Judicial happenings

1.  Congrats to Judge Carnes on becoming Chief of the 11th Circuit.  From the Montgomery Advertiser:

Joel Dubina, Montgomery-based federal appeals court judge, will step down today as chief judge of the 11th Circuit Court of Appeals, and a Montgomery judge will succeed him.

The 11th Circuit announced Wednesday that U.S. Circuit Judge Ed Carnes will assume the position, which is awarded in order of seniority. Dubina was appointed to the 11th Circuit Court of Appeals in 1990 after four years as a U.S. district judge in Montgomery; Carnes was appointed to the circuit in 1992. Both were appointed by President George H.W. Bush.

Judge Dubina had a great run as Chief and will remain active on the court.

2.  Glenn Sugameli breaks the news again about federal judgeships:

A) New future vacancy raises US total to 101 current and future vacancies

B) Major bill to create 91 new federal judgeships, including many in FL

How will this bill affect us:

Permanent judgeships:

· 3 additional district judgeships for the southern district of Florida;

· 5 additional district judgeships for the middle district of Florida;

· 1 additional district judgeship for the northern district of Florida;

Temporary judgeships:

· 1 additional district judgeship for the middle district of Florida;


Permanent status to temporary judgeships:

· 1 in the southern district of Florida;

Of course we currently have two open seats and the JNC is accepting applications now, until August 19 (the first day of school).  From everything I am hearing, there is an expectation that there will be about 25 applications, and the JNC will then send 4 names to the Senators for 2 slots (after the interviews). 

Student settles with DEA for $4.1 million for detention without food or water

Hard to believe this actually happened:

A California university student who was left handcuffed in a federal holding cell for nearly 5 days without food or water has reached a $4.1 million settlement with the U.S. Drug Enforcement Administration (DEA), his lawyers said on Tuesday.

Daniel Chong, who was rounded up along with eight other people in an April 21, 2012, drug raid at a San Diego area home, has said that he was forced to drink his own urine and nearly died after being placed in the cell and apparently forgotten.

After the ordeal, the 24-year-old student of the University of California, San Diego, spent five days in a San Diego hospital, three of them in intensive care. Last year, he filed a $20 million claim, a precursor to a lawsuit, against the DEA.

On Tuesday, his attorneys, Eugene Iredale and Julia Yoo, said they had settled that claim with the DEA for $4.1 million.
***
Chong's lawyers have said that he was arrested at the home of friend during a raid by a drug enforcement task force investigating an ecstasy trafficking ring that included DEA agents, sheriff's deputies and San Diego police officers.

Iredale said that once authorities determined Chong was not part of the ring, a San Diego police officer put him in the 5-foot by 10-foot cell with his hands cuffed behind his back, telling him, "We'll come to get you in a minute."

Instead, Chong remained in the cell for four and a half days and by the time he was found he was suffering from severe dehydration, muscle deterioration, hallucinations, liver and kidney failure and extremely high levels of sodium, according to his attorneys. He lost 15 pounds during the ordeal.

So, I ask you readers of the blog, would you go through that ordeal for the money?

Would you spend 4+ days in solitary confinement without food, water, or a bathroom for $4 million?
	Yes, but not for less than $4 million
	Yes, I would do it for anything over $1 million
	No, but I would for $10 million
	No, I would never do it for any amount of money
pollcode.com free polls

Compromise verdict in "pill mill" case

Judge Marra has been trying a lengthy trial of two doctors that lasted most of the summer.  These are the final two defendants from the large George brothers' organization.  The two doctors were found not guilty of almost all of the charges and guilty of conspiracy to commit money laundering.  Neither side seems too thrilled.

From the Sun-Sentinel:

More than two dozen clinic employees, doctors and managers pleaded guilty to related charges in the case. Some, including clinic owner Christopher George, formerly of Wellington, testified against Castronuovo and Cadet during their two-month trial.
Castronuovo and Cadet, the only clinic employees who did not plead out, denied being part of or even knowing about a conspiracy to illegally distribute drugs. Each claimed that they prescribed medications based on need.
The allegations were severe: Cadet was accused of prescribing drugs that led to the deaths of seven patients. Castronuovo's prescriptions led to two deaths, prosecutors said.
Each faced life in prison and a fine of up to $2 million if convicted of the most serious charges.
But jurors at the federal courthouse in West Palm Beach did not believe there was enough evidence to warrant a conviction on the conspiracy and drug charges.
The money laundering conspiracy charge carries a maximum prison term of 10 years, though it's unclear whether either doctor will face that much time in prison.
"He's disappointed," said Thomas Sclafani, Castronuovo's lawyer. "He's not as disappointed as he could have been."
Catronuovo and his wife celebrated their 51^st wedding anniversary during the course of the trial, Sclafani said. He is planning to appeal the conviction.
So is Cadet's lawyer, Michael D. Weinstein, who called the verdict a compromise by a jury that showed signs of confusion throughout the day.
Early Tuesday afternoon, jurors told U.S. District Judge Kenneth Marra that they were finished deliberating. But with prosecutors, defendants, and spectators gathered to hear the verdict, the jurors revealed that they were actually deadlocked on all but a few of the charges. Marra ordered them back into the jury room, where they spent the next three hours coming to a decision.
"We believe this was a compromise verdict, and we're going to appeal it," said Weinstein, who was nonetheless quick to praise the not-guilty verdicts as "a huge victory."
The jury will return to the courthouse Wednesday to decide whether the doctors should forfeit their proceeds from their work at the pill mills. The defense lawyers said the not guilty verdicts should preclude any attempt at forfeiture.

UPDATE -- The Palm Beach Post has some more detail about the verdict:

 Throughout the day Tuesday, it was clear jurors were struggling to reach a consensus. At 2 p.m., they announced, a verdict had been reached.
However, U.S. District Judge Kenneth Marra grimaced when he reviewed it. The jury hadn’t decided nine of the 13 charges the two doctors faced. It cleared Cadet of causing three deaths and Castronuovo of one.
“Each count has to be voted on either guilty or not guilty,” Marra told jurors. “You can’t leave it blank. If you’ve left it blank, that’s not a decision.”
The jury returned three hours later to again say it had reached a verdict. But again, Marra said, it was flawed. He asked the foreman to specify whether the jury had found Castronuovo guilty of money laundering. That last-minute change raised Sclafani’s eyebrows and, he said, yet another reason for appeal.

Very secret case

So secret that the judge can't read a government motion in his chambers.  Via the Sun-Sentinel:

The evidence against two Broward County brothers accused of plotting a terrorist attack is voluminous, a government prosecutor said Friday, and could take months for defense lawyers to sort out.
Assistant U.S. Attorney Karen Gilbert also told U.S. Magistrate Judge John J. O'Sullivan the government is drawing up a highly secret motion in Washington, D.C., to be hand-delivered to the judge by special courier. "Because of the classification level, you'll have to view it somewhere else than your chambers," she said.
Gilbert told O'Sullivan that she has turned over to defense attorneys nearly all the government's evidence in the case of Sheheryar Alam Qazi, 30, and his brother Raees Alam Qazi, 20. The Oakland Park men, 2000 immigrants from Pakistan, are charged with plotting to detonate a bomb somewhere in New York City.
Much of the evidence consists of wiretapped recordings and computer correspondence, Gilbert told the judge during a hearing in Miami federal court, enough to fill a file cabinet.
"There are thousands of audio sessions of different lengths," she said. "There's probably thousands of emails. It would take weeks, if not months, to get through."

If the judge can't look at the motion in chambers, can the prosecutors prepare it in their offices?  Where do they review the evidence?

Sen. Nelson issues blue slip for William Thomas, but Sen. Rubio still holding out

That's the report by The Washington Blade:

The confirmation of William Thomas, whom President Obama first named in November for a seat on the U.S. District Court for the Southern District of Florida, was as of last week held up by both U.S. senators in Florida — Bill Nelson and Rubio — who had yet to return the “blue slips” for the nomination even though it had been pending for more than eight months.

But on Wednesday, following the publication of several media reports on the issue — including one from the Washington Blade — Nelson submitted the blue slips for the nomination, according to Senate sources familiar with the process. Dan McLaughlin, a Nelson spokesperson, confirmed the Florida Democrat had returned the blue slips for the nomination.

Judge Nushin Sayfie is also coming to Judge Thomas' aid, sending this letter to Sen. Rubio.

HT: Glenn Sugameli, who has all the info on Judge Thomas at his website.

Friday news and notes -- Law Professor edition

1.  Professor Rick Bascuas' appellate clinic at UM is making new law again.  This time it's a confrontation clause issue in United States v. Manouchecka Charles.  The issue -- can an agent testify regarding a defendant's translated statement to him through an interpreter, or does the government have to call the interpreter to comply with the Constitution's right to confront witnesses.  The 11th Circuit held that a defendant is entitled to confront the interpreter and relying only on the agent violates the Confrontation Clause.  But because there was no objection during the trial, there was no plain error.  Congrats to Professor Bascuas for spotting this issue and running with it.

