Is Big Brother spelled GPS?

That's the question Adam Liptak asks in his weekend NY Times piece on the upcoming Supreme Court case:

In a series of rulings on the use of satellites and cellphones to track criminal suspects, judges around the country have been citing George Orwell’s “1984” to sound an alarm. They say the Fourth Amendment’s promise of protection from government invasion of privacy is in danger of being replaced by the futuristic surveillance state Orwell described.

In April, Judge Diane P. Wood of the federal appeals court in Chicago wrote that surveillance using global positioning system devices would “make the system that George Orwell depicted in his famous novel, ‘1984,’ seem clumsy.” In a similar case last year, Chief Judge Alex Kozinski of the federal appeals court in San Francisco wrote that “1984 may have come a bit later than predicted, but it’s here at last.”

Last month, Judge Nicholas G. Garaufis of the Federal District Court in Brooklyn turned down a government request for 113 days of location data from cellphone towers, citing “Orwellian intrusion” and saying the courts must “begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine.”

The Supreme Court is about to do just that. In November, it will hear arguments in United States v. Jones, No. 10-1259, the most important Fourth Amendment case in a decade. The justices will address a question that has divided the lower courts: Do the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time?

Their answer will bring Fourth Amendment law into the digital age, addressing how its 18th-century prohibition of “unreasonable searches and seizures” applies to a world in which people’s movements are continuously recorded by devices in their cars, pockets and purses, by toll plazas and by transit systems.

The Jones case will address not only whether the placement of a space-age tracking device on the outside of a vehicle without a warrant qualifies as a search, but also whether the intensive monitoring it allows is different in kind from conventional surveillance by police officers who stake out suspects and tail their cars.

There's also some interesting stuff in the DBR today, like Brian's op-ed (which I can't comment on since I'm still litigating the case), and Pacenti's article about the local jails.

News and Notes

1. Lots of people (91 in total and 45 in Miami!) charged with Medicare Fraud today.

2. Psychics get bond. But they knew that already.

3. Check out this footnote at the end of the opinion in United States v. Smith, which held that an appellate waiver was enforceable: After this opinion was written, the government filed a motion to withdraw its previously filed brief, which had argued that the appeal waiver applies, to vacate the sentence, and to remand for resentencing under the decision in United States v. Rojas, 645 F.3d 1234 (11th Cir. 2011). The motion admits that the sentencing appeal waiver does apply but states that the government has now “determined that it is appropriate under the circumstances to forego reliance upon the appeal waiver provision in this case.” OK, now what?

UPDATE -- I missed the continuation of the footnote on the next page:

The primary circumstance cited in the government’s motion is that Attorney General Eric Holder has changed the Department of Justice’s policy on whether the Fair Sentencing Act applies to cases in which the defendant was sentenced after enactment of that legislation. There has not, however, been any change in the law concerning sentence appeal waivers, and it is on the basis of the waiver that we are deciding this case. Sentence appeal waivers serve interests of the judiciary as well as interests of the government and defendants. See United States v. Bascomb, 451 F.3d 1292, 1296–97 (11th Cir. 2006) (interests of the government and defendants); cf. Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627 (1977) (recognizing
that plea bargains benefit all concerned, including the judiciary). And once an appeal arrives in this Court it is our responsibility to see that it is decided correctly under the law. For these reasons, the government’s motion is denied.

Wow.

Wesley Snipes loses bid for new trial in the 11th Circuit

Here's the unpublished opinion affirming the denial of his motion for new trial.

From the AP:

The 11th U.S. Circuit Court of Appeals rejected the appeal by Snipes, who was convicted in 2008 on three misdemeanor counts of willful failure to file income tax returns.

His defense lawyers contended they received emails from former jurors reporting misconduct among other members of the panel. One of the former jurors said in the email that three other jurors acknowledged they had determined Snipes was guilty before the trial began.

A federal court rejected the request for a new trial and noted that there were reasons to question the veracity of the allegations made in the emails. The 11th Circuit upheld the ruling on Tuesday, finding that there wasn't "strong, substantial and incontrovertible evidence" that would warrant a new trial.

Miami Herald profiles Judge Jordan

Jay Weaver does a nice job here. From the article:

As an undergraduate at UM, Jordan was a walk-on with the Hurricanes baseball team. He would joke to friends that he played “left bench.”

Relatives, friends and peers always described “Bert” Jordan as “scary smart,” a whiz kid.

He excelled as a political science major before finishing second in his UM law-school class. He earned a spot on the Law Review. One of his articles was on the use in legal filings of sports metaphors, entitled “Imagery, Humor and Judicial Opinion,’’ which “simply celebrates the prankster and poet in all of us.”

In 1987, Jordan applied to all nine U.S. Supreme Court justices for a clerkship. O’Connor granted him an interview. She picked him and three others from a field of 10.

But before he went to Washington, Jordan spent a year working for 11th Circuit Judge Thomas Clark in Atlanta.

Back then, he told The Miami Herald that he was following an “unwritten rule” that says clerking for a federal judge is a prerequisite for a Supreme Court clerkship. Quipped Jordan: It applies to “anyone who’s not at Harvard or Yale.”

And the Palm Beach Post rightfully calls for Obama to get this done quickly:

There is no need for such delay over Judge Jordan, an American success story. He came to the U.S. from Cuba as a 6-year-old with his parents. After receiving his bachelor's and law degrees with honors from the University of Miami, he clerked for former Supreme Court Justice Sandra Day O'Connor, worked in private practice and served as a federal prosecutor before becoming a judge at only 38.

Normally, when senators from both states agree on a judicial nominee, he or she is confirmed without controversy. Sen. Marco Rubio, a Republican, would be the one to raise any opposition. According to his press aide, though, Sen. Rubio "has heard nothing but positive things about Judge Jordan, and he looks forward to presenting his nomination before the Judiciary Committee for its consideration." The Senate confirmed Judge Jordan 93-1 in 1999. The result now should be about the same.

Friday notes

Sorry for the slow blogging this week. A couple quick hits before the nice long weekend:

1. No kindergarten party for lawyers after all. (WSJ)

2. What's going to happen with Clemens? We'll find out soon. (Boston.com)

3. Pleading and buyer's remorse (NYT)

4. Fascinating comments by jurors in the MS-13 gang case (Law.com)

5. DC Circuit divided on 3 evidence cases (BLT)

That's all I got today. Hope you have a nice weekend.

Awesomeness

The Daily Show - The Forecloser
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New magistrate short list in WPB

The cut has been made and there are 10 finalists for two spots. It's very hush-hush though, and I only have a partial list. Come on tipsters, give me more. Here's what I have so far:

Carolyn Bell (AUSA)
Dave Brannon (AFPD)
Kim Dunn-Abel (AUSA)
Bill Matthewman
Jeremy Slusher
Bob Waters (AUSA)
Wendy Zoberman

There are a bunch of magistrate positions that are open in the District, so the Chief entered an intersting order precluding applicants from lobbying District Judges. Good move.

Fantasy Football anyone?

Having won last year, I'm retiring. But Miguel de la O needs a title and the league needs one more team before tomorrow night. First come, first serve. Here's the info for joining

League ID#: 552661
League Name: SDFLA Fantasy Football
Password: markusquit
Custom League URL: http://football.fantasysports.yahoo.com/league/sdfla

Draft Type: Live Standard Draft
Draft Time: Wed Aug 31 10:30pm EDT