Sen. Patrick Leahy quotes this blog regarding Judge Jordan

Check out Sen. Leahy's statement here (regarding Judge Adalberto Jordan's status before the Senate), which quotes this post from yesterday:

Statement Of Senator Patrick Leahy (D-Vt.),

Chairman, Senate Judiciary Committee,

On the Nomination Of Judge Adalberto Jordan To The Eleventh Circuit

February 14, 2012

Republican Senators delayed a final vote on the nomination of Judge Adalberto Jordan of Florida even though the Senate voted 89-5 last night to end a Republican filibuster that has already prevented a vote for four months.  This is a consensus nominee who Senator Nelson has been strongly supporting and who Senator Rubio also supports.  He should have been confirmed four months ago.  He should have been confirmed last night after the overwhelming cloture vote.  Instead, obstruction needlessly delayed the Senate acting to fill the emergency judicial vacancy on the Eleventh Circuit.
Senator Nelson has worked hard for this nomination, working to get Judge Jordan’s nomination cleared by every Democratic Senators in October immediately after it was reported unanimously by the Judiciary Committee.  We were ready to vote in October.  We were ready to vote in November.  We were ready to vote before the end of the last session of Congress in December.  It is hard to believe that it is now the middle of February, over four months after Judge Jordan’s nomination was reported with the support of every Democrat and every Republican on the Judiciary Committee, and the Senate still has not voted to fill this judicial emergency vacancy affecting the people of Florida, Georgia and Alabama.  I appreciate why Senator Nelson is frustrated.  I understand why Hispanics for a Fair Judiciary and the Hispanic National Bar Association are, too.

Let me refer to some of the reporting on this.  One post begins:

“So, here’s the absurdity of our judicial confirmation process – the full Senate voted 89-5 to invoke cloture, meaning that Judge Jordan’s nomination to the 11^th Circuit would finally come to a vote.  But then Senator Nelson said that one Senator is holding up the merits vote by demanding 30 more hours of ‘debate’ post-cloture.  Senators Leahy and Boxer both then commented how ridiculous such a request was, but that’s the way it is.  It looks like we’ll have [to] wait another 30 hours for Judge Jordan to move up to the 11^th.  Silliness in our Congress . . . .”

The article in the South Florida Sun-Sentinel reports:
“South Florida lawyers praise him.  Both of Florida’s U.S. senators have recommended him.  And the Senate Judiciary Committee voted unanimously to approve his nomination.
But U.S. District Judge Adalberto Jordan of South Florida has been blocked for four months from rising to the 11^th Circuit Court of Appeals, the latest sign of a polarized and dysfunctional Senate.
A Senate filibuster that has kept Jordan waiting and the appellate court undermanned fizzled on Monday when the Senate voted 89-5 to move toward a final confirmation vote.
But Jordan is still waiting because one senator . . . objected to attempts to complete action on Monday . . . .”
I have not heard from any Republican Senators objecting to this Judge explaining what they find wrong with this highly-qualified Cuban American.   I am at a loss as to why Republican Senators continue to delay a vote on this outstanding nominee.  This nominee is beyond reproach.  This is another nomination battle that has nothing to do with the nominee and his qualifications.  This is another example of obstruction based on a collateral objective.  The people of Florida, Georgia and Alabama should not be made to suffer a judicial emergency vacancy when this highly-qualified nominee should be confirmed without further delay.  Nor did anyone come forward to explain the Senate Republicans’ delay for the last four months.   Cloture has been invoked by the Senate and the filibuster will be ended.   There was no good reason to continue to hold up a vote that has already been delayed for four months.
When I first became Chairman of the Judiciary Committee in 2001, I followed a time when Senate Republicans, who had been in the majority, had pocket filibustered more than 60 of President Clinton’s judicial nominations, blocking them with secret holds in backrooms and cloakrooms, obstructing more with winks and nods, but with little to no public explanation or accountability.  I worked hard to change that and to open up the process.  I sought to bring daylight to the process by making the consultation with home state Senators public so that the Senate Republicans’ abuses during the Clinton years would not be repeated.
When Senate Democrats opposed some of President Bush’s most ideological nominees, we did so openly, saying why we opposed them.  And when there were consensus nominees—nominees with the support of both Democrats and Republicans-- we moved them quickly so they could begin serving the American people.  That is how we reduced vacancies in the presidential election years of 2004 and 2008 to the lowest levels in decades.  That is how we confirmed 205 of President Bush’s judicial nominees in his first term.
Now we see the reverse of how we treated President Bush’s nominees.  Senate Republicans do not move quickly to consider consensus nominees, like the 15 still on the Senate Calendar that were reported unanimously last year and should have had a Senate vote last year.  Instead, as we are seeing today and have seen all too often, Senate Republicans obstruct and delay even consensus nominees, leaving us 45 judicial nominees behind the pace we set for confirming President Bush’s judicial nominees.  That is why vacancies remain so high, at 86, over three years into President Obama’s first term.  Vacancies are nearly double what they were at this point in President Bush’s third year.  That is why half of all Americans—nearly 160 million—live in circuits or districts with a judicial vacancy that could have a judge if Senate Republicans would only consent to vote on judicial nominees that have been favorably voted on by the Senate Judiciary Committee and have been on the Senate Executive Calendar since last year.
This is an area where we should be working for the American people, and putting their needs first. This is a nomination that has the strong and committed support of the senior Senator from Florida, Senator Nelson, as well as that of Senator Rubio, Florida’s Republican Senator.  Judge Jordan had the unanimous support of every Republican and every Democrat on the Judiciary Committee when we voted last October, although one Republican switched his vote last night to support the filibuster of Judge Jordan’s nomination. This is the nomination of a judge, Judge Jordan, who was confirmed to the district court by a vote of 93 to one in 1999, even while Senate Republicans were pocket filibustering more than 60 of President Clinton’s judicial nominees.
I regret that Republican Senators chose to delay a final vote on Judge Jordan’s confirmation.  He is fine man who, after emigrating from Havana, Cuba at the age of six went on to graduate summa cum laude from the University of Miami law school and clerk for Justice Sandra Day O’Connor on the U.S. Supreme Court.  He served as Federal prosecutor and Federal judge.   The needless delay of Judge Jordan’s confirmation is an example of the harmful tactics that have all but paralyzed the Senate confirmation process and are damaging our Federal courts.
It should not take four months and require a cloture motion to proceed to a nomination such as that of Judge Jordan to fill a judicial emergency vacancy on the Eleventh Circuit. It should not take more months and more cloture motions before the Senate finally votes on the nearly 20 other superbly-qualified judicial nominees who have been stalled by Senate Republicans for months while vacancies continue to plague our Federal courts and delay justice for the American people.  The American people need and deserve Federal courts ready to serve them, not empty benches and long delays.

Well done Senator.  Now let's get Judge Jordan confirmed!

Judge Adalberto Jordan confirmation stalled (briefly?)

So, here's the absurdity of our judicial confirmation process -- the full Senate voted 89-5 to invoke cloture, meaning that Judge Jordan's nomination to the 11th Circuit would finally come to a vote. But then Senator Nelson said that one Senator is holding up the merits vote by demanding 30 more hours of "debate" post-cloture. Senators Leahy and Boxer both then commented how ridiculous such a request was, but that's the way it is. It looks like we'll have wait another 30 hours for Judge Jordan to move up to the 11th. Silliness in our Congress....  (For lots of discussion, see Glenn Sugameli who is closely covering the process).

UPDATE -- Roll Call has this discussion of what happened:

Sen. Rand Paul (R-Ky.) is delaying the confirmation of Adalberto Jose Jordan to join the 11th U.S. Circuit Court of Appeals as well as a transportation bill in an effort to force Senate leaders to schedule a vote on his proposal to cut off aid to Egypt until Americans being held there are released.


The Senate voted 89 to 5 to end debate on Jordan’s nomination and now the Senate must wait 30 hours before voting to confirm Jordan, as Paul has made it known that he would object to anyone seeking to shorten the post-cloture period.

Senate Democratic leadership aides said talks with Paul are ongoing in an effort to work out a deal.

But if no agreement is reached, the vote would take place Wednesday morning, forcing the Senate to waste up to two days and halting progress on a surface transportation bill currently on the floor.

“What’s happened on the Senate floor tonight is just ridiculous,” said Sen. Barbara Boxer (D-Calif.), chairman of the Environment and Public Works Committee. “We are supposed to be on a highway bill, a bill that will protect 1.8 million jobs and create” more.

Just before the Senate adjourned for the evening, Sen. Maria Cantwell (D-Wash.), in announcing the Senate’s business for Tuesday, said Democrats expect Jordan to be confirmed Tuesday.

More from NPR here:

During the floor vote, Sen. Nelson expressed frustration at the tactic.


"Is it any wonder we can't get anything done around here?" he asked.

LINNING!

Your Monday Morning inspiration: The big news this morning is that Judge Jordan could be confirmed by lunch. Check back this afternoon for updates.

Judge Jordan to be confirmed Monday?

There's a very good chance of that according to Glenn Sugameli, who has been all over the judicial appointment process.  Here's the Senate Floor Schedule for Monday:

Following morning business, the Senate will proceed to Executive Session to consider Calendar #437, the nomination of Adalberto Jose Jordan, of Florida, to be United States Circuit Judge for the 11^th Circuit with one hour of debate equally divided and controlled between Senators Leahy and Grassley or their designees .

 Let's keep our fingers crossed.

Meantime, tonight was the big Federal Bar gala at the Hyatt.  It was packed with judges and lawyers.  Brett Barfield has done an unbelievable job as president of the organization.  Even the food was better tonight.  I think I had 8 of those mini-beef tacos.

Red Lobster and Bowling

This is a great story from the Sun-Sentinel, and Judge Hurley does the right thing:

A marital spat that began when a Plantation man didn’t wish his wife a happy birthday and then escalated into a domestic violence charge, resulted in an unusual bond court ruling by a perceptive judge.

Instead of setting bond or keeping Joseph Bray locked up, he ordered him to treat his spouse to dinner, a bowling date and then to undergo marriage counseling.

“He’s going to stop by somewhere and he’s going to get some flowers,” Judge John “Jay” Hurley said during the first appearance hearing. “And then he’s going to go home, pick up his wife, get dressed, take her to Red Lobster. And then after they have Red Lobster, they’re going to go bowling.”

Hurley emphasized that he would not have ordered such whimsical conditions for Bray, 47, if his domestic violence charge was more serious, or if his wife appeared to be injured or in danger of being harmed.

The video is worth watching so you can see that the Judge handles this just right.

Santorum!

What a day for the guy!  I can't believe what still exists as the #1 hit on Google for his name.  Shouldn't these results trump?

Other news:

1.  In dissent, the 10th Circuit makes fun of the sentencing guidelines by starting the opinion this way:

In the richness of the English language, few things can create as much mischief as
piling prepositional phrase upon prepositional phrase. The child says, “I saw the man on
the hill with the telescope.” Did the child use the telescope to see the man on the hill? Or
did the child see a man — or even a hill — bearing a telescope? A newspaper headline
heralds, “Brothers Reunited after 20 Years on a Roller Coaster.” Did the brothers
recently bump into each other at an amusement park? Or were they the long suffering
experimental subjects of some evil genius?

2.  While the 9th Circuit is deciding Prop 8, the 11th Circuit has this opinion as described by the AP:

The federal appeals court in Atlanta has rejected claims by a former counselor for the CDC who said she was was fired for refusing to advise employees in same-sex relationships because of her religious beliefs.

The court said it accepted Marcia Walden's sincerity that her devout Christian beliefs prohibited her from counseling clients in same-sex relationships. But it found Walden was laid off because her superiors disapproved of the way she referred a lesbian client to another counselor and were concerned how she would handle future referrals.

3.   The FBI isn't going to use GPS devices as much now, but they aren't happy about it or that pesky 4th Amendment:

Director of National Intelligence James Clapper said GPS surveillance is the subject of legal analysis within the intelligence community.

"We are now examining … the potential implications for intelligence, foreign or domestic," he told the Senate Intelligence Committee last week.

"That reading is of great interest to us. In all of this, we will — we have and will — continue to abide by the Fourth Amendment."

Ray Mey, a former FBI counterterrorism official, said the bureau's decision to limit GPS use, if only temporarily, poses potential risks and staffing problems.

4.  If a judge orders you to disclose a password and you forget, what happens?

A Colorado woman ordered to decrypt her laptop so prosecutors may use the files against her in a criminal case might have forgotten the password, the defendant’s attorney said Monday.
The authorities seized the Toshiba laptop from defendant Ramona Fricosu in 2010 with a court warrant while investigating alleged mortgage fraud. Ruling that the woman’s Fifth Amendment rights against compelled self-incrimination would not be breached, U.S. District Judge Robert Blackburn ordered the woman in January to decrypt the laptop.
“It’s very possible to forget passwords,” the woman’s attorney, Philip Dubois, said in a telephone interview. “It’s not clear to me she was the one who set up the encryption on this drive. I don’t know if she will be able to decrypt it.”
The decryption case is a complicated one, even if solely analyzed on the underlying Fifth Amendment issue. Such decryption orders are rare, and they have never squarely been addressed by the Supreme Court.

A similar issue was addressed by Judge Cohn, but he determined that the government could not force a suspect to disclose the password. This issue seems likely to go up to the Supremes...

Deja vu all over again

1.  What a game. Fun stuff. It's always amazing to me how close the odds-makers pick the spreads, even on the prop bets. Just an example -- the over/under on Kelly Clarkson's rendition of the National Anthem was 1:34 and she came in at 1:34 exactly.

2.  Best ad of the game:

3. In the other big game over the weekend, the Canes beat Duke in NC for the first time. Bubble team right now...

4. Closer to home, there is a debate about the word "Gypsie":

A Fort Lauderdale family of accused psychic swindlers has come under fire for allegedly conning clients out of $40 million, but one defense attorney in the case says the fortune-telling business isn’t the only thing on trial — the family’s ethnic heritage, too, has become a target. At issue: the word “gypsy,” which has been mentioned several times in the case against the Marks clan, a three-generation psychic family of Romanian Gypsy descent. Defense attorney Fred Schwartz says the word constitutes a slur, and is comparable to the N-word being leveled at African-Americans. “The connotation of the word ‘gypsy’ is a group of wandering people who go from city to city committing crimes,” said Schwartz, who accuses prosecutors of employing the word as a “tactical advantage” that will make the Marks family seem guilty. The case is expected to go to trial later this year. ***

Hogwash, say prosecutors, who insist there’s nothing inherently derogatory about saying gypsy. In court filings, Assistant U.S. Attorney Laurence Bardfeld said all the G-word hoopla amounts to nothing more than a defense team “trying to ‘muddy up the waters’ in an attempt to discredit the government.” Bardfeld noted that defense attorneys, too, had used the disputed word in open court, and he even cited several dictionary definitions of the word as further proof of its inoffensiveness. From the Oxford English Dictionary: “A member of a wandering race (by themselves called Romany), of Hindu origin, which first appeared in England beginning of the 16th [century] and was then believed to have come from Egypt.” Lastly, Bardfeld singled out one of the family members on trial, Ricky Marks. Marks has posted several family videos on YouTube in which he uses the word gypsy, including a “Gypsy Super Bowl Trip” video that also showcases the family’s collection of luxury cars — the fruits of their lucrative psychic enterprise.

