Blog news

My apologies -- but work takes me away from the blog for the rest of the week.  I promise to be back on Monday morning with all of the happenings in the SDFLA.

“I don’t care what you do. Rig the f------- brakes on his car. F------ take him out. I don’t want to see him anymore.”

According to a Herald report, that is former Miami Lakes Mayor Mike Pizzi discussing his political rival Richard Pulido.

Sounds like a bunch of stupid talk:

In a series of meetings over the next month, however, Pizzi never expanded upon the threats toward Pulido. He soon told McGrath, a retired Hialeah cop who at the time chaired the town’s planning and zoning board, “Forget about him; he will self-destruct himself.” Not long after, police suspended the investigation without charging anybody with anything, officially closing it earlier this year.Pizzi, in a statement on Friday, said he categorically denied “intending personal or political harm to Richard Pulido or anyone else,” saying he had a bit too much to drink that evening and was goaded by McGrath into “meaningless, over the top, silly, ridiculous drinking talk.” He amended his statement Saturday, saying he was actually “humoring” McGrath, a man who he said engaged in “Oliver Stone conspiracy lunacies.”Pizzi’s attorneys also dismissed the probe as a non-story that they say never should have been made public, noting that detectives quickly found there wasn’t evidence to support allegations that the now-suspended Miami Lakes mayor would harm Pulido.They called McGrath an unreliable informant who targeted Pizzi at Shula’s after an evening of drinking — though McGrath told detectives that Pizzi had only two beers. They also argued that McGrath’s recording doesn’t show sinister intent but simply a passionate, drunken politician venting about an opponent.“This was never a real ‘hit’ investigation,” said attorney Ben Kuehne, who is representing Pizzi with attorney Ed Shohat. “And therein lies the problem with the story,” said Shohat.

Read more here: http://www.miamiherald.com/2013/10/19/3700007/suspended-miami-lakes-mayor-pizzi.html#morer#storylink=cpy

Justices don't use email

I guess this is no surprise, and I assume that they wouldn't get much out of the Federal Bar's upcoming talk on social media, but it's still pretty interesting:

"Well, we either talk to each other, which is not a bad thing," said Kagan, to applause from the well-heeled audience of female CEOs and business leaders.
"Or we write memos to each other," she continued.
"And you know, you have to remember that the Court is an institution where...we're not horse trading. We're not bargaining. We're reasoning. And we're trying to persuade people. And often the best way to do that is by putting things down on paper in a kind of careful and deliberate way and saying this is what I think and, and giving people an opportunity to read a memo and to think about it and to reflect on it," she said.
"And so we do a lot of our communicating by these, it looks, it's sort of 19th century. It's very heavy ivory paper—it looks like it came out of the 1800s or something. But it seems to work pretty well," she added. "And when you think about it, how many emails have you sent that you wished you could take back? So, so we're careful and deliberative."

Visiting Judge Bowen issues strongly worded concurrence

From U.S. v. Rodriguez, it's definitely worth a read. Judge Bowen was visiting from the S.D. Georgia.

Judge Martin, for the majority, finds that the government didn't prove up 50 victims at sentencing:

Mr. Rodriguez argues that the District Court clearly erred when it found that his offense involved more than 50 victims. Although he acknowledges that the government presented 42 affidavits of victims who suffered a loss and a summary chart indicating that there were 238 victims total, he points out that the government provided no witnesses or underlying data to authenticate the government’s summary chart. For this reason, Mr. Rodriguez argues that the District Court’s finding is not supported by reliable and specific evidence. We agree.

And here's Judge Bowen's concurrence:

I concur in the opinion in full. I write specially to comment on the Government’s treatment of the sentencing proceedings.

This is another case wherein the Government has failed to come forward with evidence at a critical time. Unfortunately, important objections made by a defendant at a sentencing hearing are often dealt with as an afterthought. The Government’s cavalier disregard for the need of further evidence, specific references to a trial transcript, or another basis upon which the district court may make sustainable findings is all too typical. In this case, after a laboriously conducted two-week trial, resulting in a conviction we readily affirm, the Government’s willingness to allow the matter to conclude resting upon extrapolation, conjecture, and innuendo left the district court stranded with a well-prepared Presentence Investigation Report, some commentary, and little else.
***

Too often, energetic, successful prosecutors approach what is arguably the most important part of the case with a surprising level of inexactitude. Responsible advocacy demands more.

