Should Supreme Court Justices be more tech savvy?

After reading Michelle Olsen's post on the Facebook case coming up, where the briefs have to describe what FB is, query whether these Justices know enough to be ruling on such questions:

The petition includes a rudimentary description of Facebook, a subtle recognition of the justices’ admitted lack of online savvy: Users have “a home page on which the user can post comments, photos, and links to other websites.” They “may become ‘friends’ with other users.”

Justice Elena Kagan has said that the justices do not even use email.

Here's the question involved in this specific case:

A man convicted of making threats using Facebook has asked the U.S. Supreme Court to resolve a circuit split over what constitutes a “true threat.”

Under the pseudonym “Tone Dougie,” Anthony Douglas Elonis posted violent content on Facebook about his wife and others, often in the form of rap lyrics.

Elonis was convicted under 18 U.S.C. § 875(c), which makes it a federal crime to transmit “any threat to injure the person of another” in interstate commerce. There are comparable state laws.

The U.S. Court of Appeals for the Third Circuit rejected Elonis’ appeal.

In February, the University of Virginia School of Law’s Supreme Court Litigation Clinic filed a petition for certiorari on behalf of Elonis. John Elwood, a Vinson & Elkins partner and clinic instructor, is the counsel of record. Elwood is also a former assistant to the solicitor general and clerk to Justice Anthony Kennedy.

The brief in opposition is due April 21, so the justices could act soon on the petition.

Virginia v. Black, a 2003 Supreme Court opinion about cross burning, held that when a “speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,” that is a true threat (emphasis added). Such threats are not protected speech under the First Amendment.

The petition outlines a split among federal courts of appeals and state high courts over Black’s true threat definition. One interpretation focuses on the speaker, while the other focuses on the speaker and the listener.

Does the phrase “means to communicate” require that the speaker subjectively intend a threat, or is it enough that the message sent comes across objectively as a threat?

Drs. Joseph Castronuovo and Cynthia Cadet sentenced

You remember them -- they were acquitted of all the drug charges in front of Judge Marra a few weeks back.  But they were convicted of money laundering.  Many thought they would get very low sentences because of the acquittals. Not so much.  From the Sun-Sentinel:

It seemed like a victory for two doctors last summer when a jury cleared them of federal charges they had caused the overdose deaths of eight patients they treated at some of South Florida's most notorious pill mills.
But both doctors were found guilty of money laundering and a federal judge meted out stiff punishments for those convictions on Friday, saying there was no way the highly educated professionals did not know they were supplying oxycodone to drug dealers and addicts.
Dr. Joseph Castronuovo, who turns 75 in a few days, was sentenced to 18 months in federal prison. Soon after, Dr. Cynthia Cadet, 43, of Parkland, was sentenced to 6 1/2 years in federal prison.
Both are scheduled to surrender to prison authorities in June. Their lawyers said they intend to appeal and hope to be allowed to remain free on bond while the case is going through the appellate courts.
***
U.S. District Judge Kenneth Marra said he carefully followed the jury's verdict that acquitted Cadet of charges that she contributed to the deaths of six of her patients and Castronuovo of causing the deaths of two of his patients.
But he said it was inconceivable that the two doctors, who had stellar reputations, did not know what was going on at the pain clinics, or pill mills.
Former staff and patients testified there were garbage cans filled with cash in the clinics and "patients" who traveled by car from Appalachia to South Florida to get massive prescriptions of pills were clearly addicts. Practically every patient received almost identical doses of the drugs, prosecutors said, and many of them sold those prescriptions to drug dealers, who traded them in rural communities far from South Florida.
Marra referred to security video footage that showed the waiting room at the clinic where Cadet had worked.
"The chaos, the madness that was going on in that facility," made it obvious to all what was going on there, Marra said. He gave the doctors the benefit of the doubt for the first few months they worked at the clinics but said they definitely knew they were working for a criminal operation but continued to take their salaries, which came from tainted funds, he said.
"It's just impossible not to have known that the people were drug addicts," the judge said.

 In other District news from last week, Scott Rothstein's former partner Russell Adler pleaded guilty last week to a count with a 5-year cap.  He avoids the risk of decades in prison.  I don't know any of the facts of Adler's case, but in general I wonder how many innocent people take deals like this to avoid the huge trial penalties that we see in the criminal system.  Tell me in the comments what you think: What percentage of our inmates are innocent people who took a deal to avoid the risks of trial?

“I hate my job, I hate my job”

That was a court reporter in New York, who has put in jeopardy a number of cases, because instead of transcribing cases, he was writing that over and over again.  From the NY Post:

The bizarre antics by Daniel Kochanski, who has since been fired, wreaked havoc on some 30 Manhattan court cases, sources said, and now officials are scrambling to repair the damage.
One high-level source said his “gibberish” typing may have jeopardized hard-won convictions by giving criminals the chance to claim crucial evidence is missing.
Kochanski’s botched transcripts include the 2010 mortgage-fraud trial of Aaron Hand, who was also convicted of trying to hire a hit man to take out a witness against him.
A source familiar with the case said Kochanski’s transcripts of that trial were a total mess.
“It should have been questions and answers — instead it was gibberish,” the source said.
And in a scene right out of 1980’s “The Shining,” where Jack Nicholson’s off-the-rails writer repeatedly types “All work and no play makes Jack a dull boy,” a source said of Kochanski: “He hit random keys or wrote, ‘I hate my job. I hate my job. I hate my job,’ over and over.”
Claudia Trupp, of the Center for Appellate Litigation, said her office was handling the appeals in Hand’s and nine other cases.
“I never had a situation where a single court reporter was responsible for so much damage,” she said.
Kochanski, 43, was fired in March 2012 for misconduct, said Office of Court Administration spokesman David Bookstaver.
Sources said the Manhattan DA’s Office arrested Kochanski and forced him to try to make sense of his shorthand typing.
ut that effort apparently failed. Judges have been holding “reconstruction hearings” at which everyone involved in a case has to testify about what they remember.
“This situation is terrible for everybody,” Trupp said. “It’s very difficult to come up with a sufficient record based on everybody’s recollection years after the event.”
The troubled stenographer’s dad, Ed Kochanski, said his son “became an alcoholic” about five years ago, costing him his marriage and job.
He said his son was in rehab when they last spoke about three years ago.
Ex-wife Heather Kochanski said, “The pressure of that job pushed him over the edge, leading him to lose everything.”
By phone Wednesday, Kochanski denied screwing up his transcripts.
“I never typed gibberish. I always did my job 100 percent. I was let go because of substance abuse,” he said.

"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