Fascinating argument in the Supreme Court about the federalization of all crime

The case, Bond v. United States, raised the issue of whether the feds could charge a woman who poisoned her husband under the country's treaty power.  Bond was represented by Paul Clement and the government by U.S. Solicitor General Donald B. Verrilli, Jr.

SCOTUSblog has a nice summary of the intense questioning on both sides:

But Verrilli seemed to be tested more rigorously in trying to persuade the Court not to start drawing lines to limit treaty power or treaty implementation, as the more conservative Justices — sometimes using sarcasm — challenged his core argument.  The conservatives were joined in their challenges by Justice Stephen G. Breyer, who often is a strong defender of national government power.
But it was Breyer who seemed to irritate Verrilli the most, when the Justice discussed how open-ended the weapons treaty was — so much so that it might even reach disgraced cyclist Lance Armstrong’s use of performance-enhancing drugs — and pressed Verrilli to say what limits, if any, there were on the treaty’s reach.  “Hypotheticals are just hypotheticals; they are not real cases,” Verrilli shot back.
Verrilli, though, also had to face some tart responses.  Justice Samuel A. Alito, Jr., said that the hypotheticals the Justices were reciting were not real cases “because you haven’t prosecuted them.”  Alito went on to test the government position by noting that, a few days ago, he and his wife had passed out “chemical weapons” to children — that is, Halloween chocolate.  He noted that “chocolate is poisonous to dogs,” and the treaty bans the use of any chemical harmful to animals as well as humans.
When Justice Breyer commented lightly that “there was chocolate all over the place,” Verrilli bluntly commented: “This is serious business.”
Chief Justice John G. Roberts, Jr., repeatedly questioned the Solicitor General about whether there is any constitutional limit on Congress’s power to enter treaties or implement them, and whether a treaty could give Congress the authority to claim ”national police powers.”   Verrilli answered that it would be ”unimaginable that the Senate would ratify” such a treaty.
But that answer prompted Justice Anthony M. Kennedy to say: “It seems unimaginable that you did bring this prosecution (of Carol Bond).”
Justice Antonin Scalia even brought into the argument the current controversy over same-sex marriage, suggesting that the government’s argument was so sweeping that the U.S. could join in a treaty approving same-sex marriage, and requiring Congress to pass a law making that binding nationally, on all of the states.  Verrilli, Scalia suggested, was trying to “drag Congress into areas where it has never been before.”  The Solicitor General answered that the Constitution’s structure, with checks and balances, put limits on treaty-making and treaty-implementation.
Verrilli argued that there was no dispute over whether the chemical weapons treaty was valid, so the implementing law should be, too, because “there is no daylight” between what each covered.  But Justice Scalia directly disputed the point, saying the implementing law went considerably further.

All of the pundits are concluding that the Court will rule for Bond, which would be fantastic. It's time to start reigning in the federal prosecution of local crime. We'll see.

Round 1 to the IRS over Colley Billie

Yesterday, Judge Williams ordered him to sit for a deposition, saying that he could not just assert a blanket 5th Amendment right to silence. Instead, he would have to assert it question by question, document by document in response to IRS questioning.

Then the parties can come back before the court to determine whether those assertions were valid or not.

What's the over/under on how many times in the depo he asserts the 5th?  I'm putting the line at 50.

Is bond jumping a real problem?

The Miami Herald ran a big story this weekend on Medicare fraud defendants jumping bail, even including a "gallery of rogues."  The article is worth a read and the numbers at first blush seem alarming:

Gonzalez and some 30 other defendants have been captured over the last half-dozen years, with the pace of arrests beginning to pick up this year. There are still another 150 fugitives from outstanding Medicare fraud cases in South Florida, most of them Cuban-born immigrants who fled to Cuba, Mexico, the Dominican Republic and other Spanish-speaking countries to evade federal trials.

My problem with the article though is that there is no discussion about how many defendants actually appear for court after being released on bond.  In fact, the statistics kept by the Bureau of Justice show that the overwhelming majority of criminal defendants released on bond show up for all court appearances at much less cost to the taxpayer than housing them at the Federal Detention Center.

And what about the 150 Medicare defendants that are still on the run?  Well, later in the article, it is revealed that 90 of those 150 are not out on bond and do not even know that they are charged:

The FBI has maintained a list of at least 90 South Florida Medicare fraud fugitives identified by name, compiled by Special Agent Bryan Piper. The bureau, assisted by Health and Human Services-Office of Inspector General, also has a list of an additional 90 defendants who have been charged by sealed indictment, but also are suspected of having fled the region. As a result, they are unaware they are wanted in Miami, and agents don’t want to tip them off.

