Judge Zloch sentences Alan Mendelsohn to 4 years (UPDATED)

The prosecutors had asked for 2 years and Mendelsohn's lawyers asked for probation.

From the Herald:

“Most notably, the corruption in this case strikes at the heart of the Florida Legislature,’’ Zloch said. “Dr. Mendelsohn actually facilitated a corrupt democratic process in the Florida Legislature.’’
***
Zloch expressed disgust over the “pay to play" world of Tallahassee politics that Mendelsohn described at his plea hearing in December.

Mendelsohn, initially indicted in September 2009 on 32 fraud charges and later on five tax offenses, had been facing trial in January.

His plea was the ending to a high-profile influence-peddling investigation that stretched from South Florida to Tallahassee. It started when the self-made power broker bragged about his purported connections to then-Gov. Charlie Crist and his inner circle, saying he could get them to kill legislation and investigations that would hurt a Fort Lauderdale viatical insurance business called Mutual Benefits Corp.

UPDATE -- I've mentioned previously that I don't think judges should be permitted to sentence someone above the plea agreement's terms (see, e.g., here, here and here). If the parties in an adversary system agreed that the defendant in this case deserved somewhere between probation and 2 years, a judge should respect that contract or allow the parties to withdraw from it.

It doesn't appear that DOJ really fought for the terms of the agreement. From Curt Anderson's article:

"He isn't accepting responsibility when he says, 'Everybody was doing it,'" Butler said. "That's just not going to cut it."

More from Zloch:

"It is totally inappropriate for the court to give what would amount to a slap on the wrist," Zloch said. "The corruption of public officials, those who took an oath to uphold the law, leads to contempt for the law."
***

Mendelsohn himself apologized profusely, but also said he was proud of health-related state legislation he said he pushed for and noted that since his 2009 indictment "words just can't describe the devastation" suffered by his family and business.

"Who was responsible for this devastation?" Zloch asked.

"I was," Mendelsohn replied. "I am really, really, really, truly sorry."

"Your honor, on behalf of Zvi Goffer, we'll rest."

That was Bill Barzee today in the big insider trading case in the SDNY immediately after the government rested. From Reuters:

A former Galleon Group hedge fund trader did not put on a defense at his insider trading trial, and the judge said the jury will hear closing arguments in the case on Wednesday.

A defense attorney for 34-year-old Zvi Goffer, who once worked at Raj Rajaratnam's Galleon Group and two other trading firms, told the Manhattan federal court judge on Tuesday he would not present evidence or call witnesses to defend his client.

***

The trial is in its third week. It started days after a jury in the same courthouse convicted Rajaratnam of 14 counts of conspiracy and securities fraud in the biggest Wall Street insider trading trial in years.

Go Heat and Go Bill Barzee!

Welcome to Miami

The shooting on South Beach this weekend was caught on tape:

Four Rothstein associates charged

They are: Howard Kusnick (a lawyer), Stephen Caputi (IT department), William Corte (IT department), and Curtis Renie (person who posed as a plaintiff in fake cases). They are all charged by information, so it appears that they have cut deals and are cooperating.

They drew Judges Marra (Kusnick), Dimitroleas (the two IT guys), and Zloch (Renie).

From the USAO press release:

The Information against Howard Kusnick alleges that, while an attorney at RRA, Kusnick engaged in a scheme to defraud two clients of RRA by authoring a letter purporting to settle pending litigation in the clients’ favor. In fact, however, no such litigation had been instituted and no such settlement existed. Rather, the purpose of the letter was to lull the clients into believing that RRA was pursuing litigation on their behalf when, in fact, the clients’ funds had been used to pay off earlier investors and to further the investment fraud scheme.

The Information against Stephen Caputi alleges that Caputi at times acted as both a purported banker and plaintiff during meetings with potential investors. For example, the Information alleges that Caputi, posing as an official from TD Bank, provided investors with fraudulent bank statements that reflected purported balances of trust accounts at TD Bank. In this way, Caputi lulled the investors into believing that the account balances were sufficient to fund their investments. On another occasion, Caputi posed as a plaintiff during a meeting with potential investors who had requested to meet with plaintiffs. Caputi pretended to be a plaintiff who had purportedly executed a $10,000,000 settlement agreement, thus raising potential investors’ confidence in the deal.

According to the Information against Curtis Renie and William Corte, these defendants worked at RRA’s IT Department as chief of information technology and as a document management specialist, respectively. Renie and Corte created a fictitious web page copying the legitimate web page of TD Bank. At Rothstein’s direction, the defendants posted false account balances on the fictitious web page to make it appear as if the accounts were well-funded. On one occasion, the defendants modified the phony TD Bank web site to reflect that RRA held between $300 million and $1.1 billion on deposit at TD Bank. In fact, however, no such funds were in the accounts. The false account balances were shown to investors to induce them to invest into the fraudulent investment scheme.

Finale week

American Idol, Dancing with the Stars, Oprah...

Oh, you came here for law stuff. Fine:

1. Judge Dubina's daughter doesn't like the health care law. Here is Martha Dubina Roby's Facebook page. She is a freshman congresswoman from Alabama. Oral argument is in Atlanta on June 8, and the panel is Judges Dubina, Marcus and Hull.








2. Goodwin Liu has given up his bid to be on the 9th Circuit. The Senate should be ashamed.

3. Alan Mendelsohn wants a short sentence.

4. The 11th Circuit debates what "he" means in a prosecutor's closing argument. From Judge Wilson's dissent:

Attempting to bolster the credibility of Mark Duke’s cooperating codefendant, the prosecutor argued the following to the jury:

[Duke’s co-defendant] told the truth, ladies and gentlemen,
and here is how we know it, there’s a witness that you
heard from but he didn’t come in here and talk to you from
this witness stand. After he shot, stabbed, and cut the throat
of Randy Duke, he took Randy Duke’s blood with him
throughout that house.

In doing so, the prosecutor impermissibly commented on Duke’s decision not to testify, in violation of his Fifth Amendment right against self-incrimination. The majority is willing to accept the State’s explanation that the “he” the prosecutor was referring to was not really Mark Duke but was Randy Duke’s “blood.” It is willing to accept that the “blood” is a male “witness” that the jury “heard from.” It is willing to accept that the prosecutor used “2 he” in one sentence to refer to blood and “he” in the next sentence to refer to Mark Duke, without ever indicating any possible change of subject. This makes no sense because it would mean that Randy Duke’s blood “shot, stabbed, and cut the throat of Randy Duke” and that Randy Duke’s blood took itself “throughout the house.” The majority accepts this story even though the State could not consistently or coherently articulate such an argument in the moments after the comment was made, and despite the fact that the prosecutor who spoke it did not dispute that he was referring to Duke. I respectfully part company with my colleagues in accepting this logic.

I do not see how the jury could have possibly interpreted this statement as anything but a comment on Mark Duke’s failure to testify. Accordingly, I dissent.

News & Notes

1. Jeff Weiner has a new book. Check out this very useful resource -- Federal Criminal Rules & Codes plus. It's got everything a federal criminal lawyers needs in one handy place.

2. John Edwards may get charged. Amazing to me that we are wasting our scarce prosecutorial resources going after Edwards for being a scumbag.

3. Jared Loughner is incompetent. The arrest photo made that pretty clear, no?

4. How Appealing has this info about the panel for Obamacare:

An anonymous source reports that the three-judge panel will consist of Chief Judge Joel F. Dubina and Circuit Judges Frank M. Hull and Stanley Marcus.
Judges Hull and Marcus were both appointed to the Eleventh Circuit by President Clinton. Chief Judge Dubina was appointed to the Eleventh Circuit by the first President Bush. And don't let the fact that all three judges have seemingly male first names fool you, because Judge Hull is female.

Judge Reinhardt quotes 12 Angry Men...

...in this case. HT: MC. Good stuff:

Scene One

Juror #8: I just want to talk.

