RIP Myles Malman (UPDATE)

He was a good guy, who most recently tried the B-Girls case in Miami before Judge Scola.

I didn't realize he played baseball at Fairleigh Dickinson University.  From their webpage:

Malman graduated from FDU in 1967 and played baseball for three years. He was very active in the baseball alumni program. In 2010, Malman was presented The Pinnacle, the highest award the University bestows upon its alumni. Pinnacle recipients are chosen on the basis of success or distinction in their chosen fields; significant contributions to society and humanity through public or humanitarian service; and outstanding service to the University, or reflection of the unique character of Fairleigh Dickinson in their lives.

In presenting the award, his longtime friend and colleague Robert H. Silbering said, "You have been a dear friend to FDU over the years. As a former member of FDU's baseball team, you generously support a scholarship established in honor of the late baseball coach Harvey Woods. You also give back your time and energy through lectures and mentoring.

Malman was the managing director of Malman, Malman & Rosenthal in Hollywood, Fla. He specialized in criminal and civil litigation, and maintained an extensive national white-collar criminal practice including securities and health-care fraud.

Malman served as Deputy First Assistant and Special Counsel to the United States Attorney of the Southern District of Florida during his lengthy career as a federal prosecutor, managing a 200-lawyer office. He was co-lead counsel in the successful prosecution of Gen. Manuel Noriega on drug and money-laundering charges. In 1992, he received the Attorney General's Award for Distinguished Service in recognition of his litigation skills. Malman handled the only successful federal Civil Rights Act prosecution in the Southern District of Florida and is the recipient of six Department of Justice Superior Achievement Awards for Outstanding Performance.

Over the years, he led and participated in high-profile civil cases, including class-action litigations against manufacturers of silicone breast implants, tobacco, General Motors pickup trucks and others. He also represented and negotiated contracts and business deals for professional players in the National Hockey League and the National Football League.

Malman served on the faculty of the National Institute of Trial Advocacy at Hofstra University Law School and taught in the Intensive Trial Advocacy Program at Widener University Law School. He lectured in criminal and civil trial practice and Florida criminal procedure for the WestBar Review Course. Malman also appeared on national television as an expert in legal matters, consulted on major Hollywood motion picture projects and testified before
Congress on criminal justice matters.

Malman was born in New York City and served as an Assistant District Attorney for 10 years as well as Senior Trial Counsel and adviser to longtime Manhattan District Attorney Robert M. Morgenthau. In the 1960s, he served in the U.S Army Military Police Corps in Vietnam.

Malman is survived by his wife, Jill, and their two children, Parker and Mallory.

UPDATE -- The Miami Herald has this obit:

Myles Malman may not have been a marathon man, but he sure lived like one.
As an attorney, he tried months-long cases, most notably the drug-trafficking prosecution of Panamanian strongman Manuel Noriega in Miami. For clients, he traveled to New York, Russia and Israel. And as an older father, he stayed in shape on the tennis court to keep up with his young son and daughter.
Malman, a New York native who worked for the city's legendary district attorney, Robert Morgenthau, before moving to South Florida in the 1980s to become a federal prosecutor, died of brain cancer on Sunday at his home in Hollywood.
Before his death at age 67, Malman had lived long enough to see a movie in which he appeared — American Hustle — nominated for a Best Picture Oscar. He got a nonspeaking part after he gave some advice to director David O. Russell, who conferred with Malman about a scene filmed on location in the Boston area.
But it was in the courtroom where Malman made his mark, gaining a reputation as a formidable but fair attorney.
Veteran Miami lawyer Norman Moscowitz praised Malman as an “effective and tenacious advocate” as both a prosecutor and defense attorney.
“He was a decent and honorable person and that always came across in court, which is why jurors liked him so much,” said Moscowitz, who worked with him in the U.S. attorney’s office and later on defense cases.

Justice Scalia issues dissent for a DUI criminal defendant

Yes, Rumpole... Justice Scalia is on the right side again. The case is Navarette v. California.

Here's the syllabus of Justice Thomas' opinion:

A California Highway Patrol officer stopped the pickup truck occupied by petitioners because it matched the description of a vehicle that a 911 caller had recently reported as having run her off the road. As he and a second officer approached the truck, they smelled marijuana.They searched the truck’s bed, found 30 pounds of marijuana, and arrested petitioners. Petitioners moved to suppress the evidence, arguing that the traffic stop violated the Fourth Amendment. Their motion was denied, and they pleaded guilty to transporting marijuana. The California Court of Appeal affirmed, concluding that the officer had reasonable suspicion to conduct an investigative stop.
Held: The traffic stop complied with the Fourth Amendment because,under the totality of the circumstances, the officer had reasonable suspicion that the truck’s driver was intoxicated.

From Justice Scalia's dissent, joined by Ginsburg, Sotomayor, and Kagan (Note that Breyer is again ruling in favor of the government):

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) tha tanonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and
(2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point hisword is as good as his victim’s.
Drunken driving is a serious matter, but so is the loss ofour freedom to come and go as we please without police interference. To prevent and detect murder we do notallow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving. I respectfully dissent.

Supreme Court rejects Gov. Scott's cert petition

This was in the drug testing case that Judge Ungaro had. From Curt Anderson:

The U.S. Supreme Court refused Monday to hear an appeal by Florida Gov. Rick Scott on his 2011 executive order that would have required random drug tests for as many as 85,000 state workers.

The ruling lets stand an appeals court decision that Scott's order was too broad. That decision also directed a Miami federal judge to oversee ongoing negotiations between the state and an employee union over which positions could be subjected to random drug tests.

The Supreme Court's refusal to hear the appeal follows a similar decision in late December by a federal judge in Orlando who struck down a Florida law requiring applicants for welfare benefits to undergo mandatory drug testing. Scott, a Republican, is also appealing that case.

The American Civil Liberties Union of Florida, which challenged both drug-testing plans as unconstitutional, said federal courts have clearly rejected blanket mandatory drug testing by the state.

"The question of whether the state has the power to compel all employees to submit to suspicionless searches without good reason is settled and the answer is no," said Shalini Goel Agarwal, the lead ACLU attorney in the state employees case.

Judge Hoeveler set to retire

It's been a good run.

John Pacenti covers the details:

Senior U.S. District Judge William Hoeveler said after more than three decades on the bench that he planned "to continue to work until they carry me out."
It may not come to that. Chief U.S. District Judge Federico Moreno in Miami sent a short memo last month reassigning Hoeveler's 21 cases effective April 1 "pending retirement later this year."
Appointed by President Jimmy Carter in April 1977, the World War II veteran quickly gained a reputation as a legal scholar. The 92-year-old judge oversaw landmark litigation on Everglades pollution, and he presided at the nine-month drug-trafficking and racketeering trial of Panamanian dictator Manuel Noriega.
Hoeveler also oversaw some of the 2000 hearings on whether 6-year-old Cuban refugee Elian Gonzalez should be returned to his homeland. A year earlier, he presided over a Port of Miami public corruption trial.
"The truth is he has left his fingerprints all across the district, not just on the Everglades, but on criminal, civil and environmental law," said former interim U.S. Attorney Guy Lewis, now a partner at Lewis Tein in Miami. "When the chips are down, Judge Hoeveler is the guy who comes through."
Compared to Lincoln
How well-regarded is Hoeveler among members of the Bar in South Florida? Several lawyers compared him to President Abraham Lincoln.
"He acted like Abe Lincoln," said attorney Aaron Podhurst, a partner at Podhurst Orseck in Miami. "He never raised his voice, and he was a fabulous lawyer, and he was a great trial judge."

Thursday's news and notes

1. The dude who disrupted the Supreme Court got time served. From the AP:

A demonstrator who interrupted arguments at the U.S. Supreme Court in February and whose group posted video of the protest online, a first for the court, has been sentenced to time served.

Noah Kai Newkirk of Los Angeles pleaded guilty Tuesday in connection with the Feb. 26 disruption, after which he served a night in jail. After Tuesday's hearing, a Supreme Court policeman gave Newkirk a piece of paper that notified him he is also barred from the court grounds for a year.

