Domestic disputes resulting from marital infidelities and culminating in a thumb burn are appropriately handled by local law enforcement authorities.

That was Paul Clement to the Supreme Court in this fascinating case about the reach of the feds and whether the 10th Amendment could be a new weapon in the fight against the over-criminalization by the federal government. From the NY Times:

The Tea Party’s favorite part of the Constitution — the 10th Amendment, which limits federal power — arrived at the Supreme Court last week. In keeping with the spirit of the times, it came wrapped in the plot of a soap opera.

The amendment has played a starring role in challenges to the recent federal health care legislation. But the justices have not made the task of divining their own views particularly easy.

Their most recent consideration of where Congress’s constitutional power ends came in a case involving the civil commitment of sex offenders.

Now the court has decided to consider what to do about a woman hellbent on poisoning her best friend.

The woman, Carol A. Bond of Lansdale, Pa., was at first delighted to learn that her friend was pregnant. Ms. Bond’s mood darkened, though, when it emerged that her husband was the father. “I am going to make your life a living hell,” she said, according to her now-former friend, Myrlinda Haynes.

Ms. Bond, a microbiologist, certainly tried. On about two dozen occasions, she spread lethal chemicals on her friend’s car, mailbox and doorknob.

Ms. Haynes, who managed to escape serious injury, complained to the local police. They did not respond with particular vigor. After checking to see whether the white powder on her car was cocaine, they advised her to have it cleaned.

Federal postal inspectors were more helpful. They videotaped Ms. Bond stealing mail and putting poison in the muffler of Ms. Haynes’s car.

When it came time to charge Ms. Bond with a crime, federal prosecutors chose a novel theory. They indicted her not only for stealing mail, an obvious federal offense, but also for using unconventional weapons in violation of the Chemical Weapons Convention of 1993, a treaty aimed at terrorists and rogue states.

Had she been prosecuted in state court, Ms. Bond would most likely have faced a sentence of three months to two years, her lawyers say. In federal court, she got six years.

Ms. Bond’s argument on appeal was that Congress did not have the constitutional power to use a chemical weapons treaty to address a matter of a sort routinely handled by state authorities.

She relied on the 10th Amendment, the one so beloved by Tea Party activists. It says that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Now on to the First Amendment (via ATL). Go to the 2:20 mark... It's too good to pass up:

Monday news and notes

1. The jury in Judge Lenard's case dealing with the Chinese ammo resulted in a hung jury; the jury deliberated for over a week.

2. Justice Sotomayor really likes "12 Angry Men".

3. New York Times raises "age-old question" of jury service in the context of blogging: "Mr. Slutsky’s posts raised the age-old question of what jurors may or may not reveal about their jury service. They also highlighted a 21st-century nuance of dealing with jurors who use blogs and other forms of social media to share their existence with the world."

4. We're on a NYTimes roll this morning. Here's an editorial saying that states shouldn't block DNA tests. Duh.

5. And in a case close to my heart, the South Carolina Supreme Court will determine whether poker is a game of skill or luck:

Hold 'em, Dennis said, is determined more by "the relative skill of the player" than anything else. "A more skilled player will consistently beat a less skilled player, and a player's skill can be improved over time through study and practice," he added.
Because of that skill factor, Dennis said he expected his ruling would survive the court's "dominate factor test" that the justices have relied on when evaluating whether players' ability matters -- versus chance -- in determining the legality of games. Dennis also called the state's anti- gambling laws as applied to the case "unconstitutionally vague and overbroad."
Dennis' opinion tossed out the convictions of five players who had been arrested in the police raid but opted to fight the charges.
McMaster appealed, saying the judge went too far by declaring one gambling game to be more skill-oriented than another.
"In the General Assembly's view, the ills resulting from games played for money does not depend upon the particular game or the nature in which it was played," he said.

Of course there is skill involved in the game. The defense has the better of this argument by a long shot. And why are the police arresting card players? Sheesh.

The average teenager now sends 3,339 texts per month.

In keeping with the off-blog news for the week, check out this CNN article on texting:

If you needed more proof that texting is on the rise, here's a stat for you: the average teenager sends over 3,000 texts per month. That's more than six texts per waking hour.
According to a new study from Nielsen, our society has gone mad with texting, data usage and app downloads. Nielsen analyzed the mobile data habits of over 60,000 mobile subscribers and surveyed over 3,000 teens during April, May and June of this year. The numbers they came up with are astounding.
The number of texts being sent is on the rise, especially among teenagers age 13 to 17. According to Nielsen, the average teenager now sends 3,339 texts per month.
There's more, though: teen females send an incredible 4,050 text per month, while teen males send an average of 2,539 texts. Teens are sending 8 percent more texts than they were this time last year.
Other age groups don't even come close, either; the average 18 to 24-year-old sends "only" 1,630 texts per month. The average only drops with other age groups. However, in every age bracket, the number of texts sent has increased when compared to last year. Texting is a more important means of communication than ever.

Thank goodness we haven't gotten to the point where we are texting with opposing counsel...

Ethical question of the day: Should judges be able to do stand-up comedy when they aren't on the bench? New Jersey says no:

A judge walks into a bar and launches into a stand-up routine. The bartender asks, "Is this a joke?" The judge says, "Let me check with the Advisory Committee on Extrajudicial Activities."
That's not exactly how South Hackensack, N.J., Judge Vincenzo Sicari -- alias comic "Vince August" -- got into an ethics pickle. But he did make the inquiry, and the outcome wasn't so funny: The panel that regulates New Jersey municipal judges' moonlighting said he can't decide cases by day and do shtick by night.
Sicari, though his term on the bench ends Dec. 31, isn't taking the ultimatum lying down. He's asked the state Supreme Court for review, and the justices on Oct. 8 agreed to hear the case, In the Matter of Opinion No. 12-08 of the Supreme Court Committee on Extrajudicial Activities, A-23-10.

What are the odds?

Check out this USA Today article:

Unlike many moms, Barbara Soper never gets her kids' birthdays confused. That's because her first was born on Aug, 8, 2008, her second on Sept. 9, 2009 and her most recent on Oct. 10, 2010.

Yes, that's 8-8-08, 9-9-09 and 10-10-10.

1 in a billion, right? Not so fast:

While the dates might seem "incredibly rare," they're really not. Such a lineup can only happen in the first 12 years of the century and at least 10 months apart, says Shannon McWeeney, a professor of biostatistics at the Oregon Health Sciences University in Portland.
"Given that the first birth occurred in that window, the probability is not as astronomical as you might be compelled to think," she says.In fact, it's not that high a number at all, says Philip Stark, a professor of statistics at the University of California, Berkeley. "The 'chance' you get depends on the assumptions you make," he says. One set of assumptions gives a chance of about 1 in 50 million. More realistic assumptions — including allowing at least 11 months between births — increases it to about 1 in 2,500. Since thousands of women in the United States had kids in 2008, 2009 and 2010, this suddenly seems a little less extraordinary. But humans "like to look for patterns, to make sense of things" he says.For the Sopers, three is simply their lucky number — "we don't have any more planned," says Barbara.

What does this have to do with the SDFLA? I couldn't really figure that out either. But it's a neat story. So there.

Tuesday morning

1. Rumpole and the NYTimes take on Supreme Court specialists. I usually really like Adam Liptak, but I think he (and Rumpole) got this one all wrong. Take the example they cite in the lead to the article:

Humberto Fernandez-Vargas, deported to Mexico, had run out of options. A federal appeals court said he could not return to the United States to live with his American wife and son. And his lawyer did not have the expertise or money to pursue the case further.

Then the cavalry arrived. Leading lawyers from around the country, sensing that the case was one of the rare ones that might reach the Supreme Court, called to offer free help. Mr. Fernandez-Vargas’s immigration lawyer was delighted, and he chose a lawyer from a prominent firm here.

But there was a catch, and then a controversy. The catch was that the Washington lawyer, David M. Gossett, would take the case only if he could argue before the Supreme Court himself.

The controversy was that groups representing immigrants were furious, suspicious of the new lawyer’s interest in the case and fearful of a Supreme Court ruling that would curtail the rights of immigrants nationwide.

Indeed, Mr. Gossett faced a barrage of hostile questions from the justices, and in June 2006 the court ruled against his client, 8 to 1. The ruling wiped out decisions in much of the nation — notably from the federal appeals court in California — that had favored immigrants.

So let me get this straight -- Humberto Fernandez-Vargas, having lost and waiting to get deported after serving a federal prison sentence, should not fight his case and lay down because it might not be good for others. Please. That's not how our adversary system works. Gossett was fighting for his client and was able to get cert granted! Instead of being villified by immigration groups and a front page article in the New York Times, he should be getting kudos.

This morning the Court will hear argument on whether vaccine makers should have immunity:
At issue is whether a no-fault system established by Congress about 25 years ago to compensate children and others injured by commonly used vaccines should protect manufacturers from virtually all product liability lawsuits. The law was an effort to strike a balance between the need to provide care for those injured by vaccines, some of them severely, and the need to protect manufacturers from undue litigation.

Under the 1986 National Childhood Vaccine Injury Act, such claims typically proceed through an alternative legal system known as “vaccine court.” Under that system, a person is compensated if their injury is among those officially recognized as caused by a vaccine. That person, or their parents, can choose to reject that award and sue the vaccine’s manufacturer, but they then face severe legal hurdles created by law to deter such actions.

The case before the Supreme Court is not related to autism. But the biggest effect of the court’s ruling, lawyers said, will be on hundreds of pending lawsuits that contend a link exists between childhood vaccines and autism. Repeated scientific studies have found no such connection.

In other news, everyone is just SHOCKED about the Judge Jack Camp story.

And Justice Kagan is sporting conservative robes.

10 years for Villegas (Scott Rothstein's "right hand")

That sentence was much higher than the government's recommendation (7 years) and the defense's (home confinement). You all know my feelings on this -- a judge should almost never go above a prosecutor's recommended sentence. That should be the ceiling in our adversary system. What do you all think?

UPDATE -- maybe I spoke too soon about the sentence. Here's Curt Anderson on the details of the hearing:

But Debra Villegas, 43, will probably serve far less time because of her extensive cooperation with prosecutors, who said it was likely they would seek a sentence reduction later. U.S. District Judge William Zloch also took the unusual step of allowing Villegas to remain free until June 24, 2011, so she can assist in the ongoing investigation of the now-defunct Rothstein Rosenfeldt Adler firm.

Other off-the-chart sentences are being handed out. SFLawyers covers one here, where "the kingdom of God" was invoked.

The Daily Business Review has a fancy new website. It looks really good and is much more user friendly. Go check it out.

Time for the weekend. I need to go figure out my pick against Rump.

Federal JNC accepting applications for Judge Huck's seat

Here's the letter from the Senators announcing the opening and the letter from John Fitzgibbons, chair of the JNC. Here's the application to apply. And here are your JNC members who will be making the decision.

Wednesday notes

1. Can't get enough of the Judge Camp story. How Appealing is keeping track of all the articles.
R. Robin McDonald has this article -- my favorite coverage because of the shout-out to the blog! -- in the Fulton County Daily Report.

2. The Supreme Court heard a case today that tests the limits of free speech, Snyder v. Phelps. Basically, the Court asked whether there should there be a funeral exception to the First Amendment. SCOTUS Blog covers the argument here. Not an easy one.

3. Tony Mauro says yes to cameras in the Supreme Court. He's so right:

You've probably already read about Monday's historic moment in the life of the Supreme Court and of the nation. When the Supreme Court convened for the beginning of its new term, three of the nine justices who emerged from behind the marble columns to take their seats were women — the first time ever that the court's membership has included that many women at once.

But you only read about it. You did not see it, unless you were among the 250 or so people lucky enough to secure a seat inside the court that morning. As one of those fortunate people, I can tell you it was low-key but dramatic. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan took their places at the bench alongside their male colleagues without comment, and only the barest of smiles. Kagan looked awestruck at first but soon was asking questions with confidence, and no trace of freshman jitters.

When was the last time such a symbolic public event was so invisible? We have grown accustomed to seeing such moments — from the inauguration of the first African American as president, to the launch of the first woman into space — on television. But not at the Supreme Court of the United States. Its stubborn resistance to modern means of engaging with the public it serves is annoying every day it is in session, but especially so on a day like Monday, when it should have let the people in to see history in the making.


4. Judicial nominations are going forward. Confirmations, not so much.

A stripper, cocaine, pot, Roxicodone, a semi-automatic gun AND...

... A FEDERAL DISTRICT JUDGE?!

According to this Complaint out of the Northern District of Georgia, Senior Judge Jack Camp has some explaining to do.

Here's the AJC article:

A longtime federal judge was freed on a $50,000 bond Monday after his arrest on federal charges that he bought cocaine and other illegal drugs while involved in a sexual relationship with an exotic dancer for the past several months.

Senior U.S. District Judge Jack T. Camp Jr. was arrested late Friday night near Sandy Springs. Camp, 67, is accused of purchasing cocaine and marijuana, along with prescription painkillers, which he shared with an exotic dancer he met last spring at the Goldrush Showbar in Atlanta, according to an FBI agent’s affidavit for his arrest.

Camp met the dancer, identified in the affidavit as CI-1, when he purchased a private dance from her, according to the affidavit by Special Agent Mary Jo Mangrum, a member of a task force investigating public corruption. He returned the next night and purchased another dance and sex from her, the affidavit said. The two then began a relationship that revolved around drug use and sex.

In some cases, he bought drugs from the dancer, while in others the pair purchased them from other parties, according to the affidavit. Camp sometimes took loaded guns to the deals.

Camp’s arrest came after a buy from an undercover agent, authorities said.

And apparently, he was a tough sentencer:

As a judge, Camp had a reputation as a tough sentencer. In 2009, he sentenced former doctor Phil Astin to 10 years in prison. Astin had prescribed drugs to Chris Benoit, the professional wrestler who killed his wife, son and then himself in 2007. Camp said that the good works performed by the doctor were outweighed by his indiscriminate prescribing of drugs that caused at least two other people to die from overdoses.

Last year, Camp rejected a plea deal of an indicted pharmaceutical executive, saying the proposed 37-month prison sentence did not “accurately reflects the seriousness of the conduct.” Jared Wheat had earlier pleaded guilty to charges in connection with illegal importation of knockoff prescription drugs from Central America. Wheat later was given a 50-month sentence.

He had a little gun and a big gun:

Camp’s relationship with the stripper, who had a federal conviction related to a drug trafficking case, began last spring, according to the affidavit. The two would meet when Camp paid her for sex, and they would smoke marijuana and snort cocaine and take the painkiller Roxicodone together. Camp usually gave the stripper money to buy the drugs although sometimes she provided them on her own, the affidavit said. She secretly recorded Camp discussing the drug transactions.

“In order to snort the [Roxicodone], Camp and CI-1 would use a pill crusher to create a powdered form of the [Roxicodone],” the affidavit said. “In fact Camp gave CI-1 the pill crusher for CI-1’s use.”

The affidavit details a series of drug transaction in which Camp is described as securing Roxicodone and other drugs for his personal use and describes Camp as carrying a semi-automatic handgun to protect the stripper and himself during drug deals. Federal law carries separate charges for carrying a firearm in drug transactions.

Last Friday, in recorded telephone conversation, Camp told the stripper he would try to help her because she was having trouble getting a job with her record. The judge offered to talk to a potential employer if necessary, according to the affidavit. During the conversation, the two of them discussed having a second woman join them but Camp at least initially thought it too risky to do drugs with someone he didn’t trust because he said his “situation was precarious.”

Later Friday, the stripper asked Camp if he could follow her to a drug deal to protect her because she was dealing with a dealer she did not know well. According to the affidavit, Camp responded: “I’ll watch your back anytime … I not only have my little pistol, I’ve got my big pistol so, uh, we’ll take care of any problems that come up.”

That evening, according to the affidavit, Camp and the stripper met in a Publix parking lot on Shallowford Road in DeKalb County and the two drove to the parking lot of the Velvet Room on Chamblee Tucker Road, where they met with an undercover law-enforcement agent posing as a dealer.

Ten minutes after the 7:35 p.m. drug transaction, FBI agents arrested Camp and recovered the drugs and two pistols from Camp’s car, including a .380-caliber Sig Sauer with a full magazine and a round in the chamber.

“The hammer of the gun was cocked,” the affidavit said.

This looks like a worse train-wreck than Rumpole's picks...

On the one hand, the feds shouldn't use strippers (especially strippers who have had sex with the subject) to induce the commission of crimes. Twenty years ago, the feds would have taken the judge aside and told him to back off. Now they tell the stripper to push him into more serious crimes -- bringing guns for protection, etc. That said, it appears that Judge Camp hasn't shown much compassion in sentencing defendants who have committed similar deeds. What a mess.

"People are naturally good." Jean-Jacques Rousseau

Indeed! A NYC taxi driver returned my phone. Yipppeeeeeeeee!

It's the First Monday of October, and it's Justice Kagan's first Term. It should be an interesting one. Lots of coverage all over the blogosphere on the different issues before the Court. I really like the video game issue from California:

The Supreme Court, wading into a thicket of free-speech and children's rights issues, agreed Monday to decide whether California can ban the sale or rental of violent video games to minors.

The court will review a federal court's decision to throw out California's ban. The 9th U.S. Circuit Court of Appeals in San Francisco said the law violated minors' constitutional rights under the First and Fourteenth amendments.

California's law would have prohibited the sale or rental of violent games to anyone under 18. It also would have created strict labeling requirements for video game manufacturers. Retailers who violated the act would have been fined up to $1,000 for each violation.
The law never took effect, and was challenged shortly after it was signed by Gov. Arnold Schwarzenegger. A U.S. District Court blocked it after the industry sued the state, citing constitutional concerns.

Opponents of the law note that video games already are labeled with a rating system that lets parents decide what games their children can purchase and play. They also argue that the video games — which the Entertainment Software Association says were played in 68 percent of American households — are protected forms of expression under the First Amendment.
The decision to hear this case comes only a week after the high court voted overwhelmingly to strike down a federal law banning videos showing animal cruelty. The California case poses similar free speech concerns, although the state law is aimed at protecting children, raising an additional issue that could affect the high court's consideration.

Off the grid

So I flying back to Miami today. I was in NY yesterday speaking to the National Association of Criminal Defense Lawyers at this conference. The panel discussion was really interesting... but more on that later.

Now I have to rant -- I lost my freaking cell phone. I never realized how addicted I was to the thing. I have the shakes. I'm sweating. Sheesh.

Luckily, the NY airport has a bunch of computers available for a quick fix. I guess I'm not completely off the grid.

Enjoy your Friday afternoon. Here's some reading for the weekend to get ready for the First Monday in October:

1. High-profile cases fill Supreme Court docket.

2. Alito is against cameras in the courtroom.

3. 7th Circuit considers Conrad Black's case.

Really?

The Humane Society says there is a "massive resurgence" in crush videos since the Supreme Court struck down the animal cruelty video statute last Term 8-1 in U.S. v. Stevens.

Really? Who watches these things?

For those of you who forgot, crush videos involve women in high heels stomping on small animals.

Yikes!

In response to Stevens, the Senate just passed the Animal Crush Video Prohibition Act of 2010, which criminalizes the creation, sale, distribution, advertising, marketing, and exchange of animal crush videos. The penalty is up to seven years in prison.

This section, unlike the one at issue in Stevens, seems much more likely to pass a First Amendment challenge. We will see soon enough.

HT: BLT.

Baby steps

It's time for there to be cameras in federal courtrooms, especially the Supreme Court. And it will happen soon. But first, we'll have audio the same day as arguments.

Some other quick hits:

Anna Nicole is back before the High Court.

Al Capone walked again.

It's raining.

Formal Friday in Jacksonville.

A significant number of FBI agents cheated on their exams, even though it was open book.

Your friendly neighborhood blogger....

...is back from the Middle District.

Thanks to Professor Bascuas for the great posts while I was out.

I'm looking at the huge pile of mail, email, and calls that I need to wade through right now. So I will be back to post in a little bit.

In the meantime, you may want to check out this new album that came out today!

Three-week-old news

It seems that some important findings and conclusions came out while D.O.M.—who has been indefatigable with his exhaustive coverage of Paris Hilton—was out of town. This oversight needs immediate and painstaking correction.

You will doubtlessly recall that the receiver to a film company claims Paris breached a contract by failing to promote the film Pledge This!. Last year, The Chief, applying New York law, held that the receiver was not entitled to reliance damages, i.e., the $8.3 million spent making the movie. (Seems like a lot for a film that The Chief noted was “hardly destined for critical acclaim.” {I hope that doesn’t mean he had to watch it.}) Nonetheless, the receiver might be entitled to some of the $1 million paid to Paris if she has been unjustly enriched. (Not in general—Paris Hilton is obviously unjustly enriched, if anyone is—but with regard to this project.)

So, the receiver had an expert go through a bunch of Paris Hilton’s contracts to figure out what it costs to have her, say, show up at a party and do some “non-meaningful speaking” and what it costs to have her attempt the other kind of speaking. Paris’ lawyers argued, apparently seriously, that this method “fails to value the benefit the producers received from Ms. Hilton’s acting services.” Notwithstanding, about three weeks ago, The Chief decided that Paris failed to deliver $160,000 worth of meaningful speaking.

The next step is for the parties to figure out whether the work Paris did—including her dramatic rendering of protagonist Victoria English, leader of “the most popular and exclusive sorority” at South Beach University—was worth more than $840,000. How could it not be? Briefs are due on October 15, 2010. So, expect a report from D.O.M. on that.

Judge Gold and the EPA face off

Back in April, having granted summary judgment largely to the plaintiffs in an Everglades environmental suit, Judge Gold told the EPA to quit dragging its feet and clean up the Everglades. A hearing was set for October 7 at which the EPA administrator was to explain to the court why the agency had failed to comply with various orders. On September 8, the EPA filed a 9-page motion saying that head Lisa Jackson was too busy to personally attend and would send her Water guy instead. The plaintiffs filed a 9-page response saying that it would really be helpful if Lisa herself came since, you know, this has been going on a long time already and there are lots of things that need to be cleared up. (I’m paraphrasing here.) And then Judge Gold entered a 9-page order saying that the EPA could bring anyone they wanted, as long as Lisa Jackson was among them. Money quotes:

Despite knowing for approximately five months that the EPA Administrator was ordered to appear at the hearing, Defendants now move—one month prior to the October 7, 2010 hearing—for a substitution of appearance.

In sum, Defendants have not demonstrated any showing of a matter of national importance, issue, or great significance to preclude the EPA Administrator—a named party—from attending the hearing. Rather, as recognized by all parties, protection of the Everglades is of considerable national importance. The Court's findings regarding the past actions of all Defendants, including the EPA, reveal how this litigation has continually persisted over the course of years. The Court must be able to make an intelligent inquiry regarding the EPA's position and policy matters, to be addressed by the EPA Administrator.

Well, the EPA filed a notice of appeal referencing that order yesterday. That's what they meant when they told the Herald they were “working with the Department of Justice to respond to the judge’s order.”

Get out your red pens

So, there are press reports that a bunch of neo-red-scare-artist-types have signed a letter to President Obama asking for the release of the five Cuban spies convicted here in the SDFla a while back. The problem is I can’t find a report about this that doesn’t ultimately trace back to Granma, the official news organ of the Cuban government. So, I don’t know whether to believe that these people are comunistas or victims of a comunista smear campaign. Either way, here are their names: Miguel Bosé, Juanes, Olga Tañón, Sean Penn, Benicio del Toro, Ry Cooder, Pete Seeger, Bonnie Raitt, Oliver Stone, Martin Sheen, Susan Sarandon, Danny Glover, and Ed Asner (“Oh, Mr. Grant, how could you?”). There’s a bunch more, but I got tired.

Trials in the news

D.O.M. and Michael Pasano are in separate trials, and both are in the news. (D.O.M.’s trial violates topicality for this blog because it is not in the SDFla, but, given that D.O.M. doesn’t really take topicality seriously at all, I figure I can get away with a link.)

Pasano’s tax fraud trial is in this district, before Judge Zloch, and since I can’t readily link to the DBR, I’ll again follow D.O.M.’s lead and liberally quote from it:

Michael Pasano, a partner at Carlton Fields in Miami, on cross-examination accused [government witness] Habib Levy of trying to hide assets from the government of Venezuela. He also brought up an affair the married Levy had with a woman who worked for Cohen Assor at a perfume business in Paris.

The exchange was clearly the most colorful in a trial full of technical documentation and signature comparisons.

Okay, one more thing: a look at the docket shows that the government and Pasano had a little pre-trial skirmish in their supplemental trial briefs about the latitude the Sixth Amendment affords a criminal defendant in demonstrating bias on the part of a witness. I will leave the government’s position to your imagination. Suffice it to say that, if I had 20 students in my evidence class rather than 140, I could use trial briefs like these to have way more interesting class discussions than the textbook affords.

A sign of the times

Missouri is attaching little price tags to its pre-sentence reports so that judges realize that executing sentences is not free. Defense attorneys applaud this, and prosecutors decry it. Money quote: “‘No one can put a price tag on being a victim,’ said Scott Burns, executive director of the National District Attorneys Association.”

Oh, Scott, did they not teach torts at your law school? It turns out that one of the main reasons we have law, Scott, is to put a dollar value on the harm visited upon victims of intentional and accidental wrongs. True, money is never going to bring back the dead, but it’s what we do so that civilization doesn’t crumble in a chaotic cycle of retribution and vigilanteism. It’s been going on for hundreds of years, and it works pretty well.

There’s also a lot of good reasons why we have judges—and not victims—craft sentences. One of those is that judges are supposed to act dispassionately and create a sentence that will maximize the public good—not only vindicate the victim. Judges can do that better if they are aware of the impact their choices have on the public fisc. Plus, if this were implemented at the federal level, it would give probation officers something to put into a pre-sentence investigation report that doesn’t entail having them make legal arguments.

I hope this goes to trial

Sometimes it’s hard to tell the cops from the robbers. That’s more or less what defense attorney Robert Pelier told the press about his client, Hialeah Gardens Police Detective Lawrence Perez. The federal government, for its part, alleges that Detective Perez conspired with one “Negro” and one “Chuchi” to rob a marijuana stash house. The news accounts don’t mention the aliases of Detective Perez’s alleged co-conspirators, but I thought you should know. Negro is supposedly a drug dealer and wanted Detective Perez’s help to rob a competitor. You would never know all this from the indictment, which sticks to the tried-and-true charges of attempting to possess with intent to distribute and conspiring to do so. Thankfully, the U.S. Attorney’s Office’s press releases fill the lacuna of narrative detail. The government and Detective Perez stipulated to a $50,000 corporate surety bond before Magistrate Judge McAliley. Federal Public Defender Kathleen Williams’ office was appointed to represent Negro. There is no record of Chuchi having had his initial appearance. Judge Jordan has the case.

How is this not a bigger deal?

So, I started doing some reading to figure out what’s going on in the SDFla so that I can guest-host while D.O.M. rededicates himself to the practice of law. The news is good and bad. The good news is that the feds caught two people who really needed to be caught and who are guilty of the sort of crime that cries out for federal retribution. The bad news is that the factual proffer from Friday’s plea colloquy before Judge Marra makes me think that there may well be a deep circle in hell set aside for these defendants. Alfonso Baldonado, Jr., and Sophia Manuel admitted to extorting money from Filipino workers and luring them to Boca with false promises of lucrative employment at places like the Ritz. These victims went into substantial debt to travel here only to become an exploited cheap labor pool for the defendants’ staffing company. The two convicts confiscated the workers’ passports and terrorized them with threats of jail and deportation. Thirty workers slept side-by-side “on the kitchen, garage, and dining room floors.” They were fed “chicken feet, necks, innards, and rotten vegetables.” The litany of horribles goes on and on. Sentencing is set for December 10.

What I don’t understand is how this slavery case gets all of four short paragraphs in the newspapers. Maybe part of the reason is that Willy Ferrer put out a very professional and measured quote—“They came here seeking a better life, but found their dream of freedom transformed into a real-life nightmare of servitude and fear.” If I were U.S. Attorney, I would have said something like, “These defendants deserve to be tortured gruesomely and slowly, and I am frustrated that all we can do is put them in the same prisons where we put drug dealers.” Which alone is enough to explain why I’m not U.S. Attorney.

“At this age, I’m not even buying green bananas.”

Gotta love that quote from 103-year old district judge Wesley E. Brown, the oldest federal judge in the country (from the NYT):

Judge Wesley E. Brown’s mere presence in his courtroom is seen as something of a daily miracle. His diminished frame is nearly lost behind the bench. A tube under his nose feeds him oxygen during hearings. And he warns lawyers preparing for lengthy court battles that he may not live to see the cases to completion, adding the old saying, “At this age, I’m not even buying green bananas.”
At 103, Judge Brown, of the United States District Court here, is old enough to have been unusually old when he enlisted during World War II. He is old enough to have witnessed a former law clerk’s appointment to serve beside him as a district judge — and, almost two decades later, the former clerk’s move to senior status. Judge Brown is so old, in fact, that in less than a year, should he survive, he will become the oldest practicing federal judge in the history of the United States.
Upon learning of the remarkable longevity of the man who was likely to sentence him to prison, Randy Hicks, like many defendants, became nervous. He worried whether Judge Brown was of sound enough mind to understand the legal issues of a complex wire fraud case and healthy enough to make it through what turned out to be two years of hearings. “And then,” he said, “I realized that people were probably thinking the same thing 20 years ago.”
“He might be up there another 20 years,” added Mr. Hicks, 40, who recently completed a 30-month sentence and calls himself an admirer of Judge Brown. “And I hope he is.”
The Constitution grants federal judges an almost-unparalleled option to keep working “during good behavior,” which, in practice, has meant as long as they want. But since that language was written, average life expectancy has more than doubled, to almost 80, and the number of people who live beyond 100 is rapidly growing. (Of the 10 oldest practicing federal judges on record, all but one served in the last 15 years.)

Whacked

Judge Zloch sentenced a former Guatemalan soldier, Gilberto Jordan, to the maximum 10 years today lying on citizenship forms about his military service and role in the killings. It was a hefty upward variance. From Curt Anderson's report:

Jordan could have received just six months behind bars under sentencing guidelines. But prosecutors asked U.S. District Judge William Zloch to impose the maximum possible, a 10-year sentence.

They said Jordan admitted to U.S. Immigration and Customs Enforcement agents that he participated in the December 1982 massacre in the Guatemalan village of Dos Erres, including personally throwing an infant down a well.

Investigators say at least 162 people died, many hit with sledgehammers or shot.

"Mr. Jordan admitted to killing a baby. He then participated in the killings of countless other men, women and children," said Hillary Davidson, a U.S. Justice Department senior trial attorney. "He never should have been allowed to live here peacefully for many years."

Zloch was just as harsh, saying Jordan tried to hide "his background as a mass murderer." Referring to the 10-year sentence, the judge said: "Anything less would be totally inadequate as just punishment for this crime and its accompanying heinous acts."

Quick hits

1. I love this story from BLT -- senators are conducting the impeachment trial of U.S. District Judge G. Thomas Porteous Jr. and the schedule they are trying to keep to is about 8am to 7:30 pm. They need at least 7 senators to hear evidence. Problem is that they are having a tough time keeping 7 senators around for such a long day:

But senators, who aren’t used to staying in one place during the day, have had trouble keeping to the plan.

Today, for example, the 12-member committee that’s conducting the trial recessed at 11 a.m., so that its members could cast votes on the Senate floor. Sen. Claire McCaskill (D-Mo.), the committee’s chairwoman, asked her colleagues to return at 11:40 a.m. to hear more testimony before lunch. But only a few of them did, and seven members must be present before the committee can hear testimony.

“It doesn’t appear we’re going to get seven,” McCaskill said shortly after noon. “We have to have seven members before we can proceed.”

2. Also gotta love the 9th -- they don't put up with the Miranda two-step. Or illegally seizing ballplayers' drug-test records.

3. You all know that I really think that we should have cameras in federal court. But who is going to watch civil trials? Zzzzzzzzzzz.

4. Justices Ginsburg and Kagan know how to parttyyyyyyyyyyyyy.

Tuesday

What's with this rain every morning during rush hour traffic? US1 is really fun in the rain.

The Northern District is hearing the health care lawsuits:

Florida takes center stage this week in the fight over the federal health care law that consumed Congress for the better part of a year, and along with it, so will a Pensacola judge who is no stranger to hot button issues.
U.S. District Judge Roger Vinson, a Reagan nominee to the bench who presided over two high profile abortion clinic violence cases in the 1980s and 1990s, will hear oral arguments on the U.S. Department of Justice's motion to dismiss the lawsuit filed against the health care law by Florida and 18 other states on Tuesday.
The plaintiffs, the states, argue that the health care law illegally requires all citizens and legal residents to have health care coverage or pay a tax penalty, which they say is a violation the U.S. Constitution's Commerce Clause. The plaintiffs also say the law runs afoul of the states' rights guarantee in the 10th Amendment of the U.S. Constitution.
Also joining the suit: the National Federation of Independent Business and Florida residents Mary Brown and Kaj Ahlburg.
The defendant, the U.S. Justice Department, counters that overturning the health care law would unduly expand judicial review of Congress and other government branches. More specially, the DOJ argues that Congress has the power to determine how federal money appropriated for Medicaid may be spent and can give states an option of setting up their own health exchanges or having the federal government do so.

Vinson is an interesting judge:

Vinson, who was nominated to the federal bench in 1983 by President Ronald Reagan, has indicated he knows the legal world will be waiting for his verdict, but that it will almost certainly be immediately appealed no matter which way he comes down. The case is widely expected to end up at the U.S. Supreme Court, which means a final legal decision could take years.
Other than the timing and allowing the arguments on the merits of the case to be heard, Vinson has not said much about the nonjury proceeding. But Ben Gordon, a Fort Walton Beach lawyer who clerked for him from 2000-02, said Vinson will likely keep the lawyers from both sides on their toes.
``He will be a very intelligent judge who does a lot of his own work,'' Gordon said, which made clerking for Vinson ``interesting because he wouldn't just rely on what I and other clerks told him.''
``He'll educate himself and have read all the key cases,'' Gordon said. ``I anticipate he'll ask probing questions on both sides. It'll be interesting to watch. I believe he will have some questions the lawyers might not anticipate. He'll be that engaged in this.''
Vinson, 70, is no stranger to cases involving issues at the center of national debates. In 1985, Vinson sentenced two men, Matt Goldsby and James Simmons, to 10 years in prison for their role in bombing an abortion clinic, though he made them eligible for early parole and gave Goldsby's fiancée and Simmons' wife, who were convicted of conspiracy, to five years probation. Nobody died in the bombing.
Vinson also presided over the federal trial of Paul Hill, who was convicted and later executed for the 1994 murders of a Pensacola abortion provider and a volunteer escort at an abortion clinic. Hill was sentenced to death in state court, but Vinson sentenced him to two additional life terms for violating the federal clinic access law. Hill was executed in 2003.

In other news, confessions don't work.

Supreme Court Justices aren't on the JV team -- they're varsity.

SFL beat me in week one Fantasy. It's a long season....

Football Sunday

Let's go Fins.

Some weekend news:

Interestingly, Justice Kagan has recused in 21 out of the 40 cases in which the Court has granted cert. Wow, that seems like a huge number to me.

Another huge number -- almost 2000 Justice employees owe more than $14 million in 2009 taxes. Here's the WaPo article.

Jonathan Goodman investiture today at 2pm (UPDATED)

Congrats again to Magistrate Judge Goodman. See you all there.

Update -- it was a great ceremony.

Judge McAliley did the invocation (which was beautiful); Chief Judge Moreno then opened (lots of good jokes and stories -- including that Judge Marcus forgot his robes and had to wear Judge Moreno's Notre Dame robes); Frank Agnones presented the Bible; James Miller, Jeffrey Mandler, Stanley Wakshlag, and William Xanttopoulos spoke. Then Judge Goodman gave a response -- and he mentioned the blog. Very cool. Thanks for the mention Judge Goodman.

Short week

Labor Day and Rosh Hashanah in one week makes for slow news.

South Florida Lawyers has more on the 11th Circuit "boy" case. The NY Times has gotten interested in the story:

Last month, for the third time and in the face of a 2006 rebuke from the United States Supreme Court, the federal appeals court in Atlanta said there were no racial overtones when a white supervisor called an adult black man “boy.”
“The usages were conversational,” the majority explained, repeating what it had told the trial court after the Supreme Court ruled, and “nonracial in context.” Even if “somehow construed as racial,” the unsigned 2-to-1 decision went on, “the comments were ambiguous stray remarks” that were not proof of employment discrimination.
Two Alabama juries had seen things differently.
They had heard testimony from another black Tyson worker, Anthony Ash, who recalled sitting in the cafeteria at lunchtime when the plant’s manager said, “Boy, you better get going.” Mr. Ash said the manager’s tone was “mean and derogatory.”
Mr. Ash’s wife was there. “He’s not a boy,” Pam Ash shot back, according to her husband. “He’s a man.”
Ms. Ash testified that the manager, Tom Hatley, “just looked at me with a smirk on his face like it was funny.”
Mr. Ash explained to the jury why the remark stung.
“You know,” he said, “being in the South, and everybody know being in the South, a white man says ‘boy’ to a black man, that’s an offensive word.”

I wonder how the 11th Circuit will deal with this case when the jury awards a big number to the wrongfully arrested:

An Orlando mother was arrested after disembarking from a cruise ship, mistaken for a suspected prostitute wanted in Central Florida.
Thirty-one-year-old Paola Londono spent more than 36 hours in a South Florida jail before her attorney could persuade a judge to let her out. She had been mistaken for a woman with the same name, but who was seven years younger, five inches taller and looked completely different.

Rumpole and I finally agreed to terms on our NFL bet. We will each take one team against the spread. This week I took TB -3. Wish me luck.

Tuesday morning notes

Here's some fun to get your week started:



In other news:

1. SFL covers political law clerks.

2. Curt Anderson has this interesting piece on the lawsuit to recover for pre-WWII German bonds

3. The blog draft was yesterday. Here's your winning squad:

Phillip Rivers
Reggie Wayne
Miles Austin
Michael Crabtree
Ray Rice
Knowshon Moreno
Jason Witten
Justin Forsett
Donald Driver
Michael Bush
Kevin Kolb
Willis McGahee
Louis Murphy
Joshua Cribbs
Roy Williams
Fred Taylor
James Jones
James Davis
New Orleans Defense
Mason Crosby

Random Friday thoughts

UPDATE -- we still need one more team for the Blog Fantasy Football league. Email Miguel De La O at delao13@gmail.com if you want in.

1. Bill Barzee has filed a complaint against David Rivera. From the Herald article: "David and his campaign have to learn that you have to play by the rules,'' Barzee said of his complaint. ``All I'm concerned about is that this will stop.'' The FEC confirmed it received Barzee's complaint on Aug. 26. The commission does not comment on a complaint's status, which is confidential.


2. "Still a virgin" signs are cropping up all over Florida.


3. Here's a picture from my DC trip yesterday. That's the Main Justice building, which is harder to get into than Ft. Knox.


4. I didn't know what a "cramming scheme" was. But it gets you a lot of time in jail. From the Sun-Sentinel: Willoughby Farr went into the Palm Beach County Jail in October 2003 and became a multimillionaire behind bars.
It's doubtful he will be able to perform the same remarkable feat during his next stint in the lockup — a 21-year federal prison sentence handed down on Thursday for bilking telephone customers across the country out of $34 million.
Federal prosecutors and regulators say Farr ran his "cramming" scheme — billing telephone customers for nonexistent long-distance charges — from the county jail by using a pay phone to direct a few employees on the outside.
"When the unscrupulous and the dishonest line their pockets with consumers' hard-earned money, we will hold them accountable," Tony West, assistant attorney general for the civil division of the Department of Justice, said in a statement. "As this sentence demonstrates, the Justice Department has put a priority on protecting the public from fraudulent schemes. This case should also remind consumers to carefully review their telephone bills for unauthorized charges."

MIA--->DCA

Just for the day. Be back soon my peeps.

Judge Carnes on the Armed Career Criminal Act

Like him or not; agree with him or not; Judge Carnes is a gifted writer. From United States v. Rainer:

• This is yet another felon-in-possession case involving yet another variation on the issue of whether a previous conviction qualifies as a “violent felony” for purposes of the enhanced penalties provided in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1).
• Rainer’s non-frivolous contention is that the district court erred when it decided at sentencing that he qualified for an enhanced sentence under the ACCA, 18 U.S.C. § 924(e)(1), which applies to a defendant convicted under § 922(g) who has three previous convictions for violent felonies or serious drug offenses.
• The question is whether “building of Richie’s Shoe Store, Inc.”and “building of, to wit: Whiddon’s Gulf Service Station” in the indictments show that Rainer’s convictions were for burglary of a shoe store and service station, places that fall squarely within the scope of generic burglary.
• But a vehicle could not be used to carry on the business of a gasoline service station, which is mainly to dispense gasoline for sale. While a shoe store theoretically could be operated out of a vehicle, that possibility is too farfetched to undermine our conviction that Rainer’s two previous convictions were for burglary of a building in the generic burglary sense of the word.
• The ACCA is part of the real world, and courts should not refuse to apply it because of divorced-from-reality, law-school-professor-type hypotheticals that bear no resemblance to what actually goes on.

USAO adds to management team

I just received this announcement:

Eduardo I. Sanchez returned to the United States Attorney's Office on August 16, 2010, as Counselor to the U.S. Attorney in the Executive Division in Miami. Ms. Bowen, a veteran of the Office, will serve as the District Training Director. As Counselor to the U.S. Attorney, Mr. Sanchez will provide advice, analysis, and guidance on legal and policy issues, strategic planning, training, and other matters of district-wide significance.*** Assistant U.S. Attorney Dawn Bowen will serve as the District’s Training Director, effective September 1, 2010.

Ed and Dawn are both really good people; Willy is putting together a smart, respected team. Now we have to see if things are going to change...

Multiple Choice

Here are your choices this morning --

A. Read more about the Scott Rothstein case here.

B. Read more about the federal judicial openings here.

or

C. Watch the hilarious Jimmy Fallon intro to the Emmy's:

Wet Monday Mornings stink

How annoying -- US1 basically turns into a parking lot if there is the slightest hint of rain. Combine that with Monday morning. Ugh.

Anyway, we're almost to football season, and I'm thinking of betting against all of Rumpole's picks this year. I don't know what to make of this Dolphins. I'm trying to stay optimistic...

Miguel DeLa O is running the blog fantasy football league this year. If you want to play, email me or him. Alex Gomez (at Scott Srebnick's firm) beat me in the finals last year. I will get revenge this year.

Please let me know what's going on in the District -- it's pretty slow news wise. I've been wondering when the Federal JNC is going to announce that they are taking applications for the two open judicial slots... Will it be the same group of applicants or will the list grow because there are two openings? It'll be interesting.

And for the record, I believe you Paris.

Okay, well, that's your stream of consciousness this morning....

Fire at Tre downtown

Boy

I was about to write up this (unpublished?!) opinion by the 11th, but SFL beat me to it, as did the DBR:

During 14 years of litigation over his claims that he was denied a promotion because he is black, John Hithon has twice been awarded jury verdicts of more than $1 million. His case prompted the U.S. Supreme Court to say using the word “boy” to describe an African-American man could by itself be evidence of race discrimination. But Hithon and his lawyer have not persuaded the federal appeals court in Atlanta. On its fourth stop in the 11th U.S. Circuit Court of Appeals, the case generated a 2-1 unsigned opinion sending the case back to trial court for judgment in favor of Tyson Foods. The split panel reaffirmed an 11th Circuit ruling concluding evidence of the use of the term “boy” — allegedly by a white poultry plant manager to address Hithon and another plaintiff — wasn’t enough to support a jury finding of racial discrimination. Hithon’s lawyer, Alicia K. Haynes of Birmingham, Alabama, said Circuit Judges Edward E. Carnes and William H. Pryor Jr., who ruled Aug. 17 over the dissent of a visiting senior judge, missed something in their review of the paper record of the case. “The concern is that any time you present that type of evidence, it is the jury who is listening to how those words are being said,” Haynes said. “They’re listening to the tone that was used in saying those words. They’re listening to the inflection. They are able to judge who the speaker was and what effect those words had on the person that it was being said to, and the appellate court is missing all of that. They are reading a cold, written record.”

Rothstein takes down Mafia player

Curt Anderon and Jay Weaver cover the story of the 4 year deal for Roberto Settineri. Jeff Weiner, Settineri's lawyer, had this to say:

"Our initial intention was to go to trial,'' Weiner said in an interview. ``My client had no criminal record. He was actively targeted and set up by Rothstein.
``But my client made a terrible mistake in judgment by agreeing to help Rothstein,'' he said, pointing out that the FBI's sting generated tape recordings and text messages incriminating his client. ``The bottom line, when the evidence came in . . . it would have been a foolish choice to go to trial at that point.
"[Settineri] took the bait, hook, line and sinker, to help someone he thought was a friend,'' the lawyer added. ``He was one of Rothstein's victims.''

Election night

Rumpole and JAABlog are covering your Dade and Broward elections. Even though I think judicial elections are ridiculous, it's still fun to watch the election results.

While you wait for the results, check out the new trailer for Square Grouper by the boys at Rakontur (who made The U and Cocaine Cowboys):



Finally, Efraim Diveroli is back behind bars, this time ATF nabbed him in Central Fla. He's still awaiting sentencing for the Miami conviction on the illegal Chinese ammo. The Complaint is quite a read.

First day of school

And there goes another summer...

This one seemed to go by really fast, no?

School shouldn't start in August. After Labor Day. That's the way it should be.

Enough about school. What's going on in the SDFLA?

1. Two Magistrates are up for reappointment -- Patrick White and Frank Lynch. Send in your comments if you want to be heard.

2. There isn't much time left to comment on the proposed 11th Circuit Rules. Rick Bascuas has some commentary here.

3. And of course, the King building needs drapes. You like the ones I picked?

4. More Rothstein indictments coming soon? (via DBR)

Should federal judges be writing books?

That's the question this Boston Globe article raises in light of Judge Nancy Gertner's new book, In Defense of Women: Memoirs of an Unrepentant Advocate --

The 64-year-old Boston jurist said the book being published by Beacon Press focuses on her two decades as a prominent criminal defense and civil rights lawyer before she joined the bench in 1994. As such, she might not have to worry about the federal Judicial Code of Conduct, which prohibits judges from making public statements about cases that could come before them.
But by devoting a memoir to her years as an “unrepentant advocate’’ for notorious criminal defendants and women who brought sex-discrimination suits, Gertner will almost certainly give ammunition to those who say she tilts toward those litigants instead of prosecutors and corporations.
Gertner, whose sentences of criminal defendants have drawn criticism from federal prosecutors and who was accused of bias by lawyers defending the Boston police in a civil rights suit, said she is not worried.
“The unrepentant advocate stuff ends at my swearing-in,’’ she said, referring to the day in April 1994 when she officially became a judge.
She also emphatically denied that she is biased on the bench in favor of criminal defendants or people fighting corporations or police departments. Just last week, she noted, she dismissed a lawsuit by several customers of Bank of America, N.A., who al leged the bank engaged in deceptive business practices.
“I do believe my record speaks for itself,’’ she said in a telephone interview last week, adding that news outlets tend to cherry-pick rulings that reinforce the stereotype of her as a liberal.

**

Several lawyers who insisted on anonymity because they might have to appear before Gertner said a judge should not be an “unrepentant advocate.’’
In contrast, Harvey Silverglate, a criminal defense and civil rights lawyer and former law partner of Gertner’s, dismissed the notion that judges should be silent about their personal and professional backgrounds or even their views on jurisprudence. Judges, he said, had lives before they entered what he called the “monastery,’’ and it is foolish to pretend otherwise.
“Judges, like other human beings, have predispositions,’’ said Silverglate. “Some are called liberals. Some are called conservatives. To hide these facts doesn’t make them untrue. And so by encouraging judges to talk more, when you have a case before a judge, you have a better idea of what that judge might be interested in and what you might have to say in order to overcome that judge’s predispositions.’’
Asked whether the book will expose his friend to criticism, he said, “Of course. If your question is, ‘Will it expose her to legitimate criticism?’ the answer is no.’’
To be sure, Gertner is not the first sitting federal judge to write a book or even a memoir.
Supreme Court Justice Sandra Day O’Connor wrote a critically acclaimed 2002 memoir with her brother called “Lazy B: Growing Up on a Cattle Ranch in the American Southwest,’’ that described her childhood in Arizona and New Mexico.
Richard A. Posner, an influential judge on the US Court of Appeals for the Seventh Circuit in Chicago and appointee of President Reagan, has written about 40 books on jurisprudence and legal philosophy, some of which plumbed current events. He also blogs and writes magazine articles.

Thursday news and notes

1. Rocket indicted.

2. Big opinion out of the 11th today on jury instructions -- a reversal for not providing the good faith instruction as requested by the defense. It's 67 pages and I haven't digested it yet, but here's the money quote:"The requested instruction properly placed the determination with the jury as to whether they acted in good faith in seeking advice, fully and completely reporting to their accountant, and acting strictly in accordance with the advice."

3. Joel DeFabio says his pimp (of Haitian descent) is being selectively prosecuted when compared to Jeffrey Epstein:

Johnny Saintil, a Fort Lauderdale native of Haitian descent, sits in jail awaiting a federal trial Monday on charges of recruiting two girls for an Internet-based prostitution ring in Broward County. The 28-year-old faces up to life in prison if convicted.
Jeffrey Epstein, a Palm Beach billionaire, ended his one-year probation last month after serving 13 months in jail on two state convictions for soliciting a prostitute who was a minor. He also had to register as a sex offender.
Epstein, 57, came within a whisker of being indicted by the U.S. attorney's office in Miami on essentially the same charges as Saintil -- but involving a much higher number of victims.
Now Saintil's defense attorney, Joel DeFabio, is urging a Fort Lauderdale federal judge to throw out the indictment against his client, arguing ``selective prosecution'' by prosecutors while citing the race and class differences between Saintil, a poor black man, and Epstein, a rich white man.
***
DeFabio points out that Epstein didn't just pay for sex with high school girls -- he also schemed with aides to recruit them for his personal pleasure.
``Epstein was both a pimp and a `john' (an individual who pays the prostitutes for sex),'' DeFabio said in court papers. ``He recruited and paid individuals to go out into the public and find minor girls to have sex with him for money.''
Two other defendants charged with Saintil -- Michael DeFrand and Stanley Wilson -- have joined his selective prosecution petition filed with U.S. District Judge William Zloch.
The U.S. attorney's office countered in court papers that DeFabio's claims are ``unfounded.'' A spokesman declined to comment.

Slow news day in the SDFLA...

...so we'll have to turn to Alabama, via CNN:

"Former Alabama prosecutor arrested on enticement, child porn charges"

Here's the quote from the former prosecutor's defense attorney:

"The facts of the case will turn out to be interesting and (we will) address those when we go to trial."

Interesting? Perhaps not the best choice of words... From the article:

A former Alabama assistant district attorney who specialized in prosecuting sex crimes against minors is accused of enticing what he thought was a teenage girl online for sexual purposes, authorities said.
Steven Giardini was indicted on charges of enticement and solicitation crimes over the computer with the intent to produce child pornography, the Alabama Attorney General's Office said in a statement. Giardini, a former prosecutor in Mobile County, was arrested Tuesday.
The charges stem from the suspect's alleged communication with what he thought was a 15-year-girl, Alabama Attorney General Troy King said in a statement Tuesday. But instead he was communicating with an agent from the FBI's Internet Crimes Against Children division.

More on Judge Huck

Last Monday, I posted about Judge Paul Huck's decision to take senior status. Today, the DBR has more on the story:

District Judge Paul Huck in Miami will take senior status at the end of the month, opening a third seat on the federal bench in South Florida. Huck is the second South Florida judge to announce he’ll take senior status in the past month. U.S. District Judge Alan S. Gold will be going senior in January. Public Defender Kathleen Williams has been nominated to replace U.S. District Judge Daniel T.K. Hurley, but judicial confirmations are on a slow track in the U.S. Senate.

***

Huck, 70, was appointed to the bench a decade ago by thenPresident Bill Clinton, following a 36-year career as a lawyer. Huck said he is going senior because he is able to do so under the court’s “rule of 80.” Under the rule, when a judge’s age, added to his or her years on the bench, totals 80, the judge has the option of staying put, going senior or retiring. The judge receives the same pay for all options. Huck, who is known as one of the hardest-working judges on the bench with a penchant for moving cases to resolution, still plans on working full-time. But he hopes to help out busy districts in other states and to do more teaching at the law schools of the University of Miami and University of Florida — his alma mater — and in high school civics classes. Huck has been hosting high school students in his courtroom to teach them about civics and turned his hallway on the 13th floor of the Miami courthouse into a civics training area with enlarged copies of the Declaration of Independence and the Bill of Rights. “I want to try some cases in some other places,” he said. “Some of our districts are overloaded with long trials and need help, such as in Houston. Plus, I’m getting old.”

***

Huck did say he wants to “allow the position to open up and bring another person on.” Huck also said his decision does not signify any frustrations with the job, saying: “This is the best job in the world. It brings me a great deal of satisfaction. I wrestled with this for awhile.”

In addition to all the comments about Judge Huck being hard-working, the guy is also a mensch. He tries to go to every bar function and to all the going-away parties for PDs and AUSAs. You can tell that he loves the law and being around lawyers.

"2 Hialeah businessmen busted for bilking Medicare for penis pumps"

That headline, from Jay Weaver's article, really says it all, doesn't it? More:

It's one thing that a pair of Hialeah companies were fraudulently billing Medicare for penis pumps at $395 a pop to supposedly help male patients combat impotence.
It's quite another that Charlie RX and Happy Trips also billed the federal healthcare program for vacuum erection systems to aid female patients battle erectile dysfunction, authorities say.
And what's even more remarkable: Medicare paid the two medical equipment providers $28,600 after they submitted a total of $63,000 in false claims for the erection pumps, according to charges unsealed Monday in federal court in Miami.

Happy Trips indeed.

I'm back

Thanks to my guest bloggers -- SFL, Rumpole, and Rick B.

Now back to work.... I hope everyone enjoys the last good week of traffic because school starts in one week and then US1 and I-95 turn back into parking lots.

A couple of quick hits to start your week:

1. Blago jury still out.

2. Justice Sotomayor jokingly compares herself to J.Lo.

3. Blogger convicted after three tries for threatening comments about federal judges.

4. Justice Ginsburg wants the good ol' days back in the Senate.

5. Justice Scalia OK after tripping.

6. Neal Katyal likely to become 10th Justice.

7. A must read dissent by Judge Kozinski on GPS tracking and the 4th Amendment. The intro:

Having previously decimated the protections the Fourth
Amendment accords to the home itself, United States v.
Lemus, 596 F.3d 512 (9th Cir. 2010) (Kozinski, C.J., dissenting
from the denial of rehearing en banc); United States v.
Black, 482 F.3d 1044 (9th Cir. 2007) (Kozinski, J., dissenting
from the denial of rehearing en banc), our court now proceeds
to dismantle the zone of privacy we enjoy in the home’s curtilage
and in public. The needs of law enforcement, to which
my colleagues seem inclined to refuse nothing, are quickly
making personal privacy a distant memory. 1984 may have
come a bit later than predicted, but it’s here at last.

And the conclusion:

I don’t think that most people in the United States would
agree with the panel that someone who leaves his car parked
in his driveway outside the door of his home invites people
to crawl under it and attach a device that will track the vehicle’s
every movement and transmit that information to total
strangers. There is something creepy and un-American about
such clandestine and underhanded behavior. To those of us
who have lived under a totalitarian regime, there is an eerie
feeling of déjà vu. This case, if any, deserves the comprehensive,
mature and diverse consideration that an en banc panel
can provide. We are taking a giant leap into the unknown, and
the consequences for ourselves and our children may be dire
and irreversible. Some day, soon, we may wake up and find
we’re living in Oceania.