For my fellow nerds: http://m.wired.com/wiredscience/2011/05/may-the-4th-be-with-you-could-han-shoot-second/
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Wednesday, May 04, 2011
Happy Star Wars day
May the 4th be with you.
For my fellow nerds: http://m.wired.com/wiredscience/2011/05/may-the-4th-be-with-you-could-han-shoot-second/
For my fellow nerds: http://m.wired.com/wiredscience/2011/05/may-the-4th-be-with-you-could-han-shoot-second/
So you want to be a Magistrate?
There are two openings in West Palm Beach. From a blast email sent from the Court yesterday:
Subject: Vacancy of U.S. Magistrate Judge (Two Positions)
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
The Judicial Conference of the United States has authorized the appointment of two full-time United States Magistrate Judges for the Southern District of Florida. These appointments will succeed incumbents, who will be retiring on or about January 6, 2012 and May 27, 2012 respectively, and both positions will be located in the West Palm Beach Division. The full vacancy announcement and application can be located on the Court's website, www.flsd.uscourts.gov, with applications due no later than 5:00 p.m. on May 31, 2011. For more information, contact Steven M. Larimore, Clerk of Court, U.S. District Court, 400 North Miami Avenue, Room 8N09, Miami, FL 33128, or the Chair of the Magistrate Judge Merit Selection Panel, John Mariani, Esq., 525 Okeechobee Blvd, Suite 1100, West Palm Beach, FL 33401.
Subject: Vacancy of U.S. Magistrate Judge (Two Positions)
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
The Judicial Conference of the United States has authorized the appointment of two full-time United States Magistrate Judges for the Southern District of Florida. These appointments will succeed incumbents, who will be retiring on or about January 6, 2012 and May 27, 2012 respectively, and both positions will be located in the West Palm Beach Division. The full vacancy announcement and application can be located on the Court's website, www.flsd.uscourts.gov, with applications due no later than 5:00 p.m. on May 31, 2011. For more information, contact Steven M. Larimore, Clerk of Court, U.S. District Court, 400 North Miami Avenue, Room 8N09, Miami, FL 33128, or the Chair of the Magistrate Judge Merit Selection Panel, John Mariani, Esq., 525 Okeechobee Blvd, Suite 1100, West Palm Beach, FL 33401.
Tuesday, May 03, 2011
Justice Scalia is funny
Here's another (nerdy) example from his dissent yesterday in Montana v. Wyoming:
"The Court interprets the Yellowstone River Compact...the right to grant...Wyomans the right to increase their consumption..."*
"*The dictionary-approved term is “Wyomingite,” which is also the name of a type of lava, see Webster’s New International Dictionary 2961 (2d ed. 1957). I believe the people of Wyoming deserve better."
"The Court interprets the Yellowstone River Compact...the right to grant...Wyomans the right to increase their consumption..."*
"*The dictionary-approved term is “Wyomingite,” which is also the name of a type of lava, see Webster’s New International Dictionary 2961 (2d ed. 1957). I believe the people of Wyoming deserve better."
Monday, May 02, 2011
Op-ed on discovery practices in federal court
I wrote this opinion piece for today's Daily Business Review. Let me know your thoughts in the comments.
Commentary: When liberty is at risk, fair disclosure required
by: David Oscar Markus
Daily Business Review
May 02, 2011
In a civil case where only money and not liberty is at stake, every witness and every document must be turned over to the other side. There are no surprises.
The rules in Florida criminal courts are similar, requiring prosecutors to disclose their witnesses and evidence to the defense, and the accused is even permitted to take depositions.
But surprisingly, the federal criminal system — where one’s liberty is most at risk — does not permit depositions and requires prosecutors to make only very limited disclosures.
Prosecutors, for example, need not provide the defense with statements that their witnesses made until that witness actually takes the stand. Practitioners call the federal system “trial by ambush.”
What many people do not know is that federal prosecutors are not required to disclose exculpatory or impeachment information, unless a prosecutor determines that it is “material” to the defense.
Appellate courts have determined that evidence is considered material only if it was admissible and would have made a difference in the trial. Unfortunately, many prosecutors in their zeal to win convictions do not disclose plainly favorable information by making their own determination that it is not “material” to the defense.
That was supposed to change after the failed prosecutions of U.S. Sen. Ted Stevens, the Duke Lacrosse team, and a number of other high-profile cases around the country where prosecutors knowingly concealed powerful evidence helpful for the defense.
Judges in these cases wrote extensive orders criticizing prosecutors for not disclosing the exculpatory evidence and imposed sanctions.
There was also a call for the rules to be changed, requiring disclosure of all favorable information, not just what prosecutors deemed “material.”
Even the attorney general called for more training and issued guidelines to all federal prosecutors, instructing that they should err on the side of being open, even if that openness hurt their case.
The AG reminded prosecutors that they were tasked with doing justice, not winning. Ethical standards established by most state bar rules also require disclosure, even if the evidence is not “material.”
All of this sounded very promising, but actions speak louder than words.
Prosecutors continue to keep their files closed, telling lawyers and judges that they need not disclose basic items such as interview reports of witnesses, even when those witnesses lie under oath, because their boss’s guidelines and state ethical rules are not the law and therefore are not binding on them.
Because of these recurring problems, on April 22, 2011, in Miami, the American Bar Association’s Criminal Justice Section passed a resolution “urging” a change in the federal rules to require prosecutors to timely disclose all favorable information to the defense.
Only the Department of Justice member of the section voted against the resolution, arguing that individual prosecutors could be trusted without such a rule. Many judges, including Paul Friedman in Washington, D.C., have explained why the “trust us” argument is flawed: “Most prosecutors are neither neutral (nor should they be) nor prescient, and any such judgment necessarily is speculative on … many matters that simply are unknown and unknowable before trial begins.”
Based on these guidelines and cases, a simple — and what should have been uncontroversial — change was suggested to the federal criminal rules: prosecutors would be required to turn over all favorable information to the defense, not just “material” evidence.
Despite the ABA’s resolution, the Department of Justice just convinced the Criminal Rules Advisory Committee (the group that recommends changes to the Federal Rules of Criminal Procedure) to vote down (on a 6-5 vote) this proposed rule change.
Perhaps the Department of Justice would like to amend the plaque found in federal courtrooms that reads: “We who labor here seek the truth” with the addition, “only if we think it is material.”
Commentary: When liberty is at risk, fair disclosure required
by: David Oscar Markus
Daily Business Review
May 02, 2011
In a civil case where only money and not liberty is at stake, every witness and every document must be turned over to the other side. There are no surprises.
The rules in Florida criminal courts are similar, requiring prosecutors to disclose their witnesses and evidence to the defense, and the accused is even permitted to take depositions.
But surprisingly, the federal criminal system — where one’s liberty is most at risk — does not permit depositions and requires prosecutors to make only very limited disclosures.
Prosecutors, for example, need not provide the defense with statements that their witnesses made until that witness actually takes the stand. Practitioners call the federal system “trial by ambush.”
What many people do not know is that federal prosecutors are not required to disclose exculpatory or impeachment information, unless a prosecutor determines that it is “material” to the defense.
Appellate courts have determined that evidence is considered material only if it was admissible and would have made a difference in the trial. Unfortunately, many prosecutors in their zeal to win convictions do not disclose plainly favorable information by making their own determination that it is not “material” to the defense.
That was supposed to change after the failed prosecutions of U.S. Sen. Ted Stevens, the Duke Lacrosse team, and a number of other high-profile cases around the country where prosecutors knowingly concealed powerful evidence helpful for the defense.
Judges in these cases wrote extensive orders criticizing prosecutors for not disclosing the exculpatory evidence and imposed sanctions.
There was also a call for the rules to be changed, requiring disclosure of all favorable information, not just what prosecutors deemed “material.”
Even the attorney general called for more training and issued guidelines to all federal prosecutors, instructing that they should err on the side of being open, even if that openness hurt their case.
The AG reminded prosecutors that they were tasked with doing justice, not winning. Ethical standards established by most state bar rules also require disclosure, even if the evidence is not “material.”
All of this sounded very promising, but actions speak louder than words.
Prosecutors continue to keep their files closed, telling lawyers and judges that they need not disclose basic items such as interview reports of witnesses, even when those witnesses lie under oath, because their boss’s guidelines and state ethical rules are not the law and therefore are not binding on them.
