Saturday, December 31, 2005

Abramoff to plead? (and cooperate?)

That's the word on the street. Judge Paul Huck gave Abramoff (and his lawyer, Neal Sonnett) until Tuesday to decide whether it's going to be a plea or a trial. I bet lots of Congressmen are hoping he goes to trial...

Friday, December 30, 2005

Happy new year!


Happy and healthy New Year to all.

For your weekend reading, here is some info about the funniest Justice. And to the left is the graphic from the article. I'll never forget when a Miami lawyer continued to confuse Justice Souter and Justice Breyer. Justice Scalia started his questioning of the lawyer by saying, "I'm Scalia." Now that's funny.

Thursday, December 29, 2005

Amicus fight

Professor Ricardo Bascuas, on behalf of NACDL, FACDL-Miami, and NAFD, authored an amicus brief in the Cuban Spy case, in support of the panel's determination that venue was improper. Typically these briefs are filed with the consent of both parties. In this case, however, the government has opposed the filing of the brief, making some unbelievable claims. For one, it claims that it's not fair because it doesn't have enough space to respond to the arguments raised by amici -- it even takes a shot at the panel saying that the panel used more words than were given to the government in its brief. In the same breath, it also says that the arguments raised by amici are not relevant. Finally, it asserts that the brief is "partisan." I have never seen the government take such an odd position. Amicus briefs are filed by organizations that have a unique perspective on the subject being debated in court. Of course they have a position. And if the arguments raised aren't relevant, why does the government have to waste any of its space addressing them? In the interest of disclosure, I am NACDL's vice chair of the amicus committee for the 11th circuit and I signed the brief on behalf of NACDL.

Wednesday, December 28, 2005

Padilla moves

Lots of moves in the Padilla case. The Bushies asked the Supreme Court to order the transfer of Padilla to FDC-Miami to face the indictment filed last month. Lyle Deniston has a lot of great things to say on the subject. Here's his intro:
The Bush Administration, protesting that the Fourth Circuit Court has engaged in an "unprecedented and unfounded assertion of judicial authority," on Wednesday asked the Supreme Court to order the prompt transfer of terrorism suspect Jose Padilla out of military custody and into a regular federal prison. The new filing, escalating the inter-branch constitutional conflict that has now arisen over Padilla, complained that the lower court had made "an unwarranted attack on the exercise of Executive discretion," raising "profound separation-of-powers concerns" if not remedied swiftly. "The Fourth Circuit's order defies both law and logic," the new filing contended. Without waiting to see how the Justices would react to the rapid change of circumstances recently in Padilla's case, Solicitor General Paul D. Clement filed an application to shift Padilla to the Federal Detention Facility in Miami, so that he can face new criminal charges claiming he aided terrorism abroad. The Fourth Circuit last week refused to allow that transfer, saying the government may be trying to undercut Padilla's pending appeal to the Supreme Court. But the Circuit Court also said it would be up to the Supreme Court to decide Padilla's placement, and thus Clement turned to the Justices seeking what the lower court had denied.

Before this latest move, the Herald's Jay Weaver had this coverage of all the latest wrangling. And TalkLeft opines that Padilla's lawyers slap Bush Administration. The Daily Business Review (Julie Kay) had a piece about Padilla's and Hassoun's co-defendant, Kifah Jayyousi, but there is no public link available to review the article. Finally Brian Tannebaum has this to say about criminal defense lawyers in these sorts of cases.

The Southern District of Florida finds itself in the middle of this historic fight between the branches of government.

Monday, December 26, 2005

Justice Cantero still a possibility?

A reader sent this email:

"Possible grist for your blog, but PLEASE KEEP MY IDENTITY ANONYMOUS IF YOU CHOOSE TO USE THIS IN ANY WAY....A few months back, I heard it from a well-placed source that the current Administration is looking for a way to get Raoul Cantero on the 11th Circuit. They are practically counting the days until Judge Barkett is eligible to take senior status, figuring that will give them a "Florida seat" to fill with Cantero. I've also heard that Cantero (like many Florida Supreme Court Justices) would prefer not to live in Tallahassee forever, so he'd be game. Now another possibility may have arisen -- this week Congress returned the nomination of Brett Kavanaugh to the DC Circuit (he's a darling of the Federalist Society right wingers), signaling that his re-nomination (if it occurs in 2006) would be a complete war. One piece of scuttlebut is that that Cantero could be considered for that open seat on the DC Circuit. If so, and if he makes it to the DC Circuit, his age & ethnicity would automatically jump him into the very top tier of any Supreme Court shortlist for the next vacancy. We might just get a Floridian in the Big House yet...."

A couple thoughts -- 1) I hope Judge Barkett doesn't take senior status any time soon. 2) I don't think Judge Cantero would be as conservative as the right hopes. I think the former Judge Davis' clerk would call it right down the middle. 3) Hope everyone had a nice holiday weekend.

