Juror charged with soliciting bribe from defendant

This complaint is worth a read. From the government's press release:

According to the complaint filed in federal court today, Campagna was a sworn trial juror in the federal criminal case of United States v. Arturo Marrero, pending in the United States District Court for the Southern District of Florida, Case No. 10-60244-CR-COOKE. Campagna allegedly approached the father of the defendant outside the U.S. Courthouse in Miami, Florida and stated that he had information about the case. Campagna gave the father a piece of paper with a telephone number on it, but did not identify himself by name or explain that he was a juror.

The complaint further alleges that later that afternoon, the defendant’s brother called Campagna and arranged to meet with him in Miami Beach to discuss the case. At that meeting, Campagna revealed to the brother that he was a juror in the case and that some of his fellow jurors were inclined to convict. Campagna offered to persuade other jurors to vote not guilty in exchange for a payment of between $50,000 and $100,000. The brother expressed skepticism at Campagna’s claims, and added that money was tight, that he would think about Campagna’s offer, and that he would get back to him the next day.

On October 5, 2011, the brother began to cooperate with the FBI and made a recorded telephone call to Campagna to follow up on his discussions of the day before. The brother asked whether Campagna was still willing to help influence the outcome of the case, and Campagna answered yes. The brother then proposed a meeting at the same time and place to discuss money and other details. Campagna agreed. The brother stated that he had been able to get some money together but wanted to negotiate a final price.

Later that day, the brother participated in a recorded meeting with Campagna near the same Miami Beach location. Campagna reiterated that he could influence the jury and prevent a guilty verdict. The brother and Campagna then began to negotiate over price, and eventually settled on $20,000, which is the amount the brother said that he had brought with him. Campagna followed the brother to his vehicle to obtain the cash payment. The brother then handed Campagna what appeared to be a bundle of cash in a brown paper bag. At that point, Campagna was arrested.

Marrero's lawyers are Dore Louis, Marcia Silvers, and Joe Rosenbaum. Does Marrero get reprosecuted after this or do the feds say thank you and move on?

RIP Steve Jobs

I remember my first computer -- an Apple IIe. I was the happiest kid in Kendall when we got it. There was no internet then, but I started a BBS called The Shire with a dial-up modem and two floppy disc drives. I'll never forget how cool I thought it was to be able to get baseball box scores from Compuserve right after the game ended. The lines would stream across the screen, one by one. I've never been able to throw that computer away. Much to my wife's chagrin, it still sits in our garage...

Here's Jobs' commencement speech from Stanford in 2005. It's worth watching for some inspiration:

Judge Jordan's nomination to be heard by Judiciary Committee on Thursday

Thankfully, his nomination is moving quickly. After the vote this Thursday, it will go to the full Senate.

En banc day

The 11th Circuit has decided to hear the Fair Sentencing Act cases (Rojas and Hudson) en banc. The Federal Public Defender's office represents both defendants. The two en banc orders are here and here.

Rojas was the case that was on the 11th Circuit webpage and then off and then on again. Should be interesting...

In other news:

-- Justice Stevens has a new book out, Five Chiefs, that looks really interesting.

-- Kenneth Starr says open up the Supreme Court to cameras. He's 100% right. Why not:

The benefits of increased access and transparency are many. Democracy’s first principles strongly support the people’s right to know how their government works. This would seem to be underscored by this court’s stubborn insistence on freedom of communication in a democratic society. Recall that earlier this year, the court held that the First Amendment protected the right of protesters to hector a military family during a funeral service for their son, who was killed in Iraq. And the court decided that the same societal interest in free speech outweighed California’s interest in protecting minors from extremely violent video games. These are but two of many examples in which the current court has made plain its view that, in extreme cases, the force of First Amendment rights shall outweigh all else.

Year after year, the court issues decisions that profoundly affect the nation. Think of civics classes. The retired Justice Sandra Day O’Connor is one of many who have lately lamented the apparent collapse of civic literacy in public schools. Think of older Americans affected by President Obama’s health care program. Think of women or other groups affected by important class-action cases, like the Wal-Mart discrimination case last term. These citizens should have a chance to hear what the justices think about important questions that touch their lives.

The issue of cameras in the courtroom is one of precious few on which conservative Republicans, like Senator John Cornyn of Texas, and liberal Democrats, like Representative Henry A. Waxman of California, agree.

First Monday in October

Law nerds like you and me love this day. And it looks to be a great Term. There are lots of stories covering this Term's cases, but I like Adam Liptak's article here. Seems like a bunch of interesting criminal law cases:

The court will decide whether the police need a warrant to use advanced technology to track suspects, whether jails may strip-search people arrested for even the most minor offenses, whether defendants have a right to competent lawyers to help them decide whether to plead guilty, when eyewitness evidence may be used at trial, and what should happen when prosecutors withhold evidence.

***

In United States v. Jones, No. 10-1259, the justices will consider whether the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time. Some appeals court judges have said that such surveillance put them in mind of George Orwell’s novel “1984.” Prosecutors say that electronic enhancement of the ability of the police to stake out and track suspects raises no constitutional concerns.

A second Fourth Amendment case, Florence v. Board of Freeholders, No. 10-945, asks whether people arrested and held for minor offenses may be routinely strip-searched.

The court will also consider, in Maples v. Thomas, No. 10-63, whether a mix-up in the mailroom of a big New York law firm should mean that a death row inmate in Alabama must lose an opportunity to appeal a decision against him.

In a pair of cases to be argued on Oct. 31 — Lafler v. Cooper, No. 10-209, and Missouri v. Frye, No. 10-444 — the justices will consider whether defendants who were not told of favorable plea deals or were advised to reject them may pursue claims for ineffective assistance of counsel. A great majority of prosecutions are resolved with guilty pleas, and more vigorous judicial supervision of how the pleas are reached would have a broad practical impact.

The court will also consider the use of eyewitness evidence, in Perry v. New Hampshire, No. 10-8974. Such evidence, as the New Jersey Supreme Court found in a major decision in August, is often unreliable and has been the cause of many wrongful convictions. The justices will consider whether trial courts must be particularly wary of allowing such evidence to be presented when it has been tainted by suggestive circumstances not created by the authorities.

And the justices will return to a subject that sharply divided them in last term’s Connick v. Thompson case, which threw out a $14 million jury award to a former death row inmate who was cleared after prosecutorial withholding of evidence in New Orleans came to light. The new case, Smith v. Cain, No. 10-8145, also comes from New Orleans and concerns similar claims of prosecutorial misconduct.

And the First Amendment:

The court will continue its intense engagement with the First Amendment. But where earlier cases involved quirky issues like dog fights, funeral protests and the Seven Aphorisms of a fringe church called Summum, the marquee First Amendment cases this term involve issues of sweep and consequence.

In one, the court will rule on whether the government may ban swearing and nudity on broadcast television. In another, the justices will decide for the first time whether there is a “ministerial exception” to employment laws that allows religious institutions to discriminate in ways others employers cannot.

And that little health care case might come along too:

The health care case is not the only juggernaut looming on the horizon. In the next term or two, the court may well address same-sex marriage, affirmative action and illegal immigration. For now, the justices are focused on criminal cases, especially ones concerning the Fourth Amendment’s protections against unreasonable searches and the Sixth Amendment’s guarantee of a fair trial.

See you Monday

Here's what's up:

1. Did Bill Buckner appearing on Curb cause the Sox to lose?

2. I love when pro-se litigants win.

3. Fellow nerds unite!

4. Is this guy for real, arguing that mandatory guidelines are good? I would challenge him to a debate, but he'd never accept.

