Ed Carnes concurs with Ed Carnes

This morning Chief Judge Carnes issued this opinion.  He also concurred with his own majority opinion.

His majority opinion starts this way (with a reference to Downton Abbey: Season 3, Episode 6, see *):

It may be, as the Downton Dowager bemoaned, that “[l]ie is so unmusical a word,”* but it strikes the right note for some of the statements that Dr. Patricia Lynn Hough made in her tax returns. So does 26 U.S.C. § 7206(1), which provides a penalty of imprisonment for a person who willfully files a return “which [she] does not believe to be true and correct as to every material matter.” That is one of the statutes that Hough was convicted of violating. The other is 18 U.S.C. § 371, which prohibits conspiring to defraud an agency of the United States, including the IRS. This is her appeal of those convictions and her sentence.

And below is the opening salvo from his concurrence regarding what a prosecutor can ask character witnesses.  There is a long line of cases in the 11th Circuit holding that a prosecutor cannot assume guilt in asking a character witness whether that would change the witness' opinion of the defendant.  The majority found that violation harmless in this case, but Carnes decided to concur to express his displeasure with this line of cases:

 Not surprisingly, as the author of the Court’s opinion I concur in all of it. I write separately to offer my view about our decisions in Guzman and Candelaria-Gonzalez insofar as they hold that a prosecutor cannot cross-examine the defense’s opinion or reputation character witnesses by asking whether their testimony would change if the defendant had committed the crimes with which she is charged. See United States v. Guzman, 167 F.3d 1350, 1351–52 (11th Cir. 1999); United States v. Candelaria-Gonzalez, 547 F.2d 291, 293–95 (5th Cir. 1977). We are bound to follow prior panel precedent even if we disagree with it, but we are not bound to remain silent about whether it is wrong. And the central holding of Guzman and Candelaria-Gonzalez is wrong.

Candelaria-Gonzalez first announced the erroneous holding in a case involving the cross-examination of defense witnesses who gave testimony about the defendant’s good reputation in the community, 547 F.2d at 293–95, and Guzman extended the holding to cross-examination of witnesses who gave opinion testimony about the defendant’s good character, 167 F.3d at 1351–52. The reason given for the holding was that “[t]hese hypothetical questions [strike] at the very heart of the presumption of innocence which is fundamental to Anglo-Saxon concepts of fair trial.” Candelaria-Gonzalez, 547 F.2d at 294; see Guzman, 167 F.3d at 1352. No they don’t.

Judge Carnes ends his concurrence with a strong defense on cross-examination:

Regardless of how the witness answers the question, it is a proper one on cross-examination because it helps the jury get at the truth. Cross-examination, as Professor Wigmore stated, is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 John Henry Wigmore, Evidence in Trials at Common Law § 1367, at 32 (Chadbourn rev. 1974). That engine for the discovery of truth should be allowed to run at full speed and not be choked to a halt by misunderstandings about conditional questions and answers or by facile references to “Anglo-Saxon concepts of fair trial.” Candelaria-Gonzalez, 547 F.2d at 294. As Thomas Paine observed, “such is the irresistible nature of truth, that all it asks, and all it wants, is the liberty of appearing.” Thomas Paine, Rights of Man 151 (Everyman’s Library ed. 1958) (1791). We ought to do what we can to give truth the liberty of appearing in a trial.

Ellisa Martinez's case reheard

The 11th Circuit had rehearing on Ellisa Martinez's case in light of the Supreme Court's decision in Elonis.  And this is what happened:

This case is before this Court for further consideration in light of Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001 (2015). We previously affirmed Ellisa Martinez’s conviction under 18 U.S.C. § 875(c) for knowingly transmitting a threatening communication. United States v. Martinez, 736 F.3d 981 (11th Cir. 2013). The Supreme Court vacated the opinion and remanded the case to us for consideration in light of Elonis. See Martinez v. United States, 135 S. Ct. 2798 (2015).
In Elonis, the Supreme Court reversed and remanded the defendant’s conviction under § 875(c), holding a jury instruction providing “that the Government need prove only that a reasonable person would regard [the defendant’s] communications as threats” was error. 135 S. Ct. at 2012. The Court determined that “[h]aving liability turn on whether a ‘reasonable person’ regards the communication as a threat—regardless of what the defendant thinks”—is insufficient for a conviction under § 875(c). Id. at 2011. The Court cited “the basic principle that wrongdoing must be conscious to be criminal,” id. at 2009, and held that “what [the defendant] thinks does matter,” id. at 2011. While the Supreme Court declined to answer the question of the exact mental state required by a defendant, it held negligence is not enough to support a conviction under § 875(c). Id. at 2013.
...

