New Polls

Who should be our next judge?
	Jerald Bagley
	Bob Scola
	Kathy Williams
pollcode.com free polls

Who should be our next U.S. Attorney?
	David Buckner
	Willy Ferrer
	Daryl Trawick
pollcode.com free polls

This summer's big winners are...

... Aimee Ferrer and Alex Arteaga-Gomez.  These AFPD's just won an across-the-board acquittal after a 6-week fraud case before Judge Martinez for Cristal Clark. (The jury hung on all counts as to the co-defendant, Dave Clark). The case had lots of twists and turns, including an 11-member jury at the end when it reached its verdict on Friday afternoon.  The AP has some coverage:

Dave Clark's defense contended that the developments were legitimate and only collapsed because of the financial recession, not due to any criminal wrongdoing. The attorneys for Cristal Clark, meanwhile, said she relied on her husband and his financial advisers and committed no crimes.
In June 2014, Dave Clark was extradited from Panama and Cristal Clark from Honduras to face the U.S. charges. Both have been jailed as flight risks ever since. After Cay Clubs failed, Dave Clark and two partners formed a Cayman Islands-based company that opened a string of pawn shops across the Caribbean known as CashWiz.
Some of the fraud charges against the Clarks stem from that business, with prosecutors contending the couple were illegally siphoning off for themselves cash the company was making buying and selling gold.

Congrats to the FPD's office and to Aimee and Alex.

This is a good example of why judges are too harsh with bond.  It takes a lot of courage and perseverance to wait in jail over a year to try your case.  The New York Times covered the bail problem with a front page story here.  The story focused on low-level indigent defendants, but it's really a huge problem in all cases as judges have become more and more stingy with bonds, even for first-time non-violent offenders. 

In other news, Judge Diane Ward is really cool.  She is collecting and showing courtroom sketch work from well-known federal trials in Miami.  This is an awesome project.  And thankfully, the sketches don't look like this one!  From Dave Ovalle and picture by Emily Michot:

For many young lawyers who dart down the halls of the criminal courthouse, the history of Miami-Dade’s legendary legal dramas — along with the names of famous lawyers and often infamous defendants — might ring unfamiliar.
There was Ted MacArthur, the ex-homicide detective who murdered his wife in 1989. Joseph Hickey, the son of a Miami judge, who tried to extort $2 million in a bizarre kidnapping hoax. And Al Sepe, the Miami judge who did 18 months in prison in the notorious “Court Broom” judicial corruption scandal that erupted in 1991.
“It was the second-biggest corruption scandal in the nation’s history, and no one remembers it,” said Miami-Dade Circuit Judge Diane Ward as she walked down a hallway behind her courtroom.
Thanks to Ward, the enduring images of those and other important trials — sketched in bold pastel strokes by South Florida courtroom artists — now hang in a hallway behind her fourth-floor courtroom at the Richard E. Gerstein Justice Building. For the judge and lawyers who recently loaned her framed sketches, the corridor has become a mini-museum documenting not only the cases of yesteryear but the fading art of courtroom sketching.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article31251140.html#storylink=cpy

Weekend news including Pakistani Taliban indictment

1. Jay Weaver expounds on a story the blog broke earlier this week involving the dismissal against 27 defendants. Here's a bit from the front page story in the Herald:

Federal agents dubbed the case “Operation Cedar Sweep,” zeroing in on South Florida head-shop owners of mostly Lebanese descent. Some were suspected of selling “cut” for cocaine and sending profits to the Middle East for possible terrorist activities.

But after a two-year FBI investigation with undercover police officers, Miami federal prosecutors lacked evidence to make terrorism support cases. And this week, prosecutors also decided to drop drug-related charges against 27 defendants, many of whom had been detained since their arrests early this year.
***
The U.S. attorney’s office, which traditionally does not explain why it drops charges, issued a statement, saying “new information surfaced that, in our discretion, made it appropriate to dismiss the charges.”

“At this time, I cannot provide further details of what that information entailed, as it is not in the public record,” said Alicia Valle, special counsel to the U.S. attorney.

She described the investigation as “Operation Clear Cut” in an email to The Miami Herald — not “Operation Cedar Sweep,” which defense attorneys say refers to the Lebanese national tree and a symbol that appears prominently on its flag.

In February, the U.S. attorney’s office issued a press release crediting the investigative work of nearly a dozen federal and local enforcement agencies that led to the 13 narcotics-related indictments of 27 defendants, all owners or employees of head shops in South Florida. Among the targeted shops: Mushroom Novelty & Gifts, Hip Hop Gift Shop and Rainbow 7 in Miami-Dade, as well as head-shop operators at the Oakland Park Flea Market in Broward.

2. Here's another scoop -- the U.S. Attorney's office brought a major indictment yesterday, with arrests today, against six people for providing material support to the Pakistani Taliban. Here's the indictment, which fell before Judge Jordan.

From the press release:

The four-count indictment charges Hafiz Muhammed Sher Ali Khan (“Khan”), 76, a U.S. citizen and resident of Miami; his son Irfan Khan, 37, a U.S. citizen and resident of Miami; and one of his other sons, Izhar Khan, 24, a U.S. citizen and resident of North Lauderdale, Fla. Three other individuals residing in Pakistan, Ali Rehman, aka “Faisal Ali Rehman;” Alam Zeb; and Amina Khan, aka “Amina Bibi,” are also charged in the indictment. Amina Khan is the daughter of Khan and her son, Alam Zeb, is Khan’s grandson.

All six defendants are charged with conspiring to provide, and providing, material support to a conspiracy to murder, maim and kidnap persons overseas, as well as conspiring to provide material support to a foreign terrorist organization, specifically, the Pakistani Taliban. Defendants Khan, Rehman and Zeb are also charged with providing material support to the Pakistani Taliban.

Willy Ferrer said: “Let me be clear that this is not an indictment against a particular community or religion. Instead, today’s indictment charges six individuals for promoting terror and violence through their financial and other support of the Pakistani Taliban. Radical extremists know no boundaries; they come in all shapes and sizes and are not limited by religion, age, or geography.”

3. Many of you have been emailing me asking with concern about Michael Walsh. Thankfully, I have heard that he is OK.

Magistrate Judge committee to interview 15 people for 2 slots

 Here's your list of the interviews, which are happening now:

Arteaga-Gomez, Rossana

Aslan, Erin Elizabeth Victoria

Augustin-Birch, Panayotta Diane

Brown, Bruce Ontareo

Corlew, Reginald Roy

Ferrer, Aimee Allegra

Katz, Randall D.

Marlow, Elena Margarita

Massey, Jessica A.

Moon, Stefanie Camille

Sanchez, Eduardo Ignacio

St. Peter-Griffith, Ann Marie

Thakur, Michael Eric

Weiss, Aaron Stenzler

Zaron, Erica Sunny Shultz
 

Monday morning...

Feels like summer is here, no?

SFL already has posted on the FBA BABC. It was a good event. Tons of people showed up, and most of the judges were there. Big shout out to Adam Rabin and Brian Spector for their hard work. From the criminal bar perspective, I thought it was interesting to see the prosecutors and criminal defense lawyers engaging each other on a variety of topics, including sentencing, discovery, cooperating witnesses, and so on. I got a lot out of it. To the left is one such discussion taking place. Good stuff...

Today is Willy Ferrer's first day on the job. Should be interesting to see how things shake out...

Miss me yet?

The Rekers scandal has reached the New York Times. The article raises the question of whether the lawyers who relied on Rekers' testimony as an expert witness have an ethical obligation to inform the court of what happened.

Do Rekers' lawyers have an obligation to inform the court of his scandal?
	Yes
	No
pollcode.com free polls

Okay, we are in a poll taking mood. Here's two more while we are at it:

Will Willy Ferrer and his new management staff change the way things are done at the U.S. Attorney's office?
	Yes, there will be a great deal of change
	Yes, but only minor changes
	Nothing significant will change
	There will be no change
pollcode.com free polls

And we'd like to see what you think about Rumpole's discussion of Graham:

Who got the better of the Graham argument re life for juveniles
	Justice Kennedy's majority opinion was correct and its reasoning was persuasive
	Justice Kennedy's opinion was correct but his reasoning was flawed
	Justice Thomas' dissent was right and its reasoning was persuasive
	Justice Thomas' reasoning was more persuasive but his conclusion was wrong
pollcode.com free polls

Willy Ferrer's investiture today

Chief Judge Moreno swears Willy in at 3pm today at the new courthouse.  So, those of you who came to work in casual clothes today or who are planning to sneak out early, you're gonna miss it. 

Congrats to Willy.

Former federal prosecutors from Miami upset about Trump commutations in white collar cases...

 ...but the truth is that there should have been so many more.  The sentences for first time, non-violent offenders are out of control.  Yet, these former Miami prosecutors (Pelletier, Ferrer, and Stefan were all mentioned in this N.Y. Times article) seem to be upset about any commutation, even for Judith Negron who was sentenced to 35 years. 35 years! An absurd and insane sentence.

Not far away, in Hialeah, Fla., Judith Negron, 49, who had been convicted in a separate scheme to siphon off hundreds of millions of dollars in fraudulent Medicare payments, was also at home for the holidays instead of in federal prison. Thanks to a commutation by Mr. Trump, she had been released after serving eight years of a 35-year sentence and was relieved of any remaining obligation to pay her share of $87 million in court-ordered restitution.

This was hardly the outcome that Paul E. Pelletier expected when he and a team of other top Justice Department prosecutors and federal investigators set out to expose what Mr. Esformes and Ms. Negron had done.

***

In explaining his decisions, Mr. Trump said that Ms. Negron was a “wife and mother” and had dedicated her time in prison to “improving her life and the lives of her fellow inmates.” Mr. Esformes, he said, spent his time in prison “devoted to prayer and repentance and is in declining health,” and others had raised claims of misconduct by prosecutors in his case.

The presidential rationales did not hold much weight with those who had sought to hold Mr. Esformes and Ms. Negron accountable.

“It is an incredible kick in the teeth to the agents and prosecutors who toil away every day under very difficult circumstances to achieve justice and some restitution to the taxpayers from the billions of dollars that has literally been stolen from them,” Mr. Pelletier said.

We need criminal justice reform so that these abusive sentences and abusive practices don't need to get to the point of requiring Presidential action.  

Ms. Negron, and lawyers for Dr. Melgen and Mr. Esformes, 52, argue that the commutations were justified. They said the Justice Department was overzealous in its prosecutions, either by using unethical practices during the investigation or by pushing for excessively long prison sentences and unrealistic restitution orders.

“I was sentenced based on numbers that were not relevant to me,” Ms. Negron said this month in an interview, referring to her 35-year sentence and multimillion-dollar restitution requirement. She argued that her earnings from the scheme were not more than her salary of about $250,000 a year. Prosecutors said during the trial that much of the stolen money was still missing.

The truth is that there should have been 10x the amount of commutations/pardons.   Anyone with the temerity to insist on his Sixth Amendment right to trial is made an example of by the system.

Instead of being upset with the few that were granted, we should all be pushing for more under a Biden presidency.

Willy Ferrer confirmed

Congrats to him and 4 other new U.S. Attorneys.

CJA hearings in Miami conclude

Celia Ampel for the DBR covers it here:

Lawyers appointed to represent federal defendants who can't afford an attorney sometimes have trouble securing expert witnesses, wading through voluminous e-discovery and persuading judges to approve their expenses, according to testimony at a public hearing Monday and Tuesday in Miami.
The Criminal Justice Act, which provides a system for compensating those attorneys, is under a two-year review by a committee appointed by U.S. Supreme Court Chief Justice John Roberts. The committee's stop at the Wilkie D. Ferguson Jr. U.S. Courthouse was the second of seven hearings in cities from Portland, Oregon, to Philadelphia.
Attorneys and judges from across the Southeastern U.S. testified at the hearing, including the Southern District of Florida's Federal Public Defender Michael Caruso, U.S. Attorney Wifredo Ferrer and U.S. District Judges Robert Scola Jr., Donald Graham and Kathleen Williams.
The committee questioned the witnesses on whether the authority to approve CJA panel attorney compensation should rest with the judiciary, the public defender's office or an independent body. The group also discussed the challenges of e-discovery.

***

But regardless of their independence, CJA panel attorneys have far fewer resources than federal defenders and the U.S. attorney's office, lawyers testified.
That inequality extends to discovery, which in a multidefendant case can amount to three terabytes of data — or 6,000 filing cabinets of documents, Caruso said.
"You can imagine the CJA lawyer who's a solo practitioner trying to make sense of 6,000 filing cabinets," particularly in a trial-heavy and fast-paced district like the Southern District of Florida, he said.

Judge Graham was really strong on this point saying that prosecutors should be required to hand over hot documents to defense lawyers as a matter of proportionality and basic fairness.  Seems like a no-brainer.

Everyone wants a piece of El Chapo

Even though he's being prosecuted in the EDNY (here's the indictment), 6 other districts want him too.  As does DOJ.  And lots of others. From the Government's press release:

The government’s case is being prosecuted by Assistant U.S. Attorneys Andrea Goldbarg, Hiral Mehta, Patricia Notopoulos, Gina Parlovecchio and Michael Robotti from the Eastern District of New York; Assistant U.S. Attorneys Adam Fels, Lynn Kirkpatrick and Kurt Lunkenheimer from the Southern District of Florida; and Trial Attorneys Amanda Liskamm, Anthony Nardozzi and Michael Lang of the Criminal Division’s Narcotic and Dangerous Drug Section.

The case was investigated by the DEA, ICE and the FBI, in cooperation with Mexican and Colombian law enforcement authorities.  Substantial assistance was provided by the U.S. Attorney’s Offices in the Northern District of Illinois, the Western District of Texas, the Southern District of New York, the Southern District of California, and the District of New Hampshire.  The Department of Justice’s Office of International Affairs also provided assistance in bringing Guzman Loera to the United States to face charges.  The investigative efforts in this case were coordinated with the Department of Justice’s Special Operations Division, comprising agents, analysts, and attorneys from the Criminal Division’s Narcotic and Dangerous Drug Section, DEA, FBI, ICE, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the U.S. Marshals Service, the Internal Revenue Service Criminal Investigation, the U.S. Bureau of Prisons, and the New York State Police. 

Our very own U.S. Attorney Ferrer is making an appearance "of counsel" in the EDNY case.  What a show...  the government even filed this detention memo, as if El Chapo is going to get a bond.  Ha!

Live blogging Willy Ferrer's swearing-in

60 minutes visits the SDFLA and interviews Wifredo Ferrer

You can watch the clip here:

News & Notes

1. The Miami Herald covers Willy Ferrer's move to H&K here.

2. It's a busy criminal justice week in the Supreme Court.  SCOTUSBlog summarizes them this way:

Lee v. United States, No. 16-327, to be argued March 28, 2017

Issue: Whether it is always irrational for a noncitizen defendant with longtime legal resident status and extended familial and business ties to the United States to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation.

Argument preview: Immigration, ineffective assistance and plea bargaining

Turner v. United States, No. 15-1503 to be argued March 29, 2017

Issue: Whether the petitioners' convictions must be set aside under Brady v. Maryland.

Honeycutt v. United States, No. 16-142 to be argued March 29, 2017

Issue: Whether 21 U.S.C. § 853(a)(1) mandates joint and several liability among co-conspirators for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy.

Argument preview: Can a conspiracy defendant be ordered to forfeit proceeds he never obtained?

3.  Amy Howe covered the Lee argument here.  From the intro:

This morning the Supreme Court heard oral argument in the case of Jae Lee, a Korean immigrant who was charged with possession of ecstasy with intent to distribute it. Lee accepted a plea bargain after his attorney told him that he would not be deported. That advice turned out to be, as Justice Elena Kagan put it today, “supremely deficient”: In addition to the year and a day in prison to which he was sentenced, Lee’s conviction also carried with it the penalty of mandatory deportation. Lee asked a federal court to vacate his conviction, but the U.S. Court of Appeals for the 6th Circuit declined to do so. It reasoned that the evidence against Lee was so overwhelming that, even if he had received bad advice from his attorney that prompted him to plead guilty, Lee could not have suffered the kind of harm from that bad advice that would render his conviction unconstitutional. The justices today seemed more sympathetic to Lee than did the 6th Circuit, although it is not clear whether he can get the five votes needed to reverse the lower court’s ruling.

Tony Gonzalez named First Assistant at U.S. Attorney's Office

Ariana Fajardo Orshan shook up the office last week, making lots of changes, including naming Tony Gonzalez as her First Assistant. 

Ben Greenberg, who had that role under Willie Ferrer, and then again under Orshan (while serving as Acting U.S. Attorney in between), is moving to Ft. Lauderdale as senior litigation counsel. 

Monday news and notes

1. The government has asked Judge Cohn to sentence Scott Rothstein to 40 years, a (meaningless?) variance from the statutory maximum of 100 years. (pg. 2: "The Government concedes that a variance in this case is supported by several salient factors. While the Defendant’s criminal activity in this case can only be described as reprehensible, it is beyond dispute that his post-offense conduct has been extraordinary.")

I say meaningless because 40 years is basically a life sentence for 48-year old Rothstein. It may turn out to be important what Judge Cohn does though because a motion to reduce Rothstein's sentence will be coming, so the starting point will be important. If Rothstein gets 30 years this week, and then gets a third off, he will likely have something to look forward to...
Govt Response to Rothstein

2. Nice story on Willy Ferrer today by John Pacenti.

3. The Supremes decided Krupski today. Our prior coverage here. This is the relation-back case that Robert Glazier argued. Unfortunately for Mr. Glazier, he was on the wrong side of this one.

BREAKING -- U.S. Attorney finalists announced

Willy Ferrer
David Buckner
Daryl Trawick

Congrats to the finalists!

(And thanks to the many tipsters who emailed me with the names!)

Fugitive caught after 37 years.

From the Government's press release:

Robert Anton Woodring, formerly of Fort Lauderdale, Boyton Beach, and Pompano Beach, Florida, was arrested on charges of failing to surrender for service of sentence.  In 1984, Woodring was indicted for failing to surrender in September 1977, to commence a 10-month sentence imposed in October 1975, for removing a yacht in order to prevent seizure by authorized persons. Woodring had also been sentenced in a related case to seven year imprisonment after a jury found him guilty of mail fraud and conspiracy to conspiracy to commit mail fraud.  Woodring is set to be arraigned on January 14, 2015, at 10:00 a.m. 

U.S. Marshals, with the assistance of the FBI and Mexican authorities, apprehended Woodring in Guadalajara, Mexico, in December 2014.  On December 22, 2014, Woodring appeared in federal court in Los Angeles, California, where a U.S. Magistrate Judge ordered him detained pending trial as a risk of flight. Woodring waived his right to an identity hearing and removal hearing and agreed to be transported to Miami for further proceedings.

Mr. Ferrer commended the efforts of the U.S. Marshals Service and FBI in apprehending the defendant. The case is being prosecuted by Assistant U.S. Attorney Robert T. Watson.

Miami's worst kept secret is out

Rumpole and the DBR finally broke what people have been talking about for weeks now -- that the White House is actively vetting Kathy Williams for the open judge seat and Willy Ferrer for U.S. Attorney.

Congrats to these two very well-deserving candidates. Both are going to be absolutely great....

As an aside, I held off on posting this news for the past couple of weeks because the vetting process is very sensitive and I didn't want anything to slow the process for Kathy or Willy. But now, it's out there, so I am posting it...

Hopefully the official nomination will happen by the end of the year.

“This case was stunningly weak.”

That was Federal Public Defender Michael Caruso about the case against his client Irfan Khan, which was dismissed before trial.  The New Yorker covers the entire case here in a very interesting read, called "The Imam's Curse."  The article starts with a description of how the feds really pumped up this dud of a case:

At dawn on May 14, 2011, more than two dozen federal agents and local police officers converged on a working-class neighborhood near the Miami airport and surrounded a small green-and-white stucco building—Masjid Miami, one of the city’s oldest mosques. Police sealed off a two-block radius, and F.B.I. agents, some armed with AR-15 rifles, assembled outside the door.

Inside, eight men were kneeling for the first prayer of the day. When agents called for them to open up, one of the worshippers, a former police officer, went out and asked them to wait until the prayer was finished. The agents complied, and then they arrested the mosque’s imam, Hafiz Khan, an émigré from a mountainous corner of Pakistan near the Afghan border. Khan was in his late seventies, an albino with thick glasses and a long colorless rush of beard. He had moved to America, with members of his family, in 1994, at the encouragement of a younger brother in Alabama. They became citizens, but Khan spoke no English and rarely left the mosque or a one-room apartment across the street, which he shared with his wife, Fatima. He was known to some of the locals as el viejito barbón—the old bearded man. Kids referred to him as the Santa Claus imam.

While the F.B.I. was arresting Khan, another team of federal agents and police assembled forty miles away, in the city of Margate. They surrounded Jamaat Al-Mu’mineen, a large mosque presided over by Hafiz’s youngest son, Izhar Khan. Izhar, who was twenty-four, was about to lead the morning prayer when agents in F.B.I. windbreakers confronted him in the parking lot. Izhar had moved to Florida when he was eight years old, and he spoke barely accented English. He wore a long dark beard, a black cotton robe, and a skullcap. The agents examined the computers in his office, and when they searched his cell phone they noticed that many of his text messages were about the Miami Heat and other teams.

Meanwhile, a third maneuver in the F.B.I.’s operation against the Khans was unfolding in Los Angeles, where it was 3 A.M. and Izhar’s brother Irfan, a thirty-seven-year-old software programmer, was asleep in his room at the Homestead Studio Suites, an inexpensive business hotel in El Segundo. Married, with two kids, Irfan was a sitcom buff who made hammy jokes about his waistline. (“This won’t be good for my diet!”) He lived in Miami and worked for American Unit, an I.T. company. For the past three months, he had been commuting every two weeks to an assignment in El Segundo. He was awakened by a phone call from the police, advising him to go to the door. He was handcuffed and led to a waiting car, past bomb-sniffing dogs and helmeted men in camouflage.

After the arrests, federal authorities announced that, in all, six people in Florida and abroad had been charged with funnelling tens of thousands of dollars into a conspiracy to “murder, kidnap, or maim persons overseas,” orchestrated by the Pakistani Taliban, an ally of Al Qaeda. The group was known for having trained Faisal Shahzad, a Pakistani-American who, in May, 2010, tried to set off a car bomb in Times Square. In 2012, Pakistani Taliban gunmen boarded a bus in northwest Pakistan and shot Malala Yousafzai, a fifteen-year-old schoolgirl who had called for the education of women.

The F.B.I. had been secretly tracking the Khans for at least a year, monitoring their finances and recording thousands of hours of conversation, in person and on the phone. Two other members of the family were also indicted—a daughter and a seventeen-year-old grandson, who live in Pakistan—along with a Pakistani shopkeeper, who had served as a middleman. In the indictment, they were accused of conspiring to buy guns, shelter the Taliban, and send students “to learn to kill Americans in Afghanistan.” The indictment described phone calls from Miami, in which the father “called for an attack on the Pakistani Assembly” and “called for the death of Pakistan’s President.” The U.S. Attorney Wifredo A. Ferrer told the Sun Sentinel that a list of cash transfers totalling fifty thousand dollars was “just the tip of the iceberg,” and declared, “We will be able to prove that there is more than fifty thousand dollars that went to the Taliban.” Each of the accused faced between forty-five and sixty years in prison.

While the feds do have some resources to fight cases like this, the State Public Defenders do not.  John Oliver does this amazing piece on how state PDs need more funding: