Fee disputes....

Julie Kay writes today (pass thru link required) in an interesting and lengthy article about the government trying to forfeit attorneys' fees in the Bankest trial. Here's the intro:

The defense attorneys for the brothers convicted of masterminding the largest bank fraud in Miami history could have to pay back the $757,000 they were paid in legal fees. Federal prosecutors are claiming that money used to pay Ed Shohat and Bruce Lehr was tainted, coming from the sale of a Manhattan condominium that was part of the fraud. In court papers, the attorneys deny that the funds used to pay them were tainted. Shohat worked for Eduardo Orlansky for three years, while Lehr represented Hector Orlansky for 18 months. Both attorneys worked through a 4½-month trial and four weeks of jury deliberations. They also paid for several medical experts to testify about the health of their clients. The Orlanskys, who face 30 years in prison, were convicted in August of massive fraud in their operation of E.S. Bankest, a Miami factoring company. The Orlanskys created fictitious checks, invoices and companies to inflate the value of account receivables by hundreds of millions of dollars to support the fraud targeting Portugal’s Espirito Santo Bank. The nine-year scam allowed the Orlanskys to illegally obtain $167 million from the bank and its clients. E.S. Bankest was a joint venture of the bank and Bankest Capital, which was formed by the Orlanskys. Experts say it’s highly unusual for the government to seek payback of attorney fees, particularly in nondrug cases, and this may be a first for the U.S. Attorney’s Office in Miami. “This is very rare,” said Miami attorney Scott Srebnick, who is also fighting forfeiture claims on behalf of his client, former Hamilton Bank Chairman Eduardo A. Masferrer.

News and notes

1. Apparently I (and my source) was wrong that there was a conviction on all counts in the cigar case. It was guilty on 3 counts according to the comments. Here's the Herald coverage of the verdicts.

2. Dep't of Interior employees won't be reading this blog or any other blog for that matter.

3. Jack Maxwell, a former electrical contractor will start trial Monday, accused of conspiring with the late Miami politician Art Teele to land a $20 million airport deal and then paying him tens of thousands of dollars as a consultant. Here's the Herald article about the trial. We did a lot of blogging on this subject, including debating Prof. Froomkin.

Cuban cigar counterfeitter guilty...

... on all counts. Background story here.

Federal Defenders secure release of "enemy combatant" shepherd

Another SDFLA exclusive!

We scooped the press on the Padilla motions last week here and here. Now we give you this story about Federal Defenders Paul Rashkind and Tim Cone and their victory in the case of Taj Mohammad.

Mr. Mohammad is a shepherd -- a member of the Gudjer Tribe, nomads who herd goats in the border mountains between Afghanistan and Pakistan. Taj was arrested at his home in Afghanistan as a result of an argument and fight he had with his cousin, Ismael. Taj is 27 years-old, has a wife and a young son, who was an infant when he last saw him. Gudjers are a poor and peaceful tribe, who have remained nomads while their country dealt with hostilities, first from the Russians, then from the Taliban. Due to the proximity of the mountain range, Gudjers have moved back and forth into Pakistan for their own safety. Indeed, even though Taj Mohammad is a proud Afghan Gudjer, he was actually born a refugee in Pakistan during the time of the Russian occupation. Herding goats in the mountains is possible only while it is warm enough to do so. In winter, the family travels down the mountain to the valley, the Asadabad area, where they live during the colder seasons. Taj was "on the mountain" during hostilities between the US and Taliban forces. When he returned to the family home in the valley, after the coalition forces declared victory, he learned that his cousin Ismael had laid pipe to supply water to all the homes of his village, except the home lived in by Taj and his family. Taj and Ismael fought about this and Taj hit Ismael with a stick. In anger, Ismael falsely accused Taj of being a Taliban, to have him sent away. What Taj had not known when he fought with his cousin was that Ismael was supplying the water pipes at the U.S. military’s instructions. Four days later, December 9, 2002, Taj was visited at his home by the American military, who questioned him about the fight. They detained him, took him to Bagram, and eventually to Guantanamo Bay, Cuba. He was detained at GTMO as an "enemy combatant" for nearly four years.

The Defenders began representing Taj about a year ago and, after security clearances were approved, Paul Rashkind began to uncover evidence and develop a strategy to obtain his release. Just 14 days ago, Rashkind and Cone filed a set of classified challenges to Taj's continued detention, explaining why he should be released now. Last night, on the eve of the military hearing, Taj was on a plane back to Afghanistan. He was released to his family earlier today. Rashkind commented, "America was not a safer place while he was detained, but we can certainly feel better about ourselves now that he is home."

A bunch of smoke?

Jay Weaver in today's Herald reports on the fake Cuban cigar trials, one of which starts today. Here's the start of the article:

The nation's biggest cigar maker has been on a mission to put suspected Cuban cigar counterfeiters from Little Havana to Hialeah out of business.
Fort Lauderdale-based Altadis U.S.A. paid tens of thousands of dollars to fund part of an undercover Miami-Dade Police probe of five suspects charged with trafficking in counterfeit cigars, court records show.
The first of three federal trials, set for today, raises controversial issues about the integrity of the investigation, the fake Cuban cigar market, and the U.S. trade embargo against the Castro government.
The police department, which normally funds its own investigations, said Monday it could not comment on Altadis' role in the probe because its legal department had not reviewed the matter and also because it involves a federal case. The U.S. attorney's office declined to comment. Altadis U.S.A. executives did not return two calls Monday.
Coral Gables lawyer Frank Quintero, who represents a defendant facing trial later this month, accused Altadis of trying to ''buy'' a criminal investigation from police for one purpose: to crush the alleged counterfeiters so the company can monopolize the U.S. market for Cuban cigars after Fidel Castro dies.
''It calls into question the impartiality of an investigation when witnesses including an informant are being paid by a private party that claims to be an alleged victim in the case,'' Quintero said.

Here is the indictment. Defense attorney is Frank Quintero (pictured, showing both the authentic and fake cigars). AUSA is Sean Cronin.

Update on Padilla motion to dismiss for outrageous government conduct

I've read through Jose Padilla's motion (written by the Federal Defender's Office -- Michael Caruso, Orlando do Campo, and Tony Natale) to dismiss for outrageous government conduct, which I originally covered last week here. Vanessa Blum covered the story this weekend here. Strangely, no one else has written about it. UPDATE -- It's now being covered by many of the big legal blogs, like Discourse, TalkLeft, and How Appealing.

Here is the motion.

The argument section starts out like this:

"Whoever fights monsters should see to it that in the process he does not become a monster. And when you look long into an abyss, the abyss also looks into you."
Friedrich Nietzsche, Beyond Good and Evil 89 (Walter Kaufmann trans., Vintage Books 1966) (1886).

What was done to Padilla is described this way:

In an effort to gain Mr. Padilla’s "dependency and trust," he was tortured for nearly the entire three years and eight months of his unlawful detention. The torture took myriad forms, each designed to cause pain, anguish, depression and, ultimately, the loss of will to live. The base ingredient in Mr. Padilla’s torture was stark isolation for a substantial portion of his captivity. For nearly two years – from June 9, 2002 until March 2, 2004, when the Department of Defense permitted Mr. Padilla to have contact with his lawyers – Mr. Padilla was in complete isolation. Even after he was permitted contact with counsel, his conditions of confinement remained essentially the same. He was kept in a unit comprising sixteen individual cells, eight on the upper level and eight on the lower level, where Mr. Padilla’s cell was located. No other cells in the unit were occupied. His cell was electronically monitored twenty-four hours a day, eliminating the need for a guard to patrol his unit. His only contact with another person was when a guard would deliver and retrieve trays of food and when the government desired to interrogate him.

His isolation, furthermore, was aggravated by the efforts of his captors to maintain complete sensory deprivation. His tiny cell – nine feet by seven feet – had no view to the outside world. The door to his cell had a window, however, it was covered by a magnetic sticker, depriving Mr. Padilla of even a view into the hallway and adjacent common areas of his unit. He was not given a clock or a watch and for most of the time of his captivity, he was unaware whether it was day or night, or what time of year or day it was.

In addition to his extreme isolation, Mr. Padilla was also viciously deprived of sleep. This sleep deprivation was achieved in a variety of ways. For a substantial period of his captivity, Mr. Padilla’s cell contained only a steel bunk with no mattress. The pain and discomfort of sleeping on a cold, steel bunk made it impossible for him to sleep. Mr. Padilla was not given a mattress until the tail end of his captivity. Mr. Padilla’s captors did not solely rely on the inhumane conditions of his living arrangements to deprive him of regular sleep. A number of ruses were employed to keep Mr. Padilla from getting necessary sleep and rest. One of the tactics his captors employed was the creation of loud noises near and around his cell to interrupt any rest Mr. Padilla could manage on his steel bunk. As Mr. Padilla was attempting to sleep, the cell doors adjacent to his cell would be electronically opened, resulting in a loud clank, only to be immediately slammed shut. Other times, his captors would bang the walls and cell bars creating loud startling noises. These disruptions would occur throughout the night and cease only in the morning, when Mr. Padilla’s interrogations would begin.

Efforts to manipulate Mr. Padilla and break his will also took the form of the denial of the few benefits he possessed in his cell. For a long time Mr. Padilla had no reading materials, access to any media, radio or television, and the only thing he possessed in his room was a mirror. The mirror was abruptly taken away, leaving Mr. Padilla with even less sensory stimulus. Also, at different points in his confinement Mr. Padilla would be given some comforts, like a pillow or a sheet, only to have them taken away arbitrarily. He was never given any regular recreation time. Often, when he was brought outside for some exercise, it was done at night, depriving Mr. Padilla of sunlight for many months at a time. The disorientation Mr. Padilla experienced due to not seeing the sun and having no view on the outside world was exacerbated by his captors’ practice of turning on extremely bright lights in his cell or imposing complete darkness for durations of twenty-four hours, or more.

Mr. Padilla’s dehumanization at the hands of his captors also took more sinister forms. Mr. Padilla was often put in stress positions for hours at a time. He would be shackled and manacled, with a belly chain, for hours in his cell. Noxious fumes would be introduced to his room causing his eyes and nose to run. The temperature of his cell would be manipulated, making his cell extremely cold for long stretches of time. Mr. Padilla was denied even the smallest, and most personal shreds of human dignity by being deprived of showering for weeks at a time, yet having to endure forced grooming at the whim of his captors.

A substantial quantum of torture endured by Mr. Padilla came at the hands of his interrogators. In an effort to disorient Mr. Padilla, his captors would deceive him about his location and who his interrogators actually were. Mr. Padilla was threatened with being forcibly removed from the United States to another country, including U.S. Naval Base at Guantanamo Bay, Cuba, where he was threatened his fate would be even worse than in the Naval Brig. He was threatened with being cut with a knife and having alcohol poured on the wounds. He was also threatened with imminent execution. He was hooded and forced to stand in stress positions for long durations of time. He was forced to endure exceedingly long interrogation sessions, without adequate sleep, wherein he would be confronted with false information, scenarios, and documents to further disorient him. Often he had to endure multiple interrogators who would scream, shake, and otherwise assault Mr. Padilla. Additionally, Mr. Padilla was given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations.

Throughout most of the time Mr. Padilla was held captive in the Naval Brig he had no contact with the outside world. In March 2004, one year and eight months after arriving in the Naval Brig, Mr. Padilla was permitted his first contact with his attorneys. Even thereafter, although Mr. Padilla had access to counsel, and thereby some contact with the outside world, those visits were extremely limited and restricted. Significantly though, it was not until Mr. Padilla was permitted to visit with counsel that one of his attorneys, Andrew Patel, was able to provide Mr. Padilla with a copy of the Qur’an. Up until that time, for a period of almost two years, Mr. Padilla was the right to exercise his religious beliefs.

The deprivations, physical abuse, and other forms of inhumane treatment visited upon Mr. Padilla caused serious medical problems that were not adequately addressed. Apart from the psychological damage done to Mr. Padilla, there were numerous health problems brought on by the conditions of his captivity. Mr. Padilla frequently experienced cardiothoracic difficulties while sleeping, or attempting to fall asleep, including a heavy pressure on his chest and an inability to breath or move his body.

