Oral arguments at the Supreme Court

So I snuck out a bit early from my meeting today and went over to the Supreme Court. I sat in the attorney room for the tail end of the Stevens case, which addressed whether the First Amendment trumped the statute prohibiting the sale of depictions of animal cruelty. From what I heard, the case will be 8-1 in favor of the criminal defendant Stevens, holding that Section 48 -- prohibiting the sale of depictions of animal cruelty -- is unconstitutional. The one Justice that seemed to say that Congress could pass such a statute was Alito.

Then I actually got into the courtroom and saw the oral argument in Johnson v. United States, a sentencing case from the Eleventh Circuit addressing whether under the federal Armed Career Criminal Act a prior state conviction for battery is in all cases a “violent felony,” even when the state held that offense does not have as an element the use or threatened use of physical force.

It's amazing how close they let members of the Supreme Court bar sit to the Justices. It's like sitting in the front section of the movie theatre before the stadium seating starts. Very close. In this case Justices Scalia and Breyer were going at it. Scalia was clearly in favor of the criminal defendant and Breyer was clearly against. It will be a close case, probably 5-4... I would bet in favor of the defendant. Scalia used a hypo that made everyone laugh -- he asked whether if he told the government lawyer to shut up or he would flick her with his index finger, then would he be committing a violent felony. The government lawyer said yes... Any unwanted touching counted. Scalia didn't agree. Sotomayor was also an active questioner. Breyer kept asking about the "mine run" case, which sounded weird after the 4th or 5th time he used that term. He also took a jab at Scalia, saying if one were to read the legislative history of the statute, which some of his colleagues didn't do, it would be clear that Congress intended to cover this conduct. Chief Justice Roberts said that Congress could have been clearer and used the word battery if it wanted all battery cases covered.

UPDATE -- here's SCOTUSBlog's coverage of the Stevens' case.

PICTURES:

Supreme Court to hear dogfighting video case

Brian Maloney summarizes Stevens v. United States here. The issue is an interesting one: whether the First Amendment protects videos depicting animal cruelty. The Third Circuit found that the First Amendment did in fact protect such videos. From ScotusBlog:

The en banc Third Circuit overturned Stevens’s conviction, holding that the statute was unconstitutional on its face as a content-based prohibition on protected speech. The court first held that the speech regulated by § 48 is protected under the First Amendment. In its view, only one of the established categories of unprotected speech – child pornography – is even somewhat similar to the speech prohibited under § 48. The Supreme Court’s opinion in New York v. Ferber, holding that child pornography is not protected speech, set forth a number of factors to consider when determining whether to “create” a new category of unprotected speech. Applying these factors to the case at hand, the Third Circuit emphasized that although preventing cruelty to animals is “appealing . . . to our sensibilities,” it is not a compelling governmental interest in the context of free speech. Thus, it held, § 48 fails strict scrutiny because “it serves no compelling government interest, is not narrowly tailored to achieve such an interest, and does not provide the least restrictive means to achieve such an interest.”

I had a similar case involving cockfighting videos, detailed here but the case never got ruled on as we had to voluntarily dismiss the complaint. Shoot, this could have been my ticket to the Supreme Court...

First Monday in October

It's that time again, and I'm actually in DC for the day. Unfortunately, I'm not getting over to the Court for the first day of oral arguments this Term.

I'll post if I can get to a laptop later today; if not carry on in the comment section.

Miami is BACK

And it's not just the Hurricanes.

We've got all kinds of big fraud and corruption cases on the front page of the Herald this Sunday morning. There's Alan Mendelsohn's story, there's the advice given to Allen Stanford by Greenberg Traurig, and there's the investigation into prominent lobbyist Neil Sterling.

Ahhh yes, Miami is back.

Judge Graham is looking for a law clerk...

... to start now! Here's the vacancy posting.

Also check out SFLawyer for good coverage of Judge Jordan's recent dismissal of a case involving a lesbian woman and her children who were not allowed to visit her dying partner's bedside at Jackson. The Herald's story is here. The NYT piece is here.

News & Notes (UPDATED)

Lots going on today:

1. Another Mutual Benefits arrest: this time it's eye doctor Alan Mendelsohn. From Jay Weaver's article: Dr. Alan Mendelsohn, a Hollywood ophthalmologist who has raised millions for Florida politicians, surrendered to FBI agents on charges linked to his alleged efforts to thwart a 2000-05 state investigation into Mutual Benefits Corp., a Fort Lauderdale life insurance company.
An indictment charges Mendelsohn with 27 counts of wire and mail fraud and five counts of making false statements to federal agents related to a fraudulent fundraising and lobbying scheme, according to prosecutors.
Mendelsohn raised more than a half-million dollars from Mutual Benefits in 2003 to finance the hiring of a dozen lobbyists and make contributions to lawmakers, to stop legislation that would have tightened regulations on the so-called viatical industry. The industry sold life insurance policies of people dying of AIDS and other diseases.
The indictment alleges that Mendelsohn used a variety of false solicitations to raise money, including saying he had brokered illegal agreements with top Florida officials to close state and federal investigations. The indictment says that, in fact, no such agreements existed.
Mendelsohn, 51, is expected to appear in federal court in Fort Lauderdale Wednesday morning. His defense lawyer, John Keker of San Francisco, could not be reached for comment.

UPDATE -- The print version of the article, here, has lots more juicy details:

According to the indictment, Mendelsohn raised the $2 million from Mutual Benefits, an unidentified medical lab, a parimutuel business and a credit-card counseling firm during the past decade. Numerous medical colleagues of Mendelsohn's also contributed.

An unidentified ``accomplice'' assisted Mendelsohn in setting up the three political action committees and three corporations to move and disguise at least $624,000 in campaign funds paid to himself and others, according to the indictment.

Mendelsohn used some of the donations to pay $60,000 a month to his ``mistress'' from April 2003 to February 2005 for her assistance with the fundraising efforts, the indictment says. It also accused him of using $240,000 in PAC funds to buy and paint a residence for them and to buy a car for her.

The mistress is not identified in the indictment. But according to sources familiar with the case and public records, she is Caybre Cothern Ferrari, 39, who once worked as a scrub tech for Mendelsohn's eye surgery clinic.

At Mendelsohn's suggestion, the mistress established a corporation in March 2004 to divert campaign funds to Mendelsohn, herself, Florida politicians and others, the indictment says. It is illegal to divert campaign funds to personal use.

Public records show Ferrari created Broward-based KAC Consulting Inc. in March 2004.

Also in March 2004, records show that Ferrari transferred the deed to a home in Hollywood to her maiden name, Cothern. Mendelsohn is listed as a witness on the deed, records show.

2. The Supreme Court granted cert in 10 cases today, including a bunch of criminal law issues. SCOTUSBlog has all the details. The big one that everyone is talking about is: McDonald, et al. v. City of Chicago -- Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home. More interesting to me is the sentencing issue raised in United States v. O’Brien and Burgess: Whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machine gun is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or instead a sentencing factor that may be found by a judge by the preponderance of the evidence.

More on Ben Kuehne

This weekend Jay Weaver had an interesting article about the oral argument in Ben Kuehne's case. Background here. Jay asks whether DOJ has targeted Fabio Ochoa's lawyers because they actually had the nerve to go to trial. And Joe DeMaria, the recent quote-master, is at it again:

"This is the Scopes Monkey trial of money laundering cases,'' said former federal prosecutor Joseph DeMaria, referring to the historic 1925 test case in Tennessee over the teaching of evolution in school.**
"If the government wins a conviction against somebody like Ben Kuehne, it will send the defense bar into a deep freeze,'' said DeMaria, who has represented several white-collar defendants in civil forfeiture cases. "This isn't just about drug dealing; it affects the entire spectrum of law enforcement.''

Read the whole article... Good stuff.

Sitting here watching MNF right now. It was a long weekend for Miami sports. Dolphins, Canes, Pennington.... Ugh. At least we got off the board in the blog fantasy league.

**I like how Jay has to explain to the Herald readers what the Scopes Monkey trial is all about...

Happy weekend my peeps

Just saw that the blog made the WSJ blog this week. Pretty cool.

Hopefully the blog football team will have a better performance. We have the same record as the Dolphins right now... (But in my real league, I'm doing well. Does that count here?)

Have a good weekend everyone.

UPDATE -- hat tip to SFLawyer on this story from the Palm Beach Post re the non-prosecution agreement of Jeffrey Epstein. Apparently, for doign 18 months in state court and agreeing to pay for the victims' lawyers, he avoided federal prosecution. The article and the agreement are definitely worth a read.

Broward politicians charged

By now, all of you have read about the arrests in Broward of a bunch of politicians, so I won't bore you with more on that... But I wanted to give a shout out to Jeff Sloman, who is coming into his own at press conferences. A tipster sent me these quotes:

The name of the probe was "Operation Flat Screen." Sloman said that, "in the grand scheme of operational names, this is at the bottom."

"If this is what you go into public service for, eventually will be caught," he said. His advice: "Reconsider your career choice."

He concluded with this warning: "Our work will continue in Broward County.
We are not done."

Good stuff.

FBA "Boardroom lunch"

From incoming Federal Bar president Bill Roppolo:

Dear Federal Bar Members,

The South Florida Chapter of the Federal Bar is launching a new small group luncheon series. The Boardroom Lunches will be hosted by local law firms and feature two federal judges. Attendance will be limited to 20 Federal Bar members and the cost will be $50.00 per person. The lunches are intended to provide a relaxed atmosphere where Federal Bar members can interact with our Judges in a small group. We will rotate the location of the lunches therefore if your firm would like to host an upcoming luncheon, please contact me.

The first Boardroom Lunch will take place at 12 noon on Thursday, October 1, 2009 at Greenberg Traurig, 1221 Brickell Avenue, Miami, Florida. District Judge Paul Huck and Magistrate Judge John O'Sullivan will attend.

If you would like to be one of the 20 people to have lunch with Judge Huck and Magistrate O'Sullivan, please respond to this email. The first 20 affirmative email responses that I receive will have a seat at the boardroom table.

Thank you and best regards,

Bill
(Incoming President)

From what I understand there are six seats left. If you are intersted contact Bill at William.Roppolo@BAKERMCKENZIE.com

Blogging the Ben Kuehne argument in the 11th Circuit

I was at the oral argument in the Ben Kuehne case this morning. The issue is whether the exception in section 1957 prevents the government from indicting a criminal defense lawyer for taking payment from a client, previously discussed here. Judge Cooke found that the exception applied and dismissed that count against Ben. The government appealed. To cut to the chase up front, Judge Cooke will be affirmed. Here's what happened:

The panel consisted of Judges Barkett, Hull and Quist. Quist is a district judge from Michigan. The government was represented by Vijay Shanker from DOJ in DC. John Nields represented Ben.

The government started out its argument saying that no case supported the defense. Judge Hull jumped on that statement and said this was a case of first impression -- no case supported the government either. The government conceded that point... not a strong start. It only got worse for the government from there.

Barkett asked whether there was any need for the exception if it applied only to clean money. In other words, a lawyer can take clean money any time, so the exception obviously applied only to tainted funds. The government conceded this point and agreed that the exception concerned illegal money, but countered that only as necessary and guaranteed by the 6th Amendment.

Hull then asked whether this interpretation rendered the exception meaningless AND THE GOVERNMENT LAWYER SAID YES. It is the government's position that the words in 1956 are meaningless. Judges Hull and Barkett stuck on this point for a while... Judge Hull finally said: Listen, we have to give words meaning. Sometimes that hurts criminal defendants, but sometimes it helps.

Barkett then asked what the ordinary meaning of the statute was and the response was: whatever the Supreme Court says it means. Barkett responded: "Oh come on." Judge Quist, who seemed the most friendly to the government then asked whether he was relying on Marbury v. Madison. Answer: Yes.

The tone and atmosphere during the government's initial presentation was very hostile.

Then John Nields got up. He was calm and the tone immediately changed. There was no hostility and he received much fewer questions. The argument started: "I represent Ben Kuehne, a frequent practitioner before this Court and a leader of the Bar." Nields explained that the purpose of the statute was to allow criminal defense lawyers to take cases -- if they were afraid they were going to get indicted, they wouldn't. He explained that the exception only applied to criminal cases, not civil cases and importantly not forfeiture cases.

Quist then asked whether a lawyer could be paid with the proceeds from a bank robbery. Wouldn't that be wrong because the victims wouldn't get paid back? Nields explained, I think to the judges' satisfaction, that he couldn't be prosecuted for accepting the funds, but that they would be forfeited and that the victims would be paid back.

Nields went on to talk about the public policy choices that Congress made, and Judge Hull joked that Congress was probably just concerned with the public fisc -- it didn't want defendants with money to have to rely on public counsel.

DOJ said in rebuttal that there were only 3 cases against lawyers under 1957 and that we should just trust them to do the right thing.

Judge Hull ended the argument by explaining that they have had many Fabio Ochoa cases and knew the backdrop of what was going on. They weren't naive. But, she said, they were dealing with a very specific statute and the government had to understand that. Judge Quist responded: "I am naive."

All in all, I think there is a very strong likelihood -- based on the argument -- that Judge Cooke's decision to dismiss the 1957 count against Ben will be affirmed. This is the right and just result. I obviously am biased in the case as I filed -- along with some great lawyers from WilmerHale in DC who actually wrote it -- an amicus brief in support of Judge Cooke and Ben Kuehne on behalf of the National Association of Criminal Defense Lawyers.

The next argument dealt with the co-defendant, Gloria Flores-Velez, who was represented by Ricardo Bascuas and Henry Bell. The same DOJ lawyer argued for the government. Remember that Judge Cooke dismissed the case against this defendant based on speedy trial grounds. I will post more about it in a bit, but there was a funny moment when Rick was using the term "parallel market" instead of "black market peso exchange." The court asked what the parallel market was, and Rick said it was what the government referred to as the black market exchange. The court asked why the government used that term and Rick said "for its pejorative effect." And the judges and audience laughed. It was a good moment.

UPDATE -- Here's Curt Anderson's AP article. And here's the DBR by John Pacenti.

"You make this sound like a fraud case. This isn't Bernie Madoff."

That was Judge Kenneth Ryskamp last week on the Lin Gosman case, in which the judge sentenced Gosman to probation even though the guidelines called for substantial time in prison. I missed the case when it happened, so thanks to my peeps for sending it along. It's an interesting fact pattern. From the Palm Beach Daily News article:

Assistant U.S. Attorney Carolyn Bell, however, said Lin Gosman's admitted actions — hiding at least $400,000 in shared assets in storage buildings and receiving a $350,000 second mortgage on a Jupiter house she owns — without disclosing to the mortgage holder the $66 million bankruptcy judgment against her husband were "secretive, deliberate and dishonest. It was criminal."
"This is at the top of the heap," Bell said. "This is the type of bankruptcy fraud where everyone goes 'Oh, my goodness.' This conduct, if we don't address it, the bankruptcy system doesn't work."
Bell recounted Lin Gosman's post-indictment trips to Hong Kong, Dubai, Morocco, Paris and other spots — while allegedly conducting research for a children's book — as evidence she was spending funds that should have been reserved for her husband's creditors.
In addition, Gosman admitted filing a false tax return in 2004 and failing to file tax returns since 2005.
Bell said Gosman tried to hide $3.5 million in assets from the IRS. Gosman has already paid $350,000 in back taxes, Ryskamp said.

But the judge didn't agree with the government that Gosman should get time:

Gosman, 60, teared up and looked at her husband, Abe, as the judge pronounced the sentence.
"I'm so happy," she told him after giving him a kiss. "Why couldn't I have found someone like (Ryskamp) a long time ago?"
She could have received nearly four years in prison, according to sentencing guidelines, but the judge used his discretion and deviated from the guidelines.
Ryskamp cited Gosman's absence of a prior criminal record, her contributions of time and money to many charities and the deterioration of her physical and psychological health. Before she lied about her personal assets, Lin Gosman was a "pillar of society," he said.
The judge admonished the government's vigorous prosecution of the case.
"The U.S. Attorney's Office is hailing this like it's the crime of the century," Ryskamp said near the start of the sentencing hearing. "You make this sound like a fraud case. This isn't Bernie Madoff."
Ryskamp called the case "bizarre in many respects," adding that he has "never seen such an aggressive prosecution" of this type of case in his 23 years on the bench. Ryskamp also said he's never seen such "a lack of objectivity" on the part of the government in pursuit of a case.

Here are some more quotes from the case.

"This is probably the single most outrageous prosecution that has happened in South Florida."

That's Richard Sharpstein on the Ben Kuehne case, covered by John Pacenti here. The 11th Circuit will have oral argument this Wednesday. Judge Cooke will have Daubert hearings today and tomorrow on the government's proposed currency exchange expert.

John Pacenti also covers the Raffanello case this morning. He's the former DEA agent charged with obstruction. His lawyers had made the gutsy call to request a speedy trial, but have now dropped that motion because the government apparently gave the defense 4 million documents to review. Richard Sharpstein was added to the defense team.

I guess I should have titled the post: Sharpstein and Pacenti.

Let's get ready to rumble

Fascinating lawsuit filed by Joseph DeMaria against DOJ and American Express. Here's the Herald article and the complaint. From the article:

Sergio Masvidal, the successful scion of a once-penniless Cuban exile family, says he just wants the Justice Department to give him back his name.

Masvidal says he also wants his former employer, American Express, to pay him more than $7.5 million for ruining his career as a top global banker based in Miami.

The former chairman of American Express Bank International claims he's a ``scapegoat'' in a lawsuit filed Friday that depicts the Justice Department and his ex-employer as partners in an illegal conspiracy plotted at the same time that American Express was prosecuted for violating anti-money-laundering reporting laws.

``It's important to me that my name is cleared,'' said Masvidal, 63 who came to this country in the early 1960s under the Catholic Church's ``Pedro Pan'' relocation program. ``It's important that I don't end my career with this event defining my life.''

According to the complaint, there was a secret agreement entered into between the government and American Express that sold out Masvidal:

The August 2007 prosecution agreement between American Express Bank International and the Justice Department has caused Masvidal many sleepless nights -- but not because of the costly terms of that deal.
Masvidal has obtained evidence of what he describes as a ``secret termination agreement'' between his ex-employer and the Justice Department. It says that Masvidal and American Express Bank International's president, Simon E. Amich, would be fired after the sale of the bank, implying wrongdoing on their part. The side agreement -- an August 2007 letter signed by American Express and Justice Department lawyers -- was never disclosed to Masvidal, Amich or to U.S. District Judge William Zloch in Fort Lauderdale, who approved the so-called ``deferred'' prosecution agreement.
Under that settlement, American Express had to pay the government $65 million for its lax enforcement of compliance laws aimed at catching drug-trafficking and other tainted bank deposits. It was one of the largest fines imposed on a U.S. bank. Under the terms, the Justice Department filed criminal charges against the bank but agreed to dismiss them in one year if the international bank subsidiary strengthened its safeguards against money laundering.

I notice that John Sellers represented DOJ against American Express; he's the same prosecutor in the Ben Kuehne case.

Happy Weekend

Some Friday afternoon tunes:

Tweet Tweet

John Pacenti has a piece in the DBR today about lawyers tweeting. As far as I can tell, lawyers and Twitter have not been a successful pairing so far because most lawyers are trying to damn hard to use it for marketing instead of for fun. Following most lawyers on Twitter is deathly boring -- it's much more fun to follow Chad Ochocinco.

The article quotes a bunch of lawyers, but doesn't have Brian Tannebaum, probably the most prolific tweeter, who just tweeted his vacation. Brian has been writing a bunch on the problems with lawyers trying to use Twitter (here's his most recent post). I think Brian is a tad too critical of lawyers who try to market themselves on Twitter. I don't think there is any danger to it... I think like anything else: people who aren't good at what they do aren't going to get business, no matter how much they tweet.

Back to Pacenti. Here's his list of do's and don't for tweeters:

DO understand professional demographics. Tax lawyers seek out accountants; criminal attorneys follow expert witnesses and jury experts.
DON’T follow more than 100 people than are following you.
DO get yourself placed on a list of lawyers to follow on Twitter.
DON’T use Twitter as a marketing tool.
DON’T try to solicit business or make sales.
DO use applications like Tweetdeck to filter topics, create groups and maximize efficiency.
DON’T tweet more than 10 times a day or more than five times an hour.
DO publicize speaking events, tconferences and blog items.
DON’T tweet anything that can’t be quoted in the news.

My feeling is that if you have to read a list of DOs and DON'Ts for something like Twitter, it probably isn't for you. As for me, I still have my Twitter page, so come follow me.

Scalia likes My Cousin Vinny and Marisa Tomei

Here's a piece of the article (HT: ABL):

Before signing copies of his book, Making Your Case: The Art of Persuading Judges, (which came out more than a year ago) Scalia dished a few pointers to the spillover crowd of mostly senior citizens who gathered at the Friendship Heights Village Center in Chevy Chase, Md. "Don't beat a dead horse," the justice advised lawyers who are making oral arguments. "Be brief. And when your time expires, shut up and sit down."

To make his point, Scalia said the late Chief Justice William Rehnquist "used to stop you mid-sentence when the red light went on" in the Supreme Court.

Another pet peeve? Acronyms in brief writing and oral arguments, Scalia said, advising lawyers "Don't burden your reader." In the book, co-authored by Bryan Garner, the two also recommend that lawyers study a judge's background and likes and dislikes before they appear in court. "At the very least, these details will humanize the judge before you, so that you will be arguing to a human being instead of a chair."

On My Cousin Vinny and Marisa Tomei:

But he did get some hearty laughter when he was asked to reveal what his favorite legal movie is.

Scalia didn't hesitate: "My Cousin Vinny," he replied. "I can watch that over and over again."

Then, speaking about the character actress Marisa Tomei played in the movie, Scalia added, "God, she's a killer."

Monday Night videos

The Fins looked dreadful.

Rumpole's picks look worse.

What's with the 10:30pm late game?

Here are some videos for those of you who are waiting for game 2 to start:

v\

"In Mr. Conway’s case, the post that got him in trouble questioned the motives and competence of Judge Cheryl Aleman, and appeared on a rowdy blog"

Sean Conway and the Broward Blog made the front page of Sunday New York Times. Very cool!! (Our prior Conway coverage is here.)

And it's timely -- the article addresses an issue that we have been discussing on the blog recently: how far can lawyers go in criticizing judges?

Here's the intro to the article:

Sean Conway was steamed at a Fort Lauderdale judge, so he did what millions of angry people do these days: he blogged about her, saying she was an “Evil, Unfair Witch.”

But Mr. Conway is a lawyer. And unlike millions of other online hotheads, he found himself hauled up before the Florida bar, which in April issued a reprimand and a fine for his intemperate blog post.

Mr. Conway is hardly the only lawyer to have taken to online social media like Facebook, Twitter and blogs, but as officers of the court they face special risks. Their freedom to gripe is limited by codes of conduct.

“When you become an officer of the court, you lose the full ability to criticize the court,” said Michael Downey, who teaches legal ethics at the Washington University law school.

And with thousands of blogs and so many lawyers online, legal ethics experts say that collisions between the freewheeling ways of the Internet and the tight boundaries of legal discourse are inevitable — whether they result in damaged careers or simply raise eyebrows.

James Hendrick resentenced to probation

Our prior coverage of the case is here. You remember this one -- the 11th Circuit reversed Judge Highsmith's sentence of probation for James Hendrick, "once Monroe County's powerful government attorney." Well, he was resentenced today before Judge Zloch (because Highsmith retired) and got probation, again. From the Herald article:

U.S. District Judge William Zloch gave Hendrick credit for time already served on probation. That leaves two years and seven months of probation -- nine months of which must be spent under house arrest at Hendrick's home in Key West.
Hendrick had faced up to two-plus years in prison after a federal appeals court upheld his convictions in April but threw out his five-year probationary sentence, saying the punishment wasn't tough enough to fit the crime.
A three-judge panel of the 11th U.S. Circuit Court of Appeals, siding with the government, said Hendrick's sentence was ``unreasonable.'' The court in Atlanta sent the case back to South Florida for resentencing.
But Friday, Zloch essentially adopted the sentence of the trial judge in the case, retired U.S. District Judge Shelby Highsmith -- with the house arrest added on. Zloch also imposed a $50,000 fine and 1,500 hours of community service.
Hendrick, whose hearing was attended by dozens of relatives and supporters, said he was ``relieved'' by the judge's sentence.
``I did wrong, and I should pay for it,'' he told The Miami Herald. ``The currency I should pay with is community service.''
Prosecutor Christopher Clark said the U.S. Attorney's Office will consider whether to appeal.

I'd be surprised if the government appealed again. Judge Zloch went through all of the 3553 factors, so an appeal will be almost impossible for the government. And the appellate analysis from the 11th Circuit didn't rule out the same sentence. In fact, the 11th didn't say much of anything:

The government cross-appeals Hendrick’s below-guidelines sentence. After carefully reviewing the record and considering the arguments that the parties briefed and orally argued, we agree with the government that the sentence is both procedurally and substantively unreasonable. We accordingly vacate it and remand for resentencing.

Enjoy your weekend.

"Miami's ex-DEA chief charged with shredding documents for disgraced banker Allen Stanford"

That's the headline from this Miami Herald article about Tom Raffanello, who was Stanford's security chief after leaving the DEA five years ago. The superceding indictment, which added Raffanello, was filed today. Interestingly, the co-defendant's case is set for trial September 18. Raffanello's lawyer Kendall Coffee filed a speedy trial demand today when the superceding indictment was filed saying that he is prepared to try the case with the co-defendant on September 18 even though the indictment was only issued today. The pleading says that the "unusual case" is "a serious mistake" and that Raffanello was simply throwing out the garbage and was not at all obstructing justice. He claims that all of the paper documents that were shredded have electronic backups which were maintained and that there is absolutely no motive or reason that he would shred documents to obstruct an investigation. From the Herald:

The 61-year-old former DEA chief said he was prepared to turn himself over to federal agents Friday on charges of conspiracy and obstruction.
``No one is sorrier than me that it came to this -- after spending 32 ½ years working for the government,'' he told The Miami Herald. ``But I'm prepared to fight this. I still believe in the system.''

This should be an interesting one. The case is assigned to Judge Zloch.

Are Sentences for Possession of Child Porn Too High?

Yes, according to some district judges testifying before the Sentencing Commission. From the National Law Journal:

Judges testifying before the U.S. Sentencing Commission in Chicago told the panel that sentences for people convicted of possessing child pornography have become too severe. The commission suggested it will review the relevant guidelines.
Chief Judge James Carr of the Northern District of Ohio and Chief Judge Gerald Rosen of the Eastern District of Michigan told the panel on Wednesday that sentencing for possession of child pornography, as opposed to manufacture or commercial distribution, may need to be changed. Many people convicted on the offense are not threats to the community, but rather socially awkward first-time offenders, they said.
"This is an area that requires the commission's close consideration and possible corrective action," Rosen told the panel, adding, "I know it's an awkward area for all of us."
In response, Commissioner Beryl Howell said that the issue "is on our priority list for the coming year." The commission will study what kinds of refinements might be made after reviewing the departures from the sentencing guidelines that judges have made in these cases, she said. Howell also noted that Congress has weighed in heavily in this area over the years.
***
"I'm of the view that in many instances the sentences are simply too long," Carr said, referring specifically to the guidelines for child pornography possession, gun possession and drug possession.
Rosen emphasized that he doesn't condone possession of child pornography or understand it, but focused on the unfairness of treating one person sitting in his basement receiving videos over the Internet the same as a commercial purveyor of child pornography. In some cases, a person who has watched one video gets a maximum sentence that may be higher than someone sentenced for raping a child repeatedly over many years, he said. The average sentence for possession of child pornography in his district more than doubled, from about 50 months to 109 months, between 2002 and 2007, he said.
***
7th Circuit Chief Judge Frank Easterbrook, who testified with a separate group of appellate judges, agreed that the child pornography possession area might be ripe for review. He said it gives him pause when he sifts through a stack of sentences that includes a bank robber getting a 10-month sentence and a person convicted of downloading child pornography receiving a 480-month sentence.
"One wonders if we aren't facing some unreasonable and unjustifiable disparities," Easterbrook told the panel.

What do you all think?

Judge Zloch strikes back

Remember Loring Spolter's wild claims that there was a conspiracy with Judge Zloch and the clerk's office? Well, the DBR reports that it didn't go so well for Mr. Spolter:

District Court Judge William Zloch is considering suspending a Fort Lauderdale employment attorney from practicing in South Florida federal courts for criticizing him in an interview with the Daily Business Review. Fort Lauderdale lawyer Loring Spolter said the former chief judge allows his religious and conservative views to color his decisions. He also commissioned a statistical analysis that Spolter said showed it was impossible for so many of his cases to be randomly assigned to Zloch, only to be dismissed. Cases are assigned in the Southern District through a somewhat weighted wheel system that takes into account where cases are filed and where the action occurred.

***

Zloch asked U.S. Magistrate Judge Robin Rosenbaum to review the matter and make recommendations. She issued a 96-page report July 10, finding Spolter’s accusations were specious after taking testimony on case assignments from Steven Larimore, the district’s clerk of court. “Although a lawyer should be lauded for having the courage to take a stand against any truly biased activity on the part of a court, Mr. Spolter’s actions do not fall into that category,” Rosenbaum wrote. “These statements exceed the bounds of properly raising grounds for recusal or disqualification and instead constitute a personal attack on the presiding judge.” Zloch adopted Rosenbaum’s findings and held a hearing Aug. 20 on whether to sanction Spolter for filing the motions in bad faith. Zloch repeatedly invoked the interview with DBR in the hearing, a transcript shows. “I would like to know how the federal judiciary, the Southern District, gets back its good name after that article,” the judge said. Zloch said he is considering suspending Spolter from practicing in South Florida federal courts for five years. He also is considering a fine, court costs and referring Spolter to The Florida Bar for discipline. The judge told Spolter he could mitigate the sanctions if the lawyer bought a full-page, court-approved advertisement in the Review apologizing for his previous position.

Things that struck me about from the article, which is worth reading in its entirety:

• 96 pages? That's a long R&R! Judge Marcus would be proud of his former clerk.
• What happens if the DBR gives Spolter the ad for free?
• Why can't Spolter keep his mouth shut? (From the article: Zloch said Spolter’s statistical expert recanted his position at Rosenbaum’s hearing. The statistician had said it was nearly impossible for Spolter’s cases to randomly end up with Zloch only to be dismissed. That’s when Spolter stood up and said the judge was wrong. “The expert just called me up last week and spoke to me about this case again, and he said to me that he stood by his testimony,” Spolter said. Zloch retorted to Reinhardt, “He apparently still maintains his position.”) Painful. SFLawyers has a funny post about this.
• Is Judge Zloch the right judge to be deciding the sanctions? Or should some other judge do it?
• Should lawyers be permitted to criticize judges without fear of being reprimanded? (More from the DBR: The Spolter case raises the issue of the free speech rights of attorneys who criticize a sitting judge. Last year, The Florida Bar reprimanded Fort Lauderdale attorney Sean Conway for calling Broward Circuit Judge Cheryl Aleman an “evil, unfair witch” in a blog post that appeared around Halloween 2006. Conway maintained his statements were protected opinions but stipulated to the Bar’s disciplinary decision.)
  
  

1-0

C-A-N-E-S

Okay, now that that's off my chest, back to business.

The Chief has formed a committee to look at building a new Broward courthouse. From the DBR:

With its maze-like corridors, dead ends and multi-level pools, the Fort Lauderdale federal courthouse is outdated in the post 9/11 world. The chief judge says it's high time for a replacement. Chief U.S. District Judge Federico Moreno said the courthouse fails to meet the upcoming — and even the current needs — of the Southern District. There are security issues, the courtrooms are small and undignified, and there is a lot of unused space on the tiered floors. But most importantly, Moreno said there is a need to expand. The district’s caseload is shifting north from Miami, and the next federal judge in South Florida will sit in Fort Lauderdale. Moreno has appointed a 16-member committee including judges, magistrates, mayors and a number of high-profile law firm partners, and they plan to hold their first meeting Sept. 15.

Lots of pithy quotes in the article...

George Platt, a Shutts & Bowen partner in Fort Lauderdale, is the committee chairman. He said the current courthouse was built in the mid-1970s. The front entrance features a sun-worshipping tiered staircase, pools and fountains edged with palm trees. But for security reasons, the public must enter through a narrow, dark rear door walled off by a chain-link fence around a ramp. “I would describe it as sort of going into a gulag. It’s a very unpleasant experience,” Platt said. “I guess it was a wonderful idea in someone’s imagination when it was created originally, but once we got into a situation where a courthouse had to be more secure and more efficient, this building has been a disaster.” In recent years, the most prominent feature at the front of the building, the fountain pools, were drained and left empty.

I agree that the building is a disaster, but the actual courtrooms aren't that bad. I like trying cases there: you are close to the jury and to the judge (unlike the Ferguson building). And the acoustics aren't awful like they are in the Tower building in Miami.

For those that are interested, we had the blog Fantasy Football draft last night. I got saddled with the first pick. Here's my (championship) roster:

Philip Rivers
Anquan Boldin
Brandon Marshall
DeSean Jackson
Adrian Peterson
Steve Slaton
Jeremy Shockey
Willie Parker
Knowshon Moreno
Matt Schaub
Chris Henry
Chris Chambers
James Davis
Justin Gage
Kevin Boss
Patrick Crayton
Darrius Heyward-Bey
Mason Crosby
Tennessee Defense
New York Jets Defense

Justice Stevens to retire?

We're a little late on this story, but it's starting to get a lot of traction, so here goes... It looks like Justice Stevens might be on the retirement track as indicated by his lack of hiring law clerks. From the NY Times:

Justice David H. Souter’s failure to hire clerks this spring accurately signaled his decision to step down. On Wednesday, the court confirmed that Justice John Paul Stevens, who is 89, has hired only one clerk, instead of the usual four, for the term starting in October 2010. That ignited speculation that Justice Stevens may be planning to step down next summer.
Or it could merely mean that he is keeping his options open. There is, of course, nothing to prevent Justice Stevens from hiring additional clerks later on. The newest member of the court, Justice Sonia Sotomayor, hired four clerks in short order after her confirmation last month.
The alternative is to hire clerks now for a job that might evaporate later, something Justice Stevens would not do lightly, people who know him said.
“Justice Stevens is a man who cares deeply about treating people with respect,” said Christopher L. Eisgruber, the provost of Princeton University, the author of “The Next Justice: Repairing the Supreme Court Appointment Process” and a former clerk to Justice Stevens.

If Stevens does retire, maybe we'll finally get a Floridian to the Supreme Court... Those will be huge shoes to fill.

In other news, the Padilla oral argument will take place on November 17 in Atlanta.

Have a nice long holiday weekend. Sorry for the short post today.

News & Notes

1. The big interviews are today with Senators Nelson and Martinez. They've flown down here and the interviews will be held at the federal courthouse. But they are closed to the public. (They should be open, shouldn't they?) If anyone hears anything about them, please email me.

2. Holland & Knight got sued. Julie Kay has the details:

The receiver in an alleged $347 million Ponzi scheme has filed a malpractice lawsuit against Holland & Knight and partner Scott MacLeod, claiming they failed to provide investors with crucial information about the disbarred attorney behind the investments. The suit filed Monday in Sarasota Circuit Court accuses the law firm and its attorney of preparing disclosure documents for investors that failed to mention Arthur Nadel, who headed the hedge funds, was a disbarred New York attorney who had drained a client’s escrow account. The suit also accuses Holland & Knight of conflicts of interest by representing Nadel and his investment funds simultaneously. The suit seeks in excess of $50 million in punitive damages, receiver Burt Wiand said. Karen McBride, a spokeswoman for Holland & Knight, said, “the firm’s position remains unchanged. We’ve done nothing wrong and we intend to vigorously defend this.”

3. Guy Lewis & Mike Tein keep growing their firm. Five new associates from UM Law School. Business is good!

4. The University of Miami will honor Steve Chaykin:

The University of Miami School of Law Center for Ethics and Public Service has established a fellowship in memory of the late Steve Chaykin, an Akerman Senterfitt shareholder and criminal defense attorney who died on vacation last year. Chaykin slipped in rapids while trying to rescue his wife, Melissa, who fell into the Colorado river. His wife survived, but Chaykin was knocked unconscious and drowned. The Chaykin fellowship has been established for third-year law students who served in one of the center’s programs or community service clinics. The recipient must display leadership and mentoring skills and a strong sense of ethical judgment, professional responsibility and professionalism. “The fellowship honors the significant, historic contribution that Chaykin made to the South Florida legal profession and to the law school, university community and the civic community,” said Tony Alfieri, a UM professor of ethics and public service and the center’s director.

5. Steve Zack broke his ankle in Napa... Was wine to blame? From Joan Fleischman:

Miami attorney Steve Zack, the American Bar Association's president-elect, won't be traveling for awhile. Zack, 61, broke his right fibula, the smaller of the two main bones near the ankle.
He's to blame, he says, for last week's midday slip-and-fall. Happened in Napa, Calif., but he swears he wasn't tipsy from wine. ``Had gone to tastings the day before.''
So how did it happen? ``Silliest thing. There was loose gravel over a road. My left leg slipped. I tried to catch myself with the right leg and I fell on it. When I heard the pop, I knew it wasn't a good day.'' He's using a wheelchair and crutches, and expects to have a plate put in to help the bone heal straight and stabilize the ankle.
``Last time I broke an ankle was 40 years ago, playing tennis. It seemed to hurt a lot less.''

That's hot -- Paris wins again...

...this time in the Court of Appeals (the 9th Circuit -- here's the opinion). From Reuters:

The celebrity and heiress Paris Hilton may pursue her lawsuit against Hallmark Cards over its use of her picture and catchphrase "That's hot" on a greeting card, a federal appeals court ruled on Monday.
Hilton had contended that Hallmark violated her privacy and right of publicity by ripping off a scene from her reality TV show "The Simple Life" on a birthday card captioned "Paris's First Day as a Waitress."
A three-judge panel of the U.S. 9th Circuit Court of Appeals rejected Hallmark's argument that its depiction of the Hilton Hotels heiress was protected speech as a matter of law.
It sent the case back to a lower court, which had turned aside Hilton's claim of trademark infringement but rejected other Hallmark defenses.

Paris is now 2-0 in federal court... That's huge:



Hat tip: my commentors and WSJ Law Blog.

Lyglenson Lemorin still sits in immigration jail

From Jay Weaver's article in today's Miami Herald:

A Tampa engineering student acquitted of terrorism-related charges walked out of an immigration court a free man earlier this month, after a judge rejected the U.S. government's bid to deport him to his native Egypt on identical charges.
Yet the same immigration judge sided with Department of Homeland Security lawyers last year when he ordered the removal of a Miami man to his native Haiti after he had been acquitted of terror-conspiracy charges.
Why did the immigration judge, Kenneth Hurewitz, grant the release of Youssef Megahed yet order the deportation of Lyglenson Lemorin? The lawyer who represented both men says it's because the evidence was stronger in the Lemorin case, though he disputes it was enough to deport him.
``The government's lawyers misunderstood that every case is different and you must plead what you're going to prove,'' Charles Kuck, an Atlanta attorney, said of the Megahed case. ``They failed to do that.''
Kuck said he believes Lemorin -- one of the so-called Liberty City Seven defendants -- has a good shot at his appeal, which will be considered this fall. Lemorin, 34, remains in custody.
Both Megahed and Lemorin are legal U.S. residents with no criminal histories who have lived in this country for years. Both also experienced a rare kind of ``double jeopardy'' -- being charged a second time in immigration court following acquittals in federal court.
Megahed, a 23-year-old former student at the University of South Florida, was arrested on a 2007 road trip in South Carolina along with a fellow classmate, Ahmed Mohamed. Both were charged with transporting explosives after police found model rocket propellants in the car's trunk.
Mohamed was also charged with providing ``material support'' for terrorism, because he created a You Tube video that showed how to convert a remote control toy vehicle into a bomb. He pleaded guilty to that charge last spring.
In early April, Megahed was acquitted in Tampa federal court on the explosives charges after his defense attorney argued that the materials found in the trunk -- PVC pipe and chemicals -- were homemade fireworks.
But a few days later, Megahed, while leaving a Wal-Mart store with his father, was arrested by Immigration and Customs Enforcement agents. He was charged again with the same terrorism-related explosives offense, only this time in immigration court, which is part of the Justice Department and has a lower standard of proof.
Megahed, who has lived in the United States since he was 11, faced deportation. His family, the Muslim community and others -- including four jurors in his criminal case -- expressed outrage.

They should be outraged. I'm sorry but if you are acquitted in federal court, immigration shouldn't be able to recharge you with the same conduct and be able to deport you based on a lower standard of proof. My prior coverage on this issue is here.

"Gov. Charlie Crist and ex-aide George LeMieux cleared in federal probe"

That's the headline from Jay Weaver's story about the Mutual Benefits case, which keeps taking stranger and stranger turns:

Gov. Charlie Crist and former chief of staff George LeMieux -- the subjects of a federal public corruption investigation -- have been cleared of allegations that they tried to thwart a state criminal probe into a Fort Lauderdale insurance company, according to sources familiar with the ongoing case.
Crist's selection of LeMieux to replace U.S. Sen. Mel Martinez would not have been possible had LeMieux still been under scrutiny by federal prosecutors investigating alleged influence-peddling by Mutual Benefits and its former top executive.
LeMieux was in the cross-hairs of the investigation after a major Republican fundraiser working with the FBI made a secretly recorded phone call to LeMieux at the governor's office in 2007, trying to get LeMieux to implicate himself, sources said.


Our prior coverage of the case and all the secrecy and failed snitching and set-ups is here. It's really amazing to me that the government would rely on criminals to try and set up well-respected and law-abiding citizens without real proof. LeMieux did the right thing:

But the phone call backfired: LeMieux immediately reported it to Crist's general counsel, who called the FBI. Still, LeMieux remained under investigation through much of 2008, along with Crist and several other members of his inner circle from his tenure as Florida attorney general and then as governor.

News & Notes (the PD's edition)

1. Paul Rashkind has been working on Guantanamo cases and he just got a nice win in DC: hearsay is not admissible in the detainee cases. Here's SCOTUSBlog's coverage:

U.S. District Judge Reggie B. Walton went further than any of his District Court colleagues has gone in cutting back on the Pentagon’s option of proving its detention cases by using a kind of evidence that normally would not be allowed in court — hearsay, as a substitute for direct proof of facts. The judge refused to follow the government’s plea that all of its hearsay evidence about an individual detainee should have a special rank, admitted into court with a presumption that it was reliable unless detainees’ lawyers could show it was not.
Judge Walton’s 12-page order outlining a “framework” for processing government offers of hearsay evidence can be downloaded here.

2. The Federal Defenders are participating in the Race for the Cure of breast cancer this October. If you want to help out, see here. (I fixed the link)

3. Interviews for the U.S. Attorney slot and the District Court slot will happen next Wednesday, September 2. Unfortunately, they are not open to the public.

4. One of the judicial candidates, FPD Kathy Williams, is receiving UM's Lawyers in Leadership Award, which recognizes “dedication to public citizenship and leadership.” Rick Bascuas covers it here.

5. Miami officer pocketed Crime Stoppers reward cash (via Miami Herald). To keep up the PD theme, I'm sure a PD got assigned to one of the defendants in the case.

Here's a great scene from My Cousin Vinny to get you to your weekend. Check out the PD's opening at the 4:45 mark...

Judge Kozinski champions right to privacy in computers

The Fourth Amendment is not dead... at least in the Ninth Circuit. Judge Alex Kozinksi,* writing for an en banc Ninth Circuit, ruled that many additional safeguards must be put in place before a computer search can go forward. See United States v. Comprehensive Drug Testing. Here's the summary of the holding by Kozinski:

When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain incriminating files, or when a search for evidence could result in the seizure of a computer, see, e.g., United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), magistrate judges must be vigilant in observing the guidance we have set out throughout our opinion, which can be summed up as follows:

1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases. See p. 11876 supra.

2. Segregation and redaction must be either done by specialized personnel or an independent third party. See pp. 11880-81 supra. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.

3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora. See pp. 11877-78, 11886-87 supra.

4. The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents. See pp. 11878, 11880-81 supra.

5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept. See p. 11881-82 supra.

My former law-school classmate, Professor Orin Kerr, has been railing on the decision over at the Volokh Conspiracy. Professor Kerr calls the opinion "breathtaking"** and says that it is light on citations to authority. He goes so far as to say: "This is the most free-wheeling, 'look ma no hands' legal decision I've read in a long time."

I think Kerr has got it all wrong here and that the en banc 9th Circuit has got it right. Computer searches are inherently different than any other type of search. And by the very nature of the search, a search warrant for any type of digital information -- no matter how discreet -- will lead to a search of the entire computer. Nowadays, there is nothing more private than a computer, not even your home. The old 4th Amendment analysis plainly hasn't been working with searching computers. And finally, one court had the courage to say so.

I know this isn't Scalia-Dershowitz, but I challenge my old friend Orin to a debate on whether this case was correctly decided. We can do it in blog posts or email or whatever. I hope he accepts. My first question to the good professor is whether he would agree that computer searches are inherently different than any other kind of search.

*Isn't it interesting that Kozinski wrote this opinion. Remember that he's the guy who had the contents of his computer publicly disclosed.

**Interestingly, the same word was used to describe the government's position: "Judge Thomas, too, in his panel dissent, expressed frustration withthe government’s conduct and position, calling it a 'breath-taking expansion of the ‘plain view’ doctrine, which clearly has no application to intermingled private electronic data.' Comprehensive Drug Testing, 513 F.3d at 1117."

$$$$

Today's DBR covers the net worth of state court judges and their spouses. No surprise that former AUSA John Schlesinger tops the list as his wife Marilyn Milian is the judge of "The People's Court." But does Billy Shields have a man-crush on Schlesinger (not that there's anything wrong with that)... From the intro to the article:

Miami-Dade Circuit Judge John Schlesinger looks like he could play a judge on TV. Good looking, with a full shock of iron-gray hair and a granite jaw, Schlesinger is telegenic. But it’s his wife, Marilyn Milian of “The People’s Court,” who’s the television judge, and that helps explain why Schlesinger reported a net worth of $7.18 million, including a $2.7 million Coral Gables home, $1.8 million in the bank and a $95,000 Aston Martin sports car.

So DBR peeps, is the federal judge list coming next?

Should judges reject agreed to plea agreements?

We've discussed this issue many times on this blog. If two parties in the adversary system work out a deal, should the judge be able to reject it? (Along the same lines, should a judge be able to reject a civil settlement?) I think the answer is clearly no for reasons I've articulated before.

The issue has come up again, this time out of the district. This time some (alleged?) crooked judges agreed to plead guilty in exchange for a particular sentence agreed to by the prosecutor. The federal judge rejected the deal in this order, in part because of the "scandalous conduct" of the judges.

What say you, readers? Are you persuaded by the court's reasoning? Should judges be permitted to reject the deals made by the parties to the lawsuit?

Bueller, Bueller, Bueller....

Is there a better comedy than Ferris Bueller's Day Off?

Talk to me people. What's going on in Federal Court this week? Is it just going to be more UBS postings...

Summer's over -- there's gotta be something good going on.

You know it's slow when SFL is comparing Tom Julin to Kingpin and Rumpole is already doing football posts. BTW guys, check out this article -- anonymous bloggers are being outed. And is it me, or is it wrong to put someone (this time Richard Hatch) in jail for giving an interview while at a halfway house?

There are times, however, when it's better to just keep quiet.

Judge Zloch slaps UBS cooperator

We covered earlier the UBS defendant who was asking for probation for his extensive cooperation. The government was asking for 2 1/2 years (or a 50% reduction). Judge Zloch today sentenced Bradley Birkenfeld to 40 months, or 10 months more than the government asked for. (Here's the AP story). What say you, readers? When, if ever, is it appropriate for a judge to sentence above the parties' recommendations? (I think the answer is probably never, but I'm happy to hear arguments to the contrary).

11th Circuit update

Thanks very much to JANE MOSCOWITZ for this guest post:

Richard Strafer and Howard Srebnick had a big win in the Eleventh Circuit this week in United States v. Kaley. Judges Marcus, Wilson and Tjoflat reversed and remanded the district court's decision not to permit the Defendants to challenge the pretrial restraint of assets they wanted to use to hire their counsel of choice, Howard Srebnick and Susan Van Dusen. Judge Marcus wrote that the Court was bound by United States v. Bissell, 866 F.2d 1343 (11th Cir. 1989), which held that a defendant is only entitled to such a hearing if he meets the Barker v. Wingo balancing test. Here, clearly believing that there should have been an evidentiary hearing, the Court determined that the trial court had failed correctly to balance the Defendants’ assertion of their right to a hearing and the prejudice to them of its denial. Judge Marcus especially noted the prejudice to the Defendants of being deprived of their counsel of choice, calling that a “powerful” form and “substantial source” of prejudice. The Court sent the case back for a correct evaluation of the factors to determine whether a hearing should be held.

Judge Tjoflat concurred in a separate opinion in which he held that Bissell should not apply because its use of Barker v. Wingo was “non-binding dicta.” Judge Tjoflat did not find the return of the indictment or the submission of an ex parte affidavit sufficient to determine whether the restrain was proper. He wrote that under the standard procedural due process test of Mathews v. Eldridge, an evidentiary hearing should be held ( a proposition with which Judge Marcus agreed) and should be held pretrial. The resolution of whether assets that are to be used for the payment of counsel of choice may continue to be restrained cannot wait for determination at the trial. He noted that, if the matter is carried along till trial, the “prosecutorial incentives increase the likelihood of an erroneous deprivation in the absence of a prompt hearing. A prosecutor has everything to gain by restraining assets that ultimately may not be forfeited. By doing so, he can stack the deck in the government’s favor by crippling the defendant’s ability to afford high-quality counsel. If the prosecutor can delay judicial oversight of the restraint until trial, he also has nothing to lose, as he does not have to dedicate any extra resources to defending his decision.”

Friday's notes

School's back Monday. To get you in the mood, here's a clip from Back to School:



The DBR reports that the mold lawsuit filed by Ted Klein's family has been dismissed by Judge Story. Apparently, you can only get $1,000 under the Federal Employees Compensation Act when death results from on-duty injuries of a federal employee. Readers, can this law be constitutional? That seems insane to me.

The UBS case keeps going and going and going. This time a banker and a lawyer have been indicted. Via Curt Anderson:

A banker and a lawyer from Switzerland were indicted Thursday on fraud charges for allegedly helping rich Americans evade taxes by hiding assets in Swiss banks, including UBS AG and a smaller Zurich-based institution.

Among the allegations in court documents against banker Hansruedi Schumacher, 51, and 42-year-old attorney Matthias Rickenbach is that they told a New York businessman they paid an unnamed Swiss government official a $45,000 bribe for information on whether the businessman's account would be revealed to U.S. investigators.

Schumacher and Rickenbach each face a single charge of conspiring to defraud the U.S., which carries a potential five-year prison sentence. Prosecutors said both men remain in Switzerland, and it wasn't immediately clear if they had U.S. lawyers to represent them.

The indictment comes one day after the Swiss and U.S. governments unveiled an agreement in which UBS will divulge names of some 4,450 wealthy Americans suspected of dodging taxes through secret bank accounts. Many of those people, and the bankers and attorneys who advised them, could also face criminal charges.

And from the last post, we're debating Plaxico Burress' two year sentence in the comments. Go post your thoughts.

Quick Poll

I had a lengthy debate with some friends today about whether Plaxico Burress' sentence was the right result or not. (If you aren't familiar with the case, here's some background).

Settle a score for us and vote:

How do you feel about Plaxico Burress' two year sentence?
	Just right
	Too short
	Too long
pollcode.com free polls