18 USC 48 found unconstitutional by en banc Third Circuit

Via How Appealing:By a vote of 10 to 3, the en banc U.S. Court of Appeals for the Third Circuit holds unconstitutional a federal law criminalizing the sale of creation, sale, or possession of depictions of animal cruelty: You can access today's en banc ruling at this link.

According to the majority's opinion, the "case is the first prosecution in the nation under [the federal statute in question] to proceed to trial, and this appeal represents the first substantive constitutional evaluation of the statute by a federal appellate court."

The majority opinion, written by Circuit Judge D. Brooks Smith, begins:

The Supreme Court has not recognized a new category of speech that is unprotected by the First Amendment in over twenty-five years. Nonetheless, in this case the Government invites this Court to take just such a step in order to uphold the constitutionality of 18 U.S.C. sec. 48 and to affirm Robert Stevens' conviction. For the reasons that follow, we decline the Government's invitation. Moreover, because we agree with Stevens that 18 U.S.C. sec. 48 is an unconstitutional infringement on free speech rights guaranteed by the First Amendment, we will vacate his conviction.

Back in October 2006, The Pittsburgh Post-Gazette had an article headlined "Dog fight videos called free speech" reporting on the oral argument of the appeal before the original three-judge panel. And in January 2005, The Associated Press reported on the trial of the case in an article headlined "Dogfight video seller on trial for cruelty; Virginia man is first charged under 1999 federal statute."

In related coverage, a little over one year ago, Adam Liptak of The New York Times had an article headlined "First Amendment Claim in Cockfight Suit." Liptak's new beat for The NYTimes is the U.S. Supreme Court, which is where the case that the en banc Third Circuit decided today is likely heading next.

That lawsuit about cockfighting referenced at the end was the one I (and Rick Bascuas) filed, discussed here.  Unfortunately, we had to dismiss the case as the client's business went under (after we had filed this motion for summary judgment).  Looks like we would've won.  We had a much stronger claim than the dog fighting case in the Third.  DAMN!  It's not often you get a chance to get a statute declared unconstitutional.  Congrats to the PD's office who represented the defendant in the Third Circuit. 

Morning buzz

Judge Huck has scheduled a hearing July 28 in which Kirby Archer will plead guilty to first degree murder in the Joe Cool case. He will agree to life in prison..

Prosecutors say the 36-year-old Archer and 20-year-old Guillermo Zarabozo hired the charter boat for $4,000 to go to the Bahamas, then tried to divert it to Cuba.

Zarabozo has passed a polygraph and blamed Archer in court papers for killing the captain, his wife and two crew members when they resisted. Should be a fascinating trial...

Here's the news coverage from the Sun-Sentinel, the Herald, and the AP.

"Defense Team Argues DOJ Ideology Spurred Money Laundering Indictment of [Ben Kuehne]"

Read the article here:

Quoting Bob Dylan and a legal treatise, attorneys for indicted Miami attorney Ben Kuehne and two co-defendants maintain the "unprecedented" money laundering indictment is ideologically motivated by the Justice Department.
At issue is a 1988 carve-out from the federal anti-money laundering statutes that exempts attorneys from criminal liability in accepting defense fees.
"The Department of Justice has been hostile to this exemption for many years and appears not to accept the policies that underlie it," Kuehne's attorneys said in a 13-page dismissal motion. "However, it is Congress that makes the laws."
Kuehne is charged with laundering drug proceeds while vetting $5.2 million in fees collected by celebrity attorney Roy Black to defend Colombian drug kingpin Fabio Ochoa Vasquez. Kuehne, Colombian attorney Oscar Saldarriaga and accountant Gloria Florez Velez were hired to make sure the money was "free from taint" to pay Black's team.

***

Miami attorney Richard Strafer, representing Saldarriaga, contends the government doesn't have a case.
He makes the point in his filing with flair, quoting folk rock legend Dylan's song "Like a Rolling Stone" in his motion to dismiss a wire fraud conspiracy count, writing, "When you [ain't] got nothing, you got nothing to lose."
The government alleges the defendants committed wire fraud by converting pesos to dollars to bring them to the United States and subvert the Colombian government's right to seize the assets.
Motions for Kuehne and Saldarriaga argue the Colombians never made an effort to seize the assets and to this day have not filed a forfeiture action.
Strafer, paraphrasing a decision from the 11th U.S. Circuit Court of Appeals, said in an interview, "The government has taken off in an aircraft without wings, engines or wheels" in the wire fraud count. He is asking for additional time to file more motions hinging on complicated issues of foreign law.

