"The Romanian Mumble"

Should Alex Michaels be held in criminal contempt for mumbling in Romanian, "futos gutos monte"?  The Third DCA in a 2-1 says yes per Judge Shepherd (with a powerful dissent by Judge Lagoa).  Here's the majority:

The Romanian Mumble

Mr. Michaels’ use of foul language, however, is another matter. On this
charge, Mr. Michaels admitted that while extending his hand toward Mr. Von
Zamft, he mumbled the words “futos gutos monte” at him. Tr. 97. The trial court
immediately knew or gleaned from Mr. Michaels’ scornfulness that the words
meant “F**k You.” Mr. Michaels confirmed the trial judge’s interpretation of the
words during colloquy at the contempt hearing held a few hours later:

THE COURT: You stated that you mumbled Romanian, what do
those words mean?
[Mr. Michaels]: I’m not going to say at this point. They are
obscene words. They are obscene words in Romanian. Again, if

that is somehow contemptuous, then I apologize to everybody [who]
could be insulted by words they do not understand.
I’m going to try in the future to stop even doing that, but I do
speak Romanian. I [have] been in trouble before. I learned it in order
not to offend anybody.
It happened before. Sometimes they realize they don’t
understand the words. They smile, they laugh, they say don’t do it
again.

Tr. 99-100. We are well aware this has happened before and we are not laughing.
Mr. Michaels also has proven “don’t do it again” means nothing to him.2 Neither
do prior sanction opinions from this court, nor prior discipline from the Florida
Bar. See Michaels v. State, 773 So. 2d 1230 (Fla. 3d DCA 2000 ) (affirming a
judgment of direct criminal contempt and a sentence of six months of probation for
violating an order to refrain from making speaking objections); Quinones v. State,
766 So. 2d 1165, 1167 (Fla. 3d DCA 2000) (reporting Mr. Michaels to the Florida
Bar for “unprecedented levels of attorney misconduct”).3
Mr. Michaels somehow is under the impression that cursing in his native
tongue is somehow less contemptuous than cursing in English. However, we defer
to the trial court’s finding, “I know what I saw.” Pursuant to Florida Rule of
Criminal Procedure 3.830, the trial court’s reliance on her sight—coupled with
record support from Mr. Michaels’ own mouth—is sufficient to uphold the finding
of contempt based on “the mumble.” Viewing, as the trial court here did, the
words mumbled in the context in which they were made, see Martinez v. State, 339
So. 2d 1133, 1135 (Fla. 2d DCA 1976), we conclude the trial court correctly
deemed them contemptuous.

Here's the dissent by Judge Lagoa:

 Applying the requisite objective standard, the record does not support a
finding that an isolated, inaudible utterance in Romanian that was not directed at
the trial court is sufficient to sustain a finding of direct criminal contempt. While
Michaels admits that he mouthed an obscenity in Romanian under his breath
during the hearing, it is undisputed that every witness testified that they did not
hear Michaels’s utterance. Moreover, the isolated utterance was done after
opposing counsel had interrupted Michaels’s questioning, walked up to the
podium, shook his fist at Michaels, and threatened to move to have Michaels
involuntarily committed under the “Baker Act.”

Additionally, there is nothing in the record to indicate that the utterance
was directed at the trial court, nor is there anything in the record to establish
how the trial court translated Michaels’s mumbled utterance from Romanian
to the English obscenity quoted in its orders. Indeed, the trial court’s two orders
make it clear that the trial court is not even sure whether Michaels muttered “F**k
you” or whether he said something in Romanian. The trial court’s uncertainty
confirms the failure to satisfy the “beyond a reasonable doubt standard” required
for finding an individual in direct criminal contempt. Because the power of
contempt must be exercised rarely and cautiously, “[t]he provocation must never
be slight, doubtful or of shifting interpretations. The occasion should be real and
necessary, not murky, and not ameliorated in some less formal manner.” McRoy,
31 So. 3d at 275; Davila, 100 So. 3d at 264.

The trial court’s order also warrants reversal as the record lacks the
necessary intent required to sustain a finding of direct criminal contempt.
“Criminal contempt requires some willful act or omission calculated to hinder the
orderly functions of the court.” Davila, 100 So. 3d at 264 (emphasis added). See
also Woods v. State, 987 So. 2d 669, 677 (Fla. 2d DCA 2007) (“[A]n intent
beyond mere rudeness was required before the court could adjudicate Mr. Woods
guilty of direct criminal contempt. The trial court had to establish that Mr. Woods'
statement, coupled with his actions, were intended to constitute an imminent threat

to the administration of justice.”); Woodie, 960 So. 2d at 878-79 (“Criminal
contempt requires some willful act or omission calculated to hinder the orderly
functions of the court.”). See generally Ex parte Earman, 95 So. at 762-63 (direct
criminal contempt cannot be sustained where record did not establish intent to
embarrass the court in the administration of justice).
Significantly, nothing in the record establishes beyond a reasonable doubt
that Michaels intended to disrupt or hinder the court proceeding by his inaudible
utterance in Romanian. There is no evidence that Michaels’s isolated utterance
was “calculated to cause harm” – a prerequisite for a finding that the conduct
charged is contemptuous; and the record is also devoid of any evidence of willful
or deliberate intent to disrupt. In fact, the record evidence is to the contrary.
Under oath, Michaels testified that he mouthed a profanity in Romanian, and not in
English, because he did not want to interrupt the proceedings or be offensive.
Moreover, Michaels was reacting to Von Zamft’s threat to Baker Act him, and
Von Zamft’s physical behavior that required his fellow assistant state attorney to
physically restrain him, not any statement or ruling by the trial court. See, e.g.,
Davila, 100 So. 3d at 264 (during contempt hearing, defendant explained that he
was frustrated by the system and his situation so that his statement “F*** the

court” was not calculated “to hinder the functions of the court, but merely spoke[n]
out of understandable frustration”); Woods, 987 So. 2d at 678 (defendant’s

expletive “is somewhat understandable given that he was charged with being a
felon in possession of a firearm though he had never been convicted of a felony”).
See also Ex parte Earman, 95 So. at 762 (unrebutted testimony under oath
established lack of intent and therefore could not sustain adjudication of direct
criminal contempt).

***

Here, the requisite proof required for direct criminal contempt is sorely
lacking. Because the record fails to support a finding of direct criminal contempt
on both charged offenses, I would grant the petition for writ of habeas corpus, and
remand with directions to the trial court to vacate the judgment and sentence for
direct criminal contempt.

Slow blogging

Sorry for the slow blogging yesterday.  I was in federal court in Bowling Green, Kentucky.  Back home now and saw that Judge Scola sentenced Anthony Livoti Jr. to 10 years in prison. 


Paula McMahon has the story:

Shackled and dressed in khaki jail scrubs, Livoti showed the emotion of a scared man fighting to save himself from spending the rest of his life in prison — but he also displayed the skills of a tough attorney who fought for his clients in more than 40 years of lawyering.
"I had a life that was always filled with joy. I now have a life that is filled with sadness," Livoti said, speaking of the three months that he has already spent locked up in the Federal Detention Center in Miami since his conviction.

                                                                           

Livoti, 65, of Fort Lauderdale, was best known as a police union lawyer and for his advocacy work for the gay community. He was convicted in December after a three-month trial.
The Ponzi scheme bought out life insurance policies at discount prices from seniors and people who were dying of AIDS, cancer and other terminal conditions. In what became known as the Mutual Benefits Corp. scam, led by Joel Steinger, the policies were sold to investors who expected to make a profit by receiving the full insured value when the beneficiaries died.
Jurors took an extraordinarily long eight days of deliberations to find Livoti guilty of four charges, including conspiring to commit fraud and money laundering, but found him not guilty of 20 related counts.
Livoti, the only defendant who went to trial in the case, finally acknowledged his guilt in court Tuesday after long denying it.
"I lost my way and I wish I could go back and change it," Livoti said, apologizing to the victims for what he called the "terrible wrong" he committed.
Livoti insisted that he had thought he was innocent of the charges until he went to trial and heard all of the evidence against him. He said he had thought that the problems with Mutual Benefits were caused because medical advances were helping people with AIDS live longer than expected and even survive.
Sentencing guidelines suggested a punishment of 80 years. Assistant U.S. Attorney Karen Rochlin recommended a 30-year term and the defense asked for six years in prison – twice the punishment that Livoti would have received if he took the last plea agreement prosecutors offered before he went to trial.
Livoti, the son of a New York state judge, told U.S. District Judge Robert Scola Jr. that he had already lost his reputation, his career and his freedom.
He begged the judge to give him hope, which he said he had lost, that he would not die in prison and could some day be released to spend the rest of his life with his husband, Michael Porter. He said he also wants to try to make amends for his crimes. The felony convictions mean he will lose his law license.
"Judge, I am a life worth saving," Livoti said.

The Chief issues a memo

In case you didn't see it, here is Chief Judge Moreno's memo to the bar of the SDFLA:

To: Members of the Southern District of Florida Bar
From: Chief Judge Federico A. Moreno
Re: Call for Assistance -- Pro Bono Panel

I am very pleased to announce that our District is embarking in a new direction that hopefully will result in more unrepresented litigants obtaining counsel than ever before. And we need your help!

You may have heard of the Courts decision last month to discontinue operations of the Volunteer Lawyers Project (VLP). In recent times the expenses of operating a program like the VLP simply have become disproportionately high when compared to the number of pro se cases it could service. Because the program was funded from funds collected through a portion of attorney admission fees from members of our Bar and pro hac vice fees, my colleagues and I felt a special responsibility to insure that those monies would be used as wisely as possible.

The decision to disband the VLP was not taken lightly, but rather after exploring vario us alternatives. In the end, our Judges determined that it would be a better use of resources for us to take a more active role in seeking out counsel for pro se litigants. This will permit much of the money used to fund the VLPs efforts to be shifted toward expense reimbursement for volunteer attorneys.

This is where each of you comes in. I urge all members of the Southern District to join us in a renewed commitment to assist the unrepresented in this District. How can you help? There are a number of ways, the easiest of which is to simply take a case! Pro Bono Opportunities can be found at the Courts websitewww.flsd.uscourts.gov and are regularly distributed by way of electronic email blast. In addition, I urge each of you to register via the website to be included in a Pro Bono Panel list of those attorneys have an interest in assisting with worthy cases in the future or who are in a position to help locate other attorneys, such as associates in their law firm, who may take cases. There is no commitment from registering, but rather this will simply help us build a database of first contacts when the need arises.

I would like to take this opportunity to especially thank those who have volunteered in the past through the VLP, and particularly its Director Randy Berg, for their important service to the Court. I am sure that their spirit of public service will carry on as we move forward with this new endeavor. My colleagues and I look forward to seeing each of you in Court.

Federico A. Moreno
Chief United States District Judge

Senate Judiciary Hearing tomorrow at 10am for Bloom & Gayles

Judicial Nominations
Full Committee
Date: Tuesday, April 1, 2014
Time: 10:00 AM
Location: Dirksen 226
Agenda
Beth Bloom, to be United States District Judge for the Southern District of Florida
Paul G. Byron, to be United States District Judge for the Middle District of Florida
Darrin P. Gayles, to be United States District Judge for the Southern District of Florida
Carlos Eduardo Mendoza, to be United States District Judge for the Middle District of Florida

Mutual Benefits Joel Steinger pleads guilty

This was going to be a very long trial with lots of hurdles including a defendant who would have needed lots of medical attention during trial day.  So I'm sure many people are relieved that it's over.  From the DBR:

Joel Steinger, the mastermind behind an $800 million viatical scam run by Fort Lauderdale-based Mutual Benefits Corp., pleaded guilty Friday to fraud conspiracy in two cases pending against him.
Federal prosecutors charged Steinger stole tens of millions of dollars from the company that purchased life insurance policies of seniors and critically ill people. The business plan was to buy discounted policies and make money for investors when the policies matured.
Regulators charged Mutual Benefits faltered when HIV-infected people started living longer because of new medications. Steinger and his brother, Steven Steiner, then turned the enterprise into a Ponzi scheme, prosecutors said.
In a factual proffer signed by Steinger on Friday, he said he made false promises about returns and single-handedly made decisions on life expectancy projections for thousands of policies in a fraud that ran from 1994 to 2004.
"Many investors were falsely told that as many as 80 percent of all MBC policies matured on time or early," according to the proffer.
Mutual Benefits was placed in receivership.
Steiner was sentenced in February to 15 years in prison for his role in the fraud. The company's general counsel, Michael J. McNerney, also pleaded guilty and was sentenced to five years in prison.
Fort Lauderdale attorney Anthony Livoti Jr., who served as the trustee for Mutual Benefits, was convicted at trial last year of multiple counts of fraud and is scheduled to be sentenced Tuesday by U.S. District Judge Robert Scola in Miami.
Steinger once lived in a Fort Lauderdale waterfront mansion but has been held without bond for about 1½ years. He uses a wheelchair because of severe back pain, and prosecutors made arrangements for him to appear at a hearing on his medical condition last week via a video feed from the jail.
Under the plea agreement, the government will drop 24 other fraud counts against Steinger. Prosecutors claimed in the plea agreement filed Friday that there were 250 victims of the fraud.

Is it me or did the first quarter of the year fly by?  Spring break is over and baseball season is here.  It was a pretty quiet 3 months in the District..... Any trials coming up?  Send me your tips, which as always will remain anonymous -- dmarkus@markuslaw.com

Should prosecutors be able to use rap lyrics as evidence?

That's the question posed by the front page of the NY Times today:

No suspects. No sign of the gun used to shoot the men. No witnesses to the shooting outside a house where officers found Mr. Horton sprawled next to a trash can and Mr. Dean on the front porch.

But in 2011, the case was reassigned to a detective who later came across what he considered a compelling piece of evidence: a YouTube video of Antwain Steward, a local rapper with the stage name Twain Gotti, performing his song “Ride Out.”

“But nobody saw when I [expletive] smoked him,” Mr. Steward sang on the video. “Roped him, sharpened up the shank, then I poked him, 357 Smith & Wesson beam scoped him.”

Mr. Steward denies any role in the killings, but the authorities took the lyrics to be a boast that he was responsible and, based largely on the song, charged himlast July with the crimes.

Today, his case is one of more than three dozen prosecutions in the past two years in which rap lyrics have played prominent roles. The proliferation of cases has alarmed many scholars and defense lawyers, who say that independent of a defendant’s guilt or innocence, the lyrics are being unfairly used to prejudice judges and juries who have little understanding that, for all its glorification of violence, gangsta rappers are often people who have assumed over-the-top and fictional personas.

“If you aspire to be a gangsta rapper, by definition your lyrics need to be violent,” said Charis E. Kubrin, an associate professor of criminology, law and society at the University of California, Irvine.

But prosecutors say the lyrics are an important tool for battling criminals who use an outspoken embrace of violence as a weapon of control. “Just because you put your confession to music doesn’t give you a free pass,” said Alan Jackson, a former senior prosecutor in the Los Angeles County district attorney’s office.

In some of the cases, the police say the lyrics represent confessions. More often, the lyrics are used to paint an unsavory picture of a defendant to help establish motive and intent.

THe whole article is worth a read.  What do you all think?

Sen. Rubio issues blue slip for Judge Gayles

Via the Huffington Post (ht Glenn Sugameli):

WASHINGTON -- Florida judicial nominee Darrin Gayles just inched a little closer to becoming the nation's first black, openly gay man to serve as a federal judge.Sen. Marco Rubio (R-Fla.) has given the green light to the Senate Judiciary Committee to proceed with Gayles' nomination to the U.S. District Court for the Southern District of Florida, a committee aide confirmed to The Huffington Post on Tuesday. Specifically, Rubio has submitted his "blue slip" to the committee, a crucial step in the confirmation process whereby a senator can unilaterally approve or block a judicial nominee from his or her home state.Now that both of Gayles' senators have submitted their blue slips -- Florida Democrat Bill Nelson already turned his in -- that signals to committee chairman Patrick Leahy (D-Vt.) to move forward with a hearing. Gayles still has to clear the committee and pass the Senate, but Democrats are expected to carry those votes. By turning in his blue slip, Rubio has removed the biggest obstacle to Gayles' confirmation.

The initial hearing may be as soon as next week.  Congratulations on this big step forward for Judge Gayles.  I assume the blue slip was also issued for Judge Bloom, but I have not yet found any confirmation for that.

