Manatee education patrol leads to $1 million marijuana seizure

You can't make this stuff up. From the government press release:

A routine patrol by police on Wednesday on Boynton Beach’s Intracoastal Waterway to educate boaters about the start of manatee season led to the discovery of nearly 1,300 pounds of marijuana valued at more than $1 million. As Boynton Beach Police Marine Unit Officers were patrolling the Intracoastal near the Boynton inlet, they observed a 30-foot center console boat heading north at a slow speed with two men aboard. The boat struck two sand bars, and one of its outboard engines was tipped up and not running. The officers headed toward the boat, which docked at the ramp in Harvey J. Oyer Jr., Boat Club Park. The defendants supplied the officers with Florida driver licenses, but could not produce valid registration for the boat. After the officers obtained verbal consent to go aboard, the defendants fled on foot. They were quickly apprehended after a short foot pursuit by Marine Interdiction Agents from U.S. Customs and Border Protection who were in the immediate vicinity.

Meantime, the feds are investigating state police shootings. From the AP:

The U.S. Justice Department launched a civil rights investigation Thursday into whether Miami police officers engaged in a pattern of excessive use of deadly force in the fatal shootings of seven African-American suspects over an eight-month span.

Thomas Perez, assistant attorney general for civil rights, and Miami U.S. Attorney Wifredo Ferrer said the probe will focus not on the individual officers but on whether the Miami Police Department's policies and practices on use of force led to violations of constitutional rights. The investigation is not criminal in nature.

"We're looking at systems. We're not looking at individual culpability," Perez told reporters. "We will follow the facts where the facts lead us. We will peel the onion to its core."

The shootings in inner-city Miami, from July 2010 to February 2011 and including two others that were not fatal, sparked outrage in the African-American community and led to protests at City Hall. The NAACP and American Civil Liberties Union, among others, demanded a federal investigation.

The former police chief, Miguel Exposito, defended the shootings as justified and said they resulted from confrontations caused by more aggressive police tactics in high-crime areas plagued by gangs. Exposito was fired in September for disobeying orders from the city manager, but the uproar over the shootings was a factor in his ouster.

In a written statement Thursday, Exposito said during his tenure people in many inner-city neighborhoods were demanding action against crime and gangs, leading him to double to 130 the number of tactical officers focused on those areas. Exposito said crime went down as a result.

"I trust that this is not an attempt by the U.S. attorney's office to politicize what should otherwise be an apolitical process," Exposito said.

Power outage

Yesterday afternoon the power went out at the courthouse. This was after the feds were called over to FDC to investigate suspicious white powder. Just a regular work day in Miami...

I wish there was some exciting news to tell, but it seems pretty quiet as everyone is getting ready for the holidays. Here are a couple notes:

1. Justice Scalia spoke at St. Thomas University yesterday. I can't find any news reports about his remarks.

2. The Justice Scalia of the 11th Circuit, Judge Carnes, writes this interesting sentencing opinion. Here's the intro:

A defendant convicted of distribution of child pornography is subject to a 5-
level enhancement under § 2G2.2(b)(3)(C) of the sentencing guidelines if the
distribution was to a minor. The defendant in this case distributed child
pornography to an unidentified person, not connected with law enforcement, who
convinced him that she (or he) was a minor. The district court applied the
distribution to a minor enhancement after concluding that the actual age of the
recipient, which has never been determined in this case, does not matter so long as
the defendant thought that the recipient was a minor. In doing so, the court
extended the reasoning of some of our decisions involving fictitious minors
created by law enforcement. Regardless of what we said in those other cases
involving different facts and different guidelines provisions, we reach a different
conclusion because the definition of “minor” in the application note to § 2G2.2
convinces us that here it is more than just the thought that counts.

3. If you win attorney's fees, try to get more than $1.50.

4. Lanny Breuer is complaining about sentencing after Booker, saying there needs to be more consistency. Why don't we just give em all 50 years in jail. That would be consistent.

Monday morning

The NY Times explains how discovery and sentencing are broken in the criminal justice system. But this is old news, no?

On Brady:

The current Brady rule requires prosecutors to make two judgments: Is evidence favorable to the defendant? If so, is it likely to affect a decision about guilt or punishment? Too often, prosecutors avoid disclosing evidence by answering no to the second question.

In ruling on the Smith case, the court should refine the Brady rule by eliminating the second question and requiring that prosecutors hand over all favorable evidence. Let a judge or jury weigh its importance.

On Sentencing:

The racial disparities in sentencing are also stark. In some cases, mandatory minimums can be reduced for offenders if the crime did not involve violence or a gun. But most African-American drug offenders convicted of a crime carrying a mandatory minimum sentence could not meet these and other requirements: only 39 percent qualified for a reduction compared with 64 percent of whites.

The report notes that inequitable sentencing policies “may foster disrespect for and lack of confidence in the federal criminal justice system.” Not “may.” Given the well-documented unfairness, Congress needs to rescind all mandatory minimum sentences.

Happy Veteran's Day tomorrow

Judge Palermo, who earned a Bronze Star for valor and merited six Battle Stars in World War II (!!), wishes everyone well below. Awesome pictures and medals!

Oops.

I actually feel bad for the guy.

Everything relates back to Miami

Even the Herman Cain accuser... From the Miami Herald blog:

The name of the second woman to say publicly that she was harassed by GOP presidential contender Herman Cain may ring bells with Miami Herald readers. Karen Kraushaar was a spokeswoman for the then-Immigration and Naturalization Service during the Elian Gonzalez custody battle in late 1999 and early 2000.
Kraushaar was one of the two woman who spoke to Politico for the Oct. 30 story detailing complaints by female employees who worked for Cain at the National Restaurant Association. She and another employee "had complained about Cain’s behavior to colleagues and senior officials at the NRA, and both women left the trade group with a cash settlement," Politico reported. Kraushaar's settlement was about $45,000, Politico reported.

According to several published reports, Kraushaar, 55, heads up communications for a bureau within the IRS. Although many news outlets were aware of her identity, they did not disclose it until the iPad-only publication The Daily revealed it Tuesday. Kraushaar told both Politico and the Washington Post that she would be willing to join together for a press conference with the other three women accusing Cain of harassment. Only one of the other women has so far come forward publicly.

"I am interested in a joint press conference for all the women where we would all be together with our attorneys and all of these allegations could be reviewed as a collective body of evidence,” Kraushaar told The Washington Post Tuesday

In other news, the SCOTUS Blog folks seem to think that after hearing oral argument, the Supremes will say that you need a warrant before GPS tracking. But it doesn't look like the defense lawyer did a great job (via Forbes):

When Jones’s lawyer came up to argue, it was a little like watching 9 cats play with an injured mouse that they felt pity for. A criminal defense attorney who has never argued before the Supreme Court before, Stephen Leckar focused solely on the unreasonableness of the police putting a tracking device on his client’s property without a warrant and refused to indulge the Supreme Court’s questions about the pervasiveness of the monitoring itself. When one justice asked whether this would have been a reasonable act by police if they put the tracker on the license plate of the car (which is owned by the State) rather than the underbelly of the Jeep, Leckar actually said yes. Justice Scalia jumped in to help him out, saying that a driver gives the government the right to put a license plate on a car, not a tracking device on their car.

Justice Kennedy asked whether it would be acceptable if the DC police had tracked Jones for a month with a team of agents following him rather than doing it with a tracking device. “We’re not asking for the police to be less effective,” he replied. “But GPS trackers greatly expand what they can do.”

Yikes. Apparently the advocacy in the High Court this week hasn't been great. Here's SCOTUSBlog on a prosecutor's attempt:

There may be many ways for a lawyer to realize that an argument before the Supreme Court is falling flat, but none can top this: a Justice asking if the counsel had ever considered simply forfeiting the case. That is what happened on Tuesday to Donna R. Andrieu, an assistant district attorney in New Orleans, as her argument lay all about her, in shambles. It is a heavy burden for a lawyer from that oft-criticized office to mount any defense of its prosecutions, but Andrieu repeatedly found ways to botch virtually every point as she argued Smith v. Cain (docket 10-8145).

***

The aggressive exchanges were getting to Andrieu, and the phrase “I’m sorry” began appearing regularly in her answers, as she suggested, now and then, that she had misunderstood the questions. As her argument was winding down, Justice Elena Kagan leaned forward and asked: “Ms. Andrieu, did your office ever consider just confessing error in this case?” Stunned, the prosecutor said: “I’m sorry?”
Kagan repeated: “Did your office ever consider just confessing error in this case? You’ve had a bunch of time to think about it. Do you know? We took cert a while ago. I’m just wondering whether you’ve ever considered confessing error.” The prosecutor answered: “Your Honor, we believe that we have an argument that these statements of Larry Boatner are not material.”

It only got worse for Andrieu. Justice Antonin Scalia suggested that the prosecutor “stop fighting as to whether it should be turned over. Of course it should have been turned over…Why don’t you give that up?” The prosecutor again tried, astonishingly, to make one more effort to rehabilitate witness Boatner’s credibility.

At that point, it seemed that nothing more could embarrass the New Orleans prosecutor. But Justice Sotomayor then brought up the “serious accusations against the practices of your office, not yours in particular but prior ones. It is disconcerting to me that when I asked you the question directly should this material have been turned over, you gave an absolute no.” Andrieu weakly suggested that she had misunderstood the question.

But Sotomayor pressed on: “It is somewhat disconcerting that your office is still answering equivocally on a basic obligation as one that requires you to have turned these materials over, whether it caused harm or not.” Andrieu still did not seem to understand. She said that “today we turn all of this over….It should have been turned over. I guess what I was addressing or attempting to address was the materiality prong of Brady.”

Monday morning notes

1. The Supreme Court will hear the GPS case tomorrow. Really interesting issues. SCOTUS Blog has all the news and analysis.

2. Speaking of SCOTUS Blog, there is an excellent interview of Justice Stevens posted there. His former clerk Jeffrey Fisher asks some intriguing questions:

Question: Turning to the different chapters of the book, one of the things that leaps out to me are the different internal procedures the Court has used over the years. For example, you mention that when you were a law clerk under Chief Justice Vinson, the Court’s conferences [at which the Justices cast their initial votes on cases and vote on cert. petitions] ran differently than they do now. Back then, there was a rule that everybody had a chance to speak once before anyone voted. Now, by contrast, Justices vote in conjunction with making their initial comments. Do you think that difference matters in terms of outcomes?

Justice Stevens: I think there might well be cases in which the outcome could be affected. I remember debating this with Byron White, among others, who said, “Well really the vote is never firm until the whole conference is over — in fact until the opinion is released.” And, as you know, votes change from time to time.

But I do think that the old model tends to give the junior Justice a better opportunity to convince more senior members of the Court if everybody has withheld his or her vote until everybody has had something to say. It just seems to me it’s a better way to proceed. And as I think I say in the book, Bill Rehnquist and I used to sit next to each other in the conference when I was a junior Justice and he was next most junior, and we both raised it once or twice, and he felt the same way then. But he became Chief, and he changed his view.

Question: What do you think changed his view?

Justice Stevens: He became Chief.

Question: He wanted to vote first, do you think?

Justice Stevens: I think — that’s right, he recognized the fact that the order of precedence may have an impact.

3. Could hackers free everyone at FDC:

Federal authorities are concerned about new research showing U.S. prisons are vulnerable to computer hackers, who could remotely open cell doors to aid jailbreaks.

The Federal Bureau of Prisons is “aware of this research and taking it very seriously,” spokesman Chris Burke told The Washington Times.

Mr. Burke was reacting to research by private experts who found that the security systems in most American prisons are run by computer software vulnerable to hackers.

“You could open every cell door, and the system would be telling the control room they are all closed,” said John J. Strauchs, a former CIA operations officer who helped develop a cyber-attack on a simulated prison computer system and described it at a hackers’ convention in Miami last week.

The security systems in most American prisons are run by special computer equipment called industrial control systems, or ICS. They are also used to control power plants, water treatment facilities and other critical national infrastructure. ICS has increasingly been targeted by hackers because an attack on one such system successfully sabotaged Iran’s nuclear program in 2009.
A malicious cyber-intruder could “destroy the doors,” by overloading the electrical system that controls them, locking them permanently open, said Mr. Strauchs, now a consultant who has designed security systems for dozens of state and federal prisons..

Hackers could “shut down secure communications” through the prison intercom system and crash the facility’s closed-circuit television system, blanking out all the monitors, he added.

4. Should those who view child porn on the internet get the same sentence (life) as murderers? The NY Times examines that question here:

A circuit court judge in Florida clearly thinks so: On Thursday, he sentenced Daniel Enrique Guevara Vilca, a 26-year-old stockroom worker whose home computer was found to contain hundreds of pornographic images of children, to life in prison without the possibility of parole.

But the severity of the justice meted out to Mr. Vilca, who had no previous criminal record, has led some criminal justice experts to question whether increasingly harsh penalties delivered in cases involving the viewing of pornography really fit the crime. Had Mr. Vilca actually molested a child, they note, he might well have received a lighter sentence.

“To me, a failure to distinguish between people who look at these dirty pictures and people who commit contact offenses lacks the nuance and proportionality I think our law demands,” said Douglas Berman, a law professor at Ohio State University, who highlighted Mr. Vilca’s case on his blog, Sentencing and Law Policy.

Sexual offenses involving children enrage most Americans, and lawmakers have not hesitated to impose lengthy prison terms for offenders. In Florida, possession of child pornography is a third-degree felony, punishable by up to five years in prison. Mr. Vilca was charged with 454 counts of possession, each count representing one image found on the computer.

5. Can police set up a fake cell phone tower to get information from your phone without a warrant? Via Wired:

Federal authorities used a fake Verizon cellphone tower to zero in on a suspect’s wireless card, and say they were perfectly within their rights to do so, even without a warrant.

But the feds don’t seem to want that legal logic challenged in court by the alleged identity thief they nabbed using the spoofing device, known generically as a stingray. So the government is telling a court for the first time that spoofing a legitimate wireless tower in order to conduct surveillance could be considered a search under the Fourth Amendment in this particular case, and that its use was legal, thanks to a court order and warrant that investigators used to get similar location data from Verizon’s own towers.

The government is likely using the argument to avoid a court showdown that might reveal how stingrays work and open debate into the tool’s legality.

Stingrays spoof a legitimate cellphone tower in order to trick nearby cellphones and other wireless communication devices into connecting to the tower, as they would to a real cellphone tower. When devices connect, stingrays can see and record their unique ID numbers and traffic data, as well as information that points to a device’s location. To prevent detection by suspects, the stingray sends the data to a real tower so that traffic continues to flow.

By gathering the wireless device’s signal strength from various locations, authorities can pinpoint where the device is being used with much more precision than they can get through data obtained from the mobile network provider’s fixed tower location.

Should judges disregard joint sentencing recommendations?

I've raised the question before on the blog and have given my opinion that judges should not disregard joint recommendations except in the very extreme case.

If a plaintiff and a defendant agree to a civil settlement, judges generally do not interfere. Why, then, should they in criminal cases (especially if judges are supposed to be umpires as Chief Justice Roberts has commented)?

The Herald covers the latest example in a medicare fraud case where the defendants were sentenced to 5 years more than the parties jointly had asked for:

U.S. District Judge Cecilia Altonaga gave the Guilarte sisters — who fled to Latin America in 2007 when they learned they were under federal investigation — five more years than prosecutors and defense attorneys had agreed on in their plea agreements, which charged a pair of healthcare-fraud and money-laundering conspiracies.

The judge said her initial intentions were to sentence the sisters to maximum prison terms — 30 years — but she was “tempered” by the disparity with lower sentences already imposed on other defendants in the Caridads’ case and related Detroit investigations.

The Guilarte sisters, who were indicted in Detroit in 2009, asked to have their case transferred to their hometown in Miami after they fled to Venezuela and were arrested in Colombia earlier this year. Miami is widely recognized as the nation’s Medicare fraud capital, where sentences keep getting stiffer and stiffer.

“We are tired of seeing the brazen, callous manner with which countless people defraud our Medicare system,” Altonaga declared. “We must stop the epidemic. ... Both of you took what you learned in South Florida and exported it to Michigan.”

Altonaga reminded Caridad, 54, and Clara, 57, that the United States welcomed both with “open arms” from Communist Cuba and that they returned the privilege by stealing millions from the U.S. government’s healthcare program for the elderly and disabled.

The Justice Department said the sisters — Caridad is a legal permanent resident, Clara a naturalized U.S. citizen — personally pocketed $3.8 million from their HIV-therapy scam in Detroit but none of that money has been recovered. Both sisters apologized to the judge and U.S. government, saying they “must pay” for their theft.

But the judge didn’t buy it, saying at one point to Clara: “Even though you say you must pay, I have every conviction you will not pay.”

I have never seen a judge go lower than a joint recommendation of the parties; only higher. But maybe I'm missing something. Any thoughts?

Ft. Pierce Courthouse opens

It's new and it's big and it's cool:

11th Circuit affirms Liberty City 7

Here's the per curiam opinion (the panel was Judge Tjoflat, Judge Martin and a visiting judge) (the original post mistakenly said that Tjoflat wrote the opinion). From the intro:

Burson Augustin, Stanley Grant Phanor, Patrick Abraham, Rotschild
Augustine, and Narseal Batiste (collectively, “Appellants”) were all convicted of
(1) conspiracy to provide material support to a Foreign Terrorist Organization (Al
Qaeda) by agreeing to provide personnel (including themselves) to work under Al
Qaeda’s direction and control, knowing that Al Qaeda has engaged or engages in
terrorist activity, in violation of 18 U.S.C. § 2339B; and (2) conspiracy to provide
material support by agreeing to provide personnel (including themselves),
knowing and intending that they were to be used in preparation for and in carrying
out a violation of 18 U.S.C. §§ 844(f)(1) and (i), and to conceal and disguise the
nature, location, source, and ownership of such material support, all in violation of
18 U.S.C. § 2339A. Abraham and Batiste were also convicted of conspiracy to
maliciously damage and destroy by means of an explosive a building leased to an
agency of the United States (the FBI) and a building used in interstate and foreign
commerce (the Sears Tower), all in violation of 18 U.S.C. § 844(n).1 Additionally,
Batiste was convicted of conspiracy to levy war against the Government of the
United States and to oppose by force the authority thereof in violation of 18
U.S.C. § 2384.

Appellants now appeal their convictions, raising six issues. First, Batiste
and Augustine challenge the district court’s order granting in part the
government’s motion to strike portions of the indictment as surplusage. Second,
Augustin, Phanor, and Augustine each challenge the sufficiency of the evidence
supporting their convictions. Third, Augustin argues that the government’s
involvement in the criminal scheme was outrageous and therefore violated the Due
Process Clause of the Fifth Amendment. Fourth, Batiste and Abraham challenge
several of the district court’s evidentiary rulings relating to the admissibility of lay and expert testimony. Fifth, Batiste argues that limitations on his cross examination of witnesses resulted in cumulative error requiring a new trial. Sixth, all of the appellants challenge the district court’s dismissal of a juror for refusing to follow the court’s instructions on the law. After careful review of the record and the parties’ briefs, and after having had the benefit of oral argument, we
affirm.

Tuesday notes

1. Big decision from the 11th Circuit yesterday in the sports agent case -- United States v. Gus Dominguez. Judge Cox wrote the decision invalidating some of the convictions and Judge Tjoflat dissented because he would have invalidated all counts. Nice win for Ben Kuehne. The blog's prior coverage of this Judge Moore case is here.

2. Brian Tannebaum has a new gig at Above the Law. Very exciting.

3. I hate mosquitoes too, but should we really be genetically engineering them? Doesn't this ultimately lead to the apocalypse?

4. Justice Stevens seems to be everywhere.

Happy Wet Soggy Halloween

It's always fun driving on US1 after a rainstorm. Sheesh.

Anyway, eat some candy today, and let's hope it dries up for tonight.

Here are a couple stories to get your Monday going:

1. Leonard Pitts thinks the Fourth Amendment should still have some teeth:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . — Fourth Amendment to the Constitution of the United States

Just in case you forgot.

There has been, after all, an appalling amount of forgetting where that amendment is concerned. And New York City has become the epicenter of the amnesia. Yes, the “stop and frisk” policy of questioning and searching people a cop finds suspicious is used elsewhere as well. But it is in the big, bruised apple that the issue now comes to a head.

Federal agents recently arrested a New York City cop on charges of violating the civil rights of an African-American man. Officer Michael Daragjati allegedly stopped the man in April and threw him against a parked van to search him. No drugs or weapons were found, but Daragjati reportedly became angry the man questioned his rough treatment and requested the officer’s name and badge number. So Daragjati ran him in on a charge of resisting arrest. Later, talking on the phone to a friend, he bragged that he had “fried another nigger” and that it was “no big deal.” This was overheard by the feds, who had him under surveillance in a separate investigation.

