Booker in the Southern District

Julie Kay has a thought provoking (and sobering) story today about sentencings in the Southern District after Booker. The premise of the article is that other than Judge Highsmith (and a couple of others), the Southern District judges are sticking to the guidelines. Although it's hard to argue with the numbers that the article cites, I'm not entirely convinced that our judges are completely sticking to the rigid sentencing guidelines. My experience has been that judges are willing to sentence below (and above) the guidelines in the right cases. The reason, I think, Julie had problems finding lawyers to give stories about particular sentencings outside of the guideline range is that no one wanted to out any judge on this issue because there is (I agree) a fear out there that everyone else is sticking to the guidelines. Hopefully this culture will change. For the best coverage on sentencing, I would go to Prof. Berman's sentencing blog. Here's the intro to the article:


Cover StoryNot so free after all
April 03, 2006
By: Julie Kay
Shelby Highsmith

Then the U.S. Supreme Court gave federal judges more discretion in sentencing defendants, defense attorneys in South Florida rejoiced. But 15 months after the closely divided court issued its landmark rulings in U.S. v. Booker and U.S. v. Fanfan, prosecutors are the ones smiling. Since getting the leeway from the nation’s highest court, federal judges in South Florida have opted to stay mostly within the guidelines. A new study by the U.S. Sentencing Commission found that judges in the Southern District of Florida, which covers the area from Key West to Fort Pierce, have been among the strictest in the nation in sticking to the guidelines. They stayed within the guideline range in 77.5 percent of 1,951 cases sentenced. That’s a significantly higher percentage than in many other districts. Nationally, across 94 judicial districts, federal sentences fell within the guidelines in 62.2 percent of 65,368 cases. The South Florida rate is also higher than in the middle and northern districts of Florida, where judges sentenced within the guidelines in 65.6 percent and 71.7 percent of cases respectively. In the Booker and Fanfan rulings, by 5-4 votes the justices granted judges greater freedom to tailor sentences to the individual circumstances of cases. The majority held that the tough mandatory federal sentencing guidelines in effect since 1987 should only be used as advisory. The court also said the mandatory guidelines violated the Sixth Amendment right to trial by jury because sentencing under the complex guidelines could be based on aggravating factors not found by the jury. South Florida criminal defense lawyers were thrilled that judges no longer would be allowed to lengthen sentences based on factors not found by the jury. And they hoped judges would use their new discretion to grant more downward departures from the guidelines. But since Booker, South Florida federal judges sentenced below the guideline range — known as departing downward — in 21.4 percent of cases. A breakdown shows 10.1 percent were supported by the government for cooperating witnesses. Slightly more than 2 percent were departures based on previously allowed factors such as mental defect, family status, and age. Nine percent of downward departures were for other reasons. That 9 percent reflects discretionary sentences judges could only make since the Booker ruling. The office of Interim U.S. Attorney Alex Acosta declined to comment on the sentencing commission report.

Scalia to reporters

Here is Scalia's gesture to a reporter asking him about whether he could be impartial about church/state issues as he was leaving church. He denied making such a gesture and then Peter Smith, a freelance photographer, released this picture. Smith was promptly fired!

In other High Court news, there is a move to put cameras in the Supreme Court and all federal courts around the country, which will produce similar gestures from Justices. In fact, two such bills are currently pending and are garnering support. I'm for it because it creates accountability for judges (and prosecutors). Thoughts?

Speaking of cooperators...

Marc has an interesting post below about the "Stop Snitching" campaign. Judge Huck sentenced a very high profile cooperating witness this week, Jack Abramoff.

We previously posted on Jack Abramoff's different hats. Here is the one he wore for Wednesday's sentencing hearing (it looks like the same one he wore at his guilty plea). Those familiar with the Southern District will recognize one of the friendlier court security officers standing in the background of the picture.

What I find much more interesting than all the hoopla about the hats is the 60 page memo (and 260 letters) that his lawyers filed in support of his request for a low-end of the guideline sentence, which TalkLeft praised as creative lawyering.

The debate about cooperators...

Professor Berman over at Sentencing Law & Policy has an interesting post about the USA Today article on the anti-snitching campaign.

This, of course, is a topic of great significance in the Southern District of Florida, and we hope this post results in some interesting dialogue.

