as these. For this court to hold that it is without the power to provide relief to a citizen that the Sovereign seeks to confine illegally for eight and one-half years is to adopt a posture of judicial impotency that is shocking in a country that has enshrined the Great Writ in its Constitution. Surely, the Great Writ cannot be so moribund, so shackled by the procedural requirements of rigid gatekeeping, that it does not afford review of Gilbert’s claim.

Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. The government hints that there are many others in Gilbert’s position – sitting in prison serving sentences that were illegally imposed. We used to call such systems “gulags.” Now, apparently, we call them the United States.

One last thought. The majority spends an enormous amount of time arguing that Gilbert is not a nice man. Perhaps. But neither, I expect, was Clarence Gideon, the burglar, or Ernesto Miranda, the rapist. The Supreme Court managed to ignore this legal irrelevancy in upholding the constitutional principle under attack in those cases. Would that we could have also.

Wow. Now that's good stuff. I will post more as I wade through it all.

Go, Bill Barzee, Go!

My suite-mate Bill Barzee showed the SDNY how we roll down here in the SDFLA. He threw a bunch of great body blows today during his opening for Zvi Goffer, the off-shoot of the Raj Rajaratnam case. Via Reuters, the prosecutor threw the first jab:

The opening statements in the Manhattan federal court trial began with a prosecutor, Andrew Fish, turning around to point his right forefinger at one of the three defendants, securities trader Zvi Goffer, and call him "the ring leader of this criminal scheme."

Goffer, 34, who once worked at Raj Rajaratnam's Galleon Group and two other trading firms, is on trial with his brother and fellow trader Emanuel Goffer, 32, and another trader, Michael Kimelman, 40. The trial comes a week after Rajaratnam was found guilty of insider trading by a jury in the same courthouse.

Barzee then gave the smack down:

"Zvi Goffer, you're fired. That's what Raj Rajaratnam told Zvi Goffer," Goffer's lawyer, William Barzee, said as he began his opening statement, echoing the well-known real estate developer Trump's trademark phrase on his reality TV show. "He was fired because he lost so much money."

Barzee said his client waded into "the river of gossip" of Wall Street for tips and speculation, not for improperly leaked secrets as the government charges. "He was like a gold prospector searching for gold in a river," Barzee said.

Prosecutors have described the broad Galleon probe as the biggest investigation ever of insider trading at hedge funds.

The Goffer brothers and Kimelman are accused of bribing two lawyers at the prominent law firm Ropes & Gray with tens of thousands of dollars for secret information on takeover targets. The case of each man will be decided separately at the trial, which is expected to last up to five weeks.

I just love this part:

Barzee told the jury that another lawyer -- Jason Goldfarb, who the government says also passed tips to the defendants -- was a workers' compensation lawyer who had nothing to do with corporate mergers.

He said Zvi Goffer had a nickname for Goldfarb -- GQ.

"It stood for 'Gossip Queen.' That was the kind of guy Jason Goldfarb was. He would repeat anything that he ever heard from anyone" talking to Zvi Goffer "endlessly about dozens and dozens of stocks." Goldfarb has pleaded guilty.

Go get em Bill.

If you are checking the blog from you car this morning...

...avoid US1. Horrible accident at 17th, and US1 is closed.

If you are stuck, here are some links:

1. The Taj Mahal judge is in trouble:

The appellate judge who orchestrated the construction of the elaborate "Taj Mahal" courthouse was charged Tuesday with abusing his authority as a judge, destroying public records and conduct that demonstrates he is unfit to hold office.

The charges against 1st District Court Judge Paul M. Hawkes were leveled by the Judicial Qualifications Commission after an investigation that focused on his push for a new $50-million courthouse in the midst of a budget crisis.

Hawkes' conduct and behavior "demonstrated a pattern of conduct that can only be characterized as intemperate, impatient, undignified and discourteous,'' the JQC alleged. That conduct has "brought the entire judiciary of the state of Florida into disrepute, has inflicted substantial harm upon the entire state court system and has therefore demeaned the entire court system of the state of Florida."

Seems like a scapegoat to me.

2. Justice Thomas speaks, but not at Court:

Thomas, who was born in nearby Pin Point, told the Augusta Bar Association that the downward spiral of public discourse from people who are "drunk on their own opinions" must come to an end.

