Fugitive caught after 37 years.

From the Government's press release:

Robert Anton Woodring, formerly of Fort Lauderdale, Boyton Beach, and Pompano Beach, Florida, was arrested on charges of failing to surrender for service of sentence.  In 1984, Woodring was indicted for failing to surrender in September 1977, to commence a 10-month sentence imposed in October 1975, for removing a yacht in order to prevent seizure by authorized persons. Woodring had also been sentenced in a related case to seven year imprisonment after a jury found him guilty of mail fraud and conspiracy to conspiracy to commit mail fraud.  Woodring is set to be arraigned on January 14, 2015, at 10:00 a.m. 

U.S. Marshals, with the assistance of the FBI and Mexican authorities, apprehended Woodring in Guadalajara, Mexico, in December 2014.  On December 22, 2014, Woodring appeared in federal court in Los Angeles, California, where a U.S. Magistrate Judge ordered him detained pending trial as a risk of flight. Woodring waived his right to an identity hearing and removal hearing and agreed to be transported to Miami for further proceedings.

Mr. Ferrer commended the efforts of the U.S. Marshals Service and FBI in apprehending the defendant. The case is being prosecuted by Assistant U.S. Attorney Robert T. Watson.

How much time should Anthony Bosch get?

Apparently MLB thinks he should get a big reduction even though he damaged the sport.  From the Miami Herald:

As Bosch awaits sentencing in February, lawyers for Major League Baseball — whose operation he corrupted from his anti-aging clinic in Coral Gables — are pointedly telling prosecutors what a great help he has been in cleaning up the sport. In a letter, they likened Bosch to a onetime New York Mets batboy who got caught up in an earlier steroid scandal and received lenient treatment after cooperating with authorities. ...
A short sentence of one year — as opposed to three times that long — is possible for Bosch, 51, who pleaded guilty in October and is free on bail despite testing positive for cocaine use during court-ordered monitoring that began after he surrendered in August. Prosecutors have already agreed to recommend a sentence reduction in his plea deal, as long as Bosch, who is in a substance-abuse program, tells the truth.
Despite his tarnished reputation, Bosch began attracting support from MLB officials soon after the steroid scandal broke and the league sued him in 2013 — especially when the onetime anti-aging guru agreed that June to turn on his customers, including New York Yankees superstar Alex Rodriguez.
Soon after, high-powered MLB lawyers, including former U.S. Sen. George Mitchell, sought a meeting with the U.S. attorney in Miami to promote Bosch’s role as the league’s star witness against Rodriguez and the other ballplayers, according to newly disclosed court records. They were hoping to gain assurances from the U.S. attorney’s office that it would consider Bosch’s assistance to Major League Baseball.
The meeting was held in U.S. Attorney Wifredo Ferrer’s office in September 2013. Mitchell, the former Democratic Senate majority leader, and two other league lawyers pitched him on Bosch’s contribution to MLB’s investigation of banned substance use. Members of Ferrer’s senior staff were also present.
In a follow-up letter, baseball’s lawyers thanked Ferrer for hosting the meeting, while stressing that Bosch’s assistance “was critical to MLB’s efforts to successfully sanction” the 14 players with lengthy suspensions, including Rodriguez.
MLB’s lead attorney, Charles Scheeler, with the Washington law firm, DLA Piper, highlighted Bosch’s “full cooperation” — including testifying against Rodriguez at an arbitration hearing in New York. He explained that, in exchange, the league agreed to inform authorities of his assistance.

Nice memorial for Judge and Mrs. Davis

There was a beautiful memorial for Judge Edward B. Davis and his wife Pat Davis at their old house in Miami over the weekend.  Lots of old law clerks, family, and friends attended.  Here's some pictures of the good judge and his lovely wife.  The second one is of Ron Rosengarten, Gary Dumas, Miriam Palahach, and Kevin Murray, his first law clerks and judicial assistant.  The judge kept pictures of his law clerks, which they are holding.

The pendulum is swinging

The Koch brothers are now fighting the prison problem in America.  Here's Charles Koch's piece in Politico: 

As Americans, we like to believe the rule of law in our country is respected and fairly applied, and that only those who commit crimes of fraud or violence are punished and imprisoned. But the reality is often different. It is surprisingly easy for otherwise law-abiding citizens to run afoul of the overwhelming number of federal and state criminal laws. This proliferation is sometimes referred to as “overcriminalization,” which affects us all but most profoundly harms our disadvantaged citizens. 
Overcriminalization has led to the mass incarceration of those ensnared by our criminal justice system, even though such imprisonment does not always enhance public safety. Indeed, more than half of federal inmates are nonviolent drug offenders. Enforcing so many victimless crimes inevitably leads to conflict between our citizens and law enforcement. As we have seen all too often, it can place our police officers in harm’s way, leading to tragic consequences for all involved.
How did we get in this situation? It began with well-intentioned lawmakers who went overboard trying to solve perceived or actual problems. Congress creates, on average, more than 50 new criminal laws each year. Over  time, this has translated into more than 4,500 federal criminal laws spread across 27,000 pages of the United States federal code. (This number does not include the thousands of criminal penalties in federal regulations.) As a result, the United States is the world’s largest jailer—first in the world for total number imprisoned and first among industrialized nations in the rate of incarceration. The United States represents about 5 percent of the world’s population but houses about 25 percent of the world’s prisoners.

...Reversing overcriminalization and mass incarceration will improve societal well-being in many respects, most notably by decreasing poverty. Today, approximately 50 million people (about 14 percent of the population) are at or below the U.S. poverty rate. Fixing our criminal system could reduce the overall poverty rate as much as 30 percent, dramatically improving the quality of life throughout society—especially for the disadvantaged.

Meantime, in local news, Judge Darrin Gayles spoke to the Federal Bar Association today.  A nice turnout and a good talk about practice dos and don'ts in his courtroom.

Good luck to John Pacenti

John is leaving the Daily Business Review and headed back to the Palm Beach Post.  He's been a fantastic federal courts reporter and will be sorely missed. 

