11th Circuit kicks Mathurin case on other grounds

This was the case that Judge Cooke ruled a 300 year mandatory sentence for a juvenile was unconstitutional.  Both sides appealed, and the Eleventh Circuit vacated the conviction on speedy trial grounds, and did not mention the sentencing issue.

The issue presented:

This case requires us to decide the narrow question of whether the time
during which plea negotiations are conducted is automatically excludable from the
Speedy Trial Act’s thirty-day window for filing an information or indictment. For
the reasons that follow, we have concluded that the time during which plea
negotiations are conducted is not automatically excludable.

From the conclusion:

We conclude that the time during which plea negotiations were conducted
was not automatically excludable from Mr. Mathurin’s speedy-indictment clock.
That being the case, the government exceeded the maximum thirty-day delay for
bringing the indictment. Under the Act, this means that the charges in the
superseding indictment, as originally set forth in the juvenile information and later
cited in the government’s motion to transfer, must be dismissed.7 See 18 U.S.C.
§ 3162(a)(1). Mr. Mathurin’s convictions must be vacated. However, “we leave it
to the District Court to determine in the first instance whether dismissal should be
with or without prejudice.” Zedner, 547 U.S. at 509, 126 S. Ct. at 1990.

News & Notes

1.  Judge Turnoff's daughter is the news for doing good.  Wendy Atrokhov seems like a good egg!

2.  Apple rests.  The judge still isn't happy.  One quote: “I want to see papers, I don’t trust what any lawyer tells me in this courtroom.”  Yikes.

3.  DOJ finally agrees to free innocent prisoners.  Brad Heath of USA Today has the scoop:

The department confirmed Monday that it had instructed its lawyers to abandon legal objections that could have blocked — or at least delayed — the inmates from being set free. In a court filing , the department said it had "reconsidered its position," and that it would drop its legal arguments "in the interests of justice."

The shift follows a USA TODAY investigation in June that identified more than 60 people who were imprisoned for something an appeals court later determined was not a federal crime. The investigation found that the Justice Department had done almost nothing to identify those prisoners — many of whom did not know they were innocent — and had argued in court that the men were innocent but should remain imprisoned anyway.

Neither Justice Department lawyers nor defense attorneys would speculate Monday how many innocent prisoners eventually might be released. Some who were convicted of other crimes might receive shorter sentences; others might be tried for different offenses.

Chris Brook, the legal director of the ACLU of North Carolina, called the move "an encouraging first step," but said "much more has to be done for these wrongly incarcerated individuals." He said the department still had not offered to identify prisoners who were sent to prison for something that turned out not to be a federal crime.

4.  Jay Weaver covers "Queenpin":

The media have dubbed her the “Queen of the Pacific,” a rare woman who allegedly reached the top of the male-dominated Colombian-Mexican drug world with her feminine mystique.
She was featured in the famous drug ballad titled “The Queen of the Queens,” sung by a band called Los Tucanes de Tijuana. One line in the narcocorrido captured her essence: “The more beautiful the rose, the sharper the thorns.”
Her name: Sandra Avila Beltrán. The raven-haired 51-year-old — at least that’s what her arrest form says her age is — will appear in Miami federal court Tuesday for her arraignment and bond hearing. She was extradited last week from Mexico, where she had been arrested in 2007, on charges of conspiring to smuggle loads of cocaine into the United States more than a decade ago.
“She is very Cleopatra-ish, like the Queen of the Nile,” said Miami criminal defense attorney Lilly Ann Sanchez, who represented two other defendants in the same case. “She was able to maneuver her way in a man’s world and use the fact that she was a woman to her advantage in more ways than one.”

Read more here: http://www.miamiherald.com/2012/08/13/2950459/mexican-queenpin-faces-drug-charges.html#storylink=cpy

Michael Caruso officially named Federal Defender

Congrats my friend!

He takes over for Judge Kathleen Williams.

I couldn't think of anyone else who could fill Judge Williams' shoes.

