Barry Bonds' conviction in trouble?

That's what all of the court observers are saying after yesterday's en banc argument (watch here*).  Here's one example, by Pamela MacLean:

The government may have struck out with the majority of an 11-judge panel of the 9^th U.S. Circuit Court of Appeals Thursday in former Giants slugger Barry Bonds’ challenge to his obstruction of justice conviction in an investigation of steroids use.
“I find your reading of the statute absolutely alarming,” Judge William Fletcher to the government’s lawyer Mary Jean Chan.  And it got worse from there.
A three judge panel of the appeals court upheld Bonds conviction for obstruction of justice in September 2013 for his evasive testimony to a grand jury investigating illegal distribution of steroids by the Bay Area Laboratory Cooperative (BALCO.)
The three-judge appeals panel held that his answers were “evasive, misleading and capable of influencing the grand jury to minimize” the role of Bonds’ trainer, Greg Anderson, suspected of distributing performance enhancing drugs.
Bonds’ attorney Dennis Riordan opened by saying any decision will garner public attention because of Bonds’ celebrity and controversial status.  But that’s not what’s important, what is important, he said, “This is the first time the government has asked to convict  a defendant for comments to a grand jury that were non-responsive, to convict for obstruction of justice because he wandered off topic.”
While Riordan faced tough questioning, most of the fire was reserved for the government.
Fletcher asked what happens in civil litigation if lawyers respond to interrogatories and they give truthful but evasive answers.  “Are they guilty of a crime?” he asked.
“Yes,” responded Chan.
“Well that is a common practice in civil litigation and you may have criminalized half the bar.  “Half the bar may be in serious trouble,” he said.
Chief Judge Alex Kozinski accused the government of engaging in some evasive conduct in the superseding indictment by not making clear the Bonds statements that were allegedly evasive.
Bonds’ rambling answers to the grand jury  about being a “celebrity child” in response to a question whether he received any steroids from  Anderson could be the basis of a conviction, the panel held.  The panel found that even truthful answers could be the basis of conviction if they were so evasive.
Bonds was sentenced in 2011 to spend 30 days in his Beverly Hills mansion and perform 250 hours of community service for his conviction to use of dodgy answers to federal questions.  Jurors could not agree on a perjury charge against Bonds.
Judge Susan Graber said, “Speaking for myself, I don’t see how there is sufficient evidence [of obstruction] when the question was asked and answered repeatedly.”
Kozinski asked, “Can you cure a misleading answer?”
“Not if the intent was to mislead at the time,” Chan said.
“But wasn’t it cured in this case?” asked JudgeJacqueline Nguyen?

*How cool (and informative) is it that you can watch the argument right after it happens.  When will the 11th do this?


Meantime, last night the Broward Federal Bar Association had its big gala.  Lots of federal judges turned out, including federal judge hopefuls. 

Should Judge Fuller resign?

In addition to Judge Kopf's posts on the subject, there is growing noise that Fuller needs to step down -- this time from members of the Congress.  From the Montgomery Advertiser:

Alabama's two U.S. senators on Wednesday called for U.S. District Judge Mark Fuller to step down from the bench, joining a growing chorus of federal lawmakers seeking the judge's resignation after his arrest on domestic violence charges last month.
Fuller, 55, was arrested early on the morning of Aug. 10 and charged with misdemeanor battery. According to a police report, Fuller's wife, who had lacerations to her mouth and forehead, said the judge threw her to the ground, pulled her hair and kicked her after she confronted him over alleged affair with a law clerk.
The judge, who was appointed to the U.S. Middle District for Alabama in 2002, agreed to enter a pre-trial diversion program earlier this month. The 11th Circuit Court of Appeals has reassigned his caseload and has launched an investigation of Fuller's actions.
"The American people's trust in our judicial system depends on the character and integrity of those who have the distinction and honor of sitting on the bench and I believe Judge Mark Fuller has lost the confidence of his colleagues and the people of the state of Alabama and I urge him to resign immediately," Sen. Richard Shelby, a Republican, said in a phone interview.
U.S. Rep. Terri Sewell, D-Birmingham, called for Fuller's resignation last week, saying he had "violated the public trust." Earlier on Wednesday, Sen. Claire McCaskill, D-Mo., said on her Twitter account that Fuller should resign. U.S. Rep. Martha Roby, R-Montgomery, issued a statement Tuesday saying that "domestic abuse cannot be tolerated, explained away or swept under the rug," and raised the possibility of Fuller's impeachment.
Shelby said he called Fuller to alert him that he was going to publicly call for his resignation. A message left with Barry Ragsdale, an attorney for Fuller, was not immediately returned Wednesday afternoon.

