The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Five veteran South Florida federal prosecutors are taking buyouts, the Daily Business Review has learned.
The assistant U.S. attorneys who have opted to take the buyouts are Grisel Alonso, Kerry Baron, Carole Fernandez, Aloyma Sanchez and William White, according to sources.
Alonso, who served for 26 years, and Sanchez, who worked in the office for 23 years, were in the civil financial litigation unit when they took early retirement. Baron was a criminal prosecutor, White was in the national security section, and Fernandez was in the civil division handling most Freedom of Information Act litigation.
All were in the Miami office except for Baron, who worked in West Palm Beach.
Sanchez said the Justice Department offers buyouts on an irregular basis. The assistant U.S. attorneys who spoke to the Daily Business Review didn't want to talk financial specifics but said it included a $25,000 bonus.
It’s the result of a diminished docket at the court, one with the potential of a historic low. So far, the justices have found fewer cases than usual worthy of receiving full briefing and oral argument.
According to Scotusblog, the independent Web site that tracks the court’s proceedings, the justices are about 10 cases short of what they normally would have taken at this point of the term.
The court has almost total discretion over its docket and accepts about 1 percent of the petitions its receives. At least four of the nine justices must agree to take a case, and attorneys, law professors and legal experts love to speculate on why the court takes so few.
There’s the view that the law clerks who review the petitions are reluctant to suggest their bosses take a case, for fear the case might not turn out to be a good vehicle. There is a theory that the court’s deep ideological divide makes agreement difficult, or that the lack of major legislation from Congress gives the court less to interpret.
But some things simply haven’t worked out the way the justices planned. For instance, the court decided to examine Oklahoma’s new abortion restrictions. But first it asked for clarification from the state’s highest court on the breadth of Oklahoma’s law restricting drug-induced abortions.
When the state court said that the law would virtually eliminate all nonsurgical abortions, the Supreme Court simply let stand the lower court’s decision that it was unconstitutional. There was no explanation, but the justices apparently were looking for an opportunity to decide the more narrow issue on when the drugs could be prescribed.
Another case — on a fundamental civil rights rule that a public policy may be found discriminatory because of its results, rather than any biased intent — was scuttled when the lawsuit was settled just before oral arguments.
The court got rid of one case after it became clear during oral arguments that it had fundamental flaws that prevented the justices from deciding the broader issues at hand.
Justice Antonin Scalia scolded one of the lawyers in the age-discrimination case for not doing of better job of telling the court all the reasons “why we shouldn’t have taken it in the first place.”
In the parlance of the court, the case was DIGged — “dismissed as improvidently granted.”
A South Florida lawyer was found guilty Tuesday of stealing about $1.3 million from the Seminole Tribe of Florida in a fraud conspiracy that went on for several years.
Frank Excel Marley III, 39, of Southwest Ranches, was convicted of one count of wire and mail fraud conspiracy and six counts of theft from Indian tribal organizations after a jury trial in federal court in Fort Lauderdale. The jury found him not guilty of three other counts of theft from the tribe.
Prosecutors told jurors that Marley had submitted bills to the tribe – that were inflated by more than $1 million – in a conspiracy that went on between 2006 and 2011.
Marley, who has been free on bond since his arrest earlier this year, was released pending his sentencing on Feb. 21.
While we are thinking about old times, here's a good one from the Wire:Federal drug agents are investigating a Florida aircraft leasing business operated by two former champion race drivers who are suspected of providing airplanes to South American drug traffickers, according to court documents and interviews.
Agents from the U.S. Drug Enforcement Administration, FBI and Homeland Security Department raided the Fort Lauderdale offices Monday of World Jet Inc., which is controlled by brothers Don and Bill Whittington. They raced in the Indianapolis 500 and other tracks, teaming up with a third driver to win the France's 24 Hours of Le Mans race in 1979.
Later, both brothers pleaded guilty for their roles in a $73 million marijuana smuggling ring that authorities said financed their racing careers.
Now, according to a DEA search warrant affidavit that relies on several confidential informants, the Whittingtons are suspected of illegally leasing aircraft from Florida to cocaine cartels and laundering drug-related profits through a hot springs resort hotel and a ranch in Colorado.
Mia Ro, a DEA spokeswoman in Miami, confirmed her agency is leading the investigation but declined to provide details. Agents were seen carrying boxes of records and other items from World Jet's offices at Fort Lauderdale Executive Airport on Monday.
No charges have been filed. An employee at World Jet hung up Tuesday when telephoned for comment, and the Whittingtons did not respond to email messages. It wasn't clear if they had attorneys related to the DEA probe.
According to the DEA, World Jet leases or sells aircraft to drug traffickers in Colombia, Venezuela, Mexico and Africa at inflated prices, keeping the plane under the Whittington name or that of a third party and maintaining a U.S. tail number. After a certain period, the aircraft is returned to World Jet.
"In the event that the aircraft is seized pursuant to a narcotics interdiction, both parties can deny responsibility and World Jet Inc. can reclaim the aircraft," the DEA said in the affidavit, filed in Colorado federal court.
Christina Kitterman, one of the lawyers who formerly worked for Rothstein at his Las Olas Boulevard law firm, was charged in August with lying to some of Rothstein's investors to help keep his fraud afloat.
On Friday, a federal judge granted a request from Kitterman's defense attorney, Valentin Rodriguez, to force Rothstein to testify – as a defense witness – in her trial, which is tentatively scheduled for Jan. 6 in federal court in West Palm Beach.
"[Kitterman's] request to compel the production of Scott Rothstein at trial is granted," Senior U.S. District Judge Daniel T.K. Hurley wrote in his order.
But the judge also ruled that Kitterman will have to pay the full cost of moving Rothstein from wherever he is being held, the cost of providing security for him, his prison lodging in South Florida, and the tab for sending him back when he's done.
That happened because prosecutors seemingly were not planning to call Rothstein on their side of the case, a position they did not explain in their court filings.
"The [U.S.] Marshals Service requires a minimum of ten days' notice in order to produce the witness, and that the defendant must bear the cost, in advance, of the transportation, housing and security attendant to the witness' production," Assistant U.S. Attorney Lawrence LaVecchio wrote in court records.
The location where Rothstein is serving his punishment has remained top secret because prosecutors and prison officials think he could be in danger because of his cooperation against people with ties to organized crime. Though Rothstein gave a series of depositions under tight security in the federal courthouse in Miami in late 2011 and 2012, the public and reporters were forbidden from attending. Official transcripts were released later.
"The government can't just hide an exculpatory witness and ask for exorbitant amounts of money to produce her accuser so she can confront him in court," said Richard Rosenbaum, a Fort Lauderdale defense attorney who is not involved in the case.
Rosenbaum said he heard from attorneys representing other defendants accused by Rothstein that it would cost an estimated $20,000 to bring Rothstein to testify in South Florida. The U.S. Marshals Service did not immediately reply to a request for comment.
Though Rothstein's allegations are documented on a transcript, Rosenbaum said Kitterman's defense can't "cross-examine the transcript."
Recent revelations in court that Rothstein was helping his soon-to-be ex-wife Kim hide and sell more than $1 million worth of jewelry – after Scott Rothstein was supposedly cooperating and coming clean with prosecutors – have inflicted further damage on Rothstein's trustworthiness as a witness and could make him helpful to the defense, Rosenbaum said.
"It shoots his credibility to pieces," Rosenbaum said of the violation of Rothstein's agreement with prosecutors to tell the truth and confess all of his crimes. "It's also great fodder for the defense when they have Scott on the witness stand … because there he is basically double-timing the prosecution."
David Oscar Markus, a criminal trial and appellate lawyer based in Miami, agreed.
"Rule No.1 of criminal law is 'never trust a rat.' When you're talking about Scott Rothstein, the rat of all rats, Rule 1 is gospel. The feds should know better, but they generally ignore Rule No. 1," Markus said.
Earl Sampson has been stopped and questioned by Miami Gardens police 258 times in four years.
He’s been searched more than 100 times. And arrested and jailed 56 times.
Despite his long rap sheet, Sampson, 28, has never been convicted of anything more serious than possession of marijuana.
Miami Gardens police have arrested Sampson 62 times for one offense: trespassing.
Almost every citation was issued at the same place: the 207 Quickstop, a convenience store on 207th Street in Miami Gardens.
But Sampson isn’t loitering. He works as a clerk at the Quickstop.