After video of his protest was posted online, the Supreme Court, which forbids cameras and all other electronic devices, tightened its security screening. Newkirk declined Tuesday to say how the video of his protest was shot.

Newkirk, a member of the group 99Rise, told a D.C. Superior Court judge overseeing his case that he spoke out to protest the "unprecedented amount of money" corporations are spending on elections. He said the Supreme Court played a role in "deepening that corruption."
...
Newkirk's attorney, Jeffrey L. Light, told the judge Newkirk has no intention of returning to the Supreme Court. But Newkirk said outside the hearing that "it's a hypothetical possibility there may be others."

2. While keeping the Court closed to cameras and punishing those who disrupt the Court, Justice Scalia told a student that he should consider revolting:. From the WSJ:

Supreme Court Justice Antonin Scalia, after delivering prepared remarks before a standing-room-only crowd at the University of Tennessee College of Law on Tuesday, was asked by a student about the constitutionality of the income tax.

Justice Scalia, according to the Knoxville News Sentinel, replied that the government has the right to take his money. “But if reaches certain point, perhaps you should revolt,” he reportedly told the young man.

The justice, who was invited by the law school to present its annual “Rose Lecture,” delivered what he described as his “stump speech.”

He talked about the time he joined with the majority in 1989 in declaring that flag-burning was constitutionally protected speech.

“You’re entitled to criticize the government, and you can use words, you can use symbols, you can use telegraph, you can use Morse code, you can burn a flag,” he said, according to the News Sentinel.

Justice Scalia also said that he and his colleagues on the bench don’t care which party controls the White House, saying the clash of opinions among the justices isn’t partisan.

And he, naturally, offered a defense of his theory of originalism, the belief in a Constitution that’s fixed and unchangeable.

“The Constitution is not a living organism for Pete’s sake,” the justice said, according to the report. “It’s a law. It means what it meant when it was adopted.”

3. Another Rothstein indictment. This time it's Irene Stay. From the Sun-Sentinel:

Federal prosecutors filed a criminal charge Wednesday against Scott Rothstein's former bookkeeper, who became the chief financial officer of his law firm, court records show.

Irene Stay, now Irene Shannon, 50, of Miami, was charged with a lone count of conspiracy to commit money laundering and bank fraud. Prosecutors said she is the 18th Rothstein accomplice to be held accountable.

Shannon played a vital role in Rothstein's $1.4 billion Ponzi scheme, which he operated from 2005 to 2009, according to investigators.
Her job involved overseeing all of the law firm's accounting work from the secured inner sanctum that Rothstein had built in his Las Olas office, according to investigators from the IRS and FBI.

Some of Rothstein's investors alleged in a civil lawsuit that when Rothstein's law partners confronted Shannon after he fled to Morocco in late October 2009, she began crying and repeating the phrase, "I don't want to go to jail."

Fort Lauderdale jeweler Patrick Daoud gets house

Another Judge Marra/Fred Haddad matchup. From Paula McMahon:

Well-known Fort Lauderdale jeweler Patrick Daoud was sentenced to ten months of house arrest and two years of probation on Friday for helping to hide a huge 12.08 carat yellow diamond that Ponzi schemer Scott Rothstein's wife was attempting to conceal from federal authorities.

Daoud, 55,the owner of Daoud's Fine Jewelry in Fort Lauderdale, pleaded guilty to obstruction of justice last year.
***
His crime, prosecutors said, was lying about the diamond under oath when he was summoned to a deposition in federal bankruptcy proceedings in November 2011. He testified that he never received or kept the diamond and later, in June 2012, returned it to Weisman.

"He had the opportunity to do the right thing and chose not to," Assistant U.S. Attorney Lawrence LaVecchio said in court.

Daoud's lawyer, Fred Haddad, said that Daoud was "deliberately kept in the dark" and knew nothing of Rothstein's attempt to hide jewelry and other assets to try to keep her financially afloat after her husband's $1.4 billion investment fraud scheme was exposed in October 2009.

Daoud panicked when he figured out what was going on and got involved in a "misguided attempt to protect" Weisman – who he knew from attending charitable events – and his investment, Haddad said.

"Aside from losing a large sum of money in purchasing the ring, the embarrassment in a community where he is so well-known, [Daoud] has also been branded a felon, with a resultant loss of business," Haddad wrote.

When U.S. District Judge Kenneth Marra asked Daoud if he wanted to say anything before he was sentenced, Daoud hesitantly replied: "I'd rather not."

Judge Pryor says judicial branch disrepected by AG Holder

Some fireworks from the Sentencing Commission last week when 11th Circuit Judge Pryor said that AG Holder disrespected the judicial branch by not opposing the proposed two level decrease in the drug guidelines. More from NLJ:

The United States Sentencing Commission Thursday unanimously approved an amendment to revise sentencing guidelines for non-violent drug offenders, but not before one commissioner accused Attorney General Eric Holder of having “disrespected” the judicial branch’s role in sentencing reform.

“I regret that, before we voted on the amendment, the Attorney General instructed Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” Judge William Pryor, Jr. said at a public hearing in Washington. “That unprecedented instruction disrespected our statutory role, ‘as an independent commission in the judicial branch,’ to establish sentencing policies and practices under the Sentencing Reform Act of 1984.”

Nevertheless, Pryor voted with the seven other Republican and Democratic judges to reduce sentencing guidelines involving drug offenders.

In August, Holder revealed his “Smart on Crime” initiative, which includes recommendations for reduced sentencing, without consulting with the Sentencing Commission—an independent agency within the judicial branch tasked with setting such policies. Although the sentencing reforms themselves were not controversial, Holder’s cavalier approach to separation of powers, including a March memo in which he “instructed the Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” irritated commissioners and alarmed supporters of constitutional separation of powers.

The amendment approved Thursday, aims to reduce federal prison overcrowding by reducing non-violent drug trafficking offenders’ sentences by 17 percent.

Holder did not attend the meeting. Instead, Commissioner Jonathan Wroblewski responded to what he called Pryor’s “very, very, very serious charge.” Wroblewski insisted that what the Attorney General did was “not only lawful, but in the greatest respect of the Justice Department,”

Chief Judge Ricardo Hinojosa stated that he was “surprised” by Wroblewski’s statement. He concurred with Pryor that Holder is setting a “dangerous precedent,” noting that two years ago, the Justice Department testified that it was not ready for reductions in sentencing, but that “all of a sudden, because the Attorney General says so” the DOJ has changed its course.

The meeting concluded with Chief Judge Patti Saris applauding the commission for its unanimous vote. But observers joined Pryor and Hinojosa in condemning Holder’s high-handed approach to constitutional boundaries.

“For those committed to the rule of law, the question now goes beyond whether reducing sentences for dealers in dangerous drugs is wise. It’s whether the Attorney General, the chief law enforcement officer in the United States, is committed to following the law as it exists, or, instead, as he wants and speculates it might become,” William G. Otis a professor at Georgetown University Law Center, said in a statement. “One way to consider this question is to ask whether, if the Attorney General ordered prosecutors to seek increased sentences that were, at the time, only preliminary, those applauding Mr. Holder’s actions would be as enthusiastic as they are today.”

I'm not sure I see the disrespect or the separation of powers issues. The Attorney General can tell his prosecutors what sentences to seek; in fact, he can even go so far as to pick and choose what cases to prosecute. I see the judges' role as a check on the prosecution power in seeking sentences that are too high, not too low. This is an adversary system, so if the executive branch says that a particular sentence is too high, I'm not sure how that is disrespecting the judicial branch. As an aside, the guidelines aren't even based on any empirical data; they are simply made up numbers -- and the Commission voted unanimously to reduce those made up numbers. Had Holder not told his prosecutors to stop seeking the higher sentences, we'd see a flood of 2255s, along with appeals, and I'm sure the judicial branch wouldn't be happy about that.

Judge Marra's sentencing of Christopher George last week demonstrated how the judiciary rightly checks the government. The prosecution asked for a third off of George's sentence for cooperation and the defense asked for way more. Judge Marra correctly said no and gave much less -- about 20%. From Paula McMahon the Sun-Sentinel:

Christopher George, whose highly successful pill mills in Broward and Palm Beach counties made about $40 million, was hoping Friday that his cooperation with prosecutors would earn him a big break on the prison term he is serving.

Though the inmate wasn't in court to witness it, prosecutors formally recommended that he should get close to six years shaved off his 17 1/2 year federal prison sentence and told the judge that they wouldn't object to him getting as much as a 50 percent sentence reduction.

But U.S. District Judge Kenneth Marra was not going for anything even close to that.

"I'm not sure that I want him back out on the streets as quickly as everyone here seems to want — he's a dangerous person," Marra said.

Recalling George's boastful testimony last summer in the trial of two doctors he hired to prescribe massive amounts of painkillers to addicts and other drug, the judge said the former Wellington twin was "proud of being a criminal."

"He was proud of what he did. He was just upset that he got caught," Marra said.

The judge, who has granted sentence reductions for several other co-defendants who helped the prosecution, reminded prosecutors and defense attorney Fred Haddad that he could refuse to reduce George's sentence by even one day.

But mindful that prosecutors investigating tough cases often need the help of cooperating criminals — who will only do the right thing if they know they will receive some kind of reward — Marra said it would be "unwise and damaging to the criminal justice system" to give George no credit at all.

After a long silence, Marra ruled that it was appropriate to take 3 1/2 years off George's prison term – which cuts his punishment to 14 years. Federal inmates usually serve about 85 percent of their sentences, with time off for good behavior.

Tax fraud trial starts for former Hialeah Mayor Julio Robaina

The case is before Judge Ungaro.  The Herald has these details from the start of the trial:

The tax-evasion trial of former Hialeah Mayor Julio Robaina and his wife got underway Friday with opening statements.
A 12-person Miami federal jury, which was picked Thursday, will hear allegations that Robaina and his wife, Raiza, conspired to defraud the federal government by failing to report more than $1 million in income — including $300,000 in cash payments allegedly collected from now-imprisoned investment scammer Luis Felipe Perez. The trial, presided over by U.S. District Judge Ursula Ungaro, could last three weeks.
Before trial, prosecutors Richard Gregorie and Michael Davis argued that the couple had a conflict of interest with being represented by one defense attorney. They claimed that Robaina arranged to be paid in cash by Perez so he could use the money for his alleged mistress and keep it a secret from his wife.
But the Robainas stood united, insisting that the issue would not pose a conflict at trial because Perez and another witness who made the allegation were “liars.”

"I am handcuffed! I am not allowed to do the nasty conservative things I want to do to the country."

That was Justice Scalia during this recent talk at Brooklyn Law School.  More from the WSJ:

If the framers didn't think flogging was cruel or unusual, he continued, then it couldn't, therefore, violate the constitution they wrote.

Before an audience, the sharp bite of Mr. Scalia's imposing demeanor was leavened with a self-deprecating wit. Because of the inviolability of the Constitution's original meaning, he joked, "I am handcuffed! I am not allowed to do the nasty conservative things I want to do to the country."

This answer, like many others, elicited a round of delighted laughter and applause from the law students, who seemed to be cheering Mr. Scalia's clever and occasionally confrontational replies more than they were applauding the substance of his positions. When Mr. Napolitano asked him a question about privacy from government intrusion into the bedroom, he began, "Bedroom is polite language for intercourse—is that right?"

After an hour of interrogation from Mr. Napolitano, Mr. Scalia fielded questions from the audience. The questions didn't seem prescreened, but a few were notably pointed.

"There have been many calls for Justice Ginsburg to retire," one student asked. "Would you take some of the pressure off her and retire instead?"

Amid a roar of laughter, Mr. Scalia gave a teasing response. "I said I would take questions—I didn't say I would answer them."

When another student asked, referring to Mr. Scalia's originalism, "Why should society be bound by laws that were passed only by white male property owners," he hesitated for a few seconds, longer than he had all evening. "That's a reasonable position," he smiled. "You people wanna make a revolt? Do it!"

Should Supreme Court Justices be more tech savvy?

After reading Michelle Olsen's post on the Facebook case coming up, where the briefs have to describe what FB is, query whether these Justices know enough to be ruling on such questions:

The petition includes a rudimentary description of Facebook, a subtle recognition of the justices’ admitted lack of online savvy: Users have “a home page on which the user can post comments, photos, and links to other websites.” They “may become ‘friends’ with other users.”

Justice Elena Kagan has said that the justices do not even use email.

Here's the question involved in this specific case:

A man convicted of making threats using Facebook has asked the U.S. Supreme Court to resolve a circuit split over what constitutes a “true threat.”

Under the pseudonym “Tone Dougie,” Anthony Douglas Elonis posted violent content on Facebook about his wife and others, often in the form of rap lyrics.

Elonis was convicted under 18 U.S.C. § 875(c), which makes it a federal crime to transmit “any threat to injure the person of another” in interstate commerce. There are comparable state laws.

The U.S. Court of Appeals for the Third Circuit rejected Elonis’ appeal.

In February, the University of Virginia School of Law’s Supreme Court Litigation Clinic filed a petition for certiorari on behalf of Elonis. John Elwood, a Vinson & Elkins partner and clinic instructor, is the counsel of record. Elwood is also a former assistant to the solicitor general and clerk to Justice Anthony Kennedy.

The brief in opposition is due April 21, so the justices could act soon on the petition.

Virginia v. Black, a 2003 Supreme Court opinion about cross burning, held that when a “speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,” that is a true threat (emphasis added). Such threats are not protected speech under the First Amendment.

The petition outlines a split among federal courts of appeals and state high courts over Black’s true threat definition. One interpretation focuses on the speaker, while the other focuses on the speaker and the listener.

Does the phrase “means to communicate” require that the speaker subjectively intend a threat, or is it enough that the message sent comes across objectively as a threat?

Drs. Joseph Castronuovo and Cynthia Cadet sentenced

You remember them -- they were acquitted of all the drug charges in front of Judge Marra a few weeks back.  But they were convicted of money laundering.  Many thought they would get very low sentences because of the acquittals. Not so much.  From the Sun-Sentinel:

It seemed like a victory for two doctors last summer when a jury cleared them of federal charges they had caused the overdose deaths of eight patients they treated at some of South Florida's most notorious pill mills.
But both doctors were found guilty of money laundering and a federal judge meted out stiff punishments for those convictions on Friday, saying there was no way the highly educated professionals did not know they were supplying oxycodone to drug dealers and addicts.
Dr. Joseph Castronuovo, who turns 75 in a few days, was sentenced to 18 months in federal prison. Soon after, Dr. Cynthia Cadet, 43, of Parkland, was sentenced to 6 1/2 years in federal prison.
Both are scheduled to surrender to prison authorities in June. Their lawyers said they intend to appeal and hope to be allowed to remain free on bond while the case is going through the appellate courts.
***
U.S. District Judge Kenneth Marra said he carefully followed the jury's verdict that acquitted Cadet of charges that she contributed to the deaths of six of her patients and Castronuovo of causing the deaths of two of his patients.
But he said it was inconceivable that the two doctors, who had stellar reputations, did not know what was going on at the pain clinics, or pill mills.
Former staff and patients testified there were garbage cans filled with cash in the clinics and "patients" who traveled by car from Appalachia to South Florida to get massive prescriptions of pills were clearly addicts. Practically every patient received almost identical doses of the drugs, prosecutors said, and many of them sold those prescriptions to drug dealers, who traded them in rural communities far from South Florida.
Marra referred to security video footage that showed the waiting room at the clinic where Cadet had worked.
"The chaos, the madness that was going on in that facility," made it obvious to all what was going on there, Marra said. He gave the doctors the benefit of the doubt for the first few months they worked at the clinics but said they definitely knew they were working for a criminal operation but continued to take their salaries, which came from tainted funds, he said.
"It's just impossible not to have known that the people were drug addicts," the judge said.

 In other District news from last week, Scott Rothstein's former partner Russell Adler pleaded guilty last week to a count with a 5-year cap.  He avoids the risk of decades in prison.  I don't know any of the facts of Adler's case, but in general I wonder how many innocent people take deals like this to avoid the huge trial penalties that we see in the criminal system.  Tell me in the comments what you think: What percentage of our inmates are innocent people who took a deal to avoid the risks of trial?