Wednesday, December 21, 2005

Padilla staying put

Unbelievable. Judge Luttig, one of the judges on Bush's short list for the U.S. Supreme Court, just gave the back of his hand to Bush's legal strategy on the war on terror, ruling that Padilla will not be transferred to the Southern District of Florida and that the Fourth Circuit opinion will remain intact -- teeing the case up for Supreme Court review.
Lyle Denniston, over at ScotusBlog, has great coverage of this remarkable decision. Here's his intro:
In a deeply serious setback for the Bush Administration's legal strategy for the war on terrorism, the Fourth Circuit Court on Wednesday afternoon kept intact its ruling in the now-celebrated Jose Padilla case, suggesting that the Administration may be trying to manipulate the judiciary by attempting to prevent Supreme Court review. The Circuit panel also raised questions about the government's credibility in claiming a dire need to designate Padilla as an "enemy combatant" and thus to confine him -- for more than three years now -- in a military jail, and about its overall credibility in presenting war on terrorism cases to the courts. The language used in the opinion --
reflecting a studied attempt to be temperate, yet coming out as tellingly sharp-edged -- could only be interpreted as the sternest of judicial rebukes on issues of fundamental importance to President Bush's war against global terrorism. The ruling was doubly effective because it was written by Circuit Judge J. Michael Luttig, who has been considered by President Bush as a potential nominee to the Supreme Court and who is one of the most conservative federal appellate judges in the nation.
The Circuit Court denied the government permission to transfer Padilla out of military custody -- a transfer that had a strong probability of keeping the case out of the reach of the Supreme Court. Padilla's appeal to the Justices is pending (Padilla v. Hanft, docket 05-533), and is likely to be acted upon by the Court in January. At this stage, the first issue for the Justices will be whether to grant or deny review
of the Fourth Circuit's Sept. 9 ruling. Judge Luttig, writing for a three-judge Fourth Circuit panel, said "we believe that the transfer of Padilla and the withdrawal of our opinion at the government's request while the Supreme Court is reviewing this court's decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court." In addition, Luttig said: "We believe that this case presents an issue of such especial national importance as to warrant final consideration by that Court, even if only by denial of further review." Thus, he said, "we deny both the motion [to transfer] and suggestion [to vacate the Sept. 9 decision]."

Monday, December 19, 2005

Show me the money

Well, one of my readers and I got into it a little bit in the comment section.

I wonder how [s]he would feel about this comment in the Daily Business Review today about prosecutors leaving the U.S. Attorney's office: "Said Miami criminal defense attorney David O. Markus: “It’s a good attempt to solve the problem. But ultimately, what we need to do is pay these people more money, as we [also need to] do [for] judges and public defenders.”

The article has lots of good gossip about AUSAs -- some, like Harry Shimkat, have agreed to stay an extra two years in economic crimes. Here's the quote about those who have left:
While the U.S. attorney’s office in the Southern District of Florida has experienced turnover in the past, some liken the departures over the last six months as an exodus. Twenty-two assistant U.S. attorney positions are now vacant in an office with 233 total positions, or almost 10 percent of the office. Among those who have left in the last six months: Lilly Ann Sanchez, former deputy chief of the major crimes division, who became a partner with Fowler White Burnett in Miami; Carlos Castillo, former public information officer, who took a job with Seidman Prewitt Dibello & Lopez in Coral Gables; and Jonathan Loo, who moved to the U.S. attorney’s office in Hawaii. Other departures include Jonathan Lopez, who worked in major crimes and took a job with the Department of Justice in Washington; Eddie Sanchez and Willie Ferrer, who both just left for the county attorney’s office in Miami, and Maria Beguiristain, who last month became an associate at White & Case in Miami. . . . Seth Miles said he left to become an associate at Podhurst Orseck in Miami because “for me it was family reasons and it was just time to go. I knew I didn’t want to be a 40-year career prosecutor.”
Finally, one unidentified prosecutor said: “There’s a lack of vision in the office. There’s no excitement, no clear direction on what we should be focusing on. There’s a leadership vacuum.” Yikes.

Also, following up on my post about Michael Caruso being named Chief Assistant Federal Defender for this District, Julie Kay has this to say:
After losing two chief assistants in one year, Federal Public Defender Kathleen Williams said, tongue in cheek, that she’s required her new second-in-command to sign a “noncompete clause.” Williams, the guest speaker at the Miami chapter of the Federal Bar Association’s monthly luncheon, announced that she named Michael Caruso, 39, an eight-year veteran of the office, as her new chief assistant. Caruso will assist Williams in running one of the largest public defender offices in the country and overseeing 45 assistant public defenders. Caruso replaces former chief assistant Martin Bidwill, who was appointed to a Broward Circuit Court judgeship by Gov. Jeb Bush in October. Bidwill was chief assistant for less than a year, taking the place of Reuben C. Cahn, who left in April to head the San Diego federal public defender’s office. “I’d like to address the rumor that I’ve had trouble keeping chief assistants,” Williams quipped, adding that her new top lieutenant “promised he will not go to the bench, he will not leave the office.” Caruso, who serves on the federal court practice committee, said he’s “extremely honored that Kathy chose me to assist her in leading the office” and will stay in the job “as long as she needs me.” Caruso serves on the federal court practice committee of The Florida Bar and the Southern District of Florida’s local rules committee.

Friday, December 16, 2005

Kidan plea

This one was pretty obvious, but here's the news anyway -- Adam Kidan pleaded guilty to fraud and is likely to be a cooperating witness in a number of different cases, including against Jack Abramoff. Kidan's lawyer is Joseph Conway. Prosecutors are Lawrence LaVecchio and Paul Schwartz. Judge Huck is presiding over the case, which is still set for trial (for Abramoff -- represented by Neal Sonnett) in January. Coverage here and here.

Thursday, December 15, 2005

Charges for Air Marshals?

So the Department of Justice has hired two Zuckerman Spaeder lawyers -- Mike Pasano and Paul Calli -- to represent the two air marshals who shot and killed the mentally ill man who said he had a bomb at the Miami airport. Pasano quips in the DBR article that “I guess they have a list of good lawyers somewhere that they call in such cases.” Some lawyers, he noted, won’t take these cases because the government pays “extremely low” fees. Calli said “I’m confident it will be determined [the air marshals] acted reasonably and appropriately under the circumstances.” Brian Tannebaum was quoted in the article saying that no charges would be filed. I completely agree. No chance, no way will charges be filed against these guys. Thoughts?