5. Roy Black examines the Conrad Murray openings.

Rosh Hashanah news and notes

1. Former ICE chief Anthony V. Mangione made his initial appearance today in federal court on this indictment (where he drew Judge Marra). His defense lawyer is David Howard. (The Herald has more here.)

2. Speaking of Judge Marra, he has ruled that the feds should have notified the victims (via PBP):

A federal judge has paved the way for victims to continue their fight to invalidate a secret deal, which saved billionaire sex offender Jeffrey Epstein from facing serious federal charges and significant prison time.

Monday’s 14-page ruling by U.S. District Judge Kenneth Marra rejects the U.S. Attorney’s Office argument that it was under no obligation to notify victims prior to striking a non-prosecution agreement with Epstein simply because there were no federal charges filed against him.

Marra ordered that discovery in the case proceed, which means that the victims — and the public — may get access to previously secret correspondence between Epstein’s attorneys and the government.

Attorneys Paul Cassell and Brad Edwards have been fighting on behalf of Jane Does No. 1 and No. 2 to have the federal non-prosecution agreement overturned, because, they say, it was done without notice or consent of the victims, which violates the federal Crime Victims’ Rights Act.

In his ruling, Marra agrees that the language in the act provides for victims’ rights to include pre-charge proceedings.

“The government’s interpretation ignores the additional language throughout the statute that clearly contemplates pre-charge protections,” Marra wrote in his ruling.

Marra also rejects the government’s argument that “pre-charge CRVA rights could impair prosecutorial discretion and decision-making.”

Cassell, a former federal judge, called the ruling “a home run" for all victims.

3. Here's an interesting opinion on the plain view doctrine and screen savers, via Orin Kerr:

The legal question: When a computer is in screensaver mode, does a police officer’s touching a key or moving the mousepad in order to reveal the contents of the screen constitute a Fourth Amendment “search”?
***
The ruling: In United States v. Musgrove, 2011 WL 4356521 (E.D.Wis. 2011) (Joseph, M.J.):

Whether there is a search here is a close call because the officer did not actively open any files. A truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a “search” for Fourth Amendment purposes. Arizona v. Hicks, 480 U.S. 321, 328 (1987). However, this is not such a case. By touching a key or moving the mouse, the officer put into view the Facebook wall, which was not previously in view. Though a close call, the Court concludes that this was a search, however minimal, which required further authority, a warrant or consent. The government submits that the officer’s manipulation of the computer was for the purpose of seizing the computer, not to conduct a preliminary search. However, intent is not generally relevant in assessing whether a search ensued. See, e.g., United States v. Mann, 592 F.3d 779, 784 (7th Cir.2010)(citing Platteville Area Apt. Ass’n v. City of Platteville, 179 F.3d 574, 580 (7th Cir.1999)). The Court therefore recommends that the defendant’s Facebook wall be suppressed.

"Head of ICE in South Florida arrested on child porn charges"

That's the headline from the Sun-Sentinel.

The feds have been investigating for quite some time.

Initial Florida Bar vote finds 2255 waivers unethical

Last week, the Florida Bar's Professional Ethics Committee voted 13-11 that criminal defense lawyers could not ethically advise their clients to waive their 2255 (habeas) rights in a plea agreement. Staff from the Florida Bar will now draft an advisory opinion for the committee's consideration, and the committee will consider it at its next meeting (sometime next year). The government will oppose the proposed ethics opinion.

But why? Why do prosecutors attempt to have criminal defense lawyers waive their clients' 2255 rights in a plea agreement? How can a criminal defense ethically tell his client that the client should waive a claim that he (the lawyer) is ineffective? There are conflict issues both for the prosecutor and the defense lawyer here. And yet, the government pushes these waivers, forcing the lawyer in most cases to either plead straight up.

Judge Roettger was great on these issues. He never let a defendant waive his appellate rights. Back then prosecutors didn't ask for 2255 waivers (or Booker waivers). Judge Roettger would cross the appellate waiver out of the plea agreements and ask prosecutors whether they worked for the Department of Justice or Injustice. He asked them why shouldn't an appellate court review his rulings at sentencing. What if he made a mistake?

So, SDFLA readers, what do you think? Should the government be asking for 2255 (and other waivers) or is Judge Roettger (and the Florida Bar) right that these waivers are unethical.

The trial tax

Despite this NY Times article about declining trials, this district still tries cases -- Judge Ungaro has closing arguments in a criminal antitrust case this morning; Judge Seitz is in the middle of a lengthy mortgage fraud case; Judge Cooke is starting a trial this morning. That said, the NY Times examines whether the "trial tax" is too high, forcing too many people to plead. The article focuses on state cases in Florida, but here's a snippet on the feds:

The shift has been clearer in federal district courts. After tougher sentencing laws were enacted in the 1980s, the percentage of criminal cases taken to trial fell to less than 3 percent last year, from almost 15 percent, according to data from the State University at Albany’s Sourcebook of Criminal Justice Statistics. The explosion of immigration prosecutions, where trials are rare, skews the numbers, but the trend is evident even when those cases are not included.

Nearly nine of every 10 cases ended in pleas last year, the federal data show, while one in 12 were dismissed (the percentage of dismissed cases was substantially higher a generation ago).

The number of acquittals dropped even further. Last year, there was only one acquittal for every 212 guilty pleas or trial convictions in federal district courts. Thirty years ago, the ratio was one for every 22.

***

Some federal prosecutors worried that their power would be weakened by a 2005 Supreme Court ruling that made sentencing guidelines advisory only. But academics say the ruling had much less effect than what some predicted as many judges still largely follow the guidelines, and the ruling did not affect other laws that have given prosecutors more power.

Friday's speed of light edition

1. Are there particles really moving faster than the speed of light? If so, this is the biggest news of our lifetime.

If not, there is still legal news:

2. Is this an effective letter to a sentencing judge by C. Coke?

3. The 11th Circuit says Florida deep-sea explorers must return 17 tons of silver coins from a sunken ship to Spain.

4. Former U.S. Attorney in DC calls federal sentencing "draconian."

5. Watch out for the falling satellite this weekend.

6. FIU posted the highest bar passage rate.

7. Yesterday, the Hispanic Bar honored Judge Jose Gonzalez at the federal courthouse. I heard that Judge Gonzalez gave a beautiful speech.

One judge to another during oral argument: "Shut up."

Remember the tiff between Judges Sparks and Jones over the Kindergarten email sent to lawyers. Well, Judge Jones is in the news again over judicial demeanor and ethics. Above The Law has the whole story and it's a doozy. This time, Judge Jones goes at it with Judge Dennis during an oral argument (here's the recording). Here's the transcript, prepared by ABT:

MR. TURNER: I think the amount of drugs in that truck supports the intent to distribute. And the jury….

JUDGE DENNIS: Well, we’ve said over and over that the amount…. this court, no court has said that you can infer….

CHIEF JUDGE JONES: Judge Dennis….

JUDGE DENNIS: … just on the basis of the amount of drugs …

CHIEF JUDGE JONES: Judge Dennis!

JUDGE DENNIS: Can I, can I, can I ask a question?

CHIEF JUDGE JONES: You have monopolized, uh, uh, seven minutes….

JUDGE DENNIS: Well, I’m way behind on asking questions in this court. I have been quiet a lot of times, and I am involved in this case….

CHIEF JUDGE JONES slams her hand down on the table (loudly), stands halfway up out of her chair, and points toward the door.

CHIEF JUDGE JONES: Would you like to leave?

