South Florida Faces in Trump Fraud Trial

By John R. Byrne

If you haven't been living under a rock, you've probably seen the news about the Trump civil fraud trial in New York. The former president didn't need to personally appear but chose to do so, leading to frenetic press coverage. And, even in New York, South Florida is making its presence known. Trump's got quite a few South Florida lawyers representing him, including Chris Kise, Jesus M. Suarez, and Lazaro Fields (a former Judge Moreno law clerk) of Continental PLLC. I think I also saw Ben Kuehne (I'm going solely off the bow tie here)!

The trial is actually a bench trial and things have been tense at times between the Court and Trump/Trump's legal team. This could be a dry run of sorts for the trials to come. 

***Updated with Better Photograph***

Don't snap a pic in federal court

 It happened in the Corollo trial and Judge Rodney Smith is not happy.  The Miami Herald covers it here:

The lawsuit involving Miami Commissioner Joe Carollo was throw into disarray Wednesday morning when the federal judge overseeing the case briefly threatened to send the commissioner’s attorneys to prison over a photo that was taken inside the courtroom. Taking pictures inside federal courtrooms is strictly prohibited and U.S. District Court Judge Rodney Smith was livid when one showed up in a filing from Carollo’s attorneys, Ben Kuehne, Mason Pertnoy and Marc Sarnoff. The picture, which the judge said was included in a sealed document and never shown in court, apparently showed an attorney for the Little Havana businessmen suing Carollo talking to a media member in Smith’s courtroom. Smith did not name them or six other people also shown in the photo, which he said was taken by another attorney, Jesse Stolow, who is part of the defense team and had been attending the proceedings. “This is one of the most egregious reprehensible disrespectful actions you could make against this court. It requires prison time. We will see how it can be avoided,” Smith said. “I’ve never seen something like this in my life. What happens here sets a precedent.”

I still want cameras in federal courts, but I guess that's a long ways away.
 

 

NY Times covers “Testilying”

The NY Times has a nice piece about testilying — police officers lying under oath — in New York courts.  It’s been a problem for a long time across the county.

Officer Nector Martinez took the witness stand in a Bronx courtroom on Oct. 10, 2017, and swore to tell the truth, the whole truth, and nothing but the truth, so help him God.

There had been a shooting, Officer Martinez testified, and he wanted to search a nearby apartment for evidence. A woman stood in the doorway, carrying a laundry bag. Officer Martinez said she set the bag down “in the middle of the doorway” — directly in his path. “I picked it up to move it out of the way so we could get in.”

The laundry bag felt heavy. When he put it down, he said, he heard a “clunk, a thud.”

What might be inside?

Officer Martinez tapped the bag with his foot and felt something hard, he testified. He opened the bag, leading to the discovery of a Ruger 9-millimeter handgun and the arrest of the woman.

But a hallway surveillance camera captured the true story: There’s no laundry bag or gun in sight as Officer Martinez and other investigators question the woman in the doorway and then stride into the apartment. Inside, they did find a gun, but little to link it to the woman, Kimberly Thomas. Still, had the camera not captured the hallway scene, Officer Martinez’s testimony might well have sent her to prison.

When Ms. Thomas’s lawyer sought to play the video in court, prosecutors in the Bronx dropped the case. Then the court sealed the case file, hiding from view a problem so old and persistent that the criminal justice system sometimes responds with little more than a shrug: false testimony by the police.

Here’s an old post from this blog about the problem:

Professor Dershowitz has been writing about lying police officers for a long time, and here are some of his rules of the "justice game" from The Best Defense: 

IV. ALMOST ALL POLICE LIE ABOUT WHETHER THEY VIOLATED THE CONSTITUTION IN ORDER TO CONVICT GUILTY DFEENDANTS. 

V. ALL PROSECUTORS, JUDGES AND DEFENSE ATTORNEYS ARE AWARE OF RULE IV.  

Those are interesting concepts, but the following 4 statements will encourage more discussion: 

VI. MANY PROSECUTORS IMPLICITLY ENCOURAGE POLICE TO LIE ABOUT WHETHER THEY VIOLATED THE CONSTITUTION IN ORDER TO CONVICT GUILTY DEFENDANTS. 

VII. ALL JUDGES ARE AWARE OF RULE VI. 

VIII. MOST TRIAL JUDGES PRETEND TO BELIEVE POLICE OFFICERS WHO THEY KNOW ARE LYING 

IX. ALL APPELLATE JUDGES ARE AWARE OF RULE VIII, YET MANY PRETEND TO BELIEVE THE TRIAL JUDGES WHO PRETEND TO BELIEVE THE POLICE OFFICERS.

So what is to be done about lying police officers?  We need to change rules 8 and 9.  Judges need to start calling them on it.  And of course, lying officers aren't the only problem with the criminal justice system that people have been writing about for years. 
There has been a lot said about prosecutors overcharging, the trial tax, and the Sentencing Guidelines just to name a few of the problems.
What can be done?  Article III judges, with life-time appointments, need to start speaking up and checking the executive branch with more vigor.  
--Dismiss more cases.  (See, e.g., Judge Scola in the "Pakistan terror" case by granting a judgment of acquittal; Judge Cooke in Ben Kuehne's case).    
--Grant more and longer variances. Judges are starting to grant more and more variances, but they are of the 6-12 month variety.  There are too many people in jail for too long because of the Sentencing Guidelines.  A federal conviction ruins people's lives.  Not every case necessitates lengthy sentences and many don't require jail at all.  The Guidelines are made up numbers without any real data to back them up.  I trust judges more than I do the grid.  
--Don't punish defendants for going to trial.  There are too few trials, mostly because the consequences of going to trial versus pleading are way too severe.  Going to trial doesn't mean that every enhancement applies or that variances are off the table.       
--Grant some pretrial motions and require prosecutors to turn over evidence.  I know that judges hate dealing with pretrial motions, especially those dealing with discovery.  But instead of denying them all, it's time to hold prosecutors' feet to the fire a little more.  The feeling out there right now is that each prosecutor decides for him or herself what to turn over and when and that judges aren't going to get involved.  It's also OK to throw out counts (yes, prosecutors overcharge) or to sever a case or to give teeth to any of the other Rules of Criminal Procedure.

