SFL post

SFL here, tending bar.

[DOM edit -- Sorry SFL, I decided to take out the section you wrote up about my trial. I try not to blog about my ongoing trials...]

For more fun government facts, take a look at the previously-secret John Yoo Justice Department memos that explain how the United States should treat its citizens during wartime:

"The current campaign against terrorism may require even broader exercises of federal power domestically," Justice Department officials John Yoo and Robert Delahunty wrote White House counsel Alberto Gonzales in the Oct. 23 memo.

"We do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a (search) warrant," they said.

The U.S. Supreme Court has held that the Constitution's Fourth Amendment ordinarily requires a probable cause and a warrant to execute a search. However, the memo said those requirements "are unsuited to the demands of wartime."

Furthermore, it said, "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."

"The government's compelling interests in wartime justify restrictions on the scope of individual liberty," it said. The Justice Department under Bush had fought a lawsuit which sought to make the memo public.

Oh well, past is past!

New Helio Photo Posted!

SFL here, reporting from inside Judge Graham's crowded courtroom with this exclusive photo of jury selection in the Helio Castroneves trial.

Ok ok, here's an actual story from The Indy Channel on what's going on:

"I wish I could be in a racecar, because I'm in control. Here, I'm not in control at all," Castroneves said. "I trust the people that are handling all of my business."Defense attorneys said they will try to show that an off-shore shell corporation involved in the case, Seven Promotions, was operated by Castroneves' father, not Helio.The trial is expected to last up to four weeks. Several luminaries are expected to testify at the trial, including Roger Penske, Jimmie Johnson and Rep. Jack Kemp.

Interesting, the bolded language -- that's what I always tell my clients when we are contemplating a trial vs. settlement (well, except for the race car bit).

And Jack Kemp? Man, this guy is bringing the firepower!

Helio trial begins today

I'm sure I can count on SFL to post some good coverage and pictures while I am in trial.

--David Oscar Markus
www.markuslaw.com
305-379-6667

Bankruptcy Judges To Modify Mortgages?

SFL here, still foolin' around in the big house....

Mortgage crisis? Really, I hadn't noticed.

But apparently, I am advised, there may be some sort of problem:

President Obama’s proposal to address the rising tide of home foreclosures calls for legislation to allow bankruptcy judges under Chapter 13 to modify the terms of home mortgages when families run out of other options.

The legislation stalled in the House and the Senate for the past two years because of opposition by Republicans and the lending industry. But by 2012, one in every nine homeowners will have lost a home to foreclosure, according to a Credit Suisse Securities analysis. Has the foreclosure landscape changed sufficiently to break the back of the determined opposition?

I see some hotshot law professor from Yale thinks this is a bad idea:

First, the proposal would swamp bankruptcy courts. There are only about 300 bankruptcy judges, and they are already busy with an increasing number of bankruptcies. Clearing millions of new mortgage cases will take a long time and thus have little immediate effect on the foreclosure crisis. In addition, the flood of new cases would delay the resolution of business bankruptcies, to the detriment of the economy.

Professor -- have you been to state court recently? These cases have to be adjudicated somewhere -- why not put them in the hands of those who are expert at valuing assets and determining fair market value?

Also -- aren't there more bankruptcy judges than all federal district judges combined? It's actually 368, btw, but who's counting.....

And the "flooding" Professor Schwartz talks about is not likely to be a permanent condition, as the initial wave of cases is absorbed. Hey, this "scholar" even agrees with me:

But “a more neutral analysis of this is to think back to 2005, about the time bankruptcy law got changed,” said bankruptcy scholar Robert Lawless of the University of Illinois College of Law. “There were two million filings that year, and the system did handle those. There weren’t any reports of major problems.”

Well, there will likely be major problems no matter what we do, the question is which approach gets out of this situation faster and more efficiently.

Federal Judges Might (Finally) Get Pay Bump

Hi folks, SFL still muckin' around in here.

This is an issue near and dear to Judge Fay's heart, as we all know:

House members voted Wednesday for a $410 billion spending plan to keep the federal government running through September, and the plan includes a cost-of-living adjustment for the federal judiciary for the 2009 calendar year. According to the Administrative Office of the U.S. Courts, the proposal would give judges a 2.8 percent increase retroactive to January.

Though it wouldn't bring judges close to the salaries of their friends in private practice or in deanships at top law schools, it would end their status as the only federal employees who did not get a cost-of-living adjustment this year. They have gone without such an increase in seven of the last 14 years, and Chief Justice John Roberts Jr. has made the issue a priority.

The spending plan now heads to the Senate, which has been less receptive to arguments for higher judicial pay and could amend the plan. In October, senators removed plans for the judiciary's 2009 cost-of-living adjustment from auto-bailout legislation passed by the House.