“I hate my job, I hate my job”

That was a court reporter in New York, who has put in jeopardy a number of cases, because instead of transcribing cases, he was writing that over and over again.  From the NY Post:

The bizarre antics by Daniel Kochanski, who has since been fired, wreaked havoc on some 30 Manhattan court cases, sources said, and now officials are scrambling to repair the damage.
One high-level source said his “gibberish” typing may have jeopardized hard-won convictions by giving criminals the chance to claim crucial evidence is missing.
Kochanski’s botched transcripts include the 2010 mortgage-fraud trial of Aaron Hand, who was also convicted of trying to hire a hit man to take out a witness against him.
A source familiar with the case said Kochanski’s transcripts of that trial were a total mess.
“It should have been questions and answers — instead it was gibberish,” the source said.
And in a scene right out of 1980’s “The Shining,” where Jack Nicholson’s off-the-rails writer repeatedly types “All work and no play makes Jack a dull boy,” a source said of Kochanski: “He hit random keys or wrote, ‘I hate my job. I hate my job. I hate my job,’ over and over.”
Claudia Trupp, of the Center for Appellate Litigation, said her office was handling the appeals in Hand’s and nine other cases.
“I never had a situation where a single court reporter was responsible for so much damage,” she said.
Kochanski, 43, was fired in March 2012 for misconduct, said Office of Court Administration spokesman David Bookstaver.
Sources said the Manhattan DA’s Office arrested Kochanski and forced him to try to make sense of his shorthand typing.
ut that effort apparently failed. Judges have been holding “reconstruction hearings” at which everyone involved in a case has to testify about what they remember.
“This situation is terrible for everybody,” Trupp said. “It’s very difficult to come up with a sufficient record based on everybody’s recollection years after the event.”
The troubled stenographer’s dad, Ed Kochanski, said his son “became an alcoholic” about five years ago, costing him his marriage and job.
He said his son was in rehab when they last spoke about three years ago.
Ex-wife Heather Kochanski said, “The pressure of that job pushed him over the edge, leading him to lose everything.”
By phone Wednesday, Kochanski denied screwing up his transcripts.
“I never typed gibberish. I always did my job 100 percent. I was let go because of substance abuse,” he said.

"The Romanian Mumble"

Should Alex Michaels be held in criminal contempt for mumbling in Romanian, "futos gutos monte"?  The Third DCA in a 2-1 says yes per Judge Shepherd (with a powerful dissent by Judge Lagoa).  Here's the majority:

The Romanian Mumble

Mr. Michaels’ use of foul language, however, is another matter. On this
charge, Mr. Michaels admitted that while extending his hand toward Mr. Von
Zamft, he mumbled the words “futos gutos monte” at him. Tr. 97. The trial court
immediately knew or gleaned from Mr. Michaels’ scornfulness that the words
meant “F**k You.” Mr. Michaels confirmed the trial judge’s interpretation of the
words during colloquy at the contempt hearing held a few hours later:

THE COURT: You stated that you mumbled Romanian, what do
those words mean?
[Mr. Michaels]: I’m not going to say at this point. They are
obscene words. They are obscene words in Romanian. Again, if

that is somehow contemptuous, then I apologize to everybody [who]
could be insulted by words they do not understand.
I’m going to try in the future to stop even doing that, but I do
speak Romanian. I [have] been in trouble before. I learned it in order
not to offend anybody.
It happened before. Sometimes they realize they don’t
understand the words. They smile, they laugh, they say don’t do it
again.

Tr. 99-100. We are well aware this has happened before and we are not laughing.
Mr. Michaels also has proven “don’t do it again” means nothing to him.2 Neither
do prior sanction opinions from this court, nor prior discipline from the Florida
Bar. See Michaels v. State, 773 So. 2d 1230 (Fla. 3d DCA 2000 ) (affirming a
judgment of direct criminal contempt and a sentence of six months of probation for
violating an order to refrain from making speaking objections); Quinones v. State,
766 So. 2d 1165, 1167 (Fla. 3d DCA 2000) (reporting Mr. Michaels to the Florida
Bar for “unprecedented levels of attorney misconduct”).3
Mr. Michaels somehow is under the impression that cursing in his native
tongue is somehow less contemptuous than cursing in English. However, we defer
to the trial court’s finding, “I know what I saw.” Pursuant to Florida Rule of
Criminal Procedure 3.830, the trial court’s reliance on her sight—coupled with
record support from Mr. Michaels’ own mouth—is sufficient to uphold the finding
of contempt based on “the mumble.” Viewing, as the trial court here did, the
words mumbled in the context in which they were made, see Martinez v. State, 339
So. 2d 1133, 1135 (Fla. 2d DCA 1976), we conclude the trial court correctly
deemed them contemptuous.

Here's the dissent by Judge Lagoa:

 Applying the requisite objective standard, the record does not support a
finding that an isolated, inaudible utterance in Romanian that was not directed at
the trial court is sufficient to sustain a finding of direct criminal contempt. While
Michaels admits that he mouthed an obscenity in Romanian under his breath
during the hearing, it is undisputed that every witness testified that they did not
hear Michaels’s utterance. Moreover, the isolated utterance was done after
opposing counsel had interrupted Michaels’s questioning, walked up to the
podium, shook his fist at Michaels, and threatened to move to have Michaels
involuntarily committed under the “Baker Act.”

Additionally, there is nothing in the record to indicate that the utterance
was directed at the trial court, nor is there anything in the record to establish
how the trial court translated Michaels’s mumbled utterance from Romanian
to the English obscenity quoted in its orders. Indeed, the trial court’s two orders
make it clear that the trial court is not even sure whether Michaels muttered “F**k
you” or whether he said something in Romanian. The trial court’s uncertainty
confirms the failure to satisfy the “beyond a reasonable doubt standard” required
for finding an individual in direct criminal contempt. Because the power of
contempt must be exercised rarely and cautiously, “[t]he provocation must never
be slight, doubtful or of shifting interpretations. The occasion should be real and
necessary, not murky, and not ameliorated in some less formal manner.” McRoy,
31 So. 3d at 275; Davila, 100 So. 3d at 264.

The trial court’s order also warrants reversal as the record lacks the
necessary intent required to sustain a finding of direct criminal contempt.
“Criminal contempt requires some willful act or omission calculated to hinder the
orderly functions of the court.” Davila, 100 So. 3d at 264 (emphasis added). See
also Woods v. State, 987 So. 2d 669, 677 (Fla. 2d DCA 2007) (“[A]n intent
beyond mere rudeness was required before the court could adjudicate Mr. Woods
guilty of direct criminal contempt. The trial court had to establish that Mr. Woods'
statement, coupled with his actions, were intended to constitute an imminent threat

to the administration of justice.”); Woodie, 960 So. 2d at 878-79 (“Criminal
contempt requires some willful act or omission calculated to hinder the orderly
functions of the court.”). See generally Ex parte Earman, 95 So. at 762-63 (direct
criminal contempt cannot be sustained where record did not establish intent to
embarrass the court in the administration of justice).
Significantly, nothing in the record establishes beyond a reasonable doubt
that Michaels intended to disrupt or hinder the court proceeding by his inaudible
utterance in Romanian. There is no evidence that Michaels’s isolated utterance
was “calculated to cause harm” – a prerequisite for a finding that the conduct
charged is contemptuous; and the record is also devoid of any evidence of willful
or deliberate intent to disrupt. In fact, the record evidence is to the contrary.
Under oath, Michaels testified that he mouthed a profanity in Romanian, and not in
English, because he did not want to interrupt the proceedings or be offensive.
Moreover, Michaels was reacting to Von Zamft’s threat to Baker Act him, and
Von Zamft’s physical behavior that required his fellow assistant state attorney to
physically restrain him, not any statement or ruling by the trial court. See, e.g.,
Davila, 100 So. 3d at 264 (during contempt hearing, defendant explained that he
was frustrated by the system and his situation so that his statement “F*** the

court” was not calculated “to hinder the functions of the court, but merely spoke[n]
out of understandable frustration”); Woods, 987 So. 2d at 678 (defendant’s

expletive “is somewhat understandable given that he was charged with being a
felon in possession of a firearm though he had never been convicted of a felony”).
See also Ex parte Earman, 95 So. at 762 (unrebutted testimony under oath
established lack of intent and therefore could not sustain adjudication of direct
criminal contempt).