5.  Yes, Rumpole, Justice Scalia even says he is "defendant-friendly."

6.  And from my favorite item of the weekend, the inmates in Vermont are pretty funny:

Prison inmates who make decals for the Vermont State Police slipped a pig into the official seal, and up to 30 patrol cars wound up sporting the subliminal epithet, the Burlington Free Press tells us. The police emblem features a cow, an evergreen tree and snowy mountains (along with three unidentifiable creatures). Back in 2008, an inmate artist at the Northwest State Correctional Facility went into the computer file and modified one of the cow's spots to resemble a pig, the common derogatory term for police, Vermont Corrections Commissioner Andy Pallito told the Free Press, like USA TODAY a Gannett paper. In 2009, the state police ordered 16-inch door decals. Pallito said he believes 60 altered decals were made. Some new cruisers have two, while older cars may have just one if a door was replaced. New decals, costing $780, are expected Monday. State officials learned of the prank Thursday. They blamed quality control at the Vermont Correctional Industries Print Shop in St. Alban. Prison authorities are trying to identify the inmate behind the Rorschach test.

Bad week of blogging

Sorry for the slow blogging this week. There just wasn't much happening in the District. I have confirmed that Bill Matthewman is going to be the new Magistrate in WPB, which is very cool. He will join Dave Brannon as the new dynamic duo up north. Brannon had his going away party last week at the PD's office, and I heard it was a great event with judges and lawyers toasting him. Have a nice Superbowl weekend. Your moment of zen:

New Times covers Pakistani Terrorist case

Here; it's their cover story. Khurrum Wahid gets some nice coverage:

Khurrum Wahid is the attorney representing the younger imam, Izhar Khan. He is a former public defender with an open face and a relaxed, scruffy goatee — the look of a working dad who can't be bothered with pretense. He says the case against the imams is based on rhetoric — the rants of an older man talking to his children. "Does rhetoric make you a terrorist?" And Izhar, he adds, is just a sweet kid who did his father's bidding. Born in Pakistan and raised in Canada, Wahid is now thoroughly American. He roots for the Dallas Cowboys. And he was working as a public defender in Miami when the twin towers fell. Wahid began representing immigrants detained for questioning in the wake of the terrorist attacks. When he opened a private practice in 2004, he started taking cases other lawyers might shun. He defended the man who was convicted of plotting to bomb New York City's Herald Square subway station in 2004, as well as Boca Raton doctor Rafiq Sabir, who was convicted of conspiring to treat wounded Al-Qaeda militants. He also recently represented Rais Bhuiyan, a convenience store clerk in Texas who tried to prevent the execution of the man who shot him in the face after 9/11. *** "I think people are more accepting of me representing a serial rapist than they are of me representing an imam [accused of] giving support to the Taliban," Wahid says.

Go Dore Go!

Nice win today for friend of blog Dore Louis (as well as Joe Rosenbaum and Marcia Silvers) before Judge Cooke. Jay Weaver has the details on this crazy case:

In October, his criminal case on cigarette smuggling charges ended in a mistrial when the FBI arrested a juror who tried to extort money from the defendant’s family in exchange for the promise of a “not guilty’’ verdict. On Monday, a federal judge threw out the charges altogether, saying prosecutors failed to make their case against the Davie construction executive at his second jury trial. Marrero’s two-step journey rarely, if ever, happens in Miami federal court. “They were prosecuting an alleged fraud that occurred in Europe in a U.S. court,” said Marrero’s attorney, Joseph Rosenbaum. “They never should have charged him in the first place.” A year ago, Marrero, 48, was charged with conspiracy and money laundering. The indictment accused him of trying to “enrich himself” by buying cigarettes overseas, hiding the cartons inside cargo containers at the Port of Miami and shipping them to Portugal, Ireland and Germany — without attaching proper documents or paying customs duties. But U.S. District Judge Marcia Cooke granted Rosenbaum’s motion for acquittal after the prosecution rested its case, saying the statute of limitation in the conspiracy case dating back to 2001 had expired. Cooke’s judgment of acquittal followed a guilty plea earlier this month by one-time juror Italo Campagna, just as Marrero’s second trial was getting underway. Campagna, 55, of Miami, was charged with soliciting a bribe after demanding between $50,000 and $100,000 from Marrero’s relatives to sway the 12-person jury during the first trial in October. Marrero and his family immediately contacted authorities.

Heron!

I wish I had some SDFLA news for you, but I don't, so here are your Monday morning videos:

Ugly fight over federal judges

Robin McDonald covers the dispute here in which the two Georgia senators agree that Jill A. Pryor and Mark H. Cohen should be federal judges, but they want Cohen to go to the 11th and Pryor to the district court even though President Obama is vetting them for the opposite positions:

Republican Sens. Saxby Chambliss and Johnny Isakson on Tuesday sent a letter to the White House saying they would support Cohen, a partner at Troutman Sanders, for the 11th Circuit vacancy, and back Pryor, a Bondurant Mixson & Elmore partner, for a vacant post on the district court.
In an eight-line letter to the White House counsel, the senators also resurrected the name of a third candidate, U.S. Magistrate Judge Linda T. Walker, whose nomination for another district court vacancy was returned to the White House in December at the apparent request of the president's staff. The letter, on Isakson's stationery but signed by both senators, notified White House counsel Kathryn Ruemmler that the senators would return "blue slips" to the U.S. Senate Judiciary Committee on Cohen for the 11th Circuit and Pryor and Walker for the district court. A blue slip is the Senate's traditional indication that a nominee has received the approval of his or her home state senator. But the American Bar Association's Standing Committee on the Federal Judiciary has been vetting Pryor for the 11th Circuit post, according to Fulton County Superior Court Senior Judge Melvin K. Westmoreland. 

Meantime, Senators are threatening to stall all appellate appointments over the recess appointment dispute with the President.  Even though Judge Jordan has support from both sides of the aisle, such a move would hurt his chances.  Apparently, Senator Rubio has said that he is not going to support an across the board rejection of Obama's nominees.  For Judge Jordan's sake, I hope that politics don't jam him up.

FIU hosts Justice Alito at moot court finals

Dean Alex Acosta was rightfully beaming tonight, as his law school had its final round of moot court with a bench of Justice Alito, Judge Marcus, and Judge Barkett.  Here is Acosta introducing the final round with the judges in the background:

Lots of judges in town came to the festivities.  Here's a picture of Judges Huck and Altonaga with the panel:

The participants were Sherman Davis, Matthew Rogoff, Nicholas Greene, and Jeremy Chevres; and the issues hit close to home -- the GPS/4th Amendment issue (couldn't Justice Alito have convinced the Court to release Jones next week?!) and the Padilla retroactivity issue. Everyone did a nice job.

73-year old man pleads guilty in large fraud case

Via Curt Anderson:

A prominent businessman pleaded guilty Wednesday to fraud in a $135 million real estate scheme that fleeced hundreds of investors, including the Roman Catholic prep school he once attended.
Gaston Cantens, 73, faces up to five years behind bars after pleading guilty to a single count of wire and mail fraud conspiracy. U.S. District Judge Kathleen Williams set sentencing for April 4.
Cantens also lured investors from Miami's close-knit Cuban-American community, many of them elderly and some Roman Catholic priests.
One victim, 80-year-old Eduardo Arango, said he lost about $800,000 investing with Cantens. He called the plea agreement "a sweet deal" because Cantens could have faced more charges and a longer prison sentence.
"Most of the victims were people who are very aged. They lost whatever their resources were. They have suffered," Arango said.