Judge Rosenbaum's first published opinion in the 11th Circuit starts this way

Before WILSON, WILLIAM PRYOR and ROSENBAUM, Circuit Judges. ROSENBAUM, Circuit Judge: 
It was a scene right out of a Hollywood movie.  On August 21, 2010, after more than a month of planning, teams from the Orange County Sheriff’s Office descended on multiple target locations.  They blocked the entrances and exits to the parking lots so no one could leave and no one could enter.  With some team members dressed in ballistic vests and masks, and with guns drawn, the deputies rushed into their target destinations, handcuffed the stunned occupants—and demanded to see their barbers’ licenses.  The Orange County Sheriff’s Office was providing muscle for the Florida Department of Business and Professional Regulation’s administrative inspection of barbershops to discover licensing violations.   We first held nineteen years ago that conducting a run-of-the-mill administrative inspection as though it is a criminal raid, when no indication exists that safety will be threatened by the inspection, violates clearly established Fourth Amendment rights.  See Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995). We reaffirmed that principle in 2007 when we held that other deputies of the very same Orange County Sheriff’s Office who participated in a similar warrantless criminal raid under the guise of executing an administrative inspection were not entitled to qualified immunity.  See Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007).  Today, we repeat that same message once again.  We hope that the third time will be the charm. 

STRONG!  Click here for the whole opinion.

Judge William Pryor (note that the court is now distinguishing the two Pryors) concurred and dissented from the opinion, with this intro:

I agree with the majority opinion that the search of the barbershop exceeded the scope of a reasonable administrative inspection and that the barbers presented evidence that Corporal Keith Vidler, as the supervisor, violated their clearly established constitutional rights. I also agree that Brian Berry presented evidence that Deputy Travis Leslie, who handcuffed Berry and patted him down, violated his clearly established constitutional rights. But Edwyn Durant, Reginald Trammon, and Jermario Anderson presented no evidence that Deputy Travis Leslie violated their constitutional rights. Even though the inspection of the barbershop appeared to be “a scene right out of a Hollywood movie” (Majority Op. at 1), we cannot bend the law to resolve this appeal with a feel-good ending from a boxoffice hit. The law entitles Leslie to qualified immunity against any barber who failed to present evidence that Leslie personally deprived him of a clearly established constitutional right. Durant, Trammon, and Anderson failed to prove an affirmative causal connection between their specific injuries and Leslie’s conduct. For that reason, I respectfully concur in part and dissent in part.  

HT How Appealing.

Have the appellate courts really changed?

The NY Times had this front page story yesterday about President Obama's appointments and how he is "reshaping" the appellate courts.  From the intro:

Democrats have reversed the partisan imbalance on the federal appeals courts that long favored conservatives, a little-noticed shift with far-reaching consequences for the law and President Obama’s legacy.

For the first time in more than a decade, judges appointed by Democratic presidents considerably outnumber judges appointed by Republican presidents. The Democrats’ advantage has only grown since late last year when they stripped Republicans of their ability to filibuster the president’s nominees.

Democratic appointees who hear cases full time now hold a majority of seats on nine of the 13 United States Courts of Appeals. When Mr. Obama took office, only one of those courts had more full-time judges nominated by a Democrat.

The shift, one of the most significant but unheralded accomplishments of the Obama era, is likely to have ramifications for how the courts decide the legality of some of the president’s most controversial actions on health care, immigration and clean air. Since today’s Congress has been a graveyard for legislative accomplishment, these judicial confirmations are likely to be among its most enduring acts.

What do the readers think -- will the "change" in the 11th Circuit make a difference?  The 11th Circuit has been known to be one of the most, if not the most, conservative appellate courts in the country for the past decade or two.  It's too early to tell just yet, but I wonder whether we are going to see huge changes in the 11th Circuit, especially on criminal justice issues.  Let's see what happens with these recent en banc cases that the court agreed to hear.

In other news, there is an interesting fugitive case, in which the last time he was seen was in Florida (from the AP):

One of the last times anyone ever saw Tommy Thompson, he was walking on the pool deck of a Florida mansion wearing nothing but eye glasses, leather shoes, socks and underwear, his brown hair growing wild.*
It was a far cry from the conquering hero who, almost two decades before, docked a ship in Norfolk, Virginia, loaded with what's been described as the greatest lost treasure in American history - thousands of pounds of gold that sat in the ocean for 131 years after the ship carrying it sank during a hurricane.
On that day in 1989, Thompson couldn't contain a grin as hundreds cheered his achievement. But his victory was short-lived.
For the past two years, the U.S. Marshals Service has hunted Thompson as a fugitive - wanted for skipping a court date to explain to investors what happened to the riches. The rise and fall of the intrepid explorer is the stuff of storybooks, a tale receiving renewed attention amid a new expedition begun this year to the sunken ship.
"I think he had calculated it, whatever you want to call it, an escape plan," Marshals agent Brad Fleming said. "I think he's had that for a long time."

*That;s how I looked yesterday when I lost to Rumpole in our fantasy football match-up.

Should Judge Fuller resign?

Another district judge and blogger -- Judge Kopf -- strongly says yes:

I would not waste the effort trying to impeach him. I know something about impeachment having actually tried such a case before the Nebraska Supreme Court where I sought to oust Nebraska’s Attorney General. I doubt that you would ever get the House to act and any such action would probably not succeed as a legal matter even if you did. By the time it got to trial in the Senate, under his plea deal, the conviction would no longer exist. It will have been erased.
Instead, the Chief Judge of the Circuit and the Circuit Judicial Council should strip him of his ability to hear cases for as long as the law allows. See 28 U.S. Code § 354(a)(2)(A)(i) (“ordering that, on a temporary basis for a time certain, no further cases be assigned to the judge whose conduct is the subject of a complaint”). They should also publicly reprimand him and formally request that he resign. Id.§ 354(a)(2)(A)(ii-iii) & § 354(a)(2)(B)(ii). Pay him forever as an inducement to resign–the statute gives them that leverage. I don’t care. That’s chump change. Just neuter him for as long as possible. Approach this process practically and quickly. But be tough.
I don’t care about punishing Judge Fuller. I don’t want to hurt his family. I just want him off the bench for as long as possible. Why? It is very simple. Given what happened in that hotel room, no one should trust his judgment in a federal trial courtroom. That courtroom is a hallowed place where trust in the one person wearing a black robe is absolutely indispensable.*
*By the way, this has nothing to do with the Ray Rice case.

I see that Kopf says that this has nothing to do with the Ray Rice case, but this is bad timing for Fuller of course.

I also wonder whether Judge Kopf thinks any federal judge who enters into a diversion program should resign?  What about marijuana possession?  What about DUI? (Sadly, these things happen with some regularity in Florida state courts...)


What say you?

Ana Alliegro sentenced to time served

She was represented by Richard Klugh.

Marc Caputo has the story here of the sentencing:

The federal investigation into former Congressman David Rivera took another major step Wednesday when his close friend and political ally was sentenced for her role in allegedly helping him break campaign finance laws.

"I took responsibility," Ana Alliegro said in court before she was sentenced to six months of house arrest and two years of probation after serving six months in jail.

"I owe the voters of Florida ... a huge apology," she said.

U.S. District Judge Robert Scola indicated he would have sentenced Alliegro to more time in prison — at least 18 months total and as much as five years — if she had gone "rogue" and not coordinated with Rivera.

Scola suggested Rivera wasn't acting like a man.

"Some might call it sexism [but] the man should come forward and not let the woman do time," Scola said.

Jose Padilla to be re-sentenced this morning (UPDATED WITH SENTENCE)

Judge Cooke still has the case, this time on remand after the 11th Circuit said 17 years wasn't enough. Padilla couldn't have asked for a better lawyer to represent him this morning -- he's got the FPD Michael Caruso. Paula McMahon has the details:

Padilla, 43, was convicted of conspiracy and providing support for a terrorism group. He's already spent more than 12 years in solitary confinement, enduring some of the harshest incarceration conditions ever imposed on a U.S. citizen.

If prosecutors get what they want, Padilla — a broken man, his lawyer says — could be in for even more punishment.

Padilla is scheduled to be re-sentenced Tuesday after an appeals court ruled that the 17 years and four months imprisonment initially imposed by U.S. District Judge Marcia Cooke was not enough. That punishment would have seen him released in May 2022, at age 51.

Prosecutors have agreed to recommend a prison term of no more than 30 years for Padilla, who converted to Islam in a Broward jail in the 1990s, was recruited at a Sunrise mosque and later signed up for al-Qaida training. The prosecution suggests the minimum he could legally get is 20 years and 10 months.

Padilla's lawyer, Federal Public Defender Michael Caruso, did not say exactly how much punishment he should face, instead highlighting the extraordinarily severe treatment Padilla has received at the hands of government operatives. That mistreatment, he said, merits a lesser penalty.

In a break from legal tradition, Caruso repeatedly refers to Padilla by first name in the court filings, an attempt to humanize him.

The defense portrays Padilla as a middle school dropout and fast food restaurant worker who was easily manipulated by sophisticated terrorist operatives.

Most importantly, Caruso wrote, Padilla has been completely broken and subdued by aggressive and "inhumane" tactics, including constant isolation.

"Jose has always been peaceful and compliant with his captors. He was, and remains to the time of this [court] filing, docile and resigned," Caruso wrote.

"Many of the conditions Jose experienced were inhumane and caused him great physical and psychological pain and anguish … All of the deprivations and assaults … were employed in concert in a calculated manner to cause him maximum anguish and to 'break' him," Caruso wrote. "As is evident to anyone who has had any contact with Jose in the ensuing years … [it has] succeeded."

Can you imagine these conditions:

At the brig, the defense said Padilla was held in solitary confinement with no access to a lawyer, his family or the outside world. The intent: "to maximize his disorientation, discomfort, hopelessness, and despair."

According to court records, interrogators assaulted and screamed at him, shackled him for hours in "excruciating stress positions," and threatened to kill him. They also used extreme temperature changes, glaring lights and darkness to disorient him, confined him to a windowless cell and injected him against his will with substances they said were truth serums, the defense wrote.

In America? Yup, and it hasn't stopped:

The harsh treatment of Padilla continued after his sentencing, the defense wrote.

Padilla has been in solitary confinement at the Federal Detention Center in downtown Miami awaiting re-sentencing for the past two years.

But he was kept in the notorious "Supermax" federal prison in Florence, Colo. — which one former warden called "a clean version of hell" — from 2008 to late 2012. He will likely be sent back there after Tuesday's re-sentencing.

Padilla spends 24 hours a day in solitude in a cell the size of a small bathroom, with just five hours a month of exercise in an outdoor cage that Supermax inmates call "the dog run." He's allowed no physical contact visits and just one monthly "social" phone call.

Nevertheless, the prosecutors are asking for 30 years this morning.

UPDATE -- Judge Cooke sentenced Jose Padilla to 21 years, which is what Caruso asked for and 9 years less than the government's request.

Jill Pryor confirmed to 11th circuit 97-0

Congrats to Judge Pryor.

We now have two judges named Carnes and two judges named Pryor.

I had always hoped for two Barketts...