"You don't just keep nagging and nagging and nagging. At some point it's got to stop. Sometimes, too much is too much," he said. "I think we are reaching the point where we are beginning to undermine the integrity of the law

3. The Fifth Circuit issues a strong opinion to keep courtrooms open to the public.

4. The Fourth Amendment is slowly dying. This is the latest opinion from the Supreme Court, and it was 8-1, with Alito writing the majority and only Ginsburg dissenting. It should come as no surprise that Kagan (the former SG) and Sotomayor (a former prosecutor) have no love for the 4th. From the Times:

Justice Samuel A. Alito Jr., writing for the majority, said police officers do not violate the Fourth Amendment’s ban on unreasonable searches by kicking down a door after the occupants of an apartment react to hearing that officers are there by seeming to destroy evidence.

In dissent, Justice Ruth Bader Ginsburg wrote that the majority had handed the police an important new tool.

“The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases,” Justice Ginsburg wrote. “In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.”

The case, Kentucky v. King, No. 09-1272, arose from a mistake. After seeing a drug deal in a parking lot, police officers in Lexington, Ky., rushed into an apartment complex looking for a suspect who had sold cocaine to an informant.

But the smell of burning marijuana led them to the wrong apartment. After knocking and announcing themselves, they heard sounds from inside the apartment that they said made them fear that evidence was being destroyed. They kicked the door in and found marijuana and cocaine but not the original suspect, who was in a different apartment.

The Kentucky Supreme Court suppressed the evidence, saying that any risk of drugs being destroyed was the result of the decision by the police to knock and announce themselves rather than obtain a warrant.

The United States Supreme Court reversed that decision on Monday, saying the police had acted lawfully and that was all that mattered. The defendant, Hollis D. King, had choices other than destroying evidence, Justice Alito wrote.

5. The second phase of the mortgage fraud trial started up yesterday before Judge Cohn. Thankfully Michael Walsh is OK and is participating. I hope he does well and am rooting for him and his client.

Federal JNC getting busy

They are accepting applications for Judge Gold's seat and for U.S. Marshal. Applications are due June 15. Here's the list of federal JNC members.

Judge Jordan to the 11th Circuit?

According to John Pacenti: "One other opening is pending on the 11th U.S. District Court of Appeals. Judge Susan H. Black, who served as a Middle District judge, announced in February she is taking senior status, which leaves a Florida opening. A source close to the nomination process said U.S. District Judge Adalberto Jordan in Miami is a front-runner. Jordan’s office would not comment on the matter."

Judge Jordan would be great for the 11th Circuit, but he would really be missed on the District bench. He's smart, patient, and gives both sides a fair trial. As the former chief of the appellate division of the U.S. Attorney's office, he easily would be confirmed.

How do you like my new look?

The DBR has this article on how the courts are dealing with technology and privacy. I was quoted and here's the picture they used of me. How do you like my new look?

In other news:

1. Bill Barzee is starting a big trial in SDNY -- the offshoot of the Raj case. His client, Zvi Goffer, was known as Octopussy. Good luck to Bill and Zvi.

2. The Pakistani Taliban case will be arraigned today. I'm predicting pleas of not guilty.

3. Ellisa Martinez is pleading today. She's the woman who caused the school lockdown in Broward. She is before Judge Moore.

Weekend news including Pakistani Taliban indictment

1. Jay Weaver expounds on a story the blog broke earlier this week involving the dismissal against 27 defendants. Here's a bit from the front page story in the Herald:

Federal agents dubbed the case “Operation Cedar Sweep,” zeroing in on South Florida head-shop owners of mostly Lebanese descent. Some were suspected of selling “cut” for cocaine and sending profits to the Middle East for possible terrorist activities.

But after a two-year FBI investigation with undercover police officers, Miami federal prosecutors lacked evidence to make terrorism support cases. And this week, prosecutors also decided to drop drug-related charges against 27 defendants, many of whom had been detained since their arrests early this year.
***
The U.S. attorney’s office, which traditionally does not explain why it drops charges, issued a statement, saying “new information surfaced that, in our discretion, made it appropriate to dismiss the charges.”

“At this time, I cannot provide further details of what that information entailed, as it is not in the public record,” said Alicia Valle, special counsel to the U.S. attorney.

She described the investigation as “Operation Clear Cut” in an email to The Miami Herald — not “Operation Cedar Sweep,” which defense attorneys say refers to the Lebanese national tree and a symbol that appears prominently on its flag.

In February, the U.S. attorney’s office issued a press release crediting the investigative work of nearly a dozen federal and local enforcement agencies that led to the 13 narcotics-related indictments of 27 defendants, all owners or employees of head shops in South Florida. Among the targeted shops: Mushroom Novelty & Gifts, Hip Hop Gift Shop and Rainbow 7 in Miami-Dade, as well as head-shop operators at the Oakland Park Flea Market in Broward.

2. Here's another scoop -- the U.S. Attorney's office brought a major indictment yesterday, with arrests today, against six people for providing material support to the Pakistani Taliban. Here's the indictment, which fell before Judge Jordan.

From the press release:

The four-count indictment charges Hafiz Muhammed Sher Ali Khan (“Khan”), 76, a U.S. citizen and resident of Miami; his son Irfan Khan, 37, a U.S. citizen and resident of Miami; and one of his other sons, Izhar Khan, 24, a U.S. citizen and resident of North Lauderdale, Fla. Three other individuals residing in Pakistan, Ali Rehman, aka “Faisal Ali Rehman;” Alam Zeb; and Amina Khan, aka “Amina Bibi,” are also charged in the indictment. Amina Khan is the daughter of Khan and her son, Alam Zeb, is Khan’s grandson.

All six defendants are charged with conspiring to provide, and providing, material support to a conspiracy to murder, maim and kidnap persons overseas, as well as conspiring to provide material support to a foreign terrorist organization, specifically, the Pakistani Taliban. Defendants Khan, Rehman and Zeb are also charged with providing material support to the Pakistani Taliban.

Willy Ferrer said: “Let me be clear that this is not an indictment against a particular community or religion. Instead, today’s indictment charges six individuals for promoting terror and violence through their financial and other support of the Pakistani Taliban. Radical extremists know no boundaries; they come in all shapes and sizes and are not limited by religion, age, or geography.”

3. Many of you have been emailing me asking with concern about Michael Walsh. Thankfully, I have heard that he is OK.

Judge Marcus reverses death penalty in 100-page opinion

Since Blogger has been down, I've had some time to catch up on 11th Circuit opinions, even these really long ones. Here's the intro from Ferrell v. Georgia (which was joined by Judges Tjoflat and Black):

After thorough review of this ample record, we are compelled to reverse in part the judgment of the district court. We hold that the state court’s rejection of Ferrell’s ineffective-assistance claims was an unreasonable application of Strickland v. Washington, and, accordingly, we reverse the district court’s denial of habeas relief from Ferrell’s death sentence. Neither the jury nor the sentencing judge was ever told, because defense counsel never discovered that Ferrell suffers from extensive, disabling mental health problems and diseases including organic brain damage to the frontal lobe, bipolar disorder, and temporal lobe epilepsy. Nor
did they learn that the defendant had attempted suicide at age eleven, or that because of these mental health issues, Ferrell exhibits increased impulsivity and
decreased sound judgment; that his conduct was not entirely volitional; or that his
judgment and mental flexibility were significantly impaired by organic brain damage. Nor, finally were they ever told that Ferrell’s father was physically abusive to his children, especially to Ferrell, waking them in the middle of the night to beat them (sometimes after stripping them naked) with razor strops, fan belts, and old used belts; that the family was repeatedly evicted from their homes and hungry, and lived in fear of those to whom the father owed gambling debts; or that Ferrell’s mother suffered from clinical depression, suicidal ideations, rage blackouts, and urges to physically injure her children.

Funny email exchange

Julie Kay wrote a story on a funny email exchange that has been making the rounds. I love the sign off by Harrell: "all the best". Too funny. Here's the exchange:

From: Harrell, Michael P.
Sent: Wednesday, May 04, 2011 1:23 PM
To: Biff.Marshall@gray-robinson.com
Cc: Adams, Lep; Silva, Albert P.; Neal, Austin; Wanek, Brian N.; Long, J Craig; Howell, Chanley T.; Harper, C. David; Hedrick, Charles V.; Lever Jr., Chauncey W.; Adams, Christi; Griffin, Christopher L.; Kise, Christopher M.; Creely, Curt P.; Bachrach, Daniel (Dan); Zenov, Darin I.; Cook, David C.; Woodson, R Duke; Baxa Jr., Edmund T.; Lotzia, Emerson M.; Magee, Emily; Cerezo, Francisco J.; Ridley, Fred S.; Davis, Gardner F.; Koch, Gary D.; Fernandez-Quincoces, Guillermo J.; Raij, Irwin P.; Arkin, J. G; Grodin, James; Manzi, James A.; Hamilton, John; Horan, John; Lord Jr., John S. (Jack); Tucker IV, John A.; Vetter, John C.; Kilman, Jonathan P.; Fowler, Kevin; Hyde, Kevin E.; Reck, Kevin A.; Ross, Kevin K.; Wolfson, Mark J.; Traber, Martin A.; Smith, Leslie; Breuer, Matthew G.; Annis, Michael D.; Gay, Michael; Kirwan, Michael B.; Matthews, Michael P.; Okaty, Michael; Strickland, Wes; Shivers, Olin G.; Rosenthal, Paul; Wolfe, Randolph J.; Davis, Richard; Bernstein, Robert S.; Hosay, Robert H.; Meek, E. Robert; Barquet, Roy; Callen, Scott; Richburg, Scott D.; Crane, Stephen A.; Szabo, Stephen J.; Vazquez, Steven W.; Edwards, Ted B.; Little, Thomas M.; Maida, Thomas; Maurer, Thomas; Munro II, Thomas; Little, Walter C.; Davis, William E.; Guthrie, William C. (Bill)
Subject: RE: Opportunities

Biff: we've never met but you seem to be an ass who is extremely fond of himself.

all the best,

Mike Harrell

From: Byrd F. "Biff" Marshall, Jr. [mailto:
Sent: Wednesday, May 04, 2011 12:41 PM
To: Gay, Michael
Cc: Adams, Lep; Silva, Albert P.; Neal, Austin; Wanek, Brian N.; Long, J Craig; Howell, Chanley T.; Harper, C. David; Hedrick, Charles V.; Lever Jr., Chauncey W.; Adams, Christi; Griffin, Christopher L.; Kise, Christopher M.; Creely, Curt P.; Bachrach, Daniel (Dan); Zenov, Darin I.; Cook, David C.; Woodson, R Duke; Baxa Jr., Edmund T.; Lotzia, Emerson M.; Magee, Emily; Cerezo, Francisco J.; Ridley, Fred S.; Davis, Gardner F.; Koch, Gary D.; Fernandez-Quincoces, Guillermo J.; Raij, Irwin P.; Arkin, J. G; Grodin, James; Manzi, James A.; Hamilton, John; Horan, John; Lord Jr., John S. (Jack); Tucker IV, John A.; Vetter, John C.; Kilman, Jonathan P.; Fowler, Kevin; Hyde, Kevin E.; Reck, Kevin A.; Ross, Kevin K.; Wolfson, Mark J.; Traber, Martin A.; Smith, Leslie; Breuer, Matthew G.; Annis, Michael D.; Gay, Michael; Kirwan, Michael B.; Matthews, Michael P.; Okaty, Michael; Strickland, Wes; Shivers, Olin G.; Rosenthal, Paul; Wolfe, Randolph J.; Davis, Richard; Bernstein, Robert S.; Hosay, Robert H.; Meek, E. Robert; Barquet, Roy; Callen, Scott; Richburg, Scott D.; Crane, Stephen A.; Szabo, Stephen J.; Vazquez, Steven W.; Edwards, Ted B.; Little, Thomas M.; Maida, Thomas; Maurer, Thomas; Munro II, Thomas; Little, Walter C.; Davis, William E.; Guthrie, William C. (Bill)
Subject: Opportunities

Michael, as I told you a few months ago, we are pleased that Foley thinks so highly of our partners that your firm decided to contact a number of them about joining Foley as partners (a couple have been told they would be great office leaders). As of the most recent call (yesterday), about 20 of my partners have told me about the Foley calls they received (most consider this a compliment as your firm is well respected) . The partners are in Tampa, Tallahassee, Miami, Orlando, and Jacksonville (our Lakeland partners feel slighted).

Foley is a great firm, and if any of our partners are unhappy, I will encourage them to talk with your firm. We are also hiring in all these cities, and rather than asking headhunters and others to contact each of your Florida partners individually, I decided to copy them with this note and let them know things are going well at Gray Robinson.

I hope all is well.

Byrd F. "Biff" Marshall, Jr.

President

GrayRobinson, P.A.

Back at it

A case in the District of Oregon took me out of our district the last two days (up and back in 36 hours). And a bunch has been happening. Here goes:

1. Remember this press release from the feds about the charges against 27 defendants for "selling cut" for cocaine and heroin? Well, the government dismissed against all the defendants yesterday, including one who already had pled guilty. The charges were strange here -- conspiracy to aid and abet the sale of drugs, or a double inchoate crime. I'm told that many of these defendants were held at FDC since the charges back in February...

2. A mixed result in the 11th for Siegelman and Scrushy after the remand from the Supreme Court. Here's a little from the AP:

The 11th U.S. Circuit Court of Appeals said in a ruling Tuesday that there was not enough evidence to convict Siegelman and Scrushy of two bribery counts, which involved a hospital license and equipment. But the appeals court rejected a request for a new trial and let stand convictions on five counts against Siegelman and four against Scrushy. The court said they must be resentenced to reflect the reduced number of counts.

***

"This does not come as a surprise. This whole thing has been a disappointment," said Siegleman, who vowed to continue his appeals.

Scrushy's attorney, Art Leach, said he had not had time to study the decision. But he said his client, who has been in federal prison nearly five years, would argue for a shorter sentence with two convictions thrown out.

