Oops.

I actually feel bad for the guy.

Everything relates back to Miami

Even the Herman Cain accuser... From the Miami Herald blog:

The name of the second woman to say publicly that she was harassed by GOP presidential contender Herman Cain may ring bells with Miami Herald readers. Karen Kraushaar was a spokeswoman for the then-Immigration and Naturalization Service during the Elian Gonzalez custody battle in late 1999 and early 2000.
Kraushaar was one of the two woman who spoke to Politico for the Oct. 30 story detailing complaints by female employees who worked for Cain at the National Restaurant Association. She and another employee "had complained about Cain’s behavior to colleagues and senior officials at the NRA, and both women left the trade group with a cash settlement," Politico reported. Kraushaar's settlement was about $45,000, Politico reported.

According to several published reports, Kraushaar, 55, heads up communications for a bureau within the IRS. Although many news outlets were aware of her identity, they did not disclose it until the iPad-only publication The Daily revealed it Tuesday. Kraushaar told both Politico and the Washington Post that she would be willing to join together for a press conference with the other three women accusing Cain of harassment. Only one of the other women has so far come forward publicly.

"I am interested in a joint press conference for all the women where we would all be together with our attorneys and all of these allegations could be reviewed as a collective body of evidence,” Kraushaar told The Washington Post Tuesday

In other news, the SCOTUS Blog folks seem to think that after hearing oral argument, the Supremes will say that you need a warrant before GPS tracking. But it doesn't look like the defense lawyer did a great job (via Forbes):

When Jones’s lawyer came up to argue, it was a little like watching 9 cats play with an injured mouse that they felt pity for. A criminal defense attorney who has never argued before the Supreme Court before, Stephen Leckar focused solely on the unreasonableness of the police putting a tracking device on his client’s property without a warrant and refused to indulge the Supreme Court’s questions about the pervasiveness of the monitoring itself. When one justice asked whether this would have been a reasonable act by police if they put the tracker on the license plate of the car (which is owned by the State) rather than the underbelly of the Jeep, Leckar actually said yes. Justice Scalia jumped in to help him out, saying that a driver gives the government the right to put a license plate on a car, not a tracking device on their car.

Justice Kennedy asked whether it would be acceptable if the DC police had tracked Jones for a month with a team of agents following him rather than doing it with a tracking device. “We’re not asking for the police to be less effective,” he replied. “But GPS trackers greatly expand what they can do.”

Yikes. Apparently the advocacy in the High Court this week hasn't been great. Here's SCOTUSBlog on a prosecutor's attempt:

There may be many ways for a lawyer to realize that an argument before the Supreme Court is falling flat, but none can top this: a Justice asking if the counsel had ever considered simply forfeiting the case. That is what happened on Tuesday to Donna R. Andrieu, an assistant district attorney in New Orleans, as her argument lay all about her, in shambles. It is a heavy burden for a lawyer from that oft-criticized office to mount any defense of its prosecutions, but Andrieu repeatedly found ways to botch virtually every point as she argued Smith v. Cain (docket 10-8145).

***

The aggressive exchanges were getting to Andrieu, and the phrase “I’m sorry” began appearing regularly in her answers, as she suggested, now and then, that she had misunderstood the questions. As her argument was winding down, Justice Elena Kagan leaned forward and asked: “Ms. Andrieu, did your office ever consider just confessing error in this case?” Stunned, the prosecutor said: “I’m sorry?”
Kagan repeated: “Did your office ever consider just confessing error in this case? You’ve had a bunch of time to think about it. Do you know? We took cert a while ago. I’m just wondering whether you’ve ever considered confessing error.” The prosecutor answered: “Your Honor, we believe that we have an argument that these statements of Larry Boatner are not material.”

It only got worse for Andrieu. Justice Antonin Scalia suggested that the prosecutor “stop fighting as to whether it should be turned over. Of course it should have been turned over…Why don’t you give that up?” The prosecutor again tried, astonishingly, to make one more effort to rehabilitate witness Boatner’s credibility.

At that point, it seemed that nothing more could embarrass the New Orleans prosecutor. But Justice Sotomayor then brought up the “serious accusations against the practices of your office, not yours in particular but prior ones. It is disconcerting to me that when I asked you the question directly should this material have been turned over, you gave an absolute no.” Andrieu weakly suggested that she had misunderstood the question.

But Sotomayor pressed on: “It is somewhat disconcerting that your office is still answering equivocally on a basic obligation as one that requires you to have turned these materials over, whether it caused harm or not.” Andrieu still did not seem to understand. She said that “today we turn all of this over….It should have been turned over. I guess what I was addressing or attempting to address was the materiality prong of Brady.”

