Reuben Cahn goes to DC

Friend of the District Reuben Cahn argued before the Supreme Court this week in Tapia v. United States. Reuben is the former Chief Assistant Federal Defender of this District, and the current Defender in San Diego.

The issue in the case is: May a court give a defendant a longer prison sentence to promote the defendant’s rehabilitation?

Here's the transcript of the oral argument.

ScotusBlog has a summary of the argument. Here's a section on Reuben:

On appeal, Tapia argued unsuccessfully that Section 3582 of the Sentencing Reform Act of 1984 prohibited a judge from basing the length of her sentence on a rehabilitative goal. That provision provides: “The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.”

Appearing on behalf of Alejandra Tapia, attorney Reuben Cahn relied on the text of Section 3582 to argue that the plain meaning and structure of the Act clearly prohibited a judge from lengthening a sentence to promote rehabilitation. Cahn noted that the Act stripped federal judges of their power to require federal prisoners take part in specific prison programs, such as the drug treatment program. “That structure makes sense only because Congress intended that defendants should no longer be sent to prison for purposes of rehabilitation,” Cahn said.

Several Justices asked Cahn how a reviewing court can tell whether a judge merely lengthened the sentence that he would have otherwise given based solely on rehabilitation, or whether the judge instead simply mentioned rehabilitation but in fact sentenced the defendant based on factors such as deterrence, incapacitation, and punishment. For example, Justice Sonia Sotomayor questioned whether the district court’s comments in sentencing Tapia could be interpreted in this light; Cahn countered, however, that the judge’s comments were clear. Sotomayor also asked whether Tapia’s rule was tantamount to requiring a judge to use “talismanic words” to make clear the court would have imposed the same sentence without regard to rehabilitation.

Reuben has a couple things going for him -- He is arguing that the 9th Circuit should get reversed and the SG agrees with his position.

Really?

That's the license plate I saw on the way to work. There's gotta be a good back story to that one.

I wonder if that guy got a spot in Lot 26.

Justice Scalia is in fine form today. From footnote 9: The dissent compares VOPA’s lawsuit to such indignities as “cannibalism” and “patricide,” since it is a greater “affront to someone’s dignity to be sued by a brother than to be sued by a stranger.” Post, at 9. We think the dissent’s principle of familial affront less than universally applicable, even with respect to real families, never mind governmental siblings. Most of us would probably prefer contesting a testamentary disposition with a relative to contesting it with a stranger. And confining one’s child to his room is called grounding, while confining a stranger’s child is called kidnaping. Jurisdiction over this case does not depend on which is the most apt comparison. [HT:CC]

Some sentencing news: Some judges want to give longer sentences in the name of rehabilitation. Even DOJ has told the High Court that you can't do that. On the other hand, judges aren't happy with the crack sentences: The federal judiciary is in something like open rebellion over a new law addressing the sentences to be meted out to people convicted of selling crack cocaine.

A couple of weeks ago, for instance, a judge in Massachusetts said he found it “unendurable” to have to impose sentences that are “both unjust and racist.”

The new law, the Fair Sentencing Act of 2010, narrowed the vast gap between penalties for crimes involving crack and powder cocaine, a development many judges welcomed.

But it turns out that the law may have been misnamed. “The Not Quite as Fair as it could be Sentencing Act of 2010 (NQFSA) would be a bit more descriptive,” a federal appeals court judge in Chicago wrote last month.


Who's voting for Uncle Luke? Here's one campaign promise -- decriminalize pot.

Passover news and notes

1. FAWL not happy with the JNC makeup (via DBR/John Pacenti). Lisa Lehner: "When the white male establishment decides it wants to respond and deal with this issue, what they do is take a nickel-and-dime approach, and they will put one woman on and say, 'OK, we did it, we solved the problem,' " Lehner said. "And then they think we will go away like nice girls and be quiet. We took a baby step, but women aren't babies."

2. Forget about the JNC; how about getting some judges? Via Daily Record: “We presently have a crisis in the federal judiciary in our country,” said Chief Judge Joel Dubina of the 11th Circuit U.S. Court of Appeals.

Dubina told Jacksonville lawyers that Supreme Court Chief Justice John Roberts recently spoke to members of Congress about the crisis.

”At the time I prepared my remarks for you today, there were 104 vacancies pending in the federal judiciary in the United States. That includes District Court positions and Court of Appeals positions,” said Dubina.
***
“I think there is much blame to go around for this crisis. In my lifetime, President Obama has been the slowest president to make nominations,” said Dubina.

“However, blame also lies with Congress. The Congress has been slow to approve judges, even those who were not controversial,” he said.

3. A loyal reader tells me that Paul Pelletier (former AUSA down here and current DOJ fraud prosecutor) is retiring and that the going away party in DC on May 5 is called "Paul-apalooza".

4. The WSJ Law Blog asks whether the feds need a warrant to track someone with GPS. I'm not sure how we can allow tracking of people with GPS without requiring a warrant, but what do I know.

5. A couple of law professors have written an op-ed in the NYT that we should basically get rid of habeas corpus because it's too costly and doesn't really help anything. I say we leave habeas and start by getting rid of the grand jury, which is a complete waste.

