On October 3, 2016, only six weeks prior to the scheduled trial date, the government executed a post-indictment search warrant at a location that the prosecution team knew was being used exclusively by the defense team as a satellite law office or litigation “war room” for trial preparation. Even after defense counsel cautioned the prosecutor that she was jeopardizing the integrity of the prosecution by invading the defense camp, she nevertheless directed government agents to proceed onward. Refusing to provide the defendants or their attorneys a copy of the warrant, agents entered the space, seized and boxed up documents and electronic data that the defense team had itself generated and was reviewing and using to prepare for trial. In effect, the post-indictment search stripped the defense naked and paralyzed a significant component of the defense.I mean, this is getting ridiculous already. Let's see how this plays out.
Perhaps more troubling, government agents became exposed to substantial defense work product, including records that revealed defense strategies. Government agents observed which documents were deemed relevant by defense counsel and consultants. Government agents observed how the defense was preparing for trial. The government’s decision to utilize a search warrant to circumvent discovery and trial procedures contemplated by the rules of criminal procedure – see, e.g., Rules 16 and 17, Fed. R. Crim. P. – resulted in a quagmire of its own creation.
This unprecedented post-indictment invasion of the defense camp, which has disrupted trial preparation and given the government access to insider information about defense strategy, warrants dismissal of the Superseding Indictment. Alternatively, the Court should, at a minimum, a) suppress and order the return of all records seized; b) disqualify the prosecution team from further participation in this case; c) prohibit the government’s review of any materials until a procedure for determining privilege is established; and d) order other and further relief that may be appropriate after an evidentiary hearing.
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Monday, October 24, 2016
More intrusions into the defense camp
This time, the case is before Judge Scola. But it's another Howard Srebnick case involving the DOJ Fraud section from DC. (You remember the last time this issue came up with the copy service). This time the government allegedly searched a defense team's war room. Srebnick's 32-page motion is here. The introduction summarizes truly outrageous conduct:
Thursday, October 20, 2016
Bigly delay results in dismissal
Kudos to Judge Scola for dismissing this case (order here) based on speedy trial grounds and to defense lawyer Sam Rabin for raising the issue. We need more judges who are willing to check the government's overreach. The Herald covers it here:
The judge noted that prosecutors filed the indictment more than six years after Tamas Zafir's role in the alleged crime of washing drug proceeds ended in 2009, then let another year pass before he could surrender on the charges in July.
This week, U.S. District Judge Robert Scola said Zafir's constitutional right to a speedy trial was violated because prosecutors delayed his prosecution while they sought the extradition of the main defendant, Nidal Ahmed Waked Hatum. He was arrested in Bogota, Colombia, in May but has yet to be extradited to Miami.
The U.S. attorney’s office wanted to prosecute Zafir and Waked together, leading to the long delay of Zafir’s trial, according to court records.
Waked is a wealthy and well-connected businessman based in Panama who owned a textile company in Miami-Dade and employed Zafir as its manager. The company, Star Textile Manufacturing, which shut down in 2009, had an account with Ocean Bank in Miami.
...
Zafir’s defense attorney, Sam Rabin, showed the judge that the government had ample opportunity to arrest Waked because he made 19 international flights from Panama to Canada, Panama to China, and Panama to Colombia, where he was finally arrested earlier this year. As a result of the delay in Waked’s arrest, Rabin argued his client was deprived of his right to a speedy trial.
The judge agreed, saying in his order: “The court finds that, based on the record, the reasons for the delay in arresting Zafir — a delay inextricably linked to the delay in arresting Waked — weigh heavily against the government.”
Scola also noted so many years had passed since Zafir shut down the Miami business, Star Textile, that was allegedly involved in laundering drug money from Panama.
“Zafir is now sixty-eight years old and without business records to rely upon, [he] would be hard pressed to remember details from more than seven years ago to present a defense in the case,” the judge wrote.
Read more here: http://www.miamiherald.com/news/business/article109276942.html#storylink=cpy
Wednesday, October 19, 2016
Judge Martinez reimposes 30 year sentence on cruise ship worker
The guidelines called for 14-17 years, and the 11th reversed because there wasn't enough explanation regarding the 30-year sentence for the following facts. Via Paula McMahon:
A former cruise ship worker who sexually assaulted and tried to kill a passenger told a judge Tuesday that he is having a tough time dealing with the violence he sees every day in prison.
Ketut Pujayasa, 31, has already served 2 ½ years in federal prison for what prosecutors said was an extraordinarily cruel and violent attack on the woman during a cruise that left Port Everglades in February 2014.
Pujayasa admitted he used his master key to sneak into the woman's room, hid on her balcony until she fell asleep and then unleashed an astonishingly brutal assault on her.
The Valentine's Day attack went on for 30 to 60 minutes and included choking her with electrical cords, hitting her with objects from the cabin and trying to throw her into the ocean from the balcony of the moving ship, according to court records.This time, the judge imposed the same sentence with quite a bit more explanation:
He said the extra punishment was appropriate because Pujayasa's actions were so extreme and the effect on the victim was so severe, leaving her with post-traumatic stress disorder, obsessive-compulsive disorder, depression and physical and cognitive difficulties caused by her injuries.
Pujayasa will be deported when he is released and would be barred from returning to the U.S.
Pujayasa told investigators he wanted to punish the woman because he believed she had insulted his mother when he tried to deliver breakfast to her room on the Holland-America Line cruise.
He claimed the woman said "son of a bitch" after he knocked three times. The Indonesian native, who worked on cruises for several years, said he thought she was insulting his mother.
He fumed about it for hours and looked for her on the deck of the weeklong nudist cruise, planning to punch her in the face. When he spotted her, he said there were too many other passengers on deck so he changed his plan.
Seventeen hours after the perceived slight, he used his master key to let himself into her room, hid on her balcony and fell asleep waiting for her to return. The woman later wrote that she woke up to a "human shadow trying to kill me with his bare hands."
Prosecutors said the woman only survived the lengthy, brutal attack — which they described as "torture" — because she had unusual physical strength from her training as an aerial acrobat and gym teacher. The woman, who lives in the U.S., filed a civil suit and reached a confidential settlement with the cruise line last year.
Pujayasa, who had never been in any kind of trouble before, apologized again in court, though the victim did not attend his second sentencing.
"I am deeply sorry for all my actions," Pujayasa told the judge, speaking through a court interpreter.
He said he had never hurt anybody before but was incensed by what he considered an insult to his mother, describing her as the person he loves most in the world.
"[Pujayasa] still does not understand that words do not justify these kinds of actions," the judge said.
If the victim said what Pujayasa claimed she said, the judge explained to Pujayasa that it was not intended to besmirch his mother: "She stated a fairly common expression when you stub your toe or get awakened in the night."
Monday, October 17, 2016
Florida death penalty found unconstitutional
Judge Milton Hirsch's order is affirmed. And Judge Martinez is vindicated. The New York Times has the story:
The Florida Supreme Court ruled Friday that the death penalty cannot be imposed without the unanimous support of a jury, deepening the recent turmoil around capital punishment in a state with a long history of executions.One of Friday’s decisions, in a case that previously reached the United States Supreme Court and upended Florida’s death penalty system, said that the Eighth Amendment, which forbids cruel and unusual punishment, and Florida state law effectively mandated consensus in capital cases. The court said in a separate case that a new state law, which allowed for the death penalty when 10 of 12 jurors agreed, was unconstitutional.“Requiring unanimous jury recommendations of death before the ultimate penalty may be imposed will ensure that in the view of the jury — a veritable microcosm of the community — the defendant committed the worst of murders with the least amount of mitigation,” the Florida court said in siding with Timothy L. Hurst, a death row inmate whose appeal led lawmakers early this year to rewrite the state’s death penalty law.Referring to a 1958 United States Supreme Court opinion invoking the Eighth Amendment, the Florida court added, “This is in accord with the goal that capital sentencing laws keep pace with ‘evolving standards of decency.’”
Thursday, October 13, 2016
Manrique oral argument summary
From SCOTUSblog is here:
And here is the transcript. Paul Rashkind did a great job arguing with a skeptical bench. Requiring a defendant to file two notices of appeal seems so formalistic and silly to me. The simply solution is to have one notice that covers both the sentence and restitution. But I guess that's too easy?
And what's with Justice Breyer -- he has just gotten so crotchety lately. Yes, he has been really bad for defendants for a while now, but he used to be polite about it.
For most of Tuesday’s 53-minute oral argument in Manrique v. United States, the Supreme Court seemed caught between two very different ways of looking at the question presented — whether a notice of appeal from an initial judgment of conviction and sentence in a federal criminal case can also encompass a challenge to the district court’s subsequent restitution determination under the Mandatory Victims Restitution Act. On one hand, as Assistant Federal Defender Paul Rashkind argued on behalf of petitioner Marcelo Manrique, there is a longstanding norm that one notice of appeal suffices in criminal cases, so the court of appeals erred by holding that it could not reach Manrique’s challenge to the amount of restitution ordered in his case because he did not separately notice an appeal from that judgment. On the other hand, as Assistant to the Solicitor General Allon Kedem argued on behalf of the United States, the Federal Rules of Appellate Procedure don’t appear to cover such a situation – and it would be unprecedented to allow a notice of appeal to encompass matters that have not yet been determined. And although predicting a result based upon oral argument is always a fraught proposition, the six justices who asked questions certainly seemed to be leaning toward the government’s view by the end of the session.
And here is the transcript. Paul Rashkind did a great job arguing with a skeptical bench. Requiring a defendant to file two notices of appeal seems so formalistic and silly to me. The simply solution is to have one notice that covers both the sentence and restitution. But I guess that's too easy?
And what's with Justice Breyer -- he has just gotten so crotchety lately. Yes, he has been really bad for defendants for a while now, but he used to be polite about it.
Tuesday, October 11, 2016
Paul Rashkind goes to DC, part 2
Appellate lawyer extraordinaire Paul Rashkind (from the FPD's office in Miami) will be arguing his second Supreme Court case this morning. It's Manrique v. U.S. and SCOTUSblog has the preview here:
When defendants are convicted of federal crimes, district courts will often enter two different judgments: an initial judgment of conviction and sentence, and a subsequent, amended judgment of restitution after a hearing under the Mandatory Victims Restitution Act. In its 2010 decision in Dolan v. United States, the Supreme Court held that, so long as the initial judgment includes a deferred order of restitution, an amended, post-hearing judgment fixing the specific amount of restitution does not have to comply with the MVRA’s 90-day deadline for restitution awards, because the latter judgment was simply attaching an amount to the restitution already ordered by the former judgment. And although the court in Dolan noted the potential consequences of the interaction of such bifurcated restitution orders with appellate time limits, it left resolution of such questions “for another day.”
That day appears to have come, with the justices set to hear argument next Tuesday in Manrique v. United States. Marcelo Manrique pled guilty to one count of possession of material involving a minor engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2), and was sentenced to 72 months’ imprisonment; a life term of supervised release; and deferred restitution – recorded as $0 in the initial judgment, but determined after a hearing to be $4,500. Manrique filed a notice of appeal from the initial sentencing judgment, but not from the amended post-hearing judgment. This shortcoming, the U.S. Court of Appeals for the 11th Circuit ruled on its own motion, deprived the appeals court of jurisdiction to consider a challenge to the appropriateness of the restitution award. Manrique asked the Supreme Court to review the lower court’s decision.
Monday, October 10, 2016
Federal Courts closed, but schools are open.
So is your office open today?
Last week, Judge William Pryor came out with this doosy:
Last week, Judge William Pryor came out with this doosy:
This appeal requires us to decide two issues: whether student speech that objects to the pedagogy of officials of a public college is “school-sponsored” expression under the First Amendment and whether an invasive ultrasound constitutes a “search” under the Fourth Amendment when performed for instructional reasons instead of investigative or administrative reasons. After several employees of Valencia College encouraged students to submit voluntarily to invasive ultrasounds performed by peers as part of a training program in sonography, some students objected. The employees then allegedly retaliated against the objecting students and successfully pressured two students to undergo the procedure. The students filed a complaint against the employees, which the district court dismissed for failure to state a claim. Because the district court erroneously classified the students’ speech as school-sponsored expression and the district court erroneously ruled that the ultrasound was not a search under the Fourth Amendment, we vacate the order dismissing the complaint and remand for further proceedings.
Wednesday, October 05, 2016
Hurricane Matthew policy
The policy, enacted by Judge Moreno, tracks the public school decisions. If the county decides to close schools, then the courthouse in that district will also close.
Check out the court's website for updates at: flsd.uscourts.gov
Courts closed Thursday and Friday (except Key West).
Tuesday, October 04, 2016
Big ups to Richard Klugh
Petitions for Panel Rehearing are never granted in the 11th Circuit. I mean, unless you are the government. Then, every now and then, they are. But for the defense, winning a petition for panel rehearing is really really rare; almost impossible. You literally have a better chance of being struck by lightning (1 in 12,000 if you live to 80) than getting your panel rehearing petition granted if you are a defendant.
But Richard Klugh just put lightning in a bottle in the B-Girls case. Winning a new trial on all the counts but one was a feat in itself (the post on the original entertaining opinion is here). But then Richard moved for rehearing on the final count. And won!
Here's the panel:
But Richard Klugh just put lightning in a bottle in the B-Girls case. Winning a new trial on all the counts but one was a feat in itself (the post on the original entertaining opinion is here). But then Richard moved for rehearing on the final count. And won!
Here's the panel:
In Count 21, the government indicted Pavlenko for an email he sent to AMEX on
April 21, 2010. [DE 953 at 15]. To sustain a wire-fraud conviction, that email must have furthered a fraud scheme, i.e., tricked AMEX into parting with money it would not otherwise have let go. See Op. at 7–14. Here, the scheme allegedly worked like this: a B-girl lured a man into Pavlenko’s bar, where the man proceeded to use his AMEX card. Looking back on the encounter from the clearer light of day, the customer decided he had been defrauded and contested the charge with AMEX. On April 19, 2010, however, AMEX determined that the charge was not fraudulent and sent its customer a letter saying so. See [DE Doc. 1142 at 67, 85, 88 (citing Defense Exh. SP 50)]. On April 21, for whatever reason, Pavlenko sent AMEX an email covering up his relation with the B-girl. But by then, he had nothing left to gain: AMEX had already upheld the charge. In doing so, AMEX did not—and, of course, could not—rely on the April 21 email. [Id. at 88]. And since AMEX had already approved the charge, no reasonable juror could have concluded that Pavlenko defrauded AMEX of that money through the April 21 email, which was the sole basis for Count 21.
Monday, October 03, 2016
Federal courts are OPEN (UPDATED)
But state courts and schools are closed. I don't get it...
UPDATE -- the Supreme Court is sort of open today:
Some news if you are in the office:
1. Notorious RGB penned this op-ed in the Times. From the conclusion:
2. Paula McMahon covers the insanity of how much we pay informants in the criminal justice system:
3. P.S. We pay the informants more than death penalty lawyers (that David Markus mentioned in the article is NOT me... sigh.).
And now, your moment of zen:
UPDATE -- the Supreme Court is sort of open today:
When the U.S. Supreme Court opens its fall term on October 3, the public won't see a typical First Monday in October. The court won’t hear any arguments on its opening day, instead convening briefly for announcements and the swearing in of new bar members. The cancellation of arguments is meant to recognize the Jewish holiday Rosh Hashanah while also adhering to the 1916 law that requires the court to begin its term on the first Monday in October. That's not all: the court won't sit at all on October 12, when Yom Kippur starts. And it won’t take the bench on October 10 either. That is the federal Columbus Day holiday....It appears to have taken a 'critical mass' of two Jewish justices on the court to push the court to accommodate the need of observant Jews not to be working on major holidays. That occurred in 1994, when Stephen Breyer joined the court—a year after Ruth Bader Ginsburg.
Some news if you are in the office:
1. Notorious RGB penned this op-ed in the Times. From the conclusion:
Earlier, I spoke of great changes I have seen in women’s occupations. Yet one must acknowledge the still bleak part of the picture. Most people in poverty in the United States and the world over are women and children, women’s earnings here and abroad trail the earnings of men with comparable education and experience, our workplaces do not adequately accommodate the demands of childbearing and child rearing, and we have yet to devise effective ways to ward off sexual harassment at work and domestic violence in our homes. I am optimistic, however, that movement toward enlistment of the talent of all who compose “We, the people,” will continue.
2. Paula McMahon covers the insanity of how much we pay informants in the criminal justice system:
Snitching for the feds can be dangerous work, but it also can be pretty lucrative.
One South Florida man who has been working undercover as a confidential informant for 31 years has been paid about $1.5 million for his efforts, according to court records and testimony that shed some light on the usually shadowy world of informants.
The payments, which appear to have started during President Ronald Reagan's second term in office, average out to more than $48,000 per year.
The Drug Enforcement Administration won't say who he is or why he does what he does, but some information about him slipped out in court this week after the DEA used him in a heroin sting.
3. P.S. We pay the informants more than death penalty lawyers (that David Markus mentioned in the article is NOT me... sigh.).
And now, your moment of zen:
Thursday, September 29, 2016
#winning
Gene Stearns is at it again, this time winning the Bank Atlantic case on appeal in the 11th Circuit. The court ordered a new trial after a 6-week trial. It's a significant win (but an unpublished opinion) and one that Gene predicted from the beginning. The conclusion:
Accordingly, we reverse the district court’s grant of summary judgment with respect to the falsity finding of Levan’s Earnings Call statements and the affirmative defense of reliance-on-professional-advice. We affirm the district court’s rejection of judgment as a matter of law with respect to the accounting fraud and its pre-trial evidentiary rulings regarding the testimony of the SEC’s expert, Lynn Turner, and PwC’s 2012 look back report. Because the reversal of partial summary judgment creates genuine issues of material fact that require resolution, we decline to enter judgment in favor of Defendants.
Wednesday, September 28, 2016
Another Johnson case leads to 3 opinions
This time it's United States v. Vail-Baron. Judge Rosenbaum writes the majority. Judge Jordan concurred. And visiting judge Eugene Siler (from the 6th) dissents. Judge Rosenbaum starts off her opinion this way:
When I was growing up, my parents told me not to judge a book by its cover. The Supreme Court has expressed an analogous concern about concluding that a crime qualifies as a violent crime under the Armed Career Criminal Act (“ACCA”), based solely on the name of the crime. See Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551, 2560 (2015) (discussing whether Connecticut’s offense of “rioting at a correctional institution,” a crime that the Supreme Court characterized as “certainly sound[ing] like a violent felony,” qualifies as a violent felony under the residual clause of the ACCA).1
This case raises the question of whether the Florida crime of felony battery—a crime that, from its name, may sound like a crime of violence—actually satisfies the definition of “crime of violence” under §2L1.2 of the Sentencing Guidelines when it is committed by mere touching. Heeding the Supreme Court’s warning, we have carefully compared the elements of felony battery under Florida law to the “elements clause” of § 2L1.2’s definition of “crime of violence.” Based on our review, we now hold that felony battery under Fla. Stat. § 784.041 does not qualify as a “crime of violence” under § 2L1.2 when it is committed by mere touching. For this reason, we vacate Vail-Bailon’s sentence and remand for resentencing.
Tuesday, September 27, 2016
"A very against police judge."
That was The Donald last night during the debate when discussing stop & frisk:
We didn't get any questions on the Supreme Court though...
Instead we got quite a bit of sniffles. I would have felt bad for him had he not been attacking Hillary's health for the past 3 weeks:
OK, OK... enough of that. The highlight of the night was Dee Gordon. I could watch this over and over again:
We didn't get any questions on the Supreme Court though...
Instead we got quite a bit of sniffles. I would have felt bad for him had he not been attacking Hillary's health for the past 3 weeks:
OK, OK... enough of that. The highlight of the night was Dee Gordon. I could watch this over and over again:
Monday, September 26, 2016
Will tonight's debate feature UFOs?
What was that percentage?!?!
I like this moment when Bill defends Hillary.
Should be fun tonight.
Friday, September 23, 2016
Justice Federico Moreno?
Former Chief Judge of the SDFLA, Federico Moreno, has made Donald Trump's short-list for Supreme Court Justices. I love it. Judge Moreno, who has been a district judge since 1990, would make a fantastic Justice. He's smart, witty, engaging, and an all around good guy.
He would be the first Supreme Court Justice to be a:
Other notables on the list include Charles Canady, a current Florida Supreme Court Justice.
He would be the first Supreme Court Justice to be a:
- Floridian
- Venezuelan
- former practicing criminal defense lawyer
- former assistant federal defender
- UM law grad
Other notables on the list include Charles Canady, a current Florida Supreme Court Justice.
Thursday, September 22, 2016
Is flight from the police = reasonable suspicion or consciousness of guilt?
Many courts have said yes over the years. See Illinois v. Wardlow, 528 U.S. 119 (2000).
But the Supreme Court of Massachusetts has rightfully come out the other way in light of recent encounters between black men and the police:
But the Supreme Court of Massachusetts has rightfully come out the other way in light of recent encounters between black men and the police:
Second, as set out by one of the dissenting Justices in the
Appeals court opinion, where the suspect is a black male stopped
by the police on the streets of Boston, the analysis of flight
as a factor in the reasonable suspicion calculus cannot be
divorced from the findings in a recent Boston Police Department
(department) report documenting a pattern of racial profiling of
black males in the city of Boston. Warren, 87 Mass. App. Ct. at
495 n.18 (Agnes. J., dissenting), citing Boston Police
Commissioner Announces Field Interrogation and Observation (FIO)
Study Results, http://bpdnews.com/news/2014/10/8/boston-policecommissioner-
announces-field-interrogation-and-observation-fiostudy-
results [https://perma.cc/H9RJ-RHNB].13 According to the
study, based on FIO data collected by the department,14 black men
in the city of Boston were more likely to be targeted for
police-civilian encounters such as stops, frisks, searches,
observations, and interrogations.15 Black men were also
disproportionally targeted for repeat police encounters.16 We do
not eliminate flight as a factor in the reasonable suspicion
analysis whenever a black male is the subject of an
investigatory stop. However, in such circumstances, flight is
not necessarily probative of a suspect's state of mind or
consciousness of guilