"Progress might have been all right once, but it has gone on too long."

That's how this funny order starts out. I like it.

BREAKING -- Judge Ungaro throws out Bank Atlantic verdict

Big big news at the close of a busy Monday -- Judge Ungaro has issued this well-written and researched 112-page order (also below) granting Bank Atlantic's post-trial motion for judgment as a matter of law. [HT:RR]

A jury back in November found Bank Atlantic officials misled shareholders on conference calls and awarded $2.41 a share to investors who bought the company's stock in 2007. If the verdict was permitted to stand, it would have been a tough hit for the bank, so this was a biggie.

Huge win for Gene Stearns and his team -- Adam Schachter, Cecilia Simmons, Grey Mead, and Andrea Nathan. I'm still digesting it, but the principal basis of the order was insufficient proof of loss causation and damages. In the event the order is vacated or reversed, the motion for a new trial was denied. I predict that the plaintiff's lawyer Mark Arisohn won't be getting much sleep tonight.

Judge Ungaro Throws Out Bank Atlantic Verdict

New boss, same as the old boss? (UPDATED)

So, Eric Holder has been saying all the right things about criminal discovery issues and has even issued guidelines to line AUSAs about more liberal disclosure, but there is increased grumbling amongst defense lawyers and judges that nothing has really changed (and in many cases, has gotten worse). In fact, DOJ is lobbying hard against changing Rule 16 to allow for more liberal disclosure of Brady/Giglio material.

I don't typically blog about my cases, but here's my most recent experience with this issue (without naming names): I was in court last week where DOJ was taking the position that even though their two critical witnesses lied to the grand jury, they did not need to disclose the grand jury testimony because Jencks trumped Brady. I kid you not. Needless to say, the district judge disagreed. But is this really the sorts of positions that DOJ should be taking?

Here's an op-ed by Jim E. Lavine and Ellen S. Podgor about DOJ not practicing what it preaches:

The practice of prosecutors failing to abide by constitutional and ethical
standards in providing important materials to the defense is not unique to
these cases, but it is particularly problematic to see when prosecutors are
then turning around and charging crimes against others who allegedly do the
same thing -- fail to give the other side materials they believe are
important to their investigation.

That’s exactly what they did when they decided to indict a former vice-president and associate general counsel of Glaxo-Smith Kline. Prosecutors charged her with crimes that included obstruction of justice and concealment of documents from an FDA inquiry, arguing that the counsel failed to provide materials to the federal agency.

The problem here is clear. The three new policies of the Department of
Justice are all internally controlled, provide for no external monitoring
and allow each local United States Attorneys’ Office to set up their own
discovery policies for their individual office. There is no real
oversight.

In fact, the Department of Justice has opposed making any rule changes that
would include some outside scrutiny. How many chances should they get?


Update -- Here is the proposed amendment to Rule 16 that DOJ opposes. Someone explain to me why this is controversial:

Rule 16. Discovery and Inspection
(a) GOVERNMENT’S DISCLOSURE.
(1) INFORMATION SUBJECT TO DISCLOSURE.
* * * *
(H) Exculpatory or Impeaching Information. Upon a defendant’s request, the government
must make available all information that is known to the attorney for the government or agents of law enforcement involved in the investigation of the case that is either exculpatory or impeaching. The court may not order disclosure of impeachment information earlier than 14 days before trial.

"There was a negotiated plea agreement. There was a scoresheet. There was an oral pronouncement. There was a written judgment and sentence. ...

... There was confusion. We remand for clarification."

That first paragraph about sums it up this opinion from the 5th DCA. [HT:CC]

Speaking of state court opinions, thank goodness for the Florida Supreme Court. Two big criminal procedure opinions from that court dealing big blows to the use of drug sniffing dogs. The court said that 1) prosecutors must show that drug dogs are reliable before they can be used to obtain evidence from a car (Harris v. Florida) and 2) police must get a warrant before using drug sniffing dogs at the front door of someone's house (Jardines v. Florida).

The Fourth Amendment is not dead, at least in Florida.

Mortgage fraud not guilty

Kudos to Russ Koonin and Allan Kaiser for their across-the-board not guilty verdicts today before Judge Martinez. They represented a lawyer charged with many counts of mortgage fraud.

UPDATE -- Here's the Herald article:

A Plantation attorney was acquitted of 13 counts of bank fraud Thursday, after a federal jury found that she did not knowingly participate in a mortgage loan scam that cost three banks $7.9 million.

Eve Rosen, 55, was implicated in a scheme in which Broward County developer Jeffrey Phillips recruited South Florida straw buyers to create fraudulent loan applications in order to buy vacant lots in North Florida. Between 2006 and 2008, Rosen was the closing agent on all of the transactions, which featured artificially inflated prices, fake income statements and falsified down payment information. In addition to the 13 counts of bank fraud, Rosen was charged with one count of conspiracy to commit bank fraud.

The case was part of Operation Stolen Dreams, the federal government’s largest-ever mortgage fraud takedown effort. Others involved in the case, including Phillips, the straw buyers and those who recruited them to falsify their information, have pleaded guilty in the scheme.

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.