Here's the post from Prof. Berman:

Wednesday's USA Today has this extended article about the anti-snitching "campaign" that seems to have become a nationwide issue. Here is a taste:

Omerta, the Mafia's blood oath of silence, has been broken by turncoat after turncoat. But the call to stop snitching — on other folks in the 'hood — is getting louder. Is it an attempt by drug dealers and gangsters to intimidate witnesses? Is it a legitimate protest against law enforcers' over-reliance on self-serving criminal informers? Or is it bigger than that? ...

Alexandra Natapoff, a professor at Loyola Law School in Los Angeles, says that, based on federal statistics, one of every four black men from 20 to 29 is behind bars, on probation or on parole, and under pressure to snitch. She estimates one in 12 of all black men in the highest-crime neighborhoods are snitching. She says informers strain the social fabric of poor minority neighborhoods, where as many as half the young men have been arrested....

Hence a backlash — "stop snitching." The slogan appeared in Baltimore about two years ago as the title of an underground DVD featuring threatening, gun-wielding drug dealers... The black community is divided. Rapper Chuck D of Public Enemy has blasted the Stop Snitching campaign on the hip-hop group's website....

Whatever its intent, the Stop Snitching movement has galvanized officials already apoplectic about witness reluctance and witness intimidation.... Stop Snitching T-shirts have been banned from a number of courthouses. Boston Mayor Thomas Menino, whose city recorded the most homicides in a decade last year, threatened to send police into stores to pull them off the shelves. Following the furor over the Stop Snitchin' DVD, Maryland raised witness intimidation from a misdemeanor to a felony, and Baltimore police made a tape of their own, Keep Talking. "People have to snitch," says Peter Moskos, a former Baltimore street cop.

HIGH PROFILE SENTENCINGS

Jack Abramoff and his former partner Adam Kidan were sentenced by the Hon. Paul C. Huck to five years and ten months, the low end of the federal sentencing guidelines. Both men were ordered to pay restitution in the amount of 21 million dollars. Abramoff will likely see that sentenced reduced as he continues to cooperate with the Government regarding alleged corruption by members of Congress.

William Rodriguez-Abadia, the son of Miguel Rodriguez Orejuela and the nephew of Gilberto Rodriguez Orejuela,* was sentenced to 262 months by the Hon. Federico Moreno. At the sentencing hearing, Rodriguez-Abadia informed the Court that he will cooperate against his family. In light of his cooperation, the Government stated that they will likely file a Rule 35 to reduce Rodriguez-Abadia's sentence.

*Disclosure -- David Markus is lead counsel for Gilberto Rodriguez-Orejuela.

Verdict

After six weeks of trial and seven days of deliberations, I'm very excited to post that my client (and four of the other 9 defendants) were found not guilty today. What an unbelievable feeling. Many people wonder why criminal defense lawyers do what they do. There is no better feeling in the world than hearing those two magical words. Nothing better.

I salute the lawyers I was honored to work with in this case. Roy Black, Maria Neyra, Jackie Perzek, Jared Lopez, Alex Zipperrer, John Ossick, Tom Withers, Nate Diamond, George Vila, John Howes, Scott Srebnick, Hy Shapiro, and Ed Tolley. The prosecutors -- Jim Durham, Fred Kramer, Joe Newman, and Jeff Buerstette -- were gentlemen and excellent lawyers. Judge Edenfield ran a tight ship and made what could have been a 4 month trial a six week trial. His staff was also great.

I knew we'd get a verdict today because my wife and new baby hopped on a plane at 12:30 to come visit me in Savannah. We got the verdict at 12:35... No joke.

What an experience. More to follow.

I might as well blog...

... since we are on day 7 of deliberations.

Jay Weaver reports on the government bugging of the FIU couple here. Very interesting article. Here's the intro: "Federal agents planted a bug in the bedroom of a Florida International University a couple of years ago, netting evidence to charge them as unregistered agents for the Cuban government, according to court records. The FBI also wiretapped the home phones of Professor Carlos Alvarez and his counselor wife, Elsa Alvarez, from at least late 2001 until last summer, collecting electronic evidence on practically all of their conversations.
The reams of intercepts included mundane exchanges and even the private musings between husband and wife." Here is the defense motion on the issue and the government's brief as well.

Also, Jack Abramoff will be sentenced today. Brian Tannebaum blogs about it here and here.

Padilla hearing

"MIAMI (AP) -- The federal judge overseeing the terrorism case against Jose Padilla imposed tight restrictions Tuesday on the handling of classified material to prevent disclosure of national security secrets when classified evidence is turned over to the defense."

p.s. We're in day six of deliberations. Miserable.