“He tried to nail Ben to the wall."

That's Henry Bell discussing Robert Feitel in this Herald article about lawyers and money laundering by Michael Sallah.  More:

Robert Feitel, a veteran lawyer with a long history of prosecutions, charged into court as the Justice Department’s point man to take on a prominent Miami lawyer in a case that came to symbolize the rights of attorneys to accept fees from international drug traffickers.
Feitel accused lawyer Ben Kuehne of fabricating documents to cover up dollars for the Medellin Cartel. He accused him of orchestrating the payments through overseas wires. He even said Kuehne knew much of the money came from the sale of drugs.
Now, years after the case ended, Feitel is cast in a strikingly similar position as the man he once prosecuted.
The Miami Herald found that more than $100,000 in drug money belonging to criminal organizations was sent to Feitel’s law firm by South Florida undercover officers posing as money launderers to infiltrate drug groups.
The undercover police picked up the cash in New York and sent the money to Feitel — now a defense attorney who specializes in drug cases — at the behest of criminal organizations in a series of payments never questioned by the former prosecutor, records and interviews show.
Kuehne, whose case was ultimately dropped by the government in 2009, said he was surprised to learn about payments to the man who once prosecuted him.
“The question is: Why was he getting the money?” said Kuehne, a former member of the Florida Bar’s board of governors who represented Vice President Al Gore in the 2000 presidential recount. “Is he going to get the same knock on the door?”
Contacted by phone, Feitel said he was unaware of the money sent to his office in northwest Washington, where he works mostly as a solo practitioner, adding he was surprised by The Herald’s call. “We’re usually pretty careful” about accepting questionable fees, he said.

Oh... it's the usually we're pretty careful defense! Henry and others were having none of it:

Several defense lawyers from Miami said they were riled that the onetime senior prosecutor was never questioned by law enforcement agents about the money sent to his account — funds picked up off the streets of New York from drug suspects.

“In his role at the DOJ, he prosecuted Ben for the same thing;” Bell said.

In an earlier interview, Feitel said money sent from a U.S. bank like the one used by the task force is more difficult to screen than funds from overseas exchange houses. “How was I supposed to know” the money is tainted? said Feitel. “That would have been difficult.”

One former federal prosecutor said money wired to a law firm from someone who is not a client should have raised basic questions. “What did he think the money was for?” said Joseph DeMaria, a Miami attorney who once served on the DOJ’s Organized Crime and Racketeering Section. “He’s got to be saying to himself: ‘Why am I getting this money? Especially someone who was a former prosecutor who’s even more heightened on these kinds of issues. He spent his career putting people in jail for money laundering.”

I'm baaaaaaacck

Big thanks to the the guest bloggers and posts while I was away.  Entertaining, informative and a little different than what you usually get from me, so that's really great.

Lots of complaints about prisons in the press, but not much action.  Here's the L.A. Times on the Supermax, and the Washington Post on solitary confinement. When will the Supremes take up the issue?

Former Broward Teachers Union President Pat Santeramo was indicted.  Paula McMahon is covering the story and Ben Kuehne is defending.

The 11th Circuit finally decided to dump one of the most ridiculous procedural rules ever. Now if the Supreme Court decides an issue after you've filed your initial brief, you can still raise the issue in a supplemental filing. 

Looks like the 4th Circuit in Graham created a Circuit split with the en banc 11th in Quartavious Davis on the cell-site data issue.  Hopefully the Supreme Court will take it (I'm biased as I am counsel of record for Davis).  My co-counsel, the ACLU, covers the story here.

"I’m going to treat her like somebody who is what she is — a common criminal.

That was Judge Scola after "North Miami Mayor Lucie Tondreau was found guilty by a federal jury Tuesday of using her 'celebrity' as a Haitian-American community leader to lure 'straw buyers' into an $11 million mortgage fraud scheme during the past real estate boom." (Via the Miami Herald).  More:

The 12-person jury, which deliberated for only two hours, convicted Tondreau of conspiracy and wire-fraud charges after a two-week trial. Tondreau, who was elected as North Miami’s first Haitian-American female mayor in 2013, now faces up to 30 years in prison at her sentencing March 20.
U.S. District Judge Robert Scola refused to grant a request by her defense attorney, Ben Kuehne, to remain free on bond while she awaited sentencing. Scola said she used her “celebrity” and “hoodwinked” buyers into allowing their names to be placed on bogus loan applications in exchange for kickbacks in a “massive” fraud against various banks.
The judge, noting the fraud was committed before Tondreau was elected as mayor, said she was no different than any other convicted defendant and ordered her to surrender to U.S. Marshals in the courtroom while about 50 supporters watched in silence.
“I’m going to treat her like somebody who is what she is — a common criminal,” Scola said.
Kuehne, who represented Tondreau along with attorney Michael Davis, said the jury’s verdict “is as disappointing as it is unexpected.”
Tondreau, who was suspended from office after her arrest in May, stood trial in Miami federal court since early December on charges of conspiring to commit wire fraud with her ex-business partner and fiancé, Karl Oreste, and two other defendants, who are fugitives. She was accused of plotting with Oreste to bamboozle banks into loaning them a total of $11million between 2005 and 2008.
The prosecution decided not to call the trial’s potential star witness, Oreste, 57, who pleaded guilty in July and was expected to detail the 20 crooked real estate loan deals that he and Tondreau were accused of putting together.
Prosecutors Lois Foster-Steers and Gera Peoples did not say why. But they may have had concerns about Oreste’s potential vulnerability on cross-examination. Tondreau’s defense team had planned to portray him as the consummate con man who duped her into playing an unwitting supporting role to fleece the banks.

