Judge Carnes strikes back...

... with the threat of more visiting judges.  From the Daily Report:

Lawyers appearing before the U.S. Court of Appeals for the Eleventh Circuit may soon see more unfamiliar faces when they look up at the bench.

The court's chief judge has declared an emergency, such that cases may be decided by three-judge panels composed of only one of the court's judges, plus two visiting judges.

"We've got eight judges on a 12-judge court," said Chief Judge Edward Carnes, explaining the order he issued on Dec. 30.

The four vacancies on the court occurred when judges decided to leave the court or take senior status. President Barack Obama has made nominations for three of the four openings, but there is no guarantee if or when they'll be confirmed by the Senate. Two Georgia-based vacancies date to 2010 and 2012, while openings arose in Florida and Alabama last fall.

Federal law says that when federal appeals courts decide cases by three-judge panels, at least two of the judges must be members of that particular appeals court. Although the Eleventh Circuit generally does not use judges from outside of its membership to decide the cases it decides without oral argument—about 80 percent of the court's decisions, Carnes said—it liberally uses visiting judges for its oral argument calendar. Sometimes an oral argument panel might even comprise a fully active member of the Eleventh Circuit, one of the court's senior judges on a reduced caseload and a visiting judge from outside the court. Usually, visiting judges are district court judges from within the Eleventh Circuit's territory or senior federal judges from outside the circuit.

But the federal rule requiring a majority of a three-judge panel to come from the circuit's membership has exceptions, including that the chief judge can certify that there is an "emergency." The statute, 28 U.S.C. § 46(b), says such emergencies include, but are not limited to, the unavailability of a judge of the court because of illness.

In other news, John Pacenti covers this crazy case of identity theft:

When Carlos Gomez's identity was stolen, his bank account wasn't drained. But the Miami man went to jail and nearly ended up in prison for a crime organized by an employee at his former bank.
An employee at Wachovia Bank, which was bought by Wells Fargo, admitted stealing Gomez's personal information from an account he closed in 2002 and using it to open up another account in a $1.1 million embezzlement.
Wells Fargo & Co. discovered the fraud and implicated Gomez, among other suspects. Gomez was arrested at gunpoint in his home in front of his three young daughters, jailed without bond for two weeks and spent another seven months on house arrest.
Now that charges have been dropped, the UPS driver wants the bank to pay for destroying his life. His federal lawsuit recently withstood a motion to dismiss by the bank.
"I want to let the world know my story, to see how these banks can be," Gomez said. "At the end of the day, they don't care about you. You are just a number. They didn't care if I rotted in jail for 20 years."

 Finally, Chewbacca has posted some behind the scenes pictures from back in the day.  I liked this one:


 

Friday news and notes

1.  Judge Ryskamp sentenced an elderly woman to "5 seconds of probation"; she was charged with tax evasion in the Swiss bank crackdown where she inherited $43 million.  She was represented by Roy Black and Jackie Perczek.  Via the Palm Beach Post:

A 79-year-old Palm Beach woman on Thursday didn’t just avoid a prison term for evading taxes on $43 million in foreign accounts. A federal judge said Mary Estelle Curran deserves a presidential pardon.
Blasting the government for prosecuting the woman who had already paid a whopping $21.6 million penalty to the Internal Revenue Service, U.S. District Judge Kenneth Ryskamp placed Curran on probation for one year. He then immediately revoked it.
“You were on probation for about five seconds,” he told her.
He then urged Curran’s attorney, Roy Black, to seek a presidential pardon.

Here is the transcript from the hearing.

 2.  Meantime, Judge Cohn sentenced a fraudster on the other end of the spectrum to 26 years.  From the Sun-Sentinel:

The ringleader of a brazen South Florida identity theft ring that sought $11.7 million worth of fraudulent income tax refunds was sentenced Thursday to more than 26 years in federal prison.
Federal prosecutors said the scheme was one of the biggest and most successful they've seen and a prime example of the "epidemic" that is more rampant in South Florida than anywhere else in the nation. The trial judge said the fraud was so convincing that the IRS approved some $4.5 million of the requested refunds.
"To put it bluntly, ma'am, you are a parasite and a blight on society," U.S. District Judge James Cohn told Alci Bonannee, 36, of Fort Lauderdale, after she tearfully apologized and asked for mercy while trying to cast blame on others. He sentenced her to 26 years and five months in prison and ordered her to pay more than $1.9 million in restitution.
The judge told Bonannee her "egregious crime" required a stern response from the criminal justice system to punish her sufficiently and to deter other people from doing what she did.
"You have created a mountain of work for [federal authorities] in order to clear up the mess that you have created," Cohn said. "Ensnared in that mess is the innocent taxpayer faced with the task of restoring his or her good name and credit rating. It is a hurtful crime that follows its victims for many years."