2.  Courts around the country continue to give huge downward variances in fraud cases -- even after trial -- because the guidelines make no sense.  Professor Berman has the update on the latest one here, by Judge Kimba Wood in an bid-rigging case:

As reported in this Wall Street Journal, headlined "US set back on bid-rig sentencing," a federal district judge in NYC yesterday handed down a set of white-collar sentences that were far below calculated guideline ranges and far below the sentences being sought by federal prosecutors.  Here are the details:

US District Judge Kimba Wood of the Southern District of New York handed Peter Ghavami, the former co-head of UBS' municipal-bond reinvestment and derivatives desk, an 18-month sentence. Prosecutors had sought at least 17½ years and as long as 21 years, 10 months for Ghavami, who also served as the Swiss bank's head of commodities at one point.
The much harsher sentence proposed by the government would have been longer than the 11-year term given in 2011 to Galleon hedge-fund founder Raj Rajaratnam for his insider-trading conviction.
But Judge Wood, a one-time nominee to become US attorney general who also sentenced former Drexel Burnham Lambert executive Michael Milken to 10 years in prison, raised questions about the government's method of calculating losses in the case, which it had pegged at about $25 million.
She also praised Ghavami's "admirable history" and noted that he faces other penalties including a $1 million fine and deportation to Belgium, where he is a citizen. Because Ghavami, 45 years old, is not a US citizen, he also has to serve in a "low security" prison instead of a "miminum security" camp.
One of Ghavami's former colleagues, Gary Heinz, 40, a former vice president on UBS' municipal-bond reinvestment desk, was given a 27-month sentence Wednesday, while Michael Welty, 49, another former vice president, got 16 months. Prosecutors had asked for at least 19½ years for Heinz and about 11 years or more for Welty.
Last summer, a New York jury found the three former UBS employees guilty of leading a scheme that caused municipalities to pay millions of dollars more for bond deals than they needed to pay. The case dealt with an obscure corner of the bond market in which local governments raise money from investors through bond deals, then invest the proceeds in investment products that banks and others are supposed to sell in a competitive process....

3.  Professor Fredrick Vars has started an online petition to save the Federal Defenders:

Petition: Save Federal Defender Services

Sequestration imperils the constitutional right of criminal defendants to adequate legal representation.  About 90% of federal criminal defendants require court-appointed counsel.  In FY 2013, sequestration resulted in a $52 million cut to Federal Defender Services, bringing massive layoffs and furloughs.  It is estimated that in FY 2014, if nothing is done, FDS will be forced to terminate as many as one-third to one-half of employees.
Funding for prosecutors is apparently headed in the opposite direction.  The Senate Appropriations Committee last week announced a $79 million increase to the FY 2014 budget for U.S. Attorneys’ offices for the express purpose of bringing more criminal cases in federal court.  This radical imbalance threatens the fundamental right to counsel.
Please join me in urging Congress and the President to restore adequate funding for Federal Defender Services. 
Update: Thanks to all for the strong support so far. Please send me an email (fvars@law.ua.edu) with your name, institutional affiliation (if applicable), and city of residence. I will subsequently post a document with this petition and the names of signatories.
Fredrick Vars
Associate Professor, University of Alabama School of Law
Birmingham, Alabama

Your moment of Zen -- cubicle guy

The First Circuit's 57-page opinion about a misdemeanor for soiling a federal courthouse bathroom

Here, including pictures and a dissent.

Judge Richard Kopf discussed the case at his blog:

In Strong, the defendant was convicted of three misdemeanors, and received a sentence of seven days in jail, for literally messing up a bathroom in a federal court-house.  He claimed to have a problem with his bowels, but the government saw his conduct in more a malicious light.  This is the way the bathroom looked to the cleaning lady shortly after Strong left the bathroom:

The supervisor of the courthouse’s cleaning company,
Christina Mason, arrived to clean the restroom after receiving a call requesting that it be cleaned. She smelled feces from the hallway, and when she opened the door she could not enter the restroom because feces were on the floor where one would need to step to get inside. The restroom was unusable because it was so soiled. She saw that seventy-five percent of the floor was covered in feces, in chunks. She also saw feces smeared in spots on several walls in different areas. In fact, some of the feces were
smeared more than two feet up on the walls. Feces were smeared on the paper towel and toilet paper dispensers, on the toilet paper itself, and on part of the toilet seat and the left side of the toilet bowl. There was also urine in the toilet, which had not been flushed; no feces were inside the liquid in the bowl. Mason testified that the feces were not only all over the bathroom but were “smear[ed] in spots,” and not splattered. Strong’s plaid blue boxers, which were covered in feces, were found by Mason draped over the wastebasket where Strong admits he placed them because they were “destroyed.”

The state of the bathroom was so bad that Mason, who had
fourteen years’ experience at the courthouse and training in
cleaning up bodily substances, was initially at a loss for how to clean the restroom. She devised a plan and first used paper towels and disinfectant to remove the feces from the floor. She then cleaned the restroom three times with a bleach and water solution, and discarded the soiled underpants, the potentially soiled rug that had been outside the restroom, and the clothes she had been wearing using a biohazard bag.

Id. at slip op. pp. 5-6.

Strong appealed. If you include the dissent, and the photographs attached to the decision, the discussion on whether the defendant had been proven guilty goes on for 57 pages. Two judges voted to affirm the conviction, and one judge voted to reverse.

I don’t know much.  But I do know this:  No misdemeanor case about a soiled toilet and a seven-day jail sentence is worth 57 pages of attention from a United States Court of Appeals. That’s true even if you, like me, are a freak about toilets.