House Pizzi vs. House Slaton (UPDATED)

In addition to the mass chaos this morning because it's the first day of school, there is going to be quite a show over at Miami Lakes City Hall if Michael Pizzi follows through with his promise to appear as Mayor this morning.  Over the weekend, Ben Kuehne sent the following letter on behalf of former-now current (?) mayor Michael Pizzi:

Alex Rey, Town Manager

Town of Miami Lakes

6601 Main Street

Miami Lakes, FL 33014

reya@miamilakes-fl.gov

Marjorie Tejeda, Town Clerk

Town of Miami Lakes

6601 Main Street

Miami Lakes, FL 33014

tejedam@miamilakes-fl.gov

                             Re:   Mayor Michael Pizzi

                                      Access to Town Hall and Mayoral Office

Dear Manager Rey and Clerk Tejeda:

          In strict accordance with Florida law following Mayor Pizzi’s acquittal on all charges in United States v. Michael Pizzi, U.S.D.C. Case No. 13-Cr-20815-Cooke (S.D. Fla.), Mayor Pizzi has resumed his constitutional duties and responsibilities as the duly elected Mayor of the Town of Miami Lakes to serve the 4-year term to which he was elected in November 2012. His suspension has been automatically lifted as a matter of law as a result of his acquittal.

          Mayor Pizzi appreciates The Town’s assistance in having restored his  mayoral office to him on the evening of August 14, 2014, when he re-entered Town Hall as Mayor immediately following his acquittal. At that time, you also returned his official Town photograph as Mayor to the Town Hall wall, and removed the personal effects of temporary Town Mayor Slaton from Mayor Pizzi’s office. That same evening, Mayor Pizzi was welcomed to Town Hall to resume his official duties and held a series of constituent meetings as Town Mayor.

          I now understand there is some confusion arising from the illegal efforts of the temporary Town Mayor to attempt to exercise official power beyond the temporary term to which he was elected. That is precisely why Mayor Pizzi will be continuing to utilize his mayoral office space effective on Monday, August 18, 2014, at 9 a.m. He will also need the services of an Administrative Assistant, and will require re-issuance of appropriate access credentials.

          Mayor Pizzi also intends to call a Special Council Meeting for the purpose of providing a community update to the citizens and residents of the Town. Please provide suitable dates consistent with public  notification requirements. Thank you for your assistance.

                                                                   Respectfully submitted,

                                                                   S/ Benedict P. Kuehne

                                                                   BENEDICT P. KUEHNE

The Herald covers the City's response:

The town’s response: If he goes into any unauthorized areas including the mayor’s office “he will be deemed a trespasser and subject to arrest.”
“The town of Miami Lakes will not tolerate a breach of the peace or disorderly conduct by Mr. Pizzi or anyone else,” Miami Lakes town attorney Raul Gastesi wrote on Sunday in response to a letter by Pizzi’s attorney Ben Kuehne, sent the day before, about Pizzi’s intentions of returning to office on Monday.
***
Slaton said on Sunday that he hoped Pizzi would change is mind about showing up at town hall.
“I was elected to serve until 2016 and that is exactly what I am going to do,” he said.

Well, who are you rooting for -- House Pizzi or House Slaton?

UPDATE == Chuck Rabin reports on Twitter that Pizzi did indeed show up and met with numerous people behind closed doors.  He wasn't arrested but was told that he wasn't the mayor.  Pizzi said he would instruct his lawyers to take legal action. 

***

 ***
In response, Gastesi said that “there is no confusion.”
“The Mayor of Miami Lakes is Wayne Slaton,” he wrote.
Pizzi called Gastesi’s response “insulting and ridiculous.”
“Mr. Gastesi has never practiced municipal law in his entire life,” he said. “He was appointed by Slaton because of his friendship and political loyalty and for no other reason. Instead of taking an objective position and doing research, Mr. Gastesi is acting as a personal lawyer for Mr. Slaton and leading the city down the wrong path.”
Pizzi said it is his responsibility to Miami Lakes residents for him to go back to work.
“I have no choice,” Pizzi said. “If I was to do anything else I'd be derelict in my duties.”

So are you rooting for House Pizzi or House Slaton?

                                        

Pizzi opening statements

The Herald covers them here:

In opening statements, Dwyer argued that Pizzi pocketed bribes from a now-convicted Miami-Dade County lobbyist and the undercover agents posing as sleazy businessmen. By dangling bribes in front of him, they talked the mayor into supporting the federal grant proposals purportedly to spur job growth in his community and the neighboring town of Medley.
Dwyer said Pizzi intentionally grabbed the money and campaign checks to line his pockets — a total of $6,750 — knowing that Miami Lakes and Medley would not be benefiting from any federal grants for a jobs feasbility study.
“This case is about a powerful politician who sold his power, who sold his position,” Dwyer told the jurors.
In Pizzi’s defense, Shohat said the federal case was “horribly flawed” on several levels, including the sting operation’s premise, the FBI’s investigative techniques and the prosecution’s get-rich allegation.
“He didn’t sell his office,” argued Shohat, who is handling the defense with three other lawyers, Ben Kuehne, Michael Davis and Ralf Rodriguez. “He didn’t risk his entire career for $6,750.”

Judge Cooke has all the fun!

Yesterday she had the sanction hearing dealing with the Miccosukee lawyer who sued with no basis.  From the DBR:

Roman took the stand Monday and Tuesday in an effort to prove he filed the lawsuit in good faith. Among his evidence was a brochure advertising Lewis' open house that showcased his personal car collection.
Roman said the brochure supported his lawsuit because it showed sudden "unexplained wealth."
U.S. District Judge Marcia Cooke in Miami, in one of many moments of incredulity with Roman, asked late Monday: "You used this document? You used a real estate brochure?"
The sanctions hearing was scheduled for one day but stretched into Tuesday. Cooke refused to allow the tribe to call a money laundering expert, saying he had no bearing on Roman's justification for filing the lawsuit.
The Gunster law firm, representing the tribe, repeatedly delayed Roman's cross-examination by asking Cooke to take witnesses out of order. Gunster shareholder William Hill then told Cooke he was about to wrap up the direct questioning of Roman only to change course and say it would stretch into another day.
"This is taking too long," Cooke complained at one point Tuesday.

Oh come on Judge, who would want this to end?  Paul Calli certainly doesn't... he's knocking it out of the park:

Attorney Paul Calli of Carlton Fields Jorden Burt, representing Lewis Tein, initially objected to the open house brochure but changed his mind, saying the home was purchased in 2006 when Lewis Tein billed the tribe $40,000.
"Let it all in," he told Cooke.
In the last 45 minutes of the day, Calli was finally able to cross Roman. He asked Roman if he could prove if “one transaction or one dollar” went from Lewis Tein to Billy Cypress as a kickback. Roman said he did not have any such evidence and that he conjectured that fraud occurred based on the amount the firm charged the tribe. Roman also confirmed a tribal official’s deposition that he is being paid $250,000 a month to represent the tribe.
Cooke questioned Roman's long soliloquies Monday in justifying the lawsuit. "We are so far downstream as to what can possibly be credible," she said.

Meantime, she has a bond revocation hearing today for former Mayor Pizzi. The government's claim seems really weak. From the Herald:

Prosecutors have moved to revoke Pizzi's bond and detain him, claiming he violated the terms when he arranged to have a colleague send two email blasts about “corrupt” activity by other Miami Lakes officials to thousands of his supporters. Among the recipients: the town manager and other potential trial witnesses the former mayor was ordered not to contact by a federal magistrate judge.
Prosecutors made their move against Pizzi after they said he lied to the court’s probation office about his behind-the-scene’s role in sending the emails in April. Pizzi’s defense attorneys have called the prosecution’s actions “a shocking exercise of government overreaching” while trampling on his right to free speech. They have sought to dismiss his bribery indictment.
U.S. District Judge Marcia Cooke has scheduled a hearing Wednesday to decide Pizzi's pre-trial fate. His trial starts July 8 with jury selection.
Pizzi’s first email, sent in early April, included references to Miami Lakes town manager Alex Rey in a “purported” press release made to look like it was issued by the Miami-Dade County Commission on Ethics and Public Trust, according to federal prosecutors. “The press release was misleading in that it improperly alleged that A.R. and his staff were engaged in corruption and awarding contracts illegally,” stated the prosecution’s motion to revoke Pizzi’s bond.
Rey, who received the email, is on the no-contact list because he is listed as a potential witness at Pizzi’s upcoming trial.
Pizzi said federal prosecutors and FBI agents have completely distorted his actions by implying he fabricated the press release cited in the email blasts to intimidate potential witnesses. He doesn’t dispute his role in sending them with the help of a public relations assistant.
His legal team called the prosecution’s strategy to revoke his $100,000 bond an “intrusion into Mr. Pizzi’s privacy and First Amendment rights,” defense attorneys Ed Shohat and Ben Kuehne wrote in a response to the government’s motion.
“Today the government seeks to punish Pizzi, who has scrupulously avoided any real contact with anyone on the no-contact list, for exercising his First Amendment right to expose corruption in the town of Miami Lakes,” they wrote Friday.

Catching up

It's nice to be back after an adventure in Broward.  I'm trying to catch up on what's going on.  Email me if you have anything... 

1.  Looks like Mike Pizzi is fighting and going to trial, while his co-defendants cut deals.  Will be an interesting trial:

On Friday, the two-term mayor, surrounded by an entourage of defense lawyers and political supporters, pleaded not guilty to an indictment charging him with seeking kickbacks in exchange for sponsoring federal grant applications that prosecutors say were meant to enrich him.
Even the magistrate judge, John J. O’Sullivan, took notice: “A lot of people here for one person.”
Pizzi, indicted Thursday by a federal grand jury in Miami, is charged with conspiring to commit extortion and four counts of attempted bribery. If convicted, each count carries up to 20 years in prison.
Outside the Miami federal courthouse, Pizzi and his defense team, Ed Shohat, Ben Kuehne and Ralf Rodriguez, declared the former mayor would go to trial instead of cutting a plea deal — as another local mayor and two lobbyists accused of the same crime are expected to do in the coming weeks.
“I am innocent, I am not guilty,” Pizzi said repeatedly, with his lawyers and about 25 supporters standing with him. “And I will be exonerated and found not guilty at trial.”

