Judge Cooke denies Jose Padilla's motion to dismiss for outrageous government conduct

Judge Cooke issued a blockbuster ruling late tonight, denying Jose Padilla's motion to dismiss for outrageous government conduct -- without conducting a hearing. She says she need not conduct a hearing because she is denying the motion on legal grounds, accepting all allegations made by Padilla regarding torture as true.

UPDATE -- HERE IS THE ORDER (thanks to Discourse.net for posting -- I still haven't figured out how to do that!)

Here is the rationale from the concluding paragraphs of the 12 page order (lots of lengthy footnotes omitted):

First, the fact that the governmental conduct occurred at a time and place removed from the crimes charged makes the remedy Padilla is seeking considerably more attenuated and arbitrary. Short of resorting to a ‘two wrongs make a right’ judicial process, it is difficult for this Court to ascertain how the remedy sought emanates from the infirmity defendant describes. This is considerably distinguishable from a government entrapment scenario, where the crime that the defendant is charged with is the crux of the outrageous government conduct claim.

Second, the outrageous conduct occurred while Padilla was under military control at the Naval Brig in Charleston, South Carolina. At this time, Padilla was being held under Presidential orders in connection with his enemy combatant status and had not been charged with the crimes he is currently facing. This further attenuates Padilla’s outrageous government conduct claim. Even if Padilla’s due process rights were violated while being held at the Naval Brig as an enemy combatant, he fails to explain how this violation should result in the dismissal of distinct crimes that he was not charged with at that point.

Third, Mr. Padilla fails to explain why suppressing governmental use of any evidence obtained from him at the Naval Brig is insufficient for purposes of this trial. In his motion, Padilla acknowledges that the government has already averred not to seek introduction of any of the Naval Brig evidence at trial. Despite summarily rejecting this remedy as “clearly inadequate,” Padilla fails to support this contention or explain why his requested remedy is more appropriate. In fact, in his motion, Padilla relies heavily on United States v. Toscanino, 500 F.2d 267 (2d. Cir. 1974), a case where the Second Circuit sanctions this very approach. Padilla’s Motion concedes that “the court in Toscanino noted that many cases involving due process violations center on unlawful government acquisition of evidence and that, in those instances, the proper remedy would be the exclusion of the tainted evidence.” Def. Mot. at 11.

Mr. Padilla fails to present a cognizable claim of outrageous government conduct entitling him to dismissal of the indictment. The objectionable conduct Padilla claims violated his due process rights occurred during his military detainment in isolation of the crimes charged. Padilla also fails to adequately explain why excluding any unlawfully obtained evidence would not be an appropriate remedy in this case. Applying the exclusionary rule to bar inclusion of any illegally obtained evidence would sufficiently satisfy due process concerns. This may ultimately be a moot point since the government has averred not to utilize any Naval Brig evidence in its case. However, should the government decide to make use of any such evidence, an appropriate hearing will be scheduled to determine to what extent it is admissible.

I'm sure the government is breathing a big sigh of relief this morning. The last thing it wanted were these allegations to be aired in open court. What I'm wondering is -- if torture isn't outrageous government conduct, then what is? Perhaps we should just do away with the doctrine altogether. Padilla now how issue #1 -- and a very interesting one at that -- for his appeal if he loses at trial.

UPDATE -- MSM is catching up. The AP report is here.

"Judge rules high school club can meet pending outcome of lawsuit"

That's the CNN headline about Judge Moore's ruling:

A high school club that promotes tolerance of gays must be allowed to meet while a lawsuit is pending, a federal judge ruled.

U.S. District Judge K. Michael Moore ruled Friday that Okeechobee High School must grant the same privileges to the Gay-Straight Alliance that it grants other clubs, as mandated by the federal Equal Access Act.

The American Civil Liberties Union sued the Okeechobee school board in November on behalf of the high school's Gay-Straight Alliance after school officials said the group was a "sex-based" organization that would violate its abstinence-only education policy.

In his 12-page ruling, Moore wrote that the group and its founder, high school senior Yasmin Gonzalez, have "demonstrated a substantial likelihood of success" on their claim that the school violated federal law when it prohibited the club from meeting.

DBR on the Cuban Five

Picking up on our coverage here, the DBR discussed in detail the Cuban Spy appeal:

The 11th Circuit has set oral arguments for Aug. 20 to hear whether there was sufficient evidence to convict one of the defendants of conspiracy to commit murder; whether there was prosecutorial misconduct; whether prosecutors improperly kept classified material from the defendants; and whether sentencing guidelines were followed. In August 2005, the full 11th Circuit upheld U.S. District Judge Joan Lenard’s ruling — and overturned a three-judge panel ruling — that it was fair to conduct the trial in Miami despite the strong anti-Fidel Castro feelings there. Among the nine issues to be argued in August, the most important one for the defense is the sufficiency of evidence on the charge of conspiracy to commit murder. Lawyers will argue that prosecutors overreached in charging one of the defendants with that count.

***

Whatever the panel does, the case is eventually headed to the U.S. Supreme Court on the venue issue and other issues, say lawyers involved in the case. “The defense team remains optimistic and hopeful for a just outcome,” said Richard Klugh, an assistant federal public defender in Miami who represents Fernando Gonzales, who was convicted of failing to register as a foreign agent as well as immigration violations. “There are substantial issues of fundamental fairness at stake.” “We will never let the venue issue die,” McKenna said. “We will go to a higher court. We feel so strongly about it.” But Guy Lewis, who was U.S. Attorney in Miami at the time of the trial, said he’s confident the prosecution will prevail on appeal. “The defense arguments have no merit,” said Lewis, now an attorney at Lewis Tein in Coral Gables. “This is just Monday morning quarterbacking. The sooner the court hears the arguments, the sooner they’ll reject them and bring finality to the case.”


If you are interested in the briefs, you can read them at the DBR cite.

Picking a jury in federal court

This week, lawyers have begun jury selection in the Kenneth Wilk case. The Sun-Sentinel has coverage here. And jury selection started and was completed yesterday in the baseball smuggling case in Key West. The Miami Herald covers that story here. On the 16th, the Padilla trial gets up and running with voir dire.

Jury selection in Padilla and Wilk will take days, which is not the norm in federal court. Typically, as was the case in the Keys, jury selection in federal court lasts less than a day and sometimes less than a half a day. Lawyers are lucky to get 15 minutes a side to conduct voir dire.

Thoughts?

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?