Cross-sex strip searches in jail humiliating and unconstitutional?

Yes, says a 6-5 9th Circuit in this opinion. From the San Francisco Chronicle:

The inmate, Charles Byrd, was in Maricopa County's minimum-security jail awaiting trial in October 2004 when officials ordered searches of everyone in his unit after a series of fights.

Byrd was ordered to strip down to his [boxers] - colored pink, as required for all inmates by Joe Arpaio, the county's hard-line sheriff - and was searched by a female cadet from a training academy. She said she had taken no more than 20 seconds, while Byrd estimated the time at a minute. No contraband was found.

A three-judge appeals court panel ordered Byrd's civil rights suit dismissed in 2009, citing the jail's security needs and past rulings allowing female guards to pat down clothed male prisoners and observe naked male inmates.

But after the full appeals court ordered a rehearing, a majority of Wednesday's panel said cross-gender probes of intimate areas violate the constitutional ban on unreasonable searches.

Forget about the strip search; how about having to wear pink underwear in jail? Talk about humiliating...

"Nudity itself is not per se indecent."

That was the Second Circuit, discussing Connie McDowell's scene in an NYPD epidosde. From the AP:

The Federal Communications Commission cannot fine broadcasters for showing a woman's nude buttocks on a 2003 episode of "NYPD Blue," a federal court ruled Tuesday, citing its earlier decision to strike down FCC rules regarding fleeting expletives uttered on live broadcasts as unconstitutionally vague.

The 2nd U.S. Court of Appeals in Manhattan decided Tuesday to nullify a $27,500 penalty that the FCC imposed on ABC and 45 of its affiliate stations after the image was broadcast on the police drama for less than seven seconds in February 2003. The combined fine was greater than $1.2 million.

The appeals court said its finding was consistent with its decision last year that TV stations can no longer be fined for fleeting, unscripted profanities uttered during live broadcasts.

The FCC had created its fleeting-expletive policy after a January 2003 NBC broadcast of the Golden Globe Awards in which U2 lead singer Bono uttered the phrase "f------ brilliant." The FCC said that word in any context "inherently has a sexual connotation" and can lead to enforcement.

Fox Television Stations, owned by Rupert Murdoch's News Corp., and other networks challenged the policy in 2006 after the FCC cited the use of profanity during awards programs that were aired in 2002 and 2003. The FCC has appealed that ruling.

In its Tuesday ruling, a three-judge 2nd Circuit panel wrote that there was "no significant distinction" between its decision in the expletives case and its findings in the "NYPD Blue" case.

The FCC is way over-zealous and over-protective, so the Second Circuit was right to slap the the agency down. Still, broadcasters are afraid of airing anything close to the line, and something more needs to be done than a circuit court opinion... In better news, Howard Stern now has an app!

Efraim Diveroli gets 4 years

From the AP's Curt Anderson:

A youthful arms dealer whose company once boasted a $300 million Pentagon munitions contract was sentenced Monday to four years in federal prison for trying to ship millions of rounds of prohibited Chinese-made ammunition to Afghan forces fighting alongside U.S. troops.

U.S. District Judge Joan Lenard imposed the sentence on 25-year-old Efraim Diveroli, who faced a maximum of five years behind bars after pleading guilty in 2009 to a fraud conspiracy charge. Three other executives in Diveroli's AEY Inc. are awaiting sentencing.

Lenard gave Diveroli credit for accepting responsibility for the crime but said he deserved a serious stint in prison because his scheme could have endangered U.S. military personnel and their Afghan allies. Much of the ammunition was decades old and could have been faulty.

"To participate in such a fraud when people are putting their lives on the line, that makes it so much sadder. For money," Lenard told a courtroom crowded with Diveroli family members and supporters from Miami Beach's tight-knit Jewish community, including two rabbis.

"Mr. Diveroli may have been clever, but not wise," Lenard said.

