11th Circuit rules for Cheney Mason

This is a pretty interesting case:

This case involves a law student’s efforts to form a contract by accepting a “million-dollar challenge” that a lawyer extended on national television while representing a client accused of murder. Since we find that the challenge did not give rise to an enforceable unilateral contract, we hold that the district court properly entered summary judgment for the lawyer and his law firm, Defendants-Appellees James Cheney Mason (Mason) and J. Cheney Mason, P.A., with regard to the breach-of-contract claim brought by the law student, Plaintiff-Appellant Dustin S. Kolodziej.
...
The district court granted summary judgment on two grounds: first, Kolodziej was unaware of the unedited Mason interview at the time he attempted to perform the challenge, and thus he could not accept an offer he did not know existed; second, the challenge in the unedited interview was unambiguously directed to the prosecution only, and thus Kolodziej could not accept an offer not open to him. The district court declined to address the arguments that Mason’s challenge was not a serious offer and that, in any event, Kolodziej did not adequately perform the challenge. This appeal ensued.

The conclusion:

Just as people are free to contract, they are also free from contract, and we find it neither prudent nor permissible to impose contractual liability for offhand remarks or grandstanding. Nor would it be advisable to scrutinize a defense attorney’s hyperbolic commentary for a hidden contractual agenda, particularly when that commentary concerns the substantial protections in place for criminal defendants. Having considered the content of Mason’s statements, the context in which they were made, and the conduct of the parties, we do not find it reasonable to conclude that Mason assented to enter into a contract with anyone for one million dollars. We affirm the district court’s judgment in favor of Mason and J. Cheney Mason, P.A.

Lots of SDFLA news

Acquittals, spies being returned, and all sorts of other fun. One story that was under the radar yesterday was President Obama's stingy list of pardons (only 12!) and commutations. There was one SDFLA case:

-- Bernard Bryan Bulcourf – McIntosh, FL Offense: Counterfeiting Federal Reserve notes (Southern District of Florida) Sentence: 90 days’ confinement in a community treatment center, followed by three years’ probation (Nov. 18, 1988)

Re the spies, our own Richard Klugh was quoted in the N.Y. Times:

Richard C. Klugh, a Miami lawyer who represented the five spies, said that two of his clients, Mr. Hernandez and Mr. Guerrero, were suddenly transferred last week.

“Gerardo was moved from an extremely violent, terrible prison to Butner, N.C., so there was some hope that was something going on,” Mr. Klugh said. “Gerardo is the one for whom this is the most emotional. He and his wife were essentially newlyweds and have been separated for 16 years, and it’s extremely emotional.”

Re the ICE Agent from the Herald:

Juan F. Martinez, a U.S. agent accused of using his badge to extort millions of dollars in Colombia’s underworld of drug trafficking, hugged his lawyers and burst into tears Wednesday when a jury found him not guilty of a dozen criminal charges in Miami federal court.

His wife, Gabriela, sitting a couple of rows behind him, closed her eyes and then cried as the acquittal verdicts were read in court.

Martinez, who was indicted a year ago and suspended as an Immigration and Customs Enforcement agent in 2011, broke down emotionally because of the strain of being on trial, his lawyers said outside the courthouse.

“He stood up to the federal government and made them prove their case,” said defense attorney Silvia Piñera-Vazquez, who rejoiced over Martinez’s acquittals with co-counsel, Jane and Martin Raskin. “They never proved he received any money.”

Jurors, who began deliberations Tuesday morning, were reluctant to talk after their verdicts outside the courthouse, but one suggested there was a “lack of evidence.” Another said, “We applied the law,” without elaboration.

Breaking -- ICE agent found Not Guilty across the board

Congrats to Silvia Piñera-Vazquez and the Raskins for their across the board Not Guilty verdict for Immigration and Customs Enforcement Agent Juan F. Martinez before Judge Altonaga.

"I’m going to treat her like somebody who is what she is — a common criminal.

