Exploding federal criminal code

The Wall Street Journal is doing a nice job (here and here) covering how ridiculous the federal criminal code has become.  (Previous coverage of the Maple Syrup proposal on this blog here). From the WSJ:

The federal criminal code has grown so large it ensnares everyday citizens who have no idea they are violating the law, a bipartisan group of legal experts told a House panel Tuesday.

There are about 4,500 criminal statutes, said Edwin Meese, attorney general under President Ronald Reagan and now with the conservative Heritage Foundation. "This is in addition to over 300,000 other regulations that don't appear in the federal code but nevertheless carry essentially criminal penalties including prison," he said. "So the vast array of traps for the unwary that lurks out there in federal criminal law is more extensive than most people realize." The Administrative Office of the U.S. Courts figures some 80,000 defendants are sentenced in federal court each year.

Rep. F. James Sensenbrenner (R., Wis.), chairman of the House Judiciary Committee's panel on crime, terrorism and homeland security,and several panelists cited an article in Monday's Wall Street Journal, part of a yearlong series about the expansion of the federal criminal code and the erosion of "criminal intent" requirements. The article chronicled the conviction of one Maryland man for actions prosecutors said weren't intentional. It explained how Lawrence Lewis ended up with a federal criminal record while trying to deal with clogged toilets at a military retirement home in Washington, D.C.
"He was subject to the same law that [would apply to] somebody who knowingly, willingly dumped toxic materials into a navigable water," said Mr. Sensenbrenner, who has introduced a bill to shrink the federal criminal code by a third and to define the level of criminal intent necessary to break the law.

"The only way I cannot die in prison is to tell the truth."

That was Scott Rothstein at his depo today -- and the lawyers were apparently buying it:

“I first asked him a little bit about why we should believe him,” said attorney Charles Lichtman, with the Fort Lauderdale law firm Berger Singerman, which is representing the bankruptcy trustee seeking to recover millions of dollars for investors and creditors. “I think Scott came off as extremely credible,” Lichtman said. “It was a nonstop dialogue about all aspects of the scheme. I guarantee the public has not heard a fraction of what happened. He ties together everything in a logical way.” Fort Lauderdale attorney William Scherer, who is suing Rothstein and others in a parallel civil case, backed that assessment. “In my judgment, he’s telling the truth,” said Scherer, who is representing 25 investors who lost $160 million. “It’s much worse than I realized. I’m saddened by some of what I’m hearing about my profession and my town.” Scherer, Lichtman and other lawyers interviewed outside the federal courthouse were reluctant to reveal the names of potential co-conspirators fingered by Rothstein in his deposition. But they said he spread the blame beyond himself, to colleagues in his former 70-attorney law firm to employees at the firm’s one-time bank, Toronto Dominion.

Let's bring in the criminal defense lawyer for some perspective here before we declare Rothstein the definition of truth: “It’s obvious to me there are people he’s going after and there are others he’s trying to protect,” said criminal defense attorney Sam Rabin, who is representing TD Bank vice president, Frank Spinosa. Spinosa dealt directly with Rothstein and is under criminal investigation.

Judge Trott from the Ninth Circuit has a good seminar on informants that he teaches to prosecutors. I wonder what he would say about Rothstein. This is a passage in which he tells prosecutors to commit to memory:

Criminals are likely to say and do almost anything to get what they want, especially when what they want is to get out of trouble with the law. This willingness to do anything includes not only truthfully spilling the beans on friends and relatives, but also lying, committing perjury, manufacturing evidence, soliciting others to corroborate their lies with more lies, and double-crossing anyone with whom they come into contact, including the prosecutor. A drug addict can sell out his mother to get a deal, and burglars, robbers, murders, and thieves are not far behind. Criminals are remarkably manipulative and skillfully devious. Many are outright conscienceless sociopaths to whom "truth" is a wholly meaningless concept. To some, "conning" people is a way of life. Others are just basically unstable people. A "reliable informant" one day may turn into a consummate prevaricator the next.

There's going to be a long line at the King building

That's where Scott Rothstein's depo will start this morning. And there will be lots of lawyers. According to Jay Weaver:

Just obtaining permission for his deposition was an ordeal, requiring dispensation from U.S. District Judge James Cohn, who is presiding over the criminal case, and the U.S. attorney’s office, which has charged eight defendants including Rothstein so far and plans another major racketeering indictment. “Obtaining Rothstein’s deposition is critical in order for the trustee to fully investigate all matters related to the Ponzi scheme,” Fort Lauderdale lawyer Paul Singerman, whose firm is working for the trustee, wrote in court papers. The goal is to “learn facts about potential targets and existing defendants ... as well as to have a complete understanding of the assets and liabilities of RRA, and the various roles that insiders, creditors and other third parties had with respect to the Ponzi scheme and the events at [the law firm].”

UPDATE -- why are people lining up at the King Building? They should be in Judge Cooke's courtroom -- RRA's computer guy is on the stand right now! (10:35am)

Judge Scola's investiture

It was really nice. Good speakers (including Pam Perry, John Hogan, Carl Kafka, Marilyn Milian, and John Thornton) who had heart-felt remarks about Judge Scola. A great addition to the federal bench.

The only downside -- I was hungry by the end of it.