Transcript posted from the Kaley argument this morning

Here is the link.  And Justice Scalia got some laughter right from the start:

CHIEF JUSTICE ROBERTS: We'll hear argument next this morning in Case 12-464, Kaley vs. United States.
Mr. Srebnick?
ORAL ARGUMENT OF HOWARD SREBNICK ON BEHALF OF THE PETITIONER
MR. SREBNICK: Thank you, Mr. Chief Justice, and may it please the Court:
When the government restrains private property, the owner of that property has the right to be heard at a meaningful time and in a meaningful manner. For a criminal defendant who's facing a criminal trial, whose property has been restrained, that time is now, before the criminal trial, so that he or she can use those assets, that property, to retain and exercise counsel of choice.
JUSTICE SCALIA: Well, I -- you know, I -- I find it hard to think that -- that the right of property is any more sacrosanct than the -- the right to freedom of the person. And we allow a grand jury indictment without -- without a separate mini-trial to justify the arrest and -- and holding of -- of the individual. And if he -- if he doesn't have bail, he's permanently in
jail until the trial is over. And we allow all of that just on the basis of a grand jury indictment. And you're telling us it's okay for that -- maybe you think it's not okay for that.
But I think you're saying it's okay for that, but it's not okay for distraining his property. I -- I find it hard to -- to think that it's okay for the one and not okay for the other.
MR. SREBNICK: Justice Scalia, it's not okay for either.
JUSTICE SCALIA: Ah, okay. This is a bigger case than I thought.
(Laughter.)
MR. SREBNICK: The right to be released on bail, that is, the right not to be detained all the way until trial, under this Court's precedent in United States v. Salerno, the Court provided procedural safeguards to ensure that before someone is held all the way until trial, they would have a hearing, a hearing which would include a right to challenge the weight of the evidence and other factors.
We ask for something no different. Indeed, the indictment itself can justify the detention of the body and the detention of the asset until such time --

Miami attorney Julio Ayala in skirmish with Alex Rodriguez's lawyer Joe Tacopina

From the NY Daily News:

According to several sources with knowledge of the altercation, Tacopina instigated a confrontation with Julio Ayala, one of the Miami attorneys who represent Anthony Bosch, the proprietor of the now-defunct Biogenesis clinic that was a source of performance-enhancing drugs for more than a dozen big leaguers — and MLB’s chief witness.
During the first week of the arbitration, the sources say, Tacopina launched an aggressive attack on Bosch’s credibility after Bosch authenticated a pile of documents and electronic communications that MLB says reflect the league’s conclusion that Rodriguez acquired banned substances from Bosch over several years. It was during a break in one of those tense sessions that Tacopina and Ayala nearly came to blows.

The sources told the Daily News that Tacopina — who was frustrated that Bosch’s testimony had dominated the first three days of the hearing — asked another MLB attorney how long he planned on having baseball’s most important witness on the stand during the break in the testimony on Oct. 2.
The attorney, the sources said, told Tacopina that Bosch’s testimony would take several more hours and might spill over to the next day. “Well, I guess we have all of October, and by then Mr. Bosch will be in jail,” Tacopina replied, referring to the fact that Bosch and his now-defunct clinic are being investigated by Florida state authorities and federal law-enforcement officials from the Southern District of Florida.

“If he is, he is not going alone,” Ayala fired back, implying that if Bosch goes to prison, he is taking Rodriguez with him.
Tacopina, a former hockey player who holds the Skidmore College record for most penalty minutes in a season, then made a derogatory statement about Ayala and “his lying wife,” Susy Ribero-Ayala, another attorney representing Bosch, angering Julio Ayala. Tacopina then “bull-rushed” Ayala, who went toe-to-toe with Tacopina, in the words of one source.
Ayala, a former high school football player, stood his ground, but other attorneys restrained Tacopina before any punches were thrown. Eventually, the two men calmed down and the hearing resumed after the break.
Tacopina and Ayala both declined to comment on the incident when contacted by The News, citing the confidentiality order barring participants in the arbitration hearing from discussing it publicly. It is not known if arbitrator Fredric Horowitz, who will ultimately decide if Rodriguez’s suspension should be upheld, reduced or overturned, witnessed the altercation. The incident is not likely to be part of the official record, since the court reporter was taking a break at the time.
Rodriguez and Bosch did not witness the confrontation — they were both using the men’s room when things got heated in the arbitration room.
One source told The News that Tacopina apologized to Ayala the following day, and that Ayala accepted the apology and said he wished to move on.

