Judge Rosemary Barkett is leaving the 11th Circuit

She's headed to the Iran-United States Claims Tribunal in The Hague, which was established in 1981 to resolve claims between the two countries.

Judge Barkett will be missed.  She's been a strong, independent voice on the court for a long time. 

That'll be vacancy #3 on the 11th Circuit.

Speaking of vacancies, applications were due today for the open district seat.  If I can get a hold of the list of applicants, I will post it.

Monday news and notes -- Back to school edition

1.  Judge Huck is trying to tutor young lawyers.  Via the DBR:

Senior U.S. District Judge Paul C. Huck said when he got out of law school in 1965, he didn't need to consult a career counselor.
Freshly minted lawyers simply cracked open the Martin-Hubbell Law Directory and figured out where they wanted to start practicing law. Then they started to make phone calls.
"Back then if a law firm was really busy and they needed a lawyer, they needed them right then," said Huck, who after graduating the University of Florida loaded up his Volkswagen Beetle and headed south to an Orlando firm.
Coming off the Great Recession, it's not so easy for new lawyers these days.
So Huck organized two seminars aimed at making it a little easier. Early last month, he again assembled the Federal Court Observer Program, a mainstay for seven years. He also reached out to young lawyers at his alma matter.

2. Go Dore Go.  Dore Louis' creative motion for NSA records started a new trend.  I think it's hilarious that the Miami Herald refers to Dore Louis not as Mr. Louis or Louis, but as Dore:

One of the first phone-records motions in a criminal case came from Marshall Dore Louis, a Miami defense attorney who represents Terrance Brown, implicated in a federal bank truck robbery conspiracy case. Dore may have started a trend.

After Dore filed his motion in June, he received calls and email messages from dozens of attorneys across the country interested in filing similar motions in their cases.

In addition, many more attorneys in drug-trafficking cases nationwide are said to be preparing motions after Reuters revealed on Aug. 5 that the NSA is a partner in a special Drug Enforcement Administration (DEA) unit that supplies tips to local law-enforcement authorities. Those tips come from a massive phone-records database that the DEA’s Special Operations Division (SOD) taps, Reuters said.

The expected onslaught of demands for NSA records from defense attorneys is an ironic twist for a once-secretive agency whose acronym was often jokingly said to stand for No Such Agency.

3.  Did Steven Steiner learn his lesson.  Judge Williams hands him a 15-year sentence:

Steven Steiner, a former executive for a Fort Lauderdale insurance brokerage business that fleeced hundreds of millions of dollars from investors, was sentenced Friday to 15 years in federal prison.
Steiner, 61, was convicted earlier this year of conspiring to launder the money to support his expensive lifestyle in waterfront homes in Fort Lauderdale and Maine, and a condominium in Manhattan.
His defense lawyer urged U.S. District Judge Kathleen Williams to show mercy and sentence him to about five years, far less punishment than recommended under federal sentencing guidelines.
“Mr. Steiner is admittedly an imperfect soul,” attorney Joaquin Mendez wrote in an objection to the sentencing guidelines. “However, he requests that the court consider his good deeds and sensibilities, which the sentencing guidelines generally ignore, into account in determining the appropriate sentence.”
Federal prosecutors strongly disagreed, arguing that a 22-year prison term under the sentencing guidelines for Steiner’s offense would not be “unreasonable.”
Williams essentially split the difference in determining the punishment for the former vice president of Mutual Benefits Corp., the business that was shuttered by federal regulators almost a decade ago.
Steiner offered no apology for his wrongdoing, and instead penned a rambling, remorseless note to the judge. He described as “draconian” the indictment against him and his former partner, saying they lost everything in forfeiture to the U.S. government.
“There were clearly no real winners at the end of this trial,” Steiner wrote in his 14-page note, saying he was “no doubt one of America’s biggest losers.”
“I was ultimately punished for the greed and arrogance of others,” he concluded.