Wednesday, December 14, 2005

Boobie boys opinion

The 11th Circuit yesterday decided the "Boobie Boys" case, affirming most of the convictions. The court did reverse two of the convictions for "Jonathon "Moose" Hawthorne and Ben "Bush" Johnson. Judge Barkett wrote the 137 page opinion. The court repeatedly said that the district court erred in admitting all sorts of hearsay and opinion testimony, but for most of the appellants, the court found the error harmless.

Professor Berman has this interesting comment about the case, which also contains a link to the case:
In his opinion for the majority in Blakely, Justice Scalia expresses concern about defendants possible being punished for an uncharged murder and possibly being punished based on weak hearsay testimony proven to a judge only by a preponderance of the evidence. If these issues truly concern Justice Scalia (and other members of the Blakely majority), the Supreme Court ought be interested in a cert. petition coming from today's decision by the Eleventh Circuit in US v. Baker, No. 00-13083 (11th Cir. Dec. 13, 2005) (available here). (Tech warning: the PDF of this opinion is causing Adobe to crash for me sometimes.) Starting at page 124 of an 137-page opinion(!!), the 11th Circuit in Baker affirms long sentences for a number of co-defendants in a large drug conspiracy on the basis of hearsay testimony concerning their involvement in an uncharged murder. Fans of Crawford debates will especially enjoy the court's work in footnote 68, where the Eleventh Circuit
explains why Crawford is to be inapplicable at sentencing.

Tuesday, December 13, 2005

Hamilton Bank jury in

The jury could not reach a verdict in the Hamilton Bank trial -- US v. Masferrer. Judge Moore declared a mistrial and set the retrial for April. The deliberations took some strange turns -- two jurors were excused for reading the newspaper, requiring two alternates to come into a jury room where there had been 3 days of deliberations. Nonetheless they were required to start considering the case from scratch. Then one of the alternates got sick and an ambulance had to be called to the courthouse. After all this, the jury hung. Defense lawyers were Howard and Scott Srebnick. Prosecutors were Ben Greenberg and Andrew Levy.

Saturday, December 10, 2005

News and notes

1. Slow blogging -- sorry for being out of touch the last couple days. I've been going back and forth to Savannah preparing for a big trial scheduled for January 16. The lead prosecutor said in court last week that it was the largest case ever in Savannah. The case is just immense and it's taking up almost all of my time.

2. No bond for Cuban exiles in illegal weapons case -- From the AP: "U.S. District Judge James I. Cohn sided with prosecutors, upholding another judge's ruling denying bail for Santiago Alvarez, 64, and 63-year-old Osvaldo Mitat. They are charged in a seven-count grand jury indictment with illegal possession of machine guns and other weapons - some with serial numbers erased - that were allegedly stored at an apartment complex near Fort Lauderdale owned by Alvarez." "These weapons have no utilitarian purpose other than to harm others," Cohn said. Kendall Coffey, Alvarez's lawyer, said: "These aren't criminals. These are two honorable men. These men will be acquitted at trial."

3. Hamilton Bank trial -- no verdicts yet. Jury has been out a long time. The worst part of being a trial lawyer is waiting for the jury to come back. Terrible.

Tuesday, December 06, 2005

Middle District News

Hat-tip to one of our anonymous readers:

"Al-Arian acquittals across the board (with a sprinkling of hung counts) -- no convictions!
One defendant, Fariz, was represented by Fletcher Peacock's Middle District defenders."
Read Yahoo news

Monday, December 05, 2005

Press for Anonymous Miami Blog

Julie Kay writes about the Justice Building Blog in today's DBR. Here's the intro to the article:
The dishy Washington, D.C., court blog UnderneathTheirRobes.com, which talked up the “hotties” of the federal bench, disappeared after the assistant U.S. attorney who wrote it was outed last month. But a Miami version debuted last month, and it features the same menu of irreverent judicial gossip and satire, including a poll ranking the sexiest judge on the bench. It’s likely to rile lawyers, judges and elected officials — and be devoured by them. “Welcome to the unofficial Richard E. Gerstein Justice Building blog,” the anonymously written blog reads. “This site will be dedicated to justice building rumor, humor, innuendo and good stories about the judges and lawyers who labor in the world of Miami’s criminal justice.”
Our blog gets a mention:
But two other South Florida lawyer-bloggers, who put their names on their postings, doubt he’ll be able to maintain his anonymity very long. “We’ll see how long he stays in the closet,” said Miami criminal defense attorney David Markus. “E-mails can be traced.” That’s how the Washington blogger was outed. Predicted Miami criminal defense lawyer Brian Tannebaum: “He will be discovered.”
Anyone know who it is?

More judges?

Today's DBR (pass through link required) details a new bill in Congress to add 3 judges to our district, as well as splitting up the 9th Circuit. Although splitting the 9th is talked about every year and is very controversial, we would be the beneficiaries if the bill passes. I'm quoted in the article:
“We are the busiest and best district in the country and we could always use more judges,” said David Markus, vice president of the Florida Association of Criminal Defense Lawyers. If new judgeships are created in South Florida, a battle over where they would be stationed is likely, said insiders. A push to post the new judges in Broward, Palm Beach or Martin counties, where the population is rapidly growing, is expected, although some would likely want the judges based in Miami. “We’d like to see them in our brand new courthouse which is opening next year,” Markus said.

Friday, December 02, 2005

Booker in the 11th Circuit

Hat tip to Doug Berman over at the Sentencing Law and Policy Blog for this head's up:
Law.com this morning has this article discussing the state of Booker appeals in the 11th Circuit. The article reviews the interesting concurrences this week from Judge Tjoflat (discussed here) and Judge Carnes (discussed here). The article also interestingly notes that the "11th Circuit has handled nearly 1,100 decisions in the past 10 months that pertain to Booker, according to a Lexis database search."