Justice Department spokeswoman Laura Sweeney said prosecutors were pleased with the decision.

3. The state judiciary is in trouble. Two of the best -- Mary Barzee and Izzy Reyes -- have recently left, and more are rumored to be leaving soon. Barzee is headed to my friends at Stearns Weaver. It's a great fit, and she'll do great there.

4. No word on Mike Walsh. Really hope he is okay.

Arrest warrant issued for defense lawyer

Judge Cohn issued an arrest warrant for Michael Walsh this morning for not showing up for trial. I'm traveling today, so I am not up on all the details. Looks like a terrible situation. I hope he is okay.

Update-- Here is the Herald coverage:

A federal judge Tuesday issued an arrest warrant for a defense attorney
after he failed to show up for the start of a major mortgage-fraud trial
of a former Plantation police officer; his brother, also an ex-cop; and
a real estate lawyer.

Miami attorney Michael D. Walsh, 44, did not appear to represent the
alleged ringleader and main defendant, Joseph Guaracino, in Fort
Lauderdale federal court on Monday, nor did he appear for a "show
cause'' hearing Tuesday morning on why he should not be held in contempt
of court.

On Monday, Walsh went to South Miami Hospital, but U.S. marshals were
unable to find him when they went there to serve him with papers on the
hearing set for Tuesday morning, according to authorities. After he did
not show up for the hearing, U.S. District Judge James Cohn issued the
contempt order. The marshals are now looking for him to serve the
warrant.

Monday news and notes

This summary is not available. Please click here to view the post.

Congrats to Bob Scola (UPDATED)

The White House officially nominated him yesterday. Congrats!

Now we need to get the Congress to confirm him and Kathy Williams. The holdup is inexcusable.

Here's the press release from the White House:

The White House
Office of the Press Secretary
For Immediate Release
May 04, 2011
President Obama Nominates Six Judges to United States District Courts
WASHINGTON, DC - Today, President Obama nominated Dana L. Christensen, Katherine B. Forrest, Justice John M. Gerrard, Judge Yvonne Gonzalez Rogers, Edgardo Ramos, and Judge Robert N. Scola, Jr. for District Court judgeships.

"These individuals have demonstrated the talent, expertise, and fair-mindedness Americans expect and deserve from their judicial system," said President Barack Obama. "I am grateful for their willingness to serve and confident that they will apply the law with the utmost impartiality and integrity."

Judge Robert N. Scola, Jr.: Nominee for the United States District Court for the Southern District of Florida

Judge Robert N. Scola, Jr. serves as a Judge on Florida's Eleventh Judicial Circuit, where he has presided over criminal, civil, and family law matters since 1995. Prior to joining the bench, he spent a decade in private practice as both a sole practitioner and, from 1992 to 1993, at the law firm of Quinon, Strafer & Scola, as a criminal defense attorney representing a wide range of defendants in both state and federal courts. Judge Scola began his law practice at the Miami-Dade Office of the State Attorney, where he worked from 1980 to 1986. He received his J.D., cum laude, in 1980 from Boston College Law School and his B.A. in 1977 from Brown University.


UPDATED

Federal Bar President Brett Barfield tells me that the Federal Bar Luncheon next week will address the judicial confirmation process and what's taking so long. Here's the info:

The Federal Bar Association

SOUTH FLORIDA CHAPTER

LUNCHEON MEETING

When: Wednesday, May 11, 2011

Where: The Bankers Club

Guest Speaker: Bruce Moyer, the Federal Bar Association's National Counsel for Government Relations. We'll leave plenty of time to relax and catch up with each other before and after Bruce's talk at this last FBA lunch before the summer break.

The Federal Bar Association maintains a national presence in Washington through its advocacy and representation in the halls of Congress, the White House and throughout the Executive Branch. Coordinating that effort is Bruce Moyer, the FBA’s Counsel for Government Relations, a thirty-year Washington attorney and legislative representative. Bruce will address the challenges currently facing the federal judiciary, including the judicial vacancies crisis, and the significant role that the FBA is playing to sustain and support the federal courts and the administration of justice.



Time: 11:45 a.m. - 1:00 p.m.



Valet parking is available for $5.00 on

Flagler Street at Biscayne in front of Mia Restaurant. The

Bankers Club validates only valet parking



Cost: $35.00 for members

$50.00 for non-members

$20.00 for government, academic, and public interest lawyers



SPACE IS LIMITED: RSVP by reply to this email (fba@hklaw.com) or by calling (305) 789-7614 by Friday, May 6!



Please make checks payable to Federal Bar Association, c/o Brett Barfield,701 Brickell Avenue, Suite 3000 Miami, FL 33131

Happy Star Wars day

May the 4th be with you.