He is a graduate of the University of Arizona and has been a reporter since he was a sophomore in high school. He has worked as a sportswriter and a music critic but his forte has always been hard news. After working 10 years for the Associated Press in Phoenix and Miami as a newsman and a sportswriter, he went to work for the Palm Beach Post in 1999 covering civil and criminal justice, as well as sports news.

He started as the federal courts writer for the Daily Business Review in 2007 where he won awards for his coverage on crooked court-appointed trustees, pill mills, and police shootings. 

He should be particularly proud of his Justice Watch column, as well as coverage on prosecutorial misconduct and the Miccosukee litigation.

Same as it ever was?

Such a waste....

Let's see if 2015 is the year that judges really step up and start putting a check on the executive by making that chart curve back downwards.  Some are hoping that the 11th Circuit will start to change things with all of the new judges, but others are more realistic.  From the Daily Report:

... Obama's Eleventh Circuit nominees as a group do not appear to be particularly liberal—and, to the extent they lean left, they may be hamstrung by years of conservative precedent. Jill Pryor once sat on the ACLU of Georgia's legal committee, and Martin has spent considerable time penning dissents to conservative rulings since joining the court. But all of Obama's Eleventh Circuit nominees except Pryor have spent time as prosecutors, and she has spent the bulk of her career as a business litigator. Julie Carnes was appointed to the district court by George H. W. Bush and was selected for the Eleventh Circuit as part of a compromise package of federal court nominees agreed to by the White House and Georgia's senators.
Court watchers should learn more soon.
A group of doctors' request that the entire court examine a controversial, high-profile ruling on guns has been pending since August. A panel in that case rejected the doctors' First Amendment challenge to a Florida law that limits physicians' ability to talk to their patients about firearms.
The Eleventh Circuit is set to hear three cases en banc in February: two criminal cases and a civil case in which the court will revisit aspects of a panel decision that sided with plaintiffs who filed a Fourth Amendment lawsuit over a raid of a barber shop.
Also in February, a three-judge panel is scheduled to hear an Alabama-based, nonprofit Catholic television and radio network's challenge to the federal contraceptive mandate. Unlike the businesses that won their case before the Supreme Court in June, the religious nonprofit can opt out of providing contraceptive coverage, but it has argued that filling out the required form that would signal its third-party health insurance administrator to provide the coverage is itself a violation of the group's religious beliefs. The Eleventh Circuit recently granted oral argument in a similar case brought by the Roman Catholic Archdiocese of Atlanta and the Roman Catholic Diocese of Savannah.
And, although the U.S. Supreme Court may get to the issue first, the Eleventh Circuit has in November and December received an avalanche of briefs from the parties and other interested groups in a case over Florida's ban on marriages by same-sex couples.

Or how about cleaning up the Department of Corrections?  Did you see the Herald article about the DOC forging a document regarding a criminal investigation?  This is scary:

The Florida Department of Corrections has opened a criminal investigation into whether a public record provided by the agency to the Miami Herald was forged.
The document was a form, purportedly filled out and signed by inmate Harold Hempstead, the whistle-blower who in March leaked details to the newspaper about a gruesome death at Dade Correctional Institution, where inmate Darren Rainey collapsed while locked in a brutally hot shower.
Hempstead’s information led the Herald to investigate the Rainey case as well as other suspicious deaths and possible corruption in the Florida Department of Corrections. By the end of 2014, DCI’s top administrators had been ousted, and the department’s secretary, Michael Crews, had retired.
Last year, in the course of the newspaper’s investigation, Hempstead signed a release giving the Herald blanket permission to obtain all his medical records, waiving the strict health information privacy law known as HIPPA.

The rule provides safeguards to protect the privacy of personal health information, and sets limits and conditions on what may be disclosed without patient authorization. Normally, the department heavily redacts its documents, citing the federal law, including details such as where a prisoner is found injured, beaten or dead, where they are transported after they are found and evidence discovered at the scene that the agency believes may reveal an inmate’s medical condition. Examples of redacted items might include descriptions of bloody clothing or, in the case of Rainey, the fact that pieces of skin had fallen off his body.
After Hempstead signed the waiver, a Department of Corrections spokesman informed the newspaper that he had withdrawn his permission to release his records uncensored. When the Herald questioned whether that was true, the spokesman supplied a document — seemingly not in Hempstead’s handwriting — that expressed his change of heart.
Since then, the inmate said, he has told two DOC investigators in two separate interviews that the second document is a fraud.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article5341200.html#storylink=cpy

"On November 10, 1893, the Washington Post identified an emerging technology that was reshaping American society: Pneumatics!"

That's how Chief Justice Roberts starts his year end report.  He goes on to explain that his hope is that by the end of 2016, the Court will be more automated, having electronic filing and public access to court filings.  But the Chief has quite a lead in to get there.  The intro to his report continues:

