News & Notes

1.  Brendan Dassey (from the Netflix show Making a Murderer)  is trying to get the Supreme Court to hear his case.  The NY Times covers it here.

2.  New Florida Bar President Michelle Suskauer will focus on criminal justice reform and smaller law offices.  She will be great.  DBR coverage here:

Suskauer says the greatest weapon in her arsenal is social media, and she plans to use it with vigor. Followers can expect to see monthly video messages from Suskauer, as well as projects like the Legal Fuel Speaker Series, delivering on-demand, practical information to help the everyday lawyer with their practice.
Like many criminal defense attorneys, Suskauer believes rehabilitation has more societal benefits than punishment. In line with her calls for “common sense” justice reform, the bar will propose new criminal reform legislation this October at the Criminal Justice Summit — the first of its kind.

 3.  The feds have charged the former police chief and two officers in Biscayne Park for framing a teenager with unsolved burglaries.  From the Herald:

Federal prosecutors said Police Chief Raimundo Atesiano and two cops acting under his authority lied about the arrests to wow the small village's elected leaders with their crime-solving savvy.
Atesiano faced a Miami magistrate judge for the first time Monday afternoon after being indicted on charges that he violated the teen's civil rights during the arrests five years ago.
"The existence of this fictitious 100% clearance rate of reported burglaries was used by Atesiano to gain favor with elected officials and concerned citizens," according to an indictment.
Atesiano, 53, now stands accused of encouraging the officers to arrest the teen in June 2013, "knowing that there was no evidence and no lawful basis to support such charges," prosecutors said after unsealing the indictment. The teen is referred to as T.D. in the indictment.
The officers, Charlie Dayoub and Raul Fernandez, collected evidence from four unsolved burglaries, completed four arrest reports and created false narratives to imply the teen had broken into four unoccupied homes that April and May, according to the indictment. At a village council meeting in July 2013, a month after the teen's arrest, Atesiano claimed a perfect close-out rate for burglary cases in the mostly residential community near Miami Shores that is home to about 3,200 people.
Atesanio surrendered Monday to authorities on two charges of conspiring to violate the teen's civil rights and depriving him of those rights. He was granted a $50,000 personal surety bond, co-signed by his wife. Magistrate Judge John J. O'Sullivan set his arraignment for June 25.

Still no Carpenter...

I was waiting to blog this morning, thinking that SCOTUS would issue Carpenter today and I would have a lot to say.  But the watch is still on.  We did get Alito issuing an opinion that would strip voters of their ability to vote.  Sotomayor goes after him:

Our democracy rests on the ability of all individuals, regardless of race, income, or status, to exercise their right to vote. The majority of States have found ways to maintain accurate voter rolls without initiating removal processes based solely on an individual’s failure to vote. See App. to Brief for League of Women Voters of the United States et al. as Amici Curiae 1a–9a; Brief for State of New York et al. as Amici Curiae 22–28. Communities that are disproportionately affected by unnecessarily harsh registration laws should not toler-ate efforts to marginalize their influence in the political process, nor should allies who recognize blatant unfairness stand idly by. Today’s decision forces these communities and their allies to be even more proactive and vigilant in holding their States accountable and working to dismantle the obstacles they face in exercising the fundamental right to vote.

Immigration judges are judges too.

So says Judge Jordan in this opinion dealing with an issue of first impression in the country:

One of Mr. McLean’s arguments presents an issue of first impression for us (and, as far as we can tell, for the country): whether an immigration judge is a “United States judge” within the meaning of § 115(a)(1)(B).

The answer:

Fortunately, there is a statutory definition in § 115(c)(3), which provides (emphasis ours) that “‘United States judge’ means any judicial officer of the United States, and includes a justice of the Supreme Court and a United States magistrate judge.” Because this definition includes as examples both an Article III federal judge (a Supreme Court justice) and an Article I federal judge (a magistrate judge), we know that the terms “United States judge” and “judicial officer of the United States” are not limited to federal judges with life tenure (i.e., Article III judges). So Mr. McLean’s Rule 29 argument—that a “United States judge” must be appointed under Article III—fails.

