Ned Davis Award to Judge Kathy Williams

It was a really nice event at the JW Marriott Marquis. Bernie Pastor was installed as the new president, taking over for two-termer Brett Barfield. Brett did an incredible job and Bernie will as well.

The new FPD Michael Caruso introduced Judge Williams. Both showed why they are such good trial lawyers, telling interesting stories including remembering Judge Davis. Pat Davis was also in the house and it was good to see her doing so well.

Would you do 40 months in federal prison for $100 million?

Maybe crime does pay.

Would you do 40 months in federal prison for $100 million
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	No
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Busy day at the 11th Circuit

Four published opinions already and it's not 2:30 yet.

The most interesting is Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta v. The Florida Priori of the Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, the Ecumenical Order.

This is the case that Paul Clement argued.  Judge Wilson wrote the opinion and Judge Pryor wrote a partial dissent.  Lots of juicy stuff here including this line:  

The district court attributed this confusion to the “unimpressive” amount of money each group raised for charitable purposes, which led the court to believe that the members of both organizations 'are more interested in dressing up in costumes, conferring titles on each other and playing in a "weird world of princes and knights’ than in performing charitable acts."  During the trial, the judge opined that it was “tragic” that all Dr. Vann had done in her life was study the Knights of Malta and their records. (D.E. 145, 8:1–6.) He also expressed his disbelief that two charitable organizations would spend their time and money on litigation. (D.E. 144, 34:5–7.)
These remarks are wholly inappropriate in the context of a judicial proceeding and a published judicial opinion. Although a judge is not required to check his or her sense of humor at the courthouse door, we must be mindful that the parties rely on the judge to give serious consideration to their claims. Litigants are understandably frustrated when they are subject to the sort of unnecessary belittling commentary about which the parties complain here.

Yet, this wasn't enough for the Court to reassign the case:

We think the district court’s remarks, though offensive to both parties, do not rise to the level of conduct that warrants assignment to a different judge on remand. We are hard-pressed to surmise actual bias in favor of, or against, one party over the other. Moreover, we are confident that, on remand, both parties will be treated with the respect they deserve and that the district court will be able to freshly consider the remanded claims notwithstanding its previously expressed views. And, given the fact-intensive nature of this case, any reassignment would necessarily require duplication of resources expended by the parties and the court. Accordingly, we deny Plaintiff Order’s request for reassignment on remand.

Return of the Posner

Posner criticized the Scalia/Garner book on the interpretation of legal texts.
Garner responded.
Posner now issues this short reply here.  I like it:

Garner says that what I think are mistakes in the book’s description of cases are merely the result of the authors’ decision to “exclude other factors besides the canon” (statutory principle) that each case illustrates “because the examples are there merely to show how each particular canon works” and so the fact “that a given court considered other factors besides the canon is quite irrelevant to our purposes.” That is untrue. When they say that a court “perversely held that roosters are not ‘animals’” they are saying that a court erred by failing to follow a dictionary definition; in fact the court said that roosters are animals, but then gave reasons why this was not dispositive, reasons Scalia and Garner ignore. Garner now says “it would be very hard to find examples in which a single canon was the sole basis for the decision.” Precisely! The authors aren’t going to pin themselves down to a canon that might generate a result they don’t like. They want to play with 57 canons, many of them as I pointed out not textual.
Their approach is typified by the example Garner gives in his letter of a sign that reads “no person may bring a vehicle into the park.” Early in the book the authors say that an ordinance that excludes ambulances from the prohibition “is not the ordinance that the city council adopted,” for an ambulance is a vehicle. Hundreds of pages later they retract that conclusion, citing the common law defense of necessity. Garner in his letter calls this retraction an example of “nuance,” an appeal to a “mitigating doctrine.” I call it having a pocketful of nontextual interpretive principles to draw on whenever textual originalism produces dumb results, such as barring ambulances on rescue missions from parks because the dictionary says an ambulance is a vehicle.

I particularly like this paragraph:

He says I cite only six examples of cases that the book misrepresents. True, but I had space limitations. So here’s a seventh, and I will be glad to furnish others on demand. The authors summarize a well-known opinion by Holmes (McBoyle v. United States) tersely: “’automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails’”—held not to apply to an airplane.” They use this to illustrate the statutory principle called eiusdem generis, which is Latin for “of the same kind” and means that in a list of specifics that ends with a general term (for example, “cats, dogs, and other animals”) the general term should be interpreted to be similar to the listed terms (so “animals” would not include human beings). The statute under which McBoyle was convicted criminalized the transportation in interstate commerce of a “motor vehicle” known to have been stolen. Scalia and Garner do not mention “motor vehicle,” but consider only whether an airplane (the stolen property that McBoyle had transported across state lines) is the same kind of thing as an automobile, an automobile truck, etc. For Holmes the question was whether an airplane is a “motor vehicle,” and while he alluded to without naming the principle of eiusdem generis, his principal ground for reversing McBoyle’s conviction was unrelated to that principle; it was that in ordinary speech an airplane is not a motor vehicle and that a conviction for a poorly defined crime should not be allowed. He also mentioned legislative history (anathema to Scalia and Garner) in support of his interpretation. All this Scalia and Garner ignore. 

11th Circuit creeping into the tech era

We still aren't streaming video (like the 9th Circuit or the Florida Supreme Court) and we aren't making audio available the day after arguments (like the 5th Circuit), but it's a start:

Effective August 1st, the Eleventh Circuit rules provide that CD recordings of oral arguments may be purchased from the court. 

 IOP 16 following 11th Cir. R. 34-4 states:

16. CD Recordings of Oral Arguments. Oral argument is recorded for the
use of the court. Although the court is not in the court reporting or
audio recording business, copies of the court’s audio recordings of oral
arguments are available for purchase on CD upon payment of the fee
prescribed by the Judicial Conference of the United States in the Court of
Appeals Miscellaneous Fee Schedule issued pursuant to 28 U.S.C. § 1913,
payable to Clerk, U.S. Court of Appeals, Eleventh Circuit. CD recordings of
oral arguments are available for oral arguments held after August 1, 2012.
The court makes no representations about the quality of the CD recordings
or about how quickly they will become available. Oral argument recordings
are retained for a limited time by the court for its use and then the
recordings are destroyed.

Did Scott Rothstein snitch on his wife? (UPDATED)

That's the theory Charles Lichtman floats in this Herald article about the case:

Charles Lichtman, a Fort Lauderdale attorney for the bankruptcy trustee, said he suspects Scott Rothstein told prosecutors about his wife’s alleged obstruction plot rather than go along with it. The reason: Rothstein is hoping to reduce his 50-year prison sentence by continuing to cooperate with authorities.
“My belief is that Scott came clean on his own accord,” Lichtman said. “In the five weeks of depositions I have sat through with him, we have yet to find an instance where he was untruthful.” 

If that's true, then I have an even lower opinion (if that's possible) of Scott Rothstein than I did before.  Ratting on your own wife?!  Despicable.  

UPDATE -- John Pacenti drills down on the snitching angle:

Berger Singerman partner Charles Lichtman, who represents the bankruptcy trustee for Rothstein's defunct law firm, indicated the ex-lawyer cooperated in the investigation.
"I have reason to believe he responded truthfully to whatever questions he was asked about the circumstances," Lichtman said. "It never made sense to me that there was so much missing jewelry."
The new federal charges filed in two cases don't detail how the missing jewelry was uncovered but give plenty of hints.
"I got to believe there's a good chance Scott Rothstein ratted Kim out because Scott is grasping at straws to get out of prison," said Fort Lauderdale public relations executive Chuck Malkus, who has written a book The Ultimate Ponzi: The Scott Rothstein Story due out in February.
Malkus said he got a tip Kim Rothstein was in a jewelry store in downtown Fort Lauderdale with several high-end watches. When they met, Malkus said Kim Rothstein told him, "I can't go anywhere these days. I can't even get batteries for my watches."

In more pleasant news, my friends have opened up their own law practice: Gelber, Schachter and Greenberg.  Julie Kay covers it here:

Schachter and Greenberg said they decided to leave Stearns Weaver not out of dissatisfaction but out of a desire to start their own law firm.
"We always had an interest in starting our own firm and practice law in a lean, close-knit environment," said Greenberg, son of former Miami-Dade County Attorney Murray Greenberg and brother of Assistant U.S. Attorney Ben Greenberg.
Schachter said, "It was a tough decision, but it's been incredibly gratifying to take control of our careers."

It couldn't have been an easy decision as Stearns Weaver is one of the best places in Miami to work.  I wish them well.

Read more here: http://www.miamiherald.com/2012/09/06/v-fullstory/2987970/scott-rothsteins-wife-others-charged.html#storylink=cpy

Kim Rothstein charged with money laundering, obstruction, and witness tampering.

It's an information, so she's already got a plea agreement in place. From the USAO press release:

Earlier today, an Indictment was filed charging Marin and Daoud on charges of obstruction of justice and perjury. Also today, a Criminal Information was filed charging Kimberly Rothstein, Stacie Weisman and Scott F. Saidel with conspiracy to commit money laundering, to obstruct justice, and to tamper with a witness.

