Monday News & Notes

1.  Leaking from SCOTUS could get you in hot water. (NLJ).

2.  That said, Jay Wexler (a former Ginsburg clerk) has this awesome article in Salon.  Here's what he had to say about writing opinions:

Third, the clerks usually write a first draft of the opinions that their justice has been assigned to write. Some people find this shocking, but it really is not that big a deal. At least in Justice Ginsburg’s chambers, the boss would give us a detailed outline to work from and then, once we turned in our drafts, totally rewrite them.  The best you could really hope for as a clerk is to get a little pet phrase or goofy word or other quirky something-or-other into the final opinion. For example, there may or may not be one Ginsburg opinion from our term which, when read backward, will summon the demon Beelzebub from the seventh level of hell to earth where he will horribly murder the entire human race. On a more innocuous note, when Justice Anthony Kennedy was assigned to write an opinion concerning the import tariffs applicable to permanent press pants baked in giant pants ovens in Mexico, my co-clerk Bill and I worked very hard to convince the Kennedy clerk working on the case to get the words “trousers” and “slacks” into the final opinion. “Trousers” made it into the U.S. Reports, but “slacks” is absent, although whether this is because the clerk failed to put it in his draft or because Justice Kennedy took it out we cannot be sure.

3.  Obama is really horrible with filling judicial vacancies. (NY Times).

President Obama is set to end his term with dozens fewer lower-court appointments than both Presidents Bill Clinton and George W. Bush achieved in their first four years, and probably with less of a lasting ideological imprint on the judiciary than many liberals had hoped for and conservatives had feared.

Mr. Obama’s record stems in part from a decision at the start of his presidency to make judicial nominations a lower political priority, according to documents and interviews with more than a dozen current and former administration officials and with court watchers from across the political spectrum. Senate Republicans also played a role, ratcheting up partisan warfare over judges that has been escalating for the past generation by delaying even uncontroversial picks who would have been quickly approved in the past.

But a good portion of Mr. Obama’s judicial record stems from a deliberate strategy. While Mr. Bush quickly nominated a slate of appeals court judges early in his first year — including several outspoken conservatives — Mr. Obama moved more slowly and sought relatively moderate jurists who he hoped would not provoke culture wars that distracted attention from his ambitious legislative agenda.

“The White House in that first year did not want to nominate candidates who would generate rancorous disputes over social issues that would further polarize the Senate,” said Gregory B. Craig, Mr. Obama’s first White House counsel. “We were looking for mainstream, noncontroversial candidates to nominate.”

4.  CBP is protecting us from fake Christian Louboutin high heels. (Article and picture by CNN).

Michael Caruso informally sworn in yesterday as Federal Defender

That's Judge Williams doing the honors.  The formal investiture will be announced sometime soon.  Congratulations to well-deserving Michael Caruso.

The Apple/Samsung trial has Judge Koh.  But we have Judge Turnoff, who had these gems yesterday (via Sun-Sentinel):

In September, the judge found the two men in contempt of court and ordered them to repay every dime of the fees or explain why they couldn't pay. The two ignored the order for months. Roy had to be arrested in New York last month to answer to the judge.
Mayas had claimed he sold the Miramar home but underwent a change of heart or mind after the judge spelled out the consequences of continuing to test his patience.
Then Mayas skipped a court hearing last week, in part he said, because he got sick after undergoing a colonoscopy. But the judge wasn't buying it .
"There's simply no excuse'' for his failure to show up in court last week, Turnoff told Mayas.
When Coulton's lawyer, Paul Petruzzi, told the judge Mayas had not handed over the keys to his vehicle and his Monarch Lakes home, the judge demanded he turn over the keys in court.
As Mayas fumbled with his briefcase and his keyring for what seemed an unnecessarily long time, the judge cracked: "I bet the colonoscopy was easier than this."
With the house keys in hand and a promise the car would be turned over within hours, Petruzzi said it was a small step toward making things right.
But he said Coulton wasn't particularly enjoying watching his two former lawyers put through the legal wringer.
"This will barely make a dent in what they owe to my client," Petruzzi said. "[Coulton] would be a lot happier if he could just go back in time and have hired a proper lawyer from the start."

“First, your honor, I’m not smoking crack. I can promise you that.”

That was Apple lawyer William Lee in response to Judge Koh's comment that "unless you’re smoking crack you know these witnesses aren’t going to be called!”  Yikes.

The dispute arises from the judge's decision to give each side a certain amount of hours to present its case.  Of course, each side wants more now that it has run out.  

From Slashgear:


Today in the ongoing Apple vs Samsung court case Judge Lucy Koh’s patience wore thin as Apple presented a 75-page document highlighting 22 witnesses it would like to call in for rebuttal testimony, provided the court had the time. As those following the case closely know quite well, the case has a set number of hours which are already wearing quite thin. As quoted by The Verge as they sat in the courtroom listening in, Koh wondered aloud why Apple would offer the list “when unless you’re smoking crack you know these witnesses aren’t going to be called!”


Ouch. For the record, Apple lawyer William Lee told Judge Koh that “First, your honor, I’m not smoking crack. I can promise you that.” Crack or no, it seems that Apple will not get the opportunity to bring all of these rebuttal witnesses to the stand, even though Apple’s attorneys offered to shorten the length of the document.

11th Circuit kicks Mathurin case on other grounds

This was the case that Judge Cooke ruled a 300 year mandatory sentence for a juvenile was unconstitutional.  Both sides appealed, and the Eleventh Circuit vacated the conviction on speedy trial grounds, and did not mention the sentencing issue.

The issue presented:

This case requires us to decide the narrow question of whether the time
during which plea negotiations are conducted is automatically excludable from the
Speedy Trial Act’s thirty-day window for filing an information or indictment. For
the reasons that follow, we have concluded that the time during which plea
negotiations are conducted is not automatically excludable.

From the conclusion:

We conclude that the time during which plea negotiations were conducted
was not automatically excludable from Mr. Mathurin’s speedy-indictment clock.
That being the case, the government exceeded the maximum thirty-day delay for
bringing the indictment. Under the Act, this means that the charges in the
superseding indictment, as originally set forth in the juvenile information and later
cited in the government’s motion to transfer, must be dismissed.7 See 18 U.S.C.
§ 3162(a)(1). Mr. Mathurin’s convictions must be vacated. However, “we leave it
to the District Court to determine in the first instance whether dismissal should be
with or without prejudice.” Zedner, 547 U.S. at 509, 126 S. Ct. at 1990.

News & Notes

1.  Judge Turnoff's daughter is the news for doing good.  Wendy Atrokhov seems like a good egg!

2.  Apple rests.  The judge still isn't happy.  One quote: “I want to see papers, I don’t trust what any lawyer tells me in this courtroom.”  Yikes.

3.  DOJ finally agrees to free innocent prisoners.  Brad Heath of USA Today has the scoop:

The department confirmed Monday that it had instructed its lawyers to abandon legal objections that could have blocked — or at least delayed — the inmates from being set free. In a court filing , the department said it had "reconsidered its position," and that it would drop its legal arguments "in the interests of justice."

The shift follows a USA TODAY investigation in June that identified more than 60 people who were imprisoned for something an appeals court later determined was not a federal crime. The investigation found that the Justice Department had done almost nothing to identify those prisoners — many of whom did not know they were innocent — and had argued in court that the men were innocent but should remain imprisoned anyway.

Neither Justice Department lawyers nor defense attorneys would speculate Monday how many innocent prisoners eventually might be released. Some who were convicted of other crimes might receive shorter sentences; others might be tried for different offenses.

Chris Brook, the legal director of the ACLU of North Carolina, called the move "an encouraging first step," but said "much more has to be done for these wrongly incarcerated individuals." He said the department still had not offered to identify prisoners who were sent to prison for something that turned out not to be a federal crime.

