Blackberry blog from court

Sorry for the quick Monday morning blogging. More to come this afternoon. For now check out this Julie Kay article about a new prosecution unit targeting violent crime.

http://www.dailybusinessreview.com/news.html?news_id=44265

--David Oscar Markus
www.markuslaw.com
305-379-6667

Maintain radio silence

Looks like the Jose Padilla defense is continuing its trial strategy of trying to distance itself from the other two defendants. As the other two mount their defense by presenting witnesses and evidence, Padilla's lawyers are keeping quiet. According to this interesting article by Curt Anderson:

The first week of the defense case in the Jose Padilla terrorism support trial came to a close Friday with Padilla's own lawyers taking virtually no role so far.
"No questions, your honor," said Padilla attorney Anthony Natale, neatly summing up the Padilla defense team's courtroom activity since Monday.
Attorneys for co-defendant Adham Amin Hassoun, who allegedly recruited Padilla for Islamic extremist causes, called four witnesses in the 11th week of testimony in the case. And lawyers for third defendant Kifah Wael Jayyousi actively questioned all four, as did federal prosecutors.

Anderson wonders whether Padilla will present any evidence:

It's been virtual silence from the Padilla corner, and it remains to be seen if Padilla's lawyers will put on any witnesses or ask any questions. Defendants accused of crimes are not legally required to testify or put on any kind of case, with the burden to prove the crimes squarely on the prosecution.
Michael Caruso, one of three federal public defenders representing Padilla, said at the close of the prosecution case that his client deserved acquittal because of lack of evidence. The three defendants are charged with conspiring to murder, kidnap and maim people overseas as part of a North American cell supporting al-Qaida and other Islamic extremist groups around the world.
"There is simply not enough evidence for any reasonable juror to conclude that Mr. Padilla was a willing participant," Caruso said.

We did hear from one interesting witness today regarding co-defendant Adham Hassoun:

For example, Hassoun's father-in-law Mohammed Wannous, 73, came all the way from Helsinki, Finland, to testify for about an hour Friday about one phone conversation he had with Hassoun in 1997. In the call, the two make reference to a Lebanese group, Usbat al-Ansar, that prosecutors say had connections to al-Qaida leader Osama bin Laden.
Wannous said his son-in-law was only kidding around when he said on the call that "we are with" that group.
"He was joking with me, as usual," said Wannous, who testified in Arabic through a court translator. "Because I know he didn't belong to any of them."
Prosecutor John Shipley, however, noted that neither man was laughing when they discussed the matter, although they laughed loudly later in the call when talking about family issues.
"You didn't say in the conversation, 'Adham, you are only joking,'" Shipley said.
"He always jokes," Wannous answered.
Like much of the first week of defense testimony, Wannous had nothing to do with Padilla. Testimony resumes next week and is scheduled to continue through much of August.

Former AUSA making us proud

Broward Circuit Judge Jeffrey Levenson always was one of the fairest prosecutors to deal with when he was an AUSA. Now he is showing how to judge:

The jurors didn't know that the judge presided in his socks and the defendant testified in the judge's shoes.

That's what happened Tuesday when Broward Circuit Judge Jeffrey Levenson gave the shoes off his feet so Michael Fernandez, 22, could put his best foot forward to testify at his trial on a cocaine-trafficking charge.Fernandez mistakenly was brought to court in his jailhouse garb, said defense attorney Jim Lewis. When deputies finally delivered Fernandez's court clothes, his shoes were missing and he would have had to testify in his jailhouse flip flops, Lewis said.

Enter the judge and his size 11s."He took off his black loafers and said, 'Use these,'" Lewis said. "And sure enough, they were just about a perfect fit."

Love it. Well done Judge Levenson. And you may be wondering what happened to the defendant -- not guilty. I wonder what would have happened if the jury would have seen him in prison flip flops...

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.