Don't file Anders briefs

The blog has discussed this issue before, and the last time, the case went all the way to the Supreme Court.

This time, in United States v. Fries, a defendant's conviction was reversed for insufficient evidence:

Fries did not object to the proposed jury instruction, either at the charge conference or at trial, on the ground that it did not require the government to prove that the buyer of the firearm did not possess an FFL. Nor did Fries file a motion for judgment of acquittal at the close of the government’s case, at the close of all the evidence, or in a post-trial motion.
Fries filed a notice of appeal, but soon thereafter his attorney filed a motion to withdraw as counsel and an Anders brief, contending that a review of the record revealed no arguable issue of merit upon which he could proceed in good faith. A member of this Court subsequently denied the motion to withdraw and ordered further briefing on the following two issues:
(1) whether the district court effectively removed the burden of proof regarding an element of the 18 U.S.C. § 922(a)(5) offense by instructing the jury that the sale of a firearm to a licensed dealer was an exception to the prohibition on sales to non-residents that did not apply in the case; and (2) whether the evidence was insufficient to convict when no evidence was presented as to whether the buyer of the firearm was a licensed dealer.
In keeping with that directive, Fries now argues that because there is insufficient evidence to support a finding that Visnovske did not have an FFL when Fries sold him the firearm at issue in Count II, his conviction should be reversed. He also argues in the alternative that because the trial judge instructed the jury that transferee’s licensure status was an exception to criminal liability under
§ 922(a)(5) rather than an essential element of the crime, the jury instructions erroneously relieved the government of its burden to prove beyond a reasonable doubt that the person to whom Fries allegedly sold the Kimber firearm charged in Count II of the indictment (Visnovske) did not possess an FFL. 

Ultimately the Court rules for the defense:

It is no answer to say that the particular element at issue here—the licensure status of the transferee for purposes of § 922(a)(5)—is unimportant or somehow a technicality: our charge as arbiters of the law does not turn upon the potential for intrigue presented by the particular plot or cast of characters of a given case. Even where the defendant fails to move for acquittal and our review of the record is at its most charitable, in the end the responsibility to provide some scintilla of evidence regarding each element of a crime falls squarely on the government. Because the government failed to make that minimal showing, Fries’s conviction must fall.

Two local mayors charged... and arrested

Lots of local media coverage about the new case brought today against Mayors Michael Pizzi and Manuel Marono, so no need to rehash it on the blog.

But I've always wondered why there needs to be arrests in cases like this. Why not have them surrender and save the very overspent system the expense of sending the calavry to bring them in.

Of course the reason is to show the public the images/video of the arrests...

Is it worth it, readers?

UPDATE -- here are the complaints for Pizzi (represented by Ben Kuehne) and for Marono (represented by Kendall Coffey).

Tuesday's news and notes -- Government misbeheaving edition

Any one of these stories is breathtaking, but all three together... wow.

1.  FBI informants commit a lot of crimes -- with the FBI's approval.  USA Today's Brad Heath has the depressing story here:

WASHINGTON — The FBI gave its informants permission to break the law at least 5,658 times in a single year, according to newly disclosed documents that show just how often the nation's top law enforcement agency enlists criminals to help it battle crime.

...

Agents authorized 15 crimes a day, on average, including everything from buying and selling illegal drugs to bribing government officials and plotting robberies. FBI officials have said in the past that permitting their informants — who are often criminals themselves — to break the law is an indispensable, if sometimes distasteful, part of investigating criminal organizations.

...

USA TODAY obtained a copy of the FBI's 2011 report under the Freedom of Information Act. The report does not spell out what types of crimes its agents authorized, or how serious they were. It also did not include any information about crimes the bureau's sources were known to have committed without the government's permission.

...

"The million-dollar question is: How much crime is the government tolerating from its informants?" said Alexandra Natapoff, a professor at Loyola Law School Los Angeles who has studied such issues. "I'm sure that if we really knew that number, we would all be shocked."

A spokeswoman for the FBI, Denise Ballew, declined to answer questions about the report, saying only that the circumstances in which its informants are allowed to break the law are "situational, tightly controlled," and subject to Justice Department policy. The FBI almost always keeps its informants' work secret. The agency said in a 2007 budget request that it has a network of about 15,000 confidential sources.

2.  So how to federal cases actually get started?  The government has asked DEA to cover up and fabricate the answers. This is insane, if true. From Reuters:

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.
Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin - not only from defense lawyers but also sometimes from prosecutors and judges.The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial. If defendants don't know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence - information that could reveal entrapment, mistakes or biased witnesses."I have never heard of anything like this at all," said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA program targets common criminals, primarily drug dealers.