***

Here, the requisite proof required for direct criminal contempt is sorely
lacking. Because the record fails to support a finding of direct criminal contempt
on both charged offenses, I would grant the petition for writ of habeas corpus, and
remand with directions to the trial court to vacate the judgment and sentence for
direct criminal contempt.

Slow blogging

Sorry for the slow blogging yesterday.  I was in federal court in Bowling Green, Kentucky.  Back home now and saw that Judge Scola sentenced Anthony Livoti Jr. to 10 years in prison. 


Paula McMahon has the story:

Shackled and dressed in khaki jail scrubs, Livoti showed the emotion of a scared man fighting to save himself from spending the rest of his life in prison — but he also displayed the skills of a tough attorney who fought for his clients in more than 40 years of lawyering.
"I had a life that was always filled with joy. I now have a life that is filled with sadness," Livoti said, speaking of the three months that he has already spent locked up in the Federal Detention Center in Miami since his conviction.

                                                                           

Livoti, 65, of Fort Lauderdale, was best known as a police union lawyer and for his advocacy work for the gay community. He was convicted in December after a three-month trial.
The Ponzi scheme bought out life insurance policies at discount prices from seniors and people who were dying of AIDS, cancer and other terminal conditions. In what became known as the Mutual Benefits Corp. scam, led by Joel Steinger, the policies were sold to investors who expected to make a profit by receiving the full insured value when the beneficiaries died.
Jurors took an extraordinarily long eight days of deliberations to find Livoti guilty of four charges, including conspiring to commit fraud and money laundering, but found him not guilty of 20 related counts.
Livoti, the only defendant who went to trial in the case, finally acknowledged his guilt in court Tuesday after long denying it.
"I lost my way and I wish I could go back and change it," Livoti said, apologizing to the victims for what he called the "terrible wrong" he committed.
Livoti insisted that he had thought he was innocent of the charges until he went to trial and heard all of the evidence against him. He said he had thought that the problems with Mutual Benefits were caused because medical advances were helping people with AIDS live longer than expected and even survive.
Sentencing guidelines suggested a punishment of 80 years. Assistant U.S. Attorney Karen Rochlin recommended a 30-year term and the defense asked for six years in prison – twice the punishment that Livoti would have received if he took the last plea agreement prosecutors offered before he went to trial.
Livoti, the son of a New York state judge, told U.S. District Judge Robert Scola Jr. that he had already lost his reputation, his career and his freedom.
He begged the judge to give him hope, which he said he had lost, that he would not die in prison and could some day be released to spend the rest of his life with his husband, Michael Porter. He said he also wants to try to make amends for his crimes. The felony convictions mean he will lose his law license.
"Judge, I am a life worth saving," Livoti said.

The Chief issues a memo

In case you didn't see it, here is Chief Judge Moreno's memo to the bar of the SDFLA:

To: Members of the Southern District of Florida Bar
From: Chief Judge Federico A. Moreno
Re: Call for Assistance -- Pro Bono Panel

I am very pleased to announce that our District is embarking in a new direction that hopefully will result in more unrepresented litigants obtaining counsel than ever before. And we need your help!

You may have heard of the Courts decision last month to discontinue operations of the Volunteer Lawyers Project (VLP). In recent times the expenses of operating a program like the VLP simply have become disproportionately high when compared to the number of pro se cases it could service. Because the program was funded from funds collected through a portion of attorney admission fees from members of our Bar and pro hac vice fees, my colleagues and I felt a special responsibility to insure that those monies would be used as wisely as possible.

The decision to disband the VLP was not taken lightly, but rather after exploring vario us alternatives. In the end, our Judges determined that it would be a better use of resources for us to take a more active role in seeking out counsel for pro se litigants. This will permit much of the money used to fund the VLPs efforts to be shifted toward expense reimbursement for volunteer attorneys.

This is where each of you comes in. I urge all members of the Southern District to join us in a renewed commitment to assist the unrepresented in this District. How can you help? There are a number of ways, the easiest of which is to simply take a case! Pro Bono Opportunities can be found at the Courts websitewww.flsd.uscourts.gov and are regularly distributed by way of electronic email blast. In addition, I urge each of you to register via the website to be included in a Pro Bono Panel list of those attorneys have an interest in assisting with worthy cases in the future or who are in a position to help locate other attorneys, such as associates in their law firm, who may take cases. There is no commitment from registering, but rather this will simply help us build a database of first contacts when the need arises.

I would like to take this opportunity to especially thank those who have volunteered in the past through the VLP, and particularly its Director Randy Berg, for their important service to the Court. I am sure that their spirit of public service will carry on as we move forward with this new endeavor. My colleagues and I look forward to seeing each of you in Court.

Federico A. Moreno
Chief United States District Judge

Senate Judiciary Hearing tomorrow at 10am for Bloom & Gayles

Judicial Nominations
Full Committee
Date: Tuesday, April 1, 2014
Time: 10:00 AM
Location: Dirksen 226
Agenda
Beth Bloom, to be United States District Judge for the Southern District of Florida
Paul G. Byron, to be United States District Judge for the Middle District of Florida
Darrin P. Gayles, to be United States District Judge for the Southern District of Florida
Carlos Eduardo Mendoza, to be United States District Judge for the Middle District of Florida

Mutual Benefits Joel Steinger pleads guilty

This was going to be a very long trial with lots of hurdles including a defendant who would have needed lots of medical attention during trial day.  So I'm sure many people are relieved that it's over.  From the DBR:

Joel Steinger, the mastermind behind an $800 million viatical scam run by Fort Lauderdale-based Mutual Benefits Corp., pleaded guilty Friday to fraud conspiracy in two cases pending against him.
Federal prosecutors charged Steinger stole tens of millions of dollars from the company that purchased life insurance policies of seniors and critically ill people. The business plan was to buy discounted policies and make money for investors when the policies matured.
Regulators charged Mutual Benefits faltered when HIV-infected people started living longer because of new medications. Steinger and his brother, Steven Steiner, then turned the enterprise into a Ponzi scheme, prosecutors said.
In a factual proffer signed by Steinger on Friday, he said he made false promises about returns and single-handedly made decisions on life expectancy projections for thousands of policies in a fraud that ran from 1994 to 2004.
"Many investors were falsely told that as many as 80 percent of all MBC policies matured on time or early," according to the proffer.
Mutual Benefits was placed in receivership.
Steiner was sentenced in February to 15 years in prison for his role in the fraud. The company's general counsel, Michael J. McNerney, also pleaded guilty and was sentenced to five years in prison.
Fort Lauderdale attorney Anthony Livoti Jr., who served as the trustee for Mutual Benefits, was convicted at trial last year of multiple counts of fraud and is scheduled to be sentenced Tuesday by U.S. District Judge Robert Scola in Miami.
Steinger once lived in a Fort Lauderdale waterfront mansion but has been held without bond for about 1½ years. He uses a wheelchair because of severe back pain, and prosecutors made arrangements for him to appear at a hearing on his medical condition last week via a video feed from the jail.
Under the plea agreement, the government will drop 24 other fraud counts against Steinger. Prosecutors claimed in the plea agreement filed Friday that there were 250 victims of the fraud.

Is it me or did the first quarter of the year fly by?  Spring break is over and baseball season is here.  It was a pretty quiet 3 months in the District..... Any trials coming up?  Send me your tips, which as always will remain anonymous -- dmarkus@markuslaw.com

Should prosecutors be able to use rap lyrics as evidence?

That's the question posed by the front page of the NY Times today:

No suspects. No sign of the gun used to shoot the men. No witnesses to the shooting outside a house where officers found Mr. Horton sprawled next to a trash can and Mr. Dean on the front porch.