3.  It's furlough Friday again for the Federal Defenders, but not for the U.S. Attorney's Office.  Congress has ensured that AUSAs and FBI agents will not be furloughed.  But Defenders and Probation Officers are having no such luck.  Explain to me how that works.  From the San Francisco Chronicle:

Federal budget cuts have caused delays in at least one terror-related court case in New York and prompted a federal judge in Nebraska to say he is "seriously contemplating" dismissing some criminal cases.
The automatic cuts are also causing concerns about funding for the defense of the Boston Marathon bombing suspect, who is being represented by a public defender's office that's facing three weeks of unpaid furloughs and whose defense costs could run into millions of dollars.
Federal defenders' offices have been hit especially hard by the cuts, which amount to about 10 percent of their budgets for the fiscal year that ends Sept. 30. Some offices have laid off staffers. The head public defender in Southern Ohio even laid himself off as a way to save money.
Much of the reductions are due to automatic cuts known as the sequester, and public defenders warn they could face even more cuts next year.
Members of the Federal Bar Association, including federal lawyers and judges, were on Capitol Hill on Thursday, meeting with members of the House and Senate and their staffers and appealing to them for adequate funding, said Geoff Cheshire, an assistant federal public defender from Arizona, who was among them.
"The federal defenders are the front bumper of this fiscal crunch, getting hit first and hardest. But behind it is the third branch of government as a whole. The message is, this is having real effects on the federal courts and the rule of law," Cheshire said.
He and others are pushing for Congress to make an emergency appropriation for the judiciary that would mitigate some of the cuts to defenders and the court system. Cheshire said $61 million would be enough to eliminate the furloughs.
In New York, furloughs have caused delays in the case of Osama bin Laden's son-in-law, charged with conspiring to kill Americans in his role as al-Qaida's chief spokesman. A public defender told U.S. District Judge Lewis Kaplan this month that furloughs in his office were making it impossible to prepare for trial quickly, prompting the judge to say he found it "extremely troublesome" and "stunning" that sequestration was interfering with the case.
***
The Department of Justice told employees on Wednesday that despite budget cuts it would not furlough anyone, including FBI agents and prosecutors. While that's good news for prosecutors, it leaves an imbalance that affects cases, several defenders said. By law, prosecutors and defenders are supposed to be paid the same but effectively are not when some defenders have to take three weeks off, they said.
Boston federal defender Miriam Conrad is representing marathon bombing suspect Dzhokhar Tsarnaev. She told The Associated Press on Wednesday that it was too early to tell what the impact of the furloughs would be on Tsarnaev's case.
Other public defenders warned of the imbalance when one side has the resources of the entire Department of Justice behind it and the other is trying to handle deep cuts that could affect its investigations, ability to pay experts, and the ability to show up in court five days a week.
"Imagine the imbalance now of having people working on the case losing two or three weeks of pay," said Michael Nachmanoff, a federal public defender in Virginia.
One month before the bombings happened, Conrad told the AP in an interview that she worried furloughs could cause delays, hurt the cause of justice, be devastating to her office and demoralize her staff. She noted at the time that the office can't require or even allow its lawyers to work on furlough days.

SDFLA Federal Courthouses Closed on Monday

From the court website:

CLOSURE OF KEY WEST, MIAMI AND FORT LAUDERDALE FEDERAL COURTHOUSES ON MONDAY, AUGUST 27, 2012

During inclement weather periods, the safety of jurors, the public and Court personnel is always a priority. In the event of hazardous weather conditions, including hurricanes and tropical storms, the policy of the Southern District of Florida is to close federal courthouses when the local public schools within a particular county close. In light of the announced closures of public schools in Monroe, Miami-Dade and Broward Counties, the federal courthouses in Key West, Miami and Fort Lauderdale will be closed on Monday, August 27, 2012. Those courthouses will reopen when public schools in those counties reopen or until further order of Chief United States District Judge Federico A. Moreno. In the event of an emergency, information about the U.S. District Court for the Southern District of Florida can be obtained from the following sources:
- The Court’s website: www.flsd.uscourts.gov
- Recorded telephone messages at each courthouse
- Broadcast messages sent to CM/ECF e-filers
- Television announcements
Please note that if the Court’s website is unavailable, the Administrative Office of the U. S. Courts will post emergency messages on behalf of the Court on its website: www.uscourts.gov

Here is Judge Moreno's Administrative Order regarding closures, which explains that when schools in a particular county are closed, so too are the federal courthouses in that county.

1600!!!

There's a certain honour with being the blogger to post the 1600th post on David O Markus's famous Southern District Of Florida Blog. And with DOM being out of town and unawares, we decided to grab the honour before he could change his mind and revoke our blogging privileges.

For those of you discriminating enough to read our own humble blog about the Richard E Gerstein Courthouse in Miami, you know that last week we promised- at the possible expense of Mr. Markus's standing in the community and his law license- to post a joke that started off this way: " A rabbi, a priest, President Obama and (insert your favourite federal judge here) walk into Tobacco road...."