"I have bent over backward ... I have extended every due process to Mr. Roy that the record reflects he denied to his own client."

That was Judge Turnoff in jailing Emmanuel Roy, the former lawyer who is alleged to have ignored numerous court orders.  SFL has covered this story along the way, but it's worth writing about here as well.  Some interesting tidbits from the Sun-Sentinel:

The judge found Roy had focused his efforts on wringing cash and other valuables out of Coulton's family.
Roy even flew to England and took a $23,000 wedding ring from the finger of Coulton's wife at a meeting, the judge found. He also took a Porsche, tens of thousands of dollars and a Coconut Creek townhouse, the judge found.
Turnoff gave Roy and Mayas 10 days to comply with his order last September but Roy never responded so the judge eventually issued a warrant for his arrest after he failed to show for a July 6 hearing.
On July 12, Roy wrote to Turnoff that he had "always shown great respect to the court."
"I trust that the court will not conclude that I have decided to stump [sic] my nose at it, for any party who does so does it as his own peril," Roy wrote.
Five days later, Roy was arrested in New York on the judge's warrant. He was refused a bond and transferred -- via Oklahoma -- to face the judge, arriving Wednesday at Miami's Federal Detention Center.
Finally facing Judge Turnoff in court Thursday, Roy didn't get into details about the Coulton case. He claimed he's now penniless though he told authorities he had a net worth of about $700,000 in 2009 when he was charged with wire fraud in a federal mortgage investigation in New York. He has pleaded not guilty and is going to trial on that case next month.
Though Turnoff was clearly astounded by Roy's actions, he said he is keeping an open mind and gave Roy and his lawyer time to prepare for an Aug. 16 hearing where Roy can explain himself before the judge makes a final ruling.
...
Turnoff ruled Roy can be released on a $250,000 bond if he can put up $5,000 cash and promises to return for the hearing next week.

If you are looking for a something a little more light-hearted, check out this Jerry Seinfeld short with Ricky Gervais.

Or, if you are a Supreme Court junkie, here's a case from the upcoming Term on whether a house boat is a boat or a house:

As yachts go, Fane Lozeman’s vessel was no Queen Mary. First of all, the two-story, 60-foot boat had no name, motor or way of being steered. She drew only 10 inches of water and had glass French doors on three sides, making the idea of an ocean passage nonsensical. Tied up at the dock in North Beach Village, Fla., she was the functional equivalent of a house down to the sewer line and electrical lines snaking onshore.
That didn’t stop town authorities from getting an order under marine law to seize the vessel and tow it to Miami, after Lozeman failed to heed local ordinances and pay his dockage fees. Now the U.S. Supreme Court is scheduled to decide the question of whether the term “vessel” applies to anything that floats, or should be reserved for things intended to move from place to place. 

“I find what Mr. Cypress pleaded to and agreed to in his proffer was uniquely and sadly American. He was cooking the books.”

That was Judge Kathy Williams in sentencing former Seminole leader David Cypress to 18 months in prison.  Cypress had asked for probation and the government was looking for 2 years.  From Jay Weaver's piece:

His sentencing hearing offered a rare peek into the Seminole Tribe and its Las Vegas-style gambling enterprise, featuring the Hard Rock Hotel & Casino in Broward County. The Cypress case also conjured comparisons to the IRS’s current income-tax crackdown on the Miccosukee Tribe in Miami-Dade County and its former chairman Billy Cypress, no relation.
David Cypress’ lawyer tried to convince the judge that the 61-year-old former tribal council member committed the crime because of “cultural” differences between the Broward-based Seminoles and the rest of America. Defense attorney Joel Hirschhorn said Cypress was a “simplistic man” who didn’t grasp he owed personal income taxes as the tribe underwent a “rags-to-riches” transformation, thanks to its gaming bonanza.
Hirschhorn also argued that Cypress, who apologized in a brief statement, was a victim of the U.S. government, which he said showcased his client as the “poster boy for tax compliance on the reservation, perhaps even in all Indian Country.”
But U.S. District Judge Kathleen Williams was not swayed, despite recognizing the “shameful episodes” of the nation’s mistreatment of Native Americans.***The judge also noted that she could find no evidence of any Native American anywhere in the country being convicted of a tax offense.
Cypress’ prison sentence could have been much worse had federal prosecutors been able to prove he “willfully” committed the double-billing scheme for the entire seven-year period. He was only charged with and pleaded guilty to filing a false tax return in 2007, understating his income by $285,000.
Assistant U.S. Attorney Carolyn Bell, who urged the judge to give Cypress a two-year sentence, mocked the defendant’s argument that his cultural background prevented him from grasping U.S. tax laws. “This was a sophisticated individual,” Bell said. “He was a leader of the Seminole nation.”
Under federal law, the Seminole Tribe’s status as a sovereign nation means the entity itself is not subject to taxes. But once the tribe distributes profits from its gambling casino to members, they are individually responsible for reporting and paying taxes on their annual income tax returns, according to the IRS. 

Very interesting stuff about how the gambling profits are distributed:

In court papers, Hirschhorn revealed that the Seminoles’ gaming profits reached $300 million a year by 2001, with monthly dividends paid to each member. The Seminoles have 3,800 members.Under the distribution formula, every Seminole family of four receives dividends of about $30,000 a month.
Cypress, a notorious big spender who built a massive Mediterranean-style mansion with his millions, was paid a salary of $500,000 on top of the monthly dividend. Like other Seminole council leaders, Cypress controlled a discretionary fund that he tapped to dole out money to family and other tribal members.

Meantime, if you want more Apple/Samsung coverage, check out this piece by Conan:

Read more here: http://www.miamiherald.com/2012/08/09/2943279/ex-seminole-leader-sentenced-to.html#storylink=cpy

Youth Unite!

Judge Kathleen Williams issued a temporary injunction this week, addressing a law that prohibited campaign contributions from minors.  From Curt Anderson:

A two-decade-old Florida law limiting the contributions minors may make to state and local political campaigns is an unconstitutional infringement on free speech rights, a federal judge ruled Tuesday.
U.S. District Judge Kathleen Williams issued a temporary injunction blocking enforcement of the law, which capped contributions by Floridians 17 and under to $100 per election in state and local campaigns. Adults 18 and up can contribute $500. The law does not apply to federal campaigns, which have contribution limits of $2,500 per election for all donors regardless of age.
Williams sided with Boca Raton teenager Julie Towbin and the American Civil Liberties Union, which sued on her behalf. Towbin, then 17, decided not to attend a $150-a-ticket fundraising dinner for the Palm Beach County Democratic Executive Committee after she was warned it might violate state law.
Towbin, a former congressional page, said in a statement issued by the ACLU that the decision "means my voice is no longer worth one-fifth of someone else's."
"This isn't just a victory for minors, it's a victory for the First Amendment," she said.
The law was enacted in 1991 because of perceptions that children might be used to make corrupt contributions, attorneys for Florida argued. They cited cases in other states in which adults used children's donations to evade contribution limits, although none of them occurred in Florida.
Williams, in a 36-page opinion, said there was no evidence that state authorities had ever prosecuted any minors for violating contribution limits and scant proof of any ongoing problem. She also brushed aside state arguments that eliminating the cap would benefit wealthier minors and that it was carefully designed not to violate free speech rights.

Read more here: http://www.miamiherald.com/2012/08/07/2937898/judge-voids-fla-limit-on-minors.html#storylink=cpy

Anything is possible.

