Order in Paris Hilton case

Judge Moreno ruled in Paris Hilton's favor on Monday (background here) -- she does not have to pay $8.3 million even though her film “Pledge This!’’ bombed. From Judge Moreno's order: “The court finds compelling evidence in the record that ‘Pledge This!’ lost money because the film’s inexperienced producers hastily cobbled together a wholly inadequate marketing plan.’’

But Judge Moreno's best case forever isn't over. He wants further briefing (and potentially a further hearing) on the issue of whether she has to repay any part of her $1 million compensation. Yay, more Paris Hilton in federal court.

UBS snitches

Oh, there are going to be a bunch of these. Here's one where the government is recommending a 50% reduction (via Curt Anderson):

A former Swiss banker should get a sharply reduced prison term for helping the U.S. government as a star witness in a wide-ranging tax evasion investigation of banking giant UBS AG, federal prosecutors said Tuesday.
The motion filed in federal court comes a week after U.S. and Swiss governments settled out of court to end an IRS lawsuit against UBS. Under that deal, the Swiss agreed to let UBS name at least some wealthy U.S. clients behind 52,000 accounts, information that had been protected by the country's vaunted bank secrecy laws.
Assistant U.S. Attorney Jeffrey A. Neiman said in the motion that Bradley Birkenfeld, 43, had provided extensive cooperation. Because of that, he deserved no more than 2 1/2 years in federal prison, or half the five-year maximum for his guilty plea on a charge of conspiring to defraud the U.S.
Birkenfeld provided key information not only to U.S. prosecutors but also to foreign authorities investigating UBS, the Securities and Exchange Commission, the Internal Revenue Service and a U.S. Senate panel.
"This substantial assistance has been timely, significant, useful, truthful, complete and reliable," Neiman said in the motion.

Totally off topic, check out this picture of Hurricane Bill. Pretty cool. (HT: A. Spellman)

Judge Barkett's "fervent, lonely" dissent reaches open ears of Supreme Court

One of my favorite readers has sent in this guest post, and I post it here:

Three days ago The New York Times highlighted Eleventh Circuit Judge Barkett as the author of a "fervent, lonely" dissent which expressed frustration with AEDPA's "thicket of procedural brambles." According to Judge Barkett's dissent, deathrow inmate Troy Davis was entitled to a hearing on evidence that strongly supported a compelling claim of actual innocence. The Eleventh Circuit held otherwise. But today, the Supreme Court relied heavily on Judge Barkett's dissent when ordering the district court to hold a hearing on the evidence of Davis' actual innocence. (The short, three-page order stemming from a rare grant of an original writ of habeas is worth reading for its powerful, plain, equity-driven prose.) Facing head-on against the dissenting Justices Scalia and Thomas, Justice Stevens, joined by Justices Ginsburg and Breyer, wrote:

JUSTICE SCALIA’s dissent is wrong in two respects. First, he assumes as a matter of fact that petitioner Davis is guilty of the murder of Officer MacPhail. He does this even though seven of the State’s key witnesses have recanted their trial testimony; several individuals have implicated the State’s principal witness as the shooter; and “no court,” state or federal, “has ever conducted a hearing to assess the reliability of the score of [postconviction] affidavits that, if reliable, would satisfy the threshold showing for a truly persuasive demonstration of actual innocence,” 565 F. 3d 810, 827 (CA11 2009) (Barkett, J., dissenting) (internal quotation marks omitted). The substantial risk of putting an innocent man to death clearly provides an adequate
justification for holding an evidentiary hearing. . . . But imagine a petitioner
in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man. The dissent’s reasoning would allow such a petitioner to be put to death nonetheless. The Court correctly refuses to endorse such reasoning.

Judge Barkett had explained to The New York Times that her dissents are fueled by “mostly frustration that I cannot make people see what I see." Hopefully, today's ruling gives Judge Barkett a small sense of satisfaction that her dissent succeeded in making others see what she sees.

The last week of good traffic

Gridlock starts next week with the start of school...

Looks like the storms are gonna miss us. Rumpole has been updating us all weekend on the positions of the storms. A tip for the future: keep an eye on the Herbert boxes.