For my fellow nerds: http://m.wired.com/wiredscience/2011/05/may-the-4th-be-with-you-could-han-shoot-second/

So you want to be a Magistrate?

There are two openings in West Palm Beach. From a blast email sent from the Court yesterday:

Subject: Vacancy of U.S. Magistrate Judge (Two Positions)
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

The Judicial Conference of the United States has authorized the appointment of two full-time United States Magistrate Judges for the Southern District of Florida. These appointments will succeed incumbents, who will be retiring on or about January 6, 2012 and May 27, 2012 respectively, and both positions will be located in the West Palm Beach Division. The full vacancy announcement and application can be located on the Court's website, www.flsd.uscourts.gov, with applications due no later than 5:00 p.m. on May 31, 2011. For more information, contact Steven M. Larimore, Clerk of Court, U.S. District Court, 400 North Miami Avenue, Room 8N09, Miami, FL 33128, or the Chair of the Magistrate Judge Merit Selection Panel, John Mariani, Esq., 525 Okeechobee Blvd, Suite 1100, West Palm Beach, FL 33401.

Justice Scalia is funny

Here's another (nerdy) example from his dissent yesterday in Montana v. Wyoming:

"The Court interprets the Yellowstone River Compact...the right to grant...Wyomans the right to increase their consumption..."*

"*The dictionary-approved term is “Wyomingite,” which is also the name of a type of lava, see Webster’s New International Dictionary 2961 (2d ed. 1957). I believe the people of Wyoming deserve better."

Op-ed on discovery practices in federal court

I wrote this opinion piece for today's Daily Business Review. Let me know your thoughts in the comments.

Commentary: When liberty is at risk, fair disclosure required
by: David Oscar Markus
Daily Business Review
May 02, 2011

In a civil case where only money and not liberty is at stake, every witness and every document must be turned over to the other side. There are no surprises.

The rules in Florida criminal courts are similar, requiring prosecutors to disclose their witnesses and evidence to the defense, and the accused is even permitted to take depositions.

But surprisingly, the federal criminal system — where one’s liberty is most at risk — does not permit depositions and requires prosecutors to make only very limited disclosures.

Prosecutors, for example, need not provide the defense with statements that their witnesses made until that witness actually takes the stand. Practitioners call the federal system “trial by ambush.”

What many people do not know is that federal prosecutors are not required to disclose exculpatory or impeachment information, unless a prosecutor determines that it is “material” to the defense.

Appellate courts have determined that evidence is considered material only if it was admissible and would have made a difference in the trial. Unfortunately, many prosecutors in their zeal to win convictions do not disclose plainly favorable information by making their own determination that it is not “material” to the defense.

That was supposed to change after the failed prosecutions of U.S. Sen. Ted Stevens, the Duke Lacrosse team, and a number of other high-profile cases around the country where prosecutors knowingly concealed powerful evidence helpful for the defense.

Judges in these cases wrote extensive orders criticizing prosecutors for not disclosing the exculpatory evidence and imposed sanctions.

There was also a call for the rules to be changed, requiring disclosure of all favorable information, not just what prosecutors deemed “material.”

Even the attorney general called for more training and issued guidelines to all federal prosecutors, instructing that they should err on the side of being open, even if that openness hurt their case.

The AG reminded prosecutors that they were tasked with doing justice, not winning. Ethical standards established by most state bar rules also require disclosure, even if the evidence is not “material.”

All of this sounded very promising, but actions speak louder than words.

Prosecutors continue to keep their files closed, telling lawyers and judges that they need not disclose basic items such as interview reports of witnesses, even when those witnesses lie under oath, because their boss’s guidelines and state ethical rules are not the law and therefore are not binding on them.

Because of these recurring problems, on April 22, 2011, in Miami, the American Bar Association’s Criminal Justice Section passed a resolution “urging” a change in the federal rules to require prosecutors to timely disclose all favorable information to the defense.

Only the Department of Justice member of the section voted against the resolution, arguing that individual prosecutors could be trusted without such a rule. Many judges, including Paul Friedman in Washington, D.C., have explained why the “trust us” argument is flawed: “Most prosecutors are neither neutral (nor should they be) nor prescient, and any such judgment necessarily is speculative on … many matters that simply are unknown and unknowable before trial begins.”

Based on these guidelines and cases, a simple — and what should have been uncontroversial — change was suggested to the federal criminal rules: prosecutors would be required to turn over all favorable information to the defense, not just “material” evidence.