That was Judge Scola after "North Miami Mayor Lucie Tondreau was found guilty by a federal jury Tuesday of using her 'celebrity' as a Haitian-American community leader to lure 'straw buyers' into an $11 million mortgage fraud scheme during the past real estate boom." (Via the Miami Herald).  More:

The 12-person jury, which deliberated for only two hours, convicted Tondreau of conspiracy and wire-fraud charges after a two-week trial. Tondreau, who was elected as North Miami’s first Haitian-American female mayor in 2013, now faces up to 30 years in prison at her sentencing March 20.
U.S. District Judge Robert Scola refused to grant a request by her defense attorney, Ben Kuehne, to remain free on bond while she awaited sentencing. Scola said she used her “celebrity” and “hoodwinked” buyers into allowing their names to be placed on bogus loan applications in exchange for kickbacks in a “massive” fraud against various banks.
The judge, noting the fraud was committed before Tondreau was elected as mayor, said she was no different than any other convicted defendant and ordered her to surrender to U.S. Marshals in the courtroom while about 50 supporters watched in silence.
“I’m going to treat her like somebody who is what she is — a common criminal,” Scola said.
Kuehne, who represented Tondreau along with attorney Michael Davis, said the jury’s verdict “is as disappointing as it is unexpected.”
Tondreau, who was suspended from office after her arrest in May, stood trial in Miami federal court since early December on charges of conspiring to commit wire fraud with her ex-business partner and fiancé, Karl Oreste, and two other defendants, who are fugitives. She was accused of plotting with Oreste to bamboozle banks into loaning them a total of $11million between 2005 and 2008.
The prosecution decided not to call the trial’s potential star witness, Oreste, 57, who pleaded guilty in July and was expected to detail the 20 crooked real estate loan deals that he and Tondreau were accused of putting together.
Prosecutors Lois Foster-Steers and Gera Peoples did not say why. But they may have had concerns about Oreste’s potential vulnerability on cross-examination. Tondreau’s defense team had planned to portray him as the consummate con man who duped her into playing an unwitting supporting role to fleece the banks.

Calling all Judge Davis clerks

Judge Davis' family is going to be having a gathering to remember Judge and Mrs. Davis on January 3 from 2-6pm.  If you are an old Judge Davis clerk or are a close friend interested in attending, please email Judge Davis' son, Ned at ned.davis@rochester.rr.com

Ned asked me to post this to get the word out as there is no old roster of Judge Davis clerks. 

"I don't know what article of the Constitution that would contravene."

That was Justice Scalia discussing torture in order to find out where the ticking nuclear bomb was. From the AP:

"Listen, I think it's very facile for people to say, `Oh, torture is terrible.' You posit the situation where a person that you know for sure knows the location of a nuclear bomb that has been planted in Los Angeles and will kill millions of people. You think it's an easy question? You think it's clear that you cannot use extreme measures to get that information out of that person?" Scalia said.

Scalia also said that while there are U.S. laws against torture, nothing in the Constitution appears to prohibit harsh treatment of suspected terrorists. "I don't know what article of the Constitution that would contravene," he said. Scalia spent a college semester in Switzerland at the University of Fribourg.

The 30-minute interview touched on a range of topics, including the financing of political campaigns, the death penalty and gay marriage, about which Scalia said he should not comment because it is likely the court soon will have the issue before it. Asked about money and U.S. elections, Scalia scoffed that "women may pay more each year to buy cosmetics" than is spent on local, state and federal elections combined.

His comments about interrogation techniques echoed remarks he also has made to foreign audiences. In 2008, he used the example of the hidden bomb. "It seems to me you have to say, as unlikely as that is, it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn't do that," he said.

A year earlier, Canada's Globe and Mail newspaper reported that Scalia invoked fictional TV counterterrorism agent Jack Bauer using torture to get terrorism suspects to reveal information that could help authorities foil an imminent attack.

"Is any jury going to convict Jack Bauer? I don't think so," he said. "So the question is really whether we believe in these absolutes. And ought we believe in these absolutes."

In January, Scalia seemed less concerned about the safety of residents of Los Angeles when the court heard arguments about whether anonymous tips could justify a traffic stop. Urging the lawyer for two suspects appealing their conviction to stand firm, Scalia suggested that not even information that a carload of terrorists heading to Los Angeles with an atomic bomb would be enough to justify police stopping the car, if the tip came from an anonymous source.

