Love is love is love

What a nice message after the tragedy yesterday.

Some quick news:

1) Congrats to AUSA Amit Argawal for being named Florida S.G. He is quite the rising star. I had the pleasure of arguing some cases against Amit (including the cell site data case en banc) and he is a gentleman.

2) The CJA conference was this weekend in Naples. Judges Moore, Cooke Scola, Matthewman, and Hunt were there. Plus there was a wonderful talk by Judge Beverly Martin and FPD Michael Caruso. It was a really good conference.

3) In last week's Sanchez-Valle opinion (finding that Puerto Rico could not prosecute someone after the feds had already done so), Justice Ginsburg (joined by Thomas) wrote a concurrence stating that the whole dual sovereignty doctrine should be re-examined. This was the position that FACDL-Miami took in its amicus brief (the only amici to take such a position). Big ups to Howard Srebnick, Terry Reed, Teresa Enriquez and Margot Moss for pushing the issue.

4) Some more details about the text messaging dust-up before Judge Bloom last week. But still trying to find out what the actual texts were... From Paula M's story:

Authorities accused her of improperly sending text messages to the federal agent who worked under cover on her case. The messages, in Mandarin Chinese, were not deemed threatening but were sent during an overnight break in the agent's trial testimony last week, records show.

Pro tip for defendants -- do not text the undercover agent while he is testifying

Ooof.  That happened in Judge Bloom's courtroom this week, according to the Sun-Sentinel.  The defendant was then taken into custody:

South Florida jury convicted a California woman on Thursday of conspiring to send a $50 million missile-firing drone and jet fighter engines to China via Broward County.Wenxia Man, aka Wency, 45, of San Diego, was found guilty of conspiring to export military weapons, equipment and technical data to the People's Republic of China.
***
Authorities accused her of improperly sending text messages, in Chinese, to the federal agent who worked undercover on her case during a break in his testimony in her trial. The agent, from U.S. Immigration and Customs Enforcement/Homeland Security Investigations, reported the improper contact and U.S. District Judge Beth Bloom order Man taken into custody, according to court records.

Does anyone know what the text said?  Please email me if you have any further info! 

Annual CJA conference in Naples

It's that time of year again, when all of the CJA lawyers take the Alligator Alley adventure.  Hopefully there will be none of this during the drive.  Instead, lawyers will get the latest Johnson updates, schmooze with some judges, and get to bond.

While this is going on, Jose Baez will be preparing for the Aaron Hernandez case.

Fun times...

Evidentiary hearing today in Spy-gate (Updated)

UPDATE -- so the courtroom was packed this afternoon.  Every seat was taken.  (When that happens, shouldn't the security people move the interns/clerks to the jury box to make more room for the public.)  It was mostly prosecutors and interns/clerks in the audience.  

Only one witness was called today, Rossana Arteaga-Gomez, the lawyer for Mr. Schapiro who was in the warehouse with the documents.  After about 2 hours, the rest of the testimony was taken in camera without the line prosecutor so he wouldn't learn any of the work-product material that the agent is alleged to have learned from the copies provided to her.  

Hearing continued till Monday.  Not much to report on today.

I've gotten some push back from my prosecution friends for calling it Spy-gate (the Patriots probably didn't like it either).  What about Copy-gate instead?

Original Post:

We need a better name for the case (U.S. v. Schapiro)...

Background here on the defense's claims that the government has been spying on its work product for the past 10 years.  Judge Cooke will hear evidence this afternoon

In the meantime, the defense filed its reply last night.

Reply in Support of Sanctions

Rubio officially blocks Mary Barzee Flores

The Tampa Bay Times has this:

“Senator Rubio recently returned the blue slip for three judges to fill other vacancies throughout Florida, but he will not return the blue slip on Ms. Barzee Flores," spokeswoman Olivia Perez-Cubas said.
"Florida has very busy federal courts and Senator Rubio would like to see judicial vacancies filled promptly with consensus picks who can be swiftly confirmed in a period of divided government. During the Obama administration, there has been an unfortunate trend toward the judiciary playing a more active role in policy-making, which is why Senator Rubio would rather see a judgeship remain vacant than to fill it with the wrong person for a lifetime."

The Miami Herald did a longer story, with quotes from people in the community backing Mary:

 Barzee Flores’ supporters in the legal community — including Miami-Dade, state and national police organizations, as well as prominent former state and federal prosecutors on both sides of the political spectrum — say they are baffled by Rubio’s decision to block her confirmation hearing before the Senate Judiciary Committee.They noted that his reasoning, based on his office’s statement, was contradictory, evasive and reflective of the political divisiveness in the GOP-controlled Senate, which votes on the president’s judicial appointments.
“It’s unfortunate that Mary has apparently fallen victim to the extreme political partisanship that is plaguing federal judicial nominations,” said former U.S. Attorney Marcos Jimenez, who was appointed by President George W. Bush.
Jimenez, who had served on Bush’s legal team in Florida’s 2000 presidential election dispute with Democrat Al Gore, said Barzee Flores is “extremely qualified and would make a great judge.”
Last year, Jimenez joined four other former U.S. attorneys in Miami — Roberto Martinez, Thomas Scott, Guy Lewis and Jeffrey Sloman — in a letter supporting her confirmation to the Senate Judiciary Committee chairman, Sen. Charles Grassley, and a ranking member, Sen. Patrick Leahy.
“We know how important it is to have smart, fair, hard-working judges on the federal bench,” they wrote in March 2015. “Mary fits the bill.”
Their letter noted that three former U.S. attorneys in Miami who serve on Florida’s Federal Judicial Nominating Commission — Alex Acosta, Kendall Coffey and Dexter Lehtinen — recommended her to President Obama.

Really sucks.  I don't really get it either -- why back the person only to withhold the blue slip?

I guess the upside it that If HRC wins, Mary can be renominated.  And since Rubio's seat will also change, I wouldn't say this is over just yet.

Read more here: http://www.miamiherald.com/news/politics-government/article81786967.html#storylink=cpy

Has the government been using its copy service to spy on defense work product for the past 10 years?

Those are the allegations in this motion to dismiss filed by Howard Srebnick and Rossana Arteaga-Gomez in U.S. v. Schapiro before Judge Cooke. 

Those who practice in this District know that in large fraud cases, the government stores its documents at a facility in Miramar.  If you want to see or copy the documents, you need to go there.  The Schapiro defense alleges that it flagged documents for copying from the warehouse.  The copy service scanned those documents and gave the defense a CD, which included the documents, titles the defense assigned to those documents, and post-it notes on the documents.  Unbeknownst to the defense, the copy service would also give that CD with this material to government agents.  And the copy service has been doing this for 10 years.  From the motion:

Mr. Montero [the copy service guy] then stated that he had been providing to the U.S. Attorney’s Office for the past 10 years duplicate copies of the discovery documents selected by defense counsel in other cases. On that day, Mr. Montero forwarded to Ms. Arteaga-Gomez his April 21, 2016 email to Cori Weiss [the government paralegal] (discussed above). In the forwarded email, Mr. Montero writes:

Here is the email I sent the FBI and this practice has been one that has been going on since 2006 that both Xpediacopy my old company and Imaging Universe have provided the U.S.D.O.J. in the majority of the cases where the government was not paying for the discovery services or were paying for half of the services.

To the prosecutor's credit, he informed the defense of this when he found out about in this case.  But query why it took 10 years for any prosecutor or agent to speak up. 

Judge Cooke remarked at the initial status conference on the motion that if true, the conduct was "repulsive."  In fact, she issued an order asking the parties to address the following issue: "What remedies, if any, are available to the court were the court to find that the described conduct in Defendant Shapiro’s motion is a systemic, consistent and/or pervasive practice of or on behalf of the United States Attorney’s Office?"

The Government filed a 49-page response here in which it claims, no harm no foul and that this isn't really work-product.  It also makes the surprising claim that the defense has waived any claim because it either knew or should have known about this procedure.  Wow.

An evidentiary hearing has been scheduled for next week.  This is worth following.

Kudos to Dan Christensen from Broward Bulldog as the first to report on the story here, which will soon be national news.  From the intro:

In a stunning twist in a long-running Medicare fraud case, both the Miami U.S. Attorney’s office and the FBI stand accused of spying on a defendant’s lawyer by illegally and secretly obtaining copies of confidential defense documents.
Court papers filed last week by attorneys for Dr. Salo Schapiro contend the secret practice was not the action of “just one rogue agent or prosecutor.” Rather, it was apparently an “office-wide policy” of both the U.S. Attorney’s Office and the FBI that’s gone on for “at least 10 years.”
The unwritten policy involves “surreptitiously copying defense counsel’s work product through the government-contracted copy service that the government requires defense counsel to use to obtain the discovery documents’’ needed to properly prepare for trial, according to court papers that seek either the dismissal of Schapiro’s indictment or the disqualification of the entire prosecution team.

End of school

It's that time of year -- recitals, graduations, pool parties, etc.

And of course, the end of Term opinions by the Court.  But the 8 member Court is making it tough.  Slate says the Court is bored out of its mind:

 So on the bridge of the Starship Enterprise when Captain Kirk has been forced to downgrade life support to minimum. Lights seem to flicker gently. Dazed reporters drift down the halls like tumbleweeds. On Tuesday, Justice Samuel Alito didn’t even show up for opinion announcements. And when the sole opinion of the day was read from the bench, in a rollicking appeal about when an agency action is reviewable under the Administrative Procedure Act, in United States Army Corps of Engineers v. Hawkes Co. Inc., Chief Justice John Roberts read the unanimous opinion of the court with the affable charm of a man who has far too much time on his hands. With his trademark rhetorical flair the chief justice expounded joyously on the many charms of peat. (Whiskey! Fertilizer! “Structural support and moisture for smooth, stable greens that leave golfers with no one to blame but themselves for errant putts.”) The court granted a single case, and issued warring opinions from weary jurists intent upon relitigating their longstanding death-penalty and jury-instruction disputes. Justice Clarence Thomas (joined by Justice Samuel Alito) wrote dutifully about the murder details in a jury instruction appeal, as he is more and more wont to do. (Hooker! Hunting knife! Bloodstained shoes! Depravity!) Justice Stephen Breyer (joined by Justice Ruth Bader Ginsburg) dissented in a death penalty appeal to remind us of the geographic disparities in capital sentences.

***

All of which brings us back to the great marble dustbowl that stands opposite the Capitol, and all the ways in which the justices who ostensibly work there have the look of resigned underemployment about them; a look that perhaps perfectly mirrors this moment in American history. Watching the justices assemble, dress, climb to their seats on the bench, and listen to the chief read out a unanimous opinion in a case about peat, it was clear that at least some of them might appreciate some interesting work until a ninth member is seated—work that might transcend halfhearted ideological infighting. I’m thinking they can maybe rent a bus and start a band. Or mow lawns or maybe babysit. But as the high court sputters along on its new screensaver mode, the fact that government can do next to nothing—even as there is more than ever to do—could not be more depressingly in evidence.

All that said, SCOTUSBlog reports on a judge telling the Court to take up a transgender case:

Arguing that “time is of the essence,” a federal appeals court judge on Tuesday called for a prompt appeal to the Supreme Court to sort out the rights of transgender students when they use restrooms at school. Circuit Judge Paul V. Niemeyer helped clear the way for an early appeal by withholding a demand that the U.S. Court of Appeals for the Fourth Circuit vote on rehearing a test case on the issue. At issue in the case of G.G. v. Gloucester County School Board is the meaning of a 1972 federal civil rights law that outlaws discrimination “because of sex” in federally funded education. Specially at issue is whether that law — known as “Title IX” — provides protection to students who identify as having a gender other than what was assigned to them at birth. There is a widespread, and rapidly growing controversy over that and other transgender rights issues, and the case of sixteen-year-old “G.G.” could be the first to put the issue before the Supreme Court. In some ways, the rapid development of the controversy parallels that over same-sex marriage rights, leading to the Supreme Court decision recognizing equal rights of gays and lesbians to marry, across the nation.

And Rumpole is cracking me up with his posts about a lawyer who is stealing our blog posts.  Great stuff by Rumpole here.

Should we have peremptory challenges in jury selection?

Judge Jon Newman in the NY Times says we should reduce the number to only a few.  The intro:

THE Supreme Court ruled correctly on Monday when it found that Georgia prosecutors in Foster v. Chatman had illegally barred African-Americans from serving as jurors in a death penalty trial. But the decision does not end racial discrimination in jury selection. The best way to do that is to limit the number of jurors that lawyers can strike for no reason at all to just one or two per side.

Both prosecutors and defense lawyers can exclude any number of prospective jurors for legitimate reasons — if a juror knows the defendant, has formed an opinion about the case or is unlikely to be impartial. But lawyers can also dismiss several more potential jurors simply because they do not want them — without explaining why. In federal felony trials, the prosecutor has six peremptory challenges and the defense usually has 10. In federal death penalty cases, each side has 20. State numbers vary.

In the Foster case, which dates from the 1980s, the prosecutors eliminated people simply because of race. Timothy Foster, a black man, stood accused of killing an elderly white woman when he was a teenager. The prosecutors worked conscientiously to exclude the potential black jurors; they marked their names with a “B” and highlighted each black juror’s name in green on four different copies of the juror list. Those jurors were ranked against one another in case, one member of the prosecutorial team said, “it comes down to having to pick one of the black jurors.” The plan worked, and an all-white jury sentenced Mr. Foster to death.

This was an egregious case, but not a unique one. Far too often in criminal or death penalty cases that involve a black defendant, prosecutors try to exclude black jurors because they believe it will increase the chances of a conviction. In Houston County, Ala., prosecutors struck 80 percent of qualified black jurors from death penalty cases from 2005 to 2009.

I took an even more extreme position back in 2005, when I wrote this op-ed for the Herald saying that we should get rid of all peremptory challenges.  I'm not sure I feel the same way any more.  Here's what I wrote back then, 11 years ago:

Posted on Wed, Jul. 06, 2005
JUSTICE
Eliminate race bias in jury selection
BY DAVID OSCAR MARKUS 

Any trial lawyer who says that he does not consider race as a factor when selecting a jury is not telling the truth. And that includes prosecutors, who -- it has been repeatedly shown -- attempt to exclude minorities from juries.
The problem with selecting juries is that the system is geared for relying on stereotypes and prejudice. Each side in both civil and criminal cases can strike a number of jurors from the panel for no reason. These strikes are called peremptory challenges. The idea behind allowing these sorts of strikes is that if the trial concerns, for example, a lawsuit over a dog bite, the lawyers should be permitted to strike a juror who has had a bad experience with a dog, even if that juror claims that she could be fair.
Peremptory challenges, however, have been used to strike jurors for a whole host of other impermissible reasons, like race, religion, gender and ethnicity. The Supreme Court has been struggling with how to keep race out of the jury selection process for many years.
Back in 1986, the Supreme Court in Batson vs. Kentucky prohibited lawyers from using race in their peremptory challenges. The court's decision in that case was nice as a matter of theory, but has failed miserably in practice. It is nearly impossible to show that a potential juror was stricken for a racial reason. Seasoned trial lawyers explain that they struck a juror for ''race-neutral'' reasons, such as the person gave a hostile look or seemed to have too much or too little knowledge of the subject matter, and so on.
Justice Thurgood Marshall -- the first African-American justice -- wrote a separate opinion in Batson, arguing that peremptory challenges always would be abused and that a just and fair system would abolish them altogether. The only way to ''end the racial discrimination that peremptories inject into the jury-selection process,'' he concluded, ''was to eliminate peremptory challenges entirely.'' No one paid Marshall much attention.
The issue of peremptory challenges again came to the Supreme Court's attention last month in Miller-El vs. Dretke, a death penalty case in which 19 of the 20 black potential jurors were stricken. Finding the prosecution's explanations for its strikes ''incredible,'' the court reversed the conviction, reaffirming the unworkable formula in Batson for determining when peremptory challenges were being used appropriately.
Justice Stephen Breyer, agreeing with the reversal, wrote separately to explain that Marshall had it right almost 20 years ago when he suggested that we do away with these challenges altogether. Breyer points out that lawyers are becoming more savvy in explaining away their juror strikes, going so far as to hire expensive jury consultants to help them base their strikes on the theory de jour regarding a particular group of people. Some jury consultants (as the ones used in the cases of Michael Jackson and Martha Stewart), it has been reported, command as high an hourly rate as the lawyers themselves.
Breyer and Marshall are right -- the only way to cut race out of the jury-selection equation is to do away with the peremptory challenge. To do this, judges need to allow lawyers to conduct a real inquiry into jurors' backgrounds so that jurors who would have obvious biases or problems judging a particular case can be excused for cause by the judge.
The Miller-El case demonstrates the high improbability of ever showing racial discrimination under the Batson formula. Despite the strength of his claim, Miller-El's challenge resulted in 17 years of largely unsuccessful and protracted litigation involving 23 judges, eight judicial proceedings and eight judicial opinions, the great majority of which found no Batson violation.
Amazingly, race still plays a major part in selecting juries. More amazing still is that we continue to ignore an easy solution to this problem. The time has come to do away with peremptory challenges and in so doing, to do away with racial prejudice in jury selection.