This was a win for for Diveroli's lawyers, Hy Shapiro and Howard Srebnick, who capped their client's exposure at 5 years and then got acceptance of responsibility credit for their client:

In return for Diveroli's guilty plea to the conspiracy charge, prosecutors dropped another 84 counts against him.

But his legal troubles are not over.

While out on bail awaiting sentencing in the Miami case, Diveroli was arrested in August in the Orlando area by Bureau of Alcohol, Tobacco, Firearms and Explosives agents, charged with being a convicted felon in possession of firearms.

Prosecutors in that case say Diveroli was attempting to broker another major arms and ammunition deal despite no longer having a license to do so and the Miami conviction. After pleading guilty in that case, Diveroli was ordered to forfeit several 9mm handguns and at least two semiautomatic rifles, according to court documents.

In one telephone call secretly recorded by ATF agents, Diveroli told an undercover agent posing as a potential arms buyer that "he keeps getting drawn back into this activity" despite his legal troubles.

"Once a gun runner, always a gun runner," Diveroli is quoted as saying in court papers.

Sentencing in the Orlando case is set for Jan. 25. Diveroli could get an additional 10 years in prison, but will likely get less.

Back to work...

Hope everyone had a nice new year. It's good to be back. A quick look at what was missed the last week:

1. The Cuban Spies strike back... against their lawyers. From the Miami Herald:

In his appeal, Hernandez, 45, contends that his trial attorney, Paul McKenna, mishandled his defense at a 2001 Miami federal trial by focusing so much on the shoot-down location.

That strategy overshadowed evidence that Hernandez purportedly did not know in advance about the deadly Cuban plot over the Florida Straits, the appeal asserts. Evidence of his advance knowledge was crucial to proving his role in the murder conspiracy.

"In short, Hernandez's lawyer was his worst enemy in the courtroom," his appellate attorneys wrote in a habeas corpus petition filed in Miami federal court.

2. Judge Carnes vs. Judge Tjoflat in Floride Norelus v. Denny's Inc.

Both SFL and Kosher Meatball cover this 2-1 case about sanctions against the Amlongs for a 63-page errata sheet. From Judge Carnes' intro:

No one’s memory is perfect. People forget things or get confused, and anyone can make an innocent misstatement or two. Or maybe even three or four. But not 868 of them. In this case, the plaintiff’s attorneys, William and Karen Amlong, filed a sixty-three page errata sheet containing 868 attempted changes to their client’s deposition testimony, which was the sole source of evidentiary support for their client’s claims. The district court exercised its authority under 28 U.S.C. § 1927 to sanction the Amlongs. This is their appeal, or more specifically their second appeal.

But what struck me was not so much Judge Carnes' colorful way of writing about the case (agree with his decisions or not, he makes reading them fun), but instead how he engages Judge Tjoflat (the concurring judge, District Judge Bowen, did not join in any of these remarks):

