You gotta read this dissent

It's by Justice Sotomayor in Utah v. Strieff.  It's a good reminder of why the Supreme Court really needs diversity so that it different perspectives are represented.  The opinion is also a good reminder that after Justice Alito, Justice Breyer may be the most government friendly Justice in criminal defense cases.  (Orin Kerr points out on Twitter that the last time a criminal defendant won an exclusionary rule case in the Supreme Court was 1990 (!!) in James v. Illinois).  Here's a snippet:

Although many Americans have been stopped for speed­ ing or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. Whren v. United States, 517 U. S. 806, 813 (1996). That justification must provide specific reasons why the officer suspected you were breaking the law, Terry, 392 U. S., at 21, but it may factor in your ethnicity, United States v. Brignoni-Ponce, 422 U. S. 873, 886–887 (1975), where you live, Adams v. Williams, 407 U. S. 143, 147 (1972), what you were wearing, United States v. Sokolow, 490 U. S. 1, 4–5 (1989), and how you behaved, Illinois v. Wardlow, 528 U. S. 119, 124–125 (2000). The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambigu­ ous. Devenpeck v. Alford, 543 U. S. 146, 154–155 (2004); Heien v. North Carolina, 574 U. S. ___ (2014).
The indignity of the stop is not limited to an officer telling you that you look like a criminal. See Epp, Pulled Over, at 5. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. See Florida v. Bostick, 501 U. S. 429, 438 (1991). Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” Terry, 392 U. S., at 17. If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’ ” Id., at 17, n. 13.The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fas­ tened.” Atwater v. Lago Vista, 532 U. S. 318, 323–324 (2001). At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” Flor- ence v. Board of Chosen Freeholders of County of Burling- ton, 566 U. S. ___, ___–___ (2012) (slip op., at 2–3); Mary- land v. King, 569 U. S. ___, ___ (2013) (slip op., at 28). Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check. Chin, The New Civil Death, 160 U. Pa. L. Rev. 1789, 1805 (2012); see J. Jacobs, The Eternal Criminal Record 33–51 (2015); Young & Petersilia, Keeping Track, 129 Harv. L. Rev. 1318, 1341–1357 (2016). And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future. A. Goffman, On the Run 196 (2014). 

Monday morning (UPDATED)

UPDATE -- the Court decided Taylor.  Not such a biggie after all: "The prosecution in a Hobbs Act robbery case satisfies the Act’scommerce element if it shows that the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds."

Here we go:

1.  The Tony Villegas murder trial starts today.  From NBC:

Prosecutors and investigators do not believe that the murder [of Rothstein partner Melissa Britt Lews] had anything to do with the $1.6 billion scheme, but that [Tony] Villegas blamed Lewis for the breakup of his marriage.
Lewis was found dead in a canal near Plantation after her SUV was found nearby. Investigators said a struggle took place inside her garage, using DNA and pings from her cell phone to allegedly connect Villegas to the crime.Villegas was declared incompetent to stand trial in 2010 and avoided a trial until he was cleared by the state.
Debra Villegas, who has been released following a federal prison term for her role in one of the largest Ponzi schemes, is expected to testify. It is unknown if Rothstein, who is currently serving a 50 year term, will be called.

2.  The Supreme Court Term is coming to an end.  SCOTUSblog has all of your updates for the 13 remaining cases.  There will be some announced today.  Here's one of the criminal cases left that may be a biggie:

Taylor v. United States (argued February 23, 2016).  The petitioner in this case, David Taylor, was part of a Virginia gang that robbed drug dealers.  The two robberies that led to this case, however, did not yield any drugs – only cellphones, jewelry, and a small amount of money.  Taylor was indicted on federal charges that he had violated the Hobbs Act, which punishes robberies and extortion but applies only when the defendant “obstructs, delays, or affects commerce or the movement of any article or commodity in commerce.”  The question before the Court is whether the federal government is required to prove facts to show that the defendant’s conduct actually affects commerce.