So how can he be trespassing when he works there?
It’s a question the store’s owner, Alex Saleh, 36, has been asking for more than a year as he watched Sampson, his other employees and his customers, day after day, being stopped and frisked by Miami Gardens police. Most of them, like Sampson, are poor and black.
And, like Sampson, many of them have been cited for minor infractions, sometimes as often as three times in the same day.
Saleh was so troubled by what he saw that he decided to install video cameras in his store. Not to protect himself from criminals, because he says he has never been robbed. He installed the cameras — 15 of them — he said, to protect him and his customers from police.
Since he installed the cameras in June 2012 he has collected more than two dozen videos, some of which have been obtained by the Miami Herald. Those tapes, and Sampson’s 38-page criminal history — including charges never even pursued by prosecutors — raise some troubling questions about the conduct of the city’s police officers.
The videos show, among other things, cops stopping citizens, questioning them, aggressively searching them and arresting them for trespassing when they have permission to be on the premises; officers conducting searches of Saleh’s business without search warrants or permission; using what appears to be excessive force on subjects who are clearly not resisting arrest and filing inaccurate police reports in connection with the arrests.
“There is just no justifying this kind of behavior,’’ said Chuck Drago, a former police officer and consultant on police policy and the use of force. “Nobody can justify overstepping the constitution to fight crime.”
Mayor Oliver Gilbert said the allegations made by Saleh about police misconduct are untrue. The city has reached out to him in the past and he hasn’t been cooperative, he said.
“We have repeatedly asked the owner of the store to provide information so we can investigate his allegations and he has refused,” Gilbert said.
However, public records, obtained by the Herald, show that Saleh did provide videos to the city. The state attorney also issued a subpoena for the videos last year, and Saleh and his attorney complied. It’s not clear what, if any, action was taken. The state prosecutor’s records were not yet available on Friday.
“I gave them seven videos,’’ Saleh said. “I gave them to the internal affairs commander, Gary Smith.”
Saleh added that after he filed the internal affairs complaint in August 2012, one of the officers he complained about, Michael Malone, confronted a customer who was part of the complaint.
Saleh said that after the officers started harassing him, his employees and customers, he began to doubt that police were conducting an impartial investigation, and he did stop cooperating. He said that should not have stopped them from collecting their own evidence, given the seriousness of the complaint.
“What about their own video, the videos that officers are supposed to take from their cars?” Saleh asked, contending that each time an officer turns on his lights, the vehicle’s dashboard cam is supposed to activate. Saleh said he requested copies of the police videos corresponding to the arrests he recorded and was told the videos didn’t exist.
“They didn’t exist because the officers never put their lights on,’’ Saleh said.
Police documents show that the city ended its investigation of Saleh’s internal affairs complaint earlier this year, claiming that the storekeeper did not provide sufficient evidence.
Saleh and his attorney say they have spent about $20,000 — most of which was paid to the city for public records — to obtain documents that show police and city leaders conspired to violate the civil rights of its citizens through a program of racial profiling, false arrest, illegal search and seizure and intimidation.
They intend to file a federal civil rights lawsuit early next week against the city.
This case, of course, presents one of the rare instances in which showing deference and comity to the State Court would benefit a federal defendant. But here, in contrast to our usual practice, the Majority shows no comity and no deference to an order of the State Court clarifying the terms of the sentence that it imposed on Mr. Garza-Mendez. The Majority’s refusal to credit the State Court’s clarification of its own sentence is perplexing, especially given that, in my experience, we do not scrutinize State Court judgments in the same way when they result in a harsher sentence for criminal defendants.
The dissent’s assertion that we use comity only when it increases a defendant’s sentence is off the mark. When comity aids defendants in reducing federal sentences, the overwhelming probabilities are there would be no appeals. The dissent does not cite one case in the posture of this case, where defense counsel obtained a clarification order of a state-court sentence well after the state procedural period for challenging the sentence had expired to attempt to alter a later federal sentence in federal court. Under the circumstances of this case, the district judge determined the subsequent state-court clarification order was not entitled to deference, because of the unambiguous language of the sentencing order as well as federal statutory and circuit law. The dissent’s charges impugning the integrity of our court are both outrageous and totally unfounded.