4.  Jay Weaver covers "Queenpin":

The media have dubbed her the “Queen of the Pacific,” a rare woman who allegedly reached the top of the male-dominated Colombian-Mexican drug world with her feminine mystique.
She was featured in the famous drug ballad titled “The Queen of the Queens,” sung by a band called Los Tucanes de Tijuana. One line in the narcocorrido captured her essence: “The more beautiful the rose, the sharper the thorns.”
Her name: Sandra Avila Beltrán. The raven-haired 51-year-old — at least that’s what her arrest form says her age is — will appear in Miami federal court Tuesday for her arraignment and bond hearing. She was extradited last week from Mexico, where she had been arrested in 2007, on charges of conspiring to smuggle loads of cocaine into the United States more than a decade ago.
“She is very Cleopatra-ish, like the Queen of the Nile,” said Miami criminal defense attorney Lilly Ann Sanchez, who represented two other defendants in the same case. “She was able to maneuver her way in a man’s world and use the fact that she was a woman to her advantage in more ways than one.”

Read more here: http://www.miamiherald.com/2012/08/13/2950459/mexican-queenpin-faces-drug-charges.html#storylink=cpy

Michael Caruso officially named Federal Defender

Congrats my friend!

He takes over for Judge Kathleen Williams.

I couldn't think of anyone else who could fill Judge Williams' shoes.

"I have bent over backward ... I have extended every due process to Mr. Roy that the record reflects he denied to his own client."

That was Judge Turnoff in jailing Emmanuel Roy, the former lawyer who is alleged to have ignored numerous court orders.  SFL has covered this story along the way, but it's worth writing about here as well.  Some interesting tidbits from the Sun-Sentinel:

The judge found Roy had focused his efforts on wringing cash and other valuables out of Coulton's family.
Roy even flew to England and took a $23,000 wedding ring from the finger of Coulton's wife at a meeting, the judge found. He also took a Porsche, tens of thousands of dollars and a Coconut Creek townhouse, the judge found.
Turnoff gave Roy and Mayas 10 days to comply with his order last September but Roy never responded so the judge eventually issued a warrant for his arrest after he failed to show for a July 6 hearing.
On July 12, Roy wrote to Turnoff that he had "always shown great respect to the court."
"I trust that the court will not conclude that I have decided to stump [sic] my nose at it, for any party who does so does it as his own peril," Roy wrote.
Five days later, Roy was arrested in New York on the judge's warrant. He was refused a bond and transferred -- via Oklahoma -- to face the judge, arriving Wednesday at Miami's Federal Detention Center.
Finally facing Judge Turnoff in court Thursday, Roy didn't get into details about the Coulton case. He claimed he's now penniless though he told authorities he had a net worth of about $700,000 in 2009 when he was charged with wire fraud in a federal mortgage investigation in New York. He has pleaded not guilty and is going to trial on that case next month.
Though Turnoff was clearly astounded by Roy's actions, he said he is keeping an open mind and gave Roy and his lawyer time to prepare for an Aug. 16 hearing where Roy can explain himself before the judge makes a final ruling.
...
Turnoff ruled Roy can be released on a $250,000 bond if he can put up $5,000 cash and promises to return for the hearing next week.

If you are looking for a something a little more light-hearted, check out this Jerry Seinfeld short with Ricky Gervais.

Or, if you are a Supreme Court junkie, here's a case from the upcoming Term on whether a house boat is a boat or a house:

As yachts go, Fane Lozeman’s vessel was no Queen Mary. First of all, the two-story, 60-foot boat had no name, motor or way of being steered. She drew only 10 inches of water and had glass French doors on three sides, making the idea of an ocean passage nonsensical. Tied up at the dock in North Beach Village, Fla., she was the functional equivalent of a house down to the sewer line and electrical lines snaking onshore.
That didn’t stop town authorities from getting an order under marine law to seize the vessel and tow it to Miami, after Lozeman failed to heed local ordinances and pay his dockage fees. Now the U.S. Supreme Court is scheduled to decide the question of whether the term “vessel” applies to anything that floats, or should be reserved for things intended to move from place to place. 

“I find what Mr. Cypress pleaded to and agreed to in his proffer was uniquely and sadly American. He was cooking the books.”

That was Judge Kathy Williams in sentencing former Seminole leader David Cypress to 18 months in prison.  Cypress had asked for probation and the government was looking for 2 years.  From Jay Weaver's piece:

His sentencing hearing offered a rare peek into the Seminole Tribe and its Las Vegas-style gambling enterprise, featuring the Hard Rock Hotel & Casino in Broward County. The Cypress case also conjured comparisons to the IRS’s current income-tax crackdown on the Miccosukee Tribe in Miami-Dade County and its former chairman Billy Cypress, no relation.
David Cypress’ lawyer tried to convince the judge that the 61-year-old former tribal council member committed the crime because of “cultural” differences between the Broward-based Seminoles and the rest of America. Defense attorney Joel Hirschhorn said Cypress was a “simplistic man” who didn’t grasp he owed personal income taxes as the tribe underwent a “rags-to-riches” transformation, thanks to its gaming bonanza.
Hirschhorn also argued that Cypress, who apologized in a brief statement, was a victim of the U.S. government, which he said showcased his client as the “poster boy for tax compliance on the reservation, perhaps even in all Indian Country.”
But U.S. District Judge Kathleen Williams was not swayed, despite recognizing the “shameful episodes” of the nation’s mistreatment of Native Americans.***The judge also noted that she could find no evidence of any Native American anywhere in the country being convicted of a tax offense.
Cypress’ prison sentence could have been much worse had federal prosecutors been able to prove he “willfully” committed the double-billing scheme for the entire seven-year period. He was only charged with and pleaded guilty to filing a false tax return in 2007, understating his income by $285,000.
Assistant U.S. Attorney Carolyn Bell, who urged the judge to give Cypress a two-year sentence, mocked the defendant’s argument that his cultural background prevented him from grasping U.S. tax laws. “This was a sophisticated individual,” Bell said. “He was a leader of the Seminole nation.”
Under federal law, the Seminole Tribe’s status as a sovereign nation means the entity itself is not subject to taxes. But once the tribe distributes profits from its gambling casino to members, they are individually responsible for reporting and paying taxes on their annual income tax returns, according to the IRS. 

Very interesting stuff about how the gambling profits are distributed:

In court papers, Hirschhorn revealed that the Seminoles’ gaming profits reached $300 million a year by 2001, with monthly dividends paid to each member. The Seminoles have 3,800 members.Under the distribution formula, every Seminole family of four receives dividends of about $30,000 a month.
Cypress, a notorious big spender who built a massive Mediterranean-style mansion with his millions, was paid a salary of $500,000 on top of the monthly dividend. Like other Seminole council leaders, Cypress controlled a discretionary fund that he tapped to dole out money to family and other tribal members.

Meantime, if you want more Apple/Samsung coverage, check out this piece by Conan:

Read more here: http://www.miamiherald.com/2012/08/09/2943279/ex-seminole-leader-sentenced-to.html#storylink=cpy

Youth Unite!

Judge Kathleen Williams issued a temporary injunction this week, addressing a law that prohibited campaign contributions from minors.  From Curt Anderson:

A two-decade-old Florida law limiting the contributions minors may make to state and local political campaigns is an unconstitutional infringement on free speech rights, a federal judge ruled Tuesday.
U.S. District Judge Kathleen Williams issued a temporary injunction blocking enforcement of the law, which capped contributions by Floridians 17 and under to $100 per election in state and local campaigns. Adults 18 and up can contribute $500. The law does not apply to federal campaigns, which have contribution limits of $2,500 per election for all donors regardless of age.
Williams sided with Boca Raton teenager Julie Towbin and the American Civil Liberties Union, which sued on her behalf. Towbin, then 17, decided not to attend a $150-a-ticket fundraising dinner for the Palm Beach County Democratic Executive Committee after she was warned it might violate state law.
Towbin, a former congressional page, said in a statement issued by the ACLU that the decision "means my voice is no longer worth one-fifth of someone else's."
"This isn't just a victory for minors, it's a victory for the First Amendment," she said.
The law was enacted in 1991 because of perceptions that children might be used to make corrupt contributions, attorneys for Florida argued. They cited cases in other states in which adults used children's donations to evade contribution limits, although none of them occurred in Florida.
Williams, in a 36-page opinion, said there was no evidence that state authorities had ever prosecuted any minors for violating contribution limits and scant proof of any ongoing problem. She also brushed aside state arguments that eliminating the cap would benefit wealthier minors and that it was carefully designed not to violate free speech rights.