But before we get to the punch line, there's this to consider:

Rumpole's person of the day:

Meet Former Jet Blue Flight Attendant Steven Slater. On a flight on Monday inbound to JFK from Pittsburgh, Mr. Slater had a confrontation with an unruly female passenger. (Side note- those gals from the Steel City can be quite a handful when they've had a few Iron City beers in them). Upon landing at JFK, Mr. Slater had all he could take. When the plane stopped taxing, Mr. Sater activated the emergency exit, deployed the emergency slide, grabbed a beer from the beverage cart, and slid off the plane and into instant fame. Mr. Slater got into his car and drove home to Queens where a few hours later a few members of New York's Finest showed up to arrest him on a slate of charges. For those of you who exclusively practice in Federal Court, The NY Times coverage is here.

For those of you who occasionally venture over to State Court, the NY Post coverage is here. (Headline was "Wing-Nut pleads not guilty.")

Punchline: They all walk up to the bar and order a round of beers. And the bartender looks up and sees who has walked in and says: 'what is this, some kind of joke?' "

Sorry folks, this is what happens when DOM goes on vacation.

See You in Court.

HR.

PS-if you want to know something useful about current federal legal developments, read South Florida Lawyer's post just below this one. We craftily waited until he posted number 1599 so we could grab 1600.

Thanksgiving weekend blogging

The Miccosukee Tribe of Indians was certainly thankful to Judge Seitz on Thanksgiving Day. Just hours before we all headed home on Wednesday to defrost our turkeys, Judge Seitz issued an order stating that she was “convinced that the Tribe will succeed on the merits” after a two-day preliminary injunction hearing last week seeking to halt construction on 21-mile “Loop Road” in the Everglades. The DBR’s article is here. Judge Seitz found that “the Government failed to comply” with environmental laws prior to starting the project. Michael Tein represented the Tribe at the hearing and accused the National Parks Service of a “cover up.” Mike produced Interior Department notes and memos indicating that government viewed public disapproval of the project as a “high risk” that would be handled with an “internal memorandum to file” instead of the full-blown public environmental study that federal environmental laws require. Apparently, the government was going to use money earmarked back in 2005 for “emergency Hurricane Wilma relief,” to pay for repaving the road, which Mike said had no hurricane damage. Mike’s brief charting out the alleged “cover up” is a fun read and I will post it shortly. After the hearing, the government agreed to delay the project another two weeks to allow for additional briefing. Judge Seitz said she would rule by December 14.

Judge Jordan dismisses Jack Thompson's lawsuit

We covered all the back and forth earlier, so here's the conclusion -- case dismissed in a 24 page order. Of course, GamePolitics has all the details...

And yes, Thompson has already filed an emergency appeal.

Federal Court filings to be suspended

Ahhh, how technology continues to help us....

Julie Kay reports today that because of the new e-filing system that will be going into effect, the court has to suspend *all* filings (unless it's an emergency or indictment or some other exception) starting tomorrow thru October 12. Here's the Review's summary:

Lawyers who practice in the Southern District of Florida will get a one-week vacation, courtesy of U.S. District Court as it prepares to implement a new, long-awaited electronic case-filing system. No motions or pleadings will be accepted between the close of business Thursday and 9 a.m. on Oct. 12 as the court adopts its new CM/ECF case filing system. Exceptions will be granted for emergencies, such as jurisdictional deadlines for filing an appeal or a statute of limitations deadline. In those cases, motions must be brought by hard copy to the appropriate clerk of the court’s office in Miami, Fort Lauderdale, Fort Pierce and Key West. The court will automatically add five business days to filing and service deadlines that occur during the shutdown period, so no lawyer will be penalized for a delay. Chief Judge William Zloch ordered the shutdown and exceptions in an administrative order posted on the court’s Web site, stating that “a failure to take action may result in a miscarriage of justice.” “The hiatus is necessary,” said Thomas Meeks, chairman of the local rules committee for the Southern District of Florida. “They have to switch everything over.” On Oct. 12, the district will officially switch to the new, nationwide paperless filing system, becoming one of the last federal court districts in the country to do so. At that time, e-filing and hard copy filing will no longer be permitted and attorneys will have to file all motions and pleadings via computer to the Southern District of Florida’s Web site. They’ll be able to do so 24 hours a day, from any location. The only exceptions to electronic filing will be for: • Documents filed under seal • Documents related to habeas cases and Social Security cases • Civil complaints • Civil documents not requiring a filing fee, such as recovery of student loan, bankruptcy appeal, bankruptcy withdrawal, recovery of veteran’s benefits and appointment of a receiver • Criminal complaints, indictments, criminal information and plea agreements • Emergency motions and requests for emergency hearings • Summons • Surety bonds • Proposed trial exhibits The office of clerk of the court Clarence Maddox has been training the estimated 4,000 South Florida lawyers who practice before the court, as well as judges. David Markus, president of the Miami chapter of the Florida Association of Criminal Defense Lawyers, welcomed the court-imposed vacation. “You’ll never find a lawyer who will complain about getting a few extra days to file something,” he said. Julie Kay can be reached at jkay@alm.com or at (954) 468-2622.