Terrorism cases make bad law

In U.S. v. Said, covered by the Herald, the government is again asking to disguise a witness in an upcoming trial:

Prosecutors have taken the rare step of asking a federal judge to shut out the public during the testimony of two FBI undercover employees at an upcoming Miami trial of a Kenyan man accused of funneling money to al-Qaida splinter groups.The public, including the media, would be allowed to watch their testimony on closed circuit TV in a separate room in the downtown courthouse — but their images would be obscured in some manner during the terrorism trial.Prosecutors also want to allow the witnesses to be lightly disguised, such as wearing a closely cropped beard and black-rimmed glasses. One CIA officer did that during the 2007 Miami trial of al-Qaida recruit Jose Padilla. And they want the witnesses to use undercover pseudonyms to protect their true identities.The goal, sought by the FBI, is to safeguard the bureau’s counterterrorism operatives and investigations.“The defense shall be prohibited from asking any questions seeking personal identifying information from or about the [undercover employees],” the U.S. attorney’s office requested in a motion filed in February.The defense attorney for Mohamed Hussein Said, arrested in his native country after being targeted by an Internet sting operation based in Miami, views the government's demands as a violation of her client’s constitutional right to a fair trial — akin to a star chamber.Miami attorney Silvia Piñera-Vazquez countered in a court response that the “government’s actions in this case are eerily similar” to the prosecution described in Franz Kafka’s The Trial.In the classic 1937 novel, the attorney noted last week, “a bank teller was arrested and prosecuted by a remote, unidentified authority, of an unidentified crime, by unidentified witnesses, and eventually executed.”Piñera-Vazquez argues that expelling the public from the courtroom during the testimony of the “secret” witnesses and prohibiting any questions about their true identity “insulates” them from “any meaningful cross-examination, thus creating a unilateral, secret prosecution.”Last year, at a federal terrorism trial in Tampa, a judge fashioned a compromise after the Tampa Tribune objected to the prosecution’s efforts to bar the public during the testimony of an undercover employee. The arrangement allowed for an open courtroom, but with the employee testifying behind a screen so that no one in the gallery could see the witness.

Mary Barzee Flores nominated to District Bench

This is such great news.  Congrats to Mary Barzee Flores on this nomination!

Here's the White House press release:

Mary Barzee Flores: Nominee for the United States District Court for the Southern District of Florida

Mary Barzee Flores has been a shareholder at Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. since 2011, where her practice consists of complex commercial and employment litigation.  From 2003 to 2011, she served as a circuit judge on the Eleventh Judicial Circuit of Florida in Miami, where she presided over both criminal and civil matters.  Prior to joining the bench, she worked in the Federal Public Defender’s Office of the Southern District of Florida from 1990 to 2003, serving first as an Assistant Federal Public Defender and then as a Supervisory Assistant Federal Public Defender.  She began her career as an associate at Sonnett, Sale and Kuehne, P.A.  She received her J.D. cum laude from the University of Miami Law School in 1988 and her B. Mus. from the University of Miami School of Music in 1985.

One fish, two fish

The Supremes reversed the 11th Circuit in the Sarbanes-Oxley Fish case yesterday.  The N.Y. Times has the coverage:

A narrowly divided Supreme Court on Wednesday sided with a Florida fisherman, throwing out his conviction for tossing evidence — undersize grouper — back into the Gulf of Mexico under a federal law aimed mostly at white-collar crime.

The fisherman, John L. Yates, was convicted of violating the Sarbanes-Oxley Act of 2002, which imposes a maximum sentence of 20 years for the destruction of “any record, document or tangible object” in order to obstruct an investigation.

In two opinions, five justices accepted Mr. Yates’s argument that fish were not the sort of tangible objects with which the law was concerned. Their analysis was based on a close reading of the words and structure of the law.

The case arose from a 2007 search of the Miss Katie, Mr. Yates’s fishing vessel. A Florida field officer, John Jones, boarded it at sea and noticed fish that seemed less than 20 inches long, which was under the minimum legal size of red grouper at the time.

Mr. Jones, an officer with the Florida Fish and Wildlife Conservation Commission and a federal deputy, measured the fish and placed the 72 he deemed too small in a crate. He issued a citation and instructed Mr. Yates to take the crate to port for seizure.

But Mr. Yates had the fish thrown overboard and replaced with larger ones. A second inspection in port aroused suspicions, and a crew member eventually told law enforcement officials what had happened.

Mr. Yates was prosecuted under the financial fraud law, which was enacted after the collapse of Enron, the giant energy company. He was convicted and sentenced to 30 days’ imprisonment.