Because of these recurring problems, on April 22, 2011, in Miami, the American Bar Association’s Criminal Justice Section passed a resolution “urging” a change in the federal rules to require prosecutors to timely disclose all favorable information to the defense.
Only the Department of Justice member of the section voted against the resolution, arguing that individual prosecutors could be trusted without such a rule. Many judges, including Paul Friedman in Washington, D.C., have explained why the “trust us” argument is flawed: “Most prosecutors are neither neutral (nor should they be) nor prescient, and any such judgment necessarily is speculative on … many matters that simply are unknown and unknowable before trial begins.”
Based on these guidelines and cases, a simple — and what should have been uncontroversial — change was suggested to the federal criminal rules: prosecutors would be required to turn over all favorable information to the defense, not just “material” evidence.
Despite the ABA’s resolution, the Department of Justice just convinced the Criminal Rules Advisory Committee (the group that recommends changes to the Federal Rules of Criminal Procedure) to vote down (on a 6-5 vote) this proposed rule change.
Perhaps the Department of Justice would like to amend the plaque found in federal courtrooms that reads: “We who labor here seek the truth” with the addition, “only if we think it is material.”
Thursday, April 28, 2011
76ers beat Heat in Game 4!!
The Ministry of Truth U.S. Attorney's Office issued this press release about the cops trial:
"JURY CONVICTS TWO FORMER POLICE OFFICERS IN MORTGAGE FRAUD PROSECUTION"
Really?! How about, after a 9-week trial, 4 of the 6 defendants were found not guilty of all counts?
Nope. The press release says: "Mortgage fraud is a virus that has spread through our community and to all levels of the mortgage industry. We will continue our efforts to combat mortgage fraud at all levels, from straw buyers to complicit lenders."
The USAO isn't supposed to care if it wins or loses. It's supposed to care about Justice. But in recent years, DOJ has really ramped up its spin to the press. I understand wanting to get your side of the story out there, but this seems a bit over the top. No?
"JURY CONVICTS TWO FORMER POLICE OFFICERS IN MORTGAGE FRAUD PROSECUTION"
Really?! How about, after a 9-week trial, 4 of the 6 defendants were found not guilty of all counts?
Nope. The press release says: "Mortgage fraud is a virus that has spread through our community and to all levels of the mortgage industry. We will continue our efforts to combat mortgage fraud at all levels, from straw buyers to complicit lenders."
The USAO isn't supposed to care if it wins or loses. It's supposed to care about Justice. But in recent years, DOJ has really ramped up its spin to the press. I understand wanting to get your side of the story out there, but this seems a bit over the top. No?
Breaking -- Verdict in cops mortgage fraud case
I am hearing from a reliable source that 4 of the police officers (including the FBI agent) were acquitted of all counts. One was found guilty of all counts, and one defendant had a mixed verdict. More to follow as it comes in.
Jon Burstein from the Sun-Sentinel sums up what happened:
A Fort Lauderdale federal jury acquitted three police officers and a FBI agent of all counts, while convicting a Plantation police officer and a former police officer of fraud charges.
The verdict came after a two-month trial in which the accused were charged with lying about their incomes and places of residence so they could obtain mortgages that otherwise would have been out of reach on their salaries.
Jurors acquitted FBI agent Robert DePriest, Plantation police officers Casey Mittauer and Daryl Radziwon and Lauderhill police officer Joseph LaGrasta.
Convicted were Plantation police officer Joseph DeRosa and former Plantation police officer John Velez.
Jon Burstein from the Sun-Sentinel sums up what happened:
A Fort Lauderdale federal jury acquitted three police officers and a FBI agent of all counts, while convicting a Plantation police officer and a former police officer of fraud charges.
The verdict came after a two-month trial in which the accused were charged with lying about their incomes and places of residence so they could obtain mortgages that otherwise would have been out of reach on their salaries.
Jurors acquitted FBI agent Robert DePriest, Plantation police officers Casey Mittauer and Daryl Radziwon and Lauderhill police officer Joseph LaGrasta.
Convicted were Plantation police officer Joseph DeRosa and former Plantation police officer John Velez.