BREAKING -- Ariana Fajardo Orshan nominated to be the U.S. Attorney for the SDFLA

Here is the statement from the White House:

If confirmed, Judge Ariana Fajardo Orshan will serve as the United States Attorney for the Southern District of Florida. Judge Ariana Fajardo Orshan is currently a Circuit Court Judge of the Eleventh Judicial Circuit of Florida and an adjunct professor at Florida International University College of Law. She was appointed to the bench in 2012 by Governor Rick Scott. Prior to her appointment, Judge Fajardo Orshan was a partner in a boutique law firm where she specialized in litigation. She began her legal career as an Assistant State Attorney in Miami-Dade County, where she prosecuted a wide variety of crimes specializing in narcotics and organized crime. Judge Fajardo Orshan earned her B.S. from Florida International University and her J.D. from Nova Southeastern University Shepard Broad Law Center. Judge Fajardo Orshan is married to Robert D. Orshan and is the proud mother of a teenage son, Lucas.

zzzzzzzzzzzzzz

Seems pretty quiet in the District right now.

The Heritage Foundation's Podcast interviews CA11 Judge Kevin Newsom here.

In state court, the 4th DCA orders a new trial in this infamous murder case, showing how harmless error really should be applied.  From the Sun-Sentinel:

An appeals court gave new life to one of Broward’s most notorious murder cases on Wednesday, ordering a new trial for a man serving a life sentence for ordering the mob-style execution of the founder of Miami Subs in 2001.
Anthony “Big Tony” Moscatiello, 79. was convicted in 2015 — the third of three defendants to face justice for the February 2001 murder of Gus Boulis.
Moscatiello had been hired as a security consultant to protect one of the new owners of the SunCruz Casino boat fleet, which Boulis had been forced to sell in late 2000. But secretly, the hire was intended to telegraph to the underworld that Moscatiello’s new boss, Adam Kidan, was protected by the Gambino crime family, according to trial testimony.

 Here's the opinion on harmless error:

Given the substantial issues of credibility of all of the major witnesses in the case, we cannot say that the State has shown beyond a reasonable doubt that the error in admitting Gurino’s statement was harmless. See Shivers v. State, 900 So. 2d 615, 618 (Fla. 1st DCA 2005) (finding the erroneous admission of an affidavit was not harmless error where the State made it a feature of closing argument). We are mindful that there is plenty of evidence of Moscatiello’s guilt. But our supreme court has consistently stated that overwhelming evidence is not the test, particularly where the erroneously admitted evidence becomes a focal point of the trial. See State v. Lee, 531 So. 2d 133 (Fla. 1988). We are constrained by these rulings.
As to the remaining issues raised, we affirm. But, because we cannot conclude that the error in admitting Gurino’s statement regarding Moscatiello is harmless under DiGuilio, we reverse for a new trial.

SDFLA to get 6 new AUSAs...

...but we're still waiting to see who the Big Kahuna is going to be. It's been strangely quiet on that front.

Here's the list of new AUSA positions. There will be 2 new violent crimes prosecutors, 2 new immigration prosecutors, and 2 new civil enforcement prosecutors. Just what we need...

End of Term opinions (UPDATED)

UPDATED -- we have Cake but no Carpenter.

It’s June, and that means the Supreme Court will be issuing the last opinions of the Term.  There are some biggies, including the cell-site data case in Carpenter.  USA Today says it’s been a good Term so far for privacy, but that will all change if the Court rules for the Government in Carpenter.  Here’s the USA Today intro:

Terrence Byrd was arrested in Pennsylvania four years ago with body armor and 49 bricks of heroin in the trunk of a rental car he wasn't authorized to drive.

Ryan Collins was picked up a year earlier in Virginia with a stolen, orange-and-black motorcycle that twice had sped away from police.

Both men contested their arrests all the way to the Supreme Court, which last month ruled overwhelmingly in their favor for the same reason: Their privacy was breached.

In Byrd's case, the justices ruled 9-0 that his absence from the rental policy did not give police the right to search the car. Collins, they reasoned by an 8-1 margin, was protected because police invaded his girlfriend's private property without a warrant.

And in the coming weeks, the justices will decide whether police can track the past locations of suspects' cellphones for weeks or months in order to connect them to crimes under investigation. From the sound of oral arguments last November, the answer appeared to be no.

“They’re no longer disagreeing on whether there’s a right to privacy," says Marc Rotenberg, president of the Electronic Privacy Information Center, which seeks to protect privacy and civil liberties in the information age. "You're finding a high level of agreement on both wings of the court."

