A houseboat is a house!

So says the High Court (at least in this case) in a nice win for local Fane Lozman in: Lozman v. Riviera Beach.  Prior blog coverage here.

Lozman was pro se in the district court case here in the SDFLA, but ended up being represented by a number of high powered lawyers, including Jeffrey Fischer. 

Here's SCOTUSBlog's coverage of the decision today:

Casting aside the simplistic notion that “anything that floats” is a watercraft whose use and activity is controlled by maritime law, the Supreme Court on Tuesday installed a “reasonable observer” at dockside to make the judgment about whether a floating structure qualifies, or not, as a “vessel.” The vote was seven to two, in favor of a maverick Florida owner of a houseboat who was constantly in hot water with marina owners, but now appears to have the last word: the marina probably will have to pay him, not the other way around.
The dissenters complained that the Court was introducing confusion and complexity into what should be straightforward and explicit, and thus upsetting the expectations of the entire maritime industry. The majority, in an opinion by Justice Stephen G. Breyer, insisted that its “reasonable observer” test would work in the real world of floating structures.

While this case turned on a boxy two-story floating home that Fane Lozman had lived in at various marinas in Florida, the Court treated his case (Lozman v. Riviera Beach, 11-626) as one with considerably wider impact on maritime law. What came out of it, in the end, was a reliance upon the traditional legal figure of the “reasonable man” (to be politically correct, now the “reasonable observer”) to make a common-sense assessment of the physical characteristics and activities of a floating structure, and then decide whether it was meant to be a vehicle of water transportation. Courts, of course, will be deciding what the “reasonable observer” would see, presumably on a case-by-case basis.
Under this test, not all houseboats will be exempt from maritime regulation, since many of them have motors to propel them, so a reasonable view of them is likely to be that they can be moved over water, carrying goods and people. But neither will all dockside structures used as homes, and ill-fitted for gliding over the waves, come under the new definition, because they probably will not be seen as transport vessels. It may take some time, and quite a bit of litigation, to see the difference between them, and between other floating structures.

Magistrate opening in Ft. Lauderdale AND JUSTICE THOMAS SPEAKS

First, the magistrate announcement via the Court website (HT Captain):

United States District Court
Southern District of Florida
Public Notice

Posted: January 8, 2013

United States District Court
Southern District of Florida
Public Notice

United States Magistrate Judge
Fort Lauderdale, Florida

The Judicial Conference of the United States has authorized the appointment of a full-time United States Magistrate Judge for the Southern District of Florida at Fort Lauderdale. Due to space limitations and other considerations, the appointee will likely have chambers and case assignments in both Fort Lauderdale and Miami. This appointment will succeed the incumbent who will be retiring on or about January 27, 2013.

******

Merit Selection panel composed of attorneys and other members of the community will review all applicants and recommend to the judges of the district court, in confidence, the names of at least five applicants for the position whose character, experience, ability and commitment to equal justice under law fully qualify them to serve as a United States magistrate judge. The Court will make the appointment, following an FBI full-field investigation and an IRS tax check of the appointee. An affirmative effort will be made to give due consideration to all qualified candidates, including women and members of minority groups. The current annual salary for the position is $160,080.00. The term of office is eight years.
All applicants are expected to review Administrative Order 2011-50, in re: Procedures Governing Contact with District Judges During Magistrate Judge Merit Selection Process.

Click here for the official application. Completed applications must be submitted to: Flsd_magistratejudgerecruitment@flsd.uscourts.gov

All applications will be kept confidential, unless the applicant consents to disclosure, and all applications will be examined only by members of the Merit Selection Panel and the judges of the district court. The panel’s deliberations will remain confidential.

Instructions for completion and submission of the application are included on each application form. Completed applications must be received by 5:00 p.m. on February 8, 2013.

AND BIG NEWS FROM THE SUPREME COURT:

Justice Thomas spoke for the first time during an oral argument in 7 years.  He didn't ask a question.  The transcript shows only four words: "Well, he did not."  But hey, it's something... Here is the transcript:

JUSTICE SCALIA: She was a graduate of Yale law school, wasn’t she?

MS. SIGLER: She’s a very impressive attorney.

JUSTICE SCALIA: And another of his counsel, Mr. Singer — of the three that he had — he was a graduate of Harvard law school, wasn’t he?

MS. SIGLER: Yes, Your Honor.