Even though I tweaked the Judge's speech on this at the recent Bench & Bar conference, in all seriousness it is a no-brainer and is long long long overdue.

Federal JNC named

SFL is doing a great job filling in. Thanks!

I just got a note about the new Federal JNC. First up for them -- the new district judgeship created by Judge Hurley going senior. Here's the list of JNC members:

John Fitzgibbons (Statewide Chair)

Northern
Linda Shelley (Chair)Jim ApplemanJohn AurellDuby AusleyMartha
BarnettWilliam "Bill" HarrisonMelanie Ann HinesDon HinkleDoug MannheimerJon
MillsDaryl ParksBuzz RitchieLeander ShawJim SmithSusan Story

Middle
Wayne Hogan (Chair)Steve CheesemanTom DukesW.C. GentryNat GloverSaundra
GreyMichael GrindstaffBen Hill IIITrudie Kibbe-ReedMike MaherMarcos MarchenaBill
McBrideSusan McCaskillHugh NormileSteve PajcicMarsha Santana RydbergBruce
SmathersBruce StrayhornBrian T. WilsonWilliam "Bill" Wilson

Southern
Kendall Coffey (Chair) Georgina Angones Reginald Clyne Gonzalo R. Dorta Al
Dotson Philip Frieden John Genovese Evelyn Greer Jillian Hasner Manny Kadre
Chuck Lichtman Richard Lydecker Tom Panza Luis Perez Danny Ponce David Prather Dennis Richard Justin Sayfie Chris Searcy Steve Zack

Looks like a solid list of members from the Southern District. I note with sadness though that there isn't one criminal defense lawyer on the committee...

Judge Garber Nixes Ochoa Bid for Retrial

SFL here.

Magistrate Judge Garber denies Ochoa motion:

U.S. Magistrate Judge Barry Garber denied the request by Medellín cartel leader Fabio Ochoa, whose lawyer argued that convicted codefendant Alejandro Bernal was not a truthful witness in the 2003 trial.

Attorney Paul Petruzzi cited previously undisclosed evidence showing Bernal had informed federal agents before trial that Ochoa gave $2 million to al Qaeda to help finance the Sept. 11 terrorist attacks. Petruzzi said the prosecution should have turned that evidence over to the defense so it could have challenged Bernal's truthfulness on the witness stand.

But the magistrate judge disagreed.

''Bernal's letter of August 2002 merely sets forth a rumor that Ochoa was involved in assisting in the planning of the Sept. 11 attacks,'' Garber wrote in a four-page order filed this week. ``Such belief was not based on any personal knowledge held by Bernal and is merely speculative without any factual basis.

''As a matter of fact, any reference to terrorist attacks was regarding speculative attacks to take place in Colombia to prevent the extradition of Ochoa to the United States,'' he wrote.

Well, which was it -- financing to conduct the 9/11 attacks, or attacks within Columbia to prevent Ochoa's extradition?

"Well Known" Motorcycle Mechanic Sentenced Before Judge Altonaga

Hi folks!

SFL here, still doin' time at David's fine place while the big man goes to court and cross-examines witnesses -- you know, the stuff we all wish we were doing right now....

Here's what's happening in Judge Altonaga's courtroom:

R. Alexander Acosta, United States Attorney for the Southern District of Florida, and Jonathan I. Solomon, Special Agent in Charge, Federal Bureau of Investigation, announced that defendant Jimmy A. Soto, of Miami Lakes, was sentenced on February 24, 2009, for his participation in a $5.4 million health care fraud and money laundering scheme. U.S. District Judge Cecilia Altonaga sentenced Soto to 140 months' imprisonment.

In December 2008, after a week long trial, a Miami jury convicted Soto of a series of related health care fraud and money laundering charges. The evidence at trial established that Soto conspired with Leonardo Lozada, Eliades Diaz, and Jose D. Claro to defraud Medicare through the fraudulent submission of $5.4 million in durable medical equipment ( DME ) claims during 2005 and 2006. The claims concerned a Hialeah-based DME company operating as Med-Pro of Miami, Inc ( "Med-Pro" ). Medicare paid Med-Pro approximately $1.3 million based on the bogus claims, which were for DME items that were neither prescribed by doctors nor delivered to Medicare patients, most of whom resided in the Treasure Coast area of Florida.

Soto, a well known motorcycle mechanic, was also found guilty of laundering more than a $1million in monies stolen from Medicare. At trial, it was established that Soto recruited his customers and friends to cash several hundred thousand dollars worth of checks for Med-Pro during 2006.

Question -- can someone be a "well known motorcycle mechanic"? The only one I know is that guy from California with all the tattoos (new book cover pictured above), and even he's not that well-known.....