Despite the ABA’s resolution, the Department of Justice just convinced the Criminal Rules Advisory Committee (the group that recommends changes to the Federal Rules of Criminal Procedure) to vote down (on a 6-5 vote) this proposed rule change.

Perhaps the Department of Justice would like to amend the plaque found in federal courtrooms that reads: “We who labor here seek the truth” with the addition, “only if we think it is material.”

76ers beat Heat in Game 4!!

The Ministry of Truth U.S. Attorney's Office issued this press release about the cops trial:

"JURY CONVICTS TWO FORMER POLICE OFFICERS IN MORTGAGE FRAUD PROSECUTION"

Really?! How about, after a 9-week trial, 4 of the 6 defendants were found not guilty of all counts?

Nope. The press release says: "Mortgage fraud is a virus that has spread through our community and to all levels of the mortgage industry. We will continue our efforts to combat mortgage fraud at all levels, from straw buyers to complicit lenders."

The USAO isn't supposed to care if it wins or loses. It's supposed to care about Justice. But in recent years, DOJ has really ramped up its spin to the press. I understand wanting to get your side of the story out there, but this seems a bit over the top. No?

Breaking -- Verdict in cops mortgage fraud case

I am hearing from a reliable source that 4 of the police officers (including the FBI agent) were acquitted of all counts. One was found guilty of all counts, and one defendant had a mixed verdict. More to follow as it comes in.

Jon Burstein from the Sun-Sentinel sums up what happened:

A Fort Lauderdale federal jury acquitted three police officers and a FBI agent of all counts, while convicting a Plantation police officer and a former police officer of fraud charges.

The verdict came after a two-month trial in which the accused were charged with lying about their incomes and places of residence so they could obtain mortgages that otherwise would have been out of reach on their salaries.

Jurors acquitted FBI agent Robert DePriest, Plantation police officers Casey Mittauer and Daryl Radziwon and Lauderhill police officer Joseph LaGrasta.

Convicted were Plantation police officer Joseph DeRosa and former Plantation police officer John Velez.

Agent under investigation for accepting bribes from CI

Jay Weaver has the details here:

Authorities are investigating a Miami federal agent suspected of accepting more than $100,000 in bribes from a confidential government informant, according to several sources familiar with the probe.

The informant allegedly paid the bribes to Immigration and Customs Enforcement agent Juan Martinez in exchange for his providing temporary parole allowing Colombians and others into the United States who were not entitled to the benefit, the sources said.

Martinez, who has been suspended without pay, is at the center of the federal investigation into his confidential informant’s alleged bribery payments, the sources said. Martinez, a former Miami police officer, has investigated Colombian cartels, paramilitary groups and other drug traffickers.

His attorney, Marty Raskin, declined to comment.

Not guilty verdicts in huge security fraud case before Judge Jordan

The case was United States v. Michael Lauer and Martin Garvey. It was a two month trial in a very large securities case that has been in litigation (either before the SEC, civil court, criminal court) for about a decade. Most of the other defendants pled guilty and testified in this trial.
This has gotta sting for the U.S. Attorney's office, who just had a bunch of lawyers leave the economic crimes division...

Congrats to my good friends Michael Caruso at the Federal Public Defender's office who was the lead lawyer for Lauer, and Hector Flores who represented Garvey. Caruso tried the case with D'Arsey Houlihan and Vanessa Chen. This is a great win for them. Congrats.

2:45 pm UPDATED -- Curt Anderson has a story up already for the AP:

The former chief of a multimillion-dollar hedge fund accused of fleecing investors out of $200 million was acquitted Wednesday by a federal jury of securities fraud and related charges.

Michael Lauer, who ran the Lancer Management Group and affiliated companies in New York and elsewhere, raised his clenched fists in the air when the verdict was read and tightly hugged his attorney, assistant public defender Michael Caruso. Lauer had faced up to 25 years in prison and hefty fines if convicted.

"There was nothing illegal here," Lauer said in an interview after the verdict. "The outcome, I believe, was inevitable."

***

One of the 12 jurors, 61-year-old Charles E. Floyd of Miami, said prosecutors simply failed to prove criminal wrongdoing in the complicated financial case.

"There just wasn't enough proof. That's the way I saw it," Floyd said. "He was guilty of surrounding himself with a bunch of jerks."

"Progress might have been all right once, but it has gone on too long."

That's how this funny order starts out. I like it.

BREAKING -- Judge Ungaro throws out Bank Atlantic verdict

Big big news at the close of a busy Monday -- Judge Ungaro has issued this well-written and researched 112-page order (also below) granting Bank Atlantic's post-trial motion for judgment as a matter of law. [HT:RR]

A jury back in November found Bank Atlantic officials misled shareholders on conference calls and awarded $2.41 a share to investors who bought the company's stock in 2007. If the verdict was permitted to stand, it would have been a tough hit for the bank, so this was a biggie.