JUSTICE SCALIA: Son of a gJUSTICE THOMAS: Well — he did not - (Laughter.)

MS. SIGLER: I would refute that, Justice Thomas.

JUSTICE SOTOMAYOR: Counsel, do you want to define constitutionally adequate counsel? Is it anybody who’s graduated from Harvard and Yale?

(Laughter.)

JUSTICE SOTOMAYOR: Or even just passed the Bar?

MS. SIGLER: Or LSU law.

 Here is the Above the Law coverage, which has the whole story.

“No one has done anything illegal or broke the law."

That was former Miami police officer Raul Iglesias (prior coverage here) on tape to an undercover informer.  Seems like great stuff for him, but it was the feds that played the tape to end their case and rest before Judge Altonaga.  Here are transcripts (part 1 and part 2) of the tapes via the Miami Herald, which covers the case this way:

Later in their chat, Asanza — who was cooperating with authorities and trying to bait his boss into incriminating statements — expressed fears about lying on the witness stand if he was asked to testify. Iglesias agreed that committing perjury would be a bad idea.
“Yeah, of course, you don’t wanna, you don’t wanna f---ing lie,’’ Iglesias responded.
The secret tape recording from June 2010 was the last piece of evidence that prosecutors presented before resting their corruption case Friday against Iglesias, 40, who has been on the force for 18 years.
Iglesias, an ex-Marine and Iraq War veteran who was shot in the leg during a 2004 drug bust, is standing trial on charges of planting cocaine on a suspect, stealing drugs and money from dope dealers, and lying to investigators about a box of money left in an abandoned car as part of an FBI sting.
Asanza, 33, also an ex-Marine, pleaded guilty last year to a misdemeanor charge of possessing cocaine and marijuana. The deal helped him avoid a felony conviction; in exchange, he testified Thursday that Iglesias told him it was “okay” to pay off confidential informants with drugs.
The secret tape recording could cut both ways for jurors. On it, Iglesias did not say anything to Asanza to implicate himself in connection with charges in the nine-count indictment, his defense attorney, Rick Diaz, pointed out Friday. The charges encompass the police sergeant’s brief stint as head of the Crime Supression Unit from January to May 2010.

Read more here: http://www.miamiherald.com/2013/01/11/3178680/jurors-hear-secret-tape-recording.html#storylink=cpy

  
Should be interesting to see how this thing ends.

The buck stops here.

Looks like there are going to be a bunch of arrests in the FBI investigation into a Miami police gambling ring.  From the Herald:

At least nine Miami police officers are expected to face federal criminal charges or internal discipline from a broadening FBI investigation into a suspected protection scheme involving a Liberty City gambling ring and other criminal activity, The Miami Herald has learned.
Six of those officers have already resigned or been relieved of duty in recent weeks in connection with the investigation, according to sources close to the probe. The FBI, working with Miami police internal affairs investigators, is expected to make arrests before the end of the month.
The officers, who worked in the Model City substation, are suspected of providing off-the-books protection to a Liberty City barber shop that served as a front for an illegal sports-betting operation busted last March. Officers frequented the barber shop so often that one gambler told county police he thought the place was being run by the Miami Police Department, court records show.

Read more here: http://www.miamiherald.com/2013/01/09/3175204/fbi-probe-targets-more-miami-cops.html#storylink=cpy

***
On March 26, Miami-Dade police detectives raided the barber shop and two other South Miami-Dade locations following a six-month gambling investigation dubbed “Operation Pass the Buck.” Five men were arrested on gambling charges, accused of organizing bets on football and basketball games in the back rooms, court records show.
The off-duty police work at Player’s Choice, which has since closed, was not approved through proper channels, the sources say.

 

 

Read more here: http://www.miamiherald.com/2013/01/09/3175204/fbi-probe-targets-more-miami-cops.html#storylink=cpy

Generally in our legal system, the buck stops at the Supreme Court, but these statistics (here is the underlying data) confirm that it's almost impossible to get cert granted. Your chances last year, if you filed a cert petition, were less than 1%!  And the year before that, just over 1%. 

"[The Eleventh Circuit] does not seem to be listening [to the Supreme Court]."