Another GOP debate tonight.  Too bad Ali-G isn't the moderator:

Read more here: http://www.charlotteobserver.com/2012/01/25/2957872/religious-fla-prep-school-a-victim.html#storylink=cpy

Why blogs are awesome

Legal blogs are buzzing over yesterday's GPS ruling in Jones.  Before we had blogs, we would have to wait for law professors to write law review articles that no one would read.  But now, we have instant access to tons of great commentary about the decision. 

Orin Kerr over at Volokh has a number of really interesting posts on the opinion, including this one which discusses Scalia's trespass ruling in Jones and this one which raises three questions to think about after Jones.  I also found interesting Tom Goldstein's reaction about how the government didn't really lose as badly as everyone says it did. 

The beauty of all of this is that there is some really great, high powered opinions and commentary available to everyone right away.

And here is your moment of zen for the day:

SCOTUS decides GPS monitoring is a search

Per Justice Scalia: "The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment."

Here's the opinion. This is a biggie, and a huge loss for the feds who were fighting hard. Scalia backs away from the traditional Katz test:

This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th centurywas tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particularconcern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, butnot substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165, 176; Soldal v. Cook County, 506 U. S. 56, 64. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705—post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position. Pp. 4–12.

Justice Sotomayor doesn't like this analysis and concurs to explain that all this old stuff may need to be re-examined in light of evolving technology:

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a greatdeal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellu- lar providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medi- cations they purchase to online retailers. Perhaps, asJUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to acceptthis “diminution of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protectedstatus only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. See Smith, 442 U. S., at 749 (Marshall, J., dissenting) (“Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes”); see also Katz, 389 U. S., at 351–352 (“[W]hat [a person] seeks to preserve as private,even in an area accessible to the public, may be constitutionally protected”).

Justices Alito, Ginsburg, Breyer and Kagan also concur, but disagree with Scalia's property analysis, and would stick to the Katz reasonable expectation of privacy test.

Now Justice Stevens engages Steven Colbert--hilarious

The Colbert Report
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Big win for Roy Black in the 11th Circuit

The case is USA v. Ignasiak, and the 11th Circuit per Judge Martin vacates the convictions of this doctor in a pill mill prosecution:

After carefully reviewing the record and having the benefit of oral argument, we reverse Ignasiak’s convictions because the admission of autopsy reports and testimony about those reports, without live in-court testimony from the medical examiners who actually performed the autopsies (and where no evidence was presented to show that the coroners who performed the autopsies were unavailable and the accused had a prior opportunity to cross examine that witness), violated the Confrontation Clause under the facts of this case. Because we conclude that the fourth issue is dispositive, we decline to address the other issues raised in Ignasiak’s merits appeal, except for the sufficiency 2 of the evidence claim.3 While we ultimately conclude that the evidence was sufficient, the degree to which we view the government’s case as less than overwhelming compels our conclusion that the Confrontation Clause violation was not harmless in this case. To give our harmful error determination sufficient context, it is necessary to describe the evidence in some detail.

The Court also has a very interesting discussion of the government's expert witness at pgs. 43-48 in which the government claims that it was not Brady material that its expert had previously committed federal crimes and that the information should remain under seal:

The Notice revealed for the first time that Dr. Jordan engaged in criminal conduct beginning at an unspecified time up to and continuing until 2006. Specifically, Dr. Jordan had, on nine separate occasions, used a counterfeit badge and his United States Marshal credentials to pose as an on-duty U.S. Marshal in order to carry firearms on commercial airplanes while on personal travel. On the ninth flight, a Transportation and Security Administration (“TSA”) agent discovered Dr. Jordan’s ploy, and seized the weapons, counterfeit badge, and Marshal Service credentials. The South Dakota U.S. Attorney’s Office opened an investigation of Dr. Jordan. Although Dr. Jordan had engaged in similar criminal conduct at least eight times before, thereby committing multiple violations of 18 U.S.C. §§ 912 and 1001 and 49 U.S.C. § 46505, the South Dakota U.S. Attorney allowed Dr. Jordan to enter into a “pre-trial diversion agreement” in which Dr. Jordan paid $2,000 and agreed not to carry any concealed weapons except while on official business. 

The government filed this information under seal and asked for it not to be made public because of the expert's right to privacy.  I kid you not:
 

Thus, while it is true that Dr. Jordan’s privacy interests sit on one side of the balance, it is “the interest of the public in accessing the information” that rests on the other. Id. And, in this case, the public has a great interest in learning the contents of the Notice—namely, learning the highly material fact that Dr. Jordan, a repeat government expert witness, abused his government authority and committed acts which could have been charged as felonies. To say that the defense would have preferred to use this information to discredit Dr. Jordan’s testimony is almost certainly an understatement. Perhaps ironically, by arguing that there was no Brady violation in this case because the AUSA prosecuting Ignasiak was unaware of Dr. Jordan’s history, it is actually the government that most persuasively highlights the value in unsealing the Notice. Indeed, should the Notice remain sealed, the significant likelihood is that in the next CSA prosecution in which Dr. Jordan testifies as an expert, both the prosecuting AUSA and the defense counsel will again be unaware of the highly relevant impeachment evidence contained in the Notice. And in that case, as in this one, should the truth ever come to light, the government could again point to its own ignorance and claim immunity from Brady error. Stated this way, we would have expected the government to condemn, rather than condone, such a problematic outcome. But instead the government asserts that Dr. Jordan’s privacy interest outweighs the public’s right to know the extent of Dr. Jordan’s involvement with the government. To be sure, in some cases a party may overcome the presumption of openness if it can show “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510, 104 S. Ct. 819, 824 (1984). Indeed, the government correctly points to two categories of witnesses whose privacy interests are understandably paramount: victims in sex crime cases and criminal informants. Dr. Jordan is neither. Rather, he is an expert witness who, at a rate of $300/hour, voluntarily accepted employment which required him to testify against Ignasiak. Indeed, Dr. Jordan testified that he has been paid “around” $30,000 for his service as the government’s expert in this and other cases. While the fact of his paid status does not make him amenable to any sort of unfair or immaterial character attack, it does greatly reduce, if not altogether eviscerate, his expectation to keep impeachment evidence private. The government is thus right that courts should protect witnesses like Dr. Jordan from “unwarranted invasion” into their privacy. But we cannot agree that impeachment evidence concerning a highly compensated and voluntarily appearing expert witness is either “unwarranted” or an “invasion” into that witness’s privacy.

 Congrats to Roy Black, Richard Strafer, Jackie Perzcek and the whole team over there for this great win.

Colbert is awesome

This is too good to pass up:

The Mandels score...

... to the tune of $67 million. Here's Curt Anderson on what happened:

A federal jury decided Wednesday that Toronto-based TD Bank owes an investment group $67 million for its role in a $1.2 billion Ponzi scheme that was operated by a now disbarred attorney, Scott Rothstein.

The verdict came in a lawsuit filed by Coquina Investments, based in Corpus Christi, Texas. It was the first to go to trial of several pending lawsuits filed by wronged investors against the bank and others. Coquina attorney David S. Mandel said the jury "sent exactly the right message to TD Bank."

Congrats to David and Nina Mandel who have been working very hard on this case.  Judge Cooke presided over the first of what will be many Scott Rothstein-related civil trials.  

New Times honors blog

Thanks to the New Times and Francisco Alvarado for the honorable mention and saying that the blog is "the definitive source on South Florida's federal court system, reporting and opining on judicial appointments to high-profile cases."  Pretty cool!