Read more here: http://www.miamiherald.com/2012/08/07/2937898/judge-voids-fla-limit-on-minors.html#storylink=cpy

Anything is possible.

Except... getting GSA to shape up the Dyer building.  From John Pacenti:
A congressional subcommittee hammered the General Services Administration on Monday for allowing Miami's historic federal courthouse to linger unused for five years. Members even wondered aloud if the scandal-plagued agency should be disbanded.The hearing at the David W. Dyer Federal Building and U.S. Courthouse was held by the House Subcommittee on Economic Develop-ment, Public Buildings and Emergency Management.A GSA administrator told the panel it's not so easy to convert the Dyer building into offices for the U.S. Bankruptcy Court or the federal defender's office, two of the possibilities suggested.The courthouse with the coquina stone facade shares its electrical grid with the C. Clyde Atkins Courthouse next door, there is the persistent mold problem, and tunnels to transport prisoners connect the building to others in the federal complex.John Smith, a public service administrator with the GSA, estimated the cost of bringing the building up to speed for tenants, federal or private, would be about $10 million.The panel was not sympathetic."Can we actually abolish the agency and have a private agency pick up the ball and run with it?" subcommittee chair Jeffrey Denham, R-California, asked rhetorically.
More from Curt Anderson at Huffington Post:
Opened in 1933, the 166,577-square-foot Dyer building is on the National Register of Historic Places. But it has been deteriorating for years and has an extensive mold problem in South Florida's hot and humid climate. Still, maintaining the vacant structure costs taxpayers about $1.2 million a year, Mica said.
...
Last week, just as the hearing was announced, GSA said it filed a "Request for Information" asking Miami developers and the business community for suggestions on what to do with the Dyer building.
"It seems the GSA only takes action when we hold hearings," Denham said.

And from Jay Weaver:
Their colleague, Mario Diaz-Balart, R-Miami, who sits on the House Appropriations Committee, compared the Dyer Courthouse to the famous Biltmore Hotel in Coral Gables, saying repeatedly he was “speechless” that GSA officials had done nothing to breathe life back into it.
“Frankly, there’s no excuse for it,” Diaz-Balart said.
In chorus, the lawmakers said there are some 14,000 federal properties like the Dyer Courthouse that are empty or not fully used. As they spotlighted the waste of taxpayer dollars, they also portrayed the GSA as an agency under siege for questionable spending on bonuses and lavish staff conferences in Las Vegas and other resorts.

Read more here: http://www.miamiherald.com/2012/08/06/2936382/lawmakers-chide-us-for-wasting.html#storylink=cpy

What a shame...  For those of you who haven't been in the central courtroom, you are really missing out.  I haven't been in a better courtroom.  You really feel like a lawyer:

Trial Tactics

I love following a good trial, and the Apple vs. Samsung fight is high drama.  Plus the case has the added bonus of seeing behind the Apple curtain.  Here's the latest from the WSJ:

On Friday, Scott Forstall, a senior vice president who oversees the software used on the company's mobile devices, testified that as early as January 2011, an Apple executive advocated that the company build a tablet with a 7-inch screen. Apple has generally disputed the appeal of devices smaller than its 9.7-inch iPad, despite reports the company is developing a smaller model.
In cross-examination, Mr. Forstall said Eddy Cue, now head of Apple's Internet services efforts, had used a 7-inch Samsung tablet for a time, and sent an email to Chief Executive Tim Cook that he believed "there will be a 7-inch market and we should do one."
Mr. Forstall also testified that Apple in 2004 placed unusual rules around how it would assemble a team to build the iPhone, or "Project Purple," as it was called then.
Mr. Forstall said co-founder Steve Jobs told him he couldn't hire anyone from outside the company to work on the user interface, or the buttons and images that appear on the screen. So, he said, he found "superstars" from within Apple and said he was starting a secret project and he wanted help.
He recalled telling them, "If you choose to accept this role, you will work harder than you ever have in your entire life."
Mr. Forstall described "locking down" one floor of the company's buildings at first with cameras and keycard readers to beef up security regarding the project. He also took to calling it the "purple dorm," after the project's code-name, purple. They also put a sign up on the front door with the words "Fight Club" written on it, referring to the hit book and movie in which characters are told not to talk about what they were doing.

Samsung wasn't sanctioned for the Quinn press release, but the judge wasn't happy:

Information that was not shared with jurors has triggered some of the biggest fireworks so far in the trial, which kicked off with jury selection Monday and testimony Tuesday and Friday. U.S. District Judge Lucy Koh blocked Samsung from introducing evidence that it says shows the iPhone design was inspired by Sony products, an attempt to weaken Apple positions that the iPhone was an original design copied by Samsung.
A Samsung representative shared the information with reporters, prompting a request from Apple for the court to sanction Samsung. On Friday, Judge Koh denied Apple's request, but criticized Samsung's legal team and polled each juror individually to make sure they hadn't read about it.
"I will not let any theatrics or sideshow keep us from doing what we're here to do," she said.

Koh didn't have any Pink Panther references though as did our very own Judge Cooke:

Cooke did not issue sanctions against any of the lawyers from Greenberg Traurig, whose chairman, Cesar Alvarez, had issued an apology to the judge during a May sanctions hearing after admitting “mistakes were made.”
In her 30-page ruling, the judge compared the firm and TD Bank’s legal defense to a popular comedy movie, saying “it often times appears that this litigation was conducted in an Inspector Clouseau-like fashion.
“However, unlike a ‘Pink Panther’ film, there was nothing amusing about this conduct, and it did not conclude neatly.”

Meantime, a jury acquitted John Keker's client in New York but issued an interesting statement along with its decision:

As Beau Brendler sat in the jury box listening to the government's case against a former Citigroup midlevel executive, the same question kept entering his mind.

"I wanted to know why the bank's C.E.O. wasn't on trial," said Mr. Brendler, who served as the jury's foreman. "Citigroup's behavior was appalling."

Despite that sentiment, Mr. Brendler and his fellow jurors - a group that included a security guard, a lab technician and a full-time musician in a rock 'n' roll band - cleared the former Citigroup executive, Brian Stoker, of wrongdoing over his role in selling a complex $1 billion mortgage bond deal during the waning days of the housing boom.

But even as the jury reached a consensus that the Securities and Exchange Commission failed to prove its case, it was left with an uneasy feeling that the verdict inadequately described its feelings about Citigroup's conduct.

"We were afraid that we would send a message to Wall Street that a jury made up of regular American folks could not understand their complicated transactions and so they could get away with their outrageous conduct," Mr. Brendler said. "We also did not want to discourage the government from investigating and prosecuting financial crimes."

So the jurors did something extremely rare: They issued a statement alongside their verdict.

"This verdict should not deter the S.E.C. from continuing to investigate the financial industry, review current regulations and modify existing regulations as necessary," said the statement, which was read aloud by Judge Jed S. Rakoff in Federal District Court in Manhattan on Tuesday.

Mr. Brendler, a 48-year-old freelance writer, wrote the sentence after soliciting input from the seven other jurors. He scratched it out on a yellow sheet ripped from a legal pad, wrapped it around the verdict form and put both in a sealed envelope that was delivered to the judge.

"It wasn't a particularly eloquent statement, but we hoped it would get a point across," Mr. Brendler said.

Keker used Where's Waldo in closing:

In explaining the verdict, both Mr. Dawson and Mr. Brendler said that they believed that Mr. Stoker was made a scapegoat for the industry's sins. In his closing statement, Mr. Stoker's lawyer, John W. Keker, hammered away at that point, arguing that his client "shouldn't be blamed for the faults of banking any more than a person who works in a lawful casino should be blamed for the faults of gambling."

Mr. Keker underscored this point by showing the jury an illustration from "Where's Waldo?," the children's book in which readers are challenged to find the hidden title character. He likened his client to Waldo, suggesting that Mr. Stoker, 41, was merely a blip in Citigroup's vast C.D.O. universe.

"Most of this trial had nothing to do with Brian Stoker," Mr. Keker said.

Mr. Dawson said that the "Where's Waldo?" allusion resonated.

"I'm not saying that Stoker was 100 percent innocent, but given the crazy environment back then it was hard to pin the blame on one person," Mr. Dawson said. "Stoker structured a deal that his bosses told him to structure, so why didn't they go after the higher-ups rather than a fall guy.

BREAKING -- Judge Cooke issues order in the TD Bank case

Here's the Order:

Order

The conclusion:

Upon review of all of the evidence I conclude that Rule 37 sanctions against Greenberg
Traurig and TD Bank are warranted. Having determined that TD Bank’s discovery violations were willful and resulted in prejudice to Coquina, I must determine what is the appropriate sanction in this case. Coquina urges that I strike TD Bank’s pleadings or its notice of appeal.
Discovery sanctions must be “just” and “specifically related” to the discovery violations.
See Ins. Corp. of Ireland, Ltd. v. Compagnie de Bauxites de Guinee, 456 U.S. 694, 707 (1982); Sierra Chevrolet, 446 F.3d at 1152. The discovery violations in this case resulted in Coquina’s diminished ability to prove that TD Bank’s actions were unreasonable and it had knowledge of fraud. Although the jury found in Coquina’s favor, Coquina now faces post-trial motions, which challenge the sufficiency of the evidence it put forth at trial on these issues. I will therefore direct that the facts that TD Bank’s monitoring and alert systems were unreasonable and that TD Bank had actual knowledge of Rothstein’s fraud be taken as established for purposes of this action. See Fed. R. Civ. P. 37(b)(2)(A)(i). This sanction will prevent further prejudice to Coquina in an eventual appeal on that issue. Greenberg Traurig and TD Bank shall also pay Coquina’s reasonable attorney’s fees and costs associated with bringing and litigating the Fourth and Fifth Motions for Sanctions and its Notice of Supplemental Evidence, and its reasonable attorney’s fees and costs associated with litigation resulting from TD Bank’s Notice of Withdrawal. This sanction serves to compensate Coquina for the added expense caused by Greenberg Traurig’s and TD Bank’s discovery violations and abusive conduct. See Carlucci, 775 F.2d at 1453. Coquina’s counsel shall file a motion for fees and costs within twenty days of this Order.

Judge Cooke, however, did not sanction the individual lawyers.

John Pacenti has the details:

U.S. District Judge Marcia Cooke in Miami found Cherry Hill, New Jersey-based TD Bank manipulated its attorneys and concluded Greenberg was negligent in its handling of the case brought by Corpus Christi, Texas-based Coquina Investments LLC. But she issued no sanctions against any individual attorneys at the Miami-based law firm. Over 200 Greenberg Traurig attorneys were involved in the case, the judge noted.
The investors won a $67 million judgment against the bank in January despite missing key documents, the judge concluded. Discovery violations weren't uncovered until later.
"I will note at the outset that it is difficult to accept that it was a mere coincidence that the late productions on the eve or during trial contained highly relevant documents," Cooke wrote in her 30-page order.
She painted the litigation as nearly farcical, invoking the classic Pink Panther comedy movies about a clumsy and inept detective.
"However, unlike the Pink Panther film, there was nothing amusing about this conduct and it did not conclude neatly," Cooke wrote.
She faulted the bank's in-house counsel for keeping Greenberg attorneys in the dark but also determined the legal term's discovery work was negligent, the legal standard for professional malpractice.
"TD Bank hides behind Greenberg Traurig's mistakes," Cooke wrote. "No one outside attorney was aware of the existence of all the discoverable or relevant materials. TD Bank's general counsel's office, on the other hand, had all the information."
The judge ordered the bank and law firm to pay Coquina's fees and costs for bringing two of five sanctions motion and issued two strong findings to ride with the bank's appeal — "TD Bank's monitoring and alert system were unreasonable and that TD Bank had actual knowledge of Rothstein's fraud."
Coquina had asked that all of TD Bank's pleadings be stricken. Cooke did not go that far but said her actions "will prevent further prejudice to Coquina in an eventual appeal on that issue."

Friday News & Notes

Quiet week in the District. Everyone seems to be away before school starts in a few weeks...

I posted earlier in the week about the Apple/Samsung opening statements. Looks like there was a lot more drama in that case. ATL has all the scoop about the Judge and John Quinn getting into it here. The latest update has Apple asking for sanctions.  And people think criminal law is contentious. 

John Pacenti covers the old Dyer building in an interesting article:

Mobster Meyer Lansky faced trial in the ceremonial courtroom. Deposed Panamanian dictator Manuel Noriega was tried and convicted there on drug charges. Crooked judges and police also faced juries in the historic David W. Dyer Courthouse, a downtown Miami landmark distinguished by its coquina stone facade.
But the courthouse was shut down in 2008 after the lung disease death of a federal magistrate and employees complained they worked in an environment fouled by toxic mold.
Now, the General Services Administration, the building's landlord, is asking developers for ideas about what to do with the one-time post office building. In a request made public Thursday, the agency said the options include an exchange, an exchange for services, a lease or sale.
On Monday, the House Subcommittee on Economic Development, Public Buildings and Emergency Management will meet at the courthouse on a hearing titled "Sitting on Our Assets: The Vacant Federal Courthouse."

 That's about it for now. Enjoy the weekend.

Khannnnnnnnnnnn!!!!!!!!!!!!

That's what Judge Scola must be feeling about the "Pakistani Taliban case."  Curt Anderson covers the recent issues here:

A once high-profile federal prosecution of an elderly Muslim cleric and one of his sons on terrorism finance charges has become bogged down in questions over the imam's mental stability and a legal fight over the testimony of defense witnesses who refuse to leave Pakistan, according to court records and interviews.
U.S. District Judge Robert Scola said in a recent order there is "bona fide doubt" regarding 77-year-old Hafiz Khan's mental fitness to stand trial. Prosecutors say Khan, imam at a downtown Miami mosque, was the ringleader of a group in the U.S. and Pakistan that funneled tens of thousands of dollars to the Pakistani Taliban terror group.
Details about Khan's mental issues were not provided in court documents, but he has appeared frail in court appearances and also suffered several physical health problems while in custody. If he is ultimately ruled incompetent for trial, under federal law Khan would undergo at least four months of treatment before a determination could be made on whether his competency might ever be restored.
Assistant U.S. Attorney John Shipley said in a court document filed Wednesday the government does not oppose a psychological evaluation of Khan, but he added that any evidence of mental problems so far is "unsupported and bare-bones, providing no detail at all." The test for competency in federal court is whether a person can effectively consult with his or her lawyer and can understand the legal proceedings involved.
The mental instability issue cropped up after prosecutors abruptly announced in June the dismissal of all charges against Irfan Khan, the elder of Hafiz Khan's sons. The younger son, Izhar, who is also a South Florida imam, remains jailed along with his father on charges of providing material support to terrorists that carry potential maximum prison sentences of 15 years for each count. Both have pleaded not guilty.

Patent trial of the century...

...between Apple and Samsung.  Opening statements were yesterday.  Some highlights (via InformationWeek):

Apple asserted in its opening statement of its infringement case against Samsung that the Korean firm analyzed and systematically copied one feature after another of its iPhone and iPad devices, then brought look-alike products to market. Apple designer Christopher Stringer, the trial's first witness, was asked by lead Apple attorney what he thought as he witnessed competitors bringing phones similar to the iPhone's design to market. "We'd been ripped off. It was plain to see, particularly by Samsung. We were offended," he said.
It was the punchline that Apple had been building toward on a day of opening statements, following Monday's jury selection of seven men and three women in U.S. District Court in San Jose on the opening day of the trial. The courtroom with limited seating was packed with attorneys, journalists, and observers, as was an overflow courtroom where sound and video were piped in. 

Looks like Apple got the better of opening statements.  You never want to start with the "keep an open mind" mantra.  And you better have your exhibits ready in opening:

Samsung lead attorney Charles Verhoeven was soon able to issue a rejoinder to the charges in his own 90-minute opening statement. But before he could launch into it, he felt constrained to remind the jury that they needed "to keep an open mind," that there was "more to the story than what you've just heard." Unlike Verhoeven's presentations, which frequently stopped and started again as he searched for the proper exhibit, Apple's narrative flowed from start to finish with a rising indignation. It moved toward what seemed an inevitable conclusion. Verhoeven seemed to understand its potential impact on a lay jury.
Apple's lead attorney, Harold McElhinny, started out, for example, by showing a simple graphic of six Samsung phones in a wide variety of form factors prior to the launch of the iPhone at Macworld in January 2007. Next to it, he showed Samsung phones being produced by 2010. They all have the rectangular proportions and rounded corners of the iPhone form factor.
McElhinny produced what he called a Samsung design document that compared iPhones, feature by feature, with Samsung's Galaxy model and noted whenever the iPhone's features were different. And the apparent design response in each instance was to "make something like the iPhone."
"To be blunt, Samsung has not been honest about this copying," he said.
Toward the end of his 90 minutes, McElhinny poured special effort into depicting Samsung as, not only an unscrupulous competitor, but so unethical that it failed to live up to its obligation to disclose pending patents to other members of an international standards body, the European Telecommunications Standards Institute (ETSI), as it was required to do.

 McElhinny seemed to be talking the jury's language.  Not so much for the other guy:

Samsung's Verhoeven, when his turn came, disputed the last assertion first. Samsung has made important contributions to wireless standards and under ETSI rules, confidential, proprietary information did not have to be disclosed during its application for a Korean patent. "Any suggestion otherwise is without merit," he said.

That's how lawyers talk.  Not jurors.  I wonder what the jury will think of this:

Verhoeven didn't deny that Samsung studied and duplicated some features of the iPhone. "Being inspired by a good product is not copying. It's competition, people competing with each other. There's nothing wrong with that," he said.

 If I'm Samsung, I'm hammering this point:

Samsung is a key supplier to Apple. Twenty-six percent of the iPhone is built using Samsung components, a situation that is expected to continue, regardless of the outcome of the trial. Under an avalanche of charges that Samsung copies rather than innovates on its own, Verhoeven responded that Samsung employs 1,000 of its own designers. It designs both components and its own products. It must be able to innovate on its own, if Apple keeps buying its products for its devices, he asserted. 

The cross of the first witness didn't go much better with asking the one question too many:

Apple lavished similar care on the user interface. "We wanted to make a device that was breathtakingly simple, something very easy to understand, something that you just wanted to pick up and use."
"It felt like an entirely new thing," he concluded.
Under cross examination, Verhoeven asked him if he had seen the similar Samsung designs. Stringer answered that he might have. "Did you see a design with four soft buttons at the bottom," Verhoeven persisted. Stringer answered that he might have, he wasn't sure.
"Did you think it was beautiful?" asked Verhoeven.
"Well," said Stringer, "it didn't stick in my mind." 

No more appellate judges till election

That's according to the BLT.  Totally ridiculous. The 10th Circuit nominee was supported by both parties and yet the Senate won't confirm because of election year politics.  Absurd.

Rumpole is asking about the all-time great judges.  I'm biased -- hands down it's Judge Edward B. Davis.  Everything you could ever want from a judge.  Fair, treated lawyers and clients with respect, funny when appropriate...  didn't care about stats, or pushing cases, or reversals.  Just cared about doing the right thing in the right way.

On a different topic, here's an article about an army trial in which the jury acquitted the defendant on some serious charges and convicted on lessers.  According to the article, the military jury will conduct a sentencing hearing and then sentence the defendant.  I absolutely love this idea and think we should use it in federal court, at least as a recommendation.  The jury -- which has heard the actual evidence -- is much better able than the federal sentencing commission to give advice to the federal judge as to the appropriate sentence.  Agree?

Monday morning

1.  Justice Scalia is still making the circuit.  His Fox News appearance was entertaining.  Here's one exchange, as summarized by Ann Althouse:
Wallace quoted [Judge] Posner's saying that part of Scalia's dissenting opinion in the Arizona immigration case had "the air of a campaign speech." Scalia went comically snobby:

SCALIA: He is a court of the appeals judge, isn't he?

WALLACE: Yes.

SCALIA: He doesn't sit in judgment of my opinions as far as I'm concerned.

WALLACE: You sit in judgment of his opinion?

SCALIA: That's what happens.

Wallace commented that Scalia knew how to "push people's buttons," and Scalia said "It's fun to push the buttons." Wallace pursued him — "Is it?... Why" — and Scalia basically says Posner started it: "When Richard Posner comes out with a statement like that, I should fire back a statement equally provocative."

2.  SCOTUSblog covers the dog-sniffing cases coming up:

Police forces across the country have found that dogs, which have a highly developed sense of smell, can be trained to detect specific odors, such as scents from a human body, or the odors given off by illegal drugs. This makes police dogs highly valued partners to police as they search for missing persons, or for illegal narcotics. When a trained dog’s capacity to detect a certain odor has been formally certified by an expert, the evidence that police gain from dog searches frequently is permitted in criminal cases in court. But the Supreme Court several times has had to rule on whether a search by a trained police dog is the kind of inspection that must be done so that it does not violate the constitutional right to privacy of the individual targeted. The Court will give further constitutional guidance in two new cases, both originating in Florida.

3.  BLT is discussing the Senate showdown over judicial nominees:

A showdown on the confirmation vote of a federal appellate judicial nominee, scheduled for Monday, could be a pivotal moment for how many appeals court bench spots the Senate will fill during the rest of this year.
Majority Leader Sen. Harry Reid (D-Nev.) is forcing a vote Monday afternoon on Robert Bacharach, of Oklahoma, for the U.S. Court of Appeals for the Tenth Circuit, a nominee considered to be highly qualified and noncontroversial. The move is a direct challenge to Republicans who have leaked plans that they will block all circuit court judges for the rest of the presidential election year.
But it is also Reid's only option for moving forward on the circuit court nominees this congressional session, as Republicans cite a loosely defined Senate tradition of backing off from filling circuit court seats in the waning months of a president's term, dubbed "The Thurmond Rule."

If Reid succeeds in getting enough Republicans votes to overcome the filibuster, it could pave the way for other noncontroversial circuit court nominees awaiting confirmation this year, including William Kayatta, Jr., of Maine for the U.S. Court of Appeals for the First Circuit, and Richard Taranto, nominated to the Federal Circuit.
If Reid does not succeed, it would suggest Minority Leader Mitch McConnell (R-Ky.) has party members in line to solidify a freeze on any circuit court confirmations until next Congress, nomination watchers say.

 

4.  Rumpole is all over the registry controversy in state court.  I don't like the posting of attorneys' names and numbers though.
5.  Roy Black has been a busy blogger lately.  Good stuff, especially his stuff on cross-x.

It's Scalia all the time

He's making the rounds for his new book, and he's talking *a lot* about the Court.

• The AP: 

The justice refused to discuss recent reports from CBS News that Chief Justice John Roberts changed his vote in the health care case and provoked hard feelings among his fellow conservatives who thought Roberts would side with them to strike down the law.

"I was out of the country for who struck whom. It's terrible stuff. I'm not going to play any part in the recounting of it," Scalia said during a 40-minute interview in a private sitting room at the court.

President Ronald Reagan named the 76-year-old Scalia to the high court in 1986, making him the longest-serving justice.

Scalia is giving a round of media interviews to promote the new book "Reading Law: The Interpretation of Legal Texts" that he co-authored with legal scholar Bryan Garner.

He went on to say that disagreement over the tough legal issues the court must decide is a part of the job. "I disagree with my colleagues now and then. It happens all the time. If you can't do that without taking it personally and getting sore and picking up your ball and going home, you ought to find another job."

