Government files two responses to Dore Louis' NSA motion

One is classified and one is public.

 Here's the public one, which was posted by Paula McMahon from the Sun-Sentinel.

She writes:

Federal prosecutors filed two versions of their response in federal court in Fort Lauderdale late Wednesday. The unclassified, publicly filed version was 21 pages long and included several lines that stated "CLASSIFIED INFORMATION REDACTED."
Prosecutors filed a longer, classified version of their response with supporting information under seal with U.S. District Judge Robin Rosenbaum — so even the defense attorneys cannot see it — saying the judge would need additional information to make her ruling.
Prosecutors claimed in court records that the secretive NSA program did not capture "information about where a cellular telephone was geographically located at the time a call was made."
"Thus, the government does not possess the records the defendant seeks," they wrote.
The defense will have an opportunity to respond before the judge issues her ruling, which the prosecution asked should be sealed if it contains any classified information.

If the government does not have the data, then so be it.  But 20 pages seems like a lot of words to say we don't have it.  I found the argument heading on page 17 interesting: "Neither Brady nor Rule 16 permit the defendant to conduct a fishing expedition of highly classified NSA Data." 

Government responds to Dore Louis' motion for NSA records

Last week, the blog broke the story of Dore Louis' motion seeking NSA phone records, and Judge Rosenbaum's order requiring the government to respond.  The story got a lot of attention, which was pretty neat.

The government filed a short motion this morning, asking the Court to appoint a CIPA (Classified Information Security Officer) to watch over the classified information that it will be disclosing to the defense and the Court in its response.  Here's a link to the government's motion, which is unopposed. And here is the most interesting part of it:

As a result of the filing of Brown’s Motion to Compel Production (DE:778) and CIPA Section 5 Notice (DE:779), the government’s response will require the discussion of classified material. Pursuant to the Classified Information Procedures Act (“CIPA”), 18 U.S.C. App. 3, and Section 2 of the Security Procedures established under Pub. L. 96-456, 94 Stat. 2025 by the Chief Justice of the United States and promulgated pursuant to Section 9 of CIPA the Court shall designate a CISO in any proceeding in a criminal case in which classified information is reasonably expected to be within.
 To assist the Court and court personnel in handling any motions, pleadings and implementing any orders relating to the CIPA proceedings, the government requests that the Court designate Daniel O. Hartenstein as the CISO for this case, to perform the duties and responsibilities prescribed for CISO’s in the Security Procedures promulgated by the Chief Justice.

All of this means that the government's response is likely to be deemed classified, so the public will not get a chance to see it.  What a shame...

Justice Kagan dials Jenny at 867-5309

Gotta love this -- Justice Kagan cited the famous 1982 Tommy Tutone song in American Trucking Association v. City of Los Angeles:

Under th[e] contract, a company may transport cargo at the Port in exchange for complying with various requirements. The two directly at issue here compel the company to (1) affix a placard on each truck with a phone number for reporting environmental or safety concerns (You’ve seen the type: ‘How am I driving? 213–867–5309‘) and (2) submit a plan listing off-street parking locations for each truck when not in service.

Lots of big decisions coming out this week, and SCOTUSBlog has all of the action. Unless there is some big SDFLA news, there will be very little blogging this week...

Meantime, you can listen to the classic 8675309/Jenny right here.

Supreme Court reverses 11th in Davila v. United States

Apropos of the previous post dealing with the 11th Circuit, the Supreme Court decided Davila today, 9-0:

This case concerns Rule 11 of the Federal Rules of Crim- inal Procedure, which governs guilty pleas. Two provi- sions of that rule are key here. The first, Rule 11(c)(1), instructs that “[t]he court must not participate in [plea] discussions.” The second, Rule 11(h), states: “A variance from the requirements of th[e] rule is harmless error if it does not affect substantial rights.” Rule 52(a), which covers trial court errors generally, similarly prescribes: “Any error . . . that does not affect substantial rights must be disregarded.”
Anthony Davila, respondent here, entered a guilty plea to conspiracy to defraud the United States by filing false income tax returns. He maintains that he did so because a U. S. Magistrate Judge, at a pre-plea in camera hearing and in flagrant violation of Rule 11(c)(1), told him his best course, given the strength of the Government’s case, was to plead guilty. Three months later, Davila entered a plea on advice of counsel. The hearing on Davila’s plea, con- ducted by a U. S. District Judge, complied in all respects with Rule 11.
The question presented is whether, as the Court of Appeals for the Eleventh Circuit held, the violation of Rule 11(c)(1) by the Magistrate Judge warranted automatic vacatur of Davila’s guilty plea. We hold that Rule 11(h) controls. Under the inquiry that Rule instructs, vacatur of the plea is not in order if the record shows no prejudice to Davila’s decision to plead guilty.

