How many innocent people are in federal prison?

Ninth Circuit Judge Alex Kozinski told 60 Minutes that about 1% or over 20,000 innocent people are in federal prison.  "That's a lot of people!" The number is almost definitely higher and yet many federal judges aren't doing as much as Kozinski to check the executive.  And boy do we need a strong judiciary right now with AG Sessions.

We should have our U.S. Attorney nominee this week.  It will be interesting to see if that person is willing to stand up to Trump/Sessions or whether they will go back to the old ways where there is limited discovery, no exhibit lists, etc. etc.

It appears that in the Ft. Lauderdale shooting case that the prosecution is handing over all of the evidence.  From Paula McMahon:

 Prosecutors handling the case against a man accused of fatally shooting five people and wounding six others at Fort Lauderdale’s international airport are still turning over massive amounts of evidence to the defense, they said in court on Friday.
In the coming weeks, they plan to hand over electronic evidence from computers and phones used by Esteban Santiago before the Jan. 6 mass shooting.
Both sides said they are still interviewing numerous potential witnesses who may have information about the shooting and Santiago’s state of mind.
The defense team, from the Federal Public Defender’s office, said Santiago, 27, is continuing to take medication for schizophrenia and schizoaffective disorder. They said his condition appears to have stabilized and he remains legally competent to stand trial.

It also appears that Haitian coup leader Guy Philippe will plead guilty today.

Dave Barry to speak at the District's Bench & Bar conference

It looks like a good conference, with lots of our judges speaking and participating. It's Friday May 12 and there are interesting panels. It should be revealing to hear what the judges have to say about topics like criminal sentencing and legal writing. And Dave Barry is always great.

Melgen trial winding down

Dr. Salomon Melgen's trial is winding down... It's in week 7 and closing arguments are expected next week. From the AP:

The Medicare fraud trial of a prominent Florida eye doctor tied to corruption charges against New Jersey Democratic Sen. Bob Menendez wound toward its conclusion Tuesday with his lawyers portraying him as an innovative physician who didn't give up on his hard-to-treat patients.

Dr. Salomon Melgen is charged with 76 counts for allegedly stealing up to $105 million from Medicare between 2008 and 2013 by performing useless tests and procedures on elderly and disabled patients.

But Dr. Dana Deupree, testifying Tuesday for the defense, disagreed with the prosecution's contention. Going through numerous patient records, he testified that Melgen's treatments may have been the only hope many patients had for saving their sight. The Clearwater, Florida, ophthalmologist said that although some of the tests performed by Melgen and his staff could have been done better and that he might have performed different procedures, Melgen's work was medically sound.

Deupree, who is expected to be the final defense witness, testified that Melgen's attorneys have paid him $135,000 over several years to consult on this case and prior civil lawsuits.

What's next for Trump and the Judiciary?

Justice Gorsuch takes his seat today on the Supreme Court.  But there are still a ton of vacancies around the country at the District and Circuit levels (as well as U.S. Attorney positions).  David Lat at Above the Law takes a look at what's going to be happening:

The main potential stumbling block to progress on lower-court nominees: “blue slips.” As explained by prominent conservative commentator Hugh Hewitt in the Washington Post:

The blue slip is simply the piece of paper that is sent to the senators from the home state of every judicial nominee. If a senator has no objection to the nominee, the blue slip (so named for the color of the paper) is sent back to the Judiciary Committee chairman with an indication of approval. If the senator objects, the paper is either sent back indicating disapproval or not returned at all.

Under current Senate practice, if the blue slip isn’t returned, the nominee doesn’t move forward. Hugh Hewitt isn’t a fan of this de facto veto power enjoyed by home-state senators; he condemns it as “simply and obviously deeply anti-democratic,” and wants Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) to, well, give blue slips the nuclear treatment.

Senator Grassley recently told Roll Call that his Committee remains “committed to” current blue-slip practice, but noted that blue slips aren’t sacrosanct. This strikes me as totally reasonable: blue slips can be honored for now, and used by senators to stop truly unqualified nominees. But if the Democrats abuse blue slips by using them to stop qualified nominees whose ideology they just don’t like — basically what Republicans did to the eminently qualified Merrick Garland, and what Democrats tried to do to the eminently qualified Neil Gorsuch — then it might be time to shred the blue slip.

So who is going to be the next U.S. Attorney

This Politico article by Marc Caputo says the favorites are John Couriel and Jose Felix "Pepi" Diaz, with Jon Sale very much still in the mix.  The article does not mention that Sale has Rudy Guliani's support as well as strong national political support:

Two young Cuban-American Republicans from Miami are leading contenders to be South Florida’s top federal prosecutor in what, sources tell POLITICO, is one of the most important federal jurisdictions to Donald Trump because it covers his home away from the White House, Mar-a-Lago.
Both state Rep. Jose Felix "Pepi" Diaz, 37, and John Couriel, 39, have interviewed with the Justice Department and were recommended, along with longtime attorney Jon Sale, for the Southern District of Florida U.S. Attorney post by Florida Sen. Marco Rubio, said sources familiar with the process. They say Trump, who has allowed too many federal vacancies to remain open, wants to make a choice soon.
Diaz is seen by some as a slight favorite because he has had a personal relationship with the president since 2006 when he was a contestant on Trump’s TV show, “The Apprentice.”
But others point out that Couriel has a strong backer in Arkansas Sen. Tom Cotton, Couriel’s longtime friend and old Harvard classmate who was an ally of U.S. Attorney General Jeff Sessions when he served as Alabama senator. He has Federalist Society and top administration lawyers advocating for him.