• BLT:

Asked if there is too much money in politics, Scalia said no, arguing that as in other First Amendment contexts, more speech is better."I forget what the figures are, but I think we spend less on our presidential campaigns each year, when there's a presidential election, than the country spends on cosmetics," Scalia said.
***
Lamb asked Scalia about the controversy following Scalia's dissent last month in the Arizona immigration case, in which Scalia cited recent statements by President Barack Obama on changes in immigration policy. Critics said that by doing so, Scalia was making more of a political than a legal statement. Washington Post columnist E.J. Dionne called on Scalia to resign. It seemed from the interview that Scalia was unaware of Dionne's attack, and he said using material from outside the record of a case is not uncommon.
"I cited the president's statement, which seemed to me perfectly fair," said Scalia. "I did not say the president's statement was wrong. I just said that what the Attorney General had told us, concerning enforcement priorities, was simply, as the public record shows, not -- not the sole problem."

• CSPAN, with a bunch of clips including this one on cameras in the Court:

• ABA, with this audio clip.

And if that's too much Scalia, then this is a little closer to home: a blog post about vacancies in the 11th Circuit.  From the intro:

This month, Eleventh Circuit Judge J. L. Edmondson assumes senior status after a quarter century of valuable service. His decision leaves the bench with 13 vacancies in the 179 appeals court judgeships and the Eleventh Circuit with two in twelve. These openings, which comprise more than seven percent of the judgeships nationwide and 17 percent in the Eleventh Circuit erode the delivery of justice. Therefore, President Barack Obama must swiftly nominate, and the Senate promptly confirm, appellate judges, so that the vacancies will be filled systemwide and in the Eleventh Circuit.

President Obama has vigorously consulted by seeking the advice of Republican and Democratic senators where openings materialized before official nominations. Obama has proffered nominees of balanced temperament, who are smart, ethical, hard working and independent, and are diverse vis-à-vis ethnicity, gender and ideology. For instance, he consulted Georgia Republican Senators Saxby Chambliss and Johnny Isakson, who enthusiastically supported Eleventh Circuit Judge Beverly Martin, and she won confirmation 97-0.
Senator Patrick Leahy (D-Vt.), the Senate Judiciary Committee chair, has quickly conducted hearings and votes, sending nominees to the floor where numbers have languished over months. For example, on June 29, the Senate recessed without considering any of 17 well qualified appellate and district nominees whom the committee approved because the GOP refused to vote on them.

Bad week for ICE

First, it was the Chief Anthony Mangione, who pleaded guilty to child porn charges.  And yesterday, officer Paulo Morales pleaded to groping women at the airport.  Via NBC:

A U.S. Customs and Border Protection Officer admitted Tuesday in federal court he sexually assaulted three women in his custody.

Paulo Morales, 47, pleaded guilty to three civil rights offenses for sexually groping the women, the U.S. Department of Justice said in a release.

Morales, who worked as an officer with U.S. Customs and Border Protection at Miami International Airport, said in January 2011 he groped the breasts of three women that were in his custody without their consent.

Pretty lazy reporting though:  It was not immediately known who was representing Morales.

Translation:  We just reprinted the U.S. Attorney's Press Release and didn't pull the docket from Pacer to check who Morales' lawyer was or whether he had a comment on the case.

 UPDATE -- feisty comments to this post...  so let me answer some of the questions: Morales is represented by Jude Faccidomo and the government is represented by William White and Henry Leventis.  Each of the three counts Morales pleaded to has a one year max, so his exposure is 3 years.

11th Circuit today

The courtroom on the 12th floor of the King building was packed with law clerks and other observers this morning because Paul Clement was in the house to argue whether religious symbols can be trademarked: Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta, Appellant v. Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, The Ecumenical Order (docket).

The panel was Judges Wilson, Pryor, and Martin.

Cool stuff. 

Others appellate studs in the courtroom -- Elliot Scherker who argued a civil case; Paul Rashkind from the PD's office; Anne Schultz from the USAO; and rising AFPD appellate star Tracy Dreispul. 

And a special for you appellate geeks this morning -- the Green Bag has announced a new bobblehead for Justice Ginsburg.

Gene Stearns wins Bank Atlantic case in 11th Circuit

Here's the 11th Circuit opinion, affirming Judge Ungaro's decision to toss the jury verdict (prior coverage here).

Big win for Stearns Weaver-- Gene Stearns, Adam Schachter, Cecilia Simmons, Grey Mead, and Andrea Nathan.

From Judge Tjoflat's conclusion:

As Bancorp acknowledged in several public SEC filings during the class period, BankAtlantic’s assets were concentrated in loans tied to Florida real estate. As a result, BankAtlantic and Bancorp were particularly susceptible to any deterioration in the Florida real estate market, in addition to any national developments. To support a finding that Bancorp’s misstatements were a substantial factor in bringing about its  losses,therefore, State-Boston had to present evidence that would give a jury some indication, however rough, of how much of the decline in Bancorp’s stock price resulted not from the fraud but from the general downturn in the Florida real estate
market—the risk of which Bancorp is not alleged to have concealed. ... None of its evidence excluded the possibility that class members’ losses resulted not from anything specific about BankAtlantic’s commercial real estate portfolio that Bancorp hid from the public, but from market forces that it had warned of—and that would likely have caused significant losses for an investor in any bank with a significant credit portfolio in commercial real estate in Florida in 2007. Bancorp is therefore entitled to judgment as a matter of law.

Monday morning

Seinfeld has this new web-only TV show.  I like.

SFL is covering the Emmanuel Roy case before Judge Turnoff and this letter.  SFL highlights this line:  "I trust that the court will not conclude that I have decided to stump my nose at it, for any party who does so does it as his own peril."  Too funny.

And here's the Herald interviewing Ervin Gonzalez: 

Q. What was your first job?
I worked as a bag boy and stock man at Winn Dixie while in High School at LaSalle high.
Q. What advice would you give to today’s law students?
Find and pursue your passion.
Q. What’s the last book you read.
“The last Boy,” a biography about Mickey Mantle.

The 11th Circuit is in town, and I have an argument tomorrow morning, so I'll be off-line until after that...

Read more here: http://www.miamiherald.com/2012/07/23/v-fullstory/2907544/miami-lawyer-ervin-gonzalez-tackles.html#storylink=cpy

Ex-Ice Chief Anthony Mangione pleads guilty

And he was immediately taken into custody.  He's looking at a minimum of 5 and max of 20 under his plea deal. Judge Marra is his judge.

 From the Sun-Sentinel:

The former leader ofU.S. Immigration and Customs Enforcementin South Florida has gone from spearheading the local fight against child pornography to facing at least five years in prison for transmitting sexually explicit images of children.
Anthony V. Mangione, 51, pleaded guilty Friday morning to a child pornography charge in the shocking case against the former ICE chief who once oversaw investigations of countless predators who exploited children. The 27-year law enforcement veteran was brought down the same way as many of those other defendants: an Internet provider flagged files being sent from Mangione's email account and alerted authorities.

***
Federal prosecutors said Mangione transmitted at least 15 images of children between the ages of 3 and 15 years old with their genitals exposed.
According toBroward Sheriff's Officesearch warrants, his suspicious Internet activity dated back to 2003 with Mangione using a multitude of online screen names in recent years, including thismomspanks33 and PastorRobertM.
Mangione had no visible supporters in the courtroom Friday morning. He arrived at the West Palm Beach federal courthouse with his attorney, David Howard.
He answered U.S. Magistrate Judge James Hopkins' questions in a clear, steady voice. After the hearing, he took off his suit jacket, tie and belt, and held his hands out to be handcuffed by two U.S. marshals.

Scalia vs. Zimmerman

Piers Morgan had Justice Scalia on last night and Hannity landed George Zimmerman. Must see TV for law nerds!

Scalia had lots of interesting things to say, and I liked how Morgan pushed him a bit.  Scalia said he is most proud that the Court doesn't really cite legislative history anymore and that he has helped move the Court to focus on just the text of the statute or Constitution.  Yet earlier in the interview, he said that he frequently reads the Federalist Papers to see what the Framers intended.  I'm not sure why the Federalist Papers are an okay source for intent, but legislative history is not...