Let no one fix his or her mouth to pronounce themselves “surprised.” Blacks and Hispanics have complained for years about the selective attention they get from police. Giving cops the power to randomly stop and search pedestrians they find suspicious could not help but exacerbate the problem.

Last year, about 600,000 people were stopped and frisked in New York. Though blacks and Hispanics account for just over half the city’s population, they represent about 85 percent of those stopped. The Center for Constitutional Justice, a civil rights group, says drugs or weapons are turned up in less than two percent of those stops.

It bears repeating: less than two percent.

2. Can lawyers be ineffective during the plea process? Seems like the answer is obviously yes, but the Supreme Court will hear oral argument on the question today:

Anthony Cooper shot a woman in Detroit in 2003 and then received laughably bad legal advice. Because all four of his bullets had struck the victim below her waist, his lawyer said, Mr. Cooper could not be convicted of assault with intent to murder.

Based on that advice, Mr. Cooper rejected a plea bargain that called for a sentence of four to seven years. He was convicted, and is serving 15 to 30 years.

At least Mr. Cooper heard about his plea offer. Galin E. Frye’s lawyer never told him that prosecutors in Missouri were willing to let him plead guilty to a misdemeanor and serve 90 days in prison for driving without a license. When Mr. Frye did plead guilty after the offer expired, he was sentenced to three years.

On Monday, the Supreme Court will hear arguments in the two cases, which ask how principles concerning bad legal work at trial should apply to plea bargains. The question is of surpassing importance, since a large majority of criminal cases are settled at the plea stage.

3. The U.S. jails way too many people:

As a means of controlling crime, America’s prisons are notoriously inefficient and only minimally effective, often creating hardened criminals out of first-time offenders. The United States has 5 percent of the world’s population, yet 25 percent of the world’s prisoners. In the past generation, the imprisonment rate per capita in this country has multiplied by five. There are 2.3 million Americans in prisons and jails. Spending on prisons has reached $77 billion a year.

Congrats to Judge Kathy Williams

Her investiture was just spectacular. The speakers were really good -- Her friend Cathy Dee, Michael Mullaney, Reuben Cahn, Michael Caruso, Judge Seitz, Judge Moreno, and others. And Judge Williams' remarks showed why she was a great trial lawyer and leader. Here are some pictures from the event:

At Kathy Williams' investiture

- Posted using BlogPress from my iPhone

Judge Gold's speech for Judge Hoeveler receiving the Ned Davis award

As I mentioned before, Judge Gold's speech at the Federal Bar dinner last week was fantastic, and I got a copy of it, which I reproduce below:

William M HoevelerSpeech

Congrats to Judge Bob Scola

Judge Scola was just informally sworn in. Here he is celebrating with his wife Judge Jackie Scola and Chief Judge Fred Moreno. Congrats!

Maple Agriculture Protection and Law Enforcement

Not enough federal crimes for you? Check out the MAPLE Act which makes it a felony to sell fake maple syrup. Apparently, having a federal misdemeanor for this offense wasn't enough. From the LA Times:

"Vermont iconic maple syrup -- painstakingly produced, and prized across the nation and beyond -- is one of our state's fine, high-quality, natural products," Democratic Sen. Patrick Leahy said in introducing the legislation. A growing number of people are claiming to sell genuine Vermont maple syrup when "they are in fact selling an inferior product that is not maple syrup at all,'' he said, adding that the misrepresentation undermines a key part of Vermont's economy.

"We are very proud of the high-quality maple syrup produced in Vermont," independent Sen. Bernie Sanders said in a news release. "Some of us think it's the best in the world. We think it is terribly wrong for people to produce a phony product and call it Vermont maple syrup."Leahy, who as chairman of the Senate Judiciary Committee is well positioned to advance the legislation, introduced it in the wake of a recent U.S. Food and Drug Administration investigation that found a Rhode Island man had been selling cane sugar-based syrup as maple syrup.

Under existing law, fraudulently representing something as maple syrup is a misdemeanor punishable by up to a year behind bars.

"Too often, those who are willing to endanger our livelihoods in pursuit of their profits see fines as just a cost of doing business," Leahy said in the statement. "We need to make sure that those who intentionally deceive consumers get a trip to jail, not a slap on the wrist."

Some quick hits for Monday afternoon

1. Justice Stevens has written this interesting review of William J. Stuntz's intriguing book, The Collapse of American Criminal Justice. It starts out this way:

William Stuntz was the popular and well-respected Henry J. Friendly Professor of Law at Harvard University. He finished his manuscript of The Collapse of American Criminal Justice shortly before his untimely death earlier this year. The book is eminently readable and merits careful attention because it accurately describes the twin problems that pervade American criminal justice today—its overall severity and its disparate treatment of African-Americans.