That's the intro to this New York Times article about death penalty habeas cases in which the lawyer's mistakes end up costing their clients.  One such story from the intro to the article:

A few days after Christmas, a divided three-judge panel of the court ruled that Ronald B. Smith, a death row inmate in Alabama, could not pursue a challenge to his conviction and sentence because he had not “properly filed” a document by a certain deadline.

As it happens, there is no dispute that the document was filed on time. But it was not “properly filed,” the majority said, because Mr. Smith’s lawyer did not at the same time pay the $154 filing fee or file a motion to establish something also not in dispute — that his client was indigent.

Nor did the majority place much weight on the fact that the lawyer himself was on probation for public intoxication and was addicted to crystal methamphetamine while he was being less than punctilious. In the months that followed, the lawyer would be charged with drug possession, declare bankruptcy and commit suicide.

 

The 11th in a 2-1 decision said no problem. The conclusion to the article explains that Judge Barkett has been dissenting in these cases:

 

Judge Rosemary Barkett dissented, saying she did not see how the case was materially different from that of Mr. Maples or a 2010 rebuke from the Supreme Court to her court. In that second case, a Florida death row inmate named Albert Holland was given a new opportunity to argue that his lawyer’s inaccessibility and incompetence had caused him to miss a deadline. In a concurrence in April in yet another blown-deadline case, Judge Barkett identified the larger question that runs through these cases: why is it morally permissible to blame clients for their lawyers’ mistakes?

The legal system generally answers by saying that lawyers are their clients’ agents. The answer makes perfect sense when you are talking about sophisticated clients who choose their lawyers, supervise their work and fire them if they turn out to be incompetent or worse.

But the theory turns problematic, Judge Barkett wrote, when the clients are on death row, have no role in the selection of their lawyers and have no real control over them.

Allowing Mr. Smith’s challenge to be heard in a federal court does not mean he would prevail. But, Judge Barkett said, he ought to be allowed to make his case. “It is unjust and inequitable,” she wrote, “to require death row inmates to suffer the consequences of their attorneys’ negligence.”

“It’s 90 percent accurate. Except the tutor is not as nerdy.”

That's Chief Judge Moreno discussing his role in the movie Rudy as Rudy's tutor.  Jay Weaver has a very entertaining article about the Notre Dame vs. Alabama Championship game tonight, and the federal judge ties to the game, including in addition to Judge Moreno, Judges Cohn (huge Bama fan) and Zloch (former ND QB).  More about Rudy:

It’s hard to say which fan has more bragging rights, but one thing is abundantly clear: Moreno’s cavernous chambers on the 12th floor of the ship-shaped federal courthouse in downtown Miami is like a shrine to his alma mater.
In the lobby to his office hangs a framed poster of the movie Rudy, autographed by his former college pal, Daniel E. “Rudy” Ruettiger. It reads: “To Judge Moreno, My Best Friend and #1 Inspiration … Ya Da Best, Rudy.”
The 1993 movie is about Rudy’s 27 seconds of fame during his one-game career as a fifth-string Fighting Irish defensive end. He beat all the odds to get into Notre Dame and onto the football team — thanks, in part, to Moreno.
The pair lived in adjacent dorm rooms in 1973 and ’74, while Moreno attended Notre Dame and Rudy was going to a nearby junior college, Holy Cross. Moreno, who majored in government and international relations, tutored Rudy in math, English and Spanish. Rudy was eventually admitted into Notre Dame, and the rest is history.
In the movie, Hollywood took some artistic license with Rudy’s script and portrayed the “tutor” on the big screen as a nerd who wore two watches and depended on Rudy to get him dates.

 

I particularly like the plaque in Judge Moreno's chambers that says: "Judge like a Champion today." 

And here's Judge Cohn:

“I’ve been an Alabama football fan my whole life,” said Cohn, who was born in Montgomery, raised in Tuskegee and graduated in 1971 from the state university in Tuscaloosa. “When [legendary coach] Bear Bryant came to Alabama in 1958, I was 10 years old. He was a god-like figure in Alabama,” Cohn said. In his Fort Lauderdale chambers, he displays an autographed picture of the current Alabama coach, with the inscription: “To Judge Cohn, Roll Tide, Nick Saban.”

Fun stuff.

