Big win for AFPD Tracy Dreispul

Appellate guru Tracy Dresipul has done it again, this time in United States v. Bellaizac-Hurtado.

Judge Pryor starts off his opinion this way, which summarizes the issue and the holding nicely:

This appeal presents a novel issue about the scope of congressional power to
proscribe conduct abroad: whether the Maritime Drug Law Enforcement Act, 46
U.S.C. §§ 70503(a), 70506, exceeds the power of Congress to “define and
punish . . . Offences against the Law of Nations,” U.S. Const. Art. I, § 8, cl. 10, as
applied to the drug-trafficking activities of Yimmi Bellaizac-Hurtado, Pedro Felipe
Angulo-Rodallega, Albeiro Gonzalez-Valois, and Luis Carlos Riascos-Hurtado in
the territorial waters of Panama. Because we conclude that drug trafficking is not
an “Offence[] against the Law of Nations” and that Congress cannot
constitutionally proscribe the defendants’ conduct under the Offences Clause, we
vacate their convictions.

Florida Election Lawyers all dressed up and no where to go

President Obama easily wins, but Florida still not called.  Right now it's Obama up about 45,000 votes or 0.53 percentage points, out of a total of 8.27 million votes, with about 99 percent of the votes counted.  This time though it won't matter how Florida ultimately goes...  I wonder how all of the election lawyers who were geared up just for this scenario are feeling right now. 

So what does Obama's victory mean for the Southern District of Florida.  Some quick thoughts:

1.  Will Thomas will likely be your next federal judge, but it probably won't happen till the beginning of the year.

2.  President Obama will continue to shape this District with intellectual, moderate judges (like Williams, Scola, & Rosenbaum).  Same for the 11th Circuit (like Martin & Jordan).  There are a bunch of district openings coming up, so we will see if Obama does any better with getting judges confirmed quickly in his second term. 

3.  Willy Ferrer will stay on as U.S. Attorney.  It will be interesting to see whether he stays for the entire 4 years.

Any other thoughts?

Field trip to Pakistan

Judge Scola granted the defense motion to take depos in Pakistan, according to Jay Weaver:

In a rare legal move, attorneys for two South Florida Muslim clerics accused of aiding terrorists will be allowed to travel to Pakistan during a Miami trial to question witnesses considered crucial to their defense.
A federal judge has granted permission to attorneys for two former imams of local mosques, father and son Hafiz Khan and Izhar Khan, to travel to Islamabad in February to depose five witnesses during a live video teleconference call with prosecutors remaining in Miami.
Federal prosecutors had opposed the depositions under any circumstances, noting the difficulty of cross-examining the Pakistani witnesses, three of whom were indicted along with the Khans on charges of conspiring to support the Taliban. But the judge disagreed, citing basic fairness.
“All things being equal, the court would prefer that both government and defense attorneys be able to travel to the deposition room in Islamabad,” U.S. District Judge Robert Scola wrote in his 10-page ruling issued Friday.
“But that cannot occur. Government attorneys cannot safely travel to Islamabad to participate in the depositions,” he wrote. “Using [video-teleconferencing] works around this safety problem to preserve evidence critical to defendants combating the charges they face, while still allowing prosecutors to cross-examine [the witnesses].” Scola established logistical requirements for the Feb. 4 depositions, which will take place after the Khans’ trial gets underway in January.
Among them: Two video cameras for the witnesses and deposition room in an Islamabad hotel, and one for the Miami federal courtroom. A Pakistani official must be present in Islamabad to verify the identity of the witnesses. Interpreters must be in Islamabad to translate, and a court reporter must be in Miami to transcribe the depositions live.

Read more here: http://www.miamiherald.com/2012/11/05/3083483/judge-miami-defense-lawyers-can.html#storylink=misearch#storylink=cpy

Hot girls getting guys drunk on South Beach is now a federal crime?

Jay Weaver covers the B-Girls trial here.  The intro tells a story about a dude spending lots of money after getting wasted:

During the height of the tourist season two years ago, a Philadelphia TV weatherman flew down to Miami Beach for a little fun in the sun.
At the Delano Hotel, John Bolaris was approached by a couple of the Beach’s finest “bar girls.” The sexy duo said they were visiting from Estonia. They ordered rounds of shots, wine and champagne while pecking him on the cheek.
Then they lured the liquored-up Bolaris to a Russian-style nightclub called Caviar Bar on Washington Avenue. Over the next two nights, he signed American Express charge slips for more than $43,000, picking up the tab for extravagantly overpriced Dom Perignon, Beluga caviar and other items, including $2,480 for a modernistic painting of a woman that had been hanging in the bar.
Bolaris’ tale of woe and regret and others like it are coming out in Miami federal court during the trial of five business associates accused of being the puppet masters behind South Beach’s “B-girl” scene, as it is known.
Among the witnesses: B-girl Marina Turcina, who said Bolaris was so smashed he was vomiting on the way back to the Fontainebleau, where he’d been staying.
“He smelled really bad,’’ she said.

 Since when are tales of woe and regret criminal? I haven't been in Court and haven't followed the evidence, but I have heard that there are stories of girls drugging the customers without their knowledge.  Clearly if this happened, it's criminal.  But even if that happened, is it a federal offense? Why isn't this a classic state court crime?

dsf
Read more here: http://www.miamiherald.com/2012/11/03/3081324/russian-mafioso-put-bar-girls.html#storylink=cpy

BREAKING-- PATRICK HUNT NAMED NEW MAGISTRATE

This is great news.

I tried one of my first cases with Pat Hunt and he is a smart, fantastic lawyer.  He'll be a great magistrate.  CONGRATS!

Separate Sovereign Spat

This one should be interesting.  The feds aren't happy with the way Bal Harbour is spending its forfeiture loot.  From the Herald:

The U.S. Justice Department shut down Bal Harbour’s celebrated federal forfeiture program and ordered the police to return more than $4 million, slapping the agency with crushing sanctions for tapping into drug money to pay for first-class flights, luxury car rentals, and payments to informants across the country


After years of seizing millions from criminals, Bal Harbour’s vice squad is now banned from the federal program that allowed the village police for years to seize cars, boats, and cash — and to keep a cut of the proceeds.

In a scathing letter to Police Chief Thomas Hunker, federal agents are demanding the prompt surrender of the millions reeled in last year by a team that operates from a police trailer just blocks from the opulent Bal Harbour Shops.

For years, the small coastal town known for speed traps became one of the most successful in Florida, with plainclothes cops jetting across the nation toting bags stuffed with cash from investigations that had no connection to Bal Harbour — and making few arrests.

The findings, released on Tuesday, were also sent to Mayor Jean Rosenfield, who could not be reached for a comment.

The action by the DOJ’s criminal division comes after a lengthy investigation that began last year with an audit and escalated into a deep probe that turned up a host of problems, including questionable expenses, hundreds of thousands paid to snitches, and missing records.

With all that money, the po-po could've bought this $3 million Matisse ("Odalisque in Red Pants") for their lobby:

 

Actually the pair that stole it (Antonio Marcuello Guzman and Maria Martha Elisa Ornelas Lazo)
pleaded guilty yesterday, and sentencing is scheduled for January 22.  How much do you get for trying to sell a stolen painting worth millions?  More or less than Gupta's 2 years?

"Canine cocaine connoisseurs” would “roam the streets at random, alerting the officers to people carrying cocaine.”

That was William Brennan in a dissent written, fittingly enough, in 1984. Tomorrow, the Supreme Court takes up the dog sniff question again, this time dealing with the home.  Adam Liptak has more:

Alan Diaz/Associated Press

The Florida Supreme Court threw out the evidence in a case involving Franky, a retired narcotics detector dog.

Aldo, a German shepherd, and Franky, a chocolate Labrador retriever, are exceptions. The Supreme Court plans to hear their cases on Wednesday.

The basic question in both cases, said Orin S. Kerr, a leading expert on the Fourth Amendment right against unreasonable search, is this: “What do you think of a dog’s nose?”

It is surely a marvel. But is it also, as the Supreme Court has suggested in previous cases, essentially infallible?

The great thing about dogs trained to sniff out drugs and other contraband, the court has said, is that they cannot invade human privacy because their noses reveal, as Justice John Paul Stevens put it in 2005, “no information other than the location of a substance that no individual has any right to possess.”

As the prosecutors in Franky’s case wrote, “anything else that the dog smells remains private.”

But there is reason to doubt that dogs are, as a brief for two groups of criminal defense lawyers put it, “binary contraband detectors.”

Justice David H. Souter, in a dissent from the 2005 decision, cited a study showing “that dogs in artificial testing situations return false positives anywhere from 12.5 to 60 percent of the time.”

“The infallible dog,” he wrote, “is a creature of legal fiction.”

Federal Government closes, except for Supreme Court (UPDATED)

Everyone else in Washington, DC and NY today is closed, except for the Supreme Court (and Howard Stern).  The Court granted cert in four new cases.  Per SCOTUSblog:

The Supreme Court, fully at work while most of the rest of official Washington takes a weather day off, agreed on Monday to hear four new cases, including a plea to give convicted individuals a new chance to claim that their defense lawyers in state court failed to perform adequately.  That is an issue that arose in the wake of last Term’s decision in Martinez v. Ryan.  The new case on that question is Trevino v. Thaler (11-10870).
The other granted cases involve a test of whether a convicted individual’s claim of innocence of the crime will be treated as an excuse for failing to pursue a federal habeas challenge on time (McQuiggin v. Perkins, 12-126),  clarification of how the Internal Revenue Service calculates the foreign tax credit (PPL Corporation v. Commissioner, 12-43), and whether misconduct by a trustee in bankruptcy has an effect on the debts to be discharged (Bullock v. BankChampaign, 11-1518).

UPDATE-- the Supreme Court will be closed tomorrow (Tuesday).

Mike Scarcella covers how a Romney administration would change DOJ.  A very interesting piece:


Former U.S. attorneys general William Barr and Michael Mukasey are among top ex-DOJ lawyers advising the Romney campaign on law enforcement issues. The team also includes former Criminal Division assistant attorney general Alice Fisher, the head of the Washington office of Latham & Watkins, and George Terwilliger III, a former acting attorney general under President George H.W. Bush, who recently announced that he'll be leaving White & Case to join the D.C. office of Morgan, Lewis & Bockius on November 1.
Business interest groups have pressed DOJ in recent months to provide a better road map for companies to comply with the Foreign Corrupt Practices Act, a powerful anti-bribery tool that has been a boon for Holder's department. Addressing the FCPA and white-collar investigations, Terwilliger last week published a paper through the U.S. Chamber of Commerce's Institute for Legal Reform insisting that DOJ give companies a clearer sense of the foundation when charges are not brought. In short: Corporations want better-defined boundaries, he said.
Some critics see stepped-up FCPA actions as a hindrance to American competitiveness abroad. Not Lanny Breuer, the DOJ Criminal Division leader. In a speech last week in London, Breuer argued the department's FCPA work has helped "level the playing field for U.S. and foreign ­companies, and motivates corporations to create genuine cultures of compliance."
Compliance expert Alexandra Wrage, president of TRACE International and a former chair of the American Bar Association's anti-corruption committee, said any attorney general under Romney would have a difficult time trying to scale back FCPA enforcement considering how much money companies have pumped into compliance in recent years. "The floodgates are open now," Wrage said.
In the False Claims Act arena, Elizabeth Papez, a Winston & Strawn litigation partner in Washington, said DOJ's "unprecedented enforcement agenda and record whistleblower awards" have created a backlog of cases for the department to investigate — whether Holder is leading the agency or another attorney general. Since 2009, according to DOJ, the department has recovered more than $11 billion under the FCA.
"The cost and uncertainty associated with prolonged investigations and delays in government intervention decisions can be a drain on the department and businesses that everyone should want to minimize," Papez said in an email. (Papez, a member of Romney's legal advisory team, said she was not speaking for the candidate.)

Closer to home, Rumpole covers Judge Milton Hirsch's ruling on fingerprints, which prohibits the State's expert from saying that the prints are "a match."  The order is an excellent read.  From Dave Ovalle's article:

In his order on the Borrego case, Hirsch analyzes the origin of fingerprint science, from Shakespeare’s The Second Part of King Henry to Mark Twain’s Life on the Mississippi to the British pioneering of fingerprint evidence in 19th-century colonial India.

In his order, he says that “no one can articulate a principle of anatomy, biology, physiology, pursuant to which two persons cannot have the same fingerprint.”
Attorney Tamara Lave, a University of Miami professor of criminal procedure, said that she believes Hirsch is right. The reason: experts such as those at the National Academy of Sciences — which authored a 2009 study on forensic evidence — say language describing an “absolute” fingerprint match is “unjustified.”
“What is unique is the joy in which he wrote his opinion. Most judges don’t go through the trouble of quoting Shakespeare and great works of American Literature,” Lave said.

Read more here: http://www.miamiherald.com/2012/10/28/3071658_p2/miami-dade-judge-rules-fingerprint.html#storylink=cpy

Read more here: http://www.miamiherald.com/2012/10/28/3071658/miami-dade-judge-rules-fingerprint.html#storylink=cpy