The state court budget crisis

I'm continually struck by the difference in the state and federal systems. Check out this article by the DBR about the state court budget crisis and how people are being fired left and right:

Florida trial court officials plan to handle future budget cuts with layoffs rather than furloughing employees for weeks without pay. The state Trial Court Budget Commission, which is made up of members of all 20 judicial circuits, met last week to formulate a plan to deal with a projected budget shortfall that already has state agencies scrimping. A hiring freeze and travel ban imposed earlier this year in a budget-saving move have been extended indefinitely, said State Courts Administrator Lisa Goodner. The commission splintered when considering whether to absorb fresh cuts with layoff or furloughs. “A lot of people saw furloughs as a way to make a statement and layoffs is taking it again,” said Palm Beach Chief Judge Kathleen Kroll, who attended the meeting. The commission has not determined how many people would have to be laid off or when, but state agencies are operating with a 4 percent budget holdback.

Who's got some tips for me on an interesting trial or hearing in federal court. Come on people.

The Conway briefs are in

Our previous coverage of Sean Conway's bar issue and proposed settlement is here (He agreed to settle his bar case for calling Judge Aleman on the Broward Blog an "evil, unfair witch" for a public reprimand). The Florida Supreme Court didn't accept the settlement with the bar, asking if Conway's speech was protected by the First Amendment.

Courtesy of JAABBlog, the briefs are in:
CONWAY RESPONSE BAR RESPONSE ACLU AMICUS BRIEF

The one worth reading is the ACLU brief.

Handshake assault case dismissed

Fights don't only break out in Miami. Remember this case from Ft. Lauderdale? Well, the assault charges against Kathy Brewer Rentas for her "handshake" of AUSA Jennifer Keene have been dropped. The Sun-Sentinel (which is just killing the Herald in its federal court coverage lately) covers the case here:

The case of an over-enthusiastic courtroom handshake that escalated into an assault charge against a local attorney was dropped Thursday by federal prosecutors who deemed it the "prudent" thing to do.Kathy Brewer Rentas, with the Hollywood firm of Becker & Poliakoff, spent the night in jail after her Feb. 7 arrest for assaulting a federal prosecutor by handshake in a Fort Lauderdale courtroom.The victim, Assistant U.S. Attorney Jennifer Keene, was prosecuting Brewer Rentas' husband, Anthony Rentas, for violating probation in a cocaine distribution case out of New York. A hearing had just concluded in which Anthony Rentas was put on house arrest for 90 days.Marshal Robert Kremenik was in the courtroom when Brewer Rentas insisted on shaking hands with Keene. The prosecutor refused at first, he said, but Brewer Rentas persisted, following Keene.
"Brewer forcefully grabbed onto Keene's right hand and squeezed it, pulling Keene toward her, forcing Keene off balance," Kremenik wrote in his report. "With Keene in hand, Brewer made an upward, then a quick downward motion and pulled Keene toward the ground moving her forward, almost causing Keene to fall to the ground."Gilberto Pay, a court security officer, told Kremenik that Brewer Rentas "almost pulled her arm out of the socket."

Steve Stallings makes a move

FOB* Steve Stallings is leaving the U.S. Attorney's office (in Pittsburgh) and going into private practice. It's making news in Pittsburgh (see here and here):

The prosecutor who headed the federal public corruption cases against Dr. Cyril H. Wecht and the Allegheny County Sheriff's Office is crossing the aisle.
Thursday was the last day in the U.S. Attorney's Office for Stephen Stallings, who heads down Grant Street from the federal courthouse to go into private practice at Dreier, a law firm in the Koppers Building.
"Most of my career has been in private practice," said Stallings, 40. "And this was the right time for me and my family to make the return."
Stallings practiced civil law in south Florida before joining the U.S. Attorney's Office in Miami in 2001. He moved to Pittsburgh, his wife's hometown, in 2004.

*Friend of Blog

Jack Thompson update

Honestly, I can't keep up with all the twists and turns of Mr. Thompson's various cases. I do know that Judge Dava Tunis has recommended that he be disbarred for life (169 page order). And on another front, he is suing Chief Judge Moreno and the U.S. Marshal. For more updates, visit Game Politics.