Based on the Supreme Court’s holding in Elonis, Martinez’s indictment is insufficient as it fails to allege an essential element of § 875(c). An indictment must set forth the essential elements of the offense. United States v. Fern, 155 F.3d 1318, 1324-25 (11th Cir. 1998). This rule serves the purposes of (1) informing the defendant of the nature and cause of the accusation, as required by the Sixth Amendment; and (2) ensuring a grand jury found probable cause to support all the necessary elements of the crime, as required by the Fifth Amendment. Id. at 1325. The indictment fails to allege Martinez’s mens rea or facts from which her intent can be inferred, with regard to the threatening nature of her e-mail. It alleges only that a reasonable person would regard Martinez’s communication as a threat. Martinez’s indictment does not meet the Fifth Amendment requirement that the grand jury find probable cause for each of the elements of a violation of § 875(c).
In light of the Supreme Court’s holding in Elonis, our holdings in Martinez and Alaboud are overruled. Martinez’s conviction and sentence are vacated, and we remand this case to the district court with instructions to dismiss Martinez’s indictment without prejudice.
VACATED AND REMANDED.

Former AUSA Michael Garofola (and Bachelorette contestant!) back in the news

S.F. Lawyers beat me to it. 

Earlier this year, Garofola, a former Davis Polk & Wardwell associate and federal prosecutor, took a break from his job as general counsel for Trans Pacific Polymers and Gulf Energy and Chemical Company to appear on "Bachelor in Paradise," a spinoff series of the reality TV hit "The Bachelorette." In 2013, he took an even longer break from the U.S. attorney’s office in Miami to appear on a season of the original show featuring fashion designer Desiree Hartsock.

Garofola was eliminated from "The Bachelorette" in the seventh episode, when Hartsock passed him over for other suitors. His run on "Paradise" ended just two weeks ago, when he was edged out by other contestants vying for the attentions of Tenley Molzahn. ("She's just not that into [I.Q.],” Garofola tweeted to his nearly 16,000 followers.)

If Garofola is smarting from the rejection, he doesn’t let on. “I’m proud of all of my decisions,” he said in an interview after the show. “They’ve all been net positive, and I really wouldn’t change a thing.” And he has no patience for those who would question the choice to flaunt the search for love.
Lawyers enjoy reality shows as much as everyone else, Garofola said. But among reality TV’s critics, they’re “the most hypercritical and judgmental group.”

"I don’t fit that mold,” said Garofola, insisting that he’s always embraced risk. His biggest fear, he said, is having regrets.

PB Post live tweeting federal trial in WPB (UPDATED)

Joe Zada is waiting for a verdict in West Palm Beach. Big fraud case with lots of shenanigans.  The Palm Beach Post live tweeted closing arguments here.  And here's a nice summary from the online paper:

Joseph Zada didn’t show the best judgment when he used other people’s money to buy jewelry, sports cars and palatial homes in Wellington and Michigan, where he threw lavish parties featuring acrobats swinging from trapezes and performing stunts rivaling Cirque du Soleil, his attorney told a federal jury on Tuesday.
In fact, attorney Richard Lubin said, it was downright dumb.

Joseph Zada (right) heads into federal court with his attorney Richard Lubin on July 27, 2015, as jury selection began in his fraud trial. Claiming he was the illegitimate son of an oil-rich oil sheik, Zada claimed he would inherit $600 million as a result of the unidentified Saudia Arabian’s death, SEC lawyers claimed in a complaint they used to get a $121.6 million judgment against Zada last year. (Lannis Waters / The Palm Beach Post)

But, he told jurors on the final day of Zada’s month-long fraud trial, the former Wellington high-flier fully intended to repay those who gave him as much as $55 million. Once he received a more than $250 million inheritance from an overseas businessman, everyone would be made whole, he said.
“He put the cart before the horse,” Lubin said of Zada’s decision to take millions from people before he had the inheritance check in hand.
“There’s no question Joe Zada spent the money before he had it,” Lubin said. “He was so convinced he was going to get this huge amount of money that he spent it before he had it. … It’s not a smart thing to do, but it’s not a crime."