2. Magistrate Judge Seltzer is skeptical of this skeptic (via Sun-Sentinel):

Pena, 49, and Randi, 83, have remained high-profile figures in the world of skepticism for decades, and Randi is famous around the world for debunking people who profess to have paranormal powers. He runs the James Randi Educational Foundation dedicated to skepticism.The deal to get Pena — whose full name is Deyvi Orangel Pena Arteaga — out on bond was worked out at the last minute Thursday night by Assistant U.S. Attorney Bertha Mitrani and Pena's defense attorney, Susan Dmitrovsky.U.S. Magistrate Barry Seltzer asked the attorneys if there was any paperwork — a passport or travel visas — to show Pena was who he said he was."Do we have anything to confirm this his true identity?" the judge asked. "I can't release a defendant unless I have some idea who he is."Mitrani said she and the federal agents working on the case had not had time to check for immigration records, but that she was comfortable Pena was his actual identity and that he would not try to flee the country if released on bond."We are going to verify and vet the information he gave us," Mitrani told the judge.

3. The NY Times has this piece on Justice Thomas. From the intro:

Justice Clarence Thomas was sworn in to the Supreme Court 20 years ago today. After two decades on the bench, he remains a legal outlier even on the conservative court. The results he reaches are often radical, and where his ideas come from even more so.

He favors cutting back the authority of the federal government and letting states “decide for themselves how to safeguard the health and welfare of their citizens.”

He believes that “the Constitution left religion to the states” and that the First Amendment’s prohibition against Congress’s enacting laws on the establishment of religion “was intended to protect” the right of states to do as they please.

He wants to roll back what most Americans consider racial progress because the “Constitution abhors classifications based on race” and even when the government uses them to solve problems and confer benefits, “it demeans us all.”

Extreme as those views are, the most extreme part of Justice Thomas’s record is not what he decides, but how. Justice Antonin Scalia told a biographer of Justice Thomas, Ken Foskett, that Justice Thomas “doesn’t believe in stare decisis, period.”

Federal Bar Gala

It was a nice evening last night at the Biltmore. Brett Barfield was sworn in for a second term, and Bernie Pastor is President-Elect. Judges Williams and Scola were toasted. And Judge Hoeveler received the Ned Davis Award, which was presented in a moving speech by Judge Gold. It was a huge turnout, and Brett has really done a fantastic job with the organization. It's an exciting time in the District...

Congrats to Bob Scola!

He was confirmed today as our newest federal judge. Well done!

Eddie Dominguez leaving DBR

He's done amazing things with that paper, and it's too bad he is leaving. While most newspaper readership is declining, the DBR has been flourishing under Eddie's leadership. He's made the paper relevant and interesting, and he's been able to keep good, talented reporters. Not easy in this environment.

He's headed to City National Bank as Senior VP in charge of Communications, Marketing, and Community Relations, and I wish him well. Now he can take me, and his other sources, out to lunch...

His going away party is this Friday at Bin 18 if you want to see him off.

Everything is a crime these days

The Supreme Court decided to hear a case involving the Stolen Valor Act; i.e., whether it is a crime to lie about prior military service:

The court said Monday it will rule on the constitutionality of a law that makes it a federal crime for people to claim falsely, either in writing or aloud, that they have been awarded the Medal of Honor, a Silver Star, Purple Heart or any other military medal.

The Stolen Valor Act, which passed Congress with overwhelming support in 2006, apparently has been used only a few dozen times, but the underlying issue of false claims of military heroism has struck a chord in an era in which American soldiers are fighting two wars.

At the same time, the justices have issued a series of rulings in recent terms in favor of free expression, striking down California's violent video restrictions and a federal law involving cruelty to animals. It also upheld the right of protesters to picket military funerals with provocative, even offensive, messages.

The federal appeals court in California struck down the military medals law on free speech grounds, and appeals courts in Colorado, Georgia and Missouri are considering similar cases.

The Obama administration is arguing that the law "serves a crucial purpose in safeguarding the military honors system." The administration also says the law is reasonable because it only applies to instances in which the speaker intends to portray himself as a medal recipient. Previous high court rulings also have limited First Amendment protection for false statements, the government said.

This was the case that Judge Kozinski said went too far because everyone lies:

Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”); to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to maintain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for
career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“But I love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”); to escape a nudnik (“My mother’s on the other line”); to namedrop (“We go way back”); to set up a surprise party (“I need help moving the piano”); to buy time (“I’m on my way”); to keep up appearances (“We’re not talking divorce”); to avoid taking out the trash (“My back hurts”); to duck an obligation (“I’ve got a headache”); to maintain a public image (“I go to church every Sunday”); to make a point (“Ich bin ein Berliner”); to save face (“I had too much to drink”); to humor (“Correct as usual, King Friday”); to avoid embarrassment (“That wasn’t me”); to curry favor (“I’ve read all your books”); to get a clerkship (“You’re the greatest living jurist”); to save a dollar (“I gave at the office”); or to maintain innocence (“There are eight tiny reindeer on the rooftop”).

And we don’t just talk the talk, we walk the walk, as reflected by the popularity of plastic surgery, elevator shoes, wood veneer paneling, cubic zirconia, toupees, artificial turf and cross-dressing. Last year, Americans spent $40 billion on cosmetics—an industry devoted almost entirely to helping people deceive each other about their appearance. It doesn’t matter whether we think that such lies are despicable or cause more harm than good. An important aspect of personal autonomy
is the right to shape one’s public and private persona by choosing when to tell the truth about oneself, when to conceal and when to deceive. Of course, lies are often disbelieved or discovered, and that too is part of the pull and tug of social
intercourse. But it’s critical to leave such interactions in private hands, so that we can make choices about who we are. How can you develop a reputation as a straight shooter if lying is not an option?