So, in that vein, the latest news on the WPB magistrate is that AUSA Kim Abel has withdrawn her name from consideration.  I've been told that the slot has now been offered to Bill Matthewman, but I haven't been able to confirm it yet.  As soon as I do, I will post.

Streets around federal courthouse closed (UPDATED)

Apparently there is a suspicious package.

UPDATE -- they just blew it up.  See picture below:

A fool for a client...

1.  So, I got a ticket and I'll be representing myself in the Justice Building this afternoon because Rumpole refuses to represent me.  Should I channel Woody Allen from Bananas?

2.  My favorite scene from the debate last night:

Feds indict one of their own

Yikes.  From the Sun-Sentinel:

A member of the U.S. Attorney's Office in Miami and eight other South Floridians have been arrested in an alleged cocaine and oxycodone trafficking ring, federal authorities said Friday.

Tamika Jasper-Barbary, 36, a legal assistant in the Grand Jury Suite of the United States Attorney's Office in Miami, is accused of participating in a conspiracy to distribute large amounts cocaine and oxycodone, the U. S. Department of Justice said. ...

Jasper-Barbary also was charged with obstructing justice during a federal grand jury proceeding, officials said. ...



Because the allegations involve a member of the U.S. Attorney's Office in Miami, the U.S. Department of Justice recused the Southern District of Florida, at that office's request, from investigating and prosecuting the case, the Justice Department said.

"He's tried to rule the state like Boss Hogg and he didn't think the law applied to him."

Oh no he didn't!  Even though this deals with the Mississippi justice system, any Boss Hog reference will be posted here (you rarely hear an Uncle Jesse reference...).  Plus, there's nothing like a good fight between two branches of government.  From CNN:

Mississippi's attorney general chastised former Republican Gov. Haley Barbour after a judge issued a temporary injunction forbidding the release of any more prisoners Barbour pardoned or gave clemency to before leaving office this week.
State Attorney General Jim Hood said Barbour violated the state's constitution because the pardon requests for many inmates were not published 30 days before they were granted, as required.
Mississippi is one of the few states that requires advance notice.
***

Hinds County Circuit Court Judge Tomie Green issued the injunction Wednesday, saying it appeared some pardons, including those for four murderers, did not meet the 30-day requirement. Any inmates released in the future must meet the standard, Green ruled.
On his way out the door, the governor approved full pardons for nearly 200 people, including 14 convicted murderers, according to documents the Mississippi secretary of state's office released Tuesday.
The four murderers who received full pardons last week -- David Gatlin, Joseph Ozment, Charles Hooker and Anthony McCray -- were cited in Green's order.
They were all serving life sentences and worked as inmate trusties at the governor's mansion, said Suzanne Singletary, spokeswoman for the Mississippi Department of Corrections. Trusties are inmates who can receive additional rights through good behavior.
Hood told "AC360" that it's possible that those who didn't meet the 30-day requirement may have to return to prison and complete their sentences.
Barbour said Wednesday that some people misunderstand the clemency process and believe that most of the individuals were still jailed.
"Approximately 90 percent of these individuals were no longer in custody, and a majority of them had been out for years," he said in a statement.
"The pardons were intended to allow them to find gainful employment or acquire professional licenses as well as hunt and vote. My decision about clemency was based upon the recommendation of the Parole Board in more than 90 percent of the cases," Barbour wrote. "The 26 people released from custody due to clemency is just slightly more than one-tenth of 1 percent of those incarcerated."

 Sounds like Barbour was well-intentioned.  The clemency process was traditionally a check on prosecutors and was used as a way for the government to show mercy, a quality we hear discussed all the time but that is rarely practiced.  Unfortunately, politics have really gutted the process and it's rarely used anymore.  And then when it is, like in this case, everyone gets nuts and starts referencing Dukes of Hazzard.  

Judge Scola speaks to Federal Bar Association

It was a fun and entertaining talk in which he answered questions from the audience.  Lots of interesting answers, including that his current favorite Supreme Court Justice is Justice Kennedy because of his objectivity and because you don't know which way he is going to rule.  He also mentioned reading the South Florida Lawyers Blog.  I think Rumpole and I should feel offended!

What a day at the Federal Public Defender's Office

The office won two appeals and a trial today.

1.  Bernardo Lopez won United States v. Spriggs, which created a circuit split with the 8th Circuit:

Appellant Timothy Spriggs pled guilty to one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2).  At sentencing, over Spriggs’s objection, the district court applied a five-level enhancement for distribution of illicit images for the receipt, or expectation of receipt, of a non-pecuniary thing of value. See U.S. SENTENCING GUIDELINES MANUAL § 2G2.2(b)(3)(B) (2010).  Spriggs argues that no evidence supports application of the enhancement. We vacate the sentence and remand because, although we find evidence that Spriggs distributed illicit images, there is insufficient evidence to support the other elements of the five-level enhancement....
The Eighth Circuit applies the five-level enhancement if the defendant “expected to receive a thing of value — child pornography — when he used the file-sharing network to distribute and access child pornography files.”  United States v. Stultz, 575 F.3d 834, 849 (8th Cir. 2009).  Because file-sharing programs enable users to swap files, the court reasoned that no additional evidence is needed to establish the type of transaction contemplated in the Guidelines.
We have a different view, however, of the function and operation of filesharing programs than that of the Eighth Circuit.  File-sharing programs exist to promote free access to information. Generally, they do not operate as a forum for bartering.  For example, file-sharing programs permit a person to access shared files on peer computers regardless of whether the person in turn shares his files.  The files are free.  Because the transaction contemplated in the Guidelines is one that is conducted for “valuable consideration,” the mere use of a program that enables free access to files does not, by itself, establish a transaction that will support the five-level enhancement.  Accordingly, we disagree with the approach taken by the Eighth Circuit.

2.  Sam Randall and Vince Farina won United States v. Grajales, in which the 11th Circuit reversed a conviction, holding that the trial court should have given an entrapment instruction.  Interestingly, the court also found two other appellate arguments raised by the dynamic duo had merit.  Three reversible errors in one appeal is not common.  I'm not sure why the court didn't publish the opinion.  From the intro:

After a jury trial, Alberto Grajales appeals his convictions for conspiring and attempting to interfere with commerce by robbery, in violation of 18 U.S.C. § 1951(a); conspiring and attempting to possess with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. § 846; and possessing a firearm in furtherance of a crime of violence and a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Grajales raises three issues on appeal. First, he argues that the district court erred when it refused to instruct the jury on his entrapment defense. Second, Grajales argues that the district court erred when it instructed the jury that his honestly held belief that he was helping law enforcement also had to be objectively reasonable in order to negate his specific intent. Finally, Grajales argues that the district court erred when it prevented him from testifying regarding non-hearsay statements that were crucial to his defense. For the reasons set forth below, we reverse.

3.  Aimee Ferrer and Helaine Batoff obtained a not guilty verdict before Judge Graham.  I'm working on getting the details of that case.

Romney: "I don't know whether a state has a right to ban contrapception."

This is a pretty amazing exchange that I don't think has been really covered in the news.  Is it possible that Mitt Romney doesn't know Griswold v. Connecticut?  Yikes.  (And why were there debates on Saturday night and then 10 hours later on Sunday morning?) 