3.  Apparently Clarence Thomas is mulling retirement:

 Justice Clarence Thomas, a reliable conservative vote on the Supreme Court, is mulling retirement after the presidential election, according to court watchers.Thomas, appointed by former President George H.W. Bush and approved by the Senate after a bitter confirmation, has been considering retirement for a while and never planned to stay until he died, they said. He likes to spend summers in his RV with his wife.

Get those Johnson motions in!

If you don't know what I'm talking about, then you probably don't have a client who has been enhanced under the Armed Career Criminal Act or the Career Offender guidelines.  Many of these clients may get their sentences reduced -- by a lot -- because of Johnson v. United States, 135 S. Ct. 2551 (2015).  But the one-year limitation period to file your Johnson motion expires a week from today, June 24, 2016.*

Here is Judge Martin's recent, helpful concurrence on the issue:

I agree that Troy Robinson cannot benefit from Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), because his sentence is valid even without the residual clause.  I write separately to note that Mr. Robinson is one of dozens of prisoners who has tried to file similar applications based on Johnson.  Prior to yesterday’s decision in Welch v. United States, No. 15-6418, 2016 WL 1551144 (Apr. 18, 2016), all these applicants were turned away from our Court not because Johnson wouldn’t benefit them but because our Court held that Johnson could never apply in these cases. Some of those who filed applications in other courts have already been freed because they were serving an unconstitutional prison sentence.  As best I can tell, all the prisoners we turned away may only have until June 26, 2016, to refile applications based on Johnson.  See Dodd v. United States, 545 U.S. 353, 359, 125 S. Ct. 2478, 2482–83 (2005).
Although I have not taken the time to investigate the merits of these cases, below is a list of every case I know of in which this court denied an application from a prisoner seeking to file a second or successive 28 U.S.C. § 2255 petition based on Johnson.  I share this list in the hope that these prisoners, who filed their applications without a lawyer’s help, may now know to refile their applications.  I have separated out the cases that arise under the residual clause in the Armed Career Criminal Act (ACCA) and the cases that arise under the identical language in United States Sentencing Guidelines § 4B1.2 (which includes cases for which the guidelines were mandatory together with those for which the guidelines were advisory).  I have also listed the district court in which each sentence was imposed, to the extent Federal Public Defender offices are monitoring these cases.

*Some, including Judge Martin, think it expires June 26.  But to be safe, file it next Friday.

In other news, the "terror" trial of Harlem Suarez is running into some snags.  From the Miami Herald:

Attorneys for the Key West terror suspect charged with trying to buy a bomb he planned to set off in South Florida have asked a judge to let them leave the case, saying their client refuses to take their advice as he approaches trial.
They also want the trial of Harlem Suarez, 24, who is accused of being an Islamic State sympathizer, postponed due to the flood of news coverage in the aftermath of the weekend Orlando nightclub massacre in which the gunman pledged allegiance to ISIL. Forty-nine people died, the worst mass shooting in U.S. history.
Suarez, who faces life in prison if convicted of planning to detonate a weapon of mass destruction at a beach filled with people, is scheduled to stand trial July 11.
“A continuance is in the interests of justice until such time as the heated reporting on the Orlando incident has subsided,” attorneys Richard Della Fera and Joshua Entin of Fort Lauderdale wrote in a motion filed Tuesday at U.S. District Court in Key West .
At the same time, the lawyers have asked to withdraw from the case, saying Suarez won’t listen to an “extreme extent.”
“Counsel believes that the attorney-client relationship with defendant has deteriorated to the point that it is best that defendant have new counsel,” the lawyers wrote in a motion filed Friday in U.S. District Court.
They asked Judge Jose Martinez for a hearing at which they can make their case that Suarez needs a new legal team. On Monday, Martinez referred the motions to Magistrate Judge Lurana Snow. Prosecutors hadn’t responded as of midday Tuesday.
In another filing by Della Fera and Entin, they ask the court to not let testify at trial Daniel Byman, who the government calls an expert on terrorism and the Islamic State known as ISIL, saying it flies in the face of fairness for Suarez.
“Clearly, the very mention of terrorism and the Islamic State invokes fear and worry in hearts and minds of every American citizen,” Suarez’s attorneys wrote. “It will be difficult enough for defendant to get a fair trial in the present climate where the media’s constant reporting and commentary on terrorism and terrorist attacks is omnipresent.”