Anyway, here is one clip from the interview:



And here is the NY Times coverage of the interview:

Asked by CNN’s Piers Morgan whether he and Chief Justice Roberts “have had a parting of the ways, gone from best buddies to warring enemies,” Justice Scalia first ducked the question. “Who told you that?” he asked. Mr. Morgan cited news reports, prompting Justice Scalia to respond: “You should not believe what you read about the court in the newspapers. It’s either been made up or been given to the newspapers by somebody who’s violating a confidence, which means that person is not reliable.” After protesting that he would not talk about internal matters, Justice Scalia relented. “No, I haven’t had a falling out with Justice Roberts,” he said. Asked whether there had been loud words or slammed doors, he said, “No, no, nothing like that.” More generally, Justice Scalia said his colleagues had good personal relationships even as they disagreed on legal matters. That is consistent with reports from other justices. “There are clashes on legal questions but not personally,” he said. “The press likes to paint us as nine scorpions in a bottle, and that’s just not the case at all.”

The NY Times also covers the Zimmerman interview:

The assault happened while Mr. Zimmerman tried to pull his cellphone out, he said. Mr. Zimmerman said he had yelled “help” repeatedly, hoping that the police would hear him. After he shot Mr. Martin, he said, he was “terrified” and nervous the police might shoot him if they saw him with a gun.

Mr. O’Mara said the state’s stand-your-ground self-defense law was appropriate for the case. The law permits people who fear great bodily injury or death at someone else’s hands to use lethal force to defend themselves.

Mr. Zimmerman said he had volunteered to take lie detector tests and voice tests, which he said he had passed. “I didn’t have anything to hide,” he said.

The interview ended with Mr. Zimmerman apologizing to the Martin family, and to America for any racial polarization the shooting may have caused.

To Mr. Martin’s family, “I would tell them again that I’m sorry,” he said, adding: “I am sorry they buried their child. I can’t imagine what it must feel like, and I pray for them daily.”

$3 million stolen Henri Matisse recovered by FBI

The one on the left is the real "Odalisque in Red Pants" and the one on the right was a fake on display Sofia Imber Contemporary Art Museum of Caracas, Venezuela.  According to the USAO press release Marcuello Guzman and Ornelas Lazo were arrested today:


According to the affidavit filed in support of the criminal complaint, this case was the result of an FBI undercover investigation. According to the allegations in the complaint affidavit, Marcuello negotiated the sale of the Matisse painting, which had been previously stolen from the Caracas Museum of Contemporary Art (Museo de Arte Contemporaneo de Caracas (MACCSI)) in Caracas, Venezuela in December 2002. The painting is valued at approximately $3 million. Marcuello allegedly admitted to the undercover agents during a meeting that he knew the painting was stolen and offered to sell the stolen painting for approximately $740,000.00. As part of the negotiations, Marcuello further agreed to have the painting transported by courier to the United States from Mexico, where the painting was being stored. The courier was subsequently identified as co-defendant Ornelas.

According to the affidavit, on July 16, 2012, Ornelas arrived at the Miami International Airport from Mexico City, Mexico, hand-carrying a red tube containing the painting. On July 17, 2012, defendants Marcuello and Ornelas met with undercover agents and produced the Matisse painting titled “Odalisque in Red Pants” from inside the red tube. Upon inspection by the undercover agents, the painting appeared consistent with the original Henri Matisse painting reported stolen from the MACCSI museum. At the conclusion of the meeting, Marcuello and Ornelas were arrested.

The Huffington Post has some interesting details:


In 2002, Venezuelan-born Miami art collector Genaro Ambrosino contacted SICAM after hearing that the painting was for sale. Director Rita Salvestrini told him "Odalisque in Red Pants" wasn't on the market, at which point museum officials discovered that the one in their collection had been swapped for a forgery.
One Venezuelan newspaper argued the Matisse may have been swapped during an exhibition loan in Spain in 1997, according to the Daily Mail, while other evidence points to the exchange having happened in 2000.
Either way, “Odalisque in Red Pants” had been a fixture on Art Loss Register's list of most valuable missing artwork. If convicted, according to the U.S. Attorney's office, Marcuello and Ornelas each face a possible maximum statutory sentence of up to ten years in prison.
Unfortunately, most stolen artwork is rarely recovered. According to the Christian Science Monitor, only about 15 percent of missing or stolen art returns to its rightful owner.
In 2004, the FBI created an Art Crime Team and set up a National Stolen Art File database. In the past 9 years, they have recovered over 2,650 items that amount to over $150 million, according to the Daily Mail.
"Generally speaking, art thieves are fairly good criminals, but they're terrible businessmen," Robert Wittman, an art-security consultant and former investigator for the FBI's national Art Crime Team, told the Associated Press. "And the true art is not the stealing, it's the selling."

"Our system of pleas then looks more like a system of railroading."

That's the NY Times op-ed discussing appellate waivers, one of the dirty little secrets of the federal criminal justice system. Here's more:

Waivers are a common but largely hidden element of plea bargains — which, in many federal cases, aren’t really bargains because the power of prosecutors is often so much greater than that of the defendants or their lawyers. The process is closer to coercion. Prosecutors regularly “overcharge” defendants with a more serious crime than what actually occurred. The defendants must then choose between the risk of being found guilty at trial and getting a longer sentence than the alleged crime would warrant or a guilty plea in exchange for a lighter sentence. All but a tiny minority of defendants take the plea as the price of avoiding the crapshoot of a trial.

Some standard parts of waivers are outrageous, keeping defendants from appealing even if they become convinced that they received inadequate counsel to accept a defective plea agreement where the sentence was not lighter or where the prosecutor wrongly withheld evidence. Any defense lawyer or prosecutor who asks a defendant to sign a waiver ruling out appeals on those grounds is protecting himself. 

An important element of justice is missing even when the defendant and the government believe a plea bargain is fair and when an appeal waiver is narrow so the defendant can appeal about certain specified issues. Congress gave appeals courts the power to review federal sentences to ensure the government applies the law reasonably and consistently. Without an appeals court’s policing, the odds go up that prosecutors will do neither. Our system of pleas then looks more like a system of railroading.

Blogger's block

I wish I had something exciting to blog about this Monday morning...

I could try to tie in Miami by discussing how great the traffic is compared to, say, DC:

The usually punctual Sen. Patrick Leahy (D-Vt.) had some choice words for District of Columbia leaders this week, when he blamed their policies for making his 11-mile commute to Capitol Hill last an hour and 40 minutes on Wednesday.
"We go through a city that will spend millions of dollars and enforce parking meters and get fines, and pay for speed cameras which mainly make out of town companies rich, and so on," Leahy said after arriving about 10 minutes late to a 9:30 a.m. hearing. "But they can't coordinate their street lights when their street lights are broken."
Leahy, while pouring himself water on the dais of the Senate Judiciary Committee, didn't say where he was driving from or what roads he took. But he observed that "the main thoroughfares have a green light that will go on for one second and go 10 minutes red."

That prompted Sen. Chuck Grassley (R-Iowa) to joke: "Aren't you sure the problem probably is that they purposely don’t coordinate?"

Or compare the 11th Circuit conference to the 9th Circuit, which was planning a $1 million affair in Hawaii until Congress got wind of it:

Political controversy persists over a conference planned for federal judges on Maui, with two Republican senators calling for the event to be canceled or at least scaled back.

Sen. Jeff Sessions of Ala­bama and Sen. Chuck Grassley of Iowa, who have been questioning the need to hold the August conference at a "far-flung island paradise," sent another letter Friday to the chief judge of the 9th U.S. Circuit Court of Appeals.

"During this time of extraordinary debt, and given the history of opulence — including repeated trips to the Hawaiian Islands — we believe you should cancel the million-dollar conference," the letter said. "Failing that, ample opportunities to scale back costs at this event and at future conferences remain."

After that letter, the Circuit cancelled the conference.  Maybe they should call Adam Rabin to plan the next one.

But those comparisons seem like too much of a stretch.  The District is quiet.... Maybe we'll hear some exciting news today.  Send me your tips!

Judge Beverly Martin says what criminal practitioners are thinking about 11th Circuit's sentencing jurisprudence:

District judges only get reversed when they go way down, but not when they go way up. It's a fabulous concurrence and it invites en banc review.

The case is United States v. Early, and Judge Martin starts her concurrence way:


Where a sentencing court addresses the factors set out in 18 U.S.C.
§ 3553(a) and imposes a sentence within the statutory maximum, this court’s
precedent teaches deference to that judgment on any variance above the Guideline
range, no matter how large. See, e.g., United States v. Shaw, 560 F.3d 1230, 1241
(11th Cir. 2009) (upholding a 120-month sentence representing a 224 percent
upward variance from the maximum Guideline sentence); United States v.
Amedeo, 487 F.3d 823, 834 (11th Cir. 2007) (upholding a 120-month sentence
representing a 161 percent upward variance); United States v. Turner, 474 F.3d
1265, 1281 (11th Cir. 2007) (upholding a 240-month sentence representing a 281
percent upward variance). Indeed, in all the cases decided by this court since
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), I have found none
in which we vacated an upward variance from the Sentencing Guidelines on
reasonableness grounds. For this reason, even though Mr. Early’s sentence of
210-months imprisonment represents a 116 percent variance above the 97-month
sentence set by the top of his Guideline range and a remarkable 169 percent
increase from the 78-month sentence requested by the government itself, I cannot
say the panel’s decision here is contrary to our precedent.

At the same time, I write separately to note that this Court has declined to
exercise similar deference toward a sentencing court’s decision to grant a
downward variance. See, e.g., United States v. Jayyousi, 657 F.3d 1085, 1118–19
(11th Cir. 2011) (holding that a 42 percent downward variance was substantively
unreasonable); United States v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010) (en
banc) (same); United States v. Pugh, 515 F.3d 1179, 1203 (11th Cir. 2008)
(holding that a 100 percent downward variance was substantively unreasonable).
This, even where the extent of the variance from the Guideline range was far
smaller and where the reasons given by the sentencing court were more
substantial.

My reading of these cases tells me that in considering sentences above the
Guideline range, we look only to whether the sentencing court seemed to consider
the § 3553(a) factors and we ignore whether the court might have disregarded one
of the factors or weighed the factors in an unreasonable way. In contrast, for
downward variances, we show no such deference and instead scrutinize how a
sentencing court applied each and every § 3553(a) factor. We even go so far as to
decide for ourselves whether the factors were weighed correctly. See Irey, 612
F.3d at 1196–1225; Pugh, 515 F.3d at 1194–1203.

And Judge Martin finishes like this:


In sum, even though our case law purportedly requires “a significant justification”
to support a “major departure” from the Guidelines, see Pugh, 515 F.3d at 1201, 
the panel’s review of Mr. Early’s 116 percent upward variance evinces little
indication that such a requirement even applies here.

Absent correction, I fear this Court’s different approach for reviewing up and down sentence variances may erode public trust in our work.

One of the cases that Martin cites is Jayyousi, which is the co-defendant's name in Jose Padilla's case.  There, the 11th Circuit found that the district court's below guideline sentence was unreasonable and cert was just denied.  But, the case is far from over.  Check out this article about the DoD report explaining how Padilla was tricked into believing that the feds injected him with truth serum:

In 2006, a lawyer for Jose Padilla, the accused dirty-bomb plotter, made an explosive claim in a federal court filing: the "enemy combatant" was "given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations."
But what Seymour failed to disclose, reported here for the first time, was that Padilla was given the flu shot during an interrogation session and told by his interrogators the injection was "truth serum," according to a declassified Department of Defense (DoD) inspector general's report that probed the use of "mind-altering drugs" during the interrogation of war on terror detainees.
Sanford Seymour, the technical director of the US Naval brig in South Carolina where Padilla was held, however, vehemently denied the charge during a 2006 hearing to determine whether Padilla, a US citizen, was competent to stand trial. Seymour asserted Padilla was injected with an influenza vaccine.
The inspector general's investigation determined that although Padilla was not administered mind-altering drugs (such as LSD), "the incorporation of a routine flu shot into an interrogation session ... was a deliberate ruse by the interrogation team, intended to convince [redacted] he had been administered a mind-altering drug."

 How long till the motion for new trial is filed?

Thunderstorm Wednesday News & Notes

Looks like everyone is gonna be dragging this morning after those loud storms woke us in the middle of the night.  Some news and notes for this rainy day:

1.  The Herald supports Judge Cooke's ruling in the Docs vs. Glocks case and urges the Governor not to appeal.

2.  The 11th Circuit decides a Stolen Valor case (in this unpublished opinion, USA v. Amster) right after the Court rules.  The opinion basically says -- we have to follow the Court's holding that the Act is unconstitutional but we can still affirm the false statement convictions under other statutes. 

3.  AUSA Lynn Rosenthal is now a Circuit judge in Broward (via DBR).

4.  A defendant calls the former US Attorney in Chicago a "rooster with no nuts." (via Main Justice)

5.  Jay Weaver covers this semi-secret hearing in which an ex-Haiti official gets a year in prison.

Are across the board appellate waivers also unethical?

Perhaps.  Professor Berman has the story on a judge rejecting a plea deal with an appellate waiver here.

From the Denver Post:


They began appearing in federal criminal cases in Colorado after the state's current U.S. attorney, John Walsh, took office in 2010, said Jeff Dorschner, a spokesman for the office. Walsh, Dorschner said, was concerned about wasting the court's and the government's resources when defendants appeal the sentences they received after initially agreeing to those sentences in plea deals. Such appeals are almost always denied.
"The concept is simple," Dorschner said. "If you are sentenced within the guideline you agree to in the plea agreement, then you don't have the ability to appeal that sentence. ... This is the most narrow, limited appellate waiver I think you're going to find."
In a brief urging Kane to accept the deal, prosecutors wrote that the 10th Circuit Court of Appeals has found appellate waivers acceptable. Prosecutors say they are legitimate parts of the bargaining process.
Vanderwerff's attorney also urged Kane to accept the deal.
"Both sides benefit from it," Assistant Federal Public Defender Edward Harris wrote.
Harris did not return a call for comment.
Kane, though, viewed the waiver dimly.
"[S]acrificing constitutional rights at the altar of efficiency," he wrote, "is of dubious legality."



 From the opinion:

In the wake of the Supreme Court’s holding that the U.S. Sentencing Guidelines are merely advisory, not mandatory, see United States v. Booker, 543 U.S. 220, 247 (2005), no circuit court has revisited the enforceability of appellate waivers.  Sentencing, post-Booker, requires a trial court to consider context and to apply criteria rather than perform a mechanical or clerical entry of a matrixed judgment.  See United States v. Calderon-Villaneuva, 1:12-cr-235, Order Denying Unopposed Motion to Enter into Plea Agreement Containing an Appeal Waiver (doc. 14) (D. Colo. June 28, 2012).  Ethical and moral values inevitably infuse the decisionmaking process, but they must be justified by being drawn from governing texts in statutes and judicial opinions and established principles of fairness generally accepted by the community affected by the criminal conduct, i.e., the fundamental values widely accepted by society and identifiable as such.
The responsibility of appellate review is to decide how well the sentencing judge has established the sentence within this described discipline.  That is fundamentally dissimilar to the pre-Booker function of determining whether an arithmetic calculation has been executed correctly.  Rather, reviewing sentences under an abuse of discretion standard is a complex inquiry meant to assure that the judicial administration of justice is relevant to the values and expectations of society.
Indiscriminate acceptance of appellate waivers undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions.  Indeed, appellate waivers would have insulated from review the underlying convictions in some of the most notable criminal decisions in the Supreme Court’s recent history.  See Nancy J. King and Michael E. O’Neill, Appeal Waivers and the Future of Sentencing Policy, 55 Duke L. J. 209, 249 (2005) (noting that waivers would have precluded appellate review in Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004); and United States v. Booker, 543 U.S. 220 (2005)).  Thus, such waivers should only be included where they are justified by the facts and circumstances of a particular case.