According to the charging documents, former Ft. Lauderdale attorney Scott W. Rothstein, who was the Chief Executive Officer and Chairman of the law firm of Rothstein, Rosenfeldt and Adler, P.A. (RRA), used the funds obtained from the operation of a Ponzi scheme to purchase tens of millions of dollars of real estate, vehicles, vessels, business interests, luxury watches, jewelry and sports memorabilia for himself, his wife, Kimberly Rothstein, and others. As part of his plea agreement, Scott W. Rothstein agreed to forfeit to the government all assets acquired with funds derived through the aforesaid Ponzi scheme. On November 9, 2009, agents of the Internal Revenue Service, Criminal Investigations, went to the Rothstein residence, where Kimberly Rothstein assisted the agents in retrieving what was believed to be all of the available cash, jewelry and luxury watches which had previously been purchased by Scott W. Rothstein with proceeds derived from the Ponzi scheme. In fact, before, during and after the aforesaid seizure by federal agents on November 9, 2009, Kimberly Rothstein, Stacie Weisman, and Scott F. Saidel knowingly took action to conceal certain items of jewelry, valued in excess of one million dollars for the purpose of preventing the government from exercising its authority to take such property into its lawful custody and control. Thereafter, Kimberly Rothstein and Stacie Weisman sold and attempted to sell a portion of this jewelry to and through various persons, including Eddy Marin and Patrick Daoud.

The charging documents further allege that, in connection with civil proceedings instituted by the Trustee in bankruptcy for RRA, all of the defendants took steps to obstruct justice by concealing the true location of certain items of jewelry in order to prevent its availability for use in those proceedings. It is further alleged that Marin and Daoud committed perjury during depositions in connection with those proceedings, and that Kimberly Rothstein, Stacie Weisman and Scott F. Saidel sought to have Scott W. Rothstein testify falsely in connection with those proceedings.

UPDATE--

Kim Rothstein has issued her own press release through her lawyer David Tucker:

In response to the Information filed against Kimberly Rothstein, please be advised that Kim welcomes the opportunity to put a very challenging time in her life behind her.
Kim would like to take the opportunity to express her disappointment, shame, and sadness in regard to all of the victims of her husband, Scott Rothstein’s, actions related to the Ponzi scheme for which he has previously been sentenced. She had no involvement or knowledge of his fraudulent activity.
She takes full responsibility for her actions in regard to the charge filed today.
Kim is a vibrant, diverse, and deeply caring person who looks forward to being a productive citizen in the years to come.
This is a very difficult time in her life and we ask that the media be sensitive to her privacy in this matter. Any inquiries should be directed to her attorneys below.

Headline writer needed

According to Rumpole, my headlines for posts aren't exciting enough.  I need more like "Summer is Over."  Oh well.

Anyway, there's lots of coverage regarding the Posner-Scalia debate, including Brian Garner's latest response in which he says that "Judge Posner went seriously off the rails in his review."  Yikes.  David Lat spoke to Posner and asked if this was personal.  Posner's response:

There is no personal animosity between Justice Scalia and me, or at least not on my side — I haven’t seen him for five or six years (we were at a conference on national security in Ottawa about that long ago). As you point out, we were colleagues in the 1970s at the U. of C. law school before we both became judges. I think I’ve described him in print as the most influential Supreme Court Justice in the period since his appointment, and I certainly adhere to that view.
I suppose it’s unusual for a lower court judge to criticize judicial or extra-judicial work by a Supreme Court Justice in public; but recall that Judge Wilkinson wrote a very critical law review article about Justice Scalia’s opinion in the Heller case. (I wrote a critical article about the opinion, as well, for the New Republic.) It’s probably not an accident that both Judge Wilkinson and I are former academics, to whom disagreement in print, without personal animosity having engendered it, comes naturally.

Meantime, Scalia is in Vegas:

A planned visit by conservative U.S. Supreme Court Justice Antonin Scalia to a Las Vegas Roman Catholic church for a ceremony seeking divine guidance for legal professionals and to a Las Vegas Strip casino reception afterward was drawing criticism Tuesday from a liberal activist who promised demonstrations to mark the events.
Scalia, who is due to begin his 27th year on the court next month, also is scheduled Wednesday to speak to law students and faculty at the Boyd School of Law at the University of Nevada, Las Vegas.
Linda Overbey, a union organizer and volunteer with the advocacy group MoveOn.org, focused on Scalia's planned attendance at a Red Mass liturgy and a reception following the service hosted by the conservative St. Thomas More Society of Nevada at the Palazzo resort. The property is owned by Las Vegas Sands Corp. and its chief, Sheldon Adelson.

 Maybe this could be the subject of a future Pacenti rant.