Interesting opinions from the 11th Circuit

1.  Judge Pryor doesn't like dissentals, which I know all too well.  His latest concurral is in Michael Morgan's case.  He starts this way:

I write to respond to the dissents filed by three of my colleagues about the
denial of a rehearing en banc. I continue to adhere to the view expressed by Judges Henry Friendly and Raymond Randolph that dissents from the denial of rehearing en banc, particularly where one did not participate in the decision, are “of dubious policy,” United States v. Shaygan, 676 F.3d 1237, 1238 (11th Cir. 2012) (Pryor, J., respecting the denial of rehearing en banc) (quoting United States v. N.Y., New Haven & Hartford R.R. Co., 276 F.2d 525, 553 (2d Cir. 1960) (Friendly, J., concurring in the denial of reh’g en banc, joined by Lumbard, C.J.), and that “denials of rehearing en banc are best followed by silence,” id. (alteration omitted) (quoting Indep. Ins. Agents of Am. v. Clarke, 965 F.2d 1077, 1080 (D.C. Cir. 1992) (Randolph, J.)). But my colleagues do not share that view, and their dissents should not go unanswered. Lest anyone doubt the correctness of our decision in this matter, I must respond to five misunderstandings in the dissents that follow. 

I disagree with Judge Pryor and think Judge Kozinski has it right:

“Cases arguably warranting en banc review are those in which the stakes are unusually high or the law is especially unclear.”⁶⁴ It does honor to the law, promotes justice, and serves the interests of an informed public when citizens learn that appellate judges have given difficult and important cases exacting scrutiny—not just one judge or even the three-judge panel, but an entire court of appeals.As Judge Clark put it in the case that started out this essay, “I do believe the court gains standing by encouraging free and thorough canvassing of these issues without the deadening influence of constraining restrictions.”⁶⁵Dissentals are here to stay. Get over it.

2.  The Court of Appeals also addressed some forfeiture issues in the Rothstein matter.  Judge Tjoflat starts off this interesting issue like this:

A number of criminal statutes within the Federal Code mandate that a
defendant, when convicted, forfeit to the United States as part of his sentence the lucre he acquired as a result of his criminal activity. In this case, the defendant, a lawyer, deposited the lucre in his law firm’s bank accounts, where it was commingled with the firm’s receipts from legitimate clients. The question this appeal presents is whether the money in the bank accounts at the time the defendant was charged is subject to forfeiture. We hold that it is not.

3.   OK, this isn't the 11th Circuit, but you gotta love how this Second Circuit opinion starts out:

In addition to the awesome cover art, Judge Chin has a cool intro:

In 1972, the Marvel Comics Group published a comic book featuring the "Ghost Rider" -- a motorcycle-riding superhero with supernatural powers and a flaming skull for a head. The issue -- which sold for twenty cents -- told the story of Johnny Blaze, a motorcycle stunt rider who promised his soul to the devil to save his adoptive father from cancer.
 

Go, Dore, Go!

There's a lengthy multi-defendant trial before Judge Rosenbaum right now. I've been hearing lots of interesting (and sometimes funny -- including Marc Seitles putting on a dress during a cross!) stories from the trial, and this one is worth sharing. Dore Louis filed a motion for phone records, which the government claims it doesn't have. But -- according to recent reports -- doesn't the government have all of our phone records? Judge Rosenbaum wants to hear from the government on this point:

Defendant Brown urges that the records are important to his defense because cell-site records could be used to show that Brown was not in the vicinity of the attempted robbery that allegedly occurred in July 2010. And, relying on a June 5, 2013, Guardian newspaper article that published a FISA Court order relating to cellular telephone data collected by Verizon,1 Defendant Brown now suggests that the Government likely actually does possess the metadata relating to telephone calls made in July 2010 from the two numbers attributed to Defendant Brown.

Under 50 U.S.C. § 1806(f), when an “aggrieved person”2 moves “to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance[3] under [FISA],” the Court must provide the Attorney General of the United States with an opportunity to file an affidavit under oath indicating whether disclosure or an adversary hearing on the defendant’s request would harm the national security of the United States. If the Attorney General files such an affidavit, the Court must conduct an in camera and ex parte review of the application, order, and other materials to determine whether the surveillance of the movant was lawfully authorized and conducted. If the Attorney General declines to file such an affidavit, however, the Court may conduct this inquiry in open court.