Justice Ruth Bader Ginsburg, writing for four justices, seemed to concede that the term “tangible objects” might in some settings encompass fish.

“Ordinarily,” she wrote, “a word’s usage accords with its dictionary definition. In law as in life, however, the same words, placed in different contexts, sometimes mean different things.”

In announcing her opinion from the bench, Justice Ginsburg used more colorful language. “Fish one may fry,” she said, “but may one falsify, or make a false entry in the sea dwelling creatures?” Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer and Sonia Sotomayor joined her opinion.

The opinion is U.S. v. Yates.  Even though Kagan dissented, I like this passage:

Still and all, I tend to think, for the reasons the plurality gives, that §1519 is a bad law--too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I'd go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.

 

Summary of the en banc arguments

Aly Palmer from the Daily Report has this nice summary of the en banc arguments yesterday: 

Backed by groups concerned about government intrusion on privacy, a criminal defense attorney on Tuesday asked a federal appeals court to put the brakes on the warrantless acquisition of cellphone company records that can help identify a phone user's location.

Several of the 11 judges hearing the case seemed concerned about what a ruling for the government might mean as technology evolves and gives law enforcement more tools. But, backed by apparent allies on the U.S. Court of Appeals for the Eleventh Circuit, a Justice Department lawyer tried to steer the court from broader implications to the specific issue at hand.

All three arguments heard en banc Tuesday morning were lively, with justices interrupting one another, sometimes trying to answer questions posed by colleagues to the lawyers. The other two cases, also out of Florida, were a criminal matter in which the defense lawyer had been out of the courtroom for several moments of the trial, and a civil rights lawsuit over the raid of a barbershop.

But it was the argument over cell site location data that has drawn amicus briefs from groups such as the American Civil Liberties Union, the Electronic Frontier Foundation, the National Association of Criminal Defense Lawyers and the Reporters Committee for Freedom of the Press. They all backed the defense position that the warrantless gathering of such data is unconstitutional. Cell site location data generally will show which cellphone tower is closest to a customer when he or she makes or receives a call, as well as the direction of the user from the tower.***

Arguing for the defense on Tuesday, Miami lawyer David Markus began by reminding the judges that when the federal statute at issue was passed in 1986, cellphones cost about $3,000 each and were the size of a briefcase. There were only 1,000 cell towers in the United States, he noted.

In contrast, he said, "Everyone has a cellphone now." Markus invoked Chief Justice John Roberts' remark in a recent cellphone privacy decision that a visitor from Mars would think the devices were an appendage to the human body.

One thing hasn't changed, said Markus: "A warrant is required for the long-term monitoring of our citizens."

He added that case law doesn't say that everything held by third parties, such as online photos or data in a drop box, is fair game for government monitoring.

Judge Frank Hull urged Markus to focus on the facts of his case, eliciting his agreement that the content of communications wasn't at issue. But Markus managed to make the point later that although the cell site technology at the time it was used in Davis' case might identify a person's location within only about a mile, the technology now can place someone within a few meters.

Markus also argued that the government had probable cause to look at only seven days of cell site locations for Davis but obtained an order for 67 days of data. "They can get them," Markus said of the cell site data. "They just need a warrant."

Amit Agarwal of the U.S. attorney's office in Miami argued for the government. He noted that many types of records that reveal more about a person than cell site data, such as credit card statements, bank records, medical records and airline manifests, may be obtained by the government through a mere subpoena.

Hull responded that the prosecutor's point showed that the Stored Communications Act raised the bar for government action by requiring a court order for cell site data.

Judge Adalberto Jordan, who frequently presses lawyers to address hypotheticals, asked Agarwal whether the government's position would change as technology evolved. What if, the judge asked, the cell site data could pinpoint a person's location within 6 inches, or if the location information were available if a person merely had his phone turned on but didn't otherwise use it? Technology moves much faster than courts, Jordan added.

Agarwal maintained that in those instances the government likely still could obtain the information without a warrant supported by probable cause, if it otherwise complied with the procedural requirements of the federal statute. But he said the court could write an opinion addressing the issue posed by Davis' case while reserving judgment on the more difficult issues posed by Jordan.

"So you want to punt," Jordan responded, adding that Agarwal's response "brings in the whole specter of Big Brother."

"It is troubling, your honor," Agarwal responded, saying he wasn't asking the judges to permit continuous government tracking without judicial supervision.

Hull suggested she wasn't interested in hypotheticals: "It would be great to do other cases," she chimed in, "but this one is hard enough."

