Fire rescue to the Tower Building...

... to pull out a District Judge from a stuck elevator.

No joke.

When is the new building going to open!?!

D. Kyle Sampson

Although some of you thought that the trivia question below about D. Kyle Sampson was another April Fool's post, it was not. He actually tried a felon in possession case -- United States v. Heron Stepherson -- in the Southern District of Florida in March 2004. Judge Hurley presided and the local AUSA was Lothrop Morristhe. AFPD was Bob Adler.

Thanks to one of my favorite readers for the answer to the trivia question!

As for felon in possession cases, check out Rumpole's riff here regarding gun prosecutions in both state and federal court. He raises an issue that the Federal PDs have been complaining about for a long time. The problem is that the cases which permitted dual prosecutions were decided when the feds did not really pursue the run of the mill state gun or drug case. Now that it's common practice, those cases really should be reconsidered. Or better yet, the Justice Department should follow its "petite policy."

As for American Idol tonight, Sanjaya Malakar won't be voted off. My bet is on Phil Stacey or Haley Scarnato to go.

UPDATE -- here are portions of the "petite policy":

"The purpose of this policy is to vindicate substantial federal interests through appropriate federal prosecutions, to protect persons charged with criminal conduct from the burdens associated with multiple prosecutions and punishments for substantially the same act(s) or transaction(s), to promote efficient utilization of Department resources, and to promote coordination and cooperation between federal and state prosecutors.

"This policy precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant's conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. In addition, there is a procedural prerequisite to be satisfied, that is, the prosecution must be approved by the appropriate Assistant Attorney General. ...

"The first substantive prerequisite is that the matter must involve a substantial federal interest. This determination will be made on a case-by-case basis, applying the considerations applicable to all federal prosecutions. See Principles of Federal Prosecution, USAM 9-27.230. Matters that come within the national investigative or prosecutorial priorities established by the Department are more likely than others to satisfy this requirement.

"The second substantive prerequisite is that the prior prosecution must have left that substantial federal interest demonstrably unvindicated. In general, the Department will presume that a prior prosecution, regardless of result, has vindicated the relevant federal interest. That presumption, however, may be overcome when there are factors suggesting an unvindicated federal interest."

United States Attorneys' Manual 9-2.031

Cuban Five oral argument

Now that the venue issue has been resolved, the Eleventh Circuit has set the Cuban Five case (Cuban Spy case) for special oral argument on August 20, 2007 on the remaining 15 issues.

Southern District of Florida Trivia

A commentor asks:

Yesterday during his testimony we learned that the only criminal case ever tried by [Alberto Gonzalez's] Chief Asst. AG and Rove look-alike, D. Kyle Sampson was in 2004 in the SDFL--apparently it was a felon in possession case w/ a PWID "narcotics." Sampson testfied in response to questioning by Sen. Sheldon Whitehouse (D-RI) that he was "specially assigned" to USAO SDFL to try that case. WHY? What was so special about a case like that that the Dep. Chief Asst. AG was sent down to SDFL try it? Inquiring minds want to know.

Anyone know anything about this case?

Death Penalty trial to start this week

Vanessa Blum has a lengthy article about the Kenneth Wilk death penalty trial (SDFLA previous coverage here), which is to start this week in front of Judge Cohn. Apparently the defense is going to argue that Wilk was in the grips of AIDS-related dementia and believed he was acting in self-defense. They will not be able to argue that the victim, Todd Fatta, was using steroids. Here's the intro to the article:

In the beginning, it seemed like a routine operation. Roughly a dozen
Broward Sheriff's Office deputies arrived in the Fort Lauderdale neighborhood of
Coral Highlands on Aug. 19, 2004, to carry out an arrest warrant."Police!" they
yelled before breaking through the front door. "Warrant!"It was then, prosecutors will tell jurors, Kenneth Wilk crouched behind his kitchen counter with a Winchester 94 lever-action hunting rifle. When the officers entered, Wilk opened fire, killing Deputy Todd Fatta, 33, with a single shot to the chest.If convicted of first-degree murder, Wilk, 45, faces the death penalty. As his trial begins this week before U.S. District Judge James Cohn in Fort Lauderdale federal court, defense lawyers have no plans to dispute Wilk fired the shots that killed Fatta and wounded a second officer.Instead, the central question for jurors deciding Wilk's fate will be whether the gunfire was premeditated.Wilk's attorneys, Bill Matthewman and Rafael Rodriguez, have said they plan to argue it was not. They contend Wilk was in the grips of AIDS-related dementia and believed he was acting in self-defense.

I don't believe anyone from the SDFLA has ever been sentenced to death, but I'm not sure about this. Anyone know for sure?

