Former U.S. Attorneys rise up! (UPDATED)

Well, well, well... what do we have here?  35 former prosecutors, including 3 former U.S. Attorneys from the S.D. Florida, have penned this open letter concerning Trump's executive order, which led to Sally Yates' firing.  The whole thing is worth a read, and it's interesting to look at all of the signatories, but here is the conclusion:

In short, the Executive Order is inimical to the values of the Justice Department and the United States, most significantly, that individuals may not be treated more harshly under the law solely on account of their religion. In our view that is exactly what the Executive Order does, and is intended to do. It would be our job, if we were representing the United States today, to say, no, this Executive Order is wrong and should not be defended.

UPDATE -- Jay Weaver from the Herald covers the letter here:

 Three dozen former federal prosecutors — many Democrats, but some Republicans — issued a statement Thursday denouncing President Donald Trump's executive order temporarily banning people from the predominantly Muslim countries of Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen from entering the United States.
“If we were called upon to defend the executive order, could we do it within the guidelines we learned and lived by as lawyers for the United States?” said the statement signed by 36 former federal prosecutors who worked in South Florida, including three U.S. attorneys in Miami. “We could not. ...
“It would be our job, if we were representing the United States today, to say, no, this executive order is wrong and should not be defended,” the statement reads.

Read more here: http://www.miamiherald.com/news/local/article130316814.html#storylink=cpy

"At all times relevant to this lawsuit, Donald J. Trump was a private citizen. As a result the Court will refer to him as such in this decision. In doing so, the Court means no disrespect to him or the esteemed position he now holds."

That was Judge Marra in this 21-page order finding against Trump after a bench trial.  From Politico:

A federal judge has ordered a golf club owned by President Donald Trump to refund nearly $6 million to members who said Trump's team essentially confiscated refundable deposits after taking over the country club in 2012
U.S. District Court Judge Kenneth A. Marra ruled that the Trump National Jupiter Golf Club violated the contracts with members by retaining the fees and locking out many members who had declared their plans to resign.
"The Court concludes that the Plan documents, as properly interpreted, were intended to provide club members of the resignation list with a continuing right to use the Club facilities until their membership was reissued to a new member, provided the club member was otherwise in good standing with the Club," Marra wrote.

While that bigly trial came to a close, another one, involving allegations of smuggling Cuban baseball players, led off with opening statements before Judge Kathy Williams.  H. Ron Davidson opened for the government, and the two defendants, Bart Hernandez and Julio Estrada, are represented by Jeff Marcus/Dan Rashbaum and Sabrina Puglisi/Dianne Carames.  Curt Anderson from the AP on openings:

 Florida-based sports agent and a trainer ran legitimate businesses aimed at getting Cuban baseball players to sign U.S. major league contracts but were not involved with smuggling players from the communist island or falsifying travel documents, their lawyers told a federal jury Wednesday.
Opening statements were held Wednesday in the case against agent Bartolo Hernandez and trainer Julio Estrada, both of whom have been charged with conspiracy and alien smuggling. Both face lengthy prison sentences if convicted.
***
Hernandez attorney Jeffrey Marcus said the agent's only involvement with the players was to negotiate their contracts with professional teams through his company, Global Sports Management, and that his percentage was relatively small at less than 5 percent.
"His business is baseball. It's not smuggling," Marcus told jurors. "This case, I think, is a stretch in many ways, in fact and in law."
Likewise, Estrada lawyer Sabrina Puglisi said her client's role was operating training facilities in Mexico and the Dominican Republic so players could stay sharp while they awaited permission to come to the U.S.
Under Major League Baseball rules, Cuban players who establish residency in a third country can sign lucrative deals with teams as free agents, but would have to submit to the baseball draft and get paid less if they come directly to the U.S.
"Julio has nothing to hide. He did everything above board. He's running a legitimate business," Puglisi said.
No players are accused of wrongdoing. Several Cuban-born players are likely to testify, including Yoenis Cespedes of the New York Mets, Jose Abreu of the Chicago White Sox and Adeiny Hechevarria of the Miami Marlins. Puglisi said more than 20 players were trained by Estrada.
Assistant U.S. Attorney Ron Davidson said in his opening statement that some players came to the U.S. with falsified passports or used other forms of deception to establish residency in Mexico and other countries. One tactic, he said, was to submit documents to the Mexican government claiming the players had actual jobs such as a welder, mechanic, even as an "area supervisor" for a jet ski company.
"It was just made up," Davidson said.

"A judge who likes every result he reaches is very likely a bad judge."

That was SCOTUS nominee Neil Gorssch during his speech tonight and in a dissent last year, which may give criminal defense lawyers some optimism (he found strip searches unconstitutional):

"Often enough the law can be 'a ass — a idiot,' Charles Dickens, Oliver Twist 520 (Dodd, Mead & Co. 1941) (1838) — and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people's representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands — and in that I see the best of our profession and much to admire. It's only that, in this particular case, I don't believe the law happens to be quite as much of a ass as they do. I respectfully dissent."

And there's this:

Like Scalia, he has shown a willingness to occasionally side with defendants on criminal law matters. He sided with a Albuquerque middle schooler who was strip-searched by his school, dissenting while his colleagues ruled that the school police officer and other employees are immune from lawsuits. In one 2012 dissent, he argued against applying the federal law banning felons from owning firearms to a defendant who had no idea he was a felon. And he's expressed concern with overcriminalization, saying that states and the federal government have enacted too many statutes forbidding too much activity. But on other matters, he has been, like his would-be predecessor, harsher. He has taken a limited view of a defendant's right to competent representation, and tends not to view death penalty challenges favorably.

I guess we will see soon enough.

Bed Bug Massacre!

Yes, Trump is making news for firing the AG and for his impending SCOTUS pick.  But did you see that he settled the beg-bug lawsuit in Doral:

White smoke over President Donald Trump’s Trump National Doral Miami golf resort! The scandal of the luxury resort’s bed bugs is about to go away.
In a bit of good news for the new president, court records show his attorneys in Miami have reached a tentative settlement with a business traveler who sued the resort after his back, face and arms were devoured by voracious bed bugs at the revamped resort.
In a terse one-page report just slipped into the court file, court-appointed mediator Frank Allocca filed a notice that reads “an agreement was reached.” There were no details on what will likely be a confidential deal.

News and Notes

1.  Trump to pick SCOTUS nominee tomorrow.  The NY Times has this preview on how the nominee could affect upcoming cases. 

2.  The Ft. Lauderdale shooter was arraigned today.  The PD's office assigned veterans Hector Dopico and Eric Cohen to the case.  More from the Sun-Sentinel here.

3.  This dude found some cocaine in the ocean.  Now's he's in trouble:

But it was an object lesson in what not to do. In December, Mark “The Shark” Quartiano, a celebrity Miami fisherman, found a kilogram brick of cocaine. He promptly alerted the authorities.
Breeding did not. He instead handed over the 45-pound haul to four other people, on the condition they would sell the cocaine and pay a cut to Breeding. All five were caught in the summer — Breeding, a felon, had a firearm in his car when he was arrested — and faced conspiracy charges for the distribution of a controlled substance. Breeding pleaded guilty Wednesday, the News Herald reported, as did the other members of the network; they are awaiting a Feb. 16 sentencing. Breeding may be punished with up to life imprisonment and a fine in the millions of dollars.
In his letter, the fisherman asked that those who find the white lobster not follow his path. “I would like to let the public know the dangers and what not to do if this situation comes about,” Breeding wrote. “This changed my life and way of thinking and also made me aware of some of the dangers that can be found off shore in the Gulf.”

Pryor fading... Gorsuch and Hardiman rising.

