Trials...

The Liberty City 7 (six) case is winding down. Closing arguments started today. Coverage from the usual suspects here, here and here.

Can you imagine if this case hangs again (as the first set of jurors suggested after they couldn't reach a verdict). Would the government try it again? Should they?

As for Ben Kuehne's trial, it's set for Jan 2009.

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.

Let's get ready to rumble

Fascinating lawsuit filed by Joseph DeMaria against DOJ and American Express. Here's the Herald article and the complaint. From the article:

Sergio Masvidal, the successful scion of a once-penniless Cuban exile family, says he just wants the Justice Department to give him back his name.

Masvidal says he also wants his former employer, American Express, to pay him more than $7.5 million for ruining his career as a top global banker based in Miami.

The former chairman of American Express Bank International claims he's a ``scapegoat'' in a lawsuit filed Friday that depicts the Justice Department and his ex-employer as partners in an illegal conspiracy plotted at the same time that American Express was prosecuted for violating anti-money-laundering reporting laws.

``It's important to me that my name is cleared,'' said Masvidal, 63 who came to this country in the early 1960s under the Catholic Church's ``Pedro Pan'' relocation program. ``It's important that I don't end my career with this event defining my life.''

According to the complaint, there was a secret agreement entered into between the government and American Express that sold out Masvidal:

The August 2007 prosecution agreement between American Express Bank International and the Justice Department has caused Masvidal many sleepless nights -- but not because of the costly terms of that deal.
Masvidal has obtained evidence of what he describes as a ``secret termination agreement'' between his ex-employer and the Justice Department. It says that Masvidal and American Express Bank International's president, Simon E. Amich, would be fired after the sale of the bank, implying wrongdoing on their part. The side agreement -- an August 2007 letter signed by American Express and Justice Department lawyers -- was never disclosed to Masvidal, Amich or to U.S. District Judge William Zloch in Fort Lauderdale, who approved the so-called ``deferred'' prosecution agreement.
Under that settlement, American Express had to pay the government $65 million for its lax enforcement of compliance laws aimed at catching drug-trafficking and other tainted bank deposits. It was one of the largest fines imposed on a U.S. bank. Under the terms, the Justice Department filed criminal charges against the bank but agreed to dismiss them in one year if the international bank subsidiary strengthened its safeguards against money laundering.

I notice that John Sellers represented DOJ against American Express; he's the same prosecutor in the Ben Kuehne case.

Another one bites the dust

The government's case against Ben Kuehne is in utter shambles -- Count I (the most serious count) was already dismissed. The case against a co-defendant has been dismissed. And now, Magistrate Judge Bandstra has recommended that Count 7 -- the wire fraud count -- be dismissed against all defendants. It is time for the government to concede defeat, no?

It's official...

...just about everyone thinks the Ben Kuehne indictment is BS.

Govt appeals order in Ben Kuehne case

Here's the text of the notice:

Notice is hereby given that the United States of America, plaintiff/appellant in the
above-captioned case, pursuant to 18 U.S.C. § 3731 and Fed. R. App. P. 4(b)(1)(B)(i), hereby
appeals to the United States Court of Appeals for the Eleventh Circuit from the Order Granting
Defendant's Motion to Dismiss Count One of the Third Superseding Indictment (Docket Entry
192) entered in the above entitled matter on December 22, 2008.
DATED this 7th day of January, 2009.
Respectfully submitted,
MATTHEW W. FRIEDRICH
ACTING ASSISTANT ATTORNEY GENERAL

PAUL O'BRIEN, CHIEF
Narcotic and Dangerous Drug Section
Robert Feitel
United States Department of Justice
Criminal Division Narcotic and Dangerous Drug Section

I wonder why this was filed so quickly, and why they didn't wait until after President-Elect Obama became President. The case likely will now be placed on hold for a while during the appeal.

"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.