The miracle of compressed air had led to the creation of new contraptions, including pneumatic tube systems that relied on air compressors to transport cylindrical containers hundreds of feet within buildings. Pneumatic tube systems had found favor in banks and department stores, enabling clerks to transmit documents rapidly from one office to another. Noting this and other applications of pneumatics, the Washington Post lightheartedly proclaimed, “The present era is likely to be known to history as the pneumatic age.” News of this dawning era was slow to reach the Supreme Court. It was not until 1931 that the Marshal of the Court proposed installing a pneumatic tube system in the Courtroom for the benefit of the press. Architect Cass Gilbert incorporated that technology into the design of the Court’s current building, concealing the gray metal tubes behind mahogany desks and beneath the marble floor. When the Court opened the doors of its new Courtroom in 1935, it also revised its procedure for issuing decisions. Under the new “hand- down” protocol, immediately before a Justice announced a decision in the Courtroom, the Clerk of the Court directed messengers to hand copies to a small group of journalists stationed in front of the bench. The journalists then dispatched the copies through the pneumatic tubes to their colleagues in the press booths one floor below, saving the messengers dozens of steps and precious minutes in communicating the news of Court actions. For thirty-six years, virtually all of the Court’s decisions reached the press through those portals. A notable exception was the Court’s 1954 decision in Brown v. Board of Education. Chief Justice Warren made a point of delaying delivery of his short opinion until he had read it in full in open Court. But not even things gray can stay, and the venerable steel hardware ultimately outlived its usefulness. In 1968, John P. MacKenzie, the Supreme Court reporter for the Washington Post, described the Court’s process of transmitting decisions as “perhaps the most primitive . . . in the entire communications industry.” The Court’s pneumatic age ended in 1971, when Chief Justice Burger authorized the removal of the pneumatic tube system at the same time that he introduced the Court’s familiar curved bench. The Washington Post’s celebration of the marvels of pneumatics, followed by the Supreme Court’s belated embrace and overdue abandonment of a pneumatic conveyance system, illustrates two tenets about technology and the courts, one obvious and the other less so. First, the ceaseless growth of knowledge in a free society produces novel and beneficial innovations that are nonetheless bound for obsolescence from the moment they launch. No one should be surprised that the same surge of creativity that pushed courts from quills to hot-metal type will inevitably propel them past laser printers and HTML files as new technologies continue to emerge. Second, and perhaps less evidently, the courts will often choose to be late to the harvest of American ingenuity. Courts are simply different in important respects when it comes to adopting technology, including information technology. While courts routinely consider evidence and issue decisions concerning the latest technological advances, they have proceeded cautiously when it comes to adopting new technologies in certain aspects of their own operations.

If you are working today and need more than the Chief Justice's 16-page report to get you through the day, you can hit up Judge Jordan's 150-plus order on a case he kept as a district judge regarding healthcare and  disabled children.  The Miami Herald summarizes the ruling here:

A federal judge Wednesday declared Florida’s healthcare system for needy and disabled children to be in violation of several federal laws, handing a stunning victory to doctors and children’s advocates who have fought for almost a decade to force the state to pay pediatricians enough money to ensure impoverished children can receive adequate care.In his 153-page ruling, U.S. Circuit Judge Adalberto Jordan said lawmakers had for years set the state’s Medicaid budget at an artificially low level, causing pediatricians and other specialists for children to opt out of the insurance program for the needy. In some areas of the state, parents had to travel long distances to see specialists.The low spending plans, which forced Medicaid providers for needy children to be paid far below what private insurers would spend — and well below what doctors were paid in the Medicare program for a more powerful group, elders — amounted to rationing of care, the order said.“This is a great day for the children in this state,” said Dr. Louis B. St. Petery, a Tallahassee pediatrician who is executive vice president of the Florida Pediatric Society and helped spearhead the suit. “This action was taken because we found that children weren’t being treated properly if they were on Medicaid. Our position as pediatricians,” he added, “is that children do not choose their parents. They don’t have a choice to be born into a rich family or a poor family.”

UPDATE -- Here is the order.  Thanks to a reader for sending it along.

The blog will be back Monday with regular posts.  Hope everyone had a nice holiday.  Happy new year!

Read more here: http://www.miamiherald.com/news/politics-government/state-politics/article5242959.html#storylink=cpy

Shhhh, this is a secret.

This is a great idea for Judge Hoeveler.  But he doesn't know about it, so please don't tell him.  Here's the email that's been going around the legal community:

Dear Colleague:

A number of us have been sharing recollections of our appearances before Judge Hoeveler and our encounters with him over the years. It became clear to us that such stories from the members of our legal community "could fill a book," and so, with the cooperation of Judge Hoeveler's staff, that is precisely what we would like to do. We are preparing a book of such reminiscences which we hope and expect the Judge will enjoy, and we invite you to submit a story for inclusion in this book.
At some time in early 2015, St. Thomas University School of Law will be hosting an event to honor Judge Hoeveler and to announce that its Law Library has been selected as the repository for his trial notebooks, correspondence, and other judicial memorabilia. We are pleased to announce that St. Thomas has agreed to publish this book and to present it to Judge Hoeveler at that ceremony.  (It is intended to be a surprise to the Judge.)  After that, copies will be made available to the public. As you may know, The Florida Bar annually awards the William M. Hoeveler Judicial Professionalism Award to an outstanding jurist in Florida, and copies of this book will be presented to the Hoeveler Award recipients in future years.
We hope to include in this book stories about Judge Hoeveler, both from the time when he was practicing as a lawyer and during his 37 years of service on the bench. We are not looking for tributes or general praise, but rather anecdotes and "war stories" which by their narratives, and not by their adjectives, will say something about the kind of lawyer, jurist and person he is. These stories may be serious or funny, they may relate to personal encounters or things which took place in the courtroom during routine or more significant matters. Whether submissions emphasize his grace, patience, diligence, kindness or sense of humor, we believe that the collection as a whole will say something important about him and we hope that it will be a fitting tribute to his legendary career as a lawyer and trial judge.
Your submission should be double-spaced in Word, in Courier New, 12 point, and preferably no longer than a single page. Please identify yourself by name and affiliation, and give context for your submission.Please send it to HOEVELERSTORIES@gmail.com. Professor Gary Kravitz at St. Thomas and Barbara Junge, Judge Hoeveler's former law clerk, will collect the stories and prepare them for publication. Also, in your email message please identify the specific character trait(s) your story highlights, e.g., grace, patience, diligence, kindness, sense of humor, integrity, faith, hard-working, or others, as this will help us assemble the stories in the collection.

Please send your submission no later than January 20, 2015. Unlike Judge Hoeveler, we will not be liberal in granting extensions, although for a good excuse and a good submission exceptions will be made.

Please forward this solicitation to friends and colleagues who may not have received it directly.
  

In support of Judge Rakoff

Judge John L. Kane has now joined Judge Rakoff in calling for reform in the criminal justice system because too many innocent people are pleading guilty.  From the conclusion to Kane's essay in the Marshall Project:

Sentencing should never be easy. It should never be cryptic and it should never be mechanistic, the product of senselessly following a matrix. A judge’s job is to synthesize and harmonize the competing narratives of the persons involved in the events of the crime with the specific intent of inclusiveness. That job stands in stark contrast to the mentality of the Sentencing Guidelines when they are mandatory. If, indeed, a judge now is again required by Supreme Court precedent never to impose a sentence he or she does not believe in, the chances of an innocent person pleading guilty and sentenced accordingly will be drastically diminished.
In this way the Supreme Court, through its recent rulings inUnited States v. Booker and Gall v. United States, has restored over the past decade a meaningful and responsible role to judges at sentencing. It is no longer acceptable for them to be wooden bureaucrats and they must craft sentences appropriate to the circumstances of the case. The searching inquiry required should enable the judge to vacate a coerced plea or one that is made as the lesser of evils. My question then is this: am I and my fellow jurists doing enough each day to implement this mandate, to replace the mindless practice of assembly-line plea bargaining with a process that is based on integrity and that aspires to justice rather than succumbs to the cynicism of convenience?
It is perhaps helpful to think of sentencing in terms of the classical Greek word for “injustice.” The literal translation is “out of balance.” Doing justice is an act of restoring balance. Human nature discourages venturing into this area without a template that allows one to fill in the blanks — and so to follow the rote responses of bureaucracy. But putting the thumb of convenience on the scales of justice is precisely what causes the innocent to plead guilty. It is the inevitable result of a laconic adherence to a thoughtless and passionless process. And we all can do something more about it.

Happy FESTIVUS for the rest of us

An early Christmas present for Pizzi

Wow, the Supreme Court ruled for Michael Pizzi saying that the Governor should revoke his suspension.  But it's not altogether clear whether that means he is going to be mayor again.  From the Miami Herald:

“This is huge, man. This is huge. I won,” Pizzi said in a telephone interview from his car after learning of the court’s decision. “This is the best Christmas present the Pizzi family and the people of Miami Lakes and everyone who cares about the rule of law could ever get.”

The developments don’t guarantee Pizzi’s return to office and only promise more fireworks at Miami Lakes Town Hall, which has seen more than its share of excitement since Pizzi was removed by Scott in August 2013.

Town Attorney Raul Gastesi maintained Monday before Scott revoked the suspension that Miami Lakes has a mayor — Slaton — and stressed that the court had not ordered returning Pizzi to office.

In another only-in-Miami story, one of the Cuban spies that was sent back to Cuba returned to find his wife very pregnant -- BY HIM!  Apparently he was permitted to send his sperm to Cuba months ago as part of the ongoing negotiations.  I kid you not:

 The mystery of that pregnancy emerged Monday, and it will go down in history books as one of the most bizarre subplots in the annals of U.S. diplomacy.

Turns out that Hernández already knew that his 44-year-old wife, Adriana Pérez, was pregnant, and that he is the father, even though he was never physically close to her during his incarceration.

The pregnancy came through artificial insemination, and it was a side deal that paved the way for the much larger and sweeping agreement Wednesday in which Cuba and the United States announced the renewal of diplomatic relations, broken more than half a century ago. Hernández and two other convicted Cuban spies went free as part of the deal.

Call it diplomacy via paternity.

It came about through the office of Sen. Patrick Leahy, a Vermont Democrat, who has campaigned for years to restore relations with Cuba. In 2010, Leahy began efforts to persuade Cuba to ease up on the harsh conditions imposed on a jailed American in Havana, Alan Gross, a subcontractor for the U.S. Agency for International Development.

In seeking better conditions for Gross, Leahy’s office discovered that Hernández’s wife back in Havana, who reportedly also is an intelligence officer, was hearing the ticking of her biological clock ever louder and was desperate to become pregnant. U.S. officials now say they facilitated the transfer of Hernández’s sperm from the U.S. to the Cuban capital to help improve conditions for Gross, who regained his freedom Wednesday as well and is back in the United States.

“We can confirm the United States facilitated Mrs. Hernández’s request to have a baby with her husband,” said Patrick Rodenbush, a spokesman for the Justice Department. “The request was passed along by Sen. Leahy, who was seeking to improve the conditions for Mr. Gross while he was imprisoned in Cuba.”

Your Monday Morning moment of Zen

11th Circuit rules for Cheney Mason

This is a pretty interesting case:

This case involves a law student’s efforts to form a contract by accepting a “million-dollar challenge” that a lawyer extended on national television while representing a client accused of murder. Since we find that the challenge did not give rise to an enforceable unilateral contract, we hold that the district court properly entered summary judgment for the lawyer and his law firm, Defendants-Appellees James Cheney Mason (Mason) and J. Cheney Mason, P.A., with regard to the breach-of-contract claim brought by the law student, Plaintiff-Appellant Dustin S. Kolodziej.
...
The district court granted summary judgment on two grounds: first, Kolodziej was unaware of the unedited Mason interview at the time he attempted to perform the challenge, and thus he could not accept an offer he did not know existed; second, the challenge in the unedited interview was unambiguously directed to the prosecution only, and thus Kolodziej could not accept an offer not open to him. The district court declined to address the arguments that Mason’s challenge was not a serious offer and that, in any event, Kolodziej did not adequately perform the challenge. This appeal ensued.

The conclusion:

Just as people are free to contract, they are also free from contract, and we find it neither prudent nor permissible to impose contractual liability for offhand remarks or grandstanding. Nor would it be advisable to scrutinize a defense attorney’s hyperbolic commentary for a hidden contractual agenda, particularly when that commentary concerns the substantial protections in place for criminal defendants. Having considered the content of Mason’s statements, the context in which they were made, and the conduct of the parties, we do not find it reasonable to conclude that Mason assented to enter into a contract with anyone for one million dollars. We affirm the district court’s judgment in favor of Mason and J. Cheney Mason, P.A.

Lots of SDFLA news

Acquittals, spies being returned, and all sorts of other fun. One story that was under the radar yesterday was President Obama's stingy list of pardons (only 12!) and commutations. There was one SDFLA case:

-- Bernard Bryan Bulcourf – McIntosh, FL Offense: Counterfeiting Federal Reserve notes (Southern District of Florida) Sentence: 90 days’ confinement in a community treatment center, followed by three years’ probation (Nov. 18, 1988)

Re the spies, our own Richard Klugh was quoted in the N.Y. Times:

Richard C. Klugh, a Miami lawyer who represented the five spies, said that two of his clients, Mr. Hernandez and Mr. Guerrero, were suddenly transferred last week.

“Gerardo was moved from an extremely violent, terrible prison to Butner, N.C., so there was some hope that was something going on,” Mr. Klugh said. “Gerardo is the one for whom this is the most emotional. He and his wife were essentially newlyweds and have been separated for 16 years, and it’s extremely emotional.”

Re the ICE Agent from the Herald:

Juan F. Martinez, a U.S. agent accused of using his badge to extort millions of dollars in Colombia’s underworld of drug trafficking, hugged his lawyers and burst into tears Wednesday when a jury found him not guilty of a dozen criminal charges in Miami federal court.

His wife, Gabriela, sitting a couple of rows behind him, closed her eyes and then cried as the acquittal verdicts were read in court.

Martinez, who was indicted a year ago and suspended as an Immigration and Customs Enforcement agent in 2011, broke down emotionally because of the strain of being on trial, his lawyers said outside the courthouse.

“He stood up to the federal government and made them prove their case,” said defense attorney Silvia Piñera-Vazquez, who rejoiced over Martinez’s acquittals with co-counsel, Jane and Martin Raskin. “They never proved he received any money.”

Jurors, who began deliberations Tuesday morning, were reluctant to talk after their verdicts outside the courthouse, but one suggested there was a “lack of evidence.” Another said, “We applied the law,” without elaboration.

Breaking -- ICE agent found Not Guilty across the board

Congrats to Silvia Piñera-Vazquez and the Raskins for their across the board Not Guilty verdict for Immigration and Customs Enforcement Agent Juan F. Martinez before Judge Altonaga.

"I’m going to treat her like somebody who is what she is — a common criminal.

That was Judge Scola after "North Miami Mayor Lucie Tondreau was found guilty by a federal jury Tuesday of using her 'celebrity' as a Haitian-American community leader to lure 'straw buyers' into an $11 million mortgage fraud scheme during the past real estate boom." (Via the Miami Herald).  More:

The 12-person jury, which deliberated for only two hours, convicted Tondreau of conspiracy and wire-fraud charges after a two-week trial. Tondreau, who was elected as North Miami’s first Haitian-American female mayor in 2013, now faces up to 30 years in prison at her sentencing March 20.
U.S. District Judge Robert Scola refused to grant a request by her defense attorney, Ben Kuehne, to remain free on bond while she awaited sentencing. Scola said she used her “celebrity” and “hoodwinked” buyers into allowing their names to be placed on bogus loan applications in exchange for kickbacks in a “massive” fraud against various banks.
The judge, noting the fraud was committed before Tondreau was elected as mayor, said she was no different than any other convicted defendant and ordered her to surrender to U.S. Marshals in the courtroom while about 50 supporters watched in silence.
“I’m going to treat her like somebody who is what she is — a common criminal,” Scola said.
Kuehne, who represented Tondreau along with attorney Michael Davis, said the jury’s verdict “is as disappointing as it is unexpected.”
Tondreau, who was suspended from office after her arrest in May, stood trial in Miami federal court since early December on charges of conspiring to commit wire fraud with her ex-business partner and fiancé, Karl Oreste, and two other defendants, who are fugitives. She was accused of plotting with Oreste to bamboozle banks into loaning them a total of $11million between 2005 and 2008.
The prosecution decided not to call the trial’s potential star witness, Oreste, 57, who pleaded guilty in July and was expected to detail the 20 crooked real estate loan deals that he and Tondreau were accused of putting together.
Prosecutors Lois Foster-Steers and Gera Peoples did not say why. But they may have had concerns about Oreste’s potential vulnerability on cross-examination. Tondreau’s defense team had planned to portray him as the consummate con man who duped her into playing an unwitting supporting role to fleece the banks.

Calling all Judge Davis clerks

Judge Davis' family is going to be having a gathering to remember Judge and Mrs. Davis on January 3 from 2-6pm.  If you are an old Judge Davis clerk or are a close friend interested in attending, please email Judge Davis' son, Ned at ned.davis@rochester.rr.com

Ned asked me to post this to get the word out as there is no old roster of Judge Davis clerks. 

"I don't know what article of the Constitution that would contravene."

That was Justice Scalia discussing torture in order to find out where the ticking nuclear bomb was. From the AP:

"Listen, I think it's very facile for people to say, `Oh, torture is terrible.' You posit the situation where a person that you know for sure knows the location of a nuclear bomb that has been planted in Los Angeles and will kill millions of people. You think it's an easy question? You think it's clear that you cannot use extreme measures to get that information out of that person?" Scalia said.

Scalia also said that while there are U.S. laws against torture, nothing in the Constitution appears to prohibit harsh treatment of suspected terrorists. "I don't know what article of the Constitution that would contravene," he said. Scalia spent a college semester in Switzerland at the University of Fribourg.

The 30-minute interview touched on a range of topics, including the financing of political campaigns, the death penalty and gay marriage, about which Scalia said he should not comment because it is likely the court soon will have the issue before it. Asked about money and U.S. elections, Scalia scoffed that "women may pay more each year to buy cosmetics" than is spent on local, state and federal elections combined.

His comments about interrogation techniques echoed remarks he also has made to foreign audiences. In 2008, he used the example of the hidden bomb. "It seems to me you have to say, as unlikely as that is, it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn't do that," he said.

A year earlier, Canada's Globe and Mail newspaper reported that Scalia invoked fictional TV counterterrorism agent Jack Bauer using torture to get terrorism suspects to reveal information that could help authorities foil an imminent attack.