Supreme Foodies

Pretty neat: The Supreme Court Justices' spouses published a book with Martin Ginsburg's recipes. Martin, the late spouse of Ruth Bader Ginsburg, loved to cook. From the BLT:

Just in time for the holidays, the Supreme Court Historical Society today began selling a cookbook full of recipes by Justice Ruth Bader Ginsburg's husband Martin, who died in June, 2010. Entitled "Chef Supreme," the book is also a fond tribute to Martin Ginsburg, a prominent tax lawyer and scholar in addition to his after-hours avocation as a chef and gourmand.

Martha-Ann Alito, the wife of Justice Samuel Alito Jr., spearheaded the cookbook effort on behalf of the other Supreme Court spouses, who got to know him at Court events including lunches organized by the spouses. The 126-page book was published by the Supreme Court Historical Society.

"Marty's gleeful smile, his mischievous wit, perfect manners and his adoring gaze of Justice Ruth enlivened every event we as spouses shared," Martha-Ann Alito wrote in an afterword to the book. "His benchmark warmth, culinary excellence and considerate birthday cakes remain goals to be attained by this most junior spouse. He lives on as an inspiration to me."

The recipes in the spiral-bound book range from gravlax to vitello tonnato, osso buco to chocolate chip oatmeal cookies, and are set forth in careful detail. The recipe for the "perfect baguette" runs six pages, including color photographs.

You can buy the book here.

In other news, Blago gets 14 years. Appropriate sentence or too high?

Cameras in the Supreme Court?

The Senate had hearings today on this issue, and SCOTUS Blog has the scoop here. You know my views -- it makes no sense to me that the court proceedings are closed. Sunshine and all that...

Speaking of the Supreme Court, it heard argument today on another confrontation clause case. Here's Tom Goldstein's summary of what the case is all about:

Tomorrow, the Justices will hear argument in Williams v. Illinois, the next in the line of cases involving the Court’s more defendant-friendly interpretation of the Confrontation Clause. The question is whether the Confrontation Clause is violated if an expert testifies about the results of testing conducted by a non-testifying third party, if the report itself is not introduced at trial.

Here, an expert testified about the results of a DNA test conducted by an analyst, but the DNA test was not admitted. The Supreme Court of Illinois held that there was no constitutional violation. The U.S. Supreme Court granted certiorari to resolve a conflict in the lower courts over the Confrontation Clause’s application in these circumstances.

***
One could say with a fair degree of confidence that the five Justices who started the revolution in the Court’s Confrontation Clause jurisprudence in Crawford v. Washington in 2004 and then adhered to their strong view in Melendez-Diaz v. Massachusetts in 2009 would rule for Williams here. As a practical matter, it is hard to say that the underlying DNA report is not being used for its truth. But since then, two Justices in the majority – Justices Souter and Stevens – have been replaced by Justices Sotomayor and Justice Kagan. Although the latter two Justices joined the Bullcoming majority, they may have a lessened commitment to a robust application of the Confrontation Clause. Justice Sotomayor’s concurrence in Bullcoming in particular signals that these facts may approach or pass the end of the line to which five Justices are willing to extend the Confrontation Clause.

Monday notes

1. Judge Cooke will be hearing a dispute filed by the Marley heirs against a half brother. Curt Anderson has the details.

2. Alan Fein is a big-time blogger now, opining on Obamacare and Miami and Judge Marcus.

3. Another big case, another dismissal due to prosecutorial misconduct (via Thomson Reuters):

Matz based his decision on numerous examples of government misconduct, beginning with falsehoods in search-and-seizure warrant applications, extending to false and misleading grand jury testimony by an FBI agent, and compounded by prosecutors' failure to turn over some of that testimony to the defense. Handzlik, Levine, and their teams had alerted the judge to much of the misconduct before the jury reached a verdict, but Matz said the magnitude of the government's behavior became clear only in retrospect.

"When a trial judge managing a large docket is required to devote a great deal of time and effort to a fast-moving case that requires numerous rulings, often the judge will miss the proverbial forest for the trees," Matz wrote. "That is what occurred here ... . The government has acknowledged making many 'mistakes,' as it characterizes them. 'Many' indeed. So many, in fact, and so varied, and occurring over so lengthy a period (between 2008 and 2011) that they add up to an unusual and extreme picture of a prosecution gone badly awry."

Here's the order. It's worth a read.

Guest post by Richard Rosenthal

David is out of town with his family and has invited me to say a few words
about the following event honoring our former boss:

Today the Judges of the Southern District of Florida honored one of their
own by dedicating the Chief Judge Edward B. Davis Jury Assemby Room in the
Ferguson federal courthouse. It was a touching, heartfelt ceremony
remembering the late Chief Judge, who served our community for over two
decades on the federal bench. Several generations of the Davis family,
the Southern District Judges, the Judge's former law clerks, and many
longtime friends attended the midday ceremony, which was presided over
with characteristic grace and good humor by Chief Judge Moreno. At one
point, Chief Judge Moreno joked that he may have to tell the U.S. Marshals
not to allow any votive candles to be placed beneath Judge Davis'
portrait, even though such tributes may well be appropriate to honor
"Saint Ned." Judge Altonaga, who was one of Judge Davis' law clerks,
eloquently recalled the Judge's humanity and kindness toward all, and his
willingness to privately and compassionately mentor young lawyers who
tried cases before him. After Chief Judge Moreno opened the floor for
remarks, several the Judge's family members, law clerks, friends, and
professional colleagues shared warm recollections of an exemplary Judge
and a wonderful, unforgettable man. He is deeply missed.

--Richard B. Rosenthal (Law Clerk to Judge Davis, 1997-1998)