In one incident Mr. Padilla felt a burning sensation pulsing through his chest. He requested medical care but was given no relief. Toward the end of his captivity, Mr. Padilla experienced swelling and pressure in his chest and arms. He was administered an electrocardiogram, and given medication. However, Mr. Padilla ceased taking the medicine when it caused him respiratory congestion. Although Mr. Padilla was given medication in this instance, he was often denied medication for pain relief. The strain brought on by being placed in stress positions caused Mr. Padilla great discomfort and agony. Many times he requested some form of pain relief but was denied by the guards.

The cause of some of the medical problems experienced by Mr. Padilla is obvious. Being cramped in a tiny cell with little or no opportunity for recreation and enduring stress positions and shackling for hours caused great pain and discomfort. It is unclear, though, whether Mr. Padilla’s cardiothoracic problems were a symptom of the stress he endured in captivity, or a side effect from one of the drugs involuntarily induced into Mr. Padilla’s system in the Naval Brig. In either event, the strategically applied measures suffered by Mr. Padilla at the hands of the government caused him both physical and psychological pain and agony.

It is worth noting that throughout his captivity, none of the restrictive and inhumane conditions visited upon Mr. Padilla were brought on by his behavior or by any actions on his part. There were no incidents of Mr. Padilla violating any regulation of the Naval Brig or taking any aggressive action towards any of his captors. Mr. Padilla has always been peaceful and compliant with his captors. He was, and remains to the time of this filing, docile and resigned – a model detainee.

Mr. Padilla also wants to make clear that the deprivation described above did abate somewhat once counsel began negotiating with the officials of the Naval Brig for the improvements of his conditions. Toward the end of Mr. Padilla’s captivity in the Naval Brig he was provided reading materials and some other more humane treatment. However, despite some improvement in Mr. Padilla’s living conditions, the interrogations and torture continued even after the visits with counsel commenced.

In sum, many of the conditions Mr. Padilla experienced were inhumane and caused him great physical and psychological pain and anguish. Other deprivations experienced by Mr. Padilla, taken in isolation, are merely cruel and some, merely petty. However, it is important to recognize that all of the deprivations and assaults recounted above were employed in concert in a calculated manner to cause him maximum anguish. It is also extremely important to note that the torturous acts visited upon Mr. Padilla were done over the course almost the entire three years and seven months of his captivity in the Naval Brig. For most of one thousand three hundred and seven days, Mr. Padilla was tortured by the United States government without cause or justification. Mr. Padilla’s treatment at the hands of the United States government is shocking to even the most hardened conscience, and such outrageous conduct on the part of the government divests it of jurisdiction, under the Due Process clause of the Fifth Amendment, to prosecute Mr. Padilla in the instant matter.

The motion ends this way:

In closing, the following words of dissent have often been repeated in the recognition that we, as a Nation, ignore the government’s violation of law at our peril:

Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means – to declare that the government may commit crimes in order to secure the conviction of a private criminal – would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.

Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting). In defending this Nation against the threat of terrorism it is neither necessary nor proper for our government to abandon the bedrock principles upon which this Nation was founded. All that is sacred in our national life is secured by the promise that this is a Nation of laws and not of men.
It cannot be disputed that Mr. Padilla was tortured for a period of over three years. The pain and anguish visited upon Mr. Padilla will continue to haunt him for the remainder of his life. The government’s conduct vis-B-vis Mr. Padilla is a stain on this nation’s character, and through its illegal conduct, the government has forfeited its right to prosecute Mr. Padilla in the instant matter. Mr. Padilla respectfully requests that this Court dismiss the indictment against him for the government’s outrageous conduct and requests a hearing on this motion.

U.S. Attorney's office to hire journalist

According to Julie Kay in today's DBR, Alex Acosta is hiring "a journalist, rather than a lawyer to handle the media." Get this -- the pay is between $77,576 and $100,845. I wonder how much longer Julie is going to be writing her column for the DBR!

What about a U.S. Attorney's office blogger?

"Foley attorney David Roth is go-to guy for Palm Beach elite"

So says the Herald's Larry Lebowitz in this article about Mark Foley's lawyer.