All in

AFPD Jan Smith made as big a gamble as I've ever seen in a trial, and it paid off. A Hobbs Act case, where the defendant testified, both sides got 30 minutes for closing. After the government's initial closing argument, Jan waived the defense's closing. This meant that the government could not get back up for its rebuttal.

The jury came back not guilty.

Wow, what an incredible gambit!

I think defense lawyers must take risks in trial to win. But this takes the cake. Hats off to Jan Smith for having the guts to do this.

In 11th Circuit news, Judge Carnes is talking structuring.  And he reversed a defendant's conviction in U.S. v. Lang.  Here's the conclusion:

In this case, each count of the indictment charges as a separate structuring crime a currency transaction involving a single check. Each check alleged is for an amount less than $10,000, and no combination of two or more checks is alleged in any count. See App. A. A cash transaction involving a single check in an amount below the reporting threshold cannot in itself amount to structuring because the crime requires a purpose to evade the reporting requirement, and that requirement does not apply to a single cash transaction below the threshold. The government’s theory (at least its current theory) is that Lang received from one source 21 payments exceeding $10,000 over a period of eight months, he had those larger payments broken into multiple checks each of which was less than $10,000, and he then cashed those checks separately in a way that evaded the reporting requirements. That is all well and good, but it is not what is alleged in the indictment. Instead of a series of counts each alleging a payment or payments totaling more than $10,000 that were structured into checks of smaller amounts, which were then cashed, the indictment consists of 85 counts each of which separately alleges that a single check in an amount less than $10,000 was structured. That is not possible. When cashed checks come to the structuring dance, it takes at least two to tango.
***
For these reasons, we conclude that the indictment is “so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted.” Pena, 684 F.3d at 1147 (quotation marks omitted). This is not a mere multiplicity situation where some counts may be upheld if others are vacated. See United States v. Bonavia, 927 F.2d 565, 571 (11th Cir. 1991); United States v. Mastrangelo, 733 F.2d 793, 802 (11th Cir. 1984). Where no count in the indictment charges a crime, the defendant is entitled to have the judgment vacated and the case remanded with instructions that the indictment be dismissed.

Dread Pirate Roberts arrested...

...Inconceivable!  Here's the very interesting "Silk Road" complaint.

The question is whether anyone will be around to prosecute him or hear the case if this shutdown continues.  For now, the courts are humming along, but in about 7 days, there is a question as to what will happen.  For example, at least one of our judges is in a lengthy trial.  What happens when the funding for the jurors, defenders, etc runs out in a week and a half?  Mistrial?

Meanwhile, the Supreme Court is back in business, and the Court granted cert in a bunch of cases, including one on anonymous tips:

The U.S. Supreme Court granted review of a Northern California drug-transportation case Tuesday to decide whether police can stop a car based solely on an anonymous tip of reckless driving.
Under constitutional standards for searches and seizures, officers can detain a driver if they have reasonable suspicion of wrongdoing, and can rely on an identified witness' description of illegal activity that endangers the public. But courts around the nation have disagreed on whether police can pull someone over because an anonymous source reported that the motorist was driving dangerously.
The high court agreed to hold a hearing and decide the issue in the term that ends in June.
The case dates from August 2008, when a Highway Patrol dispatcher got a call from someone who had been run off the road by a pickup truck on Highway 1 north of Fort Bragg. The caller provided the license number, and shortly afterward two CHP officers spotted and stopped the pickup.
The officers smelled marijuana when they approached, and found four bags of the drug in the truck bed, according to a state appeals court. After unsuccessfully challenging the search, the driver and passenger, brothers Lorenzo and Jose Navarette, pleaded guilty to transporting marijuana and were sentenced to 90 days in jail.
The First District Court of Appeal in San Francisco upheld their convictions in October 2012, citing a 2006 California Supreme Court ruling that allowed police to rely on an anonymous tip without actually seeing the motorist driving recklessly.
"The report that the (Navarettes') vehicle had run someone off the road sufficiently demonstrated an ongoing danger to other motorists to justify the stop without direct corroboration of the vehicle's illegal activity," the appellate panel said in a 3-0 ruling.

 You won't get to see any of these arguments on TV, which is just ridiculous.  Here's Justice Alito's recent argument as to why oral argument should not be televised:

In the course of his wide-ranging conversation with Levi, Alito explained his opposition — one shared by his Supreme Court colleagues — to having oral arguments televised. He recalled the arguments made by U.S. Solicitor General Donald Verrilli Jr. in support of the Patient Protection and Affordable Care Act during the last term of the Court.
Calling Verrilli a very good and skillful advocate, Alito noted that the solicitor general frequently argues before the Court and made three arguments on “Obamacare” in a week.
“To prepare for one argument is exhausting. To do three is Herculean,” said Alito. “So the solicitor general got up to argue during one of these arguments — it was not the first — and he had a bad 30 seconds. He was having trouble swallowing — he sipped [water] the wrong way. The argument was not televised, however contrary to our normal practice, we released the audio of this that afternoon. So that afternoon, C-SPAN broadcast the audio, along with still photos of the participants.
“Well, he recovered, he got his voice back, and he made a very good argument. It was one that I happened not to agree with, but he did a very good job of arguing the position the government had taken, as you would expect. Within hours of that, a television ad had been produced saying that ‘There’s no good argument that can be made in support of the constitutionality of the Affordable Care Act and here’s the illustration — we have the solicitor general of the United States, and he’s at a loss for words in trying to support this position.’
“This is an illustration of the way oral arguments can be used if they are televised,” said Alito.

Or if they aren't.

Judge Cooke dismisses federal case against Lewis & Tein

 

Guy Lewis and Mike Tein got a complete victory yesterday before Judge Cooke in the federal case filed by the Miccosukee Tribe against them and others.  Judge Cooke dismissed the case with prejudice -- a complete victory for them and their lawyer Paul Calli. 

Here's the order, which starts like this:

“No one fights dirtier or more brutally than blood; only family knows its own weaknesses, the exact placement of the heart.” Whitney Otto, How to Make an American Quilt (1991). Whitney Otto’s quote seems a particularly apt description of the emotionally and politically charged litigation, occurring in multiple judicial venues, between the named parties, whom include the following.

There's even a Gandhi quote in the conclusion:

I am quite certain that this Omnibus Order will affect minimally the incessant litigation and sour relations between the parties. I simply implore the parties to heed that “an eye for an eye will only make the whole world blind.” - Mahatma Gandhi

The meat of the order is good reading as well:

Despite every effort of the Miccosukee Tribe to bring this battle to the doorstep of the federal courthouse, the door cannot open to allow an intra-tribal dispute of this nature. Even if it could, the Miccosukee Tribe's claims would nevertheless be denied entry because in short the Miccosukee Tribe simply does not state a federal cause of action.

BREAKING -- Robin Rosenbaum being vetted for 11th Circuit

Congratulations to Judge Rosenbaum, who is being vetted for Judge Barkett's seat on the 11th Circuit. Judge Barkett was honored Friday night at a huge (and lovely) event, and the buzz at the party was about Judge Rosenbaum moving up to the appellate bench.

She's smart and has a good temperament, so she has moved up very fast.   A former Judge Marcus clerk (that's him swearing her in below) and former federal prosecutor, she became a magistrate in 2007, and then a district judge in June 2012. 

Dramatic guilty verdict in psychic trial

Paula McMahon has covered this trial wall to wall.  It's never easy after a guilty verdict:

Though Marks' relatives were initially calm and cried softly as the verdict was read, several of them became very upset after jurors left the courtroom and the family realized their matriarch was not going to be allowed to remain free on bond.
"Please let me hug my mom," Marks' eldest son, Ricky Marks, asked U.S. Marshals and courthouse security officers.
Other family members begged to be allowed to give their phone numbers to "Pinky" — Marks' family nickname — so she could call them from jail.
One grandson jeered at the lead investigator on the case, retired Fort Lauderdale Detective Charlie Stack, asking him, "How are you feeling now, Charlie? You did a good job?"
But Marks' two sons Ricky and Michael Marks tried to calm their family and apologized to Stack.
Daughter Rosie Marks began hyperventilating and collapsed to the floor in the hallway outside the courtroom. She and her two brothers, their spouses, one of Marks' granddaughters and Marks' sister have all pleaded guilty to related charges and are free while awaiting sentencing later this year.
Other members of the extended family shouted and one threw a Bible in the courtroom, yelling "I hate this Bible … I don't want this Bible anymore."
There was more security than usual in the courtroom but the agents and officers handled the disruption diplomatically, urging everyone to remain calm and trying to alleviate the family's concerns.