Former NHL player Sergei Fedorov leaves the Federal Courthouse after testifying Aug. 20, 2015, in the fraud trial of Joseph Zada, a former Wellington big shot who is accused of bilking dozens of investors out of millions. Fedorov, who played for the Detroit Red Wings, got a $60 million judgment against Zada for squandering $40 million he gave his onetime friend to invest. (Lannis Waters / The Palm Beach Post)

Federal prosecutors, who are asking jurors to convict the 57-year-old of 15 counts of mail fraud and three counts of bank fraud when they begin deliberations today, scoffed at the notion that Zada made an innocent mistake.
Since the late 1990s, Zada has been duping people into believing that he was a wildly successful businessman who had befriended a variety of preposterously rich men, who left him their fortunes when they died, federal prosecutors said.
First, he claimed he got a windfall from a man who died from AIDS, said Assistant U.S. Attorney Adrienne Rabinowitz. Then, it was a enormous check from his oil-rich Lebanese father, who felt guilty about abandoning his family after they moved to the U.S. Later, he told people he was inheriting money from a man named Wolfgang, a member of a secret committee in London that had access to global investment opportunities. In another twist, he said he was waiting for a $1.5 billion check from the estate of a Saudi oil sheik.
Rabinowitz blasted claims by Lubin that bankers, lawyers and accountants had verified that foreign banks were processing a multi-million-dollar inheritance for Zada.
“The evidence is overwhelming that the defendant isn’t getting an inheritance,” she said. “They’re lies.”

UPDATE -- Zada was found guilty this morning and remanded into custody.

SCOTUS: Bond for ex-Governor

I've never seen the Supreme Court do this before, but it granted bond for former Virginia Governor Robert McDonnell yesterday in this order.  From the Richmond Times-Disptach:

In a surprise to some observers, the U.S. Supreme Court on Monday allowed former Gov. Bob McDonnell to remain free while the justices decide whether to take up his appeal.
In a one-paragraph order, the high court told the 4th U.S. Circuit Court of Appeals to hold off on making its July 10 ruling upholding McDonnell’s 11 corruption convictions final, permitting McDonnell to remain on bond.
Should the justices not take the case, the stay ordered on Monday will end automatically. If the court takes the case, the stay will continue, the court ordered.
“Wow,” said Randall Eliason, former chief of the Public Corruption/Government Fraud Section at the U.S. Attorney’s Office in Washington. “It suggests there is some level of interest at the Supreme Court in reviewing the case, even though not a single appellate judge in the 4th Circuit agreed with his arguments.”
Henry Asbill, one of McDonnell’s lawyers, said, “We’re very grateful for this order and we’re gratified that the justices recognize that this case raises substantial and important legal questions and we look forward to a full merits briefing.”

Lower courts should take a cue from the High Court that appellate bonds are okay!

SCOTUS: "Long Conference" on 9/28

The NY Times has an interesting piece this morning on the "long conference" where all of the summer petitions will be considered.  The odds of a grant from the long conference are particularly low.  Can't the Court meet a few times over the summer to consider the filed cert petitions?  Would that be such a burden in addition to the 70-75 cases that they hear a year?

Four weeks from now, on Sept. 28, the Supreme Court justices will gather in private for an annual ritual called the “long conference.” They will consider the roughly 2,000 petitions to hear appeals that have piled up over the summer. And they will reject almost every one.

“The summer list is where petitions go to die,” said Gregory G. Garre, a solicitor general in the George W. Bush administration who is now at Latham & Watkins.

The odds of persuading the Supreme Court to hear a case are always long. At the conferences held on many Fridays during the term, which lasts from October to June, the justices consider perhaps 200 petitions at a time and grant about 1.1 percent of them. At the long conference, the rate is roughly half of that, around 0.6 percent.

That difference is significant. “For the majority of petitioners, the most important moment is trying to get in the door,” said Jeffrey L. Fisher, a law professor at Stanford who argues frequently before the court. “Once you’re in, the statistics say, you have a two-thirds chance of winning. So the difference between a grant and a deny is truly the difference for a handful of cases on the summer list between winning and losing.”

Lawyers and scholars have various theories about why the long conference is so inhospitable. One is that the justices, who decide about 70 cases a year, do not want to grant too many petitions right away for fear of having to turn down better ones later on.

“It’s like the beginning of a long buffet,” Professor Fisher said. “You don’t want to fill your plate with too much stuff, lest you not have room for some delicious items at the end of the line.”

Meantime Liptak (the author of the article) and Orin Kerr are fighting about whether Justice Thomas here.  Here is the original NY Times piece that Kerr take on. Who has the better of the debate?  Kerr seems to make valid points about the flimsy statistics cited by Liptak.

Flakka and butt implant deliveries from overseas to be delayed due to Erika

Your 8am death cone:



Paula McMahon covers this big Flakka importation case:

Two men pleaded guilty Thursday to importing more than 24 pounds of the main ingredient in the street drug flakka from China to Broward County.

Federal authorities arrested Michael J. Hernandez, 25, of Orlando, and Jonell Vega-Mercado, 21, of Clermont, in June when they tried to pick up packages from a shipping and mailbox store in Hollywood.
Michael J. Hernandez and Jonell Vega-Mercado

Homeland Security Investigations agents said the packages contained the key ingredient for making the synthetic stimulant, which often causes hallucinations and psychosis.

The packages were addressed to fake names and were intercepted while being shipped to commercial mailboxes in Weston and Hollywood, authorities said.

The men ordered large amounts of the drug to be shipped from labs in China and the conspiracy went on from January to early June, according to the plea agreement. The men paid cash for mailbox services and used fake identities when they picked up the shipments.

Both men pleaded guilty to one count of conspiring to import the drug ingredient at a hearing in federal court in West Palm Beach. The charge carries a maximum punishment of 20 years in federal prison and a $1 million fine.

And what's Friday news without Hurricanes, Flakka, and.... Butt Implants:

Peruvian woman who admitted she illegally smuggled a product into South Florida to perform an illegal "buttocks enhancement" procedure was sentenced to 10 months in federal prison on Thursday, court records show.

Teresa Nunez Orrego, 46, was arrested in May during an appointment with an undercover federal agent who posed as a client who wanted a "buttocks enhancement." The arrest was made at the Hallandale Beach apartment of Nunez's South Florida contact who scheduled her appointments.

Teresa Nunez Orrego, 46, was sentencd to 10 months in federal prison after admitting she traveled from Peru to Broward County with silicone, large hypodermic needles and syringes to perform an illegal cosmetic procedure, or "buttocks enhancement." (Handout, Broward Sheriff's Office)

Nunez had promised she would boost the woman's rear end with injections of a top-quality Swiss product for the bargain price of $1,000, according to court records.

Federal authorities said Nunez hid vials of silicone, with fake labels that claimed it was more expensive hyaluronic acid, in her luggage on a flight from Lima, Peru to Fort Lauderdale-Hollywood International Airport.

Also concealed in her luggage were large hypodermic needles, syringes and vials of lidocaine to help treat reduce the pain involved in the procedure, according to agents from the Food and Drug Administration and Immigration and Customs Enforcement.

“He tried to nail Ben to the wall."

That's Henry Bell discussing Robert Feitel in this Herald article about lawyers and money laundering by Michael Sallah.  More:

Robert Feitel, a veteran lawyer with a long history of prosecutions, charged into court as the Justice Department’s point man to take on a prominent Miami lawyer in a case that came to symbolize the rights of attorneys to accept fees from international drug traffickers.
Feitel accused lawyer Ben Kuehne of fabricating documents to cover up dollars for the Medellin Cartel. He accused him of orchestrating the payments through overseas wires. He even said Kuehne knew much of the money came from the sale of drugs.
Now, years after the case ended, Feitel is cast in a strikingly similar position as the man he once prosecuted.
The Miami Herald found that more than $100,000 in drug money belonging to criminal organizations was sent to Feitel’s law firm by South Florida undercover officers posing as money launderers to infiltrate drug groups.
The undercover police picked up the cash in New York and sent the money to Feitel — now a defense attorney who specializes in drug cases — at the behest of criminal organizations in a series of payments never questioned by the former prosecutor, records and interviews show.
Kuehne, whose case was ultimately dropped by the government in 2009, said he was surprised to learn about payments to the man who once prosecuted him.
“The question is: Why was he getting the money?” said Kuehne, a former member of the Florida Bar’s board of governors who represented Vice President Al Gore in the 2000 presidential recount. “Is he going to get the same knock on the door?”
Contacted by phone, Feitel said he was unaware of the money sent to his office in northwest Washington, where he works mostly as a solo practitioner, adding he was surprised by The Herald’s call. “We’re usually pretty careful” about accepting questionable fees, he said.

Oh... it's the usually we're pretty careful defense! Henry and others were having none of it:

Several defense lawyers from Miami said they were riled that the onetime senior prosecutor was never questioned by law enforcement agents about the money sent to his account — funds picked up off the streets of New York from drug suspects.

“In his role at the DOJ, he prosecuted Ben for the same thing;” Bell said.

In an earlier interview, Feitel said money sent from a U.S. bank like the one used by the task force is more difficult to screen than funds from overseas exchange houses. “How was I supposed to know” the money is tainted? said Feitel. “That would have been difficult.”

One former federal prosecutor said money wired to a law firm from someone who is not a client should have raised basic questions. “What did he think the money was for?” said Joseph DeMaria, a Miami attorney who once served on the DOJ’s Organized Crime and Racketeering Section. “He’s got to be saying to himself: ‘Why am I getting this money? Especially someone who was a former prosecutor who’s even more heightened on these kinds of issues. He spent his career putting people in jail for money laundering.”