Finally, most fugitives get caught:

So far, about 30 fugitives have been busted. Culp said that most South Florida fugitives typically get caught while they are on the lam in foreign nations, or when they return to this country through Miami International Airport.

So I hope that the article does not dissuade judges from granting bond.  In the overwhelming number of cases, bond is appropriate, and it works.

Read more here: http://www.miamiherald.com/2013/11/02/v-fullstory/3728532/fbi-tracking-down-medicare-fraud.html#storylink=cpyT

Read more here: http://www.miamiherald.com/2013/11/02/v-fullstory/3728532/fbi-tracking-down-medicare-fraud.html#storylink=cpy

Independent judges beware

It's incredible to me that more lawyers aren't upset about the attack on the independence of the judiciary.

First up is the Second Circuit deciding on its own to remove a judge (without any request from the parties) because she said that she wasn't afraid to rule against the government.  From Jeff Toobin's piece:

The United States Court of Appeals for the Second Circuit just chastised Shira Scheindlin, the trial judge in the case challenging the constitutionality of the N.Y.P.D.’s stop-and-frisk policy, for speaking out about the issue while the trial was going on. In a ruling today, the appeals court said Scheindlin’s statements suggested that her “impartiality might reasonably be questioned.” As a result, all further proceedings in the case, in which Scheindlin found that that city residents’ rights had been violated, will be transferred to another trial judge. The appeals court, in a footnote, in particular cited Scheindlin’s statements to me in a piece for The New Yorker, as well as to the AP and the New York Law Journal. (I have some familiarity with this sort of thing. )
This is preposterous. The Second Circuit took this action on its own, without even a request from the city (the defendant in the case). Apparently, it took the view that there had been such an egregious violation of the rules of judicial conduct that the court had to act on its own—sua sponte, as the lawyers say. It also stayed Scheindlin’s rulings aimed at reforming stop-and-frisk.
Scheindlin did nothing wrong. She talked about her judicial career and her history on the bench in a way that illuminated the work that all judges do. In my experience, it’s a common complaint from judges that the public doesn’t understand their work, and doesn’t care about what they do. Scheindlin’s conduct in this case exemplified the independent tradition of the judiciary. She should be honored for it, not scolded.

Next up is the GOP blocking a nominee to the Court of Appeals in DC:

Next Republicans, who have accused the president of trying to tip the court’s ideological balance in Democrats’ favor, quickly dispensed with the nomination of Patricia Ann Millett to the United States Court of Appeals for the District of Columbia Circuit. A former government lawyer whose husband serves in the military, she has worked in both Republican and Democratic administrations. The White House chose her as a test of how far Republicans would go to derail a qualified nominee.

***

Republican objections to Ms. Millet had nothing to do with her judicial temperament or political leanings. Instead, Republicans said they wanted to refuse Mr. Obama any more appointments to the appeals court, which is widely recognized as second only to the Supreme Court in importance and often rules on politically significant matters like presidential authority and campaign finance.

“Our Democratic colleagues and the administration’s supporters have been actually pretty candid,” said Senator Mitch McConnell of Kentucky, the Republican leader, who pressed his members hard to vote no. “They’ve admitted they want to control the court so it will advance the president’s agenda.”

Another confrontation — on these nominations or others — seems inevitable. Even as Republicans pledged to stop Ms. Millett, two more nominees to the appeals court were working their way through the Senate confirmation pipeline. Robert L. Wilkins, a Federal District Court judge, cleared the Senate Judiciary Committee on Thursday by a 10-8 party-line vote. Cornelia T. L. Pillard, a Georgetown law professor, was already approved by the committee and is awaiting a vote on the Senate floor.

The court is split evenly with four Republican and four Democratic appointees among the judges who regularly hear cases. Among the judges who are semiretired, five are seen as conservative, one as liberal.

There are still three vacancies that Mr. Obama is trying to fill. Republicans are pushing a bill that would eliminate those seats permanently because they argue the court has a light caseload.

That has prompted Democrats to accuse Republicans of trying to change the rules simply because they do not like the president who is picking judges.

“The judiciary is too important to play partisan games with,” said Senator Dianne Feinstein, Democrat of California. “And that’s exactly what’s going on here.”

 

Happy Halloween

Not a lot going on in the SDFLA right now...

