Judge Scola speaks to Federal Bar Association

It was a fun and entertaining talk in which he answered questions from the audience.  Lots of interesting answers, including that his current favorite Supreme Court Justice is Justice Kennedy because of his objectivity and because you don't know which way he is going to rule.  He also mentioned reading the South Florida Lawyers Blog.  I think Rumpole and I should feel offended!

What a day at the Federal Public Defender's Office

The office won two appeals and a trial today.

1.  Bernardo Lopez won United States v. Spriggs, which created a circuit split with the 8th Circuit:

Appellant Timothy Spriggs pled guilty to one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2).  At sentencing, over Spriggs’s objection, the district court applied a five-level enhancement for distribution of illicit images for the receipt, or expectation of receipt, of a non-pecuniary thing of value. See U.S. SENTENCING GUIDELINES MANUAL § 2G2.2(b)(3)(B) (2010).  Spriggs argues that no evidence supports application of the enhancement. We vacate the sentence and remand because, although we find evidence that Spriggs distributed illicit images, there is insufficient evidence to support the other elements of the five-level enhancement....
The Eighth Circuit applies the five-level enhancement if the defendant “expected to receive a thing of value — child pornography — when he used the file-sharing network to distribute and access child pornography files.”  United States v. Stultz, 575 F.3d 834, 849 (8th Cir. 2009).  Because file-sharing programs enable users to swap files, the court reasoned that no additional evidence is needed to establish the type of transaction contemplated in the Guidelines.
We have a different view, however, of the function and operation of filesharing programs than that of the Eighth Circuit.  File-sharing programs exist to promote free access to information. Generally, they do not operate as a forum for bartering.  For example, file-sharing programs permit a person to access shared files on peer computers regardless of whether the person in turn shares his files.  The files are free.  Because the transaction contemplated in the Guidelines is one that is conducted for “valuable consideration,” the mere use of a program that enables free access to files does not, by itself, establish a transaction that will support the five-level enhancement.  Accordingly, we disagree with the approach taken by the Eighth Circuit.

2.  Sam Randall and Vince Farina won United States v. Grajales, in which the 11th Circuit reversed a conviction, holding that the trial court should have given an entrapment instruction.  Interestingly, the court also found two other appellate arguments raised by the dynamic duo had merit.  Three reversible errors in one appeal is not common.  I'm not sure why the court didn't publish the opinion.  From the intro:

After a jury trial, Alberto Grajales appeals his convictions for conspiring and attempting to interfere with commerce by robbery, in violation of 18 U.S.C. § 1951(a); conspiring and attempting to possess with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. § 846; and possessing a firearm in furtherance of a crime of violence and a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Grajales raises three issues on appeal. First, he argues that the district court erred when it refused to instruct the jury on his entrapment defense. Second, Grajales argues that the district court erred when it instructed the jury that his honestly held belief that he was helping law enforcement also had to be objectively reasonable in order to negate his specific intent. Finally, Grajales argues that the district court erred when it prevented him from testifying regarding non-hearsay statements that were crucial to his defense. For the reasons set forth below, we reverse.

3.  Aimee Ferrer and Helaine Batoff obtained a not guilty verdict before Judge Graham.  I'm working on getting the details of that case.

Romney: "I don't know whether a state has a right to ban contrapception."

This is a pretty amazing exchange that I don't think has been really covered in the news.  Is it possible that Mitt Romney doesn't know Griswold v. Connecticut?  Yikes.  (And why were there debates on Saturday night and then 10 hours later on Sunday morning?) 

In news closer to home, the Rothstein mess won't go away.  Jay Weaver writes an in-depth piece about the case here.  From the conclusion to the story:

One major mystery still hangs over the Rothstein case: During the deposition he was confronted by attorney Mary Barzee-Flores about whether he had “conned” and “fooled” a bunch of national politicians during the course of his Ponzi scheme.
Barzee-Flores, who is representing Gibraltar Bank, where Rothstein had also kept his firm’s trust accounts, rattled off a series of big names: former President George W. Bush; GOP presidential candidate John McCain; his running mate, Sarah Palin; U.S. Sen. Joseph Lieberman from Connecticut; and former California Gov. Arnold Schwarzenegger.
Rothstein, who served as a delegate to the 2008 Republican National Convention and also served on a Florida commission that recommends judges to the governor for appointment, admitted he “fooled” them all.
Rothstein was also asked whether he “fooled” Crist, who ran for the U.S. Senate in 2010, or Martinez, the former U.S. senator from Orlando who resigned his seat before finishing his term, saying he wanted to spend more time with his family.
But Rothstein was not allowed to answer the questions about the two Florida politicians because of objections raised by the lead federal prosecutor in the criminal case, Lawrence LaVecchio, who cited “investigatory privilege.” Legal experts said LaVecchio objected because his team is still investigating political donations that Rothstein and other members of his firm made to their campaigns.
Neither Crist nor Martinez returned phone messages seeking comment.

Read more here: http://www.miamiherald.com/2012/01/07/v-fullstory/2578887/rothsteins-ex-buddies-brace-for.html#storylink=cpy

Franky the drug dog goes to Washington

The Florida Supreme Court held earlier this year that police couldn't use dogs to sniff a person's house.  Now the Supreme Court will decide the issue.  From Curt Anderson:

In a case closely watched by law enforcement nationwide, the U.S. Supreme Court agreed Friday to decide whether a Florida police dog's sniff outside the front door of a house with a marijuana growing operation is an illegal search.
Florida Attorney General Pam Bondi wants the justices to reverse a state Supreme Court decision that the K-9's sniff runs afoul of the Fourth Amendment protection against illegal search and seizure. Eighteen states and the territory of Guam have filed a brief in support of Bondi's position, concerned that other state courts might start issuing similar decisions.
"If the Florida Supreme Court's decision stands, it could have a profound chilling effect on law enforcement efforts to combat illegal drugs," the states' filing says. "The Florida Supreme Court's decision jeopardizes the states' ability to use this crucial tool to discover illegal drugs prior to their distribution."

I'm not sure what the chilling effect would be...  And the last quote -- that the decision impacts the states' ability to nab criminals -- is true of the 4th Amendment in every case.  But, I'm not sure the Florida Supreme Court's opinion will have much of a shot with this Court...

Pryor times two

Looks like we may get another Judge Pryor (Jill) on the 11th Circuit (no relation to Judge Bill Pryor).  It's Alyson Palmer day at the SDFLA Blog.  From her article:

It appears the White House has landed on Atlanta litigator Jill A. Pryor as its new choice for Georgia's vacant seat on a federal appeals court.
Fulton County Superior Court Senior Judge Melvin K. Westmoreland told the Daily Report that he recently received an inquiry about Pryor from the American Bar Association committee that rates White House nominees for the federal bench. He said the ABA committee's representative wrote to say the committee was evaluating Pryor because she is being considered for a position on the 11th U.S. Circuit Court of Appeals.The administration of President Barack Obama has struggled to fill a Georgia-based spot on the 11th Circuit vacated in August 2010 by Judge Stanley F. Birch Jr., who retired.A year ago, the ABA committee vetted Mercer University law professor Daisy Hurst Floyd for the opening, but Obama didn't nominate her. Now the administration finds itself without a nominee at the start of an election year, historically a tricky time for getting a judicial pick through the Senate.Pryor, 48, is a partner at Bondurant Mixson & Elmore, a politically connected litigation boutique. She declined to comment for this story.Born in Harrisburg, Pa., Pryor received her undergraduate degree from the College of William & Mary before going to Yale Law School, where she was senior editor on the Yale Law Journal. A paper she wrote there on an obscure topic—the meaning of the constitutional provision that only a "natural-born citizen" can become president—received some attention during the 2008 campaign, when questions surfaced about whether Republican nominee John McCain, born on a military installation in the Panama Canal Zone, was ineligible for the office. "If I were on the Supreme Court, I would decide for John McCain," Pryor told The New York Times, adding that the question wasn't frivolous.After graduating from Yale in 1988, Pryor served a term as a law clerk to a relatively new, conservative 11th Circuit judge from north Georgia, J.L. Edmondson. She went on to work at Bondurant, where she has handled complex business cases both at trial and on appeal.

Anders briefs

I never understood why criminal defense lawyers file Anders briefs in the 11th Circuit.  An Anders brief is where an appointed lawyer tells the court of appeals that there are no issues worth briefing and then asks the court for permission to withdraw.  But there are almost always issues to raise... 

Alyson Palmer has a good example of one in today's DBR, where a lawyer filed an Anders brief, and the court of appeals denied it, saying that the lawyer should examine the plea colloquy:

A federal appeals court has granted a tax fraud defendant a new chance for a trial after one of its judges flagged an issue that prevailed on appeal.

The court's unusual intervention in the case of Anthony Davila set up an 11th U.S. Circuit Court of Appeals decision that an Augusta, Georgia, federal magistrate judge erred by getting too involved in the plea bargaining process.

The 11th Circuit panel concluded comments by U.S. Magistrate Judge W. Leon Barfield violated the rule against judges' involvement in plea negotiations.

The comments came at a hearing addressing Davila's request to fire his court-appointed attorney. Barfield told Davila that "there may not be viable defenses to these charges" and that the only thing at his disposal was accepting responsibility for his crimes as a way to get a reduced sentence, according to the transcript.

Accepting responsibility, Barfield told Davila, would require Davila to "go to the cross" and tell the probation officer preparing his sentencing report everything he had done.
At the 11th Circuit, prosecutors acknowledged Barfield's comments crossed the line but argued the remarks didn't merit a reversal.

Davila's attorney, Michael N. Loebl of Fulcher Hagler in Augusta, initially didn't raise any appellate claim based on the comments, at first filing a brief saying Davila didn't have any basis to appeal his conviction or sentence.

But the 11th Circuit rejected Loebl's brief and pointed him to the idea that the magistrate judge made a mistake that could win Davila a new trial.

"Scott, relax"

That was Scott Rothstein's lawyer during the two-week long depo after Mary Barzee Flores was able to really get under his skin. 

I love reading transcripts of great cross-examinations, and Mary really devastates Rothstein (her cross starts at page 2393 and the whole thing is definitely worth reading). The blogs are abuzz about this exchange (at page 2427):

Q At some point Debra Villegas' best friend and then your former lover was murdered?


A That's correct. She was.

Q She was murdered because she knew too much, right?

A Excuse me? Are you attempting to insinuate that I had something to do with that poor girl's death? Have you lost your mind?

Q You would deny that?

A I would deny it? You're disgusting. Everyone knows that I wasn't involved in it. That's disgusting.

Q How about Julie Timmerman?

A No. No. That is disgusting. Okay. I was a criminal involved in white-collar crime, involved in fraud and the like, involved with the mob and corrupt politicians and corrupt law enforcement. I'm paying for that. Melissa Lewis was a good person. She didn't know too much. She was killed by a psychopath. And you're disgusting for doing that.

Q You gave Debra Villegas a house, right?

A Why drag her family through that? They're going to have to read this, for your purposes, to defend John Harris, who's guilty.

Q You gave Debra Villegas a house --

A You should be ashamed.

Q -- right?

THE WITNESS: I want five minutes. You should be ashamed of yourself. You think I should be in jail. You should be ashamed.

MS. BARZEE FLORES: We'll talk about Julie Timmerman when you come back.

THE WITNESS: You're a disgusting human being. You're the only one out of this entire group of lawyers. You are truly, truly a disgusting human being.

MR. NURIK: Scott, relax. (Thereupon, a recess was taken.)

This exchange made me laugh:

Q You've violated oaths before, though, haven't

you, sir?

A In my prior incarnation, I certainly did.

Q You violated your oath as an attorney?

A I did.

Q You lied to judges?

A I did.

Q You put money, filthy lucre, ahead of your

clients' interests?

A Filthy lucre?

Q Yes. Money?

A Yes. I know what "lucre" is. I've just never

heard anyone use that in a question before.

Q It's in the oath, sir.

A I know it is. I remember the oath. I just --

"for lucre or malice," I remember that. Yes, I violated

that oath.

Welcome Back!

Happy new year everyone!

A quick morning roundup:

1. Justice Roberts is defending Justices Thomas and Kagan on the recusal issue:

Chief Justice John G. Roberts Jr. defended his colleagues as “jurists of exceptional integrity and experience” and said Saturday that it was a misconception that Supreme Court justices do not follow the same set of ethical principles as other judges.

In his year-end report on the state of the federal judiciary, Roberts for the first time addressed a growing controversy about when justices should recuse themselves from cases and whether a code of conduct that covers lower-court judges should apply to the justices as well.
***

Roberts said the public should keep in mind a key difference between lower-court judges and Supreme Court justices: While lower-court judges can be replaced when they recuse themselves from cases, that is not the case at the “court of last resort.”

“A justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy,” Roberts wrote. “Rather, each justice has an obligation to the court to be sure of the need to recuse before deciding to withdraw from a case.”

Allowing the court itself to decide whether justices should recuse, Roberts said, “would create an undesirable situation in which the court could affect the outcome of a case by selecting who among its members may participate.”

2.  In the NY Times, Peter Henning discussed white-collar prosecutions in 2011 and what to expect in 2012, but no mention of Scott Rothstein.  Blasphemy!

3.  Ellen Podgor gives out her "White Collar Crime Awards" here.  My favorite, of course: The award for "Sentencing Sanity - To Hon. Ellen Huevelle for consistently rejecting DOJ's draconian sentencing recommendations ."

4.  I also enjoyed reading this article about a big firm lawyer who spent a year as a prosecutor.  Her take on how she handled so many cases:

"Controlling a room, or at least giving the impression you're in control, is absolutely fundamental," she says. "When people came to that room, I was gracious, but I treated them like a guest." That meant police officers, victims, defendants, bailiffs, court clerks, defense attorneys, and even "the judge, frankly, was a guest."