Upon review of the application, order, and other materials, if the Court concludes that Defendant Brown was an “aggrieved person” and that the surveillance was not lawfully authorized or conducted, it must grant Defendant’s Motion and preclude the Government from using the evidence. See 50 U.S.C. § 1806(g). And, even if the Court determines that the surveillance was lawfully authorized or conducted, it must order discovery or disclosure to the extent that due process requires it, although the Court must otherwise deny the motion. Id. Here, Defendant asserts that, under Brady v. Maryland, 373 U.S. 83 (1963), due process requires the production of the July 2010 telephone records because they are anticipated to be exculpatory in that they are expected to show that Defendant Brown was not physically located at the scene of the alleged attempted Brink’s truck robbery in July 2010.

In view of Defendant Brown’s Motion and the requirements of FISA, it is hereby ORDERED and ADJUDGED that the Government shall respond to Defendant Brown’s Motion and, if desired, shall file an affidavit of the Attorney General of the United States, as contemplated by Section 1806(f), by Wednesday, June 12, 2013. The Court regrets the short deadline for compliance but notes that the evidence that Defendant Brown seeks pertains to a trial that has been underway since May 31, 2013,4 and any order requiring the production of any materials sought would become meaningless if such items were not produced in sufficient time for the defense to use them in its case.5

Fascinating. The rest of the order, including the footnotes, are also worth reading.

Any predictions on how the government will respond?  Will we get an affidavit from General Holder?

Is sentencing out of whack?

A number of people sent me interesting emails about sentencing philosophy after reading yesterday's post. One reader sent me this link to Judge Laurie Smith Camp's posted philosophy on sentencing, which ends this way:

As a judge, I do not consider my role to be that of an instrument of public vengeance. In the words of Clint Eastwood in “Unforgiven,” – “We all have it coming.” In the words of Dustin Hoffman in “Papillon” – “Blame is for God and small children.”

Meantime, another judge found that the meth guidelines make no sense:

Sioux City-based U.S. District Judge Mark Bennett on Friday became one of a handful of U.S. judges to declare public opposition to federal sentencing guidelines for methamphetamine dealers.

He wrote that he considers them to be “fundamentally flawed,” not based on empirical data and too harsh for lower-level drug figures.

Bennett — declaring in a 44-page ruling that he has a “fundamental policy disagreement” with the methamphetamine portion of guidelines that federal judges are supposed to consider in sentencing criminals — cut the sentence of Sioux City drug dealer Willie Hayes to six years and three months from a possible 15 years, eight months.

And yesterday, the Supreme Court ruled that applying a new version of a guideline violated the ex post facto clause if that guideline called for a higher sentence, even though the guidelines are now advisory.

What a mess.

The guidelines, and sentencing in general, has become a lot like the tax code.  No one likes them, but no one has any really good ideas on how to fix them.

Sometimes, I think the solution is the state system, but then I see that Chad Ochocinco was sentenced to 30 days today even though the plea agreement called for no jail time because he congratulated his lawyer for the result by slapping his behind.

Maybe it's the Texas system where the jury issues the sentence...

A wonderful essay by Judge Kopf.

Here.

The whole thing is really worth a read.  But here is the intro:

If, over a long career, you sentence a lot of people to prison, several things can happen to you.   Most of them are bad.  Here’s a short list of some of the bad things:
*  You can begin to see offenders only in numerical terms.  ”What’s the base offense level, criminal history score and sentencing range?  Next!”
*  Unless you are very careful, you may become inured to the horrific impact that prison sentences have on offenders and their families.  ”You say your parental rights will be terminated if you go to prison, well, they’ll be better off anyway.”
*  You begin to suppress the anger that naturally flows from the horrific crimes you are forced to study.  Unless you struggle mightily to resist, you will then allow that anger to boil up to the point of an inner rage.  That rage in turn fuels a righteous indignation that, metaphorically speaking, permits you to sentence Satan while thinking of yourself as the Archangel Michael.
*  With a despair akin to that found in the best of Richard Pryor’s stand-up routines, you may find yourself making jokes with punch lines about the futility of rehabilitation.   “Say, did you hear about the guy who went to prison, was rehabilitated and came out an even better monster?”
All of these things are unconscious. If they weren’t, you would be one sick puppy.
Now, this must not become a pity party.  I have a hell of good gig.  I get paid decently, and the pension is great. People call me “judge” and the bowing and scraping I get with a snap of my fingers is a nice extra perk.  That said, if you care about doing a good job when you sentence people, you better try to find an antidote for the creepy things I have just described.
For my (partial) antidote, I realized that I needed a mental image of a physical object that would evoke a sense of balance.  The image that I settled on derives from a gift given to me by a fellow named David Tommy Gene Suggett.

The better portion of the essay, in my opinion, is the story that follows about Suggett.