But in 2011, the case was reassigned to a detective who later came across what he considered a compelling piece of evidence: a YouTube video of Antwain Steward, a local rapper with the stage name Twain Gotti, performing his song “Ride Out.”

“But nobody saw when I [expletive] smoked him,” Mr. Steward sang on the video. “Roped him, sharpened up the shank, then I poked him, 357 Smith & Wesson beam scoped him.”

Mr. Steward denies any role in the killings, but the authorities took the lyrics to be a boast that he was responsible and, based largely on the song, charged himlast July with the crimes.

Today, his case is one of more than three dozen prosecutions in the past two years in which rap lyrics have played prominent roles. The proliferation of cases has alarmed many scholars and defense lawyers, who say that independent of a defendant’s guilt or innocence, the lyrics are being unfairly used to prejudice judges and juries who have little understanding that, for all its glorification of violence, gangsta rappers are often people who have assumed over-the-top and fictional personas.

“If you aspire to be a gangsta rapper, by definition your lyrics need to be violent,” said Charis E. Kubrin, an associate professor of criminology, law and society at the University of California, Irvine.

But prosecutors say the lyrics are an important tool for battling criminals who use an outspoken embrace of violence as a weapon of control. “Just because you put your confession to music doesn’t give you a free pass,” said Alan Jackson, a former senior prosecutor in the Los Angeles County district attorney’s office.

In some of the cases, the police say the lyrics represent confessions. More often, the lyrics are used to paint an unsavory picture of a defendant to help establish motive and intent.

THe whole article is worth a read.  What do you all think?

Sen. Rubio issues blue slip for Judge Gayles

Via the Huffington Post (ht Glenn Sugameli):

WASHINGTON -- Florida judicial nominee Darrin Gayles just inched a little closer to becoming the nation's first black, openly gay man to serve as a federal judge.Sen. Marco Rubio (R-Fla.) has given the green light to the Senate Judiciary Committee to proceed with Gayles' nomination to the U.S. District Court for the Southern District of Florida, a committee aide confirmed to The Huffington Post on Tuesday. Specifically, Rubio has submitted his "blue slip" to the committee, a crucial step in the confirmation process whereby a senator can unilaterally approve or block a judicial nominee from his or her home state.Now that both of Gayles' senators have submitted their blue slips -- Florida Democrat Bill Nelson already turned his in -- that signals to committee chairman Patrick Leahy (D-Vt.) to move forward with a hearing. Gayles still has to clear the committee and pass the Senate, but Democrats are expected to carry those votes. By turning in his blue slip, Rubio has removed the biggest obstacle to Gayles' confirmation.

The initial hearing may be as soon as next week.  Congratulations on this big step forward for Judge Gayles.  I assume the blue slip was also issued for Judge Bloom, but I have not yet found any confirmation for that.

Tuesday's news and notes

1.  Bryan Garner has a list of words you should not use in legal writing.  Here are a few from the article:

and/or Is it a word? Is it a phrase? American and British courts have held that and/or is not part of the English language. The Illinois Appellate Court called it a "freakish fad" and an "accuracy-destroying symbol." The New Mexico Supreme Court declared it a "meaningless symbol." The Wisconsin Supreme Court denounced it as "that befuddling, nameless thing, that Janus-faced verbal monstrosity." More recently, the Supreme Court of Kentucky called it a "much-condemned conjunctive-disjunctive crutch of sloppy thinkers."
If a sign says "No food or drink allowed," nobody would argue that it's OK to have both. (Or includes and.) And if a sign says "No admission for lawyers and law students," would you argue that either could go in alone? You'd be thrown out of court.
The real problem with and/or is that it plays into the hands of a bad-faith reader. Which one is favorable? And or or? The bad-faith reader can pick whatever reading seems favorable.
I've done lots of drafting since 1987, the year when I learned how unnecessary and/or really is. I've drafted court rules, jury instructions, model contracts, car warranties and many other documents. Never once have I needed and/or. You won't either. Kill it.
herein Old-style drafters say they stick to their ways for reasons of precision. They like the here and there words—apparently unaware of the ambiguities they're creating. The problem with herein is that courts can't agree on what it means. In this agreement? In this section? In this subsection? In this paragraph? In this subparagraph? Courts have reached all those conclusions and more. Use ordinary English words: in this agreement may be two extra words, but it's more precise.

2.   The Supreme Court isn't going to change its access policies (big surprise).  From Tony Mauro:

The U.S. Supreme Court has “no plans to change” its practices on access to its proceedings, a court spokeswoman said in a letter on March 21. Court public information officer Kathy Arberg was responding to a March 9 letter from the Coalition for Court Transparency, a new group of media and public interest organizations pressing for “policies that will help the public better understand [the court’s] important work.” Addressed to Chief Justice John Roberts Jr., the coalition letter urged the court to allow camera broadcast of court proceedings or, as an “intermediate step,” same-day release of the audio of oral arguments. Under current practice, the audio of oral arguments is released on the Friday of the week in which they occur—too late to be useful in same-day or next-day news coverage. Arberg’s letter notes that “the audio recordings of all oral arguments are available free to the public on the Court’s website, wwww.supremecourt.gov, at the end of each argument week. The written transcripts of oral argument are available on the Court’s website on the same day an argument is heard. There are no plans to change the Court's current practices.” The letter was addressed to Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, a leader of the coalition. Brown said on Monday, "I am appreciative that the Supreme Court responded to our coalition’s letter. I do believe that the smallest of changes to the court’s institutional practices would increase the public’s understanding of and appreciation for the court’s work. I hope that this marks the beginning of a dialogue between the court and those of us who care deeply about press freedom and increasing transparency at our most important judicial institution.” The statement from the court came the same day that a forum on the subject of transparency at the Supreme Court took place in Washington. Co-sponsored by the coalition, New York University and the Reporters Committee, the discussion was the second in a series that went beyond issues of broadcast access to look at ways the court could respond to Information Age demands for greater openness from government. Concerns ranged from the justices’ failure to explain their recusals, to the secrecy that sometime surrounds their public appearances and speeches. Georgia State University College of Law professor Eric Segall objected to the court’s practice of not revealing which justices voted for or against granting review of incoming petitions. “That is an incredibly important vote, and there is simply no reason why we shouldn’t know it,” he said.

3.  P.J. O'Rourke has filed a great and funny brief in the Supremes (access it here).  The NY Times covers it:

That is the point Mr. O’Rourke and the libertarian Cato Institute made in their cheeky, hilarious and quite possibly counterproductive brief. They said they were “unsure how true the allegation is given that the health care law seems to change daily, but it certainly isn’t as truthy as calling a mandate a tax.”

Truthiness, the brief explained, is a characteristic of a statement made “from the gut” or because it “feels right” but “without regard to evidence or logic.” The reference to “calling a mandate a tax” is, of course, a nod to Chief Justice John G. Roberts Jr.’s 2012 opinion upholding a central part of the Affordable Care Act.The guidebook for Supreme Court lawyers does not address whether it is a bad idea to mock the chief justice of the United States as you seek his vote, but that does seem to be the consensus view.The actual legal question before the justices is, as is so often the case at the court, a preliminary one. Here it is whether the anti-abortion group is entitled to sue at all. On the one hand, the Ohio Elections Commission said there was probable cause to think the group had violated the law. On the other, the matter fizzled out after Mr. Driehaus lost the election.

The federal appeals court in Cincinnati dismissed the suit, saying the group no longer had anything to worry about. In earlier decisions, courts have upheld the law.But that was before United States v. Alvarez, a Supreme Court decision issued the same day as the health care ruling. It struck down a federal law that made it a crime to lie about receiving military decorations, and it cast doubt over the constitutionality of the Ohio law and similar ones in 15 other states. Mr. O’Rourke connected the dots on the first page of his brief, assuring the justices that he, his lawyers, his family members and his pets “have all won the Congressional Medal of Honor.”

