The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
HURST, TIMOTHY L. V. FLORIDA: The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following question: Whether Florida's death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of this Court's decision in Ring v. Arizona, 536 U.S. 584 (2002).
U.S. Sen. Robert Menendez’s longtime friendship with a wealthy Palm Beach County eye doctor may soon come back to haunt the powerful Democrat from New Jersey.
The Department of Justice plans to file corruption charges against Menendez in the coming weeks, capping a two-year probe of his relationship with ophthalmologist Salomon Melgen, CNN and several major news outlets reported on Friday. And Melgen — a generous donor of trips and campaign money to Menendez — is under a separate investigation himself by a federal grand jury in West Palm Beach on allegations that his practice over-billed Medicare by millions of dollars.
Prosecutors and the FBI have been focusing on Menendez’s efforts on behalf of his political benefactor, including personally trying to resolve the physician’s high-stakes billing dispute with the taxpayer-funded Medicare program. During the period the senator sought to help the doctor, Menendez went on several trips with Melgen to the Dominican Republic on the physician’s private plane and stayed at his resort-area home in 2010 — all without reporting the gifts.
As the controversy about their relationship escalated two years ago, the senator quietly wrote a personal check to reimburse Melgen for the unreported trips, but that didn’t end several on-going federal probes.
On Friday evening, Menendez insisted during a news conference in his home state that he has done nothing wrong.
“Let me be very clear, I have always conducted myself appropriately and in accordance with the law,” he said. “Every action that I and my office have taken for the last 23 years that I have been privileged to be in the United States Congress has been based on pursuing the best policies for the people of New Jersey and this entire country.”
A businessman who helped Los Angeles Dodgers star Yasiel Puig get out of Cuba to sign a rich American baseball contract was sentenced Friday to a month in prison and five months' house arrest for violating U.S. immigration laws.
U.S. District Judge Robert Scola on Friday gave Gilberto Suarez, 41, less than the one-year maximum partly because his main role in the 2012 smuggling venture was having Puig driven in a taxi from Mexico City to the Texas border. Other conspirators, including boat captains and members of Mexico's violent Zetas drug gang, were involved in other stages of the trip.
Scola also said he was showing Suarez some leniency because Puig and others in the smuggling trip were threatened by the Zetas and possibly by corrupt Mexican police.
"I think the safety of the player and the other aliens was also paramount in his mind," the judge said.
Defense attorney Bijan Parwaresch said Suarez initially sought only to assist Puig in signing a Major League Baseball contract. Cuban players who defect often establish residency in a third country, such as Mexico, so they can sign lucrative free agent deals rather than smaller contracts if they come directly to the U.S. and are subjected to baseball's draft.
Where Suarez went wrong, he added, was deciding to take Puig to the U.S. border without immigration papers. Under the "wet foot, dry foot" policy, Cubans who reach U.S. territory are usually permitted to stay, even if their arrival is violates the law.
"It didn't start out with a criminal intent," Parwaresch said at a hearing. "It ended up as a criminal action."
Prominent Miami-Dade County baseball coach Lazaro “Lazer” Collazo plans to plead guilty to newly filed misdemeanor charges of possessing unlawful steroids, according to his defense attorney.
Collazo was among eight defendants who were originally charged in federal court with conspiring to distribute steroids through a Coral Gables anti-aging clinic, which was at the center of a Major League Baseball scandal.
Collazo, 51, was accused of distributing them to high school athletes, while the other seven were charged with supplying them to MLB players — including New York Yankees slugger Alex Rodriguez, a onetime Miami-Dade high school standout.
Collazo’s defense attorney, Frank Quintero, confirmed Friday to the Miami Herald that his client has agreed to the terms of a plea deal with the U.S. attorney’s office that would recommend two years of probation. His change of plea hearing is scheduled for March 16.
A little wrinkle in the long-running quest of the renowned SCOTUSblog to secure credentials for its coverage of the Supreme Court: Today SCOTUSblog correspondent Amy Howe sat in the court’s press section by virtue of a day pass that the court has begun issuing to the blog. It’s the second such pass that SCOTUSblog has used, according to Publisher Tom Goldstein — with the first instance being Monday’s oral arguments on Arizona’s approach to redistricting.
“They have really tried to accommodate us,” says SCOTUSblog’s Goldstein. “They’re not trying to get in our way.”
SCOTUSblog has expended a grueling effort for credentials in the Supreme Court chamber, a process complicated by Goldstein himself: He’s both the publisher of the blog as well as a frequent Supreme Court practitioner as a partner in Goldstein & Russell, P.C. Just last month, the high court issued a new policy on press credentials that officially stiff-arms SCOTUSblog on getting its own credential but should make room for its veteran correspondent, Lyle Denniston, to continue covering proceedings with what’s known as a “hard pass.”
Denniston, a 57-year veteran of high court reporting, has long held his hard pass pursuant to his association with Boston NPR station WBUR. He’s now applying for a new pass under the auspices of his independent blog, “Lyle Denniston Law News.”
Here’s how the workaround operates: Denniston’s posts appear first on his eponymous blog, unedited. Then SCOTUSblog staff picks them up, edits them and posts a version on SCOTUSblog. Not all of the content on Denniston’s blog makes this migration. The arrangement allows the court to ensure that Denniston is acting as an independent journalist for his own outlet and not as an agent of Goldstein’s firm through SCOTUSblog, says Goldstein.
