The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Wednesday, December 31, 2008
Monday, December 29, 2008
Shocking story
Jay Weaver's story this weekend about an FDC prisoner being repeatedly raped by guards is a must-read.
The victim successfully sued the prison officials in federal court, but her case against the Bureau of Prisons was dismissed because of the statute of limitations:
A female inmate cooperating as a government witness was sexually assaulted numerous times by guards at the Federal Detention Center in Miami, but prison officials discredited her reports and did nothing to protect her over a four-year span, a federal judge has found.
Even the judge couldn't help the woman after she sued the U.S. government and four guards in 2007, accusing them of making her strip, touching her genitals and, in the case of one correctional officer, raping her repeatedly.
The victim, identified as ''S.R.'' in court papers, settled with three of the officers but lost her $5 million liability case against the government because of a technicality -- the two-year statute of limitations had run out.
But that didn't stop the judge from finding the U.S. Bureau of Prisons at fault.
''S.R. was sexually abused on numerous occasions by the individual defendants,'' Judge Cecilia Altonaga wrote in a November order. ``The BOP and FDC Miami did have notice of the illegal conduct taking place, and were woefully deficient in addressing it and giving S.R. protection.''
Although she was acting as a cooperating witness, the BOP falsely claimed that she was crazy and her allegations were made up:
According to court records, the Bureau of Prisons wrote off the inmate as ''mentally ill'' in an unsigned memo. A senior U.S. Marshals Service official said her allegations were ''fabricated.'' The Justice Department's Office of Inspector General -- which waited more than a year to question two of the three guards and didn't question the third -- said it couldn't substantiate her allegations in early 2005.
That's shameful, especially because the same government thought she was credible enough to use as a witness. The victim responded to Jay Weaver in a telephone interview:
S.R. said the prison system's dismissive response exacerbated her ordeal in the Federal Detention Center, which houses defendants awaiting trial and convicted prisoners cooperating with prosecutors.
''What they did to me they could never undo. I can't sleep at night. I've gotten to the point I don't trust anybody,'' said S.R., a 36-year-old North Carolina resident who was released from prison in 2006 after 10 years behind bars.
''The system took advantage of me,'' she told The Miami Herald in a phone interview. ``They knew when to pull me to testify. I was a very credible witness. I was competent. But then when I needed them, I was mentally ill. I was incompetent.''
What happened to the guards?
Prison authorities have fired two of the four guards named in S.R.'s lawsuit -- Antonio Echevarria and Damioun Cole -- for reasons unrelated to her allegations.
In 2005, Cole pleaded guilty to sexual abuse of female inmate ''B.P.'' at the Miami detention center and received a one-year sentence. Assistant U.S. Attorney Alejandro Soto said at the plea hearing that the government could have proved that Cole also sexually assaulted S.R., but Soto agreed not to prosecute Cole on that battery charge as part of the plea agreement.
The second accused guard, Echevarria, denied sexually assaulting S.R., according to investigative records. In 2006, he lost his job after pleading guilty to buying a firearm for a felon and was sentenced to five months in prison.
The third accused guard, Isiah W. Pollock III, resigned in 2003. He testified at S.R.'s civil trial that he resigned for family reasons, but prison officials testified he got caught playing cards with male inmates and bringing in contraband for female inmates.
Pollock's lawyer, Michael Pasano, vehemently denied his client ever sexually abused the inmate.
The fourth accused guard, Charles E. Jenkins, still works as a correctional officer at the detention center. He denied sexually assaulting S.R., records show.
After Justice Department investigators said they couldn't substantiate S.R.'s complaints against Echevarria, Pollock and Jenkins, federal prosecutors in Miami declined to file charges against them in 2005.
The victim successfully sued the prison officials in federal court, but her case against the Bureau of Prisons was dismissed because of the statute of limitations:
A female inmate cooperating as a government witness was sexually assaulted numerous times by guards at the Federal Detention Center in Miami, but prison officials discredited her reports and did nothing to protect her over a four-year span, a federal judge has found.
Even the judge couldn't help the woman after she sued the U.S. government and four guards in 2007, accusing them of making her strip, touching her genitals and, in the case of one correctional officer, raping her repeatedly.
The victim, identified as ''S.R.'' in court papers, settled with three of the officers but lost her $5 million liability case against the government because of a technicality -- the two-year statute of limitations had run out.
But that didn't stop the judge from finding the U.S. Bureau of Prisons at fault.
''S.R. was sexually abused on numerous occasions by the individual defendants,'' Judge Cecilia Altonaga wrote in a November order. ``The BOP and FDC Miami did have notice of the illegal conduct taking place, and were woefully deficient in addressing it and giving S.R. protection.''
Although she was acting as a cooperating witness, the BOP falsely claimed that she was crazy and her allegations were made up:
According to court records, the Bureau of Prisons wrote off the inmate as ''mentally ill'' in an unsigned memo. A senior U.S. Marshals Service official said her allegations were ''fabricated.'' The Justice Department's Office of Inspector General -- which waited more than a year to question two of the three guards and didn't question the third -- said it couldn't substantiate her allegations in early 2005.
That's shameful, especially because the same government thought she was credible enough to use as a witness. The victim responded to Jay Weaver in a telephone interview:
S.R. said the prison system's dismissive response exacerbated her ordeal in the Federal Detention Center, which houses defendants awaiting trial and convicted prisoners cooperating with prosecutors.
''What they did to me they could never undo. I can't sleep at night. I've gotten to the point I don't trust anybody,'' said S.R., a 36-year-old North Carolina resident who was released from prison in 2006 after 10 years behind bars.
''The system took advantage of me,'' she told The Miami Herald in a phone interview. ``They knew when to pull me to testify. I was a very credible witness. I was competent. But then when I needed them, I was mentally ill. I was incompetent.''
What happened to the guards?
Prison authorities have fired two of the four guards named in S.R.'s lawsuit -- Antonio Echevarria and Damioun Cole -- for reasons unrelated to her allegations.
In 2005, Cole pleaded guilty to sexual abuse of female inmate ''B.P.'' at the Miami detention center and received a one-year sentence. Assistant U.S. Attorney Alejandro Soto said at the plea hearing that the government could have proved that Cole also sexually assaulted S.R., but Soto agreed not to prosecute Cole on that battery charge as part of the plea agreement.
The second accused guard, Echevarria, denied sexually assaulting S.R., according to investigative records. In 2006, he lost his job after pleading guilty to buying a firearm for a felon and was sentenced to five months in prison.
The third accused guard, Isiah W. Pollock III, resigned in 2003. He testified at S.R.'s civil trial that he resigned for family reasons, but prison officials testified he got caught playing cards with male inmates and bringing in contraband for female inmates.
Pollock's lawyer, Michael Pasano, vehemently denied his client ever sexually abused the inmate.
The fourth accused guard, Charles E. Jenkins, still works as a correctional officer at the detention center. He denied sexually assaulting S.R., records show.
After Justice Department investigators said they couldn't substantiate S.R.'s complaints against Echevarria, Pollock and Jenkins, federal prosecutors in Miami declined to file charges against them in 2005.
Sunday, December 28, 2008
Dolphins
AFC EAST CHAMPS!
Unbelievable.
Plus, Dan Marino keeps his passing yards record by 16 yards as Drew Brees comes up just short.
Unbelievable.
Plus, Dan Marino keeps his passing yards record by 16 yards as Drew Brees comes up just short.
Tuesday, December 23, 2008
Monday, December 22, 2008
Judge Cooke grants Ben Kuehne's motion to dismiss Count 1
FOR THOSE OF YOU LOOKING FOR THE POST ABOUT THE APPELLATE ARGUMENT, CLICK HERE. (The WSJ Blog and others have mistakenly linked to this old post).
Huge news during this holiday week. Big props to Judge Cooke for doing the right thing and for authoring a beautifully written 13-page order. I earlier had covered the oral argument of the motion hearing here. The issue as I explained then was:
The issue on Count I is whether an attorney (Ben Kuehne) can be prosecuted under 1957 for receiving legal fees in light of 1957(f)(1)'s exception for "transaction[s] necessary to preserve a person's right to representation as guaranteed by the Sixth Amendment to the Constitution."
Judge Cooke found that Ben Kuehne could not be prosecuted because the funds were for legitimate legal services:
The Indictment states that the Defendants, including Velez and Saldarriaga conducted or caused to be conducted a wire transfer to the Ochoa criminal defense team immediately after each of the first four Opinion Letters. Indictment, ¶9. The purpose and object of the conspiracy in Count One was for the purpose of paying legal fees. Indictment, ¶38. Only fees for legitimate legal services are alleged in Count One. The language in the exemption does not require that he transactions involve only the client and the attorney. The statute exempts “any transaction.”
Judge Cooke makes clear that her Order does not provide blanket protection for money laundering by lawyers:
The dismissal of Count One of the Indictment does not prevent the Government from properly prosecuting attorneys for money laundering related crimes, nor does it totally negate criminal liability for an individual who may conspire to launder tainted funds to pay legal fees. The government’s concern that application of the § 1957 exemption would hinder or bar prosecution of anyone who had contact with tainted funds that were eventually used to pay criminal defense fees is unfounded. The Indictment, in Counts 2 through 6, also charges Defendants under 18 U.S.C. § 1956 with money laundering concealment conspiracy and
concealment money laundering. There is no exemption contained in § 1956 for transactions ecessary to preserve a person’s right to representation as guaranteed by the Sixth Amendment to the Constitution. None of these Defendants have moved to dismiss Counts 2 through 6. For good reason. Accepting the allegations in the Indictment as true, as required at this juncture, the crimes are appropriately plead and any further determination of the charges should be made on a Rule 29 motion.