While the U.S. Supreme Court is hearing that case, the Florida Supreme Court is going to decide whether loud music is a crime or not:

The Florida Supreme Court will soon rule on whether regulating car stereo volume is a violation of drivers' First Amendment rights, possibly eliminating local noise ordinances in one fell swoop.

The court announced Monday that it will hear arguments in State vs. Catalano in February, a case that began when police in St. Petersburg ticketed a corporate lawyer for exceeding the noise limit by blasting a little Justin Timberlake at 7:34 a.m. on his way to work.

Richard T. Catalano fought the $73.50 ticket, and he's fought it all the way to highest levels of state law.

Really Mr. Catalano? Blasting Justice Timberlake?!

In other news, Cain is polling ahead of Obama...

Monday Morning

Nothing much happening this Monday morning, except rain and Siri. Here's some quick news and then your moment of Monday zen:

1. Justice Kagan speaks in Tampa and explains that the Justices don't email:

She also revealed that the justices "ignore 25 years of technology" in communicating with each other.

"The justices do not e-mail each other," she said. "The clerks e-mail each other, but the justices do not." Instead, the justices send each other memos, hand-delivered by clerks. Kagan said she prefers the old-fashioned way of communicating.

2. Drug charges were fabricated in NY. This is a crazy story:

Anderson, testifying under a cooperation agreement with prosecutors, was busted for planting cocaine, a practice known as "flaking," on four men in a Queens bar in 2008 to help out fellow cop Henry Tavarez, whose buy-and-bust activity had been low.

"Tavarez was ... was worried about getting sent back [to patrol] and, you know, the supervisors getting on his case," he recounted at the corruption trial of Brooklyn South narcotics Detective Jason Arbeeny.

"I had decided to give him [Tavarez] the drugs to help him out so that he could say he had a buy," Anderson testified last week in Brooklyn Supreme Court.

He made clear he wasn't about to pass off the two legit arrests he had made in the bar to Tavarez.

"As a detective, you still have a number to reach while you are in the narcotics division," he said.

3. Still waiting to hear who made the cut from the Magistrate interviews last week. Please email me if you know and I will keep your name confidential.

And now your moment of zen:

Judge Jordan voice vote with no opposition

Congrats to Judge Jordan who took the next step today in getting to the 11th Circuit. The judiciary committee's voice vote was unanimous today on Judge Jordan. Senator Sessions even congratulated President Obama on nominating Judge Jordan, who said he had met with him and was impressed with his "12 good years as a district judge" and his prior experience. Cool!

HT: Glenn Sugameli

Feds decide not to retry lawyer and police officer in mortgage fraud case

It's the right decision. After two really long mortgage trials before Judge Cohn, the government needs to cut its losses. From the Sun-Sentinel:

Federal prosecutors said Wednesday they are dropping all criminal charges against a Fort Lauderdale lawyer and a former police officer arrested last year in a mortgage fraud investigation.

The decision to dismiss the cases against attorney Steven Stoll and former Plantation Police Officer Dennis Guaracino comes a month after a Fort Lauderdale federal jury deadlocked on the charges against them.

The two men and Joseph Guaracino, who is Dennise Guaracino's brother, spent more than five months on trial defending themselves against allegations resulting from "Operation Copout" — an inquiry into a group of police officers involved in suspicious real estate transactions.

The U.S. Attorney's Office will continue pursuing its case against Joseph Guaracino, whose first trial also ended in a hung jury, federal prosecutors told U.S. District Judge James I. Cohn.

Not a good day for Joseph Guaracino though... I wonder why the different decision. Anyone have the scoop here?

And I know I'm being annoying on the press release issue, but shouldn't the feds issue a release about its decision to drop the case against the other two. If you google their names, the arrest press release still comes up... If the USAO can do a release on every illegal lobstering arrest (there seems to be a bunch of those on the website), then certainly they can do one here, no?

Telling a story

Roy Black has had quite a bit of great stuff on his blog recently about opening statements and telling a story. He explains why lawyers need to start strong and be dramatic. And of course, he is right on.

I was watching the Republican debate last night and it was evident why Herman Cain is gaining steam with his 999 plan -- it's dramatic, it's easy to understand and it resonates with people. Lawyers could learn a lot from watching Cain in these debates.

Check out this video (embedded below) from the debate at the 54 minute mark where Cain takes on Romney and Romney's 59 point plan (in 160 pages) while describing his own plan as simple and efficient. Romney has a good strong beginning with his answer, but you can see why Cain is doing well and is a good cross-examiner. At the end of Romney's answer, Cain says: So the answer to my question is no, it's not simple.

Bachman tries to go after Cain's plan by saying to flip 999 upside down (which makes it the number of the devil!) and Huntsman tries to say it's the price of pizza. Not so effective... Someone needs to come up with some easy to understand talking points about why 999 doesn't work. If not, Cain is going to keep gaining momentum -- not because the plan will necessarily work. But because he is telling a better story than the rest.

Columbus day reading

Here's some fun reading for those of you at work, like me:

1. The first of the Cuban 5 is out. Now what do we do with him? (Via Curt Anderson)

2. The Glass Ceiling doesn't apply to my law firm. (Via NY Times)

3. Judge Denny Chin talks about the difficult time he had sentencing defendants. (Via NY Times)

4. Justices Scalia and Breyer talk to Congress. (Via NPR) Here's an interesting exchange:

Scalia said he tries to figure out how the framers themselves understood the rights they outlined, and then carry those forward to today. Anything beyond that, he said, would be drafting new rights into the Constitution.