11th Circuit vacates unreasonable sentence and pot-soaked legal papers

This is pretty rare, and it's good to see that the 11th Circuit has taken the step of reversing a crazy-high sentence (100+ years) where the district judge said that he would not look at other similarly situated defendants.  From the opinion:

However, our careful consideration has led us to conclude that his sentence is substantively unreasonable. In imposing what amounted to a life sentence without parole, the District Court responded to Mr. Killen’s argument that his sentence was disparate by saying “sentencing disparity is not a recognized basis for a sentence to be imposed.”10 But to the contrary, § 3553(a) lists “the need to avoid unwarranted sentencing disparities” as a factor to be considered. 18 U.S.C. § 3553(a)(6). Indeed this factor requires particular attention in the context of child pornography offenses, in light of the wide range of conduct that can constitute this type of offense, as well as the breadth of sentences authorized under the child pornography guidelines. See United States v. Kapordelis, 569 F.3d 1291, 1317 (11th Cir. 2009) (collecting cases).
The significance of considering sentencing disparity is highlighted by a comparison of the defendant’s conduct in Kapordelis to that of Mr. Killen. In Kapordelis, we affirmed Mr. Kapordelis’s 35-year sentence, which was a variance above his guideline range, where he possessed more than 500 videos and 2,000 images of child pornography, had a 20-year history of drugging and molesting minors, and had traveled abroad to have sex with minor boys. Id. at 1318–19. Mr. Killen possessed a similar number of child pornography images. However, in contrast to Mr. Kaprodelis, Mr. Killen had no hands-on contact with a minor during the less than 2-year period of his criminal conduct, let alone a 20-year history of drugging and molesting them or traveling for the express purpose of having sex with a child. Also, there are potentially mitigating facts in Mr. Killen’s case, not present in the Kapordelis case. For example, despite the fact that Mr. Killen had reached the age of majority at the time of his offense, he was found to be very immature for his age. The Magistrate Judge made this finding after the suppression hearing, and the District Court adopted it. The District Court heard from both Mr. Killen’s parents and a neighbor during sentencing that Mr. Killen was a “special needs” child. The presentence report detailed his horrific childhood in a Romanian orphanage. And yet Mr. Killen’s sentence is four times that of Mr. Kapordelis.
Thus, we conclude that the District Court did not consider “the need to avoid unwarranted sentencing disparities,” 18 U.S.C. § 3553(a)(6), and we are left with the definite and firm conviction that the court committed a clear error of judgment in weighing the § 3553(a) factors. See United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (“A district court abuses its discretion when it [] fails to afford consideration to relevant factors that were due significant weight.”); Pugh, 515 F.3d at 1194 (“[A] sentence may be unreasonable if it is grounded solely on one factor, relies on impermissible factors, or ignores relevant factors.”). We therefore vacate Mr. Killen’s sentence.

The 11th Circuit also sent the case away from Judge Moore and to a different district judge for resentencing. 

In other news, and in an only in Miami story, the feds nabbed a guy soaking "legal" papers in synthetic marijuana and sending them to inmates.  Jay Weaver covers it here:

The duo's primary trick involved creating legal packets with the names of seven legitimate criminal defense attorneys in South Florida and fabricating logos, cover letters and business envelopes to give them the appearance of professionalism. They created an email address, legalguideservices@gmail.com, and a website, www.helterblackerdorchaklawfirm.com, featuring photos of actual attorneys in their offices.
"Once the packets were created, the documents were impregnated [soaked] with the narcotic and mailed to numerous federal inmates throughout the United States," the affidavit says. "Rodriguez often mailed the packages himself, and Mendez accepted payment and laundered those payments through personal business bank accounts."
During the 2017 investigation, FBI agents said they seized 33 packages sent to prison inmates by Rodriguez, most of which tested positive for the drug at the time the affidavit was filed in December by federal prosecutor Cristina Maxwell. At that time, the rest of the packets were still being tested for the narcotic.
Rodriguez also penetrated the Federal Bureau of Prisons' mailing system by creating packets of pot-soaked funeral announcements and obituary notices.
"These mailings consisted of photographs and obituaries of individuals purporting to be related to the inmate receiving the mail," the affidavit says. "The packages appeared to have been mailed from 'Christ Fellowship Church, Miami, Florida.' ''
FBI agents seized two of these packages, which also tested positive for Adb-Fubinaca.
During the investigation, agents said they also collected video and photographic evidence of Rodriguez at South Florida post offices while he was sending packages marked as "legal mail" with the return addresses of four different criminal defense attorneys.

Read more here: http://www.miamiherald.com/news/local/article212257759.html#storylink=cpy

Read more here: http://www.miamiherald.com/news/local/article212257759.html#storylink=cpy