Motion for bond granted...

Here is the order on the motion discussed in the post below:

Docket Text: ORAL ORDER granting [41] Motion for bond; Bond set for Frank Jesus Onetti; Released on Own Recognizance with electronic monitoring and curfew conditions as to Frank Jesus Onetti. Entered by Judge John Antoon II on 5/1/2006. (DJD, )

The judge set a final hearing on the 2255 petition for September.

Congratulations to Marc Seitles on this victory. More importantly, good luck to Brenertt Onetti, the seven year old boy, who will have his father beside him when he has his surgery.

Sweeping too far?

Immigration sweeps and arrests have been in the news a lot the past few days. (Infrequent) Co-blogger Marc Seitles has decided to represent pro-bono a family who has been caught up in all of this. It is a very sad story about a seven year old boy who has leukemia and is scheduled for bone marrow surgery.

His father was picked up in the sweeps. Turns out that the dad previously pled guilty to having a false social security number (so he could work as a janitor). He did not show up to sentencing because his son was so sick, and he was sentenced in absentia to 6 months. Three years later he gets picked up, right before the boy is scheduled for surgery. On Friday, Seitles filed an emergency habeas motion trying to get the father a resentencing and a bond so that he can be with his son for the surgery. It's being heard today. Here's the Channel 4 story. (The Herald article incorrectly suggests that this is in front of immigration officials today; it's not -- it's back before the district judge).

Seitles is very active in the immigration-turned-criminal arena. On Friday, the DBR (J. Kay) ran an article on the new identity theft statute that the U.S. Attorney's office is using in false document cases, which carries a two year minimum mandatory sentence. Seitles was extensively quoted in the article about a different client of his subjected to this new statute...

I'll update the blog later today on the outcome of the hearing. It's scheduled at 1:30...

Classic.

Jean-Marc Brun is scheduled to be sentenced in front of Judge Cooke. His lawyer, Milton Hirsch, filed a motion with Judge Marcia Cooke "to permit witness to wear hat in court." You may have seen Joan Fleischman's article covering this important litigation. Here's a piece from the article: "[Character witness] Eber always wears a cowboy hat -- his trademark. But hats are generally a no-no in court. 'We seek . . . an order granting Mr. Eber leave to wear his hat . . . in the courtroom during sentencing proceedings,' Hirsch's motion says. Eber, whose flagship salon is on fancy-schmancy Rodeo Drive in Beverly Hills, has styled the tresses of Cher, Elizabeth Taylor and Farrah Fawcett. From Hirsch's motion: 'His hat is a recognized and recognizable feature of his own style and fashion. . . . There is nothing more American than the notion that one man's nonsense is another man's cachet. Can we imagine Charlie Chaplin's lovable tramp without his bowler? Sherlock Holmes without his deerstalker? Humphrey Bogart as Richard Blaine in Casablanca without his fedora?' Prosecutor Andrea Hoffman 'has no objection' to a hatted José, Hirsch says."

Judge Cooke issued an Order on that motion yesterday. Here's the text of the order:

THIS MATTER is before the court on the Defendant’s Motion to Permit Witness to Wear Hat in Court, filed April 25, 2006.
The Court understands and recognizes the importance Mr. Eber places upon wearing his hat. It is well-known that part of Mr. Eber’s "image" is his trademark cowboy hat. As there are no cameras allowed in court, the possible negative effect of him appearing in the courtroom hatless cannot be gauged.
The wearing of hats is a tradition of a by-gone era, and as such, it is important that those choosing to reenact that era be aware of the proper rules of conduct that should be demonstrated by the wearer.
Generally, there are two degrees of politeness demonstrated by a gentleman wearing a hat: 1) lifting or tipping it, which you generally do for strangers, and 2) taking it off, which is generally done for friends, or as sign of patriotism or reverence.
Both are done as a sign of respect toward others are an expression of one’s own dignity. As rule, hats are removed during the playing of the National Anthem, while the American Flag is passing, at funeral or in the presence of passing funeral procession, and indoors–especially in a church, courtroom or restaurant. If in doubt, a true gentleman will remove his hat indoors as soon as in practical. Leaving one’s hat on when it is considered "proper" to remove it is generally considered aq sign of contempt and/or disrespect.
Would Charlie Chaplin, Sherlock Holmes or Humphrey Bogart as Richard Blaine choose to wear their headgear, when by so doing, they are making a statement that fashion, rather than commonly-accepted practices showing respect, dictate their behavior?
The Court feels this to be a matter of respect, and as such, respects Mr. Ever’s sentiments with regard to his hat. In light of the foregoing, the Court rules as follows:
Mr. Eber may choose to remove his hat as a sign of respect, in accordance with the commonly-accepted rules of etiquette, or he may choose to testify with his hat on. Perhaps the author his carefully researched motion, Milton Hirsch, a gentleman and Office of the Court himself, might assist in his decision.

CLASSIC! (UPDATE -- The Herald has now picked up the Order).

In other fun judicial decisions, apparently the judge handling the lawsuit over the DaVinci Code has inserted his own code into the text of the order. Here is some coverage. And here is the decision. UDPATED -- here is the solution. CNN has a story explaining the code and solution here and hints about the code here.

Great stuff, no?

The Constitutional Criminal Procedure Champion is...

... Justice Scalia.

I'm not kidding. He's penned Blakely (rendering unconstitutional the Federal Sentencing Guidelines) and Crawford (breathing life back into the Confrontation Clause). And after the oral argument in United States v. Gonzalez-Lopez, I'd bet Scalia is going to write another important criminal procedure decision, again supporting the criminal defendant -- this time defending one's Sixth Amendment right to have the lawyer of his choice.

The oral argument looked like a lot of fun, going so far as to invoke every criminal lawyer's favorite film, My Cousin Vinny.

Scalia had this to say at oral argument: "I don't want a 'competent' lawyer. I want a lawyer to get me off. I want a lawyer to invent the Twinkie defense. I want to win."

Alito countered: "Let's say the defendant wanted to be represented by a relative who specialized in real estate law. If that lawyer was disqualified and the defendant was eventually represented by an experienced criminal defense lawyer with a national reputation, "why wouldn't that be harmless error?"