"I want you to say, `Let the car go. Bye-bye, LA,'" Scalia said.

Meantime, friends of the Blog, Billy Corben and Alfred Spellman have come out with their new movie -- The U Part 2.  Gotta love it:

Zacarias Moussaoui asks Judge King to send him to Guantanamo

From Curt Anderson:

An imprisoned man known as the "20th hijacker" in the 9/11 terror attacks asked a South Florida federal judge Wednesday for a transfer to the military prison at Guantanamo Bay, Cuba, where several alleged senior terror plotters are awaiting trial.
The request is part of two rambling, handwritten letters filed in Miami federal court by Zacarias Moussaoui. He is serving a life prison sentence after pleading guilty in 2005 to conspiring with the 19 hijackers in the Sept. 11, 2001, attacks.
Moussaoui signed one letter as the "so-call 20th hijacker" and a "Slave to Allah."
Moussaoui, 46, has been writing letters to courts around the country from his maximum-security prison cell in Florence, Colorado, claiming inside knowledge about al-Qaida and the Sept. 11 plot, and seeking a chance to testify in lawsuits filed by terrorism victims.
The letters filed in Miami repeat some of those claims. Moussaoui wants the transfer to Guantanamo, he says, because he has been assaulted and harassed by other inmates and guards at the Florence "Supermax" prison — including Ramzi Yousef, mastermind of the 1993 World Trade Center bombing.
He even contends there was a prison plot to kill him and "claim that I committed suicide," but that failed.
"So no suicide, Victory by Allah," Moussaoui wrote.
U.S. Bureau of Prisons spokesman Chris Burke said the agency could not comment on the allegations.
Five detainees at Guantanamo are awaiting trial before a military commission in the 9/11 attacks, including alleged mastermind Khalid Sheikh Mohammed, as well as the alleged orchestrator of the 2000 attack on the USS Cole, Abd al Rahim al-Nashiri.
Moussaoui also makes other demands, asking Senior U.S. District Judge James Lawrence King to order prison doctors to perform a long-delayed hernia operation and that he appoint civil rights attorneys Benjamin Crump and Anthony Gray to represent him. Crump and Gray recently represented the family of Michael Brown in the Ferguson police shooting.
"I am currently on a hunger strike in order to have a lawyer since 11/09/14," Moussaoui wrote.

RIP Dollree Mapp

From the NY Times:

On May 23, 1957, three police officers arrived at a house in Cleveland and demanded to enter. They wanted to question a man about a recent bombing and believed he was hiding inside. A woman who lived there, Dollree Mapp, refused to admit them.

It was a small gesture of defiance that led to a landmark United States Supreme Court ruling on the limits of police power.

Ms. Mapp told the officers that she wanted to see a search warrant. They did not produce one. A few hours later, more officers arrived and forced their way into the house. Ms. Mapp called her lawyer and again asked to see a warrant. When one officer held up a piece of paper that he said was a warrant, Ms. Mapp snatched it and stuffed it into her blouse. The officer reached inside her clothing and snatched it back.

The officers handcuffed Ms. Mapp — they called her “belligerent” — and then searched her bedroom, where they paged through a photo album and personal papers. They also searched her young daughter’s room, the kitchen, a dining area and the basement.

They did not find the man they were looking for, but they did find what they said were sexually explicit materials — books and drawings that Ms. Mapp said had belonged to a previous boarder — and they arrested Ms. Mapp.

Four years later, after Ms. Mapp had been sentenced to prison on obscenity charges and after her conviction had been upheld on appeal, the Supreme Court took up the case, ostensibly because of questions it raised about obscenity and the First Amendment.

But when the justices ruled, in June 1961, their decision dwelled, with far more significant consequences, on the role of the Fourth Amendment, which protects against unlawful search and seizure. Prosecutors had never produced the supposed warrant brandished by the Cleveland police or proved that it had existed.

The court ruled, 6 to 3, that Ms. Mapp’s conviction should be thrown out, and that all state courts must suppress evidence gathered through police misconduct in certain kinds of cases.