Read more here: http://www.miamiherald.com/news/local/community/florida-keys/article84094017.html#storylink=cpy

Read more here: http://www.miamiherald.com/news/local/community/florida-keys/article84094017.html#storylink=cpy

Jack Utsick pleads guilty

There was a lot of trial talk at the beginning of this case, but now we are headed to sentencing.  From the Miami Herald:

On the eve of trial, a once-powerful Miami Beach concert promoter pleaded guilty Friday to ripping off a single investor — though his federal plea deal still leaves him vulnerable to prison for the rest of his life.
Jack Utsick, who produced tours for Fleetwood Mac, Michael Jackson and other superstars, faces up to 17 years in prison and must repay more than $169 million to thousands of his investors, many of whom were retired commercial airline pilots like him.
But Utsick’s defense attorneys said their 73-year-old client is ailing and broke, factors that could help him obtain lighter punishment at his sentencing Aug. 23 before U.S. District Judge Cecilia Altonaga.
“We will be asking for a substantially lower sentence,” said Washington, D.C., lawyer Eric Lisann, who is working on the defense with Miami attorney David Weinstein.

Meantime, there is a lot of debate about whether the Orlando shooter's wife committed a crime.  From the Sun-Sentinel:

The wife of Orlando massacre shooter Omar Mateen, Noor Zahi Salman, is talking to the FBI, a law enforcement official said, speaking on condition of anonymity to discuss the investigation.
Among other things, investigators are looking at whether Salman helped Mateen plan or scout out the rampage at the Orlando nightclub, or knew about his plans.
Mateen visited a number of Disney properties since April, and was most recently spotted early this month in Disney Springs, an outdoor shopping and entertainment complex inWalt Disney World, according to a U.S. law enforcement official briefed on the investigation.
It's possible that Mateen's visit overlapped with Gay Days Orlando, which went from May 31 to June 6 this year. The annual event brings thousands of LGBT individuals and families to Central Florida.
 The organizers of Gay Days arrange some ticket packages at Disney parks during the annual event and designate parks to attend on certain days.Another U.S. official said that information provided to the FBI by Disney made it clear that Mateen was not simply acting as a tourist during a visit to Walt Disney World two or three months ago.
***
Mateen's wife, Salman, has told FBI agents that she drove with him to the Pulse nightclub on at least one occasion before Sunday's shooting, and that she accompanied him to shop at a firearms dealer.
Mateen bought a Glock handgun and an AR-15-type semiautomatic rifle during two separate visits this month to the St. Lucie Shooting Center, several miles from PGA Village, a gated community where he worked as a security guard.
The FBI is investigating whether Salman also had knowledge of his plan to attack and kill patrons at the gay nightclub.
If Salman knew of her husband's intent to commit terrorist acts and didn't report it to law enforcement, she could face criminal charges. But a federal law enforcement official said the Justice Department is in no rush to file charges because no evidence has emerged to suggest the gunman had accomplices, and there is no imminent threat of another attack.
Mateen was the target of a 10-month FBI investigation in 2013 and 2014, but the case was closed when a confidential informant, surveillance and eavesdropping did not turn up evidence of illegal activity. At that point Mateen's name was taken off the FBI Terrorist Screening Center's watchlist.
Had his name been in the watchlist when he bought the firearms he used in the shooting, an FBI agent working the case would have been notified.
Schiff said he told Comey during Tuesday's briefing that the FBI should change its procedure to ensure that an agent is notified when a former terrorism suspect buys a gun.
If the FBI can't make that change on its own, Schiff said, he will consider drafting legislation to do it.

Read more here: http://www.miamiherald.com/news/local/crime/article83118357.html#storylink=cpy

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