Tuesday's news and notes

1.  Bryan Garner has a list of words you should not use in legal writing.  Here are a few from the article:

and/or Is it a word? Is it a phrase? American and British courts have held that and/or is not part of the English language. The Illinois Appellate Court called it a "freakish fad" and an "accuracy-destroying symbol." The New Mexico Supreme Court declared it a "meaningless symbol." The Wisconsin Supreme Court denounced it as "that befuddling, nameless thing, that Janus-faced verbal monstrosity." More recently, the Supreme Court of Kentucky called it a "much-condemned conjunctive-disjunctive crutch of sloppy thinkers."
If a sign says "No food or drink allowed," nobody would argue that it's OK to have both. (Or includes and.) And if a sign says "No admission for lawyers and law students," would you argue that either could go in alone? You'd be thrown out of court.
The real problem with and/or is that it plays into the hands of a bad-faith reader. Which one is favorable? And or or? The bad-faith reader can pick whatever reading seems favorable.
I've done lots of drafting since 1987, the year when I learned how unnecessary and/or really is. I've drafted court rules, jury instructions, model contracts, car warranties and many other documents. Never once have I needed and/or. You won't either. Kill it.
herein Old-style drafters say they stick to their ways for reasons of precision. They like the here and there words—apparently unaware of the ambiguities they're creating. The problem with herein is that courts can't agree on what it means. In this agreement? In this section? In this subsection? In this paragraph? In this subparagraph? Courts have reached all those conclusions and more. Use ordinary English words: in this agreement may be two extra words, but it's more precise.

2.   The Supreme Court isn't going to change its access policies (big surprise).  From Tony Mauro:

The U.S. Supreme Court has “no plans to change” its practices on access to its proceedings, a court spokeswoman said in a letter on March 21. Court public information officer Kathy Arberg was responding to a March 9 letter from the Coalition for Court Transparency, a new group of media and public interest organizations pressing for “policies that will help the public better understand [the court’s] important work.” Addressed to Chief Justice John Roberts Jr., the coalition letter urged the court to allow camera broadcast of court proceedings or, as an “intermediate step,” same-day release of the audio of oral arguments. Under current practice, the audio of oral arguments is released on the Friday of the week in which they occur—too late to be useful in same-day or next-day news coverage. Arberg’s letter notes that “the audio recordings of all oral arguments are available free to the public on the Court’s website, wwww.supremecourt.gov, at the end of each argument week. The written transcripts of oral argument are available on the Court’s website on the same day an argument is heard. There are no plans to change the Court's current practices.” The letter was addressed to Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, a leader of the coalition. Brown said on Monday, "I am appreciative that the Supreme Court responded to our coalition’s letter. I do believe that the smallest of changes to the court’s institutional practices would increase the public’s understanding of and appreciation for the court’s work. I hope that this marks the beginning of a dialogue between the court and those of us who care deeply about press freedom and increasing transparency at our most important judicial institution.” The statement from the court came the same day that a forum on the subject of transparency at the Supreme Court took place in Washington. Co-sponsored by the coalition, New York University and the Reporters Committee, the discussion was the second in a series that went beyond issues of broadcast access to look at ways the court could respond to Information Age demands for greater openness from government. Concerns ranged from the justices’ failure to explain their recusals, to the secrecy that sometime surrounds their public appearances and speeches. Georgia State University College of Law professor Eric Segall objected to the court’s practice of not revealing which justices voted for or against granting review of incoming petitions. “That is an incredibly important vote, and there is simply no reason why we shouldn’t know it,” he said.

3.  P.J. O'Rourke has filed a great and funny brief in the Supremes (access it here).  The NY Times covers it:

That is the point Mr. O’Rourke and the libertarian Cato Institute made in their cheeky, hilarious and quite possibly counterproductive brief. They said they were “unsure how true the allegation is given that the health care law seems to change daily, but it certainly isn’t as truthy as calling a mandate a tax.”

Truthiness, the brief explained, is a characteristic of a statement made “from the gut” or because it “feels right” but “without regard to evidence or logic.” The reference to “calling a mandate a tax” is, of course, a nod to Chief Justice John G. Roberts Jr.’s 2012 opinion upholding a central part of the Affordable Care Act.The guidebook for Supreme Court lawyers does not address whether it is a bad idea to mock the chief justice of the United States as you seek his vote, but that does seem to be the consensus view.The actual legal question before the justices is, as is so often the case at the court, a preliminary one. Here it is whether the anti-abortion group is entitled to sue at all. On the one hand, the Ohio Elections Commission said there was probable cause to think the group had violated the law. On the other, the matter fizzled out after Mr. Driehaus lost the election.

The federal appeals court in Cincinnati dismissed the suit, saying the group no longer had anything to worry about. In earlier decisions, courts have upheld the law.But that was before United States v. Alvarez, a Supreme Court decision issued the same day as the health care ruling. It struck down a federal law that made it a crime to lie about receiving military decorations, and it cast doubt over the constitutionality of the Ohio law and similar ones in 15 other states. Mr. O’Rourke connected the dots on the first page of his brief, assuring the justices that he, his lawyers, his family members and his pets “have all won the Congressional Medal of Honor.”