"Is any jury going to convict Jack Bauer? I don't think so," he said. "So the question is really whether we believe in these absolutes. And ought we believe in these absolutes."

In January, Scalia seemed less concerned about the safety of residents of Los Angeles when the court heard arguments about whether anonymous tips could justify a traffic stop. Urging the lawyer for two suspects appealing their conviction to stand firm, Scalia suggested that not even information that a carload of terrorists heading to Los Angeles with an atomic bomb would be enough to justify police stopping the car, if the tip came from an anonymous source.

"I want you to say, `Let the car go. Bye-bye, LA,'" Scalia said.

Meantime, friends of the Blog, Billy Corben and Alfred Spellman have come out with their new movie -- The U Part 2.  Gotta love it:

Zacarias Moussaoui asks Judge King to send him to Guantanamo

From Curt Anderson:

An imprisoned man known as the "20th hijacker" in the 9/11 terror attacks asked a South Florida federal judge Wednesday for a transfer to the military prison at Guantanamo Bay, Cuba, where several alleged senior terror plotters are awaiting trial.
The request is part of two rambling, handwritten letters filed in Miami federal court by Zacarias Moussaoui. He is serving a life prison sentence after pleading guilty in 2005 to conspiring with the 19 hijackers in the Sept. 11, 2001, attacks.
Moussaoui signed one letter as the "so-call 20th hijacker" and a "Slave to Allah."
Moussaoui, 46, has been writing letters to courts around the country from his maximum-security prison cell in Florence, Colorado, claiming inside knowledge about al-Qaida and the Sept. 11 plot, and seeking a chance to testify in lawsuits filed by terrorism victims.
The letters filed in Miami repeat some of those claims. Moussaoui wants the transfer to Guantanamo, he says, because he has been assaulted and harassed by other inmates and guards at the Florence "Supermax" prison — including Ramzi Yousef, mastermind of the 1993 World Trade Center bombing.
He even contends there was a prison plot to kill him and "claim that I committed suicide," but that failed.
"So no suicide, Victory by Allah," Moussaoui wrote.
U.S. Bureau of Prisons spokesman Chris Burke said the agency could not comment on the allegations.
Five detainees at Guantanamo are awaiting trial before a military commission in the 9/11 attacks, including alleged mastermind Khalid Sheikh Mohammed, as well as the alleged orchestrator of the 2000 attack on the USS Cole, Abd al Rahim al-Nashiri.
Moussaoui also makes other demands, asking Senior U.S. District Judge James Lawrence King to order prison doctors to perform a long-delayed hernia operation and that he appoint civil rights attorneys Benjamin Crump and Anthony Gray to represent him. Crump and Gray recently represented the family of Michael Brown in the Ferguson police shooting.
"I am currently on a hunger strike in order to have a lawyer since 11/09/14," Moussaoui wrote.

RIP Dollree Mapp

From the NY Times:

On May 23, 1957, three police officers arrived at a house in Cleveland and demanded to enter. They wanted to question a man about a recent bombing and believed he was hiding inside. A woman who lived there, Dollree Mapp, refused to admit them.

It was a small gesture of defiance that led to a landmark United States Supreme Court ruling on the limits of police power.

Ms. Mapp told the officers that she wanted to see a search warrant. They did not produce one. A few hours later, more officers arrived and forced their way into the house. Ms. Mapp called her lawyer and again asked to see a warrant. When one officer held up a piece of paper that he said was a warrant, Ms. Mapp snatched it and stuffed it into her blouse. The officer reached inside her clothing and snatched it back.

The officers handcuffed Ms. Mapp — they called her “belligerent” — and then searched her bedroom, where they paged through a photo album and personal papers. They also searched her young daughter’s room, the kitchen, a dining area and the basement.

They did not find the man they were looking for, but they did find what they said were sexually explicit materials — books and drawings that Ms. Mapp said had belonged to a previous boarder — and they arrested Ms. Mapp.

Four years later, after Ms. Mapp had been sentenced to prison on obscenity charges and after her conviction had been upheld on appeal, the Supreme Court took up the case, ostensibly because of questions it raised about obscenity and the First Amendment.

But when the justices ruled, in June 1961, their decision dwelled, with far more significant consequences, on the role of the Fourth Amendment, which protects against unlawful search and seizure. Prosecutors had never produced the supposed warrant brandished by the Cleveland police or proved that it had existed.

The court ruled, 6 to 3, that Ms. Mapp’s conviction should be thrown out, and that all state courts must suppress evidence gathered through police misconduct in certain kinds of cases.

"He’d have had a fairer shake in a tribunal run by marsupials."

Ouch.  That was Judge Kozinski dissenting in Alvarez v. Tracy:

When we take the judicial oath of office, we swear to
“administer justice without respect to persons, and do equal
right to the poor and to the rich . . . .” 28 U.S.C. § 453. I
understand this to mean that we must not merely be impartial,
but must appear to be impartial to a disinterested observer.
Today we do not live up to this solemn responsibility.
Relying on a ground not raised by either party here or in the
district court, we refuse to consider petitioner’s serious and,
in my opinion, meritorious claims. This is only the latest
indignity inflicted on a criminal defendant who, despite
having a seventh-grade education, was forced to defend
himself at trial; although having the right to a jury, was never
told that he had to ask for one; and who was therefore
convicted and sentenced to eight years in prison in a bench
trial where neither the prosecution nor the judge lifted a
finger to bring the accusing witness into court. He’d have
had a fairer shake in a tribunal run by marsupials.
I am troubled by the disparate way we treat the parties.
Alvarez and the Community both failed to raise legal issues
at the proper time and in the proper manner. Alvarez failed
to raise his jury trial and confrontation claims by way of a
direct appeal within the tribal court; the Community failed to
raise an exhaustion defense in district court. The Community
committed an additional default by also failing to raise this
issue on appeal—something we’ve repeatedly held is an
independently sufficient basis for declining to address it.