"I don't trust myself to be a good interpreter of what modern American values are. I have very little contact with the American people, I'm sorry to say. You do, and the members of the House probably even more," Scalia said. "So if you want to keep the Constitution up to date with current American values, you ought to decide what it means, and you can kiss us goodbye."

Then Breyer actually helped Scalia make an argument, explaining Scalia's worry that Breyer will end up substituting what he thinks is right for what the Constitution actually says.

"What I say is, yes, you are right about that — and all I can do is be on my guard, write my opinions, try to look to objective circumstances," Breyer said, "and I see the opposite danger — the opposite danger is called rigidity. The opposite danger is interpreting those words in a way that they will no longer work for a country of 308 million Americans who are living in the 21st century — work in the way those framers would have wanted them to work had they been able to understand our society."

Then, in a moment of remarkable collegiality, the liberal justice prompted Scalia to make an argument Breyer knew would trump what he had just said. He reminded Scalia about a familiar joke.

Two old friends are camping, Scalia said. When a great, big grizzly bear comes after them, the slower, pudgier friend says they will never outrun the bear. The friend running in front says, "I don't have to outrun that bear. I just have to outrun you."

"It's the same thing with originalism — I just have to show it's better than his [idea]," Scalia said.

It was clear the two justices had debated this hundreds of times. Wednesday's argument just happened to take place before a group of powerful senators. Because of that, the session became a kind of master class in the philosophy of law — and the art of "comity."

5. Scalia also says that the drug laws have hurt the judiciary (Via The Atlantic):

Supreme Court Justice Antonin Scalia isn't a supporter of legalizing drugs. But he does believe that passing federal laws against them has done harm to the U.S. government. "It was a great mistake to put routine drug offenses into the federal courts," he told the Senate Judiciary Committee Wednesday. The Wall Street Journal went on to report Scalia's belief that the laws forced Congress to enlarge the federal court system, and diminished "the elite quality of the federal judiciary."

6. The Sun-Sentinel got the Mangione search warrants.

Judge Jordan’s nomination delayed and will join dozens awaiting Senate Floor votes

GUEST POST BY GLENN SUGAMELI

David Oscar Markus lives in a rational world. Thus, he reasonably believed that the U.S. Senate Judiciary Committee would vote today on the nomination of S.D. Fla. District Judge Adalberto José Jordán to be a United States Circuit Judge for the Eleventh Circuit.

After all, Judge Jordan is strongly supported by his Florida home-state U.S. Senators, The Palm Beach Post Editorial Board urged a truce to avoid any delay of his confirmation, his hearing was uneventful, he was on today’s Committee’s agenda, and Chairman Pat Leahy’s statement explained that:

“Federal judicial vacancies across the country remain above 90. This is the longest extended period of high vacancies in the last 35 years. More than one of every 10 Federal judgeships remains vacant. Today the Committee has the opportunity to make progress and vote on 10 of President Obama's judicial nominees to fill vacancies in California, Missouri, Montana, Nebraska, New York, Washington, West Virginia and Utah, as well as on the 11th Circuit and the Federal Circuit.”

Judiciary Committee Republican senators, however, nearly always exercise their right to delay votes on every judicial nominee until the next week’s Executive Business Meeting the first time they are listed. Today, they delayed Judge Jordan and four others until Oct. 13.

Moe importantly, the fact that Judge Jordan is moving through Committee does NOT mean that he will get a Floor vote anytime soon. True, he has (bipartisan) home state senator support and should be approved without opposition in Committee. But that is also true of nearly all of the many other stalled nominees.

Anonymous and unexplained objections from GOP senators have created an unprecedented backlog of consensus judicial nominees who could and should be approved very quickly. As Senate Judiciary Chairman Pat Leahy explained in July, "we will still have 25 nominees sitting on the calendar who could be disposed of within an hour, yet they are blocked week after week after week.”

Even the most consensus district court nominees are only confirmed after inexcusable and unexplained delays. For example, the New Orleans Times-Picayune’s Oct. 5 Editorial described how

“Nannette Jolivette-Brown will be the first African-American woman to serve on the federal bench in Louisiana, following a unanimous vote by the U.S. Senate Monday confirming her nomination. . . . She had the backing of both Sen. [Mary] Landrieu and Sen. David Vitter, who was a law school classmate at Tulane University. Both urged the Senate Judiciary Committee and the full Senate to confirm her quickly at her confirmation hearing in May.”

There were 27 Committee approved judicial nominees awaiting Floor votes before the Senate belatedly confirmed Jolivette-Brown and five others unanimously. When the Committee approves Judge Jordan and the other delayed nominees next week, there will once again be 27 awaiting Floor votes.

A sweeping nonpartisan push to fill federal judgeships extends from Supreme Court Chief Justice Roberts and Justice Anthony M. Kennedy, to the American Bar Association and Federal Bar Association, to countless editorials boards and commentators from across the nation.

Justice delayed is justice denied, as more than 200 million Americans live in areas where the U.S. Courts have declared vacant judgeships to be judicial emergencies.

-Glenn Sugameli, Staff Attorney, Judging the Environment, Defenders of Wildlife

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.