That would still be "unquestionably a Sixth Amendment violation," Jeff Fisher (yes, that Jeff Fisher of Blakely and Crawford fame), the defendant's lawyer, replied.

Here's an article about the case.

Meth and the Florida Bar

The website has been down all day. Sorry...

I tried to make up for it with a catchy (even if a little misleading) title.

Meth labs have never been big down in South Florida. But apparently this has changed, according to this Herald article.

In unrelated news, the litigation between Louis Robles' former clients and the Florida Bar has been transferred to District Judge William B Hunt, Jr., a senior judge in Atlanta. The case was filed in the Southern District of Florida and initially was assigned to Judge Huck, who recused. Chief Judge Zloch then asked the 11th Circuit to assign a judge outside of Florida to handle the case. The story was in the DBR this morning (password required).

Double Agent...

The Miami Herald's Jay Weaver and Oscar Corral have this interesting story on the confidential informant in the weapons case involving Santiago Alvarez and Osvaldo Mitat. Here's the intro:

A federal informant playing a critical role in a South Florida weapons case against the wealthy Miami benefactor for Cuban exile militant Luis Posada Carriles also was sharing details about the exiles with a Cuban government official known as ''Daniel'' as far back as 2001, prosecutors have revealed.

Prosecutors also disclosed for the first time that the FBI informant, Gilberto Abascal, traveled by boat with Posada's benefactor and other friends last year to pick up the CIA-trained Posada in Mexico and bring him back to the United States illegally.

Details of Abascal's past contacts with a Cuban official and Posada's entry into the United States surfaced Friday as attorneys for the weapons-case defendants, Santiago Alvarez and Osvaldo Mitat, sought to obtain more information from prosecutors that could help their clients' defense.

For months, prosecutors claimed to have no evidence that Abascal communicated with Cuban government officials. Yet the April 6 letter made public Friday acknowledges that Abascal met with ''Daniel'' and perhaps others at least six times -- an admission that could bolster claims that the defendants were set up by the Cuban government.

The explosive admission was made public just two weeks before the May 8 trial in Fort Lauderdale, a location opposed by the defendants because they maintain they cannot get a fair trial outside of Miami-Dade.

I want...

... this case.

Slow blogging

I have to apologize again for the slow blogging. I just got back from Atlanta where I had an oral argument in the 11th Circuit Court of Appeals. The panel was Judges Anderson, Fay, and Siler. I always enjoy arguing appeals, as I did in this case, but I'm always amazed at how much preparation goes into a 15 minute argument. The preparation time to argument time ratio is all out of whack in the appellate court, isn't it?

And if you are a blog/law nerd, Ian Best at 3L Epiphany now has this post collecting law review articles citing legal blogs. Some recent related posts:
Judges on blogs and blogging
Blogging news and notes
The power of legal blogs
Amazing taxonomy of legal blogs

"Civil" depo (UPDATED)

Check out this video clip of a "civil" depo. Hilarious.

You may also want to check out Hannity & Colmes tonight. (UPDATE -- Richard tells me that his appearance has been postponed until tomorrow night.) Friend of Blog Richard Rosenthal will be on defending his client, Basil Dalack -- a 76 year-old Korean War vet who was recently elected to the town council of the Village of Tequesta (in Palm Beach). Dalak refuses to take the oath because of his disagreement with Bush and the Iraq war. Hannity must be frothing... Here's a Sun-Sentinel article about the case.

STATE COURT JUDGE LINDA DAKIS SERIOUSLY ILL

Hi Federal Court blog readers. Rumpole here. I am sorry to always be the harbinger of sad news (and I promise that I have a humorous Federal Court post on the way) but I am sad to report that State Court Administrative Judge for the Civil Division Judge Linda Dakis suffered a serious stroke over the weekend and is in intensive care at Baptist Hospital. The outlook is not good.
I know that many members of the Federal Judiciary and Federal Court practitioners know and respect Judge Dakis and I thought this is an appropriate way to let everyone know about her illness.

News and notes

Julie Kay's column, Justice Watch, in the DBR has lots of interesting notes today:

1. It describes in much further detail Alex Acosta's talk last week at the Federal Bar Association lunch. Here's one passage:

[Acosta] announced two new deputies in the major crimes division: Barbara Martinez and Ben Greenberg. They will join Chuck Duross, who Acosta named a deputy several months ago. Deputies play key roles, mentoring and supervising new assistant U.S. attorneys, who all start out in major crimes. Martinez, 34, joined the U.S. attorney’s office in Miami in 2000, after serving three years in the fraud section of the Department of Justice in Washington, D.C. Last year, Martinez received the second-highest honor given to federal prosecutors around the country, the Director’s Award, which is awarded by the Department of Justice. She received the award for her work on a child pornography case involving 100 victims. The defendant was convicted in 2004 and sentenced to 100 years in prison. Greenberg, 35, joined the U.S. attorney’s office in 2000. A skilled litigator, he is currently overseeing two of the office’s most high-profile cases — the prosecution of Z’ev Rosenstein, an alleged Israeli organized crime figure who is charged with a massive Ecstasy drug ring, and the fraud retrial of former Hamilton Bank chairman Eduardo A. Masferrer. Acosta related how Greenberg proudly “claims to have indicted 42 cases in one month” — a record for the office. He is the son of Miami-Dade County Attorney Murray Greenberg. Duross, 35, has worked at the U.S. attorney’s office in Miami since 2001. He previously worked at Kirkland & Ellis in Washington, D.C., for 4 1/2 years. Last year, Duross was named Federal Prosecutor of the Year by the Miami-Dade Chiefs of Police Association. He was honored for his work on Operation Check-Mate, in which 23 defendants were convicted in a massive counterfeit check writing scheme. In addition to announcing his new deputies, Acosta also said he would ask the Department of Justice for bonuses and raises for AUSAs in an effort to stem a high turnover rate. He declined to state how much he would request. With a new AUSA in Miami earning about $70,000, it is virtually impossible for them to afford a home in South Florida’s pricey real estate market, he said. By comparison, starting salaries for new associates at major Miami law firms are between $105,000 and $125,000. And since they cannot earn more than members of Congress, even more senior AUSAs are capped at a salary of $140,000 a year. “We’ve seen turnover similar to patterns seen in New York and California,” Acosta said. “The cost of housing is inordinately high here. Rather than hire a few more prosecutors, I’d rather use the money to reward the ones we have.” Former federal prosecutors later applauded Acosta’s plan. “The pay for federal prosecutors should be increased,” said Peter Prieto, managing partner of the Miami office of Holland & Knight and a former federal prosecutor. “They work very long hours and do highly sophisticated work.” Acosta said he’s also taking steps to replace the 30 or so prosecutors who have left in the last year. He reported that, after months of interviewing, he has hired six new prosecutors. Another initiative Acosta plans to start is a mentoring program to pair up senior litigation counsel, such as Richard Gregorie and Caroline Heck Miller, with younger attorneys. “All the big [USAO] offices have formal training programs, and it’s time Miami does too,” he said. According to several sources, Acosta found out he was chosen as U.S. attorney for the Southern District of Florida about two weeks ago. The White House is expected to forward his nomination to the Senate next month, said the sources who spoke on condition that they not be named.

2. The Hamilton Bank trial starts today. It's take two. Last trial was hung. Defense lawyers are the Srebnick bros.

3. The other big bank case, the Bankest case "was abruptly postponed on April 5 when one of the defendants, former bank president Eduardo Orlansky, underwent emergency gall bladder surgery." His lawyer is Ed Shohat. Prosecuting is Caroline Heck Miller, Matthew Menchel and Ryan Stumphauzen. Hector Orlansky is represented by Bruce Lehr.

4. In non-DBR news, the comments to the last post are fun and are not meant to make anyone upset. I hope everyone took them in that spirit.

Why I practice in federal court

By now you all have heard about the Sean Taylor prosecutor. Apparently this guy moonlighted as a DJ, tried to promote this night gig by saying he was the Taylor prosecutor on a MySpace account (in which he also posted what Taylor's defense lawyer (Richard Sharpstein) has called pornographic pictures). Are you kidding me?!

Say what you will about AUSAs, but can you imagine any of them doing this, especially the DJ part? Actually, this is great -- we have fodder for a new poll: which SDFLA AUSA is best suited for moonlighting as a DJ?

For the best state court coverage, check out Rumpole and the accompanying comments, which are always fun to read... Also, here's the AP report, the Herald and the CBS4 video.

Acosta at the Federal Bar Luncheon

Interim (soon to be permanent*) U.S. Attorney Alex Acosta spoke today at the Federal Bar Association Luncheon, praising the assistants in the office, even pointing out many by name. He also cited the large proseuctions currently pending in the district (Abramoff, the Rodriguez brothers, Rosenstein, Hamilton Bank, and others). He mentioned that he was going to focus on training young lawyers in the office and on paying them more (which will require hiring less attorneys) so that he can compete with hiring practices in Miami. The speech was about 15 minutes.

* Acosta emphasized that the articles saying his nomination was imminent were premature and that is only an interim U.S. Attorney.

$10 million bail...

... for Ze'ev Rosenstein "over the objections of federal prosecutors, who said they were concerned that Rosenstein had ready access to huge assets and could readily flee the United States." Rosenstein is represented by Roy Black. AUSA is Ben Greenberg. Magistrate Judge is E. Torres.

Welcome (permanently) Alex Acosta

All reports (here is Jay Weaver's Herald article from Saturday and Julie Kay has a piece in Monday's Daily Business Review) are that Alex Acosta has lost the interim from his title and is now the permanent U.S. Attorney for the Southern District of Florida, the best and busiest district in the country. Welcome Mr. Acosta and congratulations.

I'm thinking of posting my requests for the new administration. If you have any suggestions, put them in the comment section and I'll add them to the list.

Congress may not burn the house to roast the pig.

So says the 11th Circuit in US v. Williams, discussed below by Marc Seitles. Here is Carl Jones for law.com on the case.

PROTECT ACT PROVISION DECLARED UNCONSTITUTIONAL

Today, the Eleventh Circuit Court of Appeals, in United States v. Williams, No. 04-15128, handed down a signficant decision holding that the PROTECT ACT's provision that prohibits the promotion of child pornography is facially unconstitutional as overbroad and vague. This case originated in Judge Middlebrooks' division. And Louis I. Guerra preserved the issue and won on appeal.

Here is an excerpt from the decision -

"In the wake of Free Speech Coalition, sexually explicit speech regarding children that is neither obscene nor the product of sexual abuse of a real minor retains protection of the First Amendment. We believe the Court’s decision in Free Speech Coalition leaves Congress ample authority to enact legislation that allows the Government to accomplish its legitimate goal of curbing child abuse without placing an unacceptably heavy burden on protected speech. Certainly Congress took many cues from the Court in drafting the legislation at issue in this case.
Given the unique patterns of deviance inherent in those who sexually covet children and the rapidly advancing technology behind which they hide, we are not unmindful of the difficulties of striking a balance between Congress’s interest in protecting children from harm with constitutional guarantees. However, the infirmities of the PROTECT Act pandering provision reflect a persistent disregard of time-honored and constitutionally-mandated principles relating to the Government’s regulation of free speech and its obligation to provide criminal defendants due process. Because we find the PROTECT Act pandering provision, 18 U.S.C. § 2252A(a)(3)(B), both substantially overbroad and vague, and therefore facially unconstitutional, we reverse Williams’s conviction under that section."

Here's the whole opinion.

Big Money in Torture Case

Judge Joan Lenard ordered that a retired Honduran military officer pay $47 million dollars to victims of torture, murder, and kidnapping. A San Francisco human rights group, the Center for Justice and Accountability, brought the suit against former Lt. Col. Juan Evangelista Lopez Grijalba. Read more from today's Miami Herald.

More on Scalia

I'm not sure why (perhaps I'm catching up from the 6 weeks of trial), but I can't get enough of the Scalia story. So here's some great stuff out there for those that are interested:

1. Scalia's letter to the editor of the Boston Herald. This isn't the first time Scalia has written to an editor. See this!
2. Wonkette (formely Article III Groupie) on Scalia.
3. The Sopranos take on the gesture (I'm not kidding).
4. The best coverage of all, a must-read article by Slate's Dahlia Lithwick.
UPDATE -- 5. The Colbert Report responds to Scalia. Hat tip Richard Rosenthal.
For the more intellectual readers out there, here is some great analysis of the Padilla cert denial.

Enjoy.

Padilla cert denied

The Supreme Court denied cert in Jose Padilla's case this morning, giving the green light to the criminal prosecution here in Miami. It wasn't your ordinary cert denial as it had a number of opinions. Here is ScotusBlog's coverage:

Court refuses to hear Padilla appeal
Posted by Lyle Denniston at 10:02 AM
The Supreme Court on Monday refused to hear the appeal of Jose Padilla, a U.S. citizen held in a military jail for more than three years as an "enemy combatant." The Court, however, declined to dismiss the case as moot, as the Bush Administration had urged. Only three Justices voted to hear the case, according to the order and accompanying opinions.
The decision was a victory for the Bush Administration in one significant sense: by not finding the case to be moot, the Court leaves intact a sweeping Fourth Circuit Court decision upholding the president's wartime power to seize an American inside the U.S. and detain him or her as a terrorist enemy, without charges and -- for an extended period -- without a lawyer.
The Administration was so eager to have the case out of Court that it was willing to let the Fourth Circuit decision disappear, which would have been the result of a dismissal of the appeal on mootness grounds.
Three other Justices took the unusual step of issuing an opinion to justify the denial of review. They said that "there are strong prudential reasons disfavoring" Court review. Padilla is due to go on trial on criminal charges in civilian court, and "any consideration of what rights he might be able to assert if he were returned to military custody would be hypothetical, and to no effect, at this stage of the proceedings."
In an opinion written by Justice Anthony M. Kennedy, and joined by Chief Justice John G. Roberts, Jr., and Justice John Paul Stevens, those three conceded that Padilla "has a continuing concern that his status might be altered again." That, however, "can be addressed if the necessity arises."
Kennedy wrote that "Padilla's claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts." That, he said, "also counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical. This is especially true given that Padilla's current [civilian] custody is part of the relief he sought, and that its lawfulness is uncontested."
Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter said they would have heard the case (Padilla v. Hanft, 05-533). Ginsburg wrote a separate opinion making the argument that the case was not moot, and should be reviewed. Breyer and Souter simply noted their votes in favor of review. It takes four votes to grant review, however.

Booker in the Southern District

Julie Kay has a thought provoking (and sobering) story today about sentencings in the Southern District after Booker. The premise of the article is that other than Judge Highsmith (and a couple of others), the Southern District judges are sticking to the guidelines. Although it's hard to argue with the numbers that the article cites, I'm not entirely convinced that our judges are completely sticking to the rigid sentencing guidelines. My experience has been that judges are willing to sentence below (and above) the guidelines in the right cases. The reason, I think, Julie had problems finding lawyers to give stories about particular sentencings outside of the guideline range is that no one wanted to out any judge on this issue because there is (I agree) a fear out there that everyone else is sticking to the guidelines. Hopefully this culture will change. For the best coverage on sentencing, I would go to Prof. Berman's sentencing blog. Here's the intro to the article:


Cover StoryNot so free after all
April 03, 2006
By: Julie Kay
Shelby Highsmith

Then the U.S. Supreme Court gave federal judges more discretion in sentencing defendants, defense attorneys in South Florida rejoiced. But 15 months after the closely divided court issued its landmark rulings in U.S. v. Booker and U.S. v. Fanfan, prosecutors are the ones smiling. Since getting the leeway from the nation’s highest court, federal judges in South Florida have opted to stay mostly within the guidelines. A new study by the U.S. Sentencing Commission found that judges in the Southern District of Florida, which covers the area from Key West to Fort Pierce, have been among the strictest in the nation in sticking to the guidelines. They stayed within the guideline range in 77.5 percent of 1,951 cases sentenced. That’s a significantly higher percentage than in many other districts. Nationally, across 94 judicial districts, federal sentences fell within the guidelines in 62.2 percent of 65,368 cases. The South Florida rate is also higher than in the middle and northern districts of Florida, where judges sentenced within the guidelines in 65.6 percent and 71.7 percent of cases respectively. In the Booker and Fanfan rulings, by 5-4 votes the justices granted judges greater freedom to tailor sentences to the individual circumstances of cases. The majority held that the tough mandatory federal sentencing guidelines in effect since 1987 should only be used as advisory. The court also said the mandatory guidelines violated the Sixth Amendment right to trial by jury because sentencing under the complex guidelines could be based on aggravating factors not found by the jury. South Florida criminal defense lawyers were thrilled that judges no longer would be allowed to lengthen sentences based on factors not found by the jury. And they hoped judges would use their new discretion to grant more downward departures from the guidelines. But since Booker, South Florida federal judges sentenced below the guideline range — known as departing downward — in 21.4 percent of cases. A breakdown shows 10.1 percent were supported by the government for cooperating witnesses. Slightly more than 2 percent were departures based on previously allowed factors such as mental defect, family status, and age. Nine percent of downward departures were for other reasons. That 9 percent reflects discretionary sentences judges could only make since the Booker ruling. The office of Interim U.S. Attorney Alex Acosta declined to comment on the sentencing commission report.

Scalia to reporters

Here is Scalia's gesture to a reporter asking him about whether he could be impartial about church/state issues as he was leaving church. He denied making such a gesture and then Peter Smith, a freelance photographer, released this picture. Smith was promptly fired!

In other High Court news, there is a move to put cameras in the Supreme Court and all federal courts around the country, which will produce similar gestures from Justices. In fact, two such bills are currently pending and are garnering support. I'm for it because it creates accountability for judges (and prosecutors). Thoughts?

Speaking of cooperators...

Marc has an interesting post below about the "Stop Snitching" campaign. Judge Huck sentenced a very high profile cooperating witness this week, Jack Abramoff.

We previously posted on Jack Abramoff's different hats. Here is the one he wore for Wednesday's sentencing hearing (it looks like the same one he wore at his guilty plea). Those familiar with the Southern District will recognize one of the friendlier court security officers standing in the background of the picture.

What I find much more interesting than all the hoopla about the hats is the 60 page memo (and 260 letters) that his lawyers filed in support of his request for a low-end of the guideline sentence, which TalkLeft praised as creative lawyering.

The debate about cooperators...

Professor Berman over at Sentencing Law & Policy has an interesting post about the USA Today article on the anti-snitching campaign.

This, of course, is a topic of great significance in the Southern District of Florida, and we hope this post results in some interesting dialogue.

Here's the post from Prof. Berman:

Wednesday's USA Today has this extended article about the anti-snitching "campaign" that seems to have become a nationwide issue. Here is a taste:

Omerta, the Mafia's blood oath of silence, has been broken by turncoat after turncoat. But the call to stop snitching — on other folks in the 'hood — is getting louder. Is it an attempt by drug dealers and gangsters to intimidate witnesses? Is it a legitimate protest against law enforcers' over-reliance on self-serving criminal informers? Or is it bigger than that? ...

Alexandra Natapoff, a professor at Loyola Law School in Los Angeles, says that, based on federal statistics, one of every four black men from 20 to 29 is behind bars, on probation or on parole, and under pressure to snitch. She estimates one in 12 of all black men in the highest-crime neighborhoods are snitching. She says informers strain the social fabric of poor minority neighborhoods, where as many as half the young men have been arrested....

Hence a backlash — "stop snitching." The slogan appeared in Baltimore about two years ago as the title of an underground DVD featuring threatening, gun-wielding drug dealers... The black community is divided. Rapper Chuck D of Public Enemy has blasted the Stop Snitching campaign on the hip-hop group's website....

Whatever its intent, the Stop Snitching movement has galvanized officials already apoplectic about witness reluctance and witness intimidation.... Stop Snitching T-shirts have been banned from a number of courthouses. Boston Mayor Thomas Menino, whose city recorded the most homicides in a decade last year, threatened to send police into stores to pull them off the shelves. Following the furor over the Stop Snitchin' DVD, Maryland raised witness intimidation from a misdemeanor to a felony, and Baltimore police made a tape of their own, Keep Talking. "People have to snitch," says Peter Moskos, a former Baltimore street cop.

HIGH PROFILE SENTENCINGS

Jack Abramoff and his former partner Adam Kidan were sentenced by the Hon. Paul C. Huck to five years and ten months, the low end of the federal sentencing guidelines. Both men were ordered to pay restitution in the amount of 21 million dollars. Abramoff will likely see that sentenced reduced as he continues to cooperate with the Government regarding alleged corruption by members of Congress.

William Rodriguez-Abadia, the son of Miguel Rodriguez Orejuela and the nephew of Gilberto Rodriguez Orejuela,* was sentenced to 262 months by the Hon. Federico Moreno. At the sentencing hearing, Rodriguez-Abadia informed the Court that he will cooperate against his family. In light of his cooperation, the Government stated that they will likely file a Rule 35 to reduce Rodriguez-Abadia's sentence.

*Disclosure -- David Markus is lead counsel for Gilberto Rodriguez-Orejuela.

Verdict

After six weeks of trial and seven days of deliberations, I'm very excited to post that my client (and four of the other 9 defendants) were found not guilty today. What an unbelievable feeling. Many people wonder why criminal defense lawyers do what they do. There is no better feeling in the world than hearing those two magical words. Nothing better.

I salute the lawyers I was honored to work with in this case. Roy Black, Maria Neyra, Jackie Perzek, Jared Lopez, Alex Zipperrer, John Ossick, Tom Withers, Nate Diamond, George Vila, John Howes, Scott Srebnick, Hy Shapiro, and Ed Tolley. The prosecutors -- Jim Durham, Fred Kramer, Joe Newman, and Jeff Buerstette -- were gentlemen and excellent lawyers. Judge Edenfield ran a tight ship and made what could have been a 4 month trial a six week trial. His staff was also great.

I knew we'd get a verdict today because my wife and new baby hopped on a plane at 12:30 to come visit me in Savannah. We got the verdict at 12:35... No joke.

What an experience. More to follow.

I might as well blog...

... since we are on day 7 of deliberations.

Jay Weaver reports on the government bugging of the FIU couple here. Very interesting article. Here's the intro: "Federal agents planted a bug in the bedroom of a Florida International University a couple of years ago, netting evidence to charge them as unregistered agents for the Cuban government, according to court records. The FBI also wiretapped the home phones of Professor Carlos Alvarez and his counselor wife, Elsa Alvarez, from at least late 2001 until last summer, collecting electronic evidence on practically all of their conversations.
The reams of intercepts included mundane exchanges and even the private musings between husband and wife." Here is the defense motion on the issue and the government's brief as well.

Also, Jack Abramoff will be sentenced today. Brian Tannebaum blogs about it here and here.

Padilla hearing

"MIAMI (AP) -- The federal judge overseeing the terrorism case against Jose Padilla imposed tight restrictions Tuesday on the handling of classified material to prevent disclosure of national security secrets when classified evidence is turned over to the defense."

p.s. We're in day six of deliberations. Miserable.

See no evil

Another fight brewing in the Padilla case -- this time over what evidence should be turned over to the defense. Here's the intro to Dan Cordtz's DBR article:

U.S. District Judge Marcia Cooke in Miami is expected Tuesday to consider an unusual motion by prosecutors in the terrorism case against Jose Padilla and two of his alleged accomplices to prevent the defendants from seeing classified information the government may use against them.

Although a government spokeswoman declined comment, defense attorneys said the motion shows that prosecutors plan to use classified materials in the upcoming trial of Padilla, Adham Amin Hassoun and Kifah Wael Jayyousi and wants to prevent the defendants from seeing such evidence. The trial is now scheduled for September.

Such restrictions, said Miami solo practitioner Kenneth M. Swartz, counsel for Hassoun, “would be a big problem. A defense attorney has to be able to share information with his client in order to mount an effective defense. We will have to put up a fight about it.”

The three men, along with two others who are not in custody, are charged with conspiracy to murder, kidnap and maim persons in a foreign country and with providing material support to terrorists.

In his motion, filed last month, Assistant U.S. Attorney Russell R. Killinger invoked the federal Classified Information Procedures Act.

“In conducting its investigation of the criminal activities of the defendants, as well as in preparation to meet its discovery obligations, the government has concluded that there is classified material in various milieu, including written documents, which items may be relevant to this case and which are classified as ‘Secret’ or ‘Confidential,’ ” wrote assistant U.S. attorney Russell R. Killinger. “Some of this classified information is the property of foreign governments.”

JUDGE HENRY LEYTE-VIDAL HAS PASSED AWAY

Hello Federal Blog readers. Some of you read my State Court Blog, where I am infamously known as "Rumpole". David Markus was kind enough to invite me to be a guest blogger during his trial and absence from the Southern District. I am sorry that my first post on this blog brings such sad news. We have lost a wonderful Circuit Court Judge for the second time in a few months. The following is an email we received from one of our readers:

Judge Henry Leyte-Vidal has passed away yesterday. He died during the night while at Mt. Sinai hospital on Miami Beach. He was operated earlier this week for cancer. He has previously battled a brain tumor, skin cancer and I believe lung cancer. Henry came out of the operation OK but complained of some pain on Friday. The doctors were going to go back in but couldn't since he had low blood pressure (Could've been high, he suffered from one of these two). Since the doctors were unable to stabilize his blood pressure, they were unable to go back in. He then suffered cardiac arrest. and was placed back in ICU. This was all yesterday . Last night, He seemed to have stabilized when he died. Peter Heller just called me so I am passing it on to you. Peter was very close to Henry. They coached Little League together and Peter was with his son Danny throughout the day. Danny is 14yrs old. Judge Leyte-Vidal is also survived by two older sons Alex and Henrique or Enrique from an earlier marriage.

Is there anything worse for a trial lawyer...

...than having a jury out deliberating?

Rumpole invited

In the spirit of keeping the blog alive and kicking while I'm suffering in Savannah, I've invited Rumpole (yes, the Anonymous State Court Blogger) to guest blog. Enjoy.

Marcos Jimenez responds part II

Marcos Jiminez has posted comments responding to the DBR editor and to "anonymous." Here are the comments:

COMMENT #1"Anonymous" should listen to the tape and write us about it for attribution. Otherwise, any comments by someone named "anonymous" are laughable and cowardly. Posted by Marcos Daniel Jimenez to Southern District of Florida Blog at 3/20/2006 11:19:30 AM

COMMENT #2 My response to the Editor is simply this: anyone listening to the tape will agree that the DBR misconstrued my remarks in a sloppy and disingenuous fashion just to create an attention-grabbing opening. This made for such a confusing introduction that the DBR felt obliged in the third paragraph to notify the reader that I was actually defending the Bush administration during the debate. The Editor's response likewise selectively quotes my statements in order to downplay my defense of the administration's actions.

These attempts to twist what is said on these issues are obviously slanted and somewhat humorous. It reminded one of my colleagues about a recent ABC Stephanopoulous show interview of Sen. Specter:

STEPHANOPOULOS: You know, if the president did break the law or circumvent the law, what’s the remedy?

SPECTER: Well, the remedy could be a variety of things. A president - and I’m not suggesting remotely that there’s any basis, but you’re asking, really, theory, what’s the remedy? Impeachment is a remedy. After impeachment, you could have a criminal prosecution, but the principal remedy, George, under our society is to pay a political price.

You know what the headline was the next day in the LA Times? You guessed it: Arlen Specter: "Impeachment is a remedy"
Posted by Marcos Daniel Jimenez to Southern District of Florida Blog at 3/20/2006 11:16:00 AM

Judge gives maximum 10-year sentences to 2 Cuban smugglers

The Herald reports here regarding Judge Moore's decision to impose the statutory-maximum sentence in an smuggling case that resulted in the death of a young boy.

DBR editor responds

Carl Jones, a reporter at the DBR, was kind enough to email me the DBR's response to Marcos Jimenez's letter:

Editor’s reply: The article prominently noted that Jimenez defended the warrantless eavesdropping program and quoted him saying that the president’s conduct is “plausible and defendable.” It also explained that Jimenez was responding to a question about the appropriate penalty if the Bush administration went too far. The piece quoted Jimenez’s exact language that if the spying program monitored purely domestic communications, “the remedy if he exceeds his authority is impeachment.” The full nature and scope of the monitoring program has not been disclosed.

Marcos Jimenez responds (UPDATED)

A couple days ago the American Constitution Society held a debate between former U.S. Attorney Marcos Jimenez and Neal Sonnett regarding NSA's warrantless wiretapping. The Daily Business Review ran an article (by Julie Kay) on the debate, highlighting Mr. Jimenez's answers to questions (by Richard Rosenthal) about what remedy there should be if the President violated the Constitution. The article reported that Mr. Jimenez responded that impeachment would be appropriate. Mr. Jimenez has called the article misleading and has asked that his letter in response to the Daily Business Review editor be posted on the blog. So here it is.

***Today's "Dueling Over Eavesdropping" Article on Page A3 of your publication misrepresents and takes out of context what I saidduring the debate with my colleague Neal Sonnett. Towards the end of the debate, I was asked a hypothetical question regarding remedies for inappropriate action by the administration, and as part of my response I said that impeachment is a constitutional avenue to hold the President accountable. I never said or "suggested" that it would be"appropriate" to impeach President Bush in connection with theNSA's warrantless intercepts of terrorism-related communications. Indeed, during the debate, I vigorously argued in favor of the NSA'sand the President's actions, which are wholly appropriate and necessary to protect our country in this time of war.***Marcos Daniel Jimenez Kenny Nachwalter, P.A. 1100 Miami Center201 S. Biscayne Blvd.Miami, FL 33131Main: 305-373-1000 mjimenez@kennynachwalter.com

Here is the intro to the Business Review article:
Former U.S. Attorney Marcos Jimenez has suggested that it would be appropriate to impeach President Bush if it’s found that the Bush administration monitored domestic calls or e-mails without court approval, or if his approval for the warrantless spying program exceeded his constitutional authority. “My opinion is the [National Security Agency] program should not be used domestically, for state-to-state calls,” said Jimenez, a partner at Kenny Nachwalter, during a debate on secret spying in Miami last week that was sponsored by the American Constitutional Society. “In those cases, the Foreign Intelligence Surveillance Act would apply and the Fourth Amendment would apply, and you would need a warrant. The remedy if he exceeds his authority is impeachment.”

I'd like to thank Mr. Jimenez for making this letter available to the blog for posting. I would also invite Julie Kay and Richard Rosenthal to respond to this letter, as well as anyone else who was at the event. (Disclosure -- I am on the board of ACS and helped to plan the debate... Unfortunately I wasn't able to attend as I'm still stuck in Savannah).

UPDATE:
RICHARD ROSENTHAL HAS EMAILED ME HIS RESPONSE. HERE IT IS:
"David Markus has asked me to comment on the controversy surrounding a recent Daily Business Review article by reporter Julie Kay. Ms.Kay's article concerns comments made at the American Constitution Society's recent debate on the Bush Administration's NSA wiretapping program. One of the panelists in the ACS event, former U.S. Attorney Marcos Jimenez, now states that Ms. Kay's article misleadingly takes out of context some of Mr. Jimenez's answers to questions I posed to him. Because Ms. Kay audiotaped the entirety of the program, there is little that my own memory of the event could possibly add here. The recording will speak for itself. Perhaps an impartial third party would want to review the recording to make an independent assessment of Mr. Jimenez's present assertion. But -- as the ViceChair of the organization sponsoring the event, and as the person whoposed the rather pointed questions to Mr. Jimenez in the first place -- I am probably ill-suited to serve such a role. I would add only that I have the highest professional regard for Ms. Kay's journalistic abilitites and ethics, and equally high regard for Mr.Jimenez's legal abilities and ethics. I thank both of them for their presence and respective roles at the ACS event."

Extradition or kidnaping?

The U.S. government tried to extradite a man to the Dominican Republic. He waited in the FDC in Miami for 8 months fighting it, claiming the DR was lying and fabricating evidence to secure the extradition. Guy Lewis and Mike Tein convinced Magistrate JudgeBarry Garber that the extradition was based on false testimony. Unbelievable. Here's the Herald story which was emailed to me.

Federal Bar Luncheon

The Hon. Adalberto Jordan spoke at the Federal Bar Association’s luncheon yesterday. Judge Jordan explained that attorneys must inform the public of the importance of the judicial “process” and to avoid the tendency to focus solely on the end result of a judicial decision. Judge Jordan emphasized that the public needs to become more aware that a judge’s ruling is based on rules, procedures, precedent, statutory interpretation and legislative history. He specifically pointed out how media pundits talk about impeaching judges because of “lenient” decisions in criminal cases or argue about how a newly appointed Supreme Court justice may rule on a particular issue, thereby politicizing the judicial process, and that this endangers the public’s perception of the judiciary. He offered as an example the recent decision by Judge Moreno involving the fifteen Cuban refugees who arrived at the old Seven Mile Bridge. The media focused on the end result and whether Cuba would allow these refugees to return to the United States rather than on the “process” of how Judge Moreno reached his decision. Judge Jordan requested that all of us inform our loved ones, neighbors, and colleagues that judicial decisions involve more than just final decisions but a process that protects the integrity of our legal system.

This year we are slaves...

... next year may we be free men.

That's how Passover Sedar is concluded.

Howard Srebnick has a great quote playing off of that line for his new client, alleged Israeli crime boss Ze'ev Rosenstein: "This year a prisoner in Miami; next year a free man in Israel." U.S. Attorney Alex Acosta responds: "By prosecuting these cartels and the heads of these cartels, in one strike we clean up the streets." The case is in front of Judge Dimitroleous in Ft. Lauderdale. Here's some coverage of the case.

As for Savannah, we are having court this Saturday... No kidding.

So I again apologize for the really slow blogging.

News and notes

Still chugging along up here in Savannah...

Readers have forwarded me some interesting articles today, so here they are:

One is from the Miami Herald about Jack Abramoff's sentencing. Despite the joint motion to continue the sentencing for at least 90 days, Judge Huck only gave a two week continuance until March 29.

Then there's Julie Kay's article in the DBR today about the feud between Judges Hurley and Zloch regarding the Broward courthouse and splitting the District. Here's the intro: District Judge Daniel T.K. Hurley is urging the Broward legal community to forget about establishing a new federal judicial district consisting of Broward and Palm Beach counties and to instead fight hard to keep a federal courthouse in Broward.Hurley, speaking to the Federal Bar Association’s Broward chapter late last month also disclosed for the first time that Southern District of Florida Chief Judge William J. Zloch kept his plan to close the federal courthouse in Fort Lauderdale secret for a full year.Hurley also said Zloch’s plan was approved by South Florida’s federal judges by a single vote and that Zloch never told judges the results of a second vote on the issue.Zloch, who does not talk to reporters, did not return a call for comment.In a December 2004 letter to the Judicial Conference of the United States first reported by the Daily Business Review on Jan. 12, 2005, Zloch laid out a plan to save more than $100 million by, among other things, consolidating court services now performed in Fort Lauderdale, West Palm Beach and Miami. Zloch suggested that a new courthouse long proposed for downtown Fort Lauderdale instead be built in West Palm Beach.Zloch also proposed consolidating budget administration services, procurement, personnel computer services functions, and the intake functions of the district and bankruptcy courts.After Zloch’s plan was disclosed by the Review, it was torpedoed by South Florida members of Congress, local elected officials and community leaders. Instead, plans are under way for a combination state and federal judicial complex in downtown Fort Lauderdale.Last May, Hurley took the unusual step of meeting with newspaper editors to denounce Zloch’s “clandestine” effort to close the courthouse. In doing so, he won the gratitude of Fort Lauderdale lawyers, who would have had to commute to Miami or West Palm Beach to conduct their federal practice.“He is a hero to us,” Fort Lauderdale lawyer Terrence Russell, a partner at Ruden McClosky and former Florida Bar president, said after Hurley’s talk at the Federal Bar’s meeting late last month.

More news to follow later tonight if I can squeeze out a couple minutes...

Thanks for Marc Seitles for his posting.

Mandatory Minimums Gone Forever - Just Kidding

Interesting piece in the Congressional Quarterly Today about James "mandatory minimum" Sensenbrenner, the Chair of the House Judiciary Committee. Apparently, Mr. Sensenbrenner and others on this important committee believe that mandatory minimum sentences are unduly harsh and unfair. Well, not really. Nevertheless, Mr. Sensenbrenner has "agreed to strip many of the mandatory minimum sentences aimed at curbing street gangs and violence against judges from legislation that the House is likely to consider this week." The blog Sentencing Law and Policy discusses the recent article and has an interesting series entitled "Dead Booker Walking." Check it out.

Secret Dockets

It looks like the controversy of secret dockets is becoming part of the federal judicial landscape. Jurist.law.pitt.edu has an interesting article on the issue and explains that there has been a “sharp increase” in secret proceedings in U.S. federal courts. More than five thousand criminal defendants have had their case records sealed, that is more than five times the number from 2003. Hidden federal dockets, where the existence of the case is not disclosed, is also on the rise. Interestingly, as many readers already know, the Eleventh Circuit ruled that secret dockets were unconstitutional in United States v. Ochoa. Are secret dockets the trend of the future?

Blog press

Florida Trend has an article about Florida legal blogs by Cynthia Barnett and mentions SDFLA.

(I'm home for the weekend, and then back to Savannah for trial on Monday. We've zoomed through 50 witnesses. Another 100 to go...)

Judicial Retirement

Magistrate Judge Hugh J. Morgan announced his retirement today. Judge Morgan has served six terms and has been on the bench for almost 25 years. He was the only magistrate to sit in the Florida Keys thus raising questions about whether he will be replaced or the part-time mag position in Key West will be gone forever. Anyone with inside information on what will likely happen feel free to comment.

A Bridge to Freedom?

Judge Moreno issued a landmark decision finding that 15 repatriated Cubans were removed to Cuba illegally insofar as the Coast Guard's decision to remove the refugees "was not a reasonable interpretation of present executive policy." This case highlights the debate about the "wet-foot, dry-foot policy" that allows Cubans to remain in the United States if they reach land. Cuban refugees had reached the old, unused Seven Mile Bridge but the Coast Guard determined that the bridge had been abandoned and that the Cuban refugees had not reached dry land in the United States. Judge Moreno disagreed.

The question of the day is whether Fidel Castro will allow these Cubans to return to the United States...

Read more from today's Miami Herald

It's official...

... the FDC-Miami officials have lost their marbles.

Check out the DBR article today (another Julie Kay special) about the new dress code at the prison -- FOR LAWYERS. Here's the intro:

Going to visit a client in the Federal Detention Center in Miami? Better make sure you’re wearing a conservative suit, and whatever you do, don’t wear gray slacks and a blue blazer. In recent weeks, the FDC has begun cracking down on villainous lawyers who wear nonmatching pants and blazers, gray pants and blue blazers and even khaki pants. And women who wear skirts above the knee or with slits are reportedly being turned away, too. Miami lawyer Bruce Alter said in a phone message he was turned away from the FDC last week for wearing khaki pants, as was Darryl Wilcox, an assistant federal public defender, who was wearing gray pants, a white shirt, red tie and blue blazer. “I was wearing the standard out-of-court outfit,” Wilcox said. “They told me it was too similar to what the Bureau of Prisons guards wear.” While Wilcox was not allowed to enter the jail, the public defender-hired translator was waiting inside with Wilcox’s client, who speaks only Spanish. Wilcox ended up returning to his Fort Lauderdale office without being able to see his client. “I was annoyed,” Wilcox said. “But I guess security is security.”

Sleepless in Savannah

So I'm still here in Savannah trying this case. One week down, who knows how many to go. In the first four days of trial, we've picked a jury, done 11 opening statements, and have examined 28 witnesses. No joke...

I miss the Southern District of Florida.

In actual SDFLA news, check out this Sun-Sentinel article about FDC getting slammed again, this time by Judge Cooke. Frankly, the BOP deserves it.

During this period of slow blogging, I'm counting on you all (I guess I should say y'all) to keep the blog buzzing in the comment section about all the goings-on in the district.

U.S. Probation - Powerful or Powerless

The authority of the United States Probation Office was addressed last week by the Eleventh Circuit Court of Appeals. In U.S. v. Nash, No. 05-11440 (Feb. 13, 2006), the Court agreed with the defendant that the district court erred in delegating to a probation officer the judicial task of determining whether he should participate in a mental health program, but otherwise affirmed the sentence. The Eleventh Circuit concluded that the district court, not U.S Probation, must decide whether a defendant should participate in mental health counseling.

On the other hand, the Court made clear that U.S. Probation still has the discretion to discuss a defendant’s prior criminal record, or personal history or characteristic with third parties. The Court also upheld the condition of supervised release which delegated to a local U.S. Probation Officer the task of requiring the defendant to secure prior approval from his probation officer before opening any checking, credit, or debit account (Nash was convicted of fraud).

Does United States Probation have too much authority or too little? What about travel restrictions placed on defendants while on Supervised Release? Fair on unjust? Throw your jabs and lets hear some comments.

More Departures From U.S. Attorney's Office

Kenneth Blanco, Deputy Chief of the U.S. Attorney's Office is off to D.C. He has been named Chief of the Narcotics and Dangerous Drugs Section at the Department of Justice. Ken has been at the U.S. Attorney’s Office in Miami since 1998 and had recently applied for the position of the U.S. Attorney for the Southern District of Florida.

AUSA David Buckner is also moving on. After 8 years with the U.S. Attorney’s Office in Miami he is entering private practice. David’s last case was a memorable one as he argued the en banc appeal in the case of the five Cuban spies.

It goes without saying that Miami is losing two very good federal prosecutors with lots of experience. Yet strangely, it appears that they have been hiring mostly younger prosecutors as of late with a lot less trial experience. Thoughts?

More on this topics in an article by Julie Kay in Tuesday’s Daily Business Review.

News and notes

Well, we picked a jury in Savannah today. We started at 9AM and were done by 2PM. When the case is over, I will have more commentary on federal jury selection. I have posted previously on eliminating the peremptory challenge.

Busy day at the Supremes. There was a Blakely cert grant. Abortion debate is back in DC. But I know most of you were following the hallucinogenic tea case. Today, the High Court -- per Roberts -- allowed the small church to continue drinking it (to the disgust of the DEA) so that they could connect with God. Right about now, I could use some of that tea. (The Court took no action in the Padilla case, so right now it's full steam ahead for the trial to proceed in September in front of Judge Cooke).

Excuse the slow blogging while I'm in trial... I'm hoping Seitles and Anon will pick up the pace...