3. And if the government is doing anything wrong, there is nothing that you can do about it. Huffington Post has this long read about misbehaving prosecutors and how the system protects them. Here's a little snippet of a really great article:

Over the last year or so, a number of high-profile stories have fostered discussion and analysis of prosecutorial power, discretion and accountability: the prosecution and subsequent suicide of Internet activist Aaron Swartz; the Obama administration's unprecedented prosecution of whistleblowers; the related Department of Justice investigations into the sources of leaks that have raised First Amendment concerns; and aggressive prosecutions that look politically motivated, such as the pursuit of medical marijuana offenders in states where the drug has been legalized for that purpose. In May, an 82-year-old nun and two other peace activists were convicted of "sabotage" and other "crimes of violence" for breaking into a nuclear weapons plant to unfurl banners, spray paint and sing hymns. Even many on the political right, traditionally a source of law-and-order-minded support for prosecutors, have raised concerns about "overcriminalization" and the corresponding power the trend has given prosecutors.

Amos Rojas, Jr. named U.S. Marshal for the Southern District of FLorida

The White House Press Release:

Amos Rojas Jr., to be United States Marshal, Southern District of Florida
Amos Rojas Jr. currently works for the Miami-Dade State Attorney’s Office, serving as the Deputy Director of the South Florida Money Laundering Strike Force.  He previously worked for 24 years in the Florida Department of Law Enforcement (FDLE), including serving for eight years as the Special Agent in Charge of the Miami Regional Operations Center of the FDLE.  Prior to joining the FDLE, he served as an Investigative Supervisor in the Miami-Dade State Attorney’s Office, and he has also served on the Huntsville (Alabama), South Miami, and Miami-Dade Police Departments.  He received his undergraduate degree in 1983 from the University of Alabama in Huntsville. 

From the Herald:

Amos Rojas Jr., a former longtime law enforcement officer who works as an investigator for the Miami-Dade state attorney’s office, has been nominated to serve as the U.S. marshal in South Florida.

Rojas, who was nominated by President Barack Obama on Thursday, is the deputy director of the South Florida Money Laundering Strike Force in the state attorney’s office.

Previously, he spent 24 years with the Florida Department of Law Enforcement, retiring as the special agent in charge of the Miami region. Rojas also was a police officer on the Huntsville, Ala., South Miami and Miami-Dade police departments.

A 1983 graduate of the University of Alabama, Rojas must be confirmed by the U.S. Senate before he starts his new position as head of the U.S. Marshals Service in the Southern District of Florida.

Obama, in a statement regarding four new U.S. marshal nominees in Florida, Ohio and Texas, said: “These nominees have spent their careers risking their own safety to protect their fellow Americans.”

Read more here: http://www.miamiherald.com/2013/08/02/3539841/longtime-south-florida-law-officer.html#storylink=cpy

Friday news and notes

1.  The results of the poll from a few days ago:

Would you spend 4+ days in solitary confinement without food, water, or a bathroom for $4 million? Selection   Votes  Yes, but not for less than $4 million  17% 10  Yes, I would do it for anything over $1 million  28% 16  No, but I would for $10 million  14% 8  No, I would never do it for any amount of money  41% 24  58 total  pollcode.com free polls

2.  Congrats to Guy Lewis and Mike Tein (and their lawyer Paul Calli)  -- the bar investigation is closed because there was no PC to proceed.  From the DBR:

 

A Florida Bar grievance committee has found no probable cause to pursue a complaint alleging Miami law partners Guy Lewis and Michael Tein lied about the source of their fees in a wrongful death case.
The Bar also confirmed it has opened an investigation into three of the firm's most vocal litigation opponents: Miami attorneys Bernardo Roman III, Jose "Pepe" Herrera and Ramon Rodriguez.

3.  The U.S. Attorney's Office issued this press release on the results of the pill-mill trial in front of Judge Marra. The headline boasts: "Jury Convicts Two Doctors of Conspiracy to Commit Money Laundering Resulting from Pill Mill Operation in Broward and Palm Beach Counties"   Here's the headline, however, from the Palm Beach Post: "Jury clears two local pill mill doctors of eight overdose deaths, convicts them of money laundering"   The AP headline: "Fla. MDs cleared of most serious pill mill charges:"   The Sun-Sentinel: "Doctors not guilty of most charges in pill mill case"   The blog has discussed USAO press releases before, and for the most part, they have gotten better, but this one seems to be misleading to me.

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.