This is a huge and well-deserved victory for Ben. Congrats. There are still a number of counts left in the indictment, but the government's case is more in tatters right now. It should seriously consider dismissing the entire indictment at this point and moving on. (And yes, I am biased both because I am friends with Ben and because I am co-counsel for the National Association of Criminal Defense Lawyers who filed a brief in support of this motion).
Huge news during this holiday week. Big props to Judge Cooke for doing the right thing and for authoring a beautifully written 13-page order. I earlier had covered the oral argument of the motion hearing here. The issue as I explained then was:
The issue on Count I is whether an attorney (Ben Kuehne) can be prosecuted under 1957 for receiving legal fees in light of 1957(f)(1)'s exception for "transaction[s] necessary to preserve a person's right to representation as guaranteed by the Sixth Amendment to the Constitution."
Judge Cooke found that Ben Kuehne could not be prosecuted because the funds were for legitimate legal services:
The Indictment states that the Defendants, including Velez and Saldarriaga conducted or caused to be conducted a wire transfer to the Ochoa criminal defense team immediately after each of the first four Opinion Letters. Indictment, ¶9. The purpose and object of the conspiracy in Count One was for the purpose of paying legal fees. Indictment, ¶38. Only fees for legitimate legal services are alleged in Count One. The language in the exemption does not require that he transactions involve only the client and the attorney. The statute exempts “any transaction.”
Judge Cooke makes clear that her Order does not provide blanket protection for money laundering by lawyers:
The dismissal of Count One of the Indictment does not prevent the Government from properly prosecuting attorneys for money laundering related crimes, nor does it totally negate criminal liability for an individual who may conspire to launder tainted funds to pay legal fees. The government’s concern that application of the § 1957 exemption would hinder or bar prosecution of anyone who had contact with tainted funds that were eventually used to pay criminal defense fees is unfounded. The Indictment, in Counts 2 through 6, also charges Defendants under 18 U.S.C. § 1956 with money laundering concealment conspiracy and
concealment money laundering. There is no exemption contained in § 1956 for transactions ecessary to preserve a person’s right to representation as guaranteed by the Sixth Amendment to the Constitution. None of these Defendants have moved to dismiss Counts 2 through 6. For good reason. Accepting the allegations in the Indictment as true, as required at this juncture, the crimes are appropriately plead and any further determination of the charges should be made on a Rule 29 motion.
This is a huge and well-deserved victory for Ben. Congrats. There are still a number of counts left in the indictment, but the government's case is more in tatters right now. It should seriously consider dismissing the entire indictment at this point and moving on. (And yes, I am biased both because I am friends with Ben and because I am co-counsel for the National Association of Criminal Defense Lawyers who filed a brief in support of this motion).
Breaking!
Judge Cooke granted Ben Kuehne's motion to dismiss Count 1. More to follow soon.
Sent via BlackBerry by AT&T
Props to Judge Zloch
The Green Bag (a journal dedicated to "good writing about the law") announced its annual list of outstanding legal writing for the past year. A order from the Southern District was noted as recommended reading. See In re Beck, 526 F.Supp.2d 1291 (S.D. Fla 2007) (written by Judge Zloch). Here is a link to the order and a link to the list of honorees. We wrote about another Judge Zloch order last week that caught our attention.
Thursday, December 18, 2008
Verdict in goggle case
Guilty on 3 conspiracy counts; not guilty on 3 substantive counts. A clear compromise...
I wonder how the prosecutor feels about this verdict against a pro-se woman who speaks English as a third language.... He did get a conviction. But he also lost 3 counts...
What a weird case. She comes to the U.S. voluntarily even though she never would have been extradited. Then she pleads guilty to a credit-time served deal. But the prosecutor asks to correct the sentence and Judge Cohn resentences her to 29 months. Then, she withdraws her plea because she understood that she would be sentenced to time-served. So trial it is.... And of course the jury hangs. She then decides to proceed pro-se, and she keeps the jury out for two days and is found not guilty on 3 counts. How bizarre...
Here is Vanessa Blum's coverage of the case. And Curt Anderson has an article for the AP here: Gholikhan said she would appeal and insisted the she is innocent. "I won't give up. It's OK. God is here," Gholikhan said in a brief courtroom interview. She appeared relieved that the trial was over.
I wonder how the prosecutor feels about this verdict against a pro-se woman who speaks English as a third language.... He did get a conviction. But he also lost 3 counts...
What a weird case. She comes to the U.S. voluntarily even though she never would have been extradited. Then she pleads guilty to a credit-time served deal. But the prosecutor asks to correct the sentence and Judge Cohn resentences her to 29 months. Then, she withdraws her plea because she understood that she would be sentenced to time-served. So trial it is.... And of course the jury hangs. She then decides to proceed pro-se, and she keeps the jury out for two days and is found not guilty on 3 counts. How bizarre...
Here is Vanessa Blum's coverage of the case. And Curt Anderson has an article for the AP here: Gholikhan said she would appeal and insisted the she is innocent. "I won't give up. It's OK. God is here," Gholikhan said in a brief courtroom interview. She appeared relieved that the trial was over.
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