2.  If it wasn't bad enough for the Dolphins today after their collapse, their star center was served with a subpoena leaving the stadium:

 Miami Dolphins center Mike Pouncey was served a subpoena shortly after Sunday's 27-17 loss to the New England Patriots.
The Massachusetts State Police issued Pouncey the subpoena as he exited the team's locker room at Gillette Stadium.
According to Sports Illustrated, the subpeona is related to an investigation into former Patriots tight end Aaron Hernandez, who is a close friend and college roommate of Pouncey from their days together as teammates at the University of Florida.

 3. One of the world's top sellers of stolen credit card data, Egor Shevelev, who has the online handle Eskalibur, was extradited to South Florida after he being convicted in New York and sentenced to serve a lot of time.  The Sun-Sentinel has the details.

4.  The feds are now using warrantless wiretaps in criminal cases.  Is anyone surprised?

5.  Justice Sonia Sotomayor spoke recently at Arcadia.  There aren't Scalia quips, but still some good stuff:

An important piece of who Sotomayor is seems to be rooted in her days at Princeton. She shared about feeling alienated and her college roommate describing her as Alice in Wonderland. The new culture she had found herself in was a world of prep schools and where her peers enjoyed vacation getaways during Christmas and spring breaks. She admitted that everything scared her about college and that it took her awhile to discover her sense of value in an Ivy League setting. “It took me awhile to understand that even though my experiences were different, they were not unimportant and they had their own value,” she said. “That is probably one of the hardest things … you will likely experience in college. Finding a way to stay true to your sense of value … and having to look at others and say ‘OK, you may be academically smarter, but I bring a new perspective and a different way of looking at the world.’ Keeping that alive in all of us is probably the hardest challenge.”

“I don’t care what you do. Rig the f------- brakes on his car. F------ take him out. I don’t want to see him anymore.”

According to a Herald report, that is former Miami Lakes Mayor Mike Pizzi discussing his political rival Richard Pulido.

Sounds like a bunch of stupid talk:

In a series of meetings over the next month, however, Pizzi never expanded upon the threats toward Pulido. He soon told McGrath, a retired Hialeah cop who at the time chaired the town’s planning and zoning board, “Forget about him; he will self-destruct himself.” Not long after, police suspended the investigation without charging anybody with anything, officially closing it earlier this year.Pizzi, in a statement on Friday, said he categorically denied “intending personal or political harm to Richard Pulido or anyone else,” saying he had a bit too much to drink that evening and was goaded by McGrath into “meaningless, over the top, silly, ridiculous drinking talk.” He amended his statement Saturday, saying he was actually “humoring” McGrath, a man who he said engaged in “Oliver Stone conspiracy lunacies.”Pizzi’s attorneys also dismissed the probe as a non-story that they say never should have been made public, noting that detectives quickly found there wasn’t evidence to support allegations that the now-suspended Miami Lakes mayor would harm Pulido.They called McGrath an unreliable informant who targeted Pizzi at Shula’s after an evening of drinking — though McGrath told detectives that Pizzi had only two beers. They also argued that McGrath’s recording doesn’t show sinister intent but simply a passionate, drunken politician venting about an opponent.“This was never a real ‘hit’ investigation,” said attorney Ben Kuehne, who is representing Pizzi with attorney Ed Shohat. “And therein lies the problem with the story,” said Shohat.

Read more here: http://www.miamiherald.com/2013/10/19/3700007/suspended-miami-lakes-mayor-pizzi.html#morer#storylink=cpy

Two local mayors charged... and arrested

Lots of local media coverage about the new case brought today against Mayors Michael Pizzi and Manuel Marono, so no need to rehash it on the blog.

But I've always wondered why there needs to be arrests in cases like this. Why not have them surrender and save the very overspent system the expense of sending the calavry to bring them in.

Of course the reason is to show the public the images/video of the arrests...

Is it worth it, readers?

UPDATE -- here are the complaints for Pizzi (represented by Ben Kuehne) and for Marono (represented by Kendall Coffey).

A call to the judiciary

There was an article in the NY Times this weekend about why cops lie.  It's a nice piece, but nothing really new.  Professor Dershowitz has been writing about lying police officers for a long time, and here are some of his rules of the "justice game" from The Best Defense:

IV. ALMOST ALL POLICE LIE ABOUT WHETHER THEY VIOLATED THE CONSTITUTION IN ORDER TO CONVICT GUILTY DFEENDANTS.

V. ALL PROSECUTORS, JUDGES AND DEFENSE ATTORNEYS ARE AWARE OF RULE IV. 

Those are interesting concepts, but the following 4 statements will encourage more discussion:

VI. MANY PROSECUTORS IMPLICITLY ENCOURAGE POLICE TO LIE ABOUT WHETHER THEY VIOLATED THE CONSTITUTION IN ORDER TO CONVICT GUILTY DEFENDANTS.

VII. ALL JUDGES ARE AWARE OF RULE VI.

VIII. MOST TRIAL JUDGES PRETEND TO BELIEVE POLICE OFFICERS WHO THEY KNOW ARE LYING

IX. ALL APPELLATE JUDGES ARE AWARE OF RULE VIII, YET MANY PRETEND TO BELIEVE THE TRIAL JUDGES WHO PRETEND TO BELIEVE THE POLICE OFFICERS.

So what is to be done about lying police officers?  We need to change rules 8 and 9.  Judges need to start calling them on it.  And of course, lying officers aren't the only problem with the criminal justice system that people have been writing about for years. 

There has been a lot said about prosecutors overcharging, the trial tax, and the Sentencing Guidelines just to name a few of the problems.

What can be done?  Article III judges, with life-time appointments, need to start speaking up and checking the executive branch with more vigor. 

--Dismiss more cases.  (See, e.g., Judge Scola in the "Pakistan terror" case by granting a judgment of acquittal; Judge Cooke in Ben Kuehne's case).   