Huge win for Gene Stearns and his team -- Adam Schachter, Cecilia Simmons, Grey Mead, and Andrea Nathan. I'm still digesting it, but the principal basis of the order was insufficient proof of loss causation and damages. In the event the order is vacated or reversed, the motion for a new trial was denied. I predict that the plaintiff's lawyer Mark Arisohn won't be getting much sleep tonight.

Judge Ungaro Throws Out Bank Atlantic Verdict

New boss, same as the old boss? (UPDATED)

So, Eric Holder has been saying all the right things about criminal discovery issues and has even issued guidelines to line AUSAs about more liberal disclosure, but there is increased grumbling amongst defense lawyers and judges that nothing has really changed (and in many cases, has gotten worse). In fact, DOJ is lobbying hard against changing Rule 16 to allow for more liberal disclosure of Brady/Giglio material.

I don't typically blog about my cases, but here's my most recent experience with this issue (without naming names): I was in court last week where DOJ was taking the position that even though their two critical witnesses lied to the grand jury, they did not need to disclose the grand jury testimony because Jencks trumped Brady. I kid you not. Needless to say, the district judge disagreed. But is this really the sorts of positions that DOJ should be taking?

Here's an op-ed by Jim E. Lavine and Ellen S. Podgor about DOJ not practicing what it preaches:

The practice of prosecutors failing to abide by constitutional and ethical
standards in providing important materials to the defense is not unique to
these cases, but it is particularly problematic to see when prosecutors are
then turning around and charging crimes against others who allegedly do the
same thing -- fail to give the other side materials they believe are
important to their investigation.

That’s exactly what they did when they decided to indict a former vice-president and associate general counsel of Glaxo-Smith Kline. Prosecutors charged her with crimes that included obstruction of justice and concealment of documents from an FDA inquiry, arguing that the counsel failed to provide materials to the federal agency.

The problem here is clear. The three new policies of the Department of
Justice are all internally controlled, provide for no external monitoring
and allow each local United States Attorneys’ Office to set up their own
discovery policies for their individual office. There is no real
oversight.

In fact, the Department of Justice has opposed making any rule changes that
would include some outside scrutiny. How many chances should they get?


Update -- Here is the proposed amendment to Rule 16 that DOJ opposes. Someone explain to me why this is controversial:

Rule 16. Discovery and Inspection
(a) GOVERNMENT’S DISCLOSURE.
(1) INFORMATION SUBJECT TO DISCLOSURE.
* * * *
(H) Exculpatory or Impeaching Information. Upon a defendant’s request, the government
must make available all information that is known to the attorney for the government or agents of law enforcement involved in the investigation of the case that is either exculpatory or impeaching. The court may not order disclosure of impeachment information earlier than 14 days before trial.

"There was a negotiated plea agreement. There was a scoresheet. There was an oral pronouncement. There was a written judgment and sentence. ...

... There was confusion. We remand for clarification."

That first paragraph about sums it up this opinion from the 5th DCA. [HT:CC]

Speaking of state court opinions, thank goodness for the Florida Supreme Court. Two big criminal procedure opinions from that court dealing big blows to the use of drug sniffing dogs. The court said that 1) prosecutors must show that drug dogs are reliable before they can be used to obtain evidence from a car (Harris v. Florida) and 2) police must get a warrant before using drug sniffing dogs at the front door of someone's house (Jardines v. Florida).

The Fourth Amendment is not dead, at least in Florida.

Mortgage fraud not guilty

Kudos to Russ Koonin and Allan Kaiser for their across-the-board not guilty verdicts today before Judge Martinez. They represented a lawyer charged with many counts of mortgage fraud.

UPDATE -- Here's the Herald article:

A Plantation attorney was acquitted of 13 counts of bank fraud Thursday, after a federal jury found that she did not knowingly participate in a mortgage loan scam that cost three banks $7.9 million.

Eve Rosen, 55, was implicated in a scheme in which Broward County developer Jeffrey Phillips recruited South Florida straw buyers to create fraudulent loan applications in order to buy vacant lots in North Florida. Between 2006 and 2008, Rosen was the closing agent on all of the transactions, which featured artificially inflated prices, fake income statements and falsified down payment information. In addition to the 13 counts of bank fraud, Rosen was charged with one count of conspiracy to commit bank fraud.

The case was part of Operation Stolen Dreams, the federal government’s largest-ever mortgage fraud takedown effort. Others involved in the case, including Phillips, the straw buyers and those who recruited them to falsify their information, have pleaded guilty in the scheme.