Hobby Lobby case heard today, during Spring Break

While most of Miami is skiing in Colorado, the High Court is hearing an important case. From the LA Times:

 A challenge to part of President Obama's healthcare law that hits the Supreme Court on Tuesday could lead to one of the most significant religious freedom rulings in the high court's history.Four years ago, in their controversial Citizens United decision, the justices ruled that corporations had full free-speech rights in election campaigns. Now, they're being asked to decide whether for-profit companies are entitled to religious liberties.At issue in Tuesday's oral argument before the court is a regulation under the Affordable Care Act that requires employers to provide workers a health plan that covers the full range of contraceptives, including morning-after pills and intrauterine devices, or IUDs.The evangelical Christian family that controls Hobby Lobby Stores Inc., a chain of more than 500 arts and crafts outlets with 13,000 workers, says the requirement violates its religious beliefs.Some contraceptives can "end human life after conception," the Green family says. Forcing the owners to pay for such devices would make them "complicit in abortion," their lawyers say.A ruling in their favor could have an effect on tens of thousands of women whose employers share the Greens' objections to some or all contraceptives.But the case could also sweep far beyond just this one provision of Obamacare. The justices have been wary of accepting claims that religious beliefs can exempt people — or companies — from following laws that apply to everyone. The court's previous religious freedom cases usually involved narrowly focused claims from religious minorities, such as the Amish or Seventh-day Adventists.But the current court, led by Chief Justice John G. Roberts Jr., has shown a greater interest in religious freedom claims. And because the objections to the contraceptive mandate come from Catholic bishops and evangelical Christians, not small or obscure sects, the potential effect has been magnified. The Obama administration argues that if the justices allow Hobby Lobby to refuse to pay for contraceptives because of its owners' religious beliefs, the way would open for religious objections to a broad array of laws. Companies potentially could shape the benefits they offer, and perhaps even their hiring, based on their religious convictions.

Meantime, Justice Scalia is answering questions about the NSA (from Business Insider):

Supreme Court Justice Antonin Scalia got an incredibly astute question from a law student Friday night that could have huge implications for the NSA's domestic surveillance programs.The question came during a spirited Q&A curated by Brooklyn Law School's Judge Andrew Napolitano, who asked Scalia about the controversial subject of the NSA's surveillance of Americans.Scalia made it clear the issue would likely come before the high court, and he hinted he would rule that "conversations" (i.e., the conversations the government might listen to) aren't protected by the Fourth Amendment. The Fourth Amendment, Scalia pointed out, prohibits the government from searching your "persons, houses, papers, and effects" without a warrant — not "conversations."However, one student asked the justice whether data in a computer might be considered "effects" under the Fourth Amendment, an interpretation that would prohibit the NSA's capture of communications over the Internet.Scalia, who's remarkably avuncular in person, was visibly pleased by the question but said he "better not answer that.""That is something that may well come up [before the Supreme Court]," Scalia added.

Read more: http://www.businessinsider.com/justice-scalia-talks-fourth-amendment-at-bam-2014-3#ixzz2wt19p7IH

"[T]his case shows every sign of being an overzealous prosecution for a technical violation of a criminal regulatory statute -- the kind of rigid and severe exercise of law-enforcement discretion that would make Inspector Javert proud."

That's from the dissent of a criminal case in the 7th Circuit, which voted to uphold the criminal conviction.  Weird.  Here's the entire opinion.




Lots of people are clamoring for Ruth Bader Ginsburg to retire while Obama is in office.  Slate's Dahlia Lithwick thinks they are nuts:

Arguments about Ginsburg’s political judgment almost by necessity inflect upon her judgment as a whole, and yet nobody has advanced any argument for the proposition that Ginsburg’s judgment is failing. The suggestion that the woman who engineered the ACLU’s litigation strategy in the courts, who wrote the partial dissent in the health care cases, and again in last year’s voting rights case, and in Vance v. Ball and UT Southwestern Medical Center v. Nassar, doesn’t understand real-world politics is actually pretty bizarre. Of all the sitting justices, Ginsburg is probably the least likely to simply forget to retire because it slipped her mind. (One can, on the other hand, plausibly imagine Breyer simply forgetting to step down.)

Over at the Atlantic, professor Garrett Epps has just written in defense of Ginsburg. You should read the whole piece, but two important points he makes are worth repeating: Ginsburg plays a crucially important role in the Roberts Court as the senior justice on the liberal bloc, not just in terms of assigning opinions but in terms of writing them. If anything, Ginsburg has been stronger in recent years than ever and has been a crisper, more urgent voice for women’s rights, minority rights, affirmative action, and the dignity of those who often go unseen at the high court than ever before. She has gone from rarely reading her dissents from the bench to doing so with great frequency, calling out the majority for what she sees as grave injustices and proving that her voice is both fiery and indispensible. Telling her that her work is awesome, but it’s time to move on is tantamount to saying that a liberal is a liberal and that Ginsburg brings nothing to the table that another Obama appointee will not replicate. That analysis suffers from exactly the same realpolitik flaw Ginsburg’s critics ascribe to her: that counting to four, or five, is more important that the justice herself. Ginsburg, like Antonin Scalia, is writing those dissents for law students, for the case books, and for Congress. Not all justices are created equal in that regard.

Epps’ other point is that knowing when you’ve stayed at the court too long is a complex and deeply personal inquiry, and that many of the justices who overstayed their time were blind to their own illnesses and failings. Others left before they should have. But of all the justices now at the court, Ginsburg strikes me as the least isolated, the least self-involved, and the least likely to surround herself with sycophants telling her to stay on. Ginsburg is not a Justice who reads no newspapers, vacations alone, or hides out from the world. Her travel and speaking schedule is punishing. She is as deeply connected to the world around her as she has always been.

OK people, have a wonderful spring break.

Great event for trial lawyers

The local Federal Bar Association has a great event this Monday for trial lawyers.

Kerri Ruttenberg of Jones Day will be speaking on how to create and use demonstratives. It's worth your time. From the FBA website:

Cutting-Edge Trial Techniques: Effective Use of Technology and Design of Visuals- March 24, 2014, 11:45am at Holland and Knight

The Women's Iniative proudly presents "Cutting-Edge Trial Techniques: Effective Use of Technology and Design of Visuals" featuring Kerri Ruttenberg, a Partner at Jones Day in Washington D.C. Based on her 15 years of trial experience, including working with graphic designers and interviewing jurors, Kerri is nartionally renown for her CLE programs on the effective use of graphics and visual presentations in the courtroom. Space is limited!

Justice Kagan says be happy!

From the AP:

Supreme Court Justice Elena Kagan says the happiest lawyers are those who find a way to make a difference in other people's lives.

The high court's youngest justice says the feeling of making a difference in the world is what makes people enjoy going to work every day.

Kagan spoke Monday to graduating students at Georgetown University Law Center.

Kagan said she was inspired by working as a law clerk for Justice Thurgood Marshall, who convinced her that a meaningful career for lawyers meant making a difference "in something bigger than themselves." She said she loved being a lawyer because of the intellectual puzzles it presents and the fact that people can use the law to help others.

According to the feds, maybe the former Hialeah Mayor took this a bit too far (via the Herald):

Former Hialeah Mayor Julio Robaina had a reason he wanted to be paid in cash secretly on a high-interest loan to a convicted Ponzi schemer: He was spending the money on his mistress and needed to keep it secret from his wife, according to federal prosecutors.

Prosecutors claim that Robaina was paid more than $300,000 in cash by his close friend, Luis Felipe Perez, now in prison after pleading guilty to running a $45 million jewelry-investment scam. But in court papers, the prosecutors don’t identify the alleged mistress on whom Robaina spent the cash payments.

The new evidence — hidden from public view since last month because of a federal court order —surfaced in the criminal tax-evasion case against Robaina and his wife, Raiza, on Monday, after a magistrate judge granted the Miami Herald’s request to unseal certain documents.

“The government expects its evidence to show that the cash interest payments were delivered to defendant Julio Robaina, rather than defendant Raiza Robaina,” prosecutors wrote in a previously sealed February filing.

Federal Clerk charged in Dewey & LeBoeuf scandal

The New York Times has this very interesting (and sad) article here:

How did a 29-year-old with an impeccable record, someone who had never even taken an accounting course, end up as an accused mastermind of what the Manhattan district attorney, Cyrus Vance Jr., called “a massive effort to cook the books” of the once-giant law firm? And how did he get there without realizing he should hire a lawyer?

