11th Circuit vacates drug conviction

Extremely interesting case from the 11th Circuit today, United States v. Lopez-Vanegas. The issue is whether the U.S. drug laws reach conspiracies to distribute cocaine from one foreign country to another, where meetings occurred here in the U.S. The Court said no, reversing two convictions.

From the 11th:

Appellants assert that the agreement to ship cocaine from Colombia to Venezuela to Saudi Arabia to France for distribution throughout Europe does not violate 21 U.S.C. § 846 because the object of the conspiracy – the possession and distribution of cocaine on foreign soil – is not a violation of 21 U.S.C. § 841(a)(1). Thus, the district court should have granted defendants’ motion for acquittal at the close of the Government’s case. The Government asserts that the defendants’ conduct was encompassed by the prohibitions of 21 U.S.C. § 846 and § 841(a)(1), forbidding conspiracy to possess with intent to distribute cocaine. The issue of whether discussions occurring in the United States related to possession of controlled substances outside of the United States with intent to distribute those substances outside of the United States is a crime in the United States is res nova in the Eleventh Circuit. We squarely address that issue now.
***
Because the Court holds that 21 U.S.C. §§ 841 and 846 do not apply extraterritorially, the conduct of Lopez and Salazar does not violate those statutes. The judgments of conviction and sentences issued by the district court are VACATED.

It will be interesting to see how this case is applied in a number of different prosecutions. First, the Padilla defense has raised this argument, saying that even if the Government is correct, the object of the conspiracy deals with conduct overseas. I'm not sure if the statute at issue there contemplates this sort of activity... but if not, watch out. (Second) Update -- I'm told that the statute at issue in the Padilla case does, in fact, address conduct overseas...

Also, what about the cases involving people going overseas to find underage sex. Typically, those cases involve a defendant talking to an undercover travel agent arranging for a trip to another country. To date, these convictions have been upheld even though all the intended activity is occurring in another country. UPDATE -- a helpful reader points out that the statute in these cases, 18 USC 2423, addresses people here travelling in interstate or foreign commerce, which makes it much different than the drug statute addressed above.

Very interesting...

Congrats to Scott Srebnick and Richard Strafer, the defense lawyers on this case.

This is why federal judges don't like voir dire

Jury panel queried in masturbation trial.

Thank goodness for Broward County...

UPDATE -- Rumpole gets all serious on this topic here.

SECOND UPDATE -- The guy was convicted. Fred Grimm criticizes the prosecution here.

It's getting hot in here

Apparently it got so contentious yesterday in the Jose Padilla trial that Judge Cooke had to call a timeout for the witness and the lawyers. Here's the AP:

But Awad, in a heated exchange with Assistant U.S. Attorney Brian Frazier, said the money raised at the Florida mosque and elsewhere was not intended to fund terrorists. Awad drew a distinction between terrorism and Islamic mujahedeen who were fighting in defense of Muslims in places like Chechnya, Bosnia and Somalia.
"The mujahedeen were fighting, and in fighting there is killing," Awad testified. "The mujahedeen are honorable people. Terrorists are people who have no goal but to maim and kill."
***
There were several tense exchanges during cross-examination between Awad and Frazier, including one instance when Awad raised his voice and said people who commit atrocities against Muslims "should be killed and taken to justice."
U.S. District Judge Marcia Cooke sent the jury out of the room at that point and told Awad to keep his cool.

More from the Sun-Sentinel:

To federal prosecutors, he is the central figure in a South Florida terror support cell.But Adham Amin Hassoun's lawyers claim their client, a former Sunrise computer programmer, was a philanthropist, not a terrorist.Both sides pushed their positions Tuesday in Miami federal court during heated testimony from the former imam of the Fort Lauderdale mosque that Hassoun and his co-defendant Jose Padilla attended in the mid-1990s.
The questioning grew so contentious, U.S. District Judge Marcia Cooke twice asked jurors to step out of the courtroom so the imam and the attorneys could cool off.
***
Touching on what has been a hot-button issue in the case, Awad insisted those who resort to violence to protect Muslim communities from oppression or ethnic cleansing should not be considered terrorists."I would really appreciate if you do not imply mujahideen and terrorists are the same," Awad told Frazier. "The mujahideen are honorable people. ... Terrorists are people who have no aim and no goal but to maim and kill."
***
"We are required by our religion, by our faith, to help people in need, to help people under attack," Awad said."Did you ever preach an obligation to support mujahideen fighters?" Frazier asked."Mujahideen are people who are defending themselves," Awad said."The answer is yes?" Frazier pressed."No, the answer is no," Awad said.

Although Padilla's lawyers didn't ask any questions of this witness, Padilla was mentioned:

Awad said he bought an airline ticket to Cairo, Egypt, for Padilla with money collected from mosque members. Padilla was moving to the Middle East to study Islam and Arabic, Awad said.

News and Notes

1. Noriega doesn't want to be deported to France. (Miami Herald and pic from Herald)

2. Defense lawyers in Padilla are questioning the translations. (NY Times and AP)

3. "Coral Springs boy, 7, on no-fly list has been delayed at airport three times" (Sun-Sentinel) To the right is his picture, with his mother. How crazy!

Health Care fraud in the DBR

It's Julie Kay's DBR today. She has a whole (cover) section on Medicare fraud, which you can read here. Interesting theories on where health care fraud is coming from -- Jose Quinon says it's from Fidel:

Some lawyers, prosecutors, and agents, however, theorize that the Cuban government is behind Medicare fraud. They argue that the money is routed to Cuba and that’s why prosecutors are never able to get their hands on most of the stolen funds. “I’ve been hearing that Fidel is sending people here to do the fraud for a long time,” Quinon said. A former prosecutor who didn’t want to be identified debunked that theory. “I’ve heard for years, that there are folks … that funnel money back to the island,” he said. “But I have never heard anyone [offer] evidence of a formal tie to the Cuban government.”

Kay's other story deals with Richard Sharpstein's defense of a fraud defendant and prosecutors and agents trying to get him off the case because his law firm represents some of the insurance companies who supposedly have been defrauded. It's getting ugly in that case as agents are calling Sharpstein's firm's clients to inform them of the potential conflict. The case is in front of Judge Hurley and Sharpstein has hired Lewis Tein.

If it wasn't such a busy morning, I'd have more to say about both of these stories. Perhaps later in the day...

Also, check out Jay Weaver's article about Noriega this morning. The litigation is heating up on that case as well as France is trying to get the US to send him there.

"The actions in this case frankly are disgusting and despicable. It almost defies belief."

That was Judge Graham as he sentenced Detective Thomas Simcox, 50, to just over 11 years (which was more than prosecutors has asked for) and a $100,000 fine. He continued: "On the scale of criminal conduct, this case ranks near the top."

Two other officers fared no better in front of Judge Cohn: Hollywood Police Sgt. Kevin Companion was sentenced to 14 years in prison and Officer Stephen Harrison received a nine-year term.

The case as described by the Sun-Sentinel: "The four officers were arrested in February after an FBI sting caught them — on videotape — dealing in stolen diamonds in Atlantic City; transporting stolen art while using police evidence room receipts as cover; protecting crooked card games; and finally, late last year, running protection for what they thought was a shipment of heroin."

Public corruption cases are always tough on the sentencing judge and the cases always raise a host of issues. Should the sentence be higher for a public official (in this case a police officer) than for someone else who does the same act because the official violates public trust? Or should the sentence be lower if the official has done lots of good for society? Or should these two factors be a wash?

More from the article:

Friday morning's sentencing of Companion, 41, and Harrison, 47, included hours of emotional pleadings, while raising the question of how men who all agreed were caring, compassionate family men and good police officers could turn criminal.The amount of money they received — from $12,000 for Harrison up to $42,000 for Companion — was less than they could have made working overtime and extra details, Hollywood police officials have said."Any sentence would serve not only as punishment of Kevin, but of his family and his kids," a tearful Emily Companion, Sgt. Companion's wife, told U.S. District Judge James I. Cohn as she clutched photos of the couple's two children, her husband crying just a few feet away. "We are suffering every minute of every day."Cohn responded sympathetically: "Ma'am, you know it is always the family who suffers the most. Always." Looking at the pictures, he smiled and said, "your children are beautiful."

Oh boy...

I feel bad for the Kenny Nachwalter lawyer (the original post had her name, but I have since deleted it) who filed a notice to appear for the alleged victim in the Chuckie Taylor case (he's the son of former Liberian president Charles Taylor who has been accused of torture). The problem is that the pleading wasn't filed under seal and the name of this victim is supposed to be secret.

The DBR has the story here.

Any thoughts on whether this article should have been published. Seems newsworthy to me, but others have expressed that the article should not have been written or in the alternative should not have included the victim's name. Thoughts?

Federal Judges are people too

I love this story in So. Florida Magazine featuring our very own Judge Ursula Ungaro, who golfs in her spare time. How cool. Judge Ungaro, known as one of the smartest and sharpest judges in the district, can also hit the ball pretty well. Although she normally plays at the Biltmore or Granada, she has played as far away as George, South Africa where she "had to fend off the monkeys, who were trying to steal the balls out of [their] bags."