Read more here: http://www.miamiherald.com/2013/08/16/3566762/convicted-fort-lauderdale-executive.html#storylink=cpy

Sentences in synthetic marijuana case

Marc Seitles represented the owner, John Shealy, who was sentenced to 18 months.  From the Sun-Sentinel:

Shealey, of Royal Palm Beach, and Harrison, of Lantana, cut deals with federal prosecutors, each agreeing to plead guilty to a count of conspiring to break federal laws. They admitted plotting to distribute an illegal substance and selling a misbranded drug. Both agreed to turn over more than $2 million in assets.
Attorneys for Shealey and Harrison argued Wednesday that their clients had prior attorneys advise them the products they were manufacturing were legal. Whenever the federal government listed a chemical as illegal, Kratom Lab would destroy any products containing it, said Marc Seitles, Shealey's attorney.
The defense attorneys questioned why Shealey and Harrison weren't issued cease-and-desist letters to stop making the products.
Assistant U.S. Attorney Roger Stefin said the two men had to have known what they were doing was highly questionable, if not illegal. They were marketing Mr. Nice Guy as a herbal incense with anyone, including children, able to buy it at gas stations, convenience stores and online.
...With their plea deals, neither man faced more than five years behind bars. Federal prosecutors recommended a 28-month sentence for Harrison and three years in prison for Shealey.
U.S. District Judge Kenneth Marra said he found their cases unusual because of the ambiguities surrounding the laws governing the chemicals.

No bond in "chat room" terror case

No surprise on the bond issue, but the twist here is that the FBI used an undercover agent in a chat room to build this case against people in Saudi Arabia and Kenya.  Curt Anderson has the details:

Two men accused of providing thousands of dollars and recruiting fighters for terrorist organizations overseas pleaded not guilty Tuesday at a hearing where prosecutors revealed the case against them was built largely by an undercover FBI agent posing on the Internet as a terror finance middleman.
Assistant U.S. Attorney Ricardo Del Toro said at a bail hearing that the agent, known only as an "Online Covert Employee," actually used brother and sister personas in an Internet chat room to make contact with Gufran Ahmed Kauser Mohammed, a naturalized U.S. citizen from India who relocated in 2011 to Saudi Arabia. Mohammed was interested in using the FBI undercover agent to help finance al-Qaida and affiliated terror groups in Syria and East Africa, authorities say.
In July 2012, for example, Mohammed told the FBI agent in the chat room that he wanted one of his wire transfers "to fund an al-Qaida terrorist attack on United States citizens or the United Nations," Del Toro said. No specific targets were named.
The other suspect, 25-year-old Mohamed Hussein Said, is a Kenyan involved with al-Shabaab, an African terror organization currently attempting to replace Somalia's government with one that observes strict Islamic law, Del Toro said. Said, who had never travelled to the U.S. until his arrest, identified terrorist fighters for a Syrian offshoot of al-Qaida and received more than $11,000 from Mohammed for the al-Shabaab organization, court documents show.
In one of the online chats, Said in February said he had one recruit "who would be willing to conduct a martyrdom operation within the United States and be like one of the 19," the indictment says. Del Toro said Said was referring to the 19 hijackers in the Sept. 11 terror attacks.
The two men never met in person until their arrests earlier this month in Saudi Arabia. Del Toro said the FBI undercover agent posed as Mohammed on the Internet to convince Said to travel from Mombassa, Kenya, to Saudi Arabia. The men were taken into custody by the Saudis, turned over to the FBI and immediately flown to Miami to face the terror support charges.
The undercover online FBI agent worked out of the Miami office and many of Mohammed's wire transfers actually wound up here. All told, Mohammed attempted to send more than $25,000 to fund al-Qaida and the affiliates, according to the indictment.
U.S. Magistrate Judge John J. O'Sullivan ordered both men held without bail until trial. Mohammed's attorney, Vince Farina, said his client had a computer science master's degree from UCLA and had brothers living in both California and Texas, as well as parents in California. Farina did not provide their names.

Tuesday news and notes

1. Eric Holder's speech was quite a doozy and is a breath of fresh air for the draconian sentences that have been doled out over the past 20 years.