Monday morning notes

1. The Supreme Court will hear the GPS case tomorrow. Really interesting issues. SCOTUS Blog has all the news and analysis.

2. Speaking of SCOTUS Blog, there is an excellent interview of Justice Stevens posted there. His former clerk Jeffrey Fisher asks some intriguing questions:

Question: Turning to the different chapters of the book, one of the things that leaps out to me are the different internal procedures the Court has used over the years. For example, you mention that when you were a law clerk under Chief Justice Vinson, the Court’s conferences [at which the Justices cast their initial votes on cases and vote on cert. petitions] ran differently than they do now. Back then, there was a rule that everybody had a chance to speak once before anyone voted. Now, by contrast, Justices vote in conjunction with making their initial comments. Do you think that difference matters in terms of outcomes?

Justice Stevens: I think there might well be cases in which the outcome could be affected. I remember debating this with Byron White, among others, who said, “Well really the vote is never firm until the whole conference is over — in fact until the opinion is released.” And, as you know, votes change from time to time.

But I do think that the old model tends to give the junior Justice a better opportunity to convince more senior members of the Court if everybody has withheld his or her vote until everybody has had something to say. It just seems to me it’s a better way to proceed. And as I think I say in the book, Bill Rehnquist and I used to sit next to each other in the conference when I was a junior Justice and he was next most junior, and we both raised it once or twice, and he felt the same way then. But he became Chief, and he changed his view.

Question: What do you think changed his view?

Justice Stevens: He became Chief.

Question: He wanted to vote first, do you think?

Justice Stevens: I think — that’s right, he recognized the fact that the order of precedence may have an impact.

3. Could hackers free everyone at FDC:

Federal authorities are concerned about new research showing U.S. prisons are vulnerable to computer hackers, who could remotely open cell doors to aid jailbreaks.

The Federal Bureau of Prisons is “aware of this research and taking it very seriously,” spokesman Chris Burke told The Washington Times.

Mr. Burke was reacting to research by private experts who found that the security systems in most American prisons are run by computer software vulnerable to hackers.

“You could open every cell door, and the system would be telling the control room they are all closed,” said John J. Strauchs, a former CIA operations officer who helped develop a cyber-attack on a simulated prison computer system and described it at a hackers’ convention in Miami last week.

The security systems in most American prisons are run by special computer equipment called industrial control systems, or ICS. They are also used to control power plants, water treatment facilities and other critical national infrastructure. ICS has increasingly been targeted by hackers because an attack on one such system successfully sabotaged Iran’s nuclear program in 2009.
A malicious cyber-intruder could “destroy the doors,” by overloading the electrical system that controls them, locking them permanently open, said Mr. Strauchs, now a consultant who has designed security systems for dozens of state and federal prisons..

Hackers could “shut down secure communications” through the prison intercom system and crash the facility’s closed-circuit television system, blanking out all the monitors, he added.

4. Should those who view child porn on the internet get the same sentence (life) as murderers? The NY Times examines that question here:

A circuit court judge in Florida clearly thinks so: On Thursday, he sentenced Daniel Enrique Guevara Vilca, a 26-year-old stockroom worker whose home computer was found to contain hundreds of pornographic images of children, to life in prison without the possibility of parole.

But the severity of the justice meted out to Mr. Vilca, who had no previous criminal record, has led some criminal justice experts to question whether increasingly harsh penalties delivered in cases involving the viewing of pornography really fit the crime. Had Mr. Vilca actually molested a child, they note, he might well have received a lighter sentence.

“To me, a failure to distinguish between people who look at these dirty pictures and people who commit contact offenses lacks the nuance and proportionality I think our law demands,” said Douglas Berman, a law professor at Ohio State University, who highlighted Mr. Vilca’s case on his blog, Sentencing and Law Policy.

Sexual offenses involving children enrage most Americans, and lawmakers have not hesitated to impose lengthy prison terms for offenders. In Florida, possession of child pornography is a third-degree felony, punishable by up to five years in prison. Mr. Vilca was charged with 454 counts of possession, each count representing one image found on the computer.

5. Can police set up a fake cell phone tower to get information from your phone without a warrant? Via Wired:

Federal authorities used a fake Verizon cellphone tower to zero in on a suspect’s wireless card, and say they were perfectly within their rights to do so, even without a warrant.

But the feds don’t seem to want that legal logic challenged in court by the alleged identity thief they nabbed using the spoofing device, known generically as a stingray. So the government is telling a court for the first time that spoofing a legitimate wireless tower in order to conduct surveillance could be considered a search under the Fourth Amendment in this particular case, and that its use was legal, thanks to a court order and warrant that investigators used to get similar location data from Verizon’s own towers.

The government is likely using the argument to avoid a court showdown that might reveal how stingrays work and open debate into the tool’s legality.

Stingrays spoof a legitimate cellphone tower in order to trick nearby cellphones and other wireless communication devices into connecting to the tower, as they would to a real cellphone tower. When devices connect, stingrays can see and record their unique ID numbers and traffic data, as well as information that points to a device’s location. To prevent detection by suspects, the stingray sends the data to a real tower so that traffic continues to flow.

By gathering the wireless device’s signal strength from various locations, authorities can pinpoint where the device is being used with much more precision than they can get through data obtained from the mobile network provider’s fixed tower location.

Should judges disregard joint sentencing recommendations?

I've raised the question before on the blog and have given my opinion that judges should not disregard joint recommendations except in the very extreme case.

If a plaintiff and a defendant agree to a civil settlement, judges generally do not interfere. Why, then, should they in criminal cases (especially if judges are supposed to be umpires as Chief Justice Roberts has commented)?

The Herald covers the latest example in a medicare fraud case where the defendants were sentenced to 5 years more than the parties jointly had asked for:

U.S. District Judge Cecilia Altonaga gave the Guilarte sisters — who fled to Latin America in 2007 when they learned they were under federal investigation — five more years than prosecutors and defense attorneys had agreed on in their plea agreements, which charged a pair of healthcare-fraud and money-laundering conspiracies.

The judge said her initial intentions were to sentence the sisters to maximum prison terms — 30 years — but she was “tempered” by the disparity with lower sentences already imposed on other defendants in the Caridads’ case and related Detroit investigations.

The Guilarte sisters, who were indicted in Detroit in 2009, asked to have their case transferred to their hometown in Miami after they fled to Venezuela and were arrested in Colombia earlier this year. Miami is widely recognized as the nation’s Medicare fraud capital, where sentences keep getting stiffer and stiffer.

“We are tired of seeing the brazen, callous manner with which countless people defraud our Medicare system,” Altonaga declared. “We must stop the epidemic. ... Both of you took what you learned in South Florida and exported it to Michigan.”

Altonaga reminded Caridad, 54, and Clara, 57, that the United States welcomed both with “open arms” from Communist Cuba and that they returned the privilege by stealing millions from the U.S. government’s healthcare program for the elderly and disabled.

The Justice Department said the sisters — Caridad is a legal permanent resident, Clara a naturalized U.S. citizen — personally pocketed $3.8 million from their HIV-therapy scam in Detroit but none of that money has been recovered. Both sisters apologized to the judge and U.S. government, saying they “must pay” for their theft.

But the judge didn’t buy it, saying at one point to Clara: “Even though you say you must pay, I have every conviction you will not pay.”

I have never seen a judge go lower than a joint recommendation of the parties; only higher. But maybe I'm missing something. Any thoughts?

Ft. Pierce Courthouse opens

It's new and it's big and it's cool:

11th Circuit affirms Liberty City 7

Here's the per curiam opinion (the panel was Judge Tjoflat, Judge Martin and a visiting judge) (the original post mistakenly said that Tjoflat wrote the opinion). From the intro:

Burson Augustin, Stanley Grant Phanor, Patrick Abraham, Rotschild
Augustine, and Narseal Batiste (collectively, “Appellants”) were all convicted of
(1) conspiracy to provide material support to a Foreign Terrorist Organization (Al
Qaeda) by agreeing to provide personnel (including themselves) to work under Al
Qaeda’s direction and control, knowing that Al Qaeda has engaged or engages in
terrorist activity, in violation of 18 U.S.C. § 2339B; and (2) conspiracy to provide
material support by agreeing to provide personnel (including themselves),
knowing and intending that they were to be used in preparation for and in carrying
out a violation of 18 U.S.C. §§ 844(f)(1) and (i), and to conceal and disguise the
nature, location, source, and ownership of such material support, all in violation of
18 U.S.C. § 2339A. Abraham and Batiste were also convicted of conspiracy to
maliciously damage and destroy by means of an explosive a building leased to an
agency of the United States (the FBI) and a building used in interstate and foreign
commerce (the Sears Tower), all in violation of 18 U.S.C. § 844(n).1 Additionally,
Batiste was convicted of conspiracy to levy war against the Government of the
United States and to oppose by force the authority thereof in violation of 18
U.S.C. § 2384.