Except... getting GSA to shape up the Dyer building.  From John Pacenti:
A congressional subcommittee hammered the General Services Administration on Monday for allowing Miami's historic federal courthouse to linger unused for five years. Members even wondered aloud if the scandal-plagued agency should be disbanded.The hearing at the David W. Dyer Federal Building and U.S. Courthouse was held by the House Subcommittee on Economic Develop-ment, Public Buildings and Emergency Management.A GSA administrator told the panel it's not so easy to convert the Dyer building into offices for the U.S. Bankruptcy Court or the federal defender's office, two of the possibilities suggested.The courthouse with the coquina stone facade shares its electrical grid with the C. Clyde Atkins Courthouse next door, there is the persistent mold problem, and tunnels to transport prisoners connect the building to others in the federal complex.John Smith, a public service administrator with the GSA, estimated the cost of bringing the building up to speed for tenants, federal or private, would be about $10 million.The panel was not sympathetic."Can we actually abolish the agency and have a private agency pick up the ball and run with it?" subcommittee chair Jeffrey Denham, R-California, asked rhetorically.
More from Curt Anderson at Huffington Post:
Opened in 1933, the 166,577-square-foot Dyer building is on the National Register of Historic Places. But it has been deteriorating for years and has an extensive mold problem in South Florida's hot and humid climate. Still, maintaining the vacant structure costs taxpayers about $1.2 million a year, Mica said.
...
Last week, just as the hearing was announced, GSA said it filed a "Request for Information" asking Miami developers and the business community for suggestions on what to do with the Dyer building.
"It seems the GSA only takes action when we hold hearings," Denham said.

And from Jay Weaver:
Their colleague, Mario Diaz-Balart, R-Miami, who sits on the House Appropriations Committee, compared the Dyer Courthouse to the famous Biltmore Hotel in Coral Gables, saying repeatedly he was “speechless” that GSA officials had done nothing to breathe life back into it.
“Frankly, there’s no excuse for it,” Diaz-Balart said.
In chorus, the lawmakers said there are some 14,000 federal properties like the Dyer Courthouse that are empty or not fully used. As they spotlighted the waste of taxpayer dollars, they also portrayed the GSA as an agency under siege for questionable spending on bonuses and lavish staff conferences in Las Vegas and other resorts.

Read more here: http://www.miamiherald.com/2012/08/06/2936382/lawmakers-chide-us-for-wasting.html#storylink=cpy

What a shame...  For those of you who haven't been in the central courtroom, you are really missing out.  I haven't been in a better courtroom.  You really feel like a lawyer:

Trial Tactics

I love following a good trial, and the Apple vs. Samsung fight is high drama.  Plus the case has the added bonus of seeing behind the Apple curtain.  Here's the latest from the WSJ:

On Friday, Scott Forstall, a senior vice president who oversees the software used on the company's mobile devices, testified that as early as January 2011, an Apple executive advocated that the company build a tablet with a 7-inch screen. Apple has generally disputed the appeal of devices smaller than its 9.7-inch iPad, despite reports the company is developing a smaller model.
In cross-examination, Mr. Forstall said Eddy Cue, now head of Apple's Internet services efforts, had used a 7-inch Samsung tablet for a time, and sent an email to Chief Executive Tim Cook that he believed "there will be a 7-inch market and we should do one."
Mr. Forstall also testified that Apple in 2004 placed unusual rules around how it would assemble a team to build the iPhone, or "Project Purple," as it was called then.
Mr. Forstall said co-founder Steve Jobs told him he couldn't hire anyone from outside the company to work on the user interface, or the buttons and images that appear on the screen. So, he said, he found "superstars" from within Apple and said he was starting a secret project and he wanted help.
He recalled telling them, "If you choose to accept this role, you will work harder than you ever have in your entire life."
Mr. Forstall described "locking down" one floor of the company's buildings at first with cameras and keycard readers to beef up security regarding the project. He also took to calling it the "purple dorm," after the project's code-name, purple. They also put a sign up on the front door with the words "Fight Club" written on it, referring to the hit book and movie in which characters are told not to talk about what they were doing.