Roy Altman also emerged as a leading candidate -- he was interviewed today in DC.

This is a pretty important post for Trump considering how much time he and his colleagues spend down here.  Many have said that he has taken a personal interest in who is going to get the gig. Good luck to all.

Willy Falcon's brother arrested in Orlando after 26 years

Jim Defede broke the story yesterday about one of the original Cocaine Cowboys being caught after 26 years on the lam.  The Willy and Sal saga is one of the best Miami stories around. Defede covered it 26 years ago and has some great pictures and memories in his story.

The story is so good that filmmakers Billy Corben and Alfred Spellman are currently making the next installment of Cocaine Cowboys to tell the Willy Falcon and Sal Magluta story called Los Muchachos.

The Herald has more about the arrest:

“He is the last of the Cocaine Cowboys,” Barry Golden, a spokesman for the U.S. Marshals Service in Miami, said late Wednesday.
Deputy marshals nabbed Gustavo Falcon and his wife, Amelia, at an intersection in Kissimmee after they had taken a 40-mile bike ride.
Gustavo Falcon had obtained fake driver’s licenses for himself, his wife and their two grown children, using Miami addresses, Golden said. The parents went by the name of Luis Reiss and Maria Reiss, he added.
The marshals caught a break in 2013 when Gustavo Falcon got into a car accident in the Orlando area and used his fake ID with the Miami address. That led the marshals to trace him to his South Florida history.
Gustavo Falcon and his family had been renting a Kissimmee home, which the marshals had under surveillance. They had been living in the Orlando area since 1999, which Golden said surprised the marshals because they had believed Gustavo Falcon was hiding in Mexico or Colombia all these years.

I wonder if some of the younger lawyers in the District know about the case and all of the craziness fro the 90s.  Some background from the Herald:

“Willie” Falcon and his partner, Salvador “Sal” Magluta, were recognized as kingpins among the legendary Cocaine Cowboys who turned South Florida into a violent hub of drug trafficking in the 1980s. The pair used their speedboats not only for ocean racing, but also to haul loads of cocaine smuggled from Colombian through the Caribbean to the shores of Miami.

In 1991, a federal indictment charged the two Falcon brothers and Magluta, a Miami High classmate of Willie Falcon, and several others with smuggling 75 tons of cocaine into the United States between 1978 and 1991. The partners, known as “The Boys,” grew up in Miami as part of the Cuban American community.

In 1996, Willie Falcon and Magluta were acquitted of the charges, thought it was later discovered they bought off witnesses and at least one jury member.

Magluta was retried and convicted of drug-related money laundering charges in 2002. He was sentenced to 205 years in prison, which was reduced to 195 years in 2006.

After his partner’s retrial, Willie Falcon struck a plea deal in 2003 with Miami federal prosecutors Pat Sullivan and Michael Davis on similar money laundering charges. Falcon, sentenced to 20 years in prison, is scheduled to be released in June. 

News & Notes

1. Go Heat!

2. Dave Ovalle used an emoji in the lede to this article about the Instagram trial before Judge Seitz, which resulted in a guilty verdict: "Jurors did not ♥ Cuban Harry’s Instagram defense." You'll only see it in the online version as the paper can't print it. Hilarious.

3. “Tom Davis is morally corrupt. He’s a womanizer, a bad husband, and he stole money from a charity he ran.” That was prosecutor Dan Goldman in his closing argument about his star witness, who testified against William Walters in this fascinating insider trading case. From the NYT:

In the end, though, it was the power of the insider trading narrative, which is so appealing to jurors, that helped convict Mr. Walters, known as Billy, on multiple counts of securities and wire fraud. His trades resulted in gains and losses avoided of about $43 million, making it one of the largest prosecutions ever.

Among those whose names came up at trial was Phil Mickelson, a World Golf Hall of Fame member who repaid a little over $1 million to the Securities and Exchange Commission for trading on information he received from Mr. Walters about Dean Foods. Mr. Mickelson was not charged with any wrongdoing, although it came out during trial that he would avoid testifying by asserting his Fifth Amendment privilege against self-incrimination.

Another name that surfaced briefly was Carl C. Icahn, the activist investor who is an unpaid adviser to President Trump. Prosecutors sought permission during the trial to introduce evidence that Mr. Walters traded on information he received about Mr. Icahn’s investments to show a general proclivity to use confidential information, but that never came to pass.

