When you have 5 minutes to kill...

Hat tip: AMM

"If Mr. Rothstein thinks setting up Mr. Settineri is going to get him a get-out-of-jail card, he's sadly mistaken.''

That was Jeff Weiner after Judge Cohen sentenced his client Roberto Settineri to four years (via the Miami Herald):


Defense attorney Jeffrey Weiner and federal prosecutors recommended that Settineri receive four years' imprisonment at his sentencing Wednesday morning in Fort Lauderdale.
The U.S. District Judge James Cohn called it a ``fair resolution.'' The maximum is five years.
In exchange for his guilty plea in August, Assistant U.S. Attorney Cynthia Stone dropped the original conspiracy charges, which carried up to 20 years in prison.
After Settineri's sentencing, Weiner said that his client could actually be released from prison in about two years. Settineri received credit for eight months of detention since his arrest in March. The judge also allowed him to enter a 500-hour alcohol abuse program in prison, which, if completed, would cut an additional year off his sentence.
Weiner said that while his client said nothing at his sentencing, Settineri took full responsibility and apologized for his wrongdoing in a court filing.
``His life was fine until he made this terrible mistake in judgment,'' Weiner said. ``He thought he was helping a friend in need. He's embarrassed about it.''

"Some of the Grimm’s fairy tales are quite grim." -- Justice Scalia during oral argument yesterday

So were some of those election results...

Here's the NY Times article on the violent video game argument in the Supreme Court:

The law would impose $1,000 fines on stores that sell violent video games to people under 18. It defined violent games as those “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” in a way that is “patently offensive,” appeals to minors’ “deviant or morbid interests” and lacks “serious literary, artistic, political or scientific value.”
“What’s a deviant violent video game?” asked Justice Antonin Scalia, who was the law’s most vocal opponent on Tuesday. “As opposed to what? A normal violent video game?”
“Some of the Grimm’s fairy tales are quite grim,” he added. “Are you going to ban them, too?”
Justice Stephen G. Breyer took the other side. He said common sense should allow the government to help parents protect children from games that include depictions of “gratuitous, painful, excruciating, torturing violence upon small children and women.”

Scalia got the better of Alito in this exchange:

But Justice Scalia said there was nothing in the tradition of American free speech that would allow the government to ban depictions of violence. The thought, he said, would have been foreign to the drafters of the First Amendment, drawing a needling comment from Justice Samuel A. Alito Jr., the lone dissenter in the Stevens case.
“What Justice Scalia wants to know,” Justice Alito said, “is what James Madison thought about video games.”
“No,” Justice Scalia responded, “I want to know what James Madison thought about violence.”

And they better not ban Mortal Kombat!

Justice Elena Kagan, the court’s newest and youngest member, seemed to be the only justice with even a passing familiarity with the genre under review, even if it was secondhand.
“You think Mortal Kombat is prohibited by this statute?” she asked Mr. Morazzini. It is, she added, “an iconic game which I am sure half the clerks who work for us spent considerable time in their adolescence playing.”
Mr. Morazzini said the game was “a candidate” for government regulation.

There was another big oral argument yesterday -- US v. Skilling:

A three-judge appeals court panel grilled attorneys for former Enron CEO Jeff Skilling and the government on Monday, trying to decide whether to throw out or order new trials on any of Skilling's 19 convictions.
His defense lawyer, Daniel Petrocelli, argued the U.S. Supreme Court's decision that the government was wrong to use a particular legal theory in charging Skilling with conspiracy means that charge and the remaining 18 should be thrown out.
The government contends that a rational jury would have convicted even without the faulty theory that he deprived Enron of his "honest services," because evidence overwhelmingly supported Skilling's guilt.
But the hearing, in which each side had 30 minutes to provide oral arguments, was more about the judges' questions than the lawyers' answers.
Judge Edward Prado asked if it would make more sense for the federal district court where Skilling was tried in 2006 to decide the issues raised by the Supreme Court decision.
Determining if the "honest services" theory tainted the other charges would involve digging into the voluminous details of the five-month trial, Prado said.
Petrocelli said nothing would prevent the appeals court from sending the issue to the trial judge, but that the question is one of law.
"The court isn't being asked to act as a 13th juror," or guess what the original jury was thinking, Petrocelli said. Rather it needs to look at the court record and determine if a "reasonable jury" could find Skilling not guilty based on the evidence.
"The record is filled with acquittal evidence," Petrocelli said.

You can access the audio of yesterday's Fifth Circuit oral argument via this link (53.7MB Windows Media audio file). Why don't we have that in the 11th Circuit?

Go vote!

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Monday

What's new on this rainy Monday? Well, the Supreme Court took a bunch of cases, including one concerning Miranda warnings and minors. In the District, Judge Middlebrooks and Judge Graham both started mortgage fraud trials this morning. A bunch of those cases are now starting to go and there have been a bunch of acquittals for straw buyers. What else?

“Public defenders are not defenders of the public. They are not serving the public good. They are taxpayer-funded attorneys for criminals."

That was the enlightened District Attorney in Aspen, Colorado. Here's the intro to the article:

It may come as a surprise to casual observers of this ritzy ski resort that the majority of people accused of crimes in the Aspen area qualify as indigent, and therefore have a right to a court-appointed attorney.The Colorado State Public Defender handles those cases out of its Glenwood Springs office, where four attorneys cover the caseload in Pitkin, Garfield and Rio Blanco counties.The district attorney’s office handles the same area with 14 prosecutors, including elected District Attorney Martin Beeson. Beeson met with the Pitkin County commissioners this week, asking for a $600,000-plus contribution to his $3 million budget covering the tri-county area. He declined to cut his budget by 5 percent, as the commissioners had asked, and the county board appears poised to grant his full request.Colorado public defenders have no such county budget review, and no elected leader. Their funding comes out of the state’s general fund, which is approved by the state Legislature. The expenditures out of their Glenwood office in 2010 totaled $663,910, and their 2011 state budget is in the works in Denver.