Samsung wasn't sanctioned for the Quinn press release, but the judge wasn't happy:

Information that was not shared with jurors has triggered some of the biggest fireworks so far in the trial, which kicked off with jury selection Monday and testimony Tuesday and Friday. U.S. District Judge Lucy Koh blocked Samsung from introducing evidence that it says shows the iPhone design was inspired by Sony products, an attempt to weaken Apple positions that the iPhone was an original design copied by Samsung.
A Samsung representative shared the information with reporters, prompting a request from Apple for the court to sanction Samsung. On Friday, Judge Koh denied Apple's request, but criticized Samsung's legal team and polled each juror individually to make sure they hadn't read about it.
"I will not let any theatrics or sideshow keep us from doing what we're here to do," she said.

Koh didn't have any Pink Panther references though as did our very own Judge Cooke:

Cooke did not issue sanctions against any of the lawyers from Greenberg Traurig, whose chairman, Cesar Alvarez, had issued an apology to the judge during a May sanctions hearing after admitting “mistakes were made.”
In her 30-page ruling, the judge compared the firm and TD Bank’s legal defense to a popular comedy movie, saying “it often times appears that this litigation was conducted in an Inspector Clouseau-like fashion.
“However, unlike a ‘Pink Panther’ film, there was nothing amusing about this conduct, and it did not conclude neatly.”

Meantime, a jury acquitted John Keker's client in New York but issued an interesting statement along with its decision:

As Beau Brendler sat in the jury box listening to the government's case against a former Citigroup midlevel executive, the same question kept entering his mind.

"I wanted to know why the bank's C.E.O. wasn't on trial," said Mr. Brendler, who served as the jury's foreman. "Citigroup's behavior was appalling."

Despite that sentiment, Mr. Brendler and his fellow jurors - a group that included a security guard, a lab technician and a full-time musician in a rock 'n' roll band - cleared the former Citigroup executive, Brian Stoker, of wrongdoing over his role in selling a complex $1 billion mortgage bond deal during the waning days of the housing boom.

But even as the jury reached a consensus that the Securities and Exchange Commission failed to prove its case, it was left with an uneasy feeling that the verdict inadequately described its feelings about Citigroup's conduct.

"We were afraid that we would send a message to Wall Street that a jury made up of regular American folks could not understand their complicated transactions and so they could get away with their outrageous conduct," Mr. Brendler said. "We also did not want to discourage the government from investigating and prosecuting financial crimes."

So the jurors did something extremely rare: They issued a statement alongside their verdict.

"This verdict should not deter the S.E.C. from continuing to investigate the financial industry, review current regulations and modify existing regulations as necessary," said the statement, which was read aloud by Judge Jed S. Rakoff in Federal District Court in Manhattan on Tuesday.

Mr. Brendler, a 48-year-old freelance writer, wrote the sentence after soliciting input from the seven other jurors. He scratched it out on a yellow sheet ripped from a legal pad, wrapped it around the verdict form and put both in a sealed envelope that was delivered to the judge.

"It wasn't a particularly eloquent statement, but we hoped it would get a point across," Mr. Brendler said.

Keker used Where's Waldo in closing:

In explaining the verdict, both Mr. Dawson and Mr. Brendler said that they believed that Mr. Stoker was made a scapegoat for the industry's sins. In his closing statement, Mr. Stoker's lawyer, John W. Keker, hammered away at that point, arguing that his client "shouldn't be blamed for the faults of banking any more than a person who works in a lawful casino should be blamed for the faults of gambling."

Mr. Keker underscored this point by showing the jury an illustration from "Where's Waldo?," the children's book in which readers are challenged to find the hidden title character. He likened his client to Waldo, suggesting that Mr. Stoker, 41, was merely a blip in Citigroup's vast C.D.O. universe.

"Most of this trial had nothing to do with Brian Stoker," Mr. Keker said.

Mr. Dawson said that the "Where's Waldo?" allusion resonated.

"I'm not saying that Stoker was 100 percent innocent, but given the crazy environment back then it was hard to pin the blame on one person," Mr. Dawson said. "Stoker structured a deal that his bosses told him to structure, so why didn't they go after the higher-ups rather than a fall guy.