Here's the conclusion of the article, which highlights the internal fights in the 11th:
Although a majority of the 12-judge circuit voted not to rehear the Rodriguez case, Tjoflat criticized Carnes' approach in a dissent, saying Carnes will make applying Booker "a meaningless formality in all but the rarest of cases." Carnes' rejoinder came in a 43-page opinion. Carnes wrote that Tjoflat's conclusion "requires not just a set of reading glasses but also a vivid imagination."

Thursday, December 01, 2005

Not so fast...

We earlier discussed how the Justice Department was trying to avoid a showdown on the Presidential powers debate in the Supreme Court re Padilla by charging him here in the Southern District of Florida. The Government counted on the fact that the Fourth Circuit would approve of the transfer to this district to face charges. But the Fourth wasn't so happy about the fact that its ruling was based on allegations far more sweeping than those alleged by the Government in its indictment here.

Judge Luttig has asked for the following question to be briefed: "Whether, if the government's motion is granted, the mandate should be recalled and our opinion of Sept. 9, 2005, vacated as a consequence of the transfer and in light of the different facts that were alleged by the President to warrant Padilla's military detention and held by this court to justify the detention, on the one hand, and the alleged facts on which Padilla has been indicted, on the other." The government has until Dec. 9 to file its new brief on that issue. Padilla's lawyers are to file their brief a week later, by Dec. 16.

Lyle Denniston has this analysis over at ScotusBlog.com:
The Fourth Circuit had upheld Padilla's detention on the basis of more serious claims of wrongdoing than the charges contained in the new criminal indictment. The government contended, in seeking to justify his detention, that he had been
planning to release a radioactive bomb in a terrorist plot in this country. The
new indictment levels charges of joining in a terrorist "cell" of activity to support global terrorism efforts. The indictment describes a quite minor role for Padilla.
If the government has no interest in pursuing the more serious charges, for whatever reason, the Fourth Circuit may believe that its September ruling has been undercut. This will become clear after it acts following the new briefing. In the meantime, the Justice Department has until Dec. 16 to file its response to Padilla's appeal to the Supreme Court. The Circuit Court's order may complicate that proceeding, because it will not have ruled on the transfer motion, and the possible withdrawal of its September ruling, by Dec. 16. The government, of course, would be free to ask for a further extention of time to file its response.

No word yet on how this will affect the ongoing Southern District case.

Wednesday, November 30, 2005

New state court gossip blog

Just wanted to point you all to a fun new blog about the state court justice building in Miami, called Justice Building Blog. Its author is Rumpole, who describes himself* this way:
In order to allow a free and fun discussion of the Justice Building, and because from time to time I need to get my clients a bond, I have assumed the identity of that famed English Defense Attorney Rumpole of the Bailey. What I can reveal is that I am a practicing criminal defense attorney in Miami, Florida who has the same high opinion of Judges, Prosecutors, Civil Lawyers, and stuffed shirts as my fictitious alter ego.
I've been asked who the author is and have even been asked if it was me. I don't know who it is and it certainly isn't me.

*Although I use the male pronoun, for all we know Rumpole could be a woman. See, e.g., Article III Groupie, A/K/A AUSA David Lat.

Tuesday, November 29, 2005

Congrats to . . .

Michael Caruso on being named the Chief Assistant Federal Defender for the Southern District of Florida. Michael is one of the finest lawyers I know.

Monday, November 28, 2005

Moving day...

Hope you all had a nice Thanksgiving weekend. The weather in Miami was 75 and sunny all weekend. Today is my first day at the new office, in the Alfred I. duPont Building. In a couple hours I'm taking off to Savannah on business and won't be back until Thursday. I'll do my best to post while I'm there and if not, my co-blogger -- Anonymous -- promises to post.

Saturday, November 26, 2005

Bench trial = $60 million

After a bench trial, Judge Gonzalez awarded $60.9 million to a couple whose son suffered severe brain damage when he was born in a Jacksonville Navy hospital two years ago. It is the largest verdict ever under the Federal Tort Claims Act. (I wonder if it is the largest bench trial verdict.)

A couple of interesting points -- first, the case was originally assigned to Judge Graham who had to transfer the case because of Wilma. Second, the law has changed since the filing of the suit so that damages are now capped at $1 million. More coverage here and here. Plaintiffs lawyers were Ervin Gonzalez and Deborah Gander.

Tuesday, November 22, 2005

Marcia Cooke in the spotlight

I've received a bunch of emails from out-of-towners asking about Judge Cooke, the newest judge in this District, and drawing interest because she is the judge assigned to Jose Padilla's case. One of the comments asks whether the government was "judge-shopping" and others like Prof. Froomkin have flat out said that the government specifically selected Judge Cooke by adding Padilla to a superceding indictment. Perhaps DOJ looked at Judge Cooke's resume and saw that she was a Bush appointee and a former AUSA and thought that she would be a push-over for the feds. Froomkin (who I doubt has ever appeared before her) goes so far as to say "the government should not expect a hostile bench." If this is what the government thought, it is dead wrong. Judge Cooke -- to put it in Chief Justice Roberts' words -- calls a strike a strike and a ball a ball, and will not be pushed around by the government. She is known in this community as a fair judge who listens carefully to both sides and calls it right down the middle. She is well liked by criminal defense attorneys and prosecutors alike. (In the interest of full disclosure, I have tried two lengthy trials in front of Judge Cooke.) In addition, I have posted about this case pre-Padilla here.

The interesting aspect of the case for me is that it shows true weakness by the President. Perhaps the administration lost confidence in its legal arguments due to the Supreme Court next week. Combine this with the recent polls and perhaps the feds figured this was an easy out. We'll see...