Juror #7: Well, what’s there to talk about? Eleven
men in here think he’s guilty. No one had
to think twice about it except you.

Juror #10: I want to ask you something: do you
believe his story?

Juror #8: I don’t know whether I believe it or not
— maybe I don’t.

Juror #7: So how come you vote not guilty?

Juror #8: Well, there were eleven votes for guilty.
It’s not easy to raise my hand and send
a boy off to die without talking about it
first. . . . We’re talking about somebody’s
life here. We can’t decide in five
minutes. Supposin’ we’re wrong.

Scene Two

Juror #6: I said . . . this is a very important case
and we should be very convinced that if
the defendant is found guilty that it is
beyond a reasonable doubt. . . .

Foreman: We have spent some time now trying to
understand the reasonable basis for his
doubt, and I personally did not yet
understand it . . . . I would say that twothirds
of the jurors have tried to persuade
— have actively tried to persuade . . .
him that his current view is incorrect.
. . .

Juror #4: Well, I guess he believes from the evidence
that he’s seen that there hasn’t
been sufficient proof. . . .

Juror #5: I think the question may have been
raised: “Do you have a political agenda?”
I think [it] might have been in the
heat of the argument, because it does get
heated back and forth from a bunch of
different people. It may have been said.
. . .

Juror #9: Well, he said this is a serious thing, and
I don’t really feel that there is enough
cause for — or something to that effect.
. . . What he said was, “I wouldn’t want
to take anyone’s freedom away, unless,”
you know, “I was sure that certain things
took place.” . . . .

The first passage above is dialogue from the classic Academy Award-winning 1957 film, Twelve Angry Men, in which Henry Fonda plays a holdout juror who, over two tense hours, convinces his eleven peers that the defendant in a murder trial
should be acquitted. The second excerpt comes from the transcript of proceedings during the petitioner’s murder trial, in which each juror was examined and cross-examined, seriatim and mid-deliberation, after it was reported that one juror was
taking a different view from the others. In the end, the trial court dismissed that juror on the ground that he was “biased” against the prosecution. With an alternate juror in place, the jury returned a guilty verdict.

Twelve Angry Men made for great drama because it violated the sanctity of the jury’s secret deliberations by allowing the audience into the jury room. It was, of course, a work of fiction. We are presented here with a similar intrusion into heated deliberations involving a holdout juror, except that this one took place in open court, and it resulted in a woman being convicted and sentenced to life imprisonment after the holdout was dismissed. Under the precedent that existed when petitioner’s conviction became final (and exists today as well), the trial court’s actions violated the petitioner’s Sixth Amendment rights, as incorporated with respect to the states under the Fourteenth Amendment. We therefore conclude that petitioner is in custody in violation of the Constitution, reverse the judgment of the district court, and remand with instructions to grant the writ.

Justice Kennedy uses pictures in opinion...

... to show the overcrowding in California jails. There's one of them to the left. Yikes, that looks just awful.

Doug Berman asks whether visual aids are appropriate in opinions:

Because it has long been known that a picture is worth a thousand words, I certainly think it appropriate and useful for courts to consider adding visual aids to their rulings. And yet, I also recognize that a move to using more visual images in judicial opinions could open up a very interesting can of pictorial worms. In this Plata case and in some other settings, the visual aids added to opinion have usually been made part of the case's record by one of the parties. But I wonder if it would it be appropriate for an opinion to reprint a dramatic graphic or a special pictorial submitted into the record by the parties. Further still, might some justices or judges even consider creating their own special graphics or even a video to highlight and punctuate the pictures they are trying to create with their words?

Especially because I am a terrible artist, I hope graphic skills do not soon become essential to being an effective litigator. And yet, in this great new world full or new media, I do not think it is crazy to believe (and fear?) that visual images may begin playing a larger role in judicial decision-making.

I don't think there is anything to fear. Pictures and evidence from lower courts should be made part of opinions. It helps the reader and the public to see what is at issue. I like it.