Monday news & notes

1.  Anthony Davila is headed to the Supreme Court.  The blog coverage of the appellate case is here and it centered around his lawyer's decision to file an Anders brief before the 11th Circuit.  The appellate court, though, found an interesting issue, and now it's headed to the High Court.  Here's SCOTUSblog's coverage of the issue:

The Justices agreed to hear an appeal by the federal government in United States v. Davila (12-167), testing what the remedy is to be in a plea-bargained criminal case when a federal judge had some role leading up to agreement on the plea deal. The Eleventh Circuit Court ruled that, if the judge (in this case, a magistrate judge) has any role whatsoever in the plea talks, the guilty plea that resulted must be thrown out. The government petition argued that the guilty plea should be overturned only if the judge’s participation had resulted in prejudice to the accused.
 

2.  Openings were conducted on Friday before Judge Scola in the Pakistani Taliban case. The case is moving at an incredible clip.  Voir dire in a couple days, and each party only requested 20 minutes for opening statements. The Herald coverage, via Jay Weaver:

Hafiz Khan, a hunched man with a flowing white beard, was called the “Santa Claus imam” by the youngsters who attended his modest Flagler Mosque in Miami.
But on Friday, a federal prosecutor portrayed the 77-year-old Muslim cleric as an evil man who spewed hateful words about his adopted country and funneled at least $50,000 to support the Pakistani Taliban terrorist organization in violent attacks against U.S. interests overseas.
His goal, Assistant U.S. Attorney John Shipley said in opening statements of Khan’s terrorism trial, was to help arm the Taliban militants with weapons for their mission to topple the Pakistan government and carry out terrorist attacks against the U.S. military abroad.
“This is no man of peace,” Shipley told the 12-person federal jury Friday. “This is not a religious leader that any of you would respect.’’ 

*** 

Hafiz Khan’s attorney, Khurrum Wahid, said in opening statements that prosecutors have created a “caricature” of his client, asserting that his words were “hyperbole” and “contrary” to the Taliban’s violent campaign. Wahid said his client was driven by a “love” for the people in the Swat Valley region of Pakistan, near the Afghanistan border, where he was born and raised before becoming a Muslim leader and founder of a madrassa religious school.

“You’re going to hear he loved helping the poor and needy,” Wahid told jurors. “You’re going to hear he’s not pro-Taliban. In fact, it’s quite the contrary. ... You’re going to hearing of no evidence that the money went for guns. ...You’re going to hear it was for the madrassa, the love of his life.”
The younger Khan’s defense lawyer, Joseph Rosenbaum, minced the prosecution’s case against his client, saying that Izhar rarely came up in FBI-recorded phone conversations and was not personally responsible for sending any money to the Taliban.
Rosenbaum said that Izhar never heard a potentially incriminating voice mail message left on his answering machine by his father to pick up $300 from a South Florida donor, that the father said had been “approved for the mujahideen,” or Taliban militants.
 

3.  Cops vs. Cops. Rick vs. Rick.  The Altonaga trial is underway with Rick Del Toro and Rick Diaz battling it out.  From Scott Hiaasen:

A pair of veteran Miami narcotics detectives testified in federal court Friday against their former supervisor, accusing Sgt. Raul Iglesias of scheming to plant cocaine on a suspect and once carrying what appeared to be a bag of crack in his personal bag.
Detectives Suberto Hernandez and Luis Valdes told jurors that Iglesias asked the pair if they had any “throw-down dope” to plant on a drug suspect after a search of the man during a Jan. 27, 2010, surveillance operation turned up no drugs.
“He looked at myself and Hernandez and he asked for throw-down dope,” said Valdes, an officer for nearly nine years. “I said, ‘We don’t do that here. Nobody on this team does it.’ ”
Iglesias, 40, is on trial facing nine counts of conspiracy to possess cocaine, violating suspects’ civil rights, obstruction of justice and making false statements. The charges stem from what federal prosecutors have described as four separate incidents of misconduct over a four-month period in 2010, when Iglesias led a team in the police department’s Crime Suppression Unit, which targets street-level drug sales.***But under cross-examination from Iglesias’ lawyer, Rick Diaz, Valdes conceded that he did not see Martinez hand the drugs to Iglesias. Nor did he see Iglesias plant the baggie on Rafael Hernandez. Iglesias told the detectives he found the drugs in the back pocket of Rafael Hernandez’s jeans — though neither detective saw Iglesias search the suspect.
Diaz challenged the detectives’ stories and suggested that Iglesias simply found evidence that Detective Hernandez had overlooked. The lawyer questioned how thorough Hernandez was in his search, noting that, in a case in 2004, the detective had failed to find drugs on a suspect who was later found to be carrying them.
And in an interview with Internal Affairs detectives and an FBI agent in May 2010, Diaz told the jury, Detective Hernandez described his search of the suspect as merely a “pat down” — a less intrusive type of search that does not include searching the contents of a suspect’s pockets.
Valdes and Hernandez also said they once saw a bag of what appeared to be crack cocaine in a military-style bag that Iglesias owned. They said the bag was not marked as evidence or part of a police-issued “sting kit” used when officers pretend to be drug dealers in reverse stings. But Diaz argued that the bag may have contained “sham” drugs or household items that merely looked like drugs.
If the detectives thought Iglesias was carrying illegal drugs or planting evidence, Diaz asked, then why didn’t the officers complain to their superiors, or even arrest Iglesias?

“Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress...

...But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness."

That was Second Circuit Judge Jon O. Newman in an opinion all about the middle finger.  Here's the intro to the opinion:

An irate automobile passenger’s act of “giving the finger,” a gesture of insult known for centuries,1 to a policeman has led to a seizure of two persons ordered to return to an automobile, an arrest for disorderly conduct, a civil rights suit, and now this appeal. Plaintiffs-Appellants John Swartz (“John”) and his wife, Judy Mayton-Swartz (“Judy”), appeal the July 8, 2011, judgment of the United States District Court for the Northern District of New York (David N. Hurd, District Judge) granting summary judgment to Defendants-Appellees Richard Insogna, a St. Johnsville, New York, police officer, and Kevin Collins, an officer with the Montgomery, New York, Sheriff’s Department.
 
Accepting, as we must at this stage of the litigation, the Plaintiffs’ version of the facts, we vacate the judgment and remand for further proceedings.

I like footnote 1: See Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87, 91 n.1 (2d Cir. 1998) (reporting the use of the gesture by Diogenes to insult Demosthenes). Even earlier, Strepsiades was portrayed by Aristophanes as extending the middle finger to insult Aristotle. See Aristophanes, The Clouds (W. Arrowsmith, trans., Running Press (1962)). Possibly the first recorded use of the gesture in the United States occurred in 1886 when a joint baseball team photograph of the Boston Beaneaters and the New York Giants showed a Boston pitcher giving the finger to the Giants. See Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law , 41 U.C. Davis L. Rev. 1403, 1415 (2008).


The NY Times has more:

There is usually no mistaking the act or intent of extending a middle finger.

John Swartz was arrested in May 2006 after he raised his middle finger upon spotting a police radar device in St. Johnsville, N.Y. An officer says he thought Mr. Swartz might be seeking help.

Take John Swartz, for example. In May 2006, Mr. Swartz was a passenger in a car in a rural part of upstate New York when he spotted a police car that was using a radar speed-tracking device.

Mr. Swartz, a Vietnam veteran and retired airline pilot, acted on instinct to show his displeasure: he extended his right arm outside the passenger’s side window, and then further extended his middle finger over the car’s roof.

The reaction was swift. The officer followed the car; words were exchanged; backups were called; and Mr. Swartz was arrested on a charge of disorderly conduct.

He later filed a civil rights lawsuit, and although a lower court judge dismissed the case, the prestigious United States Court of Appeals for the Second Circuit in Manhattan reversed that decision on Thursday, ruling that Mr. Swartz’s lawsuit can go forward.

The appellate decision offers a rich thumbnail sketch of the history and significance of the raised middle finger, one that traces possibly the first recorded use of the gesture in the United States to 1886, “when a joint baseball team photograph of the Boston Beaneaters and the New York Giants showed a Boston pitcher giving the finger to the Giants.”

Mr. Swartz’s intent, 120 years later, was undoubtedly similar.

He made the gesture as his fiancée and now wife, Judy Swartz, was driving on the Sunday evening before Memorial Day through St. Johnsville, a village of under 2,000 people, about 50 miles northwest of Albany.

“I couldn’t see the officer, didn’t know who he was,” Mr. Swartz, 62, recalled on Thursday. He explained that his gesture was provoked by his anger that the local police were spending their time running a speed trap instead of patrolling and solving crimes.

“It was very disheartening,” Mr. Swartz said. “They’d do it constantly to the point where they ignored all of their other duties.”