Scalia says no to sentencing on acquitted conduct

Unfortunately, he only got Justices Thomas and Ginsburg to agree with him, so the Court denied cert in Jones v. U.S.  From Scalia's dissent on the cert denial:

This has gone on long enough. The present petition
presents the nonhypothetical case the Court claimed to
have been waiting for. And it is a particularly appealing
case, because not only did no jury convict these defendants
of the offense the sentencing judge thought them guilty of,
but a jury acquitted them of that offense. Petitioners were
convicted of distributing drugs, but acquitted of conspiring
to distribute drugs. The sentencing judge found that
petitioners had engaged in the conspiracy of which the
jury acquitted them. The Guidelines, petitioners claim,
recommend sentences of between 27 and 71 months for
their distribution convictions. But in light of the conspiracy
finding, the court calculated much higher Guidelines
ranges, and sentenced Jones, Thurston, and Ball to 180,
194, and 225 months’ imprisonment.
On petitioners’ appeal, the D. C. Circuit held that even if
their sentences would have been substantively unreasonable
but for judge-found facts, their Sixth Amendment
rights were not violated. 744 F. 3d 1362, 1369 (2014). We
should grant certiorari to put an end to the unbroken
string of cases disregarding the Sixth Amendment—or to
eliminate the Sixth Amendment difficulty by acknowledging
that all sentences below the statutory maximum are
substantively reasonable.

It's terrible to me that in a free society an individual can be sentenced to conduct for which he was found not guilty.  How is this acceptable?

zzzzzzzzzzzzzzzzzzzz

Well, the federal courthouse is closed today.  It's one of those weird days, though, when schools are still open.  I wonder what most law firms are doing today?  Please post in the comments whether your firm is open or closed.

If you are working, and are looking for some interesting reading, check out this article in the Washington Post about Supreme Court reasoning:

Twice this past week readers wondered why I had forgotten a key element of one of the most basic aspects of journalism: the old who-what-where-when-and-how.
It was clear what the Supreme Court had done, they said, but where’s the why? There’s a pretty good defense for that, though it is frustrating for all: The justices never gave their reasons.
In an in­cred­ibly consequential first week of the term, the court allowed same-sex marriages to proliferate around the nation, temporarily put on hold and then gave the green light to rulings ending the bans in Idaho and Nevada, and refereed state laws governing voting in next month’s midterm elections.
All without explanation.

 Judge Kopf believes Judge Arnold would have been excellent on the Supreme Court.  President Clinton was close to nominating him instead of Breyer.  As I've said before Justice Breyer is one of the most conservative Justices on the Supreme Court as it relates to criminal justice issues, so things would have been quite different had Arnold made it instead.

With all this Supreme Court talk, you should check in with ScotusBlog tomorrow for new Court orders and cert grants.

Tick Tock

The statute is about to run on the Scott Rothstein case.  And a big indictment came out today against Former regional vice president of TD Bank Frank Spinosa, who is represented by Sam Rabin. Judge Bloom got the case. The new judges have all the fun...

From the Sun-Sentinel article:

Spinosa, 53, was released on $250,000 bond after a brief appearance in federal court. He was placed on house arrest with electronic monitoring and is scheduled for arraignment on Oct. 24, court records show.

His lawyer, Samuel Rabin, said Spinosa will plead not guilty and plans to go to trial on the allegations.

"He's innocent and he wants his day in court," Rabin said.

Spinosa has known for years that he was under criminal investigation and had offered to surrender if the government filed charges against him, Rabin said. He called the arrest at Spinosa's home "totally unnecessary" and "one of those typical Rothstein case flourishes."

The grand jury indictment, unsealed Friday morning, charges Spinosa with one count of wire fraud conspiracy and five counts of wire fraud. Each charge carries a maximum punishment of 20 years in federal prison and hefty fines.

Spinosa is accused of facilitating Rothstein's fraud by giving investors a "false sense of security" and inducing them to invest hundreds of millions of dollars with Rothstein by lying about how much money was in Rothstein's bank accounts and who could withdraw it.

Spinosa signed off on fraudulent so-called "lock letters" that led Rothstein's investors to believe that money in some of Rothstein's bank accounts was being held only for them, according to the charges.

Prosecutors also say Spinosa lied and used a script containing "talking points" prepared by Rothstein when he met with some investors and participated in conference calls with others to help reassure them their investments were safe.

Rothstein's fraud involved fooling investors into thinking they were making huge profits by investing in confidential legal settlements. He told investors they were making a lot of money by fronting smaller lump sums to plaintiffs who had won settlements or judgments and wanted quick access to cash. The investors would supposedly reap huge profits by later collecting the full amount of the settlements.

Rothstein later admitted it was all a lie and he used the money to pay for what he liked to call his "rock star lifestyle." Cash from new investors was used to pay out "profits" to older investors and keep the fraud alive.

"While defendant Spinosa and Rothstein did not discuss the fraudulent nature of the confidential settlements, they did agree to the preparation of the false and fraudulent 'lock letters' and the making of false statements to investors," according to the indictment.

Change (UPDATED)

The local rules committee has proposed new rules here. Chief Judge Moore ordered:

IT IS FURTHER ORDERED that the Court will conduct an en banc public hearing on the proposed rule amendments on November 14, 2014, at 2:00 p.m. at the Paul G. Rogers Federal Building and United States Courthouse, 701 Clematis Street, West Palm Beach, Florida 33401. Those who desire to appear and offer oral comments on the proposed rule amendments at this hearing shall file written notice to that effect with the Clerk of the Court no later than five days prior to the hearing. Those who desire to offer only written comments on the proposed rule amendments should do so in accordance with the mechanism provided on the Court’s website in connection the publication of the proposed rule amendments.

En banc in West Palm on a Friday afternoon... I'm sure the Miami judges are thrilled! (UPDATE -- A commenter informs me that Judge Rosenberg's investiture is that day in West Palm Beach, so the judges will be there anyway.) But hey we are a courteous bunch. From the intro to the proposed rules:

Members of the bar and the Court are proud of the long tradition of courteous practice in the Southern District of Florida. Indeed, it is a fundamental tenet of this Court that attorneys in this District be governed at all times by a spirit of cooperation, professionalism, and civility. For example, and without limiting the foregoing, it remains the Court's expectation that counsel will seek to accommodate their fellow practitioners, including in matters of scheduling, whenever reasonably possible and that counsel will work to eliminate disputes by reasonable agreement to the fullest extent permitted by the bounds of zealous representation and ethical practice.

I wonder if someone is going to propose that the Rule say: "that counsel AND THE COURT..."

Meantime, there is a new holiday schedule.  

Peace and Love!

Lawyers heart adverbs

The WSJ has a whole article about the love affair:

No part of speech has had to put up with so much adversity as the adverb. The grammatical equivalent of cheap cologne or trans fat, the adverb is supposed to be used sparingly, if at all, to modify verbs, adjectives or other adverbs. As Stephen King succinctly put it: “The adverb is not your friend.”
Not everybody, however, looks askance at the part of speech. Indeed, there is at least one place where the adverb not only flourishes but wields power—the American legal system.
Adverbs in recent years have taken on an increasingly important—and often contentious—role in courthouses. Their influence has spread with the help of lawmakers churning out new laws packed with them.
A U.S. appellate court, for example, this past summer wrestled with the question of whether a defendant could have “knowingly” aimed a laser pointer at a helicopter if he mistakenly assumed the beam wouldn’t reach the aircraft.
Words such as “knowingly,” “intentionally” and “recklessly,” which deal with criminal intent, pop up most frequently, but plenty of other adverbs have enjoyed the spotlight. When the U.S. Supreme Court in June recognized religious protections of closely held companies, justices pondered the significance of an adverb in a 1993 federal statute that guards against laws that “substantially burden” the exercise of religion.
“Indiscriminately” was pivotal in a federal appeals court ruling in January striking down the “net neutrality” rules adopted by the Federal Communications Commission. Preventing broadband providers from charging sites like Netflix more money for faster speeds would effectively treat them like common carriers, which are required by law to “serve the public indiscriminately,” the court said.
In a tax case from the summer, lawyers for the Internal Revenue Service defended their decision to freeze the bank accounts of a former Pennsylvania state senator, only to see their arguments founder on the word “quickly.” Tax law allows the government to immediately freeze the assets of a suspected tax cheat who “appears to be designing quickly” to hide his wealth. But the judge said there was nothing quick about the defendant’s cash and real-estate transactions, which spanned several years.
“Contrary to the ordinary view that adverbs are superfluous, law generally, and criminal law especially, emerges through its adverbs,” James M. Donovan, a legal anthropology professor at the University of Kentucky College of Law, recently wrote in a paper on the subject.
Mr. Donovan, who runs the school’s law library, said that he was immediately drawn to the subject after encountering Mr. King’s “On Writing: A Memoir of the Craft” in a faculty reading group. “His blanket dismissal of the importance of adverbs got me uncomfortable,” said Mr. Donovan, “but it took a while to articulate why.”
The number of adverb-dense disputes over how to properly construe a criminal statute has surged since the 1980s, according to a case-law search conducted by Brooklyn Law School professor Lawrence Solan, author of “The Language of Judges.” On the federal level, he said, the criminalization of white-collar and regulatory offenses in the past 30 years has been especially good for adverbs. So has a trend in courts toward painstakingly precise textual analysis, the professor said.
In point of fact, an adverb once got a hearing before the nation’s most eminent jurists.
A U.S. Supreme Court case in 2009, Flores-Figueroa v. U.S., ultimately turned on the modifying reach of the word “knowingly,” tucked into a federal statute defining the crime of aggravated identity theft.
The petitioner was a Mexican citizen arrested for giving his employer counterfeit Social Security and alien registration cards that displayed his name but other people’s identification numbers. He convincingly argued that the presence of “knowingly” in the law required the government to prove that he knew the IDs were fake.
The justices unanimously agreed with him. “As a matter of ordinary English grammar, ’knowingly’ is naturally read as applying to all the subsequently listed elements of the crime,” Justice Stephen Breyer wrote.
Bryan Garner, editor of Black’s Law Dictionary, is regarded by scholars as the dean of legal prose. He says legislators and adverbs need one another.
Statutes “have to be hyper-literal and generic,” he said. “A fiction writer might say he barreled down the street. There is no way a statute can say, ‘If you barrel your car.’ ”
Says Mr. Garner: “No legislative drafter ever says: Did I pull my readers in? That’s something Stephen King has to ask.”

Congratulations to Judge Federico Moreno

He was just appointed by the Chief Justice of the Supreme Court to serve as a member of the Executive Committee of the Judicial Conference. This is a big honor for our former chief.

Anthony Bosch tests positive for cocaine...

...and Judge Darrin Gayles revoked his bond. From Curt Anderson:

The former owner of the clinic at the center of Major League Baseball's recent performance-enhancing drug scandal had his bail revoked Monday because of recent positive tests for cocaine use.

U.S. District Judge Darrin P. Gayles ordered Anthony Bosch jailed immediately. Bosch tested positive twice in August for cocaine use, after he was released on $100,000 bail under conditions including no use of illegal drugs and random urine testing. Gayles also found Bosch wasn't regularly attending voluntary drug treatment.

"I simply have no confidence in his ability to appear as required," Gayles said at a hearing.

Prosecutors say Bosch's Coral Gables clinic, Biogenesis of America, was involved in a conspiracy to provide performance-enhancing drugs to MLB players and even high school athletes. Fourteen MLB players were suspended following the probe, including a season-long suspension this year for New York Yankees star Alex Rodriguez.

Bosch, 51, is scheduled to plead guilty next week and has been cooperating in the investigation against others who were charged, including possibly testifying in those cases. Assistant U.S. Attorney Michael "Pat" Sullivan, however, said authorities were well aware of Bosch's chronic drug problem and fondness for South Beach nightclubs.

"We knew from our investigation that Mr. Bosch was one who liked to party," Sullivan said.

Bosch attorney Guy Lewis, himself a former Miami U.S. attorney, pointed out that Bosch had not tested positive for cocaine since Aug. 18 and was doing his best to attend a drug treatment program. Lewis denied that Bosch has been frequenting nightclubs and said that he is living up to his cooperation agreement with prosecutors.

"I can tell you he's not out on South Beach," Lewis said. "The last thing he's doing is out being notorious in South Florida. He has a drug problem, though. He is addressing it."

Although Sullivan did not ask for Bosch's bail to be revoked, Gayles refused to simply place Bosch under a curfew or order more frequent urine testing. Gayles also was unmoved by Lewis' comment that Bosch was under a great deal of pressure and was the subject of death threats.

"The pressure on the defendant, I don't find a mitigating factor," the judge said. "I don't find that he's a good candidate to remain out on bond."

Look who is all new and fancy on First Monday in October

Yup, the Supreme Court of the United States is back in business and it has rolled out a new website.

The October 2014 Term starts out with an interesting argument this morning in Heien v. North Carolina, in which the Justices will consider whether a police officer’s mistake of law provides the individualized suspicion that the Fourth Amendment requires to stop a car. Here's the preview from ScotusBlog:

The Supreme Court will open the October 2014 Term on Monday morning by hearing arguments that may bring back bad memories of convoluted law school discussions: may an officer’s reasonable “mistake of law” provide reasonable suspicion to stop a car under the Fourth Amendment? The Court has previously ruled that a reasonable mistake of fact will not violate the Fourth Amendment. Although Jeff Fisher, an experienced Supreme Court litigator, has presented some formidable arguments to rule for Heien, he may face an uphill battle persuading a majority of Justices that a reasonable, but mistaken, interpretation of state law should receive different constitutional treatment.