JUDGE DENNIS: Pardon? What did you say?

CHIEF JUDGE JONES: I want you to shut up long enough for me to suggest that perhaps….

JUDGE DENNIS: Don’t tell me to shut up….

CHIEF JUDGE JONES: … you should give some other judge a chance to ask a question …

JUDGE DENNIS: Listen, I have been in this courtroom many times and gotten closed out and not able to ask a question. I don’t think I’m being overbearing….

CHIEF JUDGE JONES: You’ve been asking questions for the entire seven minutes….

JUDGE DENNIS: Well, I happen to be through. I have no more questions.

CHIEF JUDGE JONES: I just want to offer any other judge an opportunity to ask a question. Some may support your position. If nobody else chooses to ask a question, then please go forward.

RANDOM FEMALE JUDGE WHO IS NOT EDITH JONES (timidly): I would like to ask a question about the necessity for a Sears instruction….

Yikes.

Summary

Lots of news the last few days...

-- New Federal Judges being vetted (Thornton & Rosenbaum)
-- Huge sentences for Medicare fraudsters
-- Judge Jordan's confirmation hearing was today
-- Hung jury after a long mortgage fraud trial (happy for Michael Walsh after how the case began for him)
-- Padilla case decided 2-1

Here's a little more:

-- Pacenti reports on a case in which Nevin Shapiro testified but the defense was not made aware of the pending investigation against him;

-- The NY Times covers the question of whether jurors should be required to sign a pledge under penalties of perjury that they won't search the internet about the case while sitting as jurors, while the NY Post asks whether a prosecutor can work as a dominatrix.

-- I know the feds like to keep lawyers at the podium, but this may be a bit too far -- a judge has given authority to marshals to in their discretion SHOCK a lawyer representing himself if he strays from the podium. An anklet has been installed that will administer the shock. Seriously.

Mistrial in 4 month long mortgage fraud trial

This was trial #2 in the cop mortgage fraud trial, where trial #1 resulted in 4 of the 6 defendants being acquitted. For the second group of defendants, the jury hung, and I'm told it was 10-2 for acquittal. I feel for Judge Cohn, the defendants, their lawyers, and the prosecutors. This was an excruciatingly long trial. Is the government going to retry these defendants? As I've said before, I don't think retrials in cases like these are appropriate:

I'm not sure why a prosecutor should be able to retry a case after he couldn't convince a jury to convict. Isn't that reasonable doubt? To force someone to defend against two federal trials is impossible in every way -- financially and emotionally. The government had its shot in what was a controversial prosecution. Now time to go after a real criminal.

11th Circuit decides Padilla case 2-1

Here is the opinion .

Judge Dubina writes the majority, which Judge Pryor joins, affirming the conviction and reversing Jose Padilla's 17 year sentence as too low. Judge Barkett dissents on both the conviction and sentencing holdings. In total, there are 120 pages of opinions. This case seems destined for Supreme Court review.

More to follow...

BREAKING -- Rumors regarding district judge openings UPDATE -- Rumors confirmed!

Well, this wouldn't be printed if it were a newspaper or a legitimate publication, but because this is a blog, and I trust my sources, I am going to post the rumor that is being whispered about around town. Again, this isn't confirmed, but if it's being discussed at La Loggia, it can be discussed here too.

As we all know, 4 names were sent up by the JNC to fill Judge Gold's seat. Apparently, the White House is vetting two of those names, John Thornton and Robin Rosenbaum -- one to fill Judge Gold's seat and one to fill Judge Jordan's seat (see below; his confirmation hearing is next week).

If the rumor is true, congrats to Judges Thornton and Rosenbaum!

If anyone out there can confirm or refute this rumor, please email me and it will remain anonymous. Thanks.

UPDATED -- It's confirmed. Congratulations to Judge Thornton and Judge Rosenbaum! Here's hoping that the President and Senate move quickly.

Judge Jordan's confirmation hearing next week

It's set for Tuesday, September 20. That was quick -- Well done to the adminsitration for moving this nomination forward. After his hearing, then he will get written questions from the committee and then there will be a vote. Looks like Judge Jordan may be on the 11th by sometime in November.

Now we need to get Bob Scola confirmed. He is #19 on the list of district judges waiting confirmation, so if they do a few per week, we are looking at October for Judge Scola.

Things are starting to move, which is nice.

Big shout out to Dore Louis for his posting over the past two days. Good stuff.

Great Ruling on Strange Issue

By guest blogger, Dore Louis

Judge Cooke has just issued an Order in an interesting matter.

In July of this year, Governor Scott signed into law Fla. Stat. § 790.338, which contained a few odd provisions. Basically, the statute provided a basis to impose sanctions upon a doctor or health care provider who asks a patient about gun ownership or otherwise discriminates against a patient because of gun ownership.

"According to the State’s legislative findings, the State passed the law in reaction to an incident in Ocala, Florida, where a physician advised the mother of a minor patient that she had thirty days to find a new pediatrician after the mother refused to answer questions about firearms in her home."

Governor Scott is our Tea Party Governor. Big free market ideas...'let the market sort it out, government shouldn't be telling us what to do, etc.'; so it seems odd to me that he would sign into law a regulation that mandates a physician treat a patient who that physician does not want to treat because he/she owns a gun. Free market theory would instruct that if there are enough gun owners in the marketplace, the physician will either change his/her ways or go out of business.

Turns out the reason the pediatrician was doing what he/she did, was because the American Academy of Pediatrics counsels physicians to give guidance on gun safety. We don't want kids like this walking around, no matter how cute they are.



But why should politics make sense? Thankfully, Judge Cooke is able, through her thoughtful order, to make sense of subjects I was not particularly good at in Law School - First Amendment and Preliminary Injunction Law. What are those standards?

"At issue in this litigation is a law directed at maintaining patients’ privacy rights regarding firearm ownership within the context of the doctor-patient relationship. In effect, however, the law curtails practitioners’ ability to inquire about whether patients own firearms and burdens their ability to deliver a firearm safety message to patients, under certain circumstances. The Firearm Owners’ Privacy Act thus implicates practitioners’ First Amendment rights of free speech. The Act also implicates patients’ freedom to receive information about firearm safety, which the First Amendment protects."

...

"The State has attempted to inveigle this Court to cast this matter as a Second Amendment case. Despite the State’s insistence that the right to “keep arms” is the primary constitutional right at issue in this litigation, a plain reading of the statute reveals that this law in no way affects such rights. The right to keep arms refers to the right to “retain,” “to have in custody,” and “to hold” weapons, including firearms."

...

"I will not speak to the wisdom of the legislation now before me. Questions of a law’s constitutionality do not create “a license for courts to judge the wisdom, fairness, or logic of legislative choices.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). The First Amendment, however, “was not designed to facilitate legislation,” whether wise or not. FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 503 (2007) (Scalia, J., concurring). Based on the foregoing, I find that Plaintiffs have a substantial likelihood of succeeding on the merits of their constitutional challenge."

...

"Each of the factors for a preliminary injunction weighs in Plaintiffs’ favor. For that reason, the Plaintiffs’ Motion for Preliminary Injunction (ECF No. 16) is GRANTED. The State is preliminarily enjoined from enforcing § 790.338(1), (2), (5), and (6). The State is also preliminarily enjoined from enforcing § 790.338(8), to the extent that it provides that violations of § 790.338(1) and (2) constitute grounds for disciplinary action. The State is further preliminarily enjoined from enforcing § 456.072(1)(mm), to the extent that it provides that violations of § 790.338(1), (2), (5), and (6) shall constitute grounds for which disciplinary actions specified under § 456.072(2) may be taken."

I am a bit saddened that there were no Yosemite Sam references. Here is the Order.

Wollschlaeger Order

Federalist Society Panel

By Guest Blogger, Dore Louis

Last night the Federalist Society hosted an event at the Banker's Club entitled "War Zone or Crime Scene: Walking the Tightrope of Justice Ten Years After September 11th."

The panel included every person who held the position of US Attorney since 9/11 - Guy Lewis, Marcos Jimenez, Alex Acosta, Jeff Sloman, Wilfredo Ferrer, and acting Federal Public Defender Michael Caruso, who proved a bit elusive to the camera. Neal Sonnet moderated.


The night included everything one might expect a Federalist Society event to have: a well-stocked bar and plenty of time to mingle; a book co-authored by John Yoo, gifted to the panel members; a regional CIA recruiter mingling with the guests (no joke); Marshals to protect the dignitaries; and, the obligatory "Osama"...oops..."I sometimes say "Obama"" joke by a panelist.

All in all, it looked as if it was going to be a 'hanging jury' for Michael. As anybody who knows Michael would expect, Michael shined.

The discussion was very interesting and quite non-partisan. Essentially, it was a walk trough the history of the US Attorney's Office in the Southern District of Florida, from 9/11 onwards. Michael did a great job adding color to the other side of the equation - bringing home the impact that ramped up prosecutions for offenses such as routine immigration violations or the effects prolonged isolated confinement have on people.

Guy Lewis led off. He talked about how he and other members of the office sat watching the terrorist attacks unfold on 9/11 and the eerie "radio silence" that prevailed from DOJ during the attacks. 16 of the 19 hijackers had either lived in the Southern District or otherwise had connections here, and they were simply not on the radar. The day after 9/11 GL convened a meeting of federal and local law enforcement and began to redirect the priority of the office from prosecution of offenses such as violent crime, cyber crime and money laundering to the prosecution and prevention of terrorism.

Marcos Jimenez took over after GL left to D.C., and one of his first impressions was how much the office changed from when he had been a AUSA. MJ really gave the audience a good feel for how much pressure a US Attorney feels while in the office, including the fear that his efforts would not be enough to prevent an attack from happening. MJ specifically mentioned port security and the nightmare scenario that something would happen on a cruse ship, and bunch of people would get killed and he would have "egg on his face."

Other than Michael (who I admit to being partisan to and who will always have my vote), Dean Alex Acosta was the most impressive speaker of the night. I did not realize what an intellectual the guy is. AA gave a terrific overview of military tribunals in the United States, going back to Nazi spies in the beginning of WWII. Whether you agree or disagree with the policies the government pursued post-9/11, it is very apparent that AA had thoroughly thought through the legal basis for the actions taken, and would be able to provide justification for each and every one. Frankly, if AA presents like this always, I fully expect to be calling him Judge in the future - if that is what he is after.

Jeff Sloman, who had been involved in terrorism prosecutions and investigations before 9/11, spoke to a concern that was raised by MJ. Radicalized people who are willing to die for a cause. Such concerns led to cases such as the Liberty City 7 case, that were targeted at neutralizing threats before they became capable of carrying out a terrorist act.

Willy Ferrer was obviously more constrained in what he could say because he is the current US Attorney - he was able to provide statistics and a broad overview of efforts that are ongoing to prevent terrorist acts. But what WF said that struck me most, was the mention of his law school class mate - Geoffrey Cloud, who went to work in the World Trade Center on 9/11 and was killed in the attacks.

I am certain that people like WF, who lost friends during 9/11 will not forget the destruction of that day. Whether you agree or disagree with the policies that our government pursues, folks like those who hold the office of US Attorney in the Southern District of Florida are tasked with keeping us all safe. I want them to remember that day, and I want that memory to drive them to do the best job they can.

Whether ultra left or ultra right, we all hate terrorism and want our government to keep us safe. That is the point that Michael was really able to drive home - yes, we need to be kept safe, but at the same time, we need to protect our Constitutional liberties and hold true to the values that have made us this great Nation.

How far can law enforcement can go to protect us? God forbid something terrible happens again - law enforcement did not go far enough. In the name of terrorism prevention, continue prosecuting immigrants who try to sneak into America with the sole intention of working hard and earning a living - too far.

It is a very difficult question to address, and the reason that we should all encourage participation in more events like the Federalist Society panel discussion. That organization and its leadership deserve a lot of credit for gathering the panelists together to attempt to confront the issues.

The threat is real, it is deadly, and we do not want the people protecting us to forget it.

- Bette and Peter Cloud, the parents of terrorist attack victim Geoffrey Cloud of Sudbury, speak about their son to people gathered for a 9/11 remembrance at the September 11th Memorial Garden at Heritage Park in Sudbury Sunday.

Kindergarten cop

District Judge Sam Sparks recently got the attention of blogs and email lists with his "Kindergarten Order."

Edith Jones, the Chief Judge of the 5th Circuit, wasn't happy with the order and sent Judge Sparks this email:

Dear Sam, It has not escaped my attention, or that of my colleagues or, I am told, nationally known blog sites that you have issued several ‘cute’ orders in the past few weeks. The order attached below is the most recent. Frankly, this kind of rhetoric is not funny. In fact, it is so caustic, demeaning, and gratuitous that it casts more disrespect on the judiciary than on the now-besmirched reputation of the counsel. It suggests either that the judge is simply indulging himself at the expense of counsel or that he is fighting with counsel in what, as Judge Gee used to say, is surely not a fair contest. It suggests bias against counsel. No doubt, none of us has been consistently above reproach in our professional communications with counsel. We are all prone to human error. But no judge who writes an order should allow such rhetoric to overcome common sense. Ultimately, this kind of excess, as I noted, reflects badly on all of us. I urge you to think before you write. Sincerely, Edith Jones.

Ouch. According to the Texas Lawyer, Jones wasn't happy her email got out:

Jones declines comment on the substance of the e-mail but says she was “saddened” that it had been released to others, including Texas Lawyer. “It’s an internal matter,” Jones says. “And I’m saddened that somebody breached the intended limited scope of the intended distribution.”

What do you all think of Sparks' initial order and Jones' email? I guess all of this could segue into the discussion of the new Florida Bar rule on civility, but I'm tired after watching the Dolphins last night so I can't think of a witty way to do it.

Federal Courthouse in WPB evacuated this morning (UPDATED -- Courthouse reopened)

From the PBP:

A federal courthouse in Florida has been evacuated while authorities investigate a suspicious vehicle parked nearby.

West Palm Beach police spokesman Chase Scott says a police dog alerted to the possibility of explosives inside the rental van after 8 a.m. Monday. It was being checked because of unspecified derogatory comments written on the outside of the van.

A post office and a state health department building were also evacuated.

A police bomb squad and Homeland Security Department officials were among those responding to the situation.

Authorities have been on heightened alert nationwide for potential terrorist activity coinciding with the 10th anniversary of the Sept. 11 attacks.

UPDATE -- OK, back to work. The courthouse has been reopened. Here's the coverage:

West Palm Beach Police have determined that a "suspicious van" parked across from the federal courthouse downtown is not a threat and begun the process of clearing the scene, according to police spokesman Chase Scott.

He said hundreds of workers are being let back into the federal courthouse, Florida Health Department, U.S. Post Office and other surrounding buildings.