The key witness in the case was Thomas C. Davis, a former chairman of the board of Dean Foods who also worked as a consultant in an activist campaign involving Darden Restaurants. He admitted giving inside information about both companies to Mr. Walters, but this was far from a simple case of an insider making a mistake by tipping a friend.

Mr. Walters helped arrange loans of nearly $1 million to Mr. Davis, who had financial problems and never repaid the full amount he owed. Mr. Davis said that he innocently gave Mr. Walters information at first, but over time became a “virtual conduit” about corporate developments.

Their relationship developed to the point, Mr. Davis testified, that Mr. Walters gave him a prepaid cellphone that was nicknamed the “Bat Phone” over which they communicated in code about companies, such as referring to Dean Foods as the Dallas Cowboys.

4. How Appealing has now been around for 15 years. It was the legal blog that really started it all. Howard Bashman reflects on it here:

Let me begin with the favorable ­developments that I have observed over the past 15 years in the ability to access and cover appellate court rulings and developments. Today it is very easy to visit the websites of each of the U.S. courts of appeals and access freely and in a timely manner the published and unpublished decisions that those courts have issued. Ten of those 12 federal appellate courts provide free access online to oral ­argument ­recordings, and soon that number will increase to 11, with the U.S. Court of Appeals for the Tenth Circuit remaining as the lone holdout. The Ninth Circuit live streams video of its oral arguments on YouTube, and our local federal appellate court, the Third Circuit, has recently begun posting the video of certain oral arguments online.
Fifteen years ago, none of the federal appellate courts was providing oral argument audio or video online. Advances in technology, including improvement in the speed with which one can access large files over the internet and a vast decrease in the cost of electronic storage capacity, have made it feasible to allow for the widespread availability of oral argument audio online. In fact, earlier this year, many thousands listened live online, over the radio, and via cable news channels to the Ninth Circuit's oral argument of Washington state's ­challenge to President Donald Trump's first executive order imposing travel restrictions on those seeking to enter the United States from various countries.
Similarly, now in 2017 we can access online from the U.S. Supreme Court's own website that court's opinions and orders only moments after they are released to the news media physically present at the court's building in Washington, D.C. Transcripts of U.S. Supreme Court oral arguments are available free of charge from that court's website the same day that the arguments occurred. And on Friday afternoons of oral argument weeks, the U.S. Supreme Court posts online the audio files of the cases orally argued that week.

Judges unite!

It's time for the judiciary to stand up because it looks like the executive branch is getting ready to unleash the War on Drugs, Part II.  From the Washington Post:

Sessions has yet to announce specific policy changes, but Cook’s new perch speaks volumes about where the Justice Department is headed.

Law enforcement officials say that Sessions and Cook are preparing a plan to prosecute more drug and gun cases and pursue mandatory minimum sentences. The two men are eager to bring back the national crime strategy of the 1980s and ’90s from the peak of the drug war, an approach that had fallen out of favor in recent years as minority communities grappled with the effects of mass incarceration.

Crime is near historic lows in the United States, but Sessions says that the spike in homicides in several cities, including Chicago, is a harbinger of a “dangerous new trend” in America that requires a tough response.

“Our nation needs to say clearly once again that using drugs is bad,” Sessions said to law enforcement officials in a speech in Richmond last month. “It will destroy your life.”

Advocates of criminal justice reform argue that Sessions and Cook are going in the wrong direction — back to a strategy that tore apart families and sent low-level drug offenders, disproportionately minority citizens, to prison for long sentences.

“They are throwing decades of improved techniques and technologies out the window in favor of a failed approach,” said Kevin Ring, president of Families Against Mandatory Minimums (FAMM).

When the War on Drugs started in the 80s, appellate judges mostly rubber-stamped sentences and convictions, and district courts gave prosecutors free reign. We've seen the opposite trend recently, with judges more likely to go below the guidelines and courts of appeals more likely (slightly) to wade into criminal issues. Some of this, of course, has to do with the changes in the law and the changes in administration. But it's in times like these where the judiciary is sorely needed to fulfill its role as a check on the executive. Let's see what happens.

Meantime, in our District, one fellow asked for the max sentence so he could get medical care in prison. This put Judge Cohn in a tricky situation. From Paula McMahon:

Though the judge and Brown said they did not want to reward Peak by giving him what he wanted, Brown said they were in a bind:

“For him to not get what he wants means he’d get less time in prison and that doesn’t seem right either.”

Judge Cohn said he believed Peak had other options, including Medicaid.

Brown said that would have “required a lot more effort than Mr. Peak is willing to put in.”

The judge made it very clear that he took a dim view of the whole escapade. He paused for several minutes before announcing his compromise decision.

Based on Peak’s long criminal history and his most recent offense, Cohn said he had decided to impose the maximum punishment recommended by sentencing guidelines: Five years and three months in federal prison.

But Peak wasn’t getting everything his way.

Judge Cohn routinely approves requests by prisoners that he recommend a specific prison. But he rejected Peak’s request that he recommend sending him back to the prison medical center in Missouri. The judge said it was up to the Bureau of Prisons to pick an appropriate placement — not Peak.