Even though law enforcement is complaining that their snitches won't be as motivated under the new policy, the real question is whether the actual policy goes far enough. Unfortunately, the policy is not law and is not binding on prosecutors.  In other words, it leaves the discretion with individual prosecutors as to whether to follow it or not.  (In the recent Brady policy issued to prosecutors, it's become clear that nothing much has changed because prosecutors still say that they are only obligated to turn over what's required by the rule and not by the policy statement of their boss.) Rumpole also raises the real concern (in the comments) about whether the new policy will be ignored when defendants actually decide to fight and go to trial... Let's see how this plays out; It's still a good start, which should be applauded because judges will be free to judge again instead of imposing arbitrary min/man sentences.

UPDATE --the actual policy can be read here.

2.  The ABA has approved a resolution in support of legislation authorizing judgeships.  Via Legal Newsline (HT GS): 

At this year’s meeting, which runs through Tuesday, delegates voted in favor of comprehensive legislation to authorize needed permanent and temporary federal judgeships, with particular focus on the federal districts with identified judicial emergencies “so that affected courts may adjudicate all cases in a fair, just and timely manner.”

The ABA also is urging President Barack Obama to advance nominees for current vacancies for federal judicial positions “promptly” and the U.S. Senate to hear and vote on the nominations “expeditiously.”

The association noted that Congress has not passed comprehensive legislation authorizing additional judgeships since 1990.

Since that time, federal district courts have experienced a 38 percent growth in caseloads but have seen only a 4 percent increase in judgeships.

“Legislation is needed to ensure that the federal judiciary has the judgeships it needs to adjudicate all cases in a prompt, efficient and fair manner,” according to the association’s executive summary of the resolution.

“As of May 16, 2013, there are 85 federal judicial vacancies and 24 nominations pending. Filling these existing judicial vacancies is essential.”

Last month, U.S. Sens. Patrick Leahy and Chris Coons introduced legislation that would create 91 new federal judgeships in two federal circuits and 32 federal districts across 21 states.

Maybe we should confirm the outstanding judges first...

Three powerful op-eds in the New York Times (UPDATED)

All three are really worth your time.

The first is John Grisham's piece on Guantanamo, highlighting a horrible injustice to a person named Nabil Hadjarab:

For reasons that had nothing to do with terror, war or criminal behavior, Nabil was living peacefully in an Algerian guesthouse in Kabul, Afghanistan, on Sept. 11, 2001. Following the United States invasion, word spread among the Arab communities that the Afghan Northern Alliance was rounding up and killing foreign Arabs. Nabil and many others headed for Pakistan in a desperate effort to escape the danger. En route, he said, he was wounded in a bombing raid and woke up in a hospital in Jalalabad.

At that time, the United States was throwing money at anyone who could deliver an out-of-town Arab found in the region. Nabil was sold to the United States for a bounty of $5,000 and taken to an underground prison in Kabul. There he experienced torture for the first time. To house the prisoners of its war on terror, the United States military put up a makeshift prison at Bagram Air Base in Afghanistan. Bagram would quickly become notorious, and make Guantánamo look like a church camp. When Nabil arrived there in January 2002, as one of the first prisoners, there were no walls, only razor-wire cages. In the bitter cold, Nabil was forced to sleep on concrete floors without cover. Food and water were scarce. To and from his frequent interrogations, Nabil was beaten by United States soldiers and dragged up and down concrete stairs. Other prisoners died. After a month in Bagram, Nabil was transferred to a prison at Kandahar, where the abuse continued.

Throughout his incarceration in Afghanistan, Nabil strenuously denied any connection to Al Qaeda, the Taliban or anyone or any organization remotely linked to the 9/11 attacks. And the Americans had no proof of his involvement, save for bogus claims implicating him from other prisoners extracted in a Kabul torture chamber. Several United States interrogators told him his was a case of mistaken identity. Nonetheless, the United States had adopted strict rules for Arabs in custody — all were to be sent to Guantánamo. On Feb. 15, 2002, Nabil was flown to Cuba; shackled, bound and hooded.

Since then, Nabil has been subjected to all the horrors of the Gitmo handbook: sleep deprivation, sensory deprivation, temperature extremes, prolonged isolation, lack of access to sunlight, almost no recreation and limited medical care. In 11 years, he has never been permitted a visit from a family member. For reasons known only to the men who run the prison, Nabil has never been waterboarded. His lawyer believes this is because he knows nothing and has nothing to give.

Next up is the editorial board condemning BOP for transferring 1100 women inmates:

The decision by the Federal Bureau of Prisons to transfer more than 1,100 women from a federal prison in Danbury, Conn., to other locations, including a remote facility in Aliceville, Ala., was rightly denounced as bad policy when it became widely known earlier this summer.
Now, 11 senators from Northeastern states have sent a letter to the bureau’s director, Charles Samuels Jr., asking him to reconsider the plan to send prisoners to Aliceville. The senators, led by Chris Murphy of Connecticut and Kirsten Gillibrand of New York, argue that the transfers would make it difficult if not impossible for families to sustain the visits that make it more likely that inmates will re-enter society successfully once they complete their sentences. The move would leave the Northeastern corridor with no federal beds for female inmates.

Finally is Nicholas D. Kristof's column on "all that is wrong with America’s criminal justice system," exploring "the nightmare experienced by Edward Young."

Young, now 43, was convicted of several burglaries as a young man but then resolved that he would turn his life around. Released from prison in 1996, he married, worked six days a week, and raised four children in Hixson, Tenn.

Then a neighbor died, and his widow, Neva Mumpower, asked Young to help sell her husband’s belongings. He later found, mixed in among them, seven shotgun shells, and he put them aside so that his children wouldn’t find them.

“He was trying to help me out,” Mumpower told me. “My husband was a pack rat, and I was trying to clear things out.”

Then Young became a suspect in burglaries at storage facilities and vehicles in the area, and the police searched his home and found the forgotten shotgun shells as well as some stolen goods. The United States attorney in Chattanooga prosecuted Young under a federal law that bars ex-felons from possessing guns or ammunition. In this case, under the Armed Career Criminal Act, that meant a 15-year minimum sentence.

The United States attorney, William Killian, went after Young — even though none of Young’s past crimes involved a gun, even though Young had no shotgun or other weapon to go with the seven shells, and even though, by all accounts, he had no idea that he was violating the law when he helped Mrs. Mumpower sell her husband’s belongings.

In May, a federal judge, acknowledging that the case was Dickensian but saying that he had no leeway under the law, sentenced Young to serve a minimum of 15 years in federal prison. It didn’t matter that the local authorities eventually dismissed the burglary charges.

Horrific. All three.

Updated -- Some good news this morning via the NY Times. Eric Holder is announcing a new policy on drug cases to ease some of the crazy high sentences in drug cases:

Mr. Holder’s speech on Monday deplores the moral impact of the United States’ high incarceration rate: although it has only 5 percent of the world’s population, it has 25 percent of its prisoners, he notes. But he also attempts to pre-empt political controversy by painting his effort as following the lead of prison reform efforts in primarily conservative-led Southern states.

Under a policy memorandum being sent to all United States attorney offices on Monday, according to an administration official, prosecutors will be told that they may not write the specific quantity of drugs when drafting indictments for drug defendants who meet the following four criteria: their conduct did not involve violence, the use of a weapon or sales to minors; they are not leaders of a criminal organization; they have no significant ties to large-scale gangs or cartels; and they have no significant criminal history.

For example, in the case of a defendant accused of conspiring to sell five kilograms of cocaine — an amount that would set off a 10-year mandatory minimum sentence — the prosecutor would write that “the defendant conspired to distribute cocaine” without saying how much. The quantity would still factor in when prosecutors and judges consult sentencing guidelines, but depending on the circumstances, the result could be a sentence of less than the 10 years called for by the mandatory minimum law, the official said.

It is not clear whether current cases that have not yet been adjudicated would be recharged because of the new policy.

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.