It's still unclear why a police bomb-sniffing dog alerted on the rental box-style moving van this morning, Scott said. It could have been some previous cargo in the unattended vehicle, which had been parked "for at least a day."

But the van's side panel attracted attention with the block-lettered message: "Google Edgar Bushey. Frank Baker PBSO lied and did no investigation" - a message that Scott characterized as "anti-law enforcement."

"Given the date, the location, the fact that it was a rental vehicle, has (anti-law enforcement) graffiti all over it," Scott added, "We were taking an abundance of precautions."

The van is being impounded and is now the subject of a West Palm Beach police investigation, he said. It is unclear who owns the van. A Google search of the name, "Edgar Bushey," takes one to a website and seemingly official documents regarding a 1995 sexual assault investigation.

Is Big Brother spelled GPS?

That's the question Adam Liptak asks in his weekend NY Times piece on the upcoming Supreme Court case:

In a series of rulings on the use of satellites and cellphones to track criminal suspects, judges around the country have been citing George Orwell’s “1984” to sound an alarm. They say the Fourth Amendment’s promise of protection from government invasion of privacy is in danger of being replaced by the futuristic surveillance state Orwell described.

In April, Judge Diane P. Wood of the federal appeals court in Chicago wrote that surveillance using global positioning system devices would “make the system that George Orwell depicted in his famous novel, ‘1984,’ seem clumsy.” In a similar case last year, Chief Judge Alex Kozinski of the federal appeals court in San Francisco wrote that “1984 may have come a bit later than predicted, but it’s here at last.”

Last month, Judge Nicholas G. Garaufis of the Federal District Court in Brooklyn turned down a government request for 113 days of location data from cellphone towers, citing “Orwellian intrusion” and saying the courts must “begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine.”

The Supreme Court is about to do just that. In November, it will hear arguments in United States v. Jones, No. 10-1259, the most important Fourth Amendment case in a decade. The justices will address a question that has divided the lower courts: Do the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time?

Their answer will bring Fourth Amendment law into the digital age, addressing how its 18th-century prohibition of “unreasonable searches and seizures” applies to a world in which people’s movements are continuously recorded by devices in their cars, pockets and purses, by toll plazas and by transit systems.

The Jones case will address not only whether the placement of a space-age tracking device on the outside of a vehicle without a warrant qualifies as a search, but also whether the intensive monitoring it allows is different in kind from conventional surveillance by police officers who stake out suspects and tail their cars.

There's also some interesting stuff in the DBR today, like Brian's op-ed (which I can't comment on since I'm still litigating the case), and Pacenti's article about the local jails.

News and Notes

1. Lots of people (91 in total and 45 in Miami!) charged with Medicare Fraud today.

2. Psychics get bond. But they knew that already.

3. Check out this footnote at the end of the opinion in United States v. Smith, which held that an appellate waiver was enforceable: After this opinion was written, the government filed a motion to withdraw its previously filed brief, which had argued that the appeal waiver applies, to vacate the sentence, and to remand for resentencing under the decision in United States v. Rojas, 645 F.3d 1234 (11th Cir. 2011). The motion admits that the sentencing appeal waiver does apply but states that the government has now “determined that it is appropriate under the circumstances to forego reliance upon the appeal waiver provision in this case.” OK, now what?

UPDATE -- I missed the continuation of the footnote on the next page:

The primary circumstance cited in the government’s motion is that Attorney General Eric Holder has changed the Department of Justice’s policy on whether the Fair Sentencing Act applies to cases in which the defendant was sentenced after enactment of that legislation. There has not, however, been any change in the law concerning sentence appeal waivers, and it is on the basis of the waiver that we are deciding this case. Sentence appeal waivers serve interests of the judiciary as well as interests of the government and defendants. See United States v. Bascomb, 451 F.3d 1292, 1296–97 (11th Cir. 2006) (interests of the government and defendants); cf. Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627 (1977) (recognizing
that plea bargains benefit all concerned, including the judiciary). And once an appeal arrives in this Court it is our responsibility to see that it is decided correctly under the law. For these reasons, the government’s motion is denied.

Wow.

Wesley Snipes loses bid for new trial in the 11th Circuit

Here's the unpublished opinion affirming the denial of his motion for new trial.

From the AP:

The 11th U.S. Circuit Court of Appeals rejected the appeal by Snipes, who was convicted in 2008 on three misdemeanor counts of willful failure to file income tax returns.

His defense lawyers contended they received emails from former jurors reporting misconduct among other members of the panel. One of the former jurors said in the email that three other jurors acknowledged they had determined Snipes was guilty before the trial began.

A federal court rejected the request for a new trial and noted that there were reasons to question the veracity of the allegations made in the emails. The 11th Circuit upheld the ruling on Tuesday, finding that there wasn't "strong, substantial and incontrovertible evidence" that would warrant a new trial.

Miami Herald profiles Judge Jordan

Jay Weaver does a nice job here. From the article:

As an undergraduate at UM, Jordan was a walk-on with the Hurricanes baseball team. He would joke to friends that he played “left bench.”

Relatives, friends and peers always described “Bert” Jordan as “scary smart,” a whiz kid.

He excelled as a political science major before finishing second in his UM law-school class. He earned a spot on the Law Review. One of his articles was on the use in legal filings of sports metaphors, entitled “Imagery, Humor and Judicial Opinion,’’ which “simply celebrates the prankster and poet in all of us.”

In 1987, Jordan applied to all nine U.S. Supreme Court justices for a clerkship. O’Connor granted him an interview. She picked him and three others from a field of 10.

But before he went to Washington, Jordan spent a year working for 11th Circuit Judge Thomas Clark in Atlanta.

Back then, he told The Miami Herald that he was following an “unwritten rule” that says clerking for a federal judge is a prerequisite for a Supreme Court clerkship. Quipped Jordan: It applies to “anyone who’s not at Harvard or Yale.”

And the Palm Beach Post rightfully calls for Obama to get this done quickly:

There is no need for such delay over Judge Jordan, an American success story. He came to the U.S. from Cuba as a 6-year-old with his parents. After receiving his bachelor's and law degrees with honors from the University of Miami, he clerked for former Supreme Court Justice Sandra Day O'Connor, worked in private practice and served as a federal prosecutor before becoming a judge at only 38.

Normally, when senators from both states agree on a judicial nominee, he or she is confirmed without controversy. Sen. Marco Rubio, a Republican, would be the one to raise any opposition. According to his press aide, though, Sen. Rubio "has heard nothing but positive things about Judge Jordan, and he looks forward to presenting his nomination before the Judiciary Committee for its consideration." The Senate confirmed Judge Jordan 93-1 in 1999. The result now should be about the same.

Friday notes

Sorry for the slow blogging this week. A couple quick hits before the nice long weekend:

1. No kindergarten party for lawyers after all. (WSJ)

2. What's going to happen with Clemens? We'll find out soon. (Boston.com)

3. Pleading and buyer's remorse (NYT)

4. Fascinating comments by jurors in the MS-13 gang case (Law.com)

5. DC Circuit divided on 3 evidence cases (BLT)

That's all I got today. Hope you have a nice weekend.

Awesomeness

The Daily Show - The Forecloser
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New magistrate short list in WPB

The cut has been made and there are 10 finalists for two spots. It's very hush-hush though, and I only have a partial list. Come on tipsters, give me more. Here's what I have so far:

Carolyn Bell (AUSA)
Dave Brannon (AFPD)
Kim Dunn-Abel (AUSA)
Bill Matthewman
Jeremy Slusher
Bob Waters (AUSA)
Wendy Zoberman

There are a bunch of magistrate positions that are open in the District, so the Chief entered an intersting order precluding applicants from lobbying District Judges. Good move.

