I really like this story

From federal prisoner to federal law clerk on the D.C. Circuit.  Really incredible.  From the BLT:

Shon Hopwood's unique career in the law has taken a dramatic new turn. The onetime jailhouse lawyer who served time in federal prison for robbing banks has been hired as a 2014 law clerk for Judge Janice Rogers Brown of the prestigious U.S. Court of Appeals for the D.C. Circuit."I'm amazed at the opportunities and second chances I have been given," said Hopwood Wednesday after returning home to Seattle from his interview with Brown on Monday. Hopwood said the judge offered him the job soon after the interview. "I quickly said yes."While in Washington, D.C. Hopwood, 38, also visited former solicitor general Seth Waxman, who has been something of a mentor to Hopwood for more than a decade. They made contact after a certiorari petition Hopwood wrote for a fellow inmate while in prison was granted review by the Supreme Court. The 2004 case was Fellers v. United States. Hopwood chronicled his experiences in the 2012 book Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption.After a post-prison stint with Cockle Law Brief Printing Company in Nebraska, Hopwood has been a student for the last two years at University of Washington School of Law. Last summer he interned for a federal district court judge in Seattle, and this summer he has been working in the federal public defender's office, also in Seattle. Hopwood said that partly because of the budget cuts caused by sequestration, he has appeared in court for sentencing and other proceedings more often than fellow students working at law firms. Hopwood is scheduled to graduate from law school next summer....  

After his year with Judge Brown, will Hopwood follow in the footsteps of other D.C. Circuit clerks and apply for a Supreme Court clerkship? "I haven't given that any thought at all," he said, sounding surprised at the question. "I'm taking it one step at a time, and I'm still in a state of shock."

UPDATE -- the judge who sentenced Hopwood, Judge Kopf, wrote a blog post about his sentencing decision and gut instincts at sentencing. Hopwood and the judge have a fascinating discussion in the comments section, including this initial letter from Hopwood:

Shon Hopwood says:
August 8, 2013 at 11:07 am
Dear Judge Kopf,

I wouldn’t say that your sentencing instincts suck. While I meant what I said at sentencing, I was hardly the person that could back it up. I was a reckless and selfish young man back then. I changed. I think most of us change from the age of 22 to 38. And many, like me, outgrow the irresponsibility and foolishness. I can’t tell you how many law enforcement officers (including prosecutors) have come up to me and said something similar to this: I know your story and I too committed some crimes when I was young (although not in the category of bank robberies), and I was lucky enough to not get caught. They changed and channeled their energies and became responsible professionals. I did, too.

And to answer Russ’s question, as far as the length of sentencing, I think it had little effect on my rehabilitation. Prison is not the place for personal growth. Very few people come out of it for the better. From my experience, sentences over 5 years do little to help society or the prisoner. Five years is about the maximum amount of time for someone to “get it” and change and create a different life. More than that, and prisoners feel hopelessness and they think “why bother, I just need to get through this and go home.” It’s very difficult to “seize the day” in prison and use every day to prepare for release when you staring at a 10- or 20-year sentence in the face. And like I said, prisons are not designed with rehabilitation in mind. It’s almost solely about incapacitation, which is why the national recidivism rate hovers at 66%.

I made it because I grew up and because I received a large dollop of God’s grace in the form of: 1) a loving family that never gave up on me; 2) finding the law and helping others through the law, which gave me purpose; 3) a beautiful woman who encouraged me (and I later married once I was released); and 4) some gracious lawyers at WilmerHale who mentored me and pushed me to dream big (my original dream was to become a paralegal, not law school, and definitely not a future clerk on the DC Circuit).

But as a judge, you’re constrained by the system we have. I’ve never believed that it’s up to judges to fix that system on their own. It requires citizens to view criminal justice issues differently (and heck, to view prisoners differently), and a Congress to actually pass some legislation.

I feel fortunate that I have been given so many second chances, including the sentence which allowed me to be released at a fairly young age. That doesn’t always happen.

http://www.theatlantic.com/national/archive/2012/12/i-got-a-second-chance-after-robbing-banks-and-others-should-too/266567/

Take care,
Shon

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