Monday news and notes

Ahhhh, Monday morning after a holiday weekend. So much fun. Here's what's happening:

1. Pharmed sentencing today. (via Sun-Sentinel & Herald) Here are the letters in support of leniency, the government's sentencing memo, and the defense sentencing memo. Quick summary: government says the guidelines are appropriate; defense says they are too high.

2. The Chief Justice released his year end report. Quick summary: judges need more money.

3. More on Ben Kuehne. (via DBR). Quick summary: the case against him sucks.

4. Medicare fugitives. (via Herald). Quick summary: every now and then, people flee as they did in this case.

Recount

So I finally got around to the HBO movie Recount on my TiVo. I really enjoyed it. It threw me back to those days in 2000 when I was attached to the TV watching the twists and turns of the bitter election fight between Bush and Gore. I actually had dreams (nightmares) last night after watching the film...

There were lots of SDFLA references of course, since we were ground zero.

A guy named Phillip Nolen played Ben Kuehne, but he didn't wear the bowtie! Bruce Altman played Mitchell Berger. Laura Dern was an excellent Katherine Harris. The other main players were also very well cast. I may be mistaken but I thought I saw Kendall Coffee sitting as an extra in the Supreme Court scene at the end...
Anyway, if you want to relive some of those moments, it's well worth it.

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.

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.”

“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

Jay Weaver wins award

Well dear readers, I am in the Atlanta airport waiting to come back to Miami after arguing in the 11th Circuit before Judges Carnes, Tjoflat, and Hood. It was an interesting argument concerning venue and multi-object conspiracies. I am sure you all are fascinated.

In any event, here is a link to an article about Jay Weaver's award for his Medicare coverage. Congrats to Jay. Hat tip to BT.

I hope to see you all tomorrow at Ben Kuehne's fundraiser and on Friday at the bench and bar conference.

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. 

Dead Friday

Anyone working today?

Back to regular blogging on Monday.

2009 should be exciting -- trial #3 of Liberty City 7, trial #2 of Joe Cool, trial (or dismissal) of the Ben Kuehne case, Dolphin playoffs, and possibly 2 new district judges in the SDFLA because of judges taking senior status. What else?

Have a nice long weekend.

Scooped...

So we scooped the Ben Kuehne story yesterday, reporting that new prosecutors were considering dropping some counts in the indictment. A bunch of others (WSJ, DBR, NLJ) picked up on the story with no hat tip to us! How dare they! At least the Review quoted me...

Again, thanks to my tipster for the info...

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.
 

 

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.”

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).

Back from the West Coast

It was a fun week in San Francisco (I can't believe I missed the Father Cutié drama)...

I see the blog was in good hands while I was away. Rick was great and we hope to have him back on a regular basis.

Just a couple of quick hits before we get going for the week:

-- The Liberty City 6 jury (the latest version of it) will continue deliberating this week. That case is truly jinxed... (In his post on last week's LC6 happenings, Rick missed Mike Tein -- who, of course, is the most quotable lawyer in the District -- from the Blum article: "What a shameful waste of our taxes at the worst possible time. Just think what $10 million could have done for our schoolchildren in Liberty City.")

-- The District now has a Wiki page. It's interesting to look at the historical makeup of the Court. (Some trivia pointed out on the page: "This federal district has the dubious distinction of having had more judges removed through impeachment than any other district, with a total of two, one-third of all federal district judges so removed.")

-- Justice O'Connor had this to say about judicial elections: "They're awful. I hate them." More here.

-- Rick posted on the FIU faculty vote for Dean, and FIU law professor Howard Wasserman has a lot to say about the vote and the coverage here. Howard criticizes the open proceedings and compares it to watching sausages being made. Gotta disagree with Howard here -- we wanna know how sausages are made. Open proceedings are a good thing. Better to have the press in there and reporting (even if the coverage in this case wasn't complete) than the alternative of having the doors closed.

-- Rumpole demonstrates why the Ben Kuehne case needs to be dismissed.