On a separate note, isn't Miami always the center of this poltically charged stuff -- Elian, Bush v. Gore, Padilla, and so on. Finally, via How Appealing: "Prepared Remarks of Attorney General Alberto R. Gonzales at the Press Conference Regarding the Indictment of Jose Padilla": You can access them online here, while the indictment itself can be viewed at this link. And the memorandum from President Bush authorizing the transfer of Jose Padilla from the control of the U.S. Military to the control of the U.S. Department of Justice is here.

Jose Padilla charged in Miami

Jose Padilla, the so-called "dirty bomber", has been charged in a 11 count indictment in Miami. Attorney General Alberto Gonzalez is expected to announce the charges during an 11 a.m. ET news conference.

As you may recall, Padilla had filed a cert petition with the Supreme Court seeking review of the question of whether "the President has the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial."

A response to the petition from the Justice Department was due next Monday. Interesting timing.

UPDATE (by DOM)-- There's lots to read about this interesting case. Check out ScotusBlog for detailed analysis. Also, in response to the comment, Judge Cooke is handling the case. Here is the indictment. I know Ken Swartz represents one of the co-defendants named Hassoun. I'm not sure if anyone has entered an appearance for Padilla yet. Anyone?

Friends of Luis Posada Carriles denied bond

Magistrate Judge Andrea Simonton denied bond to Santiago Alvarez and Osvaldo Mitat (allies of Cuban exile militant Luis Posada Carriles) because "their mere possession of automatic weapons, grenades and rounds of ammunition amounted to a crime of violence and posed a a danger to the community." More in the Herald article here and the Sun-Sentinel here. AUSA is Randy Hummel and defense attorneys are Dennis Kainen and Kendal Coffey.

Monday, November 21, 2005

News and notes

So I'm sitting here waiting for Bellsouth to install my new phone lines at the new office and I found a computer connected to the internet... Interesting stories today.

First is the DBR article about the internal district rules that were made public. Here's the intro to the article: "The so-called secret rules that federal judges in the Southern District of Florida have been operating by for more than a decade are no longer secret. Under pressure from defense attorneys and the Federal Public Defender Office after an article about the rules was published in the Daily Business Review, the district court in Miami has for the first time made public its internal operating procedures manual. The manual, signed by Chief Judge William J. Zloch Nov. 14, is available for viewing on the court’s Web site. The 20-page manual lays out procedures for how the federal judges assign and reassign cases, how new judges receive cases, jury instructions and magistrate assignments. It also details special powers of the chief judge, which include appointing the chief bankruptcy judge and chief magistrate judge, approving all requests for annual and sick leaves, approving all new courthouse construction projects and architectural plans and reviewing all complaints of judicial misconduct."

Also today's Miami Herald details the sentencing of Haitian informer, Oriel Jean, who got a reduction for his cooperation: "Oriel Jean, the former security chief for ex-President of Haiti Jean-Bertrand Aristide, was sentenced Friday to just three years in prison for his role in helping drug traffickers move tons of Colombian cocaine through Haiti to the United States.
With good reason: The 40-year-old defendant, held in custody since March 2004, gave federal investigators invaluable information on Haiti's drug underworld and the location of fugitives -- and even continued to testify after a cocaine smuggler threatened his life. Indeed, Jean proved to be the prosecution's star witness. At his sentencing hearing in Miami last week, U.S. District Judge Jose Martinez paid Jean a compliment, praising his ''good work'' for the government. The judge then gave him half of the six-year sentence he otherwise would have received for his money-laundering plea deal."

Friday, November 18, 2005

Secret rules no longer secret

A while ago I posted about the "secret" local rules that only the judges had access to. Those rules are now public and available on the court's website dubbed "2006 Internal Operating Procedures."

Thursday, November 17, 2005

Muzzled

No more Pit Bull ads. Ft. Lauderdale lawyers John Pape and Marc Chandler were reprimanded and ordered to attend advertising classes for their infamous pit bull ads (and 1800pitbull #). Here's the AP article and here's the opinion.

Wednesday, November 16, 2005

Opening statements in Masferrer

Apparently they picked the jury with blazing speed in the Hamilton Bank trial -- opening statements were yesterday. The Miami Herald covers it here. AUSA Ben Greenberg started out his opening, arguing: ''This case is about Eduardo Masferrer's lies and his greed." Howard Srebnick countered, "'This is a case about one man, one citizen disagreeing with his government. . . He disagrees with his government's accounting rules."

Monday, November 14, 2005

Supreme Court denies cert in voting case

The Supreme Court denied cert today in the case involving Florida's lifetime ban on voting rights for convicted felons. Here's the AP story from the Sun-Sentinel. More coverage at Scotusblog.

Sunday, November 13, 2005

Hamilton Bank trial to start

Former Hamilton Bank chief executive Eduardo Masferrer's criminal trial starts Monday in front of Judge Moore. He is defended by Howard and Scott Srebnick. The case was transferred from Judge King (pursuant to a secret policy manual) when he recused himself from all criminal cases, which I discussed here.

UPDATE 11/14 -- Speaking of secrecy, the Daily Business Review's cover story today is "Secrecy Slapdown." It discusses in great detail the secret docket problems of this District and the recent Ochoa decision telling the court not to engage in secrecy any longer. I'm trying to get a working link to the article (here it is)... In the meantime, here's the intro:
Last month, a three-judge panel of the 11th U.S. Circuit Court of Appeals chastised judges of the Southern District of Florida for completely hiding cases from public view by placing the cases on a secret court docket. “We … exercise our supervisory authority to remind the district court that it cannot employ the secret docketing procedures that we explicitly found unconstitutional,” the panel said in its unusual reprimand. Defense attorneys, civil liberties groups and the news media celebrated the panel’s words, which came in the course of upholding a drug lord’s conviction and sentence of more than 30 years in prison. Now, one of the South Florida federal judges who agreed to hide a case admits that she made a mistake and vows never to do it again. “Judges are not gods,” U.S. District Judge Patricia Seitz, a seven-year veteran of the federal bench, said in an interview. “Like any human being, we make mistakes. When your mistake is pointed out, you reconsider your action and you promptly make a correction.”