Agent under investigation for accepting bribes from CI
Jay Weaver has the details here:
Authorities are investigating a Miami federal agent suspected of accepting more than $100,000 in bribes from a confidential government informant, according to several sources familiar with the probe.
The informant allegedly paid the bribes to Immigration and Customs Enforcement agent Juan Martinez in exchange for his providing temporary parole allowing Colombians and others into the United States who were not entitled to the benefit, the sources said.
Martinez, who has been suspended without pay, is at the center of the federal investigation into his confidential informant’s alleged bribery payments, the sources said. Martinez, a former Miami police officer, has investigated Colombian cartels, paramilitary groups and other drug traffickers.
His attorney, Marty Raskin, declined to comment.
Authorities are investigating a Miami federal agent suspected of accepting more than $100,000 in bribes from a confidential government informant, according to several sources familiar with the probe.
The informant allegedly paid the bribes to Immigration and Customs Enforcement agent Juan Martinez in exchange for his providing temporary parole allowing Colombians and others into the United States who were not entitled to the benefit, the sources said.
Martinez, who has been suspended without pay, is at the center of the federal investigation into his confidential informant’s alleged bribery payments, the sources said. Martinez, a former Miami police officer, has investigated Colombian cartels, paramilitary groups and other drug traffickers.
His attorney, Marty Raskin, declined to comment.
Wednesday, April 27, 2011
Not guilty verdicts in huge security fraud case before Judge Jordan
The case was United States v. Michael Lauer and Martin Garvey. It was a two month trial in a very large securities case that has been in litigation (either before the SEC, civil court, criminal court) for about a decade. Most of the other defendants pled guilty and testified in this trial.
This has gotta sting for the U.S. Attorney's office, who just had a bunch of lawyers leave the economic crimes division...
Congrats to my good friends Michael Caruso at the Federal Public Defender's office who was the lead lawyer for Lauer, and Hector Flores who represented Garvey. Caruso tried the case with D'Arsey Houlihan and Vanessa Chen. This is a great win for them. Congrats.
2:45 pm UPDATED -- Curt Anderson has a story up already for the AP:
The former chief of a multimillion-dollar hedge fund accused of fleecing investors out of $200 million was acquitted Wednesday by a federal jury of securities fraud and related charges.
Michael Lauer, who ran the Lancer Management Group and affiliated companies in New York and elsewhere, raised his clenched fists in the air when the verdict was read and tightly hugged his attorney, assistant public defender Michael Caruso. Lauer had faced up to 25 years in prison and hefty fines if convicted.
"There was nothing illegal here," Lauer said in an interview after the verdict. "The outcome, I believe, was inevitable."
***
One of the 12 jurors, 61-year-old Charles E. Floyd of Miami, said prosecutors simply failed to prove criminal wrongdoing in the complicated financial case.
"There just wasn't enough proof. That's the way I saw it," Floyd said. "He was guilty of surrounding himself with a bunch of jerks."
This has gotta sting for the U.S. Attorney's office, who just had a bunch of lawyers leave the economic crimes division...
Congrats to my good friends Michael Caruso at the Federal Public Defender's office who was the lead lawyer for Lauer, and Hector Flores who represented Garvey. Caruso tried the case with D'Arsey Houlihan and Vanessa Chen. This is a great win for them. Congrats.
2:45 pm UPDATED -- Curt Anderson has a story up already for the AP:
The former chief of a multimillion-dollar hedge fund accused of fleecing investors out of $200 million was acquitted Wednesday by a federal jury of securities fraud and related charges.
Michael Lauer, who ran the Lancer Management Group and affiliated companies in New York and elsewhere, raised his clenched fists in the air when the verdict was read and tightly hugged his attorney, assistant public defender Michael Caruso. Lauer had faced up to 25 years in prison and hefty fines if convicted.
"There was nothing illegal here," Lauer said in an interview after the verdict. "The outcome, I believe, was inevitable."
***
One of the 12 jurors, 61-year-old Charles E. Floyd of Miami, said prosecutors simply failed to prove criminal wrongdoing in the complicated financial case.
"There just wasn't enough proof. That's the way I saw it," Floyd said. "He was guilty of surrounding himself with a bunch of jerks."
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