In news closer to home, the Rothstein mess won't go away.  Jay Weaver writes an in-depth piece about the case here.  From the conclusion to the story:

One major mystery still hangs over the Rothstein case: During the deposition he was confronted by attorney Mary Barzee-Flores about whether he had “conned” and “fooled” a bunch of national politicians during the course of his Ponzi scheme.
Barzee-Flores, who is representing Gibraltar Bank, where Rothstein had also kept his firm’s trust accounts, rattled off a series of big names: former President George W. Bush; GOP presidential candidate John McCain; his running mate, Sarah Palin; U.S. Sen. Joseph Lieberman from Connecticut; and former California Gov. Arnold Schwarzenegger.
Rothstein, who served as a delegate to the 2008 Republican National Convention and also served on a Florida commission that recommends judges to the governor for appointment, admitted he “fooled” them all.
Rothstein was also asked whether he “fooled” Crist, who ran for the U.S. Senate in 2010, or Martinez, the former U.S. senator from Orlando who resigned his seat before finishing his term, saying he wanted to spend more time with his family.
But Rothstein was not allowed to answer the questions about the two Florida politicians because of objections raised by the lead federal prosecutor in the criminal case, Lawrence LaVecchio, who cited “investigatory privilege.” Legal experts said LaVecchio objected because his team is still investigating political donations that Rothstein and other members of his firm made to their campaigns.
Neither Crist nor Martinez returned phone messages seeking comment.

Read more here: http://www.miamiherald.com/2012/01/07/v-fullstory/2578887/rothsteins-ex-buddies-brace-for.html#storylink=cpy

Franky the drug dog goes to Washington

The Florida Supreme Court held earlier this year that police couldn't use dogs to sniff a person's house.  Now the Supreme Court will decide the issue.  From Curt Anderson:

In a case closely watched by law enforcement nationwide, the U.S. Supreme Court agreed Friday to decide whether a Florida police dog's sniff outside the front door of a house with a marijuana growing operation is an illegal search.
Florida Attorney General Pam Bondi wants the justices to reverse a state Supreme Court decision that the K-9's sniff runs afoul of the Fourth Amendment protection against illegal search and seizure. Eighteen states and the territory of Guam have filed a brief in support of Bondi's position, concerned that other state courts might start issuing similar decisions.
"If the Florida Supreme Court's decision stands, it could have a profound chilling effect on law enforcement efforts to combat illegal drugs," the states' filing says. "The Florida Supreme Court's decision jeopardizes the states' ability to use this crucial tool to discover illegal drugs prior to their distribution."

I'm not sure what the chilling effect would be...  And the last quote -- that the decision impacts the states' ability to nab criminals -- is true of the 4th Amendment in every case.  But, I'm not sure the Florida Supreme Court's opinion will have much of a shot with this Court...

Pryor times two

Looks like we may get another Judge Pryor (Jill) on the 11th Circuit (no relation to Judge Bill Pryor).  It's Alyson Palmer day at the SDFLA Blog.  From her article:

It appears the White House has landed on Atlanta litigator Jill A. Pryor as its new choice for Georgia's vacant seat on a federal appeals court.
Fulton County Superior Court Senior Judge Melvin K. Westmoreland told the Daily Report that he recently received an inquiry about Pryor from the American Bar Association committee that rates White House nominees for the federal bench. He said the ABA committee's representative wrote to say the committee was evaluating Pryor because she is being considered for a position on the 11th U.S. Circuit Court of Appeals.The administration of President Barack Obama has struggled to fill a Georgia-based spot on the 11th Circuit vacated in August 2010 by Judge Stanley F. Birch Jr., who retired.A year ago, the ABA committee vetted Mercer University law professor Daisy Hurst Floyd for the opening, but Obama didn't nominate her. Now the administration finds itself without a nominee at the start of an election year, historically a tricky time for getting a judicial pick through the Senate.Pryor, 48, is a partner at Bondurant Mixson & Elmore, a politically connected litigation boutique. She declined to comment for this story.Born in Harrisburg, Pa., Pryor received her undergraduate degree from the College of William & Mary before going to Yale Law School, where she was senior editor on the Yale Law Journal. A paper she wrote there on an obscure topic—the meaning of the constitutional provision that only a "natural-born citizen" can become president—received some attention during the 2008 campaign, when questions surfaced about whether Republican nominee John McCain, born on a military installation in the Panama Canal Zone, was ineligible for the office. "If I were on the Supreme Court, I would decide for John McCain," Pryor told The New York Times, adding that the question wasn't frivolous.After graduating from Yale in 1988, Pryor served a term as a law clerk to a relatively new, conservative 11th Circuit judge from north Georgia, J.L. Edmondson. She went on to work at Bondurant, where she has handled complex business cases both at trial and on appeal.

Anders briefs

I never understood why criminal defense lawyers file Anders briefs in the 11th Circuit.  An Anders brief is where an appointed lawyer tells the court of appeals that there are no issues worth briefing and then asks the court for permission to withdraw.  But there are almost always issues to raise... 

Alyson Palmer has a good example of one in today's DBR, where a lawyer filed an Anders brief, and the court of appeals denied it, saying that the lawyer should examine the plea colloquy:

A federal appeals court has granted a tax fraud defendant a new chance for a trial after one of its judges flagged an issue that prevailed on appeal.

The court's unusual intervention in the case of Anthony Davila set up an 11th U.S. Circuit Court of Appeals decision that an Augusta, Georgia, federal magistrate judge erred by getting too involved in the plea bargaining process.

The 11th Circuit panel concluded comments by U.S. Magistrate Judge W. Leon Barfield violated the rule against judges' involvement in plea negotiations.

The comments came at a hearing addressing Davila's request to fire his court-appointed attorney. Barfield told Davila that "there may not be viable defenses to these charges" and that the only thing at his disposal was accepting responsibility for his crimes as a way to get a reduced sentence, according to the transcript.

Accepting responsibility, Barfield told Davila, would require Davila to "go to the cross" and tell the probation officer preparing his sentencing report everything he had done.
At the 11th Circuit, prosecutors acknowledged Barfield's comments crossed the line but argued the remarks didn't merit a reversal.

Davila's attorney, Michael N. Loebl of Fulcher Hagler in Augusta, initially didn't raise any appellate claim based on the comments, at first filing a brief saying Davila didn't have any basis to appeal his conviction or sentence.

But the 11th Circuit rejected Loebl's brief and pointed him to the idea that the magistrate judge made a mistake that could win Davila a new trial.

"Scott, relax"

That was Scott Rothstein's lawyer during the two-week long depo after Mary Barzee Flores was able to really get under his skin. 

I love reading transcripts of great cross-examinations, and Mary really devastates Rothstein (her cross starts at page 2393 and the whole thing is definitely worth reading). The blogs are abuzz about this exchange (at page 2427):

Q At some point Debra Villegas' best friend and then your former lover was murdered?


A That's correct. She was.

Q She was murdered because she knew too much, right?

A Excuse me? Are you attempting to insinuate that I had something to do with that poor girl's death? Have you lost your mind?

Q You would deny that?

A I would deny it? You're disgusting. Everyone knows that I wasn't involved in it. That's disgusting.

Q How about Julie Timmerman?

A No. No. That is disgusting. Okay. I was a criminal involved in white-collar crime, involved in fraud and the like, involved with the mob and corrupt politicians and corrupt law enforcement. I'm paying for that. Melissa Lewis was a good person. She didn't know too much. She was killed by a psychopath. And you're disgusting for doing that.

Q You gave Debra Villegas a house, right?

A Why drag her family through that? They're going to have to read this, for your purposes, to defend John Harris, who's guilty.

Q You gave Debra Villegas a house --

A You should be ashamed.

Q -- right?

THE WITNESS: I want five minutes. You should be ashamed of yourself. You think I should be in jail. You should be ashamed.

MS. BARZEE FLORES: We'll talk about Julie Timmerman when you come back.

THE WITNESS: You're a disgusting human being. You're the only one out of this entire group of lawyers. You are truly, truly a disgusting human being.

MR. NURIK: Scott, relax. (Thereupon, a recess was taken.)