I also like this passage:

I have read the opinion many times and disagree with
pretty much everything in it, including the numerals and
punctuation. I explain why in the pages that follow, but first
I pose a more basic question: How can a court committed to
justice, as our court surely is, reach a result in which the
litigant who can afford a lawyer is forgiven its multiple
defaults while the poor, uneducated, un-counseled petitioner
has his feet held to the fire? I attribute no ill will or improper
motive to my excellent colleagues. They are fair, honorable
and dedicated jurists who are doing what they earnestly
believe is right. But we see the world very differently. See,
e.g., United States v. Pineda-Moreno, 617 F.3d 1120, 1123
(9th Cir. 2010) (Kozinski, C.J., dissenting from denial of
rehearing en banc). I can find no justification for showing
such solicitude for the overdog while giving the underdog the
back of the hand.

“What about the language at pages 54 to 55 of the Petitioner’s brief? You know, ‘Dada make a nice bed for mommy at the bottom of the lake’”

That was Chief Judge Roberts last week during the oral argument on the Facebook case....

Snitching ain't easy

The Herald covers this Medicare case this morning.  The dirty little secret in this District is that Medicare cases are mostly just snitch cases.  This one may lead to a brother testifying against family:

Because the FBI has been unable to locate Jorge Perez, the younger brother’s former defense attorney suggested in federal court that he was being indicted solely to lure the accused fugitive ringleader to the United States.

Eduardo Perez’s original attorney, Douglas Williams, called the case “a zealous indictment of a younger brother that may to some extent be part of a calculation ... to suggest to his older brother that ... he’s going to be creating problems for baby brother. ... That’s what this case is all about.”

Now the baby brother, with his plea agreement to cooperate with U.S. Attorney’s Office, could turn on his older brother. Eduardo Perez’s deal holds him responsible for laundering only between $1 million and $2.5 million, a range that would limit his prison time to a maximum six years. He had faced up to 20 years in prison on the single money-laundering conspiracy plea.

But as part of the deal, Eduardo Perez has agreed to testify before a grand jury or at trial, if the prosecutor asks. That means that if his older brother, Jorge Perez, is ever captured and brought to court in Miami, the younger brother could be a key witness against him.

Eduardo Perez’s current defense attorney, Gustavo Lage, said his testimony is a possibility, but noted that the deal does not specifically require his taking the witness stand against the older brother.

“The cooperation agreement is standard boilerplate language, so that may or may not come to pass depending on what happens between now and even after his sentencing [in January],” Lage said Friday. “So far, no request has been made.”

Yesterday was ACLU day at the 11th Circuit

Two big wins for the ACLU yesterday on drug testing and gay marriage, which means 1) no more unlimited drug testing on those applying for temporary assistance and 2) gay marriage to start in Florida on January 5.

1.  Lebron v. DCF, per Judge Marcus:

A Florida statute mandates suspicionless drug testing of all applicants seeking Temporary Assistance for Needy Families (“TANF”) benefits. See Fla. Stat. § 414.0652. Luis Lebron sued the Secretary of the Florida Department of Children and Families (the “State”), claiming that the statute violates the Fourth Amendment’s prohibition against unreasonable searches and seizures, applied against the states through the Fourteenth Amendment. After we affirmed the entry of a preliminary injunction barring the application of the statute against Lebron, the State halted the drug-testing program. See Lebron v. Sec’y, Fla. Dep’t of Children & Families (Lebron I), 710 F.3d 1202 (11th Cir. 2013). Since then, the district court granted final summary judgment to Lebron, declared § 414.0652 unconstitutional, and permanently enjoined its enforcement.
We affirm. On this record, the State has failed to meet its burden of establishing a substantial special need to drug test all TANF applicants without any suspicion. Even viewing the facts in the light most favorable to the nonmoving party, the State has not demonstrated a more prevalent, unique, or different drug problem among TANF applicants than in the general population. The ordinary government interests claimed in this case are nothing like the narrow category of special needs that justify blanket drug testing of railroad workers, certain federal Customs employees involved in drug interdiction or who carry firearms, or students who participate in extracurricular activities because those programs involve “surpassing safety interests,” Skinner v. Railway Labor Execs. Ass’n, 489 U.S. 602, 634 (1989), or “close supervision of school children,” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995) (quoting New Jersey v. T.L.O., 469 U.S. 325, 339 (1985)).
Moreover, as we held in Lebron I, the State cannot circumvent constitutional concerns by requiring that applicants consent to a drug test to receive TANF payments. When a government benefit is conditioned on suspicionless drug testing, the voluntariness of the program is properly viewed as a factor baked into the special needs reasonableness analysis, not as an exception to it.

2.  Brennan v. Armstrong, per curiam (Hull Wilson, Jordan): 

In November 18, 2014, the Appellants in the above appeals, the Secretary of the Florida Department of Health, the Secretary of the Florida Department of Management Services, and the Clerk of Court of Washington County (collectively, Appellants), jointly filed a Motion to Extend Stay of Preliminary Injunctions Pending Appeal and for Expedited Treatment of This Motion (the Motion). Appellees James Domer Brenner, et al., and Appellees Sloan Grimsley, et al., filed separate responses in opposition to the Motion. Appellants’ request for expedited review of the Motion is granted. Having reviewed and fully considered the Motion, the parties’ briefs, and the orders issued  by the District Court in the proceedings below, the Court hereby denies Appellants’ Motion. The stay of preliminary injunctions entered by the District Court expires at the end of the day on January 5, 2015.

What's going on with the 11th Circuit's Fuller investigation?