While we are on quotes, there's this great one that ATL pointed out:

Appropriately weighty principles guide our course. First, we recognize that police power draws from the credo that “the needs of the many outweigh the needs of the few.” Second, while this maxim rings utilitarian and Dickensian (not to mention Vulcan21), it is cabined by something contrarian and Texan: distrust of intrusive government and a belief that police power is justified only by urgency, not expediency.
21 See STAR TREK II: THE WRATH OF KHAN (Paramount Pictures 1982). The film references several works of classic literature, none more prominently than A Tale of Two Cities. Spock gives Admiral Kirk an antique copy as a birthday present, and the film itself is bookended with the book’s opening and closing passages. Most memorable, of course, is Spock’s famous line from his moment of sacrifice: “Don’t grieve, Admiral. It is logical. The needs of the many outweigh . . .” to which Kirk replies, “the needs of the few.”

Finally, there's Darrell Cook:

Darrell Cook detailed his "love of the Rangers that has gone generally unrequited for thirty-eight (38) years." He asked the court to postpone a pretrial conference, which was set for 1 p.m. Wednesday, so that "justice may be done."
By justice, he meant: "That Darrell can be present in San Francisco for Game 1 of the World Series while Cliff Lee wields his usual style of Post-Season justice to the hapless souls that are otherwise known as the Giants lineup," according to a footnote.

Here's the whole motion for a fun read. Too bad the Rangers lost.

Must read sentencing order in Irey case

I wrote about the lengthy 11th Circuit en banc opinion in US v. Irey here. Professor Berman covers what has happened since, including Judge Presnell's opinion in response to the 11th Circuit. Here's the intro and conclusion:

This matter comes before the Court on the Unopposed Motion for Continuance of Resentencing Hearing Pending Review in United States Supreme Court (Doc. 80). As the motion’s title suggests, the parties seek to have this Court delay its resentencing of the Defendant, William Irey (“Irey”), on the chance that the Supreme Court will grant his petition for writ of certiorari, due to be filed on October 27, 2010. As things now stand, this Court is obligated by the July 29, 2010 decision of the United States Court of Appeals for the Eleventh Circuit (henceforth, the “July 29 Order”) to impose a 30-year sentence on Irey. Given that Irey is in the early stages of serving the 17-and-a-half-year sentence originally imposed by this court, there is no pressing need to impose the longer sentence — a fact apparently recognized by the Government, which does not oppose the motion. For these reasons, the motion will be granted, and the resentencing will be continued.
Under normal circumstances, that would be the end of the matter. But these are not normal circumstances. The July 29 Order raises a host of important issues, a fact recognized both by the Defendant in the instant motion and by the appellate court in the order itself. The pendency of the petition for a writ of certiorari provides the Court with a rare opportunity to respond to certain aspects of the appellate decision, prior to its possible review by the Supreme Court, with information that only the undersigned possesses. In addition, the July 29 Order has certain implications that affect the courts that are tasked with the imposition of criminal sentences — implications that might not be apparent to the parties themselves. The Court believes that a discussion of these points may assist the Supreme Court in determining whether the petition ought to be granted.
It is for these reasons, and not out of any disrespect for the Circuit Court’s authority to reverse the sentence I imposed, that I will take this opportunity to respond to certain portions of the July 29 Order....
I normally conclude the sentencing process by coming back to a consideration of the need for the sentence imposed to promote respect for the law and to provide just punishment for the offense. 18 U.S.C. § 3553(a)(2)(A). These are subjective factors that overlay the other statutory considerations. As I said at the sentencing, “I just do the best I can under the circumstances. It comes down to my view of what promotes respect for the law and provides just punishment. And here, as indicated, I think that a thirty year sentence . . . is greater than necessary to accomplish the statutory objectives.” (Tr. at 61).
The Circuit Court acknowledged that I properly calculated the guideline score, committed no procedural error, and gave thorough and thoughtful consideration to the statutory sentencing factors. Nevertheless, after demonizing Irey with over 100 references to uncharged conduct (child abuse), the Circuit Court either misconstrued or exaggerated my comments, or took them out of context, considered numerous facts and arguments never presented to me, and concluded that there were no mitigating circumstances to justify any sentence other than the 30-year guideline sentence.
This is an extraordinary and unprecedented result. The Circuit Court has effectively usurped my sentencing discretion and raised serious questions regarding Irey’s right to due process. I concede that the majority opinion has raised valid concerns about the reasonableness of the sentence I imposed. Were this case remanded to me for re-sentencing, I would take these concerns into account and exercise my discretion accordingly. But as it now stands, I will not be given that opportunity. Nor, it appears, will Irey be given the opportunity to confront the facts and arguments raised for the first time on appeal, which resulted in a 12 and a half year increase in his sentence.
In his separate opinion, Judge Tjoflat states that the majority opinion’s approach — i.e., resentencing defendants on appeal — does “immense and immeasurable institutional damage.” Irey III at 1267. In my opinion, it also undermines the basic tenets of sentencing law developed over the past five years, and opens a Pandora’s box of new sentencing issues. I regret that my sentencing of this defendant — including any errors I made in doing so — appears to have led to this result.

SDFLA launches new website

Check it out here.

Make sure to look at it from your phone and your desktop as it has a mobile version.

After you take a look, then you can take this survey.

I think it's a big improvement.