This exchange made me laugh:

Q You've violated oaths before, though, haven't

you, sir?

A In my prior incarnation, I certainly did.

Q You violated your oath as an attorney?

A I did.

Q You lied to judges?

A I did.

Q You put money, filthy lucre, ahead of your

clients' interests?

A Filthy lucre?

Q Yes. Money?

A Yes. I know what "lucre" is. I've just never

heard anyone use that in a question before.

Q It's in the oath, sir.

A I know it is. I remember the oath. I just --

"for lucre or malice," I remember that. Yes, I violated

that oath.

Welcome Back!

Happy new year everyone!

A quick morning roundup:

1. Justice Roberts is defending Justices Thomas and Kagan on the recusal issue:

Chief Justice John G. Roberts Jr. defended his colleagues as “jurists of exceptional integrity and experience” and said Saturday that it was a misconception that Supreme Court justices do not follow the same set of ethical principles as other judges.

In his year-end report on the state of the federal judiciary, Roberts for the first time addressed a growing controversy about when justices should recuse themselves from cases and whether a code of conduct that covers lower-court judges should apply to the justices as well.
***

Roberts said the public should keep in mind a key difference between lower-court judges and Supreme Court justices: While lower-court judges can be replaced when they recuse themselves from cases, that is not the case at the “court of last resort.”

“A justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy,” Roberts wrote. “Rather, each justice has an obligation to the court to be sure of the need to recuse before deciding to withdraw from a case.”

Allowing the court itself to decide whether justices should recuse, Roberts said, “would create an undesirable situation in which the court could affect the outcome of a case by selecting who among its members may participate.”

2.  In the NY Times, Peter Henning discussed white-collar prosecutions in 2011 and what to expect in 2012, but no mention of Scott Rothstein.  Blasphemy!

3.  Ellen Podgor gives out her "White Collar Crime Awards" here.  My favorite, of course: The award for "Sentencing Sanity - To Hon. Ellen Huevelle for consistently rejecting DOJ's draconian sentencing recommendations ."

4.  I also enjoyed reading this article about a big firm lawyer who spent a year as a prosecutor.  Her take on how she handled so many cases:

"Controlling a room, or at least giving the impression you're in control, is absolutely fundamental," she says. "When people came to that room, I was gracious, but I treated them like a guest." That meant police officers, victims, defendants, bailiffs, court clerks, defense attorneys, and even "the judge, frankly, was a guest."

Happy Festivus

Yes, it's that time of year again: Enjoy the holidays everyone. The blog is going to be shut down next week. See you back on January 2, 2012. Happy New Year.

Another holiday NG

A few posts ago, I told you about Steve Bronis and Paul Calli taking on the feds up in DC. Well today, the judge (Richard J. Leon) entered a Rule 29 for their client in a large FCPA case after a twelve week trial. Very sweet win for these guys who have been working very hard out of town for a long time. Congrats.

Getting to Not Guilty

Well, Judges Kathy Williams and Bob Scola have their first federal trials under their belts. The jury in both cases came back with not guilty verdicts across the board. Nice holiday presents to the defendants!

Paul Calli takes on the feds in DC

More misconduct in a high profile trial. Main Justice covers the story, but you need to be a member to access the content: UPDATE -- MAIN JUSTICE CALLED ME AND SAID I NEEDED TO TAKE DOWN THE CONTENT THAT I POSTED. OH WELL...

Happy Hanukkah

DBR's year in review

It's a fun read.  And it's been a typical Miami year, and that means craziness.  From Rothstein to Nevin Shapiro to Lewis Freeman... the "only-in-Miami" list goes on and on. 

Other than the Rothstein depo, I think everything else is pretty much shut down for the next two weeks. 

If anything is going on, email me!

Miami's new magistrate

Congrats to Alicia M. Otazo-Reyes, our newest magistrate.  She was Judge Highsmith's career law clerk, from 1991-2002.  She currently works at Legon Ponce & Fodiman.  Excellent news during the holiday season!

All quiet...

Nothing really going on here in the Southern District, so we'll see you on Monday.  In the meantime, use the comments to predict Barry Bonds' sentencing, which is today.  He is asking for house arrest and the government is asking for 15 months.  Talk to me.

UPDATE --  No jail time.  2 years house arrest.

Exploding federal criminal code

The Wall Street Journal is doing a nice job (here and here) covering how ridiculous the federal criminal code has become.  (Previous coverage of the Maple Syrup proposal on this blog here). From the WSJ:

The federal criminal code has grown so large it ensnares everyday citizens who have no idea they are violating the law, a bipartisan group of legal experts told a House panel Tuesday.

There are about 4,500 criminal statutes, said Edwin Meese, attorney general under President Ronald Reagan and now with the conservative Heritage Foundation. "This is in addition to over 300,000 other regulations that don't appear in the federal code but nevertheless carry essentially criminal penalties including prison," he said. "So the vast array of traps for the unwary that lurks out there in federal criminal law is more extensive than most people realize." The Administrative Office of the U.S. Courts figures some 80,000 defendants are sentenced in federal court each year.

Rep. F. James Sensenbrenner (R., Wis.), chairman of the House Judiciary Committee's panel on crime, terrorism and homeland security,and several panelists cited an article in Monday's Wall Street Journal, part of a yearlong series about the expansion of the federal criminal code and the erosion of "criminal intent" requirements. The article chronicled the conviction of one Maryland man for actions prosecutors said weren't intentional. It explained how Lawrence Lewis ended up with a federal criminal record while trying to deal with clogged toilets at a military retirement home in Washington, D.C.
"He was subject to the same law that [would apply to] somebody who knowingly, willingly dumped toxic materials into a navigable water," said Mr. Sensenbrenner, who has introduced a bill to shrink the federal criminal code by a third and to define the level of criminal intent necessary to break the law.

"The only way I cannot die in prison is to tell the truth."

That was Scott Rothstein at his depo today -- and the lawyers were apparently buying it:

“I first asked him a little bit about why we should believe him,” said attorney Charles Lichtman, with the Fort Lauderdale law firm Berger Singerman, which is representing the bankruptcy trustee seeking to recover millions of dollars for investors and creditors. “I think Scott came off as extremely credible,” Lichtman said. “It was a nonstop dialogue about all aspects of the scheme. I guarantee the public has not heard a fraction of what happened. He ties together everything in a logical way.” Fort Lauderdale attorney William Scherer, who is suing Rothstein and others in a parallel civil case, backed that assessment. “In my judgment, he’s telling the truth,” said Scherer, who is representing 25 investors who lost $160 million. “It’s much worse than I realized. I’m saddened by some of what I’m hearing about my profession and my town.” Scherer, Lichtman and other lawyers interviewed outside the federal courthouse were reluctant to reveal the names of potential co-conspirators fingered by Rothstein in his deposition. But they said he spread the blame beyond himself, to colleagues in his former 70-attorney law firm to employees at the firm’s one-time bank, Toronto Dominion.

Let's bring in the criminal defense lawyer for some perspective here before we declare Rothstein the definition of truth: “It’s obvious to me there are people he’s going after and there are others he’s trying to protect,” said criminal defense attorney Sam Rabin, who is representing TD Bank vice president, Frank Spinosa. Spinosa dealt directly with Rothstein and is under criminal investigation.