Roy Black has an interesting post about appellate advocacy here with lots of good tips and insight.  One thing he says that caught my eye is that he believes that one lawyer should handle the trial and the appeal.  I agree with him:

While preparing for the moot court event, I thought about who should argue the appeal – the trial lawyer or the appellate specialist. I believe in one lawyer – one advocate; one lawyer who has lived the case and knows everything about it. From the investigation to the bail hearing to trial to arguing the appeals. One lawyer should strive to know every detail, to be the one indispensable lawyer who knows every fact, every motion and every precedent. This is the way to being the consummate advocate. The lawyer for the situation. Any situation.   

In other news, Facebook pictures of a gang member's kid on a pony led to his arrest and deportation.  It's unbelievable to me that people don't understand how everyone can see what you post on Facebook.  Via Paula McMahon:

A suspected member of a ruthless criminal gang will be deported — again — after he snuck back into the U.S. and got caught because he posted photos of himself online running pony rides and bounce houses for South Florida kids' parties.Investigators say Dilbert Coreas, 22, of West Palm Beach, is a suspected member of the notorious Central American gang Mara Salvatrucha (MS-13). He was deported to his native El Salvador in November after serving time in state prison for drug-related crimes.Coreas, who has distinctive tattoos of a large cross and a tear drop on his face, caught the attention of detectives from the Palm Beach County Sheriff's Office gang unit when they saw pictures that he posted on Facebook to promote his mother's party-planning business, It'z A Kidz World Party Planning.On Wednesday, Coreas apologized to a federal judge in West Palm Beach for sneaking back into the country just two weeks after he was deported to El Salvador.

NED award goes to Judge Stanley Marcus

Another item that I missed last week while I was away was the Federal Bar's annual Gala, which honored Judge Marcus with the Edward B. Davis award, known as the NED.

Also, Ani Martinez was installed as the new president of the chapter.

Congratulations to both Ani and Judge Marcus.

Catching up

It's nice to be back after an adventure in Broward.  I'm trying to catch up on what's going on.  Email me if you have anything... 

1.  Looks like Mike Pizzi is fighting and going to trial, while his co-defendants cut deals.  Will be an interesting trial:

On Friday, the two-term mayor, surrounded by an entourage of defense lawyers and political supporters, pleaded not guilty to an indictment charging him with seeking kickbacks in exchange for sponsoring federal grant applications that prosecutors say were meant to enrich him.
Even the magistrate judge, John J. O’Sullivan, took notice: “A lot of people here for one person.”
Pizzi, indicted Thursday by a federal grand jury in Miami, is charged with conspiring to commit extortion and four counts of attempted bribery. If convicted, each count carries up to 20 years in prison.
Outside the Miami federal courthouse, Pizzi and his defense team, Ed Shohat, Ben Kuehne and Ralf Rodriguez, declared the former mayor would go to trial instead of cutting a plea deal — as another local mayor and two lobbyists accused of the same crime are expected to do in the coming weeks.
“I am innocent, I am not guilty,” Pizzi said repeatedly, with his lawyers and about 25 supporters standing with him. “And I will be exonerated and found not guilty at trial.”

2.  If it wasn't bad enough for the Dolphins today after their collapse, their star center was served with a subpoena leaving the stadium:

 Miami Dolphins center Mike Pouncey was served a subpoena shortly after Sunday's 27-17 loss to the New England Patriots.
The Massachusetts State Police issued Pouncey the subpoena as he exited the team's locker room at Gillette Stadium.
According to Sports Illustrated, the subpeona is related to an investigation into former Patriots tight end Aaron Hernandez, who is a close friend and college roommate of Pouncey from their days together as teammates at the University of Florida.

 3. One of the world's top sellers of stolen credit card data, Egor Shevelev, who has the online handle Eskalibur, was extradited to South Florida after he being convicted in New York and sentenced to serve a lot of time.  The Sun-Sentinel has the details.

4.  The feds are now using warrantless wiretaps in criminal cases.  Is anyone surprised?

5.  Justice Sonia Sotomayor spoke recently at Arcadia.  There aren't Scalia quips, but still some good stuff:

An important piece of who Sotomayor is seems to be rooted in her days at Princeton. She shared about feeling alienated and her college roommate describing her as Alice in Wonderland. The new culture she had found herself in was a world of prep schools and where her peers enjoyed vacation getaways during Christmas and spring breaks. She admitted that everything scared her about college and that it took her awhile to discover her sense of value in an Ivy League setting. “It took me awhile to understand that even though my experiences were different, they were not unimportant and they had their own value,” she said. “That is probably one of the hardest things … you will likely experience in college. Finding a way to stay true to your sense of value … and having to look at others and say ‘OK, you may be academically smarter, but I bring a new perspective and a different way of looking at the world.’ Keeping that alive in all of us is probably the hardest challenge.”

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.