The day passes also help. Today, SCOTUSblog correspondent Howe used it to take in the entire oral argument in King v. Burwell, the much-watched case that threatens federal subsidies in 30-odd states that declined to set up their own health-care exchanges. Howe teamed up with a well-coordinated SCOTUSblog team, as Denniston also reported from the press section and two other SCOTUSbloggers took in the proceedings via piped-in audio in the Supreme Court’s lawyers’ lounge.
Oriel Jean — the former security chief of ex-President Jean-Bertrand Aristide and whose testimony in U.S. courts a decade ago helped take down key figures in Haiti’s drug trafficking underworld — was shot to death Monday in Port-au-Prince.
Haiti National Police Spokesman Gary Desrosiers confirmed Jean’s murder between the Delmas 29 and 30 neighborhoods not far from the international airport. Desrosiers said he was shot twice by three men on a motorcycle. News of Jean’s death and photos of his bullet-riddled body lying face down in a pool of blood on the street quickly spread through social media.
A friend of Jean’s who declined to be named for fear of reprisals told the Miami Herald that Jean was riding with a Dominican co-worker when the vehicle was struck from behind by a motorcycle. Jean was gunned down after he stepped out of the vehicle to check the damage.
“Nothing happened to the Dominican guy. [Jean] was the main target,” the friend said.
In 2005, Jean was sentenced to three years in prison in a money-laundering plea deal after helping the U.S. Attorney’s Office convict several Haitians and Colombians of moving tons of Colombian cocaine through Haiti to the United States. Among those convicted were Haitian former top police officers — some of whom are back in Haiti after serving their sentences — and a powerful drug kingpin, Serge Edouard.
Edouard received a life sentence after Jean testified that the drug trafficker gave him and other law-enforcement officials hundreds of thousands of dollars to protect his cocaine shipments to the United States.
At Jean’s November 2005 sentencing, U.S. District Judge Jose Martinez complimented him for his “good work.” In his court testimony, Jean indirectly implicated Aristide and also testified against him before the grand jury. Aristide was never charged and the statue of limitations ran out before U.S. law-enforcement officials could prove that he collected kickbacks from traffickers.
Undeterred by wintry weather, federal appeals court judges gathering in Atlanta this week officially welcomed their two newest colleagues with kind words, food and drink.
A common theme for the separate investitures of Judges Julie Carnes and Jill Pryor was their both having the same last names as more senior members of the U.S. Court of Appeals for the Eleventh Circuit.
"I know if you were here Monday you're tired of names jokes," quipped Chief Judge Ed Carnes at the second of the two ceremonies.
They also have long-standing relationships with the court. Speaking at Jill Pryor's investiture, Judge William Pryor Jr. noted that with the two new additions, seven of the court's 11 active judges once clerked at the court or its predecessor court, the Fifth Circuit. "Becoming a circuit judge was the ultimate way to return here for life," Bill Pryor said.
It has been a running joke that the last names of the two new judges from Georgia would create confusion. The chief judge said he and Julie Carnes had discussed how to minimize the confusion when she joined the circuit court, saying the incoming judge had pointed out that he was five months older than she and suggested they use "Carnes the Elder" and "Carnes the Younger." The chief judge instead has taken to calling his new colleague "Judge Julie."
"If there's any name confusion, it can only benefit me," he added. In welcoming her, the chief judge also said no judge had ever come to the Eleventh Circuit with the 22 years' experience as a district court judge that she brings. "We have never had a more qualified and experienced person," he said.
Chief Judge Thomas Thrash Jr. of the Northern District of Georgia also spoke, along with Willis Whichard, a former North Carolina Supreme Court justice who investigated Julie Carnes' qualifications for American Bar Association committee that rates judicial candidates. (She received a "unanimously well qualified" rating.) Thrash said his former colleague "was totally dedicated to doing what was in the best interests of the court."
Judge Julie Carnes referred to the chief as "Chief Judge Ed" and "my doppelgänger." She recalled how confusion between her and Ed Carnes began long ago, when she was being vetted for the district court job in the early 1990s. Her father, the late Fulton County State Court Judge Charles Carnes, saw a headline that read, "Carnes Being Considered for Eleventh Circuit." Not realizing the headline referred to Ed Carnes, instead of his daughter, her father "was thrilled ... then he started reading."
She also noted that a judge from another circuit apparently confused the two at one point, quoting an opinion written by Ed Carnes but referring to the judge by a female pronoun. And, in her own moment of self-deprecation, she said that she had stopped correcting lawyers who approached her at bar events and praised her writing style.
Julie Carnes said joining the appellate court amounted to a "homecoming," noting she had witnessed her first oral argument in the building that now houses the Eleventh Circuit when she was clerking for then-Fifth Circuit Judge Lewis Morgan, and delivered her first oral argument there, as well. She recalled that her father had briefly worked as a mail sorter in the building, which used to be a post office. "What a great country we live in," she said.
After Carnes' investiture on Monday afternoon, the judges remained in town for en banc oral arguments and meetings, returning to the en banc courtroom for another investiture late Wednesday afternoon.
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: 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.
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.
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.