Judge Trott from the Ninth Circuit has a good seminar on informants that he teaches to prosecutors. I wonder what he would say about Rothstein. This is a passage in which he tells prosecutors to commit to memory:

Criminals are likely to say and do almost anything to get what they want, especially when what they want is to get out of trouble with the law. This willingness to do anything includes not only truthfully spilling the beans on friends and relatives, but also lying, committing perjury, manufacturing evidence, soliciting others to corroborate their lies with more lies, and double-crossing anyone with whom they come into contact, including the prosecutor. A drug addict can sell out his mother to get a deal, and burglars, robbers, murders, and thieves are not far behind. Criminals are remarkably manipulative and skillfully devious. Many are outright conscienceless sociopaths to whom "truth" is a wholly meaningless concept. To some, "conning" people is a way of life. Others are just basically unstable people. A "reliable informant" one day may turn into a consummate prevaricator the next.

There's going to be a long line at the King building

That's where Scott Rothstein's depo will start this morning. And there will be lots of lawyers. According to Jay Weaver:

Just obtaining permission for his deposition was an ordeal, requiring dispensation from U.S. District Judge James Cohn, who is presiding over the criminal case, and the U.S. attorney’s office, which has charged eight defendants including Rothstein so far and plans another major racketeering indictment. “Obtaining Rothstein’s deposition is critical in order for the trustee to fully investigate all matters related to the Ponzi scheme,” Fort Lauderdale lawyer Paul Singerman, whose firm is working for the trustee, wrote in court papers. The goal is to “learn facts about potential targets and existing defendants ... as well as to have a complete understanding of the assets and liabilities of RRA, and the various roles that insiders, creditors and other third parties had with respect to the Ponzi scheme and the events at [the law firm].”

UPDATE -- why are people lining up at the King Building? They should be in Judge Cooke's courtroom -- RRA's computer guy is on the stand right now! (10:35am)

Judge Scola's investiture

It was really nice. Good speakers (including Pam Perry, John Hogan, Carl Kafka, Marilyn Milian, and John Thornton) who had heart-felt remarks about Judge Scola. A great addition to the federal bench.

The only downside -- I was hungry by the end of it.

Supreme Foodies

Pretty neat: The Supreme Court Justices' spouses published a book with Martin Ginsburg's recipes. Martin, the late spouse of Ruth Bader Ginsburg, loved to cook. From the BLT:

Just in time for the holidays, the Supreme Court Historical Society today began selling a cookbook full of recipes by Justice Ruth Bader Ginsburg's husband Martin, who died in June, 2010. Entitled "Chef Supreme," the book is also a fond tribute to Martin Ginsburg, a prominent tax lawyer and scholar in addition to his after-hours avocation as a chef and gourmand.

Martha-Ann Alito, the wife of Justice Samuel Alito Jr., spearheaded the cookbook effort on behalf of the other Supreme Court spouses, who got to know him at Court events including lunches organized by the spouses. The 126-page book was published by the Supreme Court Historical Society.

"Marty's gleeful smile, his mischievous wit, perfect manners and his adoring gaze of Justice Ruth enlivened every event we as spouses shared," Martha-Ann Alito wrote in an afterword to the book. "His benchmark warmth, culinary excellence and considerate birthday cakes remain goals to be attained by this most junior spouse. He lives on as an inspiration to me."

The recipes in the spiral-bound book range from gravlax to vitello tonnato, osso buco to chocolate chip oatmeal cookies, and are set forth in careful detail. The recipe for the "perfect baguette" runs six pages, including color photographs.

You can buy the book here.

In other news, Blago gets 14 years. Appropriate sentence or too high?

Cameras in the Supreme Court?

The Senate had hearings today on this issue, and SCOTUS Blog has the scoop here. You know my views -- it makes no sense to me that the court proceedings are closed. Sunshine and all that...

Speaking of the Supreme Court, it heard argument today on another confrontation clause case. Here's Tom Goldstein's summary of what the case is all about:

Tomorrow, the Justices will hear argument in Williams v. Illinois, the next in the line of cases involving the Court’s more defendant-friendly interpretation of the Confrontation Clause. The question is whether the Confrontation Clause is violated if an expert testifies about the results of testing conducted by a non-testifying third party, if the report itself is not introduced at trial.

Here, an expert testified about the results of a DNA test conducted by an analyst, but the DNA test was not admitted. The Supreme Court of Illinois held that there was no constitutional violation. The U.S. Supreme Court granted certiorari to resolve a conflict in the lower courts over the Confrontation Clause’s application in these circumstances.

***
One could say with a fair degree of confidence that the five Justices who started the revolution in the Court’s Confrontation Clause jurisprudence in Crawford v. Washington in 2004 and then adhered to their strong view in Melendez-Diaz v. Massachusetts in 2009 would rule for Williams here. As a practical matter, it is hard to say that the underlying DNA report is not being used for its truth. But since then, two Justices in the majority – Justices Souter and Stevens – have been replaced by Justices Sotomayor and Justice Kagan. Although the latter two Justices joined the Bullcoming majority, they may have a lessened commitment to a robust application of the Confrontation Clause. Justice Sotomayor’s concurrence in Bullcoming in particular signals that these facts may approach or pass the end of the line to which five Justices are willing to extend the Confrontation Clause.

Monday notes

1. Judge Cooke will be hearing a dispute filed by the Marley heirs against a half brother. Curt Anderson has the details.

2. Alan Fein is a big-time blogger now, opining on Obamacare and Miami and Judge Marcus.

3. Another big case, another dismissal due to prosecutorial misconduct (via Thomson Reuters):

Matz based his decision on numerous examples of government misconduct, beginning with falsehoods in search-and-seizure warrant applications, extending to false and misleading grand jury testimony by an FBI agent, and compounded by prosecutors' failure to turn over some of that testimony to the defense. Handzlik, Levine, and their teams had alerted the judge to much of the misconduct before the jury reached a verdict, but Matz said the magnitude of the government's behavior became clear only in retrospect.

"When a trial judge managing a large docket is required to devote a great deal of time and effort to a fast-moving case that requires numerous rulings, often the judge will miss the proverbial forest for the trees," Matz wrote. "That is what occurred here ... . The government has acknowledged making many 'mistakes,' as it characterizes them. 'Many' indeed. So many, in fact, and so varied, and occurring over so lengthy a period (between 2008 and 2011) that they add up to an unusual and extreme picture of a prosecution gone badly awry."

Here's the order. It's worth a read.

Guest post by Richard Rosenthal

David is out of town with his family and has invited me to say a few words
about the following event honoring our former boss:

Today the Judges of the Southern District of Florida honored one of their
own by dedicating the Chief Judge Edward B. Davis Jury Assemby Room in the
Ferguson federal courthouse. It was a touching, heartfelt ceremony
remembering the late Chief Judge, who served our community for over two
decades on the federal bench. Several generations of the Davis family,
the Southern District Judges, the Judge's former law clerks, and many
longtime friends attended the midday ceremony, which was presided over
with characteristic grace and good humor by Chief Judge Moreno. At one
point, Chief Judge Moreno joked that he may have to tell the U.S. Marshals
not to allow any votive candles to be placed beneath Judge Davis'
portrait, even though such tributes may well be appropriate to honor
"Saint Ned." Judge Altonaga, who was one of Judge Davis' law clerks,
eloquently recalled the Judge's humanity and kindness toward all, and his
willingness to privately and compassionately mentor young lawyers who
tried cases before him. After Chief Judge Moreno opened the floor for
remarks, several the Judge's family members, law clerks, friends, and
professional colleagues shared warm recollections of an exemplary Judge
and a wonderful, unforgettable man. He is deeply missed.

--Richard B. Rosenthal (Law Clerk to Judge Davis, 1997-1998)

New federal jury room dedicated to Judge Edward B. Davis

Although I was out of town today and couldn't be there, I heard that the dedication for Judge Davis was fantastic. And how well-deserved that that the jury room was named for him. He really loved trying cases, and they really don't make trial judges like EBD anymore. Judges and fellow-former clerks who were there, please use the comments to share what happened at the event.