Appellants now appeal their convictions, raising six issues. First, Batiste
and Augustine challenge the district court’s order granting in part the
government’s motion to strike portions of the indictment as surplusage. Second,
Augustin, Phanor, and Augustine each challenge the sufficiency of the evidence
supporting their convictions. Third, Augustin argues that the government’s
involvement in the criminal scheme was outrageous and therefore violated the Due
Process Clause of the Fifth Amendment. Fourth, Batiste and Abraham challenge
several of the district court’s evidentiary rulings relating to the admissibility of lay and expert testimony. Fifth, Batiste argues that limitations on his cross examination of witnesses resulted in cumulative error requiring a new trial. Sixth, all of the appellants challenge the district court’s dismissal of a juror for refusing to follow the court’s instructions on the law. After careful review of the record and the parties’ briefs, and after having had the benefit of oral argument, we
affirm.

Tuesday notes

1. Big decision from the 11th Circuit yesterday in the sports agent case -- United States v. Gus Dominguez. Judge Cox wrote the decision invalidating some of the convictions and Judge Tjoflat dissented because he would have invalidated all counts. Nice win for Ben Kuehne. The blog's prior coverage of this Judge Moore case is here.

2. Brian Tannebaum has a new gig at Above the Law. Very exciting.

3. I hate mosquitoes too, but should we really be genetically engineering them? Doesn't this ultimately lead to the apocalypse?

4. Justice Stevens seems to be everywhere.

Happy Wet Soggy Halloween

It's always fun driving on US1 after a rainstorm. Sheesh.

Anyway, eat some candy today, and let's hope it dries up for tonight.

Here are a couple stories to get your Monday going:

1. Leonard Pitts thinks the Fourth Amendment should still have some teeth:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . — Fourth Amendment to the Constitution of the United States

Just in case you forgot.

There has been, after all, an appalling amount of forgetting where that amendment is concerned. And New York City has become the epicenter of the amnesia. Yes, the “stop and frisk” policy of questioning and searching people a cop finds suspicious is used elsewhere as well. But it is in the big, bruised apple that the issue now comes to a head.

Federal agents recently arrested a New York City cop on charges of violating the civil rights of an African-American man. Officer Michael Daragjati allegedly stopped the man in April and threw him against a parked van to search him. No drugs or weapons were found, but Daragjati reportedly became angry the man questioned his rough treatment and requested the officer’s name and badge number. So Daragjati ran him in on a charge of resisting arrest. Later, talking on the phone to a friend, he bragged that he had “fried another nigger” and that it was “no big deal.” This was overheard by the feds, who had him under surveillance in a separate investigation.

Let no one fix his or her mouth to pronounce themselves “surprised.” Blacks and Hispanics have complained for years about the selective attention they get from police. Giving cops the power to randomly stop and search pedestrians they find suspicious could not help but exacerbate the problem.

Last year, about 600,000 people were stopped and frisked in New York. Though blacks and Hispanics account for just over half the city’s population, they represent about 85 percent of those stopped. The Center for Constitutional Justice, a civil rights group, says drugs or weapons are turned up in less than two percent of those stops.

It bears repeating: less than two percent.

2. Can lawyers be ineffective during the plea process? Seems like the answer is obviously yes, but the Supreme Court will hear oral argument on the question today:

Anthony Cooper shot a woman in Detroit in 2003 and then received laughably bad legal advice. Because all four of his bullets had struck the victim below her waist, his lawyer said, Mr. Cooper could not be convicted of assault with intent to murder.

Based on that advice, Mr. Cooper rejected a plea bargain that called for a sentence of four to seven years. He was convicted, and is serving 15 to 30 years.

At least Mr. Cooper heard about his plea offer. Galin E. Frye’s lawyer never told him that prosecutors in Missouri were willing to let him plead guilty to a misdemeanor and serve 90 days in prison for driving without a license. When Mr. Frye did plead guilty after the offer expired, he was sentenced to three years.

On Monday, the Supreme Court will hear arguments in the two cases, which ask how principles concerning bad legal work at trial should apply to plea bargains. The question is of surpassing importance, since a large majority of criminal cases are settled at the plea stage.

3. The U.S. jails way too many people:

As a means of controlling crime, America’s prisons are notoriously inefficient and only minimally effective, often creating hardened criminals out of first-time offenders. The United States has 5 percent of the world’s population, yet 25 percent of the world’s prisoners. In the past generation, the imprisonment rate per capita in this country has multiplied by five. There are 2.3 million Americans in prisons and jails. Spending on prisons has reached $77 billion a year.