Howard Srebnick and Richard Strafer head to the Supremes

They have oral argument this week in Kaley v. United States, presenting the following issue: whether, when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, the Fifth and Sixth Amendments require a pre-trial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges.

Here's the 11th Circuit opinion, holding that no adversarial hearing was required, which split with a number of other circuits, leading the Solicitor General to agree with the cert request.

Harvey Silverglate wrote an op-ed in the WSJ supporting the Kaleys:

On Oct. 16, the Supreme Court will hear oral arguments on a claim brought by husband and wife Brian and Kerri Kaley. The Kaleys are asking the high court to answer a serious and hotly contested question in the federal criminal justice system: Does the Constitution allow federal prosecutors to seize or freeze a defendant's assets before the prosecution has shown at a pretrial hearing that those assets were illegally obtained?
Such asset freezes often prevent a defendant from hiring the trial counsel of his choice to mount a vigorous defense, thus increasing the likelihood of the government extracting a guilty plea or verdict. Because asset forfeiture almost automatically follows conviction, a pretrial freeze ultimately enables the Justice Department to grab the frozen assets for use by executive-branch law enforcement agencies. It is a neat, vicious circle.

And Jay Weaver covered the upcoming argument in the Miami Herald:

Srebnick will argue that defendants should be allowed to keep their bank accounts and other possessions unless prosecutors can show before trial that the evidence supporting an indictment justifies the seizure of those assets.
For decades, prosecutors have only needed to point to a federal grand jury indictment to argue that defendants' assets are traceable to the criminal allegations and therefore can be seized. And judges have almost always ruled in the prosecution's favor because of the presumption that the grand jury found "probable cause" that a crime was committed.
Eventually, depending on whether a defendant is found guilty or is acquitted, frozen assets are either kept or returned by the government.
In legal briefs, Srebnick has asked the Supreme Court to allow a hearing that would test the strength of the prosecution's evidence before a jury hears the government's case against his two clients, a New York couple. Kerri and Brian Kaley were charged in 2007 with illegally profiting from the resale of older medical devices in South Florida's "gray market." The equipment had been given to the wife and other equipment sales representatives by hospitals that no longer needed them because they purchased newer devices.
The couple obtained a $500,000 equity line of credit on their home so they could pay projected legal fees to their "preferred" defense lawyers, Srebnick, and colleague, Susan Van Dusen, who claimed the government's case was "baseless." But after the couple's indictment, prosecutors obtained a judge's order to seize their home and other assets valued at nearly $2.2 million, leading to the Supreme Court case.

Read more here: http://www.sacbee.com/2013/10/13/5818574/supreme-court-to-hear-challenges.html#storylink=cpyGood

Good luck Howard and Richard!

Judge Jordan sits for first time on Miami panel

He was paired with Judge Martin and a visiting judge this week on the 12th Floor of the King Building.  It was the first time Judge Jordan was on an oral argument calendar in Miami.  They heard an interesting case regarding a "voter purge" issue.  John Pacenti covered the story.

President Obama is trying to get other judges on the 11th Circuit.  But it's a slog.  Here's the latest from the Robin McDonald:

Georgia's Congressional Democrats met Thursday in Washington with staff of the Office of White House Counsel to discuss Georgia's open federal judgeships, an aide to U.S. Rep. David Scott confirmed.
The meeting took place after Georgia's five Democratic House members sent a letter on Sept. 17 to President Barack Obama's White House counsel, Kathryn Ruemmler, expressing their shock and disappointment over a proposed list of six candidates for federal judgeships in Georgia, including two open seats on the Eleventh Circuit U.S. Circuit Court of Appeals and four seats on the District Court.
... In their letter to the White House counsel, the Democratic congressmen insisted it is "essential" that they participate in selecting candidates for nomination to the federal bench "to ensure a representative federal judiciary in Georgia."
The current slate of proposed nominees includes one African-American woman for the District Court, three white women—two for the Eleventh Circuit and one for a District Court seat—and two white men for the District Court.
Georgia lawyers familiar with the nomination process who asked not to be identified because of the sensitivity of the negotiations have told the Daily Report that the proposed nominees for two open seats on the Eleventh Circuit are:
• Jill Pryor, a partner at Atlanta's Bondurant, Mixson & Elmore whom President Obama has twice nominated to an open post on the Eleventh U.S. Circuit Court of Appeals.
• U.S. District Court Chief Judge Julie Carnes of the Northern District of Georgia, who was appointed by President George H.W. Bush in 1992.
U.S. Senators Saxby Chambliss and Johnny Isakson have, so far, blocked Pryor's nomination, but as part of the deal agreed to waive their objections in return for Carnes' appointment and three nominees of their choosing for the Northern District of Georgia bench.
Carnes' nomination, if confirmed, would create a fourth vacancy on the District Court bench in Atlanta, where three judges who took senior status in 2009, 2010 and this year have yet to be replaced.
The senators' picks for the Northern District are:
• Troutman Sanders partner Mark Cohen, whose name the senators put forth first in 2010 for the Northern District bench and then in 2011 for the Eleventh Circuit after he defended Georgia's voter identification law in a federal lawsuit;
• DeKalb County State Court Judge Eleanor Ross, a former prosecutor who was appointed to the bench by Governor Nathan Deal in 2011 and the only African-American on the list;
• Judge Michael Boggs of the Georgia Court of Appeals , a former Superior Court judge from the Waycross Judicial Circuit in the Southern District of Georgia and a Deal appointee to the appeals court.
The only Democratic nominee for the District Court is Leigh Martin May, a personal injury and product liability attorney at Butler Wooten & Fryhofer.

The Miami Herald ran an op-ed earlier in the week, titled: "Blacks lack presence on federal court." Here's the intro:

The government shutdown epitomizes the dysfunction caused by a small faction of Congress. But for federal judicial nominations, which require the “advice and consent” of the Senate, obstruction is nothing new. The confirmation process has been broken for some time. The result is a judicial vacancy crisis that harms the administration of justice and, just as important, the diversity of the federal bench.
Sen. Marco Rubio has blocked the nomination of William Thomas to Florida’s federal district court. Thomas is the first openly gay African-American nominee to any federal court. Sen. Rubio’s own 64-member judicial search commission supported Thomas as did the senator, initially. Sen. Rubio has now withdrawn his support, effectively denying Thomas a confirmation vote by the Senate. This obstruction, in the face of a superbly qualified candidate, is cause for great concern. But it is not the only issue looming for Florida’s federal judiciary.
Another issue concerns the racial diversity of judges on the federal appellate court that serves Florida, Georgia and Alabama, the U.S. Court of Appeals for the Eleventh Circuit. With the ever-shrinking docket of the U.S. Supreme Court, the Eleventh Circuit is effectively the court of last resort for residents of these states. Twenty-five percent of the residents are African-American, giving the Eleventh Circuit the highest percentage of African Americans of any circuit court in the country.
Although there are 12 judicial seats on the Eleventh Circuit, only one is held by an African American. Judge Charles Wilson, from Florida, was appointed by President Clinton in 1999.
Only one other African American has ever served on this court. The Eleventh Circuit was created in 1981, when Congress divided six states comprising the Fifth Circuit into two circuits. At that time, Judge Joseph Hatchett, also a Floridian and the only African American on the Fifth Circuit, was reassigned to the Eleventh. When he retired, Judge Wilson took his place.
In other words, the number of African-American judges sitting today on the Eleventh Circuit is the same as it was more than 30 years ago. This should concern everyone who cares about ensuring that our federal judiciary reflects the diversity of our nation and that our courts inspire confidence among our communities. Given its substantial African-American population, and the large pool of superbly qualified African-American attorneys and judges from which to select an appellate judge, the Eleventh Circuit should have more than one African-American jurist by this time.

Read more here: http://www.miamiherald.com/2013/10/08/3677936/blacks-lack-presence-on-federal.html#storylink=cpy