According to several criminal defense lawyers I spoke to this week, Mr. Warren became caught up in an increasingly common prosecutorial tactic. Mr. Warren may have been naïve, but he thought he was being questioned as part of a civil Securities and Exchange Commission investigation. He thought he might be a witness, and thus did not need a lawyer. Only too late did it dawn on him that he might be a target of a criminal investigation. The defense lawyers said prosecutors were increasingly using so-called parallel investigations to insert criminal investigators into what their targets thought were civil proceedings.

“It’s a serious threat to civil liberties, and people should know about it,” said Thomas J. Curran, a criminal defense lawyer in New York and a former prosecutor under the former Manhattan district attorney Robert Morgenthau. “Now, this is going on all over the country.” While this isn’t illegal or technically improper, “It’s dangerous,” Mr. Curran said. “They’re using civil proceedings to advance their criminal investigations. It’s a real threat to the cherished right to counsel.”

Judge Carnes wrote this money laundering guideline opinion, which has the following intro:

An application note to the guideline that governs the calculation of the offense level for money laundering instructs courts to consider only the money laundering offense itself and not the underlying crime that generated the money that was laundered. See United States Sentencing Guidelines § 2S1.1 cmt. n.2(C) (2013).1 In this case the district court in calculating the guidelines range mistakenly considered the defendant’s role in the drug conspiracy that generated the dirty money. As a result, the defendant received a higher adjusted offense level and guidelines range than he might have received if the application note to § 2S1.1 had been followed. That mistake and the resulting miscalculation must be laundered out of the sentence in a resentence proceeding.

Oh, and Happy St. Patrick's day:

Happy Pi Day!

Judge Posner is cranky.  From Alison Frankels' blog:

The acerbic judge was at his worst – or best, depending on your perspective – in an opinion Wednesday that’s already become an instant classic. Posner mocked the brief filed by a car crash victim and her lawyer, who were found in civil contempt for failing to deposit $180,000 in a trust account while they fight over the money with a union healthcare fund, as “a gaunt, pathetic document” with a grand total of 118 words of argument (including citations). He said the conduct of the crash victim and her lawyer was “egregious” and “outrageous,” and directed the trial judge presiding over their dispute with the union fund to consider throwing them in jail for contempt until they’ve come up with the $180,000. Posner suggested that the Justice Department might also be interested in the case, and then, to boot, scolded the trial judge, U.S. District Judge Joan Lefkow of Chicago, for permitting the case to drag on as “the stench rose.”

Judge Huck visits the 9th Circuit

The Recorder covers the story here (ht Vanessa Blum):

A San Diego lawyer's claim that virtual auctioneer eBay breaches its contract with millions of sellers ran into a marble wall Wednesday in a Ninth Circuit courtroom.
Roy Katriel is trying to bring a class action against eBay Inc. on the ground that the company helps bidders obtain the lowest sale price possible, despite promising in its user agreement to remain neutral in all transactions.
"What they put in the agreement is very specific. They said, 'We are not involved in the actual transaction,'" Katriel told the court Wednesday. "Now it turns out they are."
Under eBay's process, bidders enter the maximum they're prepared to bid. The company's software then discloses only so much as necessary to beat the previous high bid. So if a user authorizes a $50 bid, and the previous high bid is only $40, the user gets the item for $41. That shortchanges sellers, Katriel alleges in Block v. eBay.
There's one glaring problem with his argument. "Doesn't everybody who enters a bid on eBay understand what the system is?" Judge Stephen Reinhardt asked.
***
The third member of the panel, visiting U.S. District Judge Paul Huck of Florida, sounded even more skeptical than Reinhardt and Farris. He compared eBay to a mediation neutral that simply shuttles offers back and forth between parties, with "no dog in the fight."
But, Katriel argued, if a party told the mediator, "I'll pay up to $80, but try to get it for me for less ... he'd be working on your behalf."
Cooley partner John Dwyer, representing eBay, had a far easier time. In fact, he faced zero questions during his 10-minute argument. He said eBay's user agreement "strongly recommends" that users also read about the automatic bidding process, which can be accessed via a drop-down menu. "He never alleges they were misled about how the automatic bidding system works," Dwyer said.
The statement about staying out of the bidding process is only a limitation of liability that makes clear eBay isn't acting as a fiduciary like some traditional auction houses, he said. "What it's saying is, 'Hey, if you think you're with Christie's or Sotheby's, you're not.'"

Law school rankings are out

Here's the latest from U.S. News:

FSU #45 (up from 48)
UF #49 (down from 46)
UM #61 (up from 76)
Stetson #93 (up from 109)
FIU #100 (up from 105)

Not Ranked in the top 150: Nova, St. Thomas, Ave Maria, Barry, Florida A&M and Florida Coastal

Too good not to post

Between Two Ferns with Zach Galifianakis: President Barack Obama from President Barack Obama

11th Circuit decides to hear habeas case en banc

The issue in Spencer v. United States isn't one of great significance -- it deals with whether a defendant who raised the issue at sentencing and on direct review can raise it on a 2255 when there has an intervening change in law.  But it keeps the streak alive in the 11th Circuit for granting en banc review *only* when the defendant wins.  I cannot remember the last time the 11th Circuit granted review when the government won.  And because two of the judges who participated in the panel decision -- District Judge Brock Hornby and Senior Judge Kravitch -- won't be reviewing the case en banc, the case is almost certainly going to be reversed. 

Here's the panel's holding:

We hold that a defendant who unsuccessfully raised a career offender issue at both sentencing and on direct appeal can use a timely-filed first motion under 28 U.S.C. § 2255 to pursue the same issue when an intervening case from the Supreme Court validates his argument and applies retroactively. Under that intervening case, this defendant’s third degree Florida felony child abuse conviction no longer qualifies as a predicate crime of violence. He therefore is not properly treated as a career offender. We vacate the district court’s denial of his section 2255 motion and remand for resentencing.

Seems rather straight forward.  But I think this case raises two important issues --

1)  If the 11th Circuit is going to allow as many visiting judges as it allows, then if the case is heard en banc, the judges who sat on the panel should be permitted to hear the case en banc.  Here, Judge Kravitz was permitted to sit en banc but decided not to.  But the author of the opinion, Judge Hornby, cannot.

2)  The 11th Circuit should hear more cases en banc where the government is successful, especially because there are so many important decisions being made where there is only one active judge on the panel.

Judge Robin Rosenbaum vote today (UPDATED with vote)

The Senate Judiciary Committee will vote today on Judge Rosenbaum's nomination to the 11th Circuit.  She is expected to have no issues and fly through.  Watch here at 10am. 

UPDATE -- by voice vote, Judge Rosenbaum got unanimous approval.  Now to the full Senate.  Should go quickly.

ABA's White Collar Conference

So the ABA's big White Collar Conference is back at the Eden Roc this Wednesday through Friday.  Over 1000 lawyers come to schmooze, get CLEs, and to go to the parties at night all along Miami Beach. 

One party of note is at the Blues Bar at the National Hotel at 9:30pm where there will be the annual Steve Chaykin toast.  This year, the name will be changed to the Chaykin/Sharpstein toast....

In substantive news, both AG Holder and the Republicans are trying to get serious about sentencing reform.  From the NY Times:

Shortly after Senator Rand Paul filed suit last month against the Obama administration to stop its electronic dragnet of American phone records, he sat down for lunch with Attorney General Eric H. Holder Jr. in his private dining room at the Justice Department.

Mr. Paul, a Kentucky Republican, is one of the Obama administration’s most vocal critics. But their discussion focused on an issue on which they have found common cause: eliminating mandatory minimum sentences for nonviolent drug offenders.

The two men are unlikely allies. Their partnership unites the nation’s first African-American attorney general, who sees his legacy in a renewed focus on civil rights, and some of Congress’s most prominent libertarians, who have accused the Obama administration of trampling on personal freedom with drones, wiretaps, tracking devices and too much government.

While a range of judges, prosecutors and public defenders have for years raised concerns about disparities in punishment, it is this alliance that may make politically possible the most significant liberalization of sentencing laws since President Richard M. Nixon declared war on drugs.