New Federal JNC named

From John Pacenti's column:

The Judicial Nominating Commission that recommends candidates for federal judicial openings and other key federal positions in Florida has been overhauled.

Seven new members have been named to the Southern District panel, and former U.S. Attorney Kendall Coffey remains chair. The commission's makeup was criticized in 2009 by some black and women attorneys for its lack of diversity. U.S. Sens. Bill Nelson and Marco Rubio have addressed some of those concerns.

Of the six members who left the commission, only one is a woman. And of the seven new members, three are women. At least one of the newcomers is black: Miami-Dade prosecutor Cynthia Johnson-Stacks.

Other new members include Vivian de las Cuevas-Diaz, apartnerat Broad and Cassel in Miami; Coral Gables attorney Eduardo Lacasa; plaintiff attorney Ira Leesfield, founder of Leesfield & Partners in Miami; Dexter Lehtinen, partner at Tew Cardenas in Miami; and Jon A. Sale, a partner in Sale & Weintraub in Miami.

The panel also will include lay member Carey Goodman, who is blind and a key player for the Monroe County Republican Party.

Departing members are Coral Gables litigator Gonzalo Dorta; political strategist Jillian Hasner; Luis J. Perez, a partner at Hogan Lovells in Miami; S. Danny Ponce, partner at Holland & Knight in Miami; Fort Lauderdale lawyer Justin Sayfie; and Stephen Zack, president of the American Bar Association and Miami administrative partner with Boies Schiller & Flexner.

They have some work to do -- Judge Gold's seat is still open and applications haven't even been asked for yet...

UPDATE -- Cynthia Johnson-Stacks isn't a prosecutor; she's a county attorney. And S. Danny Ponce is a partner at Legon, Ponce, and Foodman.

Bonds should not be retried on 3 perjury counts

Yes, he was convicted on obstruction, but the jury hung on three perjury counts. Enough already.

I'm not sure why a prosecutor should be able to retry a case after he couldn't convince a jury to convict. Isn't that reasonable doubt? To force someone to defend against two federal trials is impossible in every way -- financially and emotionally. The government had its shot in what was a controversial prosecution. Now time to go after a real criminal.

Quick hits

1. En banc 11th Circuit, per Judge Pryor, rules that Orlando can place limits on feeding homeless without violating First Amendment. CSM coverage of the case here:

In a decision announced Tuesday, a federal appeals court ruled against the group, Orlando Food Not Bombs, and gave a green light to city officials to enforce an ordinance restricting weekly feeding of the homeless in downtown parks.

“The city is in a far better position than this court to determine how best to manage the burden that large group feedings place on neighborhoods in the city,” Circuit Judge William Pryor wrote for the unanimous decision of the 11th US Circuit Court of Appeals in Atlanta.

2. Still no Bonds verdict. Day 4 of deliberations today.

3. Via Jay Weaver, ICE chief on paid administrative leave. AOL snitched him out:
The head of Immigration and Customs Enforcement for South Florida has been placed on paid administrative leave, as federal agents investigate four images of child pornography he allegedly received on his home computer via an AOL e-mail account, according to sources familiar with the probe.

4. Front page story about my friend Alfred Spellman and his partner Billy Corben, who are just tearing it up at age 32! Their latest flick, Square Grouper, looks great:

He and Alfred Spellman, both 32, started filming documentaries with their friend David Cypkin when they were in high school, Corben at New World School of the Arts and Spellman and Cypkin at North Miami Beach Senior High School. Now their formerly self-staffed group rakontur employs six full-timers in their Miami Beach house-cum-office.

Even with that growing staff, it’s hard to believe they’ve produced half a dozen award-winning feature-length documentaries, including The U, part of ESPN’s 30 for 30 series. Or that the Miami premiere of their new documentary Square Grouper on Thursday is the first of five premieres set for 2011. Another five full-length features are planned for 2012. Up until now, the group had released about one a year.

Looking for guest blogger for Judge Cohn talk

I'm bummed I won't get to see Judge Cohn speak tomorrow at the Federal Bar luncheon. He gives a very entertaining speech and it is a sold out event. If anyone is there and would like to guest blog about the talk, please email me at dmarkus@markuslaw.com

Wow

Jay Weaver just broke a big story -- "FBI agents searched the home and office of Anthony V. Mangione, the head of Immigration and Customs Enforcement in South Florida, over the weekend in a criminal investigation focusing on child pornography allegedly stored on his computer, according to federal sources familiar with the case."

More:

Mangione, 50, has headed ICE’s regional office since 2007. The agency has aggressively targeted child pornography, with Mangione frequently speaking out against “predators’’ who illegally share images through their computers. ICE also investigates migrant smuggling, illegal weapons exports, counterterrorism and drug trafficking.
***

As special agent in charge of ICE’s South Florida office, Mangione’s name often graced press releases lauding the agency’s efforts to fight child pornography, in both the cyber and real worlds. In statements, he talked about using technology to combat child pornography and his agency’s resolve to combat the crime.

“Too many children are victimized by predators that target the most vulnerable among us -- our children," Mangione said in a 2009 press release announcing that a 20-year-old Palm Beach County man was sentenced to more than 12 years in prison on child porn charges.