Federalist Society Panel

By Guest Blogger, Dore Louis

Last night the Federalist Society hosted an event at the Banker's Club entitled "War Zone or Crime Scene: Walking the Tightrope of Justice Ten Years After September 11th."

The panel included every person who held the position of US Attorney since 9/11 - Guy Lewis, Marcos Jimenez, Alex Acosta, Jeff Sloman, Wilfredo Ferrer, and acting Federal Public Defender Michael Caruso, who proved a bit elusive to the camera. Neal Sonnet moderated.


The night included everything one might expect a Federalist Society event to have: a well-stocked bar and plenty of time to mingle; a book co-authored by John Yoo, gifted to the panel members; a regional CIA recruiter mingling with the guests (no joke); Marshals to protect the dignitaries; and, the obligatory "Osama"...oops..."I sometimes say "Obama"" joke by a panelist.

All in all, it looked as if it was going to be a 'hanging jury' for Michael. As anybody who knows Michael would expect, Michael shined.

The discussion was very interesting and quite non-partisan. Essentially, it was a walk trough the history of the US Attorney's Office in the Southern District of Florida, from 9/11 onwards. Michael did a great job adding color to the other side of the equation - bringing home the impact that ramped up prosecutions for offenses such as routine immigration violations or the effects prolonged isolated confinement have on people.

Guy Lewis led off. He talked about how he and other members of the office sat watching the terrorist attacks unfold on 9/11 and the eerie "radio silence" that prevailed from DOJ during the attacks. 16 of the 19 hijackers had either lived in the Southern District or otherwise had connections here, and they were simply not on the radar. The day after 9/11 GL convened a meeting of federal and local law enforcement and began to redirect the priority of the office from prosecution of offenses such as violent crime, cyber crime and money laundering to the prosecution and prevention of terrorism.

Marcos Jimenez took over after GL left to D.C., and one of his first impressions was how much the office changed from when he had been a AUSA. MJ really gave the audience a good feel for how much pressure a US Attorney feels while in the office, including the fear that his efforts would not be enough to prevent an attack from happening. MJ specifically mentioned port security and the nightmare scenario that something would happen on a cruse ship, and bunch of people would get killed and he would have "egg on his face."

Other than Michael (who I admit to being partisan to and who will always have my vote), Dean Alex Acosta was the most impressive speaker of the night. I did not realize what an intellectual the guy is. AA gave a terrific overview of military tribunals in the United States, going back to Nazi spies in the beginning of WWII. Whether you agree or disagree with the policies the government pursued post-9/11, it is very apparent that AA had thoroughly thought through the legal basis for the actions taken, and would be able to provide justification for each and every one. Frankly, if AA presents like this always, I fully expect to be calling him Judge in the future - if that is what he is after.

Jeff Sloman, who had been involved in terrorism prosecutions and investigations before 9/11, spoke to a concern that was raised by MJ. Radicalized people who are willing to die for a cause. Such concerns led to cases such as the Liberty City 7 case, that were targeted at neutralizing threats before they became capable of carrying out a terrorist act.

Willy Ferrer was obviously more constrained in what he could say because he is the current US Attorney - he was able to provide statistics and a broad overview of efforts that are ongoing to prevent terrorist acts. But what WF said that struck me most, was the mention of his law school class mate - Geoffrey Cloud, who went to work in the World Trade Center on 9/11 and was killed in the attacks.

I am certain that people like WF, who lost friends during 9/11 will not forget the destruction of that day. Whether you agree or disagree with the policies that our government pursues, folks like those who hold the office of US Attorney in the Southern District of Florida are tasked with keeping us all safe. I want them to remember that day, and I want that memory to drive them to do the best job they can.

Whether ultra left or ultra right, we all hate terrorism and want our government to keep us safe. That is the point that Michael was really able to drive home - yes, we need to be kept safe, but at the same time, we need to protect our Constitutional liberties and hold true to the values that have made us this great Nation.

How far can law enforcement can go to protect us? God forbid something terrible happens again - law enforcement did not go far enough. In the name of terrorism prevention, continue prosecuting immigrants who try to sneak into America with the sole intention of working hard and earning a living - too far.

It is a very difficult question to address, and the reason that we should all encourage participation in more events like the Federalist Society panel discussion. That organization and its leadership deserve a lot of credit for gathering the panelists together to attempt to confront the issues.

The threat is real, it is deadly, and we do not want the people protecting us to forget it.

- Bette and Peter Cloud, the parents of terrorist attack victim Geoffrey Cloud of Sudbury, speak about their son to people gathered for a 9/11 remembrance at the September 11th Memorial Garden at Heritage Park in Sudbury Sunday.

Kindergarten cop

District Judge Sam Sparks recently got the attention of blogs and email lists with his "Kindergarten Order."

Edith Jones, the Chief Judge of the 5th Circuit, wasn't happy with the order and sent Judge Sparks this email:

Dear Sam, It has not escaped my attention, or that of my colleagues or, I am told, nationally known blog sites that you have issued several ‘cute’ orders in the past few weeks. The order attached below is the most recent. Frankly, this kind of rhetoric is not funny. In fact, it is so caustic, demeaning, and gratuitous that it casts more disrespect on the judiciary than on the now-besmirched reputation of the counsel. It suggests either that the judge is simply indulging himself at the expense of counsel or that he is fighting with counsel in what, as Judge Gee used to say, is surely not a fair contest. It suggests bias against counsel. No doubt, none of us has been consistently above reproach in our professional communications with counsel. We are all prone to human error. But no judge who writes an order should allow such rhetoric to overcome common sense. Ultimately, this kind of excess, as I noted, reflects badly on all of us. I urge you to think before you write. Sincerely, Edith Jones.

Ouch. According to the Texas Lawyer, Jones wasn't happy her email got out:

Jones declines comment on the substance of the e-mail but says she was “saddened” that it had been released to others, including Texas Lawyer. “It’s an internal matter,” Jones says. “And I’m saddened that somebody breached the intended limited scope of the intended distribution.”

What do you all think of Sparks' initial order and Jones' email? I guess all of this could segue into the discussion of the new Florida Bar rule on civility, but I'm tired after watching the Dolphins last night so I can't think of a witty way to do it.

Federal Courthouse in WPB evacuated this morning (UPDATED -- Courthouse reopened)

From the PBP:

A federal courthouse in Florida has been evacuated while authorities investigate a suspicious vehicle parked nearby.

West Palm Beach police spokesman Chase Scott says a police dog alerted to the possibility of explosives inside the rental van after 8 a.m. Monday. It was being checked because of unspecified derogatory comments written on the outside of the van.

A post office and a state health department building were also evacuated.

A police bomb squad and Homeland Security Department officials were among those responding to the situation.

Authorities have been on heightened alert nationwide for potential terrorist activity coinciding with the 10th anniversary of the Sept. 11 attacks.

UPDATE -- OK, back to work. The courthouse has been reopened. Here's the coverage:

West Palm Beach Police have determined that a "suspicious van" parked across from the federal courthouse downtown is not a threat and begun the process of clearing the scene, according to police spokesman Chase Scott.

He said hundreds of workers are being let back into the federal courthouse, Florida Health Department, U.S. Post Office and other surrounding buildings.

It's still unclear why a police bomb-sniffing dog alerted on the rental box-style moving van this morning, Scott said. It could have been some previous cargo in the unattended vehicle, which had been parked "for at least a day."

But the van's side panel attracted attention with the block-lettered message: "Google Edgar Bushey. Frank Baker PBSO lied and did no investigation" - a message that Scott characterized as "anti-law enforcement."

"Given the date, the location, the fact that it was a rental vehicle, has (anti-law enforcement) graffiti all over it," Scott added, "We were taking an abundance of precautions."

The van is being impounded and is now the subject of a West Palm Beach police investigation, he said. It is unclear who owns the van. A Google search of the name, "Edgar Bushey," takes one to a website and seemingly official documents regarding a 1995 sexual assault investigation.

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.