Psychic's trial now in jury's hands

Paula McMahon has been covering this fun (it's all relative) trial.  Here's the latest article with excerpts from the closing arguments:

Jurors heard from both the prosecution and defense that, in the Romani or Gypsy culture, mothers have a long tradition of teaching their daughters to develop psychic and other skills to help them become fortune tellers.
And while the prosecution said the mixing of family money in Marks' bank account and checks from one family member's client being sent to Marks were evidence of money-laundering to conceal the source of "dirty" money, the defense quoted an expert who said Gypsy families share money among the extended family more commonly than other cultures in the U.S.

More from the prosecution:

Prosecutors urged jurors on Wednesday to find "psychic" Rose Marks guilty of orchestrating a massive con — regardless of how outlandish the allegations sound and whether jurors think the victims were gullible.
"Don't blame the victims, and don't let them blame the victims," Assistant U.S. Attorney Larry Bardfeld said of Marks' defense in closing arguments in the month-long trial.
The victims were "not stupid," but were preyed upon by uncaring scammers who exploited vulnerable people in times of crisis — when they were bereaved and grieving, ill or looking for true love, he said.

And more from the defense:

While prosecutors cast everything in a negative light, Schwartz suggested they could not prove that Marks took money from clients under false pretenses, never intending to return it. He pointed out that she paid back large sums of money to several clients, but said she was unable to make payments after she was arrested and barred from working as a psychic at least until the criminal case is over.
"She doesn't have to prove she intended to pay it back, they [prosecutors] have to prove she didn't intend to pay it back," Schwartz said.

I thought this jury instruction looked interesting:

Jurors were also told that courts have ruled that fortune telling is free speech that is constitutionally protected by the First Amendment.

"Link Rot" at the Supreme Court, and a Will Thomas update

Adam Liptak has this great piece about links in Supreme Court cases not working anymore:

Supreme Court opinions have come down with a bad case of link rot. According to a new study, 49 percent of the hyperlinks in Supreme Court decisions no longer work.

This can sometimes be amusing. A link in a 2011 Supreme Court opinion about violent video games by Justice Samuel A. Alito Jr. now leads to a mischievous error message.

“Aren’t you glad you didn’t cite to this Web page?” it asks. “If you had, like Justice Alito did, the original content would have long since disappeared and someone else might have come along and purchased the domain in order to make a comment about the transience of linked information in the Internet age.” 

It gets worse:

Even links to the Supreme Court’s own Web site have stopped working. One is to a video of what Justice Antonin Scalia called “the scariest chase I ever saw since ‘The French Connection.'”

The chase ended when a police car rammed the vehicle of a fleeing suspect, leaving him paralyzed. The driver sued, saying the police had used excessive force, and in 2007 the Supreme Court ruled against him.

The court posted the video. “I suggest that the interested reader take advantage of the link in the court’s opinion, and watch it,” Justice Stephen G. Breyer wrote in a concurrence.

Good luck: the link does not work. “The fact that the Supreme Court itself has links to its own Web site that no longer function shows the depth of the link rot problem,” Ms. Liebler and Ms. Liebert wrote, noting that the video could still be found with a little hunting around.

There were scores of links in the term that ended in June. For proof that many dog owners use six-foot leashes, for instance, Justice Alito included a link to About.com.

(Should justices conduct independent Internet research of the sort that might appear in a high school research paper? In an article last year in The Virginia Law Review, Allison Orr Larsen, a professor at William & Mary Law School, called the trend worrisome. Judge Richard A. Posner of the federal appeals court in Chicago defended the practice in a new book, “Reflections on Judging,” saying that “the Web is an incredible compendium of data and a potentially invaluable resource for lawyers and judges.”)

Links in Supreme Court opinions are less likely to work as they get older. But even some recent links are broken. A decision from February, for instance, included a citation to statistics from the Ohio court system; the link leads to a dead end.