The blawgosphere is aflutter over the possibility of free PACER. (Thanks to MDO for the tip, but Miguel, shouldn't you be studying for the fantasy football draft?) I'm all for free access to the courts, but I've heard grumbling among lawyers that electronic filing has led to their pleadings being stolen and that making PACER free will lead to even more stealing. Isn't that the greatest form of flattery? SFLawyers makes passing reference to lawyers looking at Iqbal motions to dismiss. Is it me, or is SFL oddly obsessed with Iqbal. Yes, we had a Paris obsession here a couple weeks back, and that was strange, but this Iqbal craze is, well, strange.

Rick Bascuas blogs about the en banc 11th Circuit looking into sentencing practices after giving discretion back to district judges. Apparently, the government isn't happy about below guideline sentences. Shock.

Anyone trying any cases this week?

News & Notes

1. Prosecutors in Georgia are in hot water about their handling of a prosecution against a criminal defense lawyer. Friends of the blog Tom Withers & Craig Gillen represent the defense lawyer. They were part of the defense team that tried the Savannah case with me a couple years back. Good peeps.

2. Richard Simring's sentencing was postponed. Sad: "Richard B. Simring, a lawyer, was the chief legal officer of Okun Holdings, was also to be sentenced this morning after pleading guilty to charges of conspiracy to commit mail fraud and money laundering.
However, Payne said he wanted a mental health evaluation conducted of Simring, who has a history of depression and was said to have been under a great deal of family stress at the times the crimes were committed.
A new sentencing date for Simring has not yet been set. Payne said the five years called for under the plea agreement may be appropriate, but said he wanted more information about Simring’s emotional condition."

3. On Agusut 24, 2009, the Third District Court of Appeal will be holding an en banc hearing at Judge Moreno’s courtroom. The building's namesake -- Judge Wilkie Ferguson -- is a former 3rd DCA Judge. From what I understand, the case deals with PIP... UPDATE -- the argument has been cancelled.

4. Supervised release numbers are way up -- from 51,000 on supervision in 1997 to almost 100,000 now.

UBS settles with US

Indictments to follow.

Richard Simring's co-defendant sentenced to 100 years

That's 50 years less than Mr. Madoff, but still -- that's quite a whopper of a sentence for Edward Okun. (The feds were asking for a 400 year sentence!) Here's the DOJ press release for background. (As an aside, anyone know the largest sentences handed out in this district?)

Okun's co-defendant Richard Simring, who was a rising star here in Miami before this case, is scheduled to be sentenced this Thursday. Simring will get much less -- he pled to one count with a five year maximum and has been cooperating. His role was extremely limited, so hopefully he can avoid jail time.

Interesting papers in the case. Here is Okun's sentencing memo, written by the FPD's office and Barry Pollack -- one of the finest white collar lawyers in the country. And here is the government's memo, in which it asks for 400 years.

I'm back

Hey everyone. I'm back. A big shout out to Vanessa Blum for filling in last week while I was out tending to the new Markus bambina.

Speaking of Vanessa, you all should go over here to the South Florida Daily Blog and vote for her and Dore for their guest-blogging on the interviews of the district judge and U.S. Attorney applicants. (UPDATE -- I just checked and we're in second. Come on people... Go vote!)

Judge Graham is back from his summer vacation and picked up the prestigious William H. Hastie award at the National Bar Association Convention in San Diego presented by the Judicial Council.

Another NG for the FPD's office last week. This time Ayana H. and Sowmya B. pick up the win in an illegal reentry case.

Good guy Dan Rashbaum has left the U.S. Attorney's office and has joined Matt Menchel in the Miami office of Kobre Kim.

Nick Bogert is moving to Chicago after 30 years of reporting in South Florida. He's having a party on Saturday, August 22 from 7-10PM at Pacific Time Restaurant 35 NE 40th St., Miami. Go wish Nick well. (I remember one exchange I had with Nick a couple years back, after the Gilberto Rodriguez-Orejuella plea. There was a mass of cameras waiting for us outside of court, and I said that Gilberto was honorable for saving his family and not snitching; Nick yelled "Are you claiming that Gilberto Rodriguez is an honorable man after everything that he has done?" It was a fair question, and I stood by my answer.)