Federal Clerk charged in Dewey & LeBoeuf scandal

The New York Times has this very interesting (and sad) article here:

How did a 29-year-old with an impeccable record, someone who had never even taken an accounting course, end up as an accused mastermind of what the Manhattan district attorney, Cyrus Vance Jr., called “a massive effort to cook the books” of the once-giant law firm? And how did he get there without realizing he should hire a lawyer?

According to several criminal defense lawyers I spoke to this week, Mr. Warren became caught up in an increasingly common prosecutorial tactic. Mr. Warren may have been naïve, but he thought he was being questioned as part of a civil Securities and Exchange Commission investigation. He thought he might be a witness, and thus did not need a lawyer. Only too late did it dawn on him that he might be a target of a criminal investigation. The defense lawyers said prosecutors were increasingly using so-called parallel investigations to insert criminal investigators into what their targets thought were civil proceedings.

“It’s a serious threat to civil liberties, and people should know about it,” said Thomas J. Curran, a criminal defense lawyer in New York and a former prosecutor under the former Manhattan district attorney Robert Morgenthau. “Now, this is going on all over the country.” While this isn’t illegal or technically improper, “It’s dangerous,” Mr. Curran said. “They’re using civil proceedings to advance their criminal investigations. It’s a real threat to the cherished right to counsel.”

Judge Carnes wrote this money laundering guideline opinion, which has the following intro:

An application note to the guideline that governs the calculation of the offense level for money laundering instructs courts to consider only the money laundering offense itself and not the underlying crime that generated the money that was laundered. See United States Sentencing Guidelines § 2S1.1 cmt. n.2(C) (2013).1 In this case the district court in calculating the guidelines range mistakenly considered the defendant’s role in the drug conspiracy that generated the dirty money. As a result, the defendant received a higher adjusted offense level and guidelines range than he might have received if the application note to § 2S1.1 had been followed. That mistake and the resulting miscalculation must be laundered out of the sentence in a resentence proceeding.

Oh, and Happy St. Patrick's day:

Happy Pi Day!

Judge Posner is cranky.  From Alison Frankels' blog:

The acerbic judge was at his worst – or best, depending on your perspective – in an opinion Wednesday that’s already become an instant classic. Posner mocked the brief filed by a car crash victim and her lawyer, who were found in civil contempt for failing to deposit $180,000 in a trust account while they fight over the money with a union healthcare fund, as “a gaunt, pathetic document” with a grand total of 118 words of argument (including citations). He said the conduct of the crash victim and her lawyer was “egregious” and “outrageous,” and directed the trial judge presiding over their dispute with the union fund to consider throwing them in jail for contempt until they’ve come up with the $180,000. Posner suggested that the Justice Department might also be interested in the case, and then, to boot, scolded the trial judge, U.S. District Judge Joan Lefkow of Chicago, for permitting the case to drag on as “the stench rose.”

Judge Huck visits the 9th Circuit

The Recorder covers the story here (ht Vanessa Blum):

A San Diego lawyer's claim that virtual auctioneer eBay breaches its contract with millions of sellers ran into a marble wall Wednesday in a Ninth Circuit courtroom.
Roy Katriel is trying to bring a class action against eBay Inc. on the ground that the company helps bidders obtain the lowest sale price possible, despite promising in its user agreement to remain neutral in all transactions.
"What they put in the agreement is very specific. They said, 'We are not involved in the actual transaction,'" Katriel told the court Wednesday. "Now it turns out they are."
Under eBay's process, bidders enter the maximum they're prepared to bid. The company's software then discloses only so much as necessary to beat the previous high bid. So if a user authorizes a $50 bid, and the previous high bid is only $40, the user gets the item for $41. That shortchanges sellers, Katriel alleges in Block v. eBay.
There's one glaring problem with his argument. "Doesn't everybody who enters a bid on eBay understand what the system is?" Judge Stephen Reinhardt asked.
***
The third member of the panel, visiting U.S. District Judge Paul Huck of Florida, sounded even more skeptical than Reinhardt and Farris. He compared eBay to a mediation neutral that simply shuttles offers back and forth between parties, with "no dog in the fight."
But, Katriel argued, if a party told the mediator, "I'll pay up to $80, but try to get it for me for less ... he'd be working on your behalf."
Cooley partner John Dwyer, representing eBay, had a far easier time. In fact, he faced zero questions during his 10-minute argument. He said eBay's user agreement "strongly recommends" that users also read about the automatic bidding process, which can be accessed via a drop-down menu. "He never alleges they were misled about how the automatic bidding system works," Dwyer said.
The statement about staying out of the bidding process is only a limitation of liability that makes clear eBay isn't acting as a fiduciary like some traditional auction houses, he said. "What it's saying is, 'Hey, if you think you're with Christie's or Sotheby's, you're not.'"

Law school rankings are out

Here's the latest from U.S. News:

FSU #45 (up from 48)
UF #49 (down from 46)
UM #61 (up from 76)
Stetson #93 (up from 109)
FIU #100 (up from 105)

Not Ranked in the top 150: Nova, St. Thomas, Ave Maria, Barry, Florida A&M and Florida Coastal

Too good not to post

Between Two Ferns with Zach Galifianakis: President Barack Obama from President Barack Obama

11th Circuit decides to hear habeas case en banc

The issue in Spencer v. United States isn't one of great significance -- it deals with whether a defendant who raised the issue at sentencing and on direct review can raise it on a 2255 when there has an intervening change in law.  But it keeps the streak alive in the 11th Circuit for granting en banc review *only* when the defendant wins.  I cannot remember the last time the 11th Circuit granted review when the government won.  And because two of the judges who participated in the panel decision -- District Judge Brock Hornby and Senior Judge Kravitch -- won't be reviewing the case en banc, the case is almost certainly going to be reversed. 

Here's the panel's holding:

We hold that a defendant who unsuccessfully raised a career offender issue at both sentencing and on direct appeal can use a timely-filed first motion under 28 U.S.C. § 2255 to pursue the same issue when an intervening case from the Supreme Court validates his argument and applies retroactively. Under that intervening case, this defendant’s third degree Florida felony child abuse conviction no longer qualifies as a predicate crime of violence. He therefore is not properly treated as a career offender. We vacate the district court’s denial of his section 2255 motion and remand for resentencing.

Seems rather straight forward.  But I think this case raises two important issues --

1)  If the 11th Circuit is going to allow as many visiting judges as it allows, then if the case is heard en banc, the judges who sat on the panel should be permitted to hear the case en banc.  Here, Judge Kravitz was permitted to sit en banc but decided not to.  But the author of the opinion, Judge Hornby, cannot.

2)  The 11th Circuit should hear more cases en banc where the government is successful, especially because there are so many important decisions being made where there is only one active judge on the panel.

Judge Robin Rosenbaum vote today (UPDATED with vote)

The Senate Judiciary Committee will vote today on Judge Rosenbaum's nomination to the 11th Circuit.  She is expected to have no issues and fly through.  Watch here at 10am. 

UPDATE -- by voice vote, Judge Rosenbaum got unanimous approval.  Now to the full Senate.  Should go quickly.

ABA's White Collar Conference

So the ABA's big White Collar Conference is back at the Eden Roc this Wednesday through Friday.  Over 1000 lawyers come to schmooze, get CLEs, and to go to the parties at night all along Miami Beach. 

One party of note is at the Blues Bar at the National Hotel at 9:30pm where there will be the annual Steve Chaykin toast.  This year, the name will be changed to the Chaykin/Sharpstein toast....

In substantive news, both AG Holder and the Republicans are trying to get serious about sentencing reform.  From the NY Times:

Shortly after Senator Rand Paul filed suit last month against the Obama administration to stop its electronic dragnet of American phone records, he sat down for lunch with Attorney General Eric H. Holder Jr. in his private dining room at the Justice Department.

Mr. Paul, a Kentucky Republican, is one of the Obama administration’s most vocal critics. But their discussion focused on an issue on which they have found common cause: eliminating mandatory minimum sentences for nonviolent drug offenders.

The two men are unlikely allies. Their partnership unites the nation’s first African-American attorney general, who sees his legacy in a renewed focus on civil rights, and some of Congress’s most prominent libertarians, who have accused the Obama administration of trampling on personal freedom with drones, wiretaps, tracking devices and too much government.

While a range of judges, prosecutors and public defenders have for years raised concerns about disparities in punishment, it is this alliance that may make politically possible the most significant liberalization of sentencing laws since President Richard M. Nixon declared war on drugs.