Thursday News & Notes (UPDATED)

1. Attorney Anthony Livoti Jr. was convicted in the Mutual Benefits case after a lengthy trial before Judge Scola.  He was also acquitted of 20 counts, but that won't help him much at sentencing.

2.  Judge Mark Bennett is (rightfully) railing on the federal sentencing guidelines.  Via CNN:

 Nearly 30 years ago, Congress embarked on a remarkable and ultimately tragic transformation of criminal law. Through the establishment of mandatory sentences and sentencing guidelines, discretion in sentencing was shifted from judges to prosecutors. 

After the changes, prosecutors largely controlled sentencing because things like mandatory sentences and guideline ranges were determined by decisions they made.

This change ignored the fact that federal judges are chosen from the ranks of experienced members of the bar precisely because their long legal careers have shown the ability to exercise discretion.

It also ignored the contrasting truth that many federal prosecutors are young lawyers in their 20s and 30s who have little experience making decisions as weighty as determining who will be imprisoned and for how long.

The primary reason for the changes was well-intended, though: Members of Congress wanted more uniformity in sentencing. That is, they wanted a term of imprisonment to derive from the crime and the history of the criminal rather than the personality of the person wielding discretion.

After nearly 30 years, we know how Congress' experiment turned out, and the results are not good. Federal judges have been relatively lenient on low-level drug offenders when they have the discretion to go that way. Turning discretion over to prosecutors via mandatory sentences and guidelines not only resulted in a remarkable surge in incarceration, it does not seem to solve the problem of disparities.

3.  Didn't the AG say that he was trying to fix the sentencing problem?  Yes, but apparently, he is saying the right things but not actually doing much.  According to the Atlantic:

When the justices of the United States Supreme Court confer Friday morning to consider new cases they will have the opportunity to accept for review a dispute that tests not just the meaning of their own recent Sixth Amendment precedent but the viability of a major new policy initiative implemented this summer by the Justice Department to bring more fairness to federal sentencing while reducing the terrible costs of prison overcrowding.
In Gomez v. United States, a Massachusetts case, the justices have been asked to determine whether they meant what they wrote about juries and drug sentences in Alleyne v. United States, decided just this past June, and at the same time whether Attorney General Eric Holder meant what he said, in August, when he promised to curb the ways in which his federal prosecutors abuse "mandatory minimum" sentences in drug cases to obtain guilty pleas (or higher sentences).
The justices should accept this case for review. And the Court should affirm the just principle that a man cannot constitutionally be sentenced based upon charges that are not brought or upon facts a jury does not even hear. But even if the justices aren't willing to muster up that level of indignation, they ought to at least take the opportunity to call out federal prosecutors for saying one thing in front of the microphones and another in court papers.

4.  Here's a great story about how a reporter was able to break the Bonds grand jury testimony.  Right place, right time.  If you were the reporter's lawyer, would you have had the guts to tell him to go forward?

5.  Irfan Khan is suing the federal government for malicious prosecution.  Any chance to play this:




6.  Texas Rangers Leonys Martin Tapanes was apparently kidnapped and extorted, leading to federal charges.  The Herald has the details:

Leonys Martin Tapanes seemed like yet another Cuban baseball player with tremendous promise when he signed a $15.5 million contract with the Texas Rangers in 2011.
But there apparently is a darker story behind Martin’s climb from poverty to Major League Baseball success.
The U.S. attorney’s office in Miami on Wednesday charged three people — Eliezer Lazo, 40, formerly of Miami Lakes, Joel Martinez Hernandez, 37, formerly of Miami-Dade, and Yilian Hernandez, 30, of Hialeah — with conspiring to smuggle, kidnap and extort the 25-year-old Rangers outfielder.
The trio are also charged with smuggling 13 other Cuban baseball prospects to the United States — all of them going from Cuba into Mexico and then into the United States.
Yilian Hernandez, arrested Wednesday by Homeland Security and FBI agents, will have her first appearance in Miami federal court Thursday. Lazo and Martinez are currently serving respective prison sentences of five and seven years for 2012 money-laundering convictions related to Medicare fraud.

7. Finally, the blog gets a little shout out in the DBR for breaking the story yesterday on the two new federal judges being vetted:

The White House is vetting Miami-Dade Circuit Judges Beth Bloom and Darrin Gayles for two open positions on the federal bench in Miami, a legal blog reported.

The Southern District of Florida blog, which is associated with the Daily Business Review, said the judges were picked from among four finalists selected by the Florida Federal Judicial Nominating Commission in August. Miami-Dade Judges Peter Lopez and John Thornton rounded out those on the short list.

Both Bloom and Gayles are serving in the civil division.

The openings were created when U.S. District Judge Patricia Seitz took senior status last November and plans by U.S. District Judge Donald Graham to take senior status this month.

BREAKING -- The White House is vetting two district court candidates

A big congratulations to Beth Bloom and Darrin Gayles who are being vetted for the two openings on the district court bench in the Southern District of Florida.

Both are current state judges on the Circuit bench. Judge Bloom received her JD from the University of Miami in 1988, and Judge Gayles received his JD from George Washington in 1993.  Gayles has ties to the federal system as a former Assistant U.S. Attorney in the late 90s.  Both will make excellent federal judges. 

DBR covers AUSAs getting bought out

Here:

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.

The USAO, however, is in much better shape than the Federal Public Defender's Office, which has had its budget slashed, which has forced defenders to take lengthy unpaid furloughs, and which has had buyouts for an office one quarter the size of the USAO.

Cyber Monday

The ABA and Thomson-Reuters are even getting into it, offering whopping sales on landlord-tenant treatises and the like.  Wooohooo!

Rumpole is giving out free (and good!) trial advice.  No jury trials in January.  The conventional thinking is that the Thanksgiving to Christmas window is a wonderful time to try cases because jurors are more forgiving.  Thoughts?

Meantime, the Supreme Court can't find enough cases to hear.  From the WP:

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.”

Your Monday moment of zen:

Happy Thanksgiving!

Just a few things before the break:

1.  Attorney Frank Excel Marley III was convicted yesterday.  Paula McMahon explains:

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.

2.  Curt Anderson has this interesting story about a blast from the past:

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.

 While we are thinking about old times, here's a good one from the Wire:

Snitching ain't easy

That's especially true when you're Scott Rothstein.  For some reason, the feds thought that he shouldn't be required to testify in an upcoming trial.  From Paula McMahon:

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.

Yours truly was also quoted along with some other lawyers:

"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.

Video captures police misconduct in Miami Gardens

Earl Sampson, an employee of a Quickstop in Miami Gardens, was just taking out the garbage. But then he is arrested for trespassing for no reason. Check out the video:



The Herald's Julie Brown has all of the details:

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.”

But Miami Gardens isn't backing down. They are somehow defending the cops:

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 is some great investigative reporting by the Herald and not just regurgitation of government press releases. Kudos.

Judge Fay vs. Judge Martin

This opinion about what counts as an aggravated felony got a little heated between Judges Fay and Martin. 

First, a portion of the dissent by Judge Martin:

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. 

Here's Judge Fay's response:

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. 

Woah. It didn't seem to me at all that Judge Martin was impugning the integrity of the court of which she is also a member. It seemed to me that she was pointing out what all criminal practitioners know about appellate courts. Good for Judge Martin. (As an aside, the majority only had one 11th Circuit judge, who was joined by a judge from the court of international trade.)