--Grant more and longer variances. Judges are starting to grant more and more variances, but they are of the 6-12 month variety.  There are too many people in jail for too long because of the Sentencing Guidelines.  A federal conviction ruins people's lives.  Not every case necessitates lengthy sentences and many don't require jail at all.  The Guidelines are made up numbers without any real data to back them up.  I trust judges more than I do the grid. 

--Don't punish defendants for going to trial.  There are too few trials, mostly because the consequences of going to trial versus pleading are way too severe.  Going to trial doesn't mean that every enhancement applies or that variances are off the table.      

--Grant some pretrial motions and require prosecutors to turn over evidence.  I know that judges hate dealing with pretrial motions, especially those dealing with discovery.  But instead of denying them all, it's time to hold prosecutors' feet to the fire a little more.  The feeling out there right now is that each prosecutor decides for him or herself what to turn over and when and that judges aren't going to get involved.  It's also OK to throw out counts (yes, prosecutors overcharge) or to sever a case or to give teeth to any of the other Rules of Criminal Procedure.

--Grant motions to suppress when the officer is lying.  This goes to the NY Times article and Dershowitz's rules.

A big part of all of this goes to the court of appeals.  The 11th Circuit rules for the government even more than the district court does.  This has been the culture for a long time.  (When is the last time the court reversed a sentence within or above the guidelines?) But there is new blood on the 11th.  And three new open spots (two now, and one more this summer) will really change the court.

See what happens when there is a blackout during the Super Bowl.  The game is now back on, so I'll get off the soapbox. 

"I bear no animosity toward the prosecutors, even though they pursued false charges based on fabricated evidence."

Ben Kuehne is the only person I know who could say such a thing and actually mean it.  Ben is quoted in Jay Weaver's article about John Sellers, who prosecuted Ben and who also prosecuted banker Sergio Masvidal. 

Masvidal was represented by Joe DeMaria, who was able to get his client's name cleared.  Although OPR concluded that his conduct was "reckless," the Justice Department let him keep his job:

Five years after unsuccessfully targeting two prominent Miami figures — one a banker, the other a lawyer — in separate cases, a Justice Department prosecutor faces a July disciplinary trial by Maryland Bar regulators.


John W. Sellers left the Justice Department in 2010 amid an internal probe concluding that he committed “reckless” misconduct in a money-laundering case against Miami-based American Express Bank International, which was headed by banker Sergio Masvidal.
***
Masvidal’s Miami lawyer, Joseph DeMaria, said the Justice Department should have fired Sellers after concluding that he had committed reckless misconduct, according to the agency’s internal probe in 2010.

Sellers now works as a Treasury Department attorney on the federal bailout program for the banking industry.

“The Justice Department let him sneak out the back door to the Treasury Department so he could keep his same salary, benefits and pension,” DeMaria said. “And now he’s working as an attorney on the federal bailout. How ridiculous is that?”

Indeed. 

The article ends with this quote from Ben:  “Lawyers reap what they sow. He will need to answer for his own conduct.”   But prosecutors who engage in misconduct rarely have to answer for their conduct.  That's part of the problem.  OPR rarely does anything, and the few times it does do something, it's a slap on the wrist.  See, e.g., Ted Stevens' prosecutors. 


In this case, the Maryland Bar has initiated a case against Sellers, so it will be interesting to see what happens. (Here's the Maryland complaint).  The problem is that even when the Bar tries to disclipline prosecutors, DOJ claims that they are immune even from Bar rules, and of course, civil remedies are not available.

Tuesday notes

1. Big decision from the 11th Circuit yesterday in the sports agent case -- United States v. Gus Dominguez. Judge Cox wrote the decision invalidating some of the convictions and Judge Tjoflat dissented because he would have invalidated all counts. Nice win for Ben Kuehne. The blog's prior coverage of this Judge Moore case is here.

2. Brian Tannebaum has a new gig at Above the Law. Very exciting.

3. I hate mosquitoes too, but should we really be genetically engineering them? Doesn't this ultimately lead to the apocalypse?

4. Justice Stevens seems to be everywhere.

Trustee Marika Tolz charged with $16 million fraud

The South Florida Business Journal has the story about 64-year-old Hollywood bankruptcy trustee Marika Tolz here. She is charged with misappropriating $16 million in court funds and pocketing $2.4 million of it for herself.

The case is set for first appearance before Judge Garber today at 1:30. Luis Perez is prosecuting and Ben Kuehne is defending. The case is assigned to Judge Lenard. Tolz is charged by way of information so it is evident that a deal already has been struck. In fact the SFBJ is reporting that Ben Kuehne says that Tolz “acknowledges her errors and fully anticipates that all funds will be fully reimburse or restitution made.” More:

Kuehne confirmed that Tolz intends to plead guilty.

“She will be accepting full responsibility for her conduct,” he said.

I asked Kuehne if he could say why Tolz started down the path of corruption. The charges against her suggest she used official funds for person expenses beginning in 2003, but the government’s information in the case doesn’t accuse her of living a “lavish lifestyle,” like other recent fraud cases in South Florida.

“At this point offering any factual description would only be viewed as trying to explain away what happened,” Kuehne said. “She is not attempting to offer excuses.”

Friday

Finally, some good cool weather.

Justice Stevens gave this cool speech -- and he uses trilogies too:

Today I plan to say a few words about memorials, mosques, and monuments. Like Lieutenant Ichikawa, who is being honored today, I served in the Pacific theater during World War II. The Empire of Japan was our principle enemy in that theatre. Lieutenant Ichikawa, like literally thousands of other patriotic Japanese Americans including residents of Hawai'i as well as residents of the Mainland -made a magnificent contribution to our war effort there.

In other news:
Gary Kravitz, Murray Greenberg, and Nathaniel Persily of Columbia Law School, along with the St. Thomas Law Review have put together a symposium next weekend (November 12-13, 2010) entitled Bush v. Gore: A DecadeLater. Panelists inclue Greenberg, Persily, Ben Ginsberg, Kendall Coffey, Ben Kuehne, Joe Klock, Jim Bopp, Justice Fred Lewis, Judge Nikki Clark, Jeff Erlich, Paul Hancock, Kim Tucker and an academic panel including Jim Gibson, Nelson Lund and Edward Foley.

This event will be held at St. Thomas and admission is free. The symposium has been approved for a maximum of 7 CLE credits.

SCHEDULE OF EVENTS:

Friday, November 12, 2010

Welcoming Remarks 4:00-4:15 p.m.

The View from the Litigants 4:15-5:45 p.m.

Saturday, November 13, 2010

Continental Breakfast 8:30-9:00 a.m.

The View from the Administrators 9:00-10:30 a.m.

The View from the Bench 10:30 a.m.-12:00 p.m.

Luncheon Panel-
The View from Academia 12:15-2:00 p.m.

Closing Remarks 2:00-2:15 p.m.

Registration is required prior to November 10, 2010. Please contact the Law Review Office at lawrev@stu.edu or phone (305) 623-2380.

St. Thomas Law Review
St. Thomas University School of Law
16401 NW 37th Avenue
Miami Gardens, FL 33054

Let's hit it -- 2010

Okay, we're back -- Happy New Year!

Batteries charged and all that. Ready for twenty-ten. Not ready for the traffic after the holiday weekend...

Last year we had Ben Kuehne, Scott Rothstein, and of course, Paris Hilton. Who will we have in 2010?

Lots of end-of-year blogging:

The White Collar Blog has some fun end of year posts here and here. The bloggers are really looking forward to seeing what the Supreme Court will do with the honest services cases coming up. More on that from me later.
Even the Chief Justice got into the act with this end-of-year report. Here's the intro:

Chief Justice Warren Burger began the tradition of a yearly report on the federal judiciary in 1970, in remarks he presented to the American Bar Association. He instituted that practice to discuss the problems that federal courts face in administering justice. In the past few years, I have adhered to the tradition that Chief Justice Burger initiated and have provided my perspective on the most critical needs of the judiciary. Many of those needs remain to be addressed. This year, however, when the political branches are faced with so many difficult issues, and when so many of our fellow citizens have been touched by hardship, the public might welcome a year-end report limited to what is essential: The courts are operating soundly, and the nation’s dedicated federal judges are conscientiously discharging their duties. I am privileged and honored to be in a position to thank the judges and court staff throughout the land for their devoted service to the cause of justice. Best wishes in the New Year.

While we're on the Supremes, there's more on Scalia's obsession with the (non)word "choate" from the NYT magazine here.

Why does choate get under Scalia’s skin? Bryan A. Garner, who wrote “Making Your Case: The Art of Persuading Judges” with Scalia, told me the justice is “disgusted” by the term’s faulty etymological basis. As Garner himself puts it in his Dictionary of Modern Legal Usage, choate is “a misbegotten word,” since the in- of inchoate is not in fact a negative prefix. Its root, the Latin verb incohare, meaning “to begin, start out,” originated in the metaphor of hitching up a plow, derived from in- (on) and cohum (strap fastened to a yoke).
Stripping the in- from inchoate is known as back-formation, the same process that has given us words like peeve (from peevish), surveil (from surveillance) and enthuse (from enthusiasm). There’s a long linguistic tradition of removing parts of words that look like prefixes and suffixes to come up with “roots” that weren’t there to begin with. Some back-formations work better than others. Unlike Scalia’s improbable analogy of changing insult into sult, back-forming choate is an understandable maneuver for anyone who isn’t a Latin scholar, given that inchoate is in the same semantic ballpark as words that really do have a negative in- prefix, like incoherent and incomplete.
By ruling from the bench on what is and isn’t a word, Scalia is following in the footsteps of his former colleague William Rehnquist, who once interrupted the argument of a lawyer who dared to use the nonstandard word irregardless. “I feel bound to inform you that there is no word in the English language irregardless,” Rehnquist said. “The word is regardless.”

Our previous coverage here.

What would a 2009 roundup be without another story of prosecutorial misconduct, which led to dismissal of the Blackwater case:

The judge, Ricardo M. Urbina of the District's federal court, found that prosecutors and agents had improperly used statements that the guards provided to the State Department in the hours and days after the shooting. The statements had been given with the understanding that they would not be used against the guards in court, the judge found, and federal prosecutors should not have used them to help guide their investigation. Urbina said other Justice Department lawyers had warned the prosecutors to tread carefully around the incriminating statements.
"In their zeal to bring charges," Urbina wrote in a 90-page opinion, "prosecutors and investigators aggressively sought out statements in the immediate aftermath of the shooting and in the subsequent investigation. In so doing, the government's trial team repeatedly disregarded the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the trial team" on such matters.

As for me, well, I came in second in the blog fantasy league, losing in the finals to RichRodisCuban (by a measly 5 points). Congrats on a good year. Here are the final results:

League Champion
RichRodisCuban
2nd
SDFLA Blog
3rd
de la Fins
4th
Steel City Crackers
5th
SouthFloridaLawyers
6th
Male Bondage


Over the break, I watched the great movie -- American President. Here's "the speech," which I could watch again and again:




Also saw Avatar, which was unbelievable. I gave it an A.