Even working links may be problematic, as many Web sites are routinely altered. In April 2008, for instance, the court issued an important decision in a case concerning the lethal chemicals used to execute inmates, linking to a draft article. The link now delivers the reader to an article that indicates it was last revised in August 2008.

Meantime, Sen. Rubio is under more fire for his recent decision to block Judge Thomas. The NY Times is covering the story, and Fred Grimm has this excellent editorial in the Herald.  Here's the conclusion, which rebuts Rubio's argument about the sentence in the leaving the scene of the accident case:

But Assistant State Attorney Jane Anderson, who prosecuted the Traverso case in 2012, wrote Rubio that despite the widespread contention that this was a DUI case, the prosecution “had no proof that the defendant had driven under the influence or recklessly. Legally it was an accident.”
The judge, she noted, actually refused a defense motion for downward departure from the sentencing guidelines. He added a year’s sentence to the 11 months Traverso had already served in the county jail — a 23-month sentence, not, as Rubio’s office intimated, 364 days. Anderson wrote, “While the sentence was ultimately disappointing to the state and the victim’s family, Judge Thomas legally sentenced the defendant after hearing all parties and conducting the sentencing hearing with compassion and careful judgment.”
Rubio has a similar letter correcting popular misconceptions about the Traverso case from Nushin Sayfie, chief administrative judge for the criminal court.
Rubio received other letters praising Thomas from bleeding-heart organizations like the Miami-Dade and Broward Police Benevolent Associations, not to mention the League of Prosecutors. Ovalle, who knows everything about that courthouse, insisted that Thomas is regarded as one of the hardest-working, most competent judges in the Miami-Dade criminal court division.
But all this is to pretend that Rubio had some reason other than crass Tea Party politics for sabotaging Judge Thomas’ reputation and aborting the confirmation process.
So the Thomas nomination won’t get a hearing, much less a vote.
Because, you know, he just lacks the right “judicial temperament.”

There is now an online petition circulating for Judge Thomas that you can sign here.

UPDATE -- if you want to read any of the letters referenced in the Grimm article, you can access them at Glenn Sugameli's website.

Marco Rubio should give Will Thomas a "blue slip"

The DBR has the news on the refusal to issue a blue slip and SFL has a nice post explaining why that refusal is wrong.

The thing is -- we are just talking about allowing the process to go forward; to let the Senate vote on Thomas' nomination.  A nomination that Rubio initially recommended.  How can anyone be against allowing the process to proceed?

In other news, William Dimitrouleas sentenced Craig Toll to 2 years in prison, after having sentenced Osorio to 12.5 years.  Interestingly, Chris Korge testified in favor of Toll saying that he didn't know what was going on at the company.

Meantime, prosecutors in Kentucky are arguing that the 2255 waiver is not unethical.  The Kentucky Supreme Court doesn't understand their position:

The justices seemed puzzled by the stance of the federal prosecutors. Repeatedly, the jurists questioned the need for the waiver and whether an attorney can be aware of their mistakes at the time a plea agreement is reached.
Cushing told the justices that allowing later attacks on the performance of an attorney merely prolongs cases and hurts victims and their families.
“It’s about finality,” Cushing said. “Victims of crime have gone through tremendous trauma when these things go through the courts.”
Justice Daniel Venters said there is generally no way for a defendant to know if the attorney made an error until much later.
“It’s always hindsight in terms of defendants,” Venters said.
Justice Lisabeth Hughes Abramson said all justices want to see cases closed, but they must be closed properly.
“You’re asking us to accept the lawyer who is singularly unaware of his own lack of due diligence to be the guardian of the defendant’s rights,” Abramson said.
The case comes three years after the U.S. Supreme Court overturned Kentucky’s high court in a case that hinged on an attorney’s deficient advice. In that case, truck driver Jose Padilla wasn’t told he would face deportation if he pleaded guilty to hauling marijuana in the back of his truck. The U.S. Supreme Court concluded that the lack of due diligence by Padilla’s attorney affected the plea and Padilla’s claim of ineffective assistance of counsel was valid.
Justice Will T. Scott noted that if the waivers had been in place in Padilla’s case, he would have gone to prison and been deported based on bad advice.
“In cases where it matters, it really matters,” Abramson said.