Still North of the Border

I'm still in trial and plan on catching up this weekend with SDFLA news. In the meantime, I did notice that the en banc 11th Circuit affirmed Judge Lenard in the Cuban Spy case (USA v. Ruben Campa), in which a panel of the 11th Circuit originally reversed on venue grounds. The original panel (Judges Birch and Kravitch) dissented. And the en banc court remanded to the panel to consider the other issues raised on the appeal. I haven't had a chance to read the opinions which run over 120 pages, but when I do this weekend, I'll post some thoughts. If any of you have read it, please post your comments.

A stranger in a strange land...

Sorry for the slow blogging... I'm in trial in Broward State Court (or as Rumpole would say: North of the Border). Here's an article about the trial if you are interested.

Big news in federal court -- drum roll please -- attorneys are now permitted to bring camera phones into the courthouse. I commend Chief Judge Zloch for amending the old rule prohibiting such phones. Pictures, of coures, are still prohibited..

Congrats to U.S. Attorney Alex Acosta

... who was confirmed today by the Senate.

We wish him, a rumored reader of the blog, all the best.

J. Middlebrooks rules against Sharapova in documentary suit

The AP reports: "A federal judge ruled Wednesday against tennis star Maria Sharapova, saying a Florida production company was entitled to market a documentary on the athlete despite her agents' attempts to halt distribution.U.S. District Judge Donald Middlebrooks said Byzantium Productions Inc. was lawful in its production of two films, 'Anna's Army' and `Russian Women's Tennis.' The documentaries did not violate trademark laws, the judge found."

Padilla trial continued...

... until January 22, 2007. "No further continuances will be granted," according to Judge Marcia Cooke. Here's the AP report.

To be noticed or not to be noticed - that is the question

by Marc David Seitles
For anyone who was wondering whether a defendant and his counsel had to be notified if the district court was going to grant a variance above the advisory guidelines range - the answer is no. Today, in US v. Irizzary, No. 05-11718 (11th Cir. Aug. 1, 2006), the Eleventh Circuit held that "the district court was not required to give Defendant advance notice before imposing a sentence above the advisory guidelines range based on the court's determination that sentences within the advisory guidelines range did not adequately address section 3553(a) sentencing factors."

On a sidenote, who created the term "variance"? A district court shall impose a sentence sufficent but not greater than necessary after considering all the factors set forth 18 USC 3553(a) - and that's it. The sentencing court renders its decision after considering the required statuory language. Therefore, should any decision post Booker truly be called a "variance"? Thoughts?

Judge William Thomas

Former Federal Defender and current State Circuit Judge William Thomas issued a big ruling today in a highly publicized murder case. Rumpole has the scoop here. (And to avoid any confusion, that's not me who was quoted in the article. That's another lawyer with the same first and last name -- different middle names.) UPDATE -- here's Judge Thomas' Order. Worth a read.

Sentencing in Federal Land...

I typically try to keep this blog neutral and use it as a way to keep up on the exciting cases in this District. But following up on Marc's post below, I think there should be a lot more discussion about sentencing for federal offenses. The leading blog on sentencing is Sentencing Law and Policy by Douglas Berman, which is doing a great job highlighting many of these issues.

I really believe that if more regular people knew about how sentencing really occurs, they would be horrified. Marc highlights the acquitted conduct issue which is baffling to me (the actual 11th Circuit opinion which he references can be read here, and Judge Barkett's concurrence -- blasting the idea of using acquitted conduct at sentencing -- is definitely worth a read; here is Berman's take on this issue). Under the current state of the law, if you are charged with being a felon in possession of a firearm and murder, and a jury finds you not guilty of the murder and guilty of the felon in possession, then a sentencing judge could still sentence you as though you committed the murder. I'm not kidding.

There are many, many other troubling sentencing issues. Here's a few:

• Why should crack offenders get sentenced on a 100-1 ratio to cocaine users?
• Why are probation officers allowed to interpret the law and then advise judges of their opinions in an ex parte manner?
• Why doesn't the Confrontation Clause apply with the same force at sentencing and trial?
• Why does the preponderance standard apply at sentencing when at trial the standard is beyond a reasonable doubt?
• Why don't the rules of evidence apply at sentencing?

And the Southern District just saw one of the worst sentencing problems (as serious as using acquitted conduct) -- punishing someone for exercising his right to a jury trial. One of our judges just sentenced Eduardo A. Masferrer to 30 years in prison on a white-collar offense. Thirty *years*! Thirty years ago I was three. In thirty years, Masferrer will be long gone. His co-defendants, who pleaded guilty, were sentenced to 28 months a piece. Ellen Podgor touches on the issue of being punished for proceeding to trial here.

The reason for the huge disparity between trial and plea is in part because some judges, after trial, hit the defendant with all of the guideline adjustments and enhancements possible whereas if there is a plea, both the prosecutor, probation officer, and judge are willing to negotiate those adjustments and enhancements away. This is especially evident in white collar cases like Masferrer's. It is even more true in weaker cases. In weaker cases, the prosecution really wants to bargain for lower sentences (so as not to lose at trial), increasing the risks of testing the government's case at a trial.

It's for this reason -- the enormous risks to defendants -- that trial numbers are way way down, especially in white-collar cases. The solution? I'm not sure. I suspect that our big sentencing changes (i.e. Apprendi/Blakely/Booker) aren't finished (and I'm sure that the Supreme Court will revisit the acquitted conduct issue)... But I never count on those sorts of changes. So my personal decision may sound a bit strange, but I think we (both sides) should just try more and more cases.

Anyway, enough for my Sunday rant. Back to the regular business of the blog....