Ben Kuehne thanks his supporters

It was a packed event tonight as judges, former prosecutors, defense lawyers, and many others in the community came to celebrate with Ben. To the left is a picture of Ben from the party. And here are his remarks:

“Let there be Justice, and then no one will ask for anything unjust.” So proclaimed the revered patriot, lawyer, and scholar Jose Marti.

I am here today as proof to all that Justice lives in America. That we live in a time in a Nation that honors the message of philosopher Alan-Rene Lesage: “Justice is such a fine thing that we cannot pay too dearly for it.”

We are all fortunate to say we have a Justice Department whose goal is to try to do the right thing. I am humbled that the Department of Justice made the honorable decision to do the right thing.
As Dr. Martin Luther King enunciated, “the time is always right to do the right thing.” The Department’s timing was impeccable.

And I do not mean the right decision just for me. Instead, the inevitable resolution of my own legal drama is a reaffirmation by the highest powers of our Government that lawyers, including criminal defense lawyers, serve an essential – a vital -- purpose in our society. Our professional endeavor of testing the government, checking the exercise of public power, and challenging our institutions in an ethical but adversarial manner – what we do every day – is an honorable cause.

One of the great trial lawyers of our time, Edward Bennett Williams, observed that “Law is but a means; justice is the end.” We lawyers serve that cause of justice, and this outpouring of community support is a welcome approval of that cause.

Seekers of justice see our system as one that actively embraces achieving the right result, with our independent judiciary willing to reach correct conclusions defined by the law and the facts.

I readily applaud the several brilliant jurists who were so willing to apply the law as it is, as it should be, without fear of criticism. I am the beneficiary of the attention and “eminently correct” rulings by several of the very finest federal judges to serve the public interest.

Although it is understandable in the crystal clear light of hindsight that my legal case is what we refer to as a “No Brainer”, that it became so is the direct result of my dedicated team of outstanding lawyers: led by John Nields, Jason Raofield, and Laura Shores from Howrey in Washington, D.C., and my good friend, Jane Moscowitz, from Miami. I publicly thank them for their skill, dedication, and commitment to me and the precedent-setting value of my case.

But the reason for this Appreciation Reception is because of you, your support and attention to my case and the underlying message of enabling lawyers to be lawyers, without fear of retribution or prosecution. This day would not have been possible without all of you serving as the constant, pervasive, and effective foundation for my demonstration of innocence.

A message repeated by our independent Fourth Estate, our media. I am gratefully indebted to the Miami Herald and its court’s reporter Jay Weaver, and the Daily Business Review, especially John Pacenti, as well as the other journalists both locally and nationally, who consistently reported the truth of my case. The message was heard loud and clear, and helped to bring about a fitting end to my case.

I work daily with a stellar group of lawyers and legal professionals who never abandoned me, content with the knowledge that I would prevail in this classic battle. Allow me the privilege of thanking Susan Dmitrovsky, Bob Ader, Beth Hitt, Robert Hertzberg, and Amanda Maxwell, as well as Mirta Rodriguez, Sandy Hart, Leeza Bodes, Serena Young, Luly Moreno, and especially Barney Brown, who after being exonerated after serving 38 years in prison for a crime he did not commit, works with me as my legal intern.

President Kennedy once observed that “Our nation is founded on the principle that observance of the law is the eternal safeguard of liberty, while defiance of the law is the surest road to tyranny.” As lawyers and community leaders, we must lead the way to ensure that observance of the law is ingrained in our society, so that no one, not even the government, can claim a right to ignore or countermand the rule of law.

Let us sharpen our pencils and write a clear message to those in our community who may not understand and appreciate the abiding passion for justice in our nation: Our diligence every day, as directed by our Constitution, to provide effective counsel to our clients, is the keystone to our democratic way of life.

Throughout this legal drama, my greatest strength has been the unsinkable spirit and love of my wife, Lynn, and our entire family. I want to thank them for knowing who I am, and of my sincere dedication to the law.

Allow me to close with a story about Rudyard Kipling, one of the great writers. In the prime of his career, it was said he was making the previously unheard of sum of one shilling per word. Learning of this, a group of Oxford students, on a lark, decided to wire the Great One a single shilling and ask, in return, for one - just one – of his very best words. Soon enough, Kipling wired back just one word: “THANKS.”

I thank you – all of you who work so diligently to bring justice to our community, our courts, our nation – most appreciatively for giving me the opportunity to work with so many great people in making our America and our community a better place.

Well said!

Here's our prior coverage of Ben's case.

"Gotta get away from my lawyer. Sit tight. Say nothing. Write nothing. Brooklyn to bronx. I'll make u famous."

That was Scott Rothstein texting with Sun-Sentinel reporter Mike Mayo. They had nicknames for each other and everything. Rothstein kept up a con with Mayo, promising him that he would get the exclusive Rothstein interview -- I guess to keep Mayo from writing anything too critical about him. Mayo details the exchanges here. It's an interesting read.

Of course, the most comprehensive place to go for Rothstein news is the Daily Pulp. Bob Norman is just churning out news over at his site. Good stuff.

In other news:

1. Ex-Broward Commissioner Josephus Eggelletion to plead guilty (via Herald). Looks like Ben Kuehne is back to work -- he and Kendall Coffee are representing Eggelletion.

2. SFL covers Judge Moreno's decision to pay Roberto Martinez and Colson Hicks $4.5 million more than initially approved for work as a receiver. Although Judge Moreno gave less than Martinez was asking for, he still about double the hourly rate that was billed ($450 vs. $218). Any thoughts on this? Should CJA lawyers be able to ask for a kicker when they do good work?

3. Honest-services fraud is before the High Court this week. Should be really interesting. More on this later, but here's a primer from USA Today.