According to numerous blogs, Judge Pryor isn't at the top of the SCOTUS list for Scalia's seat. I bet Trump wants someone to sail through for this seat and will save the more controversial selection for the following pick. Here's ABC on Gorsuch, who seems to be the leading contender right now (according to Trump, it will be announced a week from today):

One of Donald Trump's Supreme Court advisers said the process of picking a nominee is "very far along" -- and had words of praise for Colorado judge Neil Gorsuch.

"There is a lot of information in the hopper about who these people are and what their records are like and what qualities they have to serve on the Supreme Court," Leonard Leo told ABC's Jonathan Karl and Rick Klein on the "Powerhouse Politics" podcast.

Although Leo cautioned he would "never assume a front-runner," he spoke highly of Gorsuch, who sits on the bench of the 10th Circuit Court of Appeals in Denver.

"He has very, very distinguished background," Leo said. "He has probably 200 or so published opinions as an appeals clerk judge. They are extremely eloquently written, they're incisive, understandable, clear, opinionated."

“Your client has never coughed once.”

That was Judge Turnoff getting even the defendant to laugh during his suppression hearing involving cough syrup.  From David Ovalle:

For all his Instagram photos of guns, cash and drugs, the self-proclaimed “CEO of the Purple Drank” insisted he wasn’t actually peddling large bottles of prescription cough syrup to Miami’s hip-hop crowd.

He posted all that stuff to enhance his street cred, self-described rap producer Harrison Garcia told a federal judge Monday. And for the likes on social media.

“I had an image to portray, to boost up my followers,” Garcia said. “I guess it’s just the music industry.”

And so Garcia, the accused mastermind of dozens of pharmacy heists across South Florida, claimed he was not a dealer but just a junkie, addicted to drinking the syrup mixed with soda, a brew known as “lean” or “sizzurp.”

The government is accused (again!) of invading the defense camp.

This one deals with the high profile case of Dr. Salomon Melgen, who is represented by Kirk Ogrosky and Matt Menchel. I'll relate the facts as detailed in the motion, which is being heard by Judge Marra:

The government executed a search warrant on Dr. Melgen’s office back in February of 2013. According to the motion, Dr. Melgen then retained a Medicare billing consultant, Ann Rose, to assist them in the representation.  Nevertheless, the government subpoenaed Dr. Melgen for records related to Ann Rose.  

Dr. Melgen’s lawyers informed the government that it had retained Rose and asked the government if it had issued a Grand Jury subpoena directly to her.  The government responded that it had issued a subpoena, but that it was prior to learning that Rose had been retained by Dr. Melgen’s lawyers.  So, Dr. Melgen’s lawyers requested that they be allowed to participate to protect the privilege.  The government did not respond and went forward without allowing Dr. Melgen’s lawyers to participate.  An indictment was returned in April of 2015.

Post indictment, Dr. Melgen learned that the prosecution had issued another Grand Jury subpoena to Ms. Rose a month after his lawyers had informed the government that she was working for them as a consultant on the case.  Ms. Rose had complied with the subpoena and was interviewed by the prosecution.  Dr. Melgen’s attorneys were never told of the interview, any grand jury appearance, or allowed to lodge any objections.  And, the government apparently has not provided any discovery to Dr. Melgen related to what happened.

On December 6, 2016, Dr. Melgen filed a motion in limine seeking discovery from SDFL and an proffer outside the presence of the jury if the government seeks to call their case consultant at trial.  This month, the prosecution responded by telling Judge Marra that they didn’t ask any questions about the consulting engagement and Ms. Rose didn’t reveal any privileged material.  Dr. Melgen’s reply stated the obvious: how would Dr. Melgen or his attorneys ever know what happen or how to object without any discovery? 

If true, how can the government justify issuing a subpoena to an attorney’s consultant with knowledge that the consultant is part of the defense team without even giving the lawyers an opportunity to object?

Here's the motion, response, and the reply. Should be interesting to see how this plays out.