• As the magistrate judge found and no one (with the possible exception of the
  dissenting judge on this panel) seriously contests, the improper submission of the
  massive errata document rendered the eight days spent on Norelus’ deposition a
  waste of time and money to say nothing of the time the attorneys were forced to
  spend on the issues created by the document itself.
• Up to this point, we have addressed the issues related to the errata document
  and the award of sanctions as those issues have been raised and defined since that
  document was submitted fourteen years ago. Our dissenting colleague, by contrast, has hatched a brand new theory—a theory that was never raised by the parties, never considered by the district court, and never argued to this Court. The theory
  that he has conjured up is that the errata sheet was really nothing more than a
  “letter” from Karen Amlong to defense counsel. It was not, he insists, an errata
  sheet because he thinks it was never presented to the court reporter or affixed to
  Norelus’ deposition as, he thinks, Federal Rule of Civil Procedure 30 requires. Dissenting Op. at 1. He is wrong on his premises and wrong in his conclusion.
• Instead of recognizing the obvious import of Norelus’ own certification or following our precedent about who has the burden on appeal where there are any ambiguities, the dissenting judge would remake the case entirely along different factual lines, lines that only he sees.
• From its inception, the errata document has been understood by all, except our dissenting colleague, to be a Rule 30 errata sheet.
• That certification itself and its use to assert “exceptions” to the deposition belies the dissent’s far-fetched assertion that the errata sheet was nothing more than a letter from one attorney to another. And there is more.
• The Amlongs, the defendants, the magistrate judge, the district court judge, all three judges of this Court in Amlong I, everyone in the district court after the remand, and both parties in briefing and arguing the present appeal have understood that. Everyone has understood it—except for our dissenting colleague.
• Now, after almost a decade-and-a-half of litigation, he has been able to discern what everyone else has overlooked: that the Rule 30 errata sheet is not really a Rule 30 errata sheet, but it is instead “a document, although entitled ‘errata sheet,’ [which] had no more legal efficacy than a letter.” Dissenting Op. at 22. During a period of almost fifteen years of looking at the document, no one else has ever thought it was just a letter. And no wonder. Treating the errata sheet as nothing more than a letter is like arguing after Gettysburg that the warring sides had been mistaken all along about the bombardment of Fort Sumter, that it was actually nothing more than a diplomatic overture.
• And the dissenting judge’s extraordinary perception does not end there. He
  is even able to perceive that everyone else’s inability to see that the errata sheet isnot really an errata sheet is not the fault of the Amlongs, who designated it an
  errata sheet and have been arguing for almost a decade and a half that is what it is, and not the fault of all the judges who have consistently treated it as an errata sheet, but instead is the fault of—who else is left? Defense counsel, of course. See Dissenting Op. at 2, 19–20, 22–23.
• Even beyond the facts, there is another problem with the dissent’s attempt to inject the not-an-errata-sheet-but-just-a-letter issue into the case at this point. The issue has been defaulted about as many times and in about as many ways as any issue can be.

Sorry for all the bullets, but wow. Is it me, or was that opinion something more than a "diplomatic overture"?

3. SFL won the blog fantasy football league this year. Well done!

4. Mona and I won the Above the Law fantasy football league.

5. I beat Rumpole in the regular season head-to-head football challenge, but we will continue it into the playoffs. It was a fun battle, especially because watching the Dolphins was torture.

6. Tom Goldstein of ScotusBlog is leaving Akin Gump and is going back out on his own. (Via ATL)

Is anyone working this week?

SFL and Kosher Meatball are blogging away, and CM/ECF is alerting me to motions still being filed. But I'm having trouble motivating for the blog. So, I think I'm going to take the week off from blogging. If something exciting happens (not like denials of cert or judges not getting appointed), I'll post it. But if you don't hear from me, have an excellent holiday week and Happy New Year. See you all in a week.

Merry Christmas

Happy Festivus...

...for the rest of us:

"Zee Zee" cleared by Magistrate Judge Johnson

That's Fort Lauderdale cardiologist and prominent Republican fundraiser Zachariah Zachariah (George Bush called him Zee Zee), who was charged civilly with using insider information to make $1 million in illegal stock profits in 2005. He was represented by Curt Miner of Colson Hicks. From John Pacenti's article in the DBR:

[Judge] Johnson said the evidence was not sufficient to show that Zachariah "would be willing to jeopardize his reputation and his career and put his family in harm’s way all for the opportunity to make what was an insignificant profit to him in light of his means at the time."

U.S. District Judge Kenneth Marra adopted Johnson’s findings on Monday, issuing a final judgment in Zachariah’s favor.

Zachariah’s attorney, Curtis Miner, a partner at Colson Hicks Eidson in Coral Gables, said Johnson’s decision is "a pretty stinging rebuke of the government’s case. She said the government’s argument strained credulity."

In a statement, Zachariah said: "I have great faith in our justice system, and I always knew I would be fully vindicated. The government put me through a long ordeal, but I am very happy to turn 100 percent of my attention back to my medical practice. "

Zachariah practices at Holy Cross Hospital in Fort Lauderdale.

Zachariah’s bench trial in front of Johnson lasted nine days over two months this fall.