VB was a busy bee the last couple days, with stories on the McCay brothers' sentencing (Michael McCay got 6 1/2 years and brother Robert got 15 months) and the sentencing of a doctor who worked at Mutual Benefits Corp (Clark Mitchell received 8 years).

And thanks to Rumpole for covering the story below. More at his blog.

FEDERAL JUDGES RESPOND TO STATE PLANS TO SELL JUDICIAL CORPORATE SPONSORSHIP

From tomorrows Daily Business Review, comes an excerpt of this article:

"The Chief Judge of the 11th Judicial Circuit has announced plans to sell corporate sponsorship for the court, courtrooms, and small corporate logos which can be placed on a Judge's Robe. The plan is being pushed forward to meet large anticipated deficits in local court funding. Included in the plans are the renaming of the criminal courthouse to the Fed-EX Gerstein Justice Building, renaming the Civil Courthouse the Kinkos Civil Courthouse, and having VISA become the official credit card of the 11th Judicial Circuit.

"While no Federal Judge would speak for the record, most were shocked at the blatant selling of corporate sponsorship for the State Judiciary. Said one Judge: 'I understand the rules are a bit looser over there, but this sounds like it could get them into trouble. What is someone is being sued by Kinkos over failure to pay a bill and they have to defend the suit in the Kinkos Courthouse? I'm not sure they thought this all the way through.'

"Another Judge was more dismissive of the issue: 'Typical State Court nearsightedness. This issue will end up over here and then they will get embarassed."



Rumpole thanks Mr. Markus for allowing us access to his blog for this story which bears watching closely.

Sparring with Scalia

One of my former (and one of my favorite) law professors, Arthur Miller, took a shot at Justice Scalia during an oral argument today and Scalia took a shot back. Here's the Washington Post's coverage of the fun exchanges:

A Bit of Brooklyn in the Supreme Court
Thursday, March 29, 2007; A17
Deference, with maybe just a touch of obsequiousness, is the rule for lawyers taking their cases before the nine justices of the Supreme Court.
So when Harvard law professor Arthur R. Miller yesterday mixed it up a little with the court's ever-ready pugilist Antonin Scalia, some of those in the packed courtroom later talked about it as one of those did-you-hear-that moments at the court.
Miller, whose white hair and dark, bushy eyebrows are familiar from his legal commentaries on ABC and his debate-style shows on PBS, is representing investors who want to sue Tellabs, alleging securities fraud. [Story, Page D3.]
Congress has set a high bar for such lawsuits: Plaintiffs must show not just credible allegations but a "strong inference" that the company acted with wrongful intent.
The justices wondered whether you could assign a percentage to such a "strong inference," a 33 percent chance plaintiffs could convince a jury the allegations were true, a more than 50 percent chance?
"I think it's 66 2/3 ," Scalia said, pulling another number out of the air.
"Is that because you never met a plaintiff you really liked?" Miller asked the conservative Scalia.
The room erupted in laughter. Scalia smiled. A little.
Miller backpedaled. A little. "I took a liberty there with the justice," Miller said.
But it was not over.
Scalia's chance came later, when Chief Justice John G. Roberts Jr. prepared to pounce on one of Miller's arguments. Miller stopped him first.
"Don't take me literally on that," Miller said. "For heaven's sakes, I'm from Brooklyn. I'm very colloquial. I'm very sorry about that.''
"Let me write that down," Scalia said with a satisfied smile. "We should not take you literally. All right."
Roberts was set to rule. "Okay, you two are even now."
-- Robert Barnes

Cert granted

The United States Supreme Court has taken a case from the Southern District of Florida, U.S. v. Williams, a case about the constitutionality of a child pornography law:

The [11th Circuit] court panel found the pandering provision of the PROTECT Act of 2003 was overbroad and impermissibly vague, saying that it criminalizes the speech of someone who touts material as child pornography when in fact it is clean or nonexistent.In the appeals court's view, the pandering provision could apply to an e-mail entitled "Good pics of kids in bed" sent by a grandparent, with innocent pictures attached of grandchildren in pajamas. One sender might be a proud grandparent while another might be a convicted child molester who hopes to trade for more graphic photos with like-minded recipients, the appeals court said. In asking the court to take the case, the Bush administration said the appeals court read the law's language more broadly than is warranted.

Judge Middlebrooks initially found the law was constitutional. Judges Barkett, Wilson and Reavley were the 11th Circuit panel that reversed (in an opinion by Judge Reavley,who was visiting from the Fifth Circuit), finding the Protect Act vague and overbroad. Rick Diaz and Lou Guerra represented Mr. Williams, who is now headed to Washington...