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers (D-Mich.) sent a letter to Chief Judge Ed Carnes and Judge Tjoflat regarding Judge Mark Fuller in Atlanta, Georgia.  Here's the text of the letter:

Dear Chief Judge Carnes and Judge Tjoflat:
We write regarding the arrest and ongoing prosecution of Middle District of Alabama Judge Mark E. Fuller in Atlanta, Georgia, which is pending before the State Court of Fulton County, Georgia. The allegations against Judge Fuller raise serious, substantial and troubling questions that have been the focus of constant attention and close monitoring by the Committee on the Judiciary since August 2014 when reports first appeared of his arrest for a violation of state criminal law.
In writing, we note the following undisputed facts:
·         Judge Fuller has reportedly entered into a pretrial diversion program that requires him to, inter alia, successfully complete domestic violence counseling;
·         James P. Gerstenlauer, the Circuit Executive of the Eleventh Judicial Circuit, published an announcement on August 12, 2014 that stated “all legal matters” then assigned to Judge Fuller, would be reassigned to other judges;
·         The Acting Chief Judge of the Eleventh Circuit subsequently appointed a Special Committee to investigate Judge Fuller’s actions in connection with the filing of state misdemeanor battery charges in August 2014;
·         The Special Committee’s statutory authority and obligations derive from section 353 of title 28, United States Code, which includes a requirement that the Special Committee, “expeditiously file a comprehensive written report … with the judicial council of the circuit” after completion of “an investigation as extensive as it considers necessary;” and
·         Judge Gerald Tjoflat has reportedly been appointed Acting Chief Judge for purposes of coordinating the Special Committee’s investigation and providing recommendations to the judicial council of the circuit in this matter.
Article I, Section 2 of the Constitution provides the House of Representatives with the “sole Power of Impeachment.” That power is initiated by and overseen by the Committee on the Judiciary. The public has a strong and abiding interest in the proper resolution of credible allegations of misconduct involving a federal judge as expeditiously as possible and in accordance with principles of due process. In furtherance of these interests, the Congress has prescribed statutory procedures that anticipate the initial investigation by the judiciary of credible allegations of serious judicial misconduct. These statutes supplement but do not supplant congressional autonomy and authority.
In recognition of the explicit statutory requirement that a Special Committee, once appointed, “expeditiously file a comprehensive written report” after the completion of its “investigation,” we write to request that you provide us with an update on the status of the ongoing investigation and the anticipated timeline for completion of the required comprehensive written report to the circuit’s judicial council.

Tuesday news and notes

• Although the Supreme Court didn't grant cert on this S.D. Fla. case, it's a pretty big attack of the 11th Circuit's waiver rule. Justices Kennedy and Sotomayor would have granted cert and Justice Kagan, joined by Ginsburg and Breyer, had this to say about the 11th Circuit's rule -- that issues not raised in the initial brief are waived, even if the defendant tries to file a supplemental brief based on a new Supreme Court case decided before the government even response:

And as the above citations show, the circuit courts—once again, bar the Eleventh—have routinely followed that practice in the wake of Descamps.
There is good reason for this near-unanimity. When a new claim is based on an intervening Supreme Court decision—as Joseph’s is on Descamps—the failure to raise the claim in an opening brief reflects not a lack of diligence, but merely a want of clairvoyance. Relying on that misprediction alone to deny relief to an appellant like Joseph while granting it to the defendant in Descamps ill fits with the principle, animating our criminal retroactivity law, of “treating similarly situated defendants the same.” Griffith v. Kentucky, 479 U. S. 314, 323, 328 (1987) (holding that new rules “appl[y] retroactively to all cases . . . pending on direct review”). And indeed, insisting on preservation of claims in this context forces every appellant to raise “claims that are squarely foreclosed by circuitand [even] Supreme Court precedent on the off chance that [a new] decision will make them suddenly viable.” Vanorden, 414 F. 3d, at 1324 (Tjoflat, J., specially concurring). That is an odd result for a procedural rule designed in part to promote judicial economy.
Perhaps for such reasons, even the Eleventh Circuitdoes not apply its default rule consistently when this Court hands down a new decision. Sometimes, as here, the court views its rule as pertaining “uniformly and equally to all cases,” so that a panel becomes simply “un-able to entertain” any claim not raised in an initial brief. United States v. Bordon, 421 F. 3d 1202, 1206, n. 1 (2005). But other times, the court abandons the rule without explanation—including, at least twice, for Descamps claims. See, e.g., United States v. Ramirez-Flores, 743 F. 3d 816, 820 (2014) (addressing a Descamps claim raised “for the first time at oral argument”); United States v. Estrella, 758 F. 3d 1239 (2014) (addressing a Descampsclaim raised first in a Rule 28(j) letter after all briefs were filed); United States v. Levy, 379 F. 3d 1241, 1244–1245 (2004) (per curiam) (acknowledging “a few decisions wherethis Court apparently considered a new issue raised in a supplemental brief ”). Thus, criminal defendants with unpreserved new claims may be treated differently within the Eleventh Circuit, just as they are as between theEleventh Circuit and every other court of appeals.
I nonetheless agree with the Court’s decision today to deny certiorari. We do not often review the circuit courts’ procedural rules. And we usually allow the courts of appeals to clean up intra-circuit divisions on their own, in part because their doing so may eliminate any conflict with other courts of appeals. For those combined reasons, I favor deferring, for now, to the Eleventh Circuit, in the hope that it will reconsider whether its current practice amounts to a “reasoned exercise[ ]” of its authority. Ortega-Rodriguez, 507 U. S., at 244.

•  The University of Miami Law Review will be hosting Justice Stevens and Miami State Attorney Kathy Rundle.  Here's the summary: The University of Miami Law Review Symposium, entitled “Criminalized Justice: Consequences of Punitive Policy,” will take a critical look at how our nation’s laws have been increasingly criminalized over the past 30 years, the negative consequences of this criminalization, and recent positive developments. We will explore this topic through a variety of subjects, including immigration, homelessness, sentencing policy, and race and social class. The Symposium will feature Keynote Speakers Supreme Court Justice John Paul Stevens and Miami-Dade State Attorney Katherine Fernandez Rundle. The Symposium is scheduled for Friday, February 6, 2015 and Saturday, February 7, 2015 on the University of Miami campus in Coral Gables, Florida.