Fantasy Football anyone?

Having won last year, I'm retiring. But Miguel de la O needs a title and the league needs one more team before tomorrow night. First come, first serve. Here's the info for joining

League ID#: 552661
League Name: SDFLA Fantasy Football
Password: markusquit
Custom League URL: http://football.fantasysports.yahoo.com/league/sdfla

Draft Type: Live Standard Draft
Draft Time: Wed Aug 31 10:30pm EDT

Judge Jordan's application

Judge Jordan's nomination is, by all accounts, moving quickly towards confirmation. Here is his Senate questionnaire (which is unbelievably onerous and long):

Judge Jordan's CA11 Questionnaire

If you aren't interested in that sort of thing, here is the trailer for the new Hunger Games movie coming out in the spring. Go Katniss!

Get More: 2011 VMA, Music

Have a nice weekend

Nothing really going on today in Miami, so I apologize for the slow blogging...

Anyway, here are some pictures I snapped on the way to lunch today in downtown:

Cool feeder band picture from tipster

11th Circuit considers Liberty City Seven

Jay Weaver has the details about this interesting issue:

The judge’s removal of a woman from the federal jury in one of the nation’s most controversial terrorism trials dominated oral arguments Tuesday, in the appeal of five Miami men convicted of conspiring to aid al-Qaida.

The unidentified woman, known only as Juror No. 4, was dismissed by U.S. District Judge Joan Lenard after deliberating for nearly three days in late April 2009 because the other 11 jurors said she refused to discuss the fate of the remaining defendants in a group originally dubbed the “Liberty City Seven.’’

The ruling led to the juror’s replacement by an alternate juror, a man, and the eventual conviction of the five defendants on material-support conspiracy charges. One other defendant was acquitted.

The removal of Juror No. 4 from the 12-person panel carried great consequences.

Had she been allowed to hold out as the minority juror, prompting a third mistrial in the controversial case, the five defendants could have walked out of the courtroom free, because the U.S. attorney’s office had already said it wouldn’t try them a fourth time.

Defense lawyers said Tuesday that Lenard made a major error about Juror No. 4 that should compel the 11th U.S. Circuit Court of Appeals to throw out the convictions and order a new trial. A decision could take months.

Juror No. 4 “goes in there and makes up her mind,” said attorney Ana Jhones, who represented the ringleader in the Liberty City group. “Does that mean she’s not deliberating? There is evidence that Juror No. 4 was, in fact, deliberating.”

She also said the woman was intimidated by the foreman in the jury room.

But a prosecutor with the U.S. attorney’s office disagreed.

Assistant U.S. Attorney Jonathan Colan said Juror No. 4 indicated to a courtroom deputy even before the start of deliberations that she didn’t want to discuss the evidence. She just wanted to express her opinion.

“Every other juror [questioned by the judge] gave consistent testimony that she turned her back and wouldn’t follow the law,” Colan said.

The convictions of the five men followed two earlier mistrials, which had resulted in the acquittal of one other defendant.

I'm back

I go to court for a few days, and the good professor decides to blog about "tense present." Rick, don't you realize that the readers of this blog prefer motions discussing phallic imagery? This is what they want. BTW, I'm wondering how our district judges would react to such a motion.

Slow blogging today

Your friendly neighborhood blogger is in court today, so I won't have much on the web until much later. Until then, your moment of zen:

The Daily Show With Jon Stewart	Mon - Thurs 11p / 10c
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Defense Verdicts of the Week

The USAO is very good at issuing press releases when there is an arrest or a conviction. Not so much when there is an acquittal. And there were some acquittals and a hung jury this week:

1. Sabrina Puglisi and Margot Moss got a not guilty before Judge Jordan in a drug case in which their client testified.*

2. AFPDs Aimee Ferrer and Jan Smith won before Judge Seitz in a gun case.

3. AFPD Miguel Caridad and David Joffe hung a jury before Judge Cooke. Apparently, Joffe's client originally pled guilty but was permitted to withdraw the plea and now is going for round 2.

*Full disclosure -- I share space with Sabrina and Margot is my law partner.

Judge makes mistake and goes after criminal defense lawyer

This story really amazes me:

At issue: Anthony pleaded guilty to 13 charges in a check fraud case in January 2010. Judge Stan Strickland sentenced her to time-served in jail, and a year of probation after her jail release.

But last month, when Anthony was acquitted of murder and released from the Orange County Jail, she wasn't put on probation. The Department of Corrections said Anthony served that probation in jail while she was awaiting the murder trial.

Soon after her release, Strickland amended his original order clarifying his intentions, which were clear in video and transcripts from the January 2010 sentencing.

Anthony's defense team objected, and Perry heard arguments from attorneys earlier this month.

Perry asked the defense team if they knew Anthony was serving her probation while she was in jail. One of Anthony's attorneys admitted that they did, but didn't think it was their burden to notify the court.

Perry eventually issued an order stating Anthony does have to report to probation.

In that order, Perry took up the issue with the attorneys too, saying that, "the failure to abide by that order and the failure to notify the court of a known scrivener's error in the order may be a violation of an attorney's duty of candor."

"No attorney should conduct himself or herself in a way that impedes an order of the court. ... Our system of justice should never be in the position of rewarding someone who willfully hides the ball."

This investigation reminds me of the old F. Lee Bailey quote after he was charged with mail fraud: In England, a criminal defense lawyer is apt to be knighted, in America, he is apt to be indicted.

This is especially true where the criminal defense lawyer is representing an unpopular defendant like Casey. The Florida Bar should quickly clear Jose Baez.

Judge Milton Hirsch finds Florida drug law unconstitutional

Milt Hirsch wrote a compelling (and very entertaining) order finding Florida's drug statute unconstitutional, following the decision in Shelton. The whole order is worth a read. Here is the intro and conclusion, and a link to the whole order at the bottom:

"[F]or there is nothing either good or bad, but thinking makes it so."

--William Shakespeare, The Tragedy of Hamlet, Prince of Denmark, Act II sc. 2


I. Introduction

The 39 defendants captioned above are similarly circumstanced in that all are charged with violation of Fla. Stat. § 893.13. In light of the recent decision in Shelton v. Department of Corrections, No. 6:07-cv-839-Orl-35-KRS, 2011 WL 3236040 (M.D. Fla. July 27, 2011), finding '893.13 unconstitutional, all defendants move for dismissal. I have consolidated these cases for purposes of these motions only.

Shelton has produced a category-five hurricane in the Florida criminal practice community. A storm-surge of pretrial motions (such as those at bar) must surely follow. It is, therefore, essential that I adjudicate the present motions promptly. This order has been written in great haste and under great time pressure. As Mark Twain is alleged to have said: "If I'd had more time, I could have written you a shorter letter."

***

V. Conclusion

The immediate effect of the present order is the dismissal of charges against all movants – the overwhelming majority of whom may have known perfectly well that their acts of possession or delivery were contrary to law. Viewed in that light, these movants are unworthy, utterly unworthy, of this windfall exoneration. But as no less a constitutional scholar than Justice Felix Frankfurter observed, "It is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end." Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting).

Like the court in Shelton, I find that Florida Statute § 893.13 is facially violative of the Due Process Clause of the 14th Amendment to the United States Constitution; and, accordingly, that any prosecution brought pursuant to that statute is subject to dismissal.

In the comments the other day, there was a discussion about whether Shelton was binding. Judge Hirsch has a lot to say about that, including this conclusion:

In the absence of such particularization I am obliged as a Florida trial court to presume that Florida appellate courts relied upon a Florida-law-based guarantee of due process, whether constitutional or common-law. No Florida case has decided the issue presently before me: whether '893.13 is unconstitutional by operation of the 14th Amendment to the federal Constitution. The Shelton court reached the same conclusion: A[N]o Florida appellate [court] ... has addressed the constitutionality of ['893.13] under the federal Constitution,@ Shelton, 2011 WL 3236040, at *12; and the Florida cases that appear to give passing consideration to the issue of the constitutionality or not of the statute Acontain no analysis of or citation to the tripartite constitutional analysis@ required by Staples and other U.S. Supreme Court authorities, and employed in Shelton. Id. See also supra note 3. Accordingly, I am bound to follow Shelton=s holding that '893.13 violates the 14th Amendment=s due process guarantee.

Hirsch Order

11th Circuit discusses THUG MANSION

Per Judge Carnes:

This appeal stems from a violent drug conspiracy in South Florida that involved a number of criminals, most of whom have aliases or nicknames. The four whose joint trial led to this appeal were Daniel “D.V.” Varela, Liana “The Negra” Lopez, Ricardo “Rick” Sanchez, and Daniel “Homer” Troya. Showing a keen appreciation for their own character, they referred to the townhouse where they lived as the “Thug Mansion.” During their crime wave two of the self-styled thugs, Troya and Sanchez, carjacked a fellow drug dealer and shot him to death. What would have been unfortunate became triply tragic when they also gunned down the drug dealer’s wife and their two children, ages three and four. Troya and Sanchez left all four bodies on the side of the road.

The ensuing police investigation led to the Thug Mansion, which was located in a gated residential community. Officers executed a search warrant there and found evidence of the murder and the on-going drug conspiracy. An indictment and two superseding indictments followed, and then a trial at which the four defendants were convicted on all counts. Lopez and Varela, who brought this appeal, raise several issues, the primary one being that they should not have been jointly tried with Troya and Sanchez, who committed the murders. (Sanchez and Troya were convicted of those murders and sentenced to death, and they have filed appeals that are proceeding separately from this one.)

Who wants to guess how this one came out?

Here's Tupac discussing "Thugz Mansion" (NSFW):

Which one doesn't belong?

The Federalist Society is having a panel looking back at the last ten years after September 11, 2001. On the panel: Wilfredo Ferrer, Jeff Sloman, Alex Acosta, Marcos Jimenez, Guy Lewis and Michael Caruso.

Back to work

Thanks to Rick for his excellent blogging, as usual.

A few items to start the week:

1. Enjoy the last week before school starts on the 22nd. Then back to parking-lot traffic. Ugh. (btw, shouldn't school start after Labor Day?)

2. In case you didn't see it, the Eleventh Circuit held 2-1 that President Obama's healthcare legislation was unconstitutional. Judges Dubina and Hull wrote a "joint opinion" and Judge Marcus dissented. Let's see what the Supremes do.

3. Florida state judges are saying (via Miami Herald) that they aren't bound by a federal judge's decision that the Florida drug statute is unconstitutional. I'm hearing that the same thing is occurring with Judge Martinez's order on the Florida death penalty -- state judges are saying that they aren't bound by the decision. But aren't they under the Supremacy Clause? Isn't this what federal habaes is all about? If state judges can just respond -- well, that's nice, but we'll decide what our state law says -- then why have habeas at all?

Summer speaking

Lots of Supreme Court Justices speaking this summer in really nice places. The latest are Justices Roberts and Kagan.

Justice Roberts has a rule about not speaking while on vacation, but he broke it and spoke in Maine:

"When judges or justices speak in court, there's a good chance we will disappoint half of the people who appear before us. When we speak in public, we have a good chance of disappointing everyone," Roberts said. "Despite that clear and present danger, I was happy to accept your kind invitation to visit this afternoon."

***

Roberts said that while he appreciates the efficiency of the information age, he worries that modern methods of legal research could make it easier to confuse the collection of information with the acquisition of knowledge.

"I hope that the generations that follow will get a chance to experience learning in the enriching environment of a real library and not just a virtual one – a library where you feel connected to knowledge in a very tangible way and also connected to those working alongside you in a similar pursuit for knowledge," he said, "even if they're representing an adversary or even if they're working for a judge who will decide your case."


And Justice Kagan spoke in Aspen:

“I think this comes as a surprise to many people when I talk about my experiences on the court, and to me as well,” Kagan said during a conversation in the Greenwald Pavilion at the Aspen Institute. “You know you read the court's decisions, and often there's some pretty sharp give-and-take: people accusing other justices on the other side [of the issue] of a wide variety of terrible conduct.”

“The truth is, it is an incredibly collegial and warm institution, with good friendships throughout the court and across whatever people think of as ideological divides, and that was the nicest feature of joining the court, was feeling that,” she said. “And how well and respectfully the members of the institution operate together.”

BREAKING -- Kathy Williams confirmed! Yes!

Wow, lots of great news today in the District. First, as discussed below, Judge Adalberto Jordan was nominated to fill Judge Susan Black's seat on the 11th Circuit. So we're losing one great judge, but we gain another -- the Senate just unanimously confirmed Kathy Williams to sit on the Southern District of Florida (Judge Hurley's seat).

I'm so happy for Kathy. It took wayyy too long, but that's a story that's been written about quite a bit and today is not the day to rehash it. Today is the the day to celebrate for Kathy. And yes, I'm biased -- I used to work for her at the Federal Public Defender's office, where she is known and respected around the country as running the model FPD office.

She's going to be a fantastic judge -- smart, hardworking, and compassionate. What else do you want from a federal judge?

The picture is Kathy from her confirmation hearings.

Congrats to Judge Adalberto Jordan!

President Obama nominated him today to sit on the 11th Circuit. He will be terrific on the court of appeals but will be sorely missed on the district court where he was known for his smarts, his patience, for treating everyone with respect and for calling 'em right down the middle.

Here's the press release from the White House:
President Obama Nominates Judge Adalberto José Jordán to the United States Court of Appeals

WASHINGTON, DC – Today, President Obama nominated Judge Adalberto José Jordán to the United States Court of Appeals for the Eleventh Circuit.

“Judge Adalberto José Jordán will bring an unwavering commitment to fairness and judicial integrity to the federal bench,” President Obama said. “His impressive legal career is a testament to the kind of thoughtful and diligent judge he will be on the Eleventh Circuit. I am honored to nominate him today.”

Judge Adalberto José Jordán: Nominee for the United States Court of Appeals for the Eleventh Circuit
Judge Adalberto José Jordán has served as a District Judge on the United States District Court for the Southern District of Florida in Miami since 1999. He also teaches as an adjunct professor of law at University of Miami School of Law, where he has taught since 1990, and Florida International University College of Law, where he has taught since 2007. Judge Jordán was born in Havana, Cuba, and immigrated to the United States with his parents at the age of six. He received his B.A. magna cum laude from the University of Miami in 1984, and his J.D. summa cum laude from University of Miami School of Law in 1987. After graduating from law school, he served as a law clerk to the Honorable Thomas A. Clark of the United States Court of Appeals for the Eleventh Circuit from 1987 to 1988, and the following year he served as a law clerk to the Honorable Sandra Day O’Connor of the Supreme Court of the United States. In 1989, Judge Jordán joined the Miami law firm of Steel Hector & Davis LLP (now Squire Sanders & Dempsey) as a litigation associate, eventually specializing in appellate practice and becoming a partner in 1994. Later that year, he joined the United States Attorney’s Office in the Southern District of Florida, serving as an Assistant United States Attorney in the appellate division and handling criminal and civil appeals on behalf of the government. Judge Jordán became appellate division chief in the office in 1998, and also served as special counsel to the United States Attorney for legal policy. Since being appointed to the District Court bench in 1999, Judge Jordán has presided over nearly 200 trials on a wide range of civil and criminal matters. In addition, he has frequently sat by designation on the United States Court of Appeals for the Eleventh Circuit.

August in Miami

It's boiling outside and there's a hurricane that may slide by us this weekend, but at least there's no traffic.

Now that the debt deal is about done, the Senate has the rest of the week before the August recess to get Kathy Williams and Bob Scola confirmed. Let's see what happens.

Big reversal in the Second Circuit yesterday in US v. Ferguson. The AP summarizes the case this way:

Former executives of American International Group Inc. and General Re Corp. who were convicted in a $500 million fraud case deserve a new trial, because the judge at their 2008 trial wrongly admitted stock-price data into evidence and gave improper jury instructions, a federal appeals court ruled Monday.

The 2nd U.S. Circuit Court of Appeals threw out the fraud convictions for the five officials and sent the case back to U.S. District Court in Hartford.

Prosecutors had accused the executives of participating in a scheme in which New York-based AIG secretly paid Stamford-based Gen Re to take out reinsurance policies with AIG in 2000 and 2001 to boost AIG's falling stock price. Reinsurance policies are backups purchased by insurance companies to completely or partly insure risk they have assumed for their customers.

Ronald E. Ferguson, Elizabeth A. Monrad, Robert D. Graham and Christopher P. Garand, all former executive officers of Gen Re, and Christian M. Milton, AIG's vice president of reinsurance, were sentenced to prison in 2009 for their involvement in the scheme, which authorities estimate cost AIG shareholders more than $500 million.

Testimony from two cooperating witnesses associated with Gen Re helped convict the five executives of conspiracy, mail fraud, securities fraud and false statements to the Securities and Exchange Commission. They received sentences ranging from one to four years in jail, but remain free on bail pending the outcome of the appeal.

***

[Chief Judge Jacobs] said the verdicts had to be vacated because of how U.S. District Judge Christopher Droney handled stock-price evidence and because Droney gave jury instruction that influenced the verdict.

The lower court was inconsistent in its rulings on displaying stock-price charts, Jacobs said. One chart showing the full decline in stock price was excluded as overly prejudicial, but it was "functionally identical" to another chart shown during prosecutors' opening statement, he said.

"The court's solution, to allow only isolated ranges of stock-price data, did not mitigate the prejudice," Jacobs wrote. "Instead of a downward line, there were three dropping sets of dots; it is inevitable that jurors would connect them."

In instructing the jury, the trial judge erred by offering an ambiguous standard of conviction that allowed the jury to convict without determining what caused the fraud, Jacobs wrote.

Oh, and Rumpole is finally back from his vacation.

Justice Ginsburg is funny!

Here's a recent speech she gave to the Otsego County Bar Association, which I found to be a great read (One example: “I am now delighted to report that not once this term has an advocate called me Justice Sotomayor or Justice Kagan, and the same holds true for my junior colleagues.")

JoshBlackman.com summarized some of the questions Justice Ginsburg reviewed from this Term (Ginsburg: “From the foregoing samples, you may better understand why the court does not plan to permit televising oral arguments any time soon.”):

• “What [did] James Madison th[ink] about video games?” --Justice Samuel A. Alito Jr. in Brown v. Entertainment Merchants Association.

• “What do you think about Satan?” -- Justice Antonin Scalia in Matrixx Initiatives v. Siracusano.

• “Does al-Qaida know all this stuff?” --Justice Antonin Scalia in NASA v. Nelson. (after a lawyer for the employees said they worked in a “campus atmosphere” and they posed little or no security risk).

• “Where is the 9,000-foot cow?” --Justice Stephen G. Breyer in AT&T Mobility v. Concepcion, involving Breyer’s hypothetical involving a Swiss law only allowing the purchase of milk from cattle grazing in pastures higher than 9,000 feet.

Bob Barr and I agree!

Here's an op-ed he just wrote on the over-criminalization problem in America. From the piece:

[F]ailure to address the overcriminalization of America is turning us into a society in which the average citizen is at the mercy of the federal government for fear of running afoul of some criminal law or regulation on any given day, despite having no intention whatsover of doing so.

The explosive growth in the number of federal crimes in recent decades has been nothing short of phenomenal. Three crimes — three — were considered of sufficient importance and of a unique federal nature, to be included specifically in the Constitution. Those three uniquely federal crimes are treason, piracy and counterfeiting. Over the decades, of course, other crimes were added, usually pegged to the infamous “commerce clause.” By 1980, the federal criminal code had mushroomed to about 3,000 separate criminal offenses. What has happened since 1980, however, has been nothing short of phenomenal — the list of federal criminal offenses has exploded to nearly 4,500 offenses; as noted most recently by Gary Fields and John Emshwiller in the Wall Street Journal. This figure does not even include the many more thousands of federal regulations that can be enforced by the government as criminal offenses.

***

The list of such unfair and outrageous instances of abusive federal prosecutions is depressingly long; with many the result of the explosive growth of “environmental crimes” since the birth of the EPA four decades ago. Yet Congress after Congress continues to add crime after crime to the burgeoning federal criminal code, based often on pressure from interest groups and federal agencies themselves.

Finalists for U.S. Marshal

They are: James S. Higgins, Eben Morales and Amos Rojas Jr..

Many of you will remember Jaime Higgins, who is an ATF agent, currently on assignment in Vancouver, Canada. His wife is Celeste Higgins, a former AFPD in Miami.

Florida drug laws ruled unconstitutional

Today Judge Mary Scriven from the Middle District granted a writ of habeas corpus and declared Florida’s drug law unconstitutional. The case is Shelton v. Dept. of Corrections. NACDL filed this amicus brief . Here's the intro to the order:

On May 13, 2002, the Florida Legislature enacted changes to Florida’s Drug Abuse Prevention and Control law, FLA. STAT. § 893.13, as amended by FLA. STAT. § 893.101. By this enactment, Florida became the only state in the nation expressly to eliminate mens rea as an element of a drug offense. This case, challenging the constitutionality of that law, was filed following Plaintiff’s conviction for delivery of cocaine without the jury being required to consider his intent in any respect and the subsequent imposition of an eighteen year sentence following his conviction. Upon consideration of all relevant filings, case law, and being otherwise fully advised, the Court GRANTS Petitioner’s request for habeas relief (Dkt. 1), and finds that FLA. STAT. § 893.13 is unconstitutional on its face.

Full disclosure: I was one of the co-signors of the amicus brief for NACDL, authored by Todd Foster.

BREAKING -- JNC sends 4 names to Senators

Your next federal judge will be one of these four people:

Jerald Bagley
John O'Sullivan
Robin Rosenbaum
John Thornton

Two State Circuit judges and two Federal Magistrates. I'm picturing a cage match -- Bagley and Thornton vs. O'Sullivan and Rosenbaum. Who wins that one?

Update-- happy to report that Judge Moreno's letters were cited yesterday in the Senate. Hopefully they will have some impact. Here's the link: http://www.gpo.gov/fdsys/pkg/CREC-2011-07-25/pdf/CREC-2011-07-25-pt1-PgS4860.pdf#page=1

HT: SFL