Wednesday, November 09, 2005

JNC interview

I've just been absolutely swamped lately. I was in Savannah the last two days, and at the end of the month I'm starting my own law practice downtown and trying to get that up and running is insane... But I did have a minute to read a great article in the DBR today (by Julie Kay) about the JNC interview process. The article makes it seem like Acosta got some tough questions. Most believe that he is a shoo-in for the position. The article also mentions that many were disappointed that neither of the two women applicants made the final cut. Here is one snippet from the article:
The commission spent nearly an hour grilling Acosta, who is considered by some a shoo-in for the post due to his Bush administration connections. “An issue that is still hanging out there is your lack of trial experience,” said Scott Srebnick, a Miami criminal defense attorney. “In terms of street credibility, will you be able to make the tough decisions? If you decline a case an agency has been working on for awhile … will the agents think, ‘What does he know, he hasn’t really tried any cases?’ ” Acosta replied that as head of the Justice Department’s civil rights division since 2003, he took on some of the hardest cases. “I haven’t had any pushback from law enforcement,” he said. “Look, the issue of credibility has come up before,” he said. “One-third of all U.S. attorneys across the country have no trial experience. At the end of the day, it’s not just about what your experience is but whether you can sit across the table and know the facts and have the confidence to say, ‘Look, I disagree,’ or ‘Look, this is the argument we need to make.’ ” “The U.S. attorney’s office runs itself,” he added.

Tuesday, November 08, 2005

JNC recommendations for U.S. Attorney

The JNC sent up three names for U.S. Attorney -- Alex Acosta, Tom Mulvihill, and Ed Nucci.

Monday, November 07, 2005

More en banc coverage

Today, Carl Jones of the Daily Business Review covers the 11th Circuit's decision to rehear en banc the Cuban Spy case. I'm quoted in the article:

Miami criminal defense attorney David Oscar Markus, who’s not involved in the Cuban spy case, said the 11th Circuit doesn’t often grant en banc review of a panel decision. “It’s very rare,” he said. “If it happens a couple of times a year, it’s a lot. But you know what? It was very rare what the panel did.” Markus said there are two possible reasons why the court granted en banc review. “One possibility is they have taken the case to show unity from the court [in overturning the convictions and ordering a new trial],” Markus said. “The other possibility is the rest of the court just disagrees [with the panel] and wants to quickly get rid of this opinion.” Markus noted that the August panel ruling was the first known case of an appellate court overturning a district court judge on a venue question. Another unusual aspect of the case, he said, is that it typically takes months for the full circuit court to decide to rehear a panel decision. The speed with which the court granted en banc review, just weeks after Acosta’s request, took almost everyone by surprise. “Boom, the opinion
came out, the government asked for review, and review was granted almost immediately, which I think does not bode well for defenders of the opinion,” Markus said. No more than two of the judges on the original panel will be able to rehear the case and defend it, Markus said. Judge Birch was the only active member of the 11th Circuit to decide the original case, while Judge Kravitch has the option to take part in the en banc review. Judge Oakes was sitting by designation. Markus said if Judge Kravitch chooses not to participate, a single judge from the original panel “puts a greater onus on Judge Birch to get a consensus on the court.”

Sunday, November 06, 2005

The next U.S. Attorney for the district will be...

...one of the six individuals detailed in this Herald article by Jay Weaver. Those are: Alex Acosta, Ken Blanco, Tom Mulvihill, Susan Tarbe, Ed Nucci, and Cynthia Hawkins. Most say that it's hard to imagine that it won't be Acosta, especially after he was named on an interim basis. But initially there was a lot of talk that the job was Tarbe's. I haven't heard anything lately. Anyone else? I wrote on this topic a while ago here.

Return to Normal...

I'm back from Orlando (there is nothing like seeing Disney World through your kid's eyes...) and I see that Chief Judge Zloch has announced that everything is back to normal starting tomorrow. I wonder how jurors selected to sit for long trials are going to feel about it now that they can just get back to work themselves... It should be interesting. Here is the release:

Return to Normal Operations on Monday, November 7, 2005
Chief United States District Judge William J. Zloch announced that the United States District Court for the Southern District of Florida will resume normal hours and operations on Monday, November 7, 2005. Clerk’s Office hours are from 9:00 a.m. to 4:30 p.m. Jurors should call in for reporting instructions at (800) 865-1775. This announcement applies to district court facilities in Miami, Fort Lauderdale, West Palm Beach, Key West and Fort Pierce.

UPDATE: Judge Zloch also issued an Order on behalf of the entire Southern District of Florida, tolling the speedy trial clock from October 24 through November 4, 2005 due to Wilma. Hat tip, Brian Tannebaum. I feel bad for the clerk's office because J. Zloch directs the clerk to file the Order in every criminal case and to give notice to all parties. What a headache...

Thursday, November 03, 2005

Smuggling Blues

Gil Rodriguez and Taboada Cabrera pleaded guilty yesterday in a case involving smuggling Cubans to the United States. During the trip a 6 year old boy tragically died. Coverage here and here.

I will be out of town this weekend (I'm speaking at a sentencing seminar in Orlando tomorrow and then going to spend the rest of the weekend in Disney with my family) so blogging will be very light if at all...

Wednesday, November 02, 2005

Cuban five

The Miami Herald has this article about the decision to grant en banc review of the Cuban Spy decision. Good article but it has a completely misleading headline -- "Verdict to stand for five Cuban spies." From that headline one would think that the jury verdict was affirmed and that there were no further proceedings. Nothing could be further from the truth. The entire 11th Circuit has decided to hear the case. The Sun-Sentinel article's headline is more accurate: "Appeals court voids Cuban spy decision, will rehear case."

Tuesday, November 01, 2005

Breaking news -- Cuban Spy en banc

I have it on good authority that the Eleventh Circuit has granted en banc review in United States v. Campa, the cuban spy opinion.

UPDATE: Confirmed. Here is the text of the order:

Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and PRYOR, Circuit Judges*.
B Y T H E C O U R T :
A member of this Court in active service having requested a poll on the suggestion of rehearing en banc and a majority of the judges in this Court in active service having voted in favor of granting a rehearing en banc,
IT IS ORDERED that the above causes shall be reheard by this court en banc. The
previous panel's opinion is hereby VACATED.
__________________________
*Senior U. S. Circuit Judge Phyllis A. Kravitch may elect to participate in further proceedings in these matters pursuant to 28 U.S.C. § 46(c).

Slow blogging

Sorry about the slow blogging, but I still don't have power at home and I typically like to post before I go to work and late at night when everyone else is asleep...

In any event, most of the news is Wilma related and I'm sure everyone is Wilmad out. But if you're not, there is great coverage of how Wilma affected the courts and law firms in the Daily Business Review. All the articles require pass-through links, so it doesn't do any good to post them here. But if you can grab a copy of the Review, it's worth it. I was quoted in one funny article this morning about how half of Miami went to Orlando to ride out the storm. I offered my office (which has power, internet, etc) to any lawyer who needs it, "including prosecutors." To date, no prosecutor has taken me up on the offer...

Still no jury trials until further notice

Here's the latest press release:

United States District Court for the Southern District of Florida Open With Reduced Hours Beginning November 1, 2005 until Further Notice
Chief United States District Judge William J. Zloch announced that the United States District Court for the Southern District of Florida will reopen on Tuesday, November 1, 2005 in all divisions. The Clerk's Office will be open in Miami, Fort Lauderdale, West Palm Beach and Fort Pierce; however, the District Court's hours of operation will be limited to between 9:30 A.M. and 3:30 P.M until further notice.
Southern District of Florida courthouse facilities will be generally open to the public but no new jury trials will commence until further notice. The Court will operate under this reduced schedule in consideration of localized power outages, supply shortages, and the recent conversion to daylight savings time which together may complicate evening commuting.
Information concerning the status of the Court's operations will be posted here on the Court's web site.
Last Updated: Monday, October 31, 2005

Monday, October 31, 2005

Nominee Alito

So the President has nominated Judge Sam Alito to fill O'Connor's seat.

It's an interesting choice, especially when compared to Bush's other two nominations. Roberts was an unknown, but a very smart unknown. It was difficult for either side to really attack him because he was so qualified. Miers was viewed as a not-so-smart unknown. And it was easy for both sides to attack her because she was seen as unqualified. Now we get Alito, a known and smart commodity. He's been a judge for fifteen years and has a long track record, even on issues like abortion. See Planned Parenthood v. Casey (Alito supported abortion restrictions). His record will certainly make the hearings more exciting to watch.

For all the news, background, and gossip I would check out ScotusBlog, How Appealing, Professor Berman's site, and Underneath Their Robes.

Latest press release from court website

United States District Court for the Southern District of Florida Operations on Monday, October 31, 2005
Due to the ongoing community recovery efforts and supply shortages in the aftermath of Hurricane Wilma, Chief United States District Judge William J. Zloch announced that the United States District Court for the Southern District of Florida will be open on Monday, October 31, 2005 subject to the following restrictions: The Clerk's Office will be open in Miami only, and its hours of operation will be reduced to 10 A.M. to 3 P.M. The Clerk's Offices in Fort Lauderdale, West Palm Beach and Fort Pierce will remain closed.
All Southern District of Florida Courthouse facilities will remain generally closed to the public. The Miami Clerk's Office will be available during reduced hours to receive emergency filings. No jury trials or hearings will be held or commenced until further notice.
A further announcement about the status of the District Court’s operations will be made by 4:00 P.M. on Monday, October 31. Information concerning the status of the Court’s operations will be posted here on the Court’s web site.
Last Updated: Saturday, October 29, 2005, at 1:00 p.m.

Friday, October 28, 2005

Wilma Updates

No decisions yet on the opening of the Broward county courthouse. The decision about federal courthouses will be made today at 3PM and can be found on the district's website. For those without power, I'm not sure how they will find out... I'm not sure they care.

Thursday, October 27, 2005

Wilma, Meirs, and Easter

So Harriet Miers withdrew her nomination today. I couldn't think of a better time for President Bush to appoint a Floridian for the post. I mean, with Wilma and everything, I think it's the least we can expect! Come on, W, it's time for the first Justice from Florida!

I hope my fellow South Floridians are doing okay. Most of us are still without power, hot water, gas, etc. They say we may get these things by Easter...

The DBR reports the following on courts:

Hurricane Wilma shut down state and federal courts in Miami-Dade, Broward, and Palm Beach counties. Most said they would remain closed through Friday. Officials at most of the courts said they would reopen for business on Monday though that is tentative. The lone exception is the 3rd District Court of Appeal, which covers Miami-Dade and Monroe counties, which will be open Thursday. Hearings Wednesday were canceled at state and federal courts and filings deadlines were expected to be extended. The Florida Supreme Court was expected to issue deadline-extension orders for state courts sometime Thursday. Wilma damaged several Miami-Dade County courthouses, forcing their closure for several days while authorities assess the damage. But the damage was not nearly as severe as that to the main Broward County Courthouse in Fort Lauderdale. Most trials and court proceedings at the main Broward courthouse will be postponed until Nov. 7 as workers make massive repairs to the facility in downtown Fort Lauderdale. About 175 windows were shattered and blown inside the building, water pipes burst, and wind and rain inundated judges’ chambers, court administration offices and the jury room. In the north wing of the building, an inch of water covered the floor. Nevertheless, magistrates are holding first-appearance criminal proceedings at the Broward County Jail In Palm Beach, all Circuit Court business has been suspended through Friday, except for first appearances, shelter hearings, and domestic violence-related matters, according to the court’s Web site. Those proceedings are taking place at the Criminal Justice Complex in West Palm Beach. A court epresentative was not available for comment Wednesday about any damage at court buildings. The four federal courthouses in downtown Miami appeared to have suffered no exterior damage, but did have some interior damage. The court’s Internet site reported that federal courthouses would be closed until further notice. A recorded message at the U.S. Bankruptcy Court said the bankruptcy offices in Miami-Dade, Fort Lauderdale, and West Palm Beach are also closed until further notice. The recording said bankruptcy hearings and creditors’ meetings would be rescheduled. Criminal court judges in Miami-Dade were handling first appearances at the county jail in downtown Miami Tuesday afternoon, and were working on emergency domestic violence intervention requests. Miami-Dade Circuit Court spokeswoman Jill Beach said it was too early to tell when the courts might reopen, although officials were hoping it would be next Monday. “We’re doing everything we can to get safely prepared for reopening for the public and the employees,” Beach said. “There’s no assurances what’s going to happen right now.” The 11th U.S. Circuit ourt of Appeals in Miami canceled oral arguments in Miami for the week. An 11th Circuit court clerk in Atlanta said attorneys should call their case manager to
arrange for deadline extensions, but extensions would be granted on a case-by-case basis. Officials at the 4th DCA in West Palm Beach, which includes Broward and Palm Beach counties, could not be reached Wednesday. The court’s Web site said it would be closed Wednesday and Thursday. No further information has been posted about when the court might reopen. No details of any damage were immediately available. Carl Jones can be reached at cjones@alm.com or at (305) 347-6648.

Wednesday, October 26, 2005

Wilma update (UPDATED)

None of us thought it was going to be this bad...

I have no internet access at home or work, so I'll do the best I can to get updates to this site. Thanks to Stearns Weaver for lending me an office.

The state courthouses in Miami and Broward are closed the rest of the week.

The federal courthouses are going day by day. Their website has more info. Hopefully they will just close for the rest of the week. **UPDATE -- They listened -- all federal courts in this District are closed the rest of the week.

FDC-Miami is closed to visitors. **UPDATE -- You can call 305-982-1211 to find out when it is re-opening.

Many many offices on Brickell, including Greenberg Traurig, have been blown out.

Saturday, October 22, 2005

Cuban Spy panel discussion

The panel discussion Thursday evening regarding the Cuban Spy opinion was very interesting. The panelists -- Judge Edward Davis, Judge Stan Blake, Federal Defender Kathy Williams, and former U.S. Attorney Guy Lewis -- were engaging and lively. The most contentious issue seemed to focus around the last paragraph of the opinion. Even the audience seemed vocally upset about it. This is what the Court said:

The court is aware that, for many of the same reasons
discussed above, the reversal of these convictions will
be unpopular and even offensive to many citizens.
However, the court is equally mindful that those same
citizens cherish and support the freedoms they enjoy
in this country that are unavailable to residents of
Cuba. One of our most sacred freedoms is the right to
be tried fairly in a noncoercive atmosphere. The court
is cognizant that its judgment today will be received
by those citizens with grave disappointment, but is
equally confident of our shared commitment to
scrupulously protect our freedoms. The Cuban-
American community is a bastion of the traditional
values that make America great. Included in those
values are the rights of the accused criminal that
insure a fair trial. Thus, in the final analysis, we trust
that any disappointment with our judgment in this
case will be tempered and balanced by the recognition
that we are a nation of laws in which every defendant,
no matter how unpopular, must be treated fairly. Our
Constitution requires no less.

The sentiment was that this language was offensive and that there was no reason to include it. Kathy defended the court's language (as I think she had to -- she is representing one of the defendants in the on-going litigation), arguing that each sentence in that paragraph was true and complimentary.

It does seem to me strange that it was included in the opinion. Query as to whether it would have been included if the defendants were African-American or Jewish. I doubt it. So why include it here? Thoughts?

Wilma

Federal courts are closed Monday due to Wilma. Here is the press release:

Federal District Court Operations and Hurricane Wilma
Chief United States District Judge William J. Zloch announced that United States District Court operations in all divisions be closed Monday, October 24, 2005 due to wind and rain conditions anticipated to develop with the approach of Hurricane Wilma. These closures affect the District Court’s operations in Key West, Miami, Fort Lauderdale, West Palm Beach and Fort Pierce. The District Court in these locations will be closed to the public, and jurors have been or soon will be instructed to call in for further reporting instructions. The United States Bankruptcy Court will also be closed.
Federal court operations will resume at the regular time in all Divisions on Tuesday, October 25th. Please consult the Court’s website at www.flsd.uscourts.gov for changes to these instructions.

Thursday, October 20, 2005

11th Circuit decides USA v. Fabio Ochoa

Today, in a 2-1 decision, the 11th Circuit affirmed the conviction and sentence of Fabio Ochoa, who is said to be one of the high ranking members of the Medellin drug cartel in the 1980s. I haven't had a chance to digest the 83 page opinon, but it looks like it packs a lot in. District Judge Avant Edenfield, sitting by designation, wrote the opinion (which was joined by Judge Hull) and Judge Barkett dissented, arguing that the jury selection process was unconstitutional. More to follow after I've had a chance to read the whole decision.