Martin was the lone member of the original panel who heard the case on Tuesday, as full court hearings do not include visiting judges, and a senior judge who sat at the panel has the discretion whether or not to participate. She indicated she was concerned about the implications of a ruling for the government, noting a government witness had testified about where Davis had slept.

She pressed Agarwal on a series of hypotheticals about government monitoring of email and website usage. "This case is a great example of how much you can know about somebody from metadata," said Martin.

While saying he didn't have all the answers, Agarwal said the government didn't quarrel with the notion that people have an expectation of privacy in their communications. But he said the cell site location data involved only the "routing" of communication, not the content.

During Markus' rebuttal time, Chief Judge Edward Carnes prompted the defense lawyer to make the case that the good faith exception employed by the panel should not apply, particularly in light of a Fifth Circuit ruling that the warrantless collection of cell site data was constitutional. Markus said rulings from the Third Circuit and some district court judges had put prosecutors on notice that they were proceeding at their peril that their efforts would be deemed unconstitutional.

After Markus returned to his main point on the constitutionality of the federal statute's application, Judge William H. Pryor suggested that perhaps Congress was best equipped to address issues of changing technology. Markus replied that it might take awhile for Congress to act, noting Congress hadn't done anything on the issue in 30 years.

"That's why we have courts to step in and put a check on the government," said Markus.

One thing that Tuesday's en banc session didn't provide was insight into the court's newest judges from Georgia, Julie Carnes and Jill Pryor. Although Robin Rosenbaum, a Florida judge confirmed to the court earlier this year, was active in defending the pro-plaintiff opinion she authored for a 2-1 panel in the barbershop case, the two new judges from Georgia were silent.

It was a fun and interesting experience.  

Tuesday is en banc day at the 11th Circuit

There are three cases being heard en banc tomorrow in the 11th Circuit:


U.S. v. Alexander Roy (is it structural error when defense counsel is not present for a period of a trial -- panel said yes)


U.S. v. Quartavious Davis  (is a warrant required for cell site location data -- panel said yes)


Berry v. Leslie (did the SWAT team violate the 4th amendment for storming a barbershop for licensing violations -- panel said yes)


Should be interesting to see how the "new" 11th Circuit will address these three important cases.


Full Disclosure -- I am arguing for Mr. Davis in the second case. 

Should the word limit in appellate briefs be reduced?

There's a proposal to reduce the word limit from 14,000 to 12,500, and a lot of people aren't happy about it.

Here is the intro from Howard Bashman's (from How Appealing) comment against the rule:

The observation “if it ain’t broke, don’t fix it” properly appears to
inform this Committee’s approach to amending the Federal Rules of
Appellate Procedure. As the Committee’s draft minutes from its April 2014
meeting reflect, “Mr. Letter suggested [that] traditionally the Rules
Committees do not amend a rule unless there is a very good reason to do
so.”
I am submitting this public comment because in my view “a very
good reason” does not exist for reducing the FRAP principal brief word
count limit from 14,000 words to 12,500 words, nor should any of the
corresponding briefing word limits be reduced by that ratio.
As members of the Committee are aware, in addition to my own
appellate practice, I devote a substantial amount of my time to drawing
public attention to the very best examples of appellate advocacy. In my
own writings, both on my widely read appellate blog and in my monthly
columns published in The Legal Intelligencer, I have repeatedly urged
attorneys who brief and argue appeals to strive for concision and to pursue
the fewest and strongest issues possible.

Judge Pryor writes the majority opinion and the concurrence...

...in United States v. Kopp. His concurrence starts: "Not surprisingly, I concur in full..."

Anthony Bosch to be sentenced today (UPDATED WITH SENTENCE)

UPDATE -- BOSCH RECEIVED 4 YEARS AND REMANDED. NO SELF SURRENDER.

As soon as I hear something, I will post Judge Gayles' sentence of Bosch.  Here's the Herald's preview article:

Anthony Bosch, the fake doctor who sold illegal muscle-building steroids to Major League Baseball stars and high school athletes, is hoping for a slight break on his prison sentence Tuesday when he faces a Miami federal judge.
How much? Six months.
If U.S. District Judge Darrin Gayles goes for it, the convicted 51-year-old Coral Gables steroid dealer could receive roughly 3 1/2 years in prison. Bosch, who has been free on bond while receiving treatment for his cocaine addiction, pleaded guilty to a single distribution-conspiracy charge in October.
Under federal sentencing guidelines, he faces between 41 months and 51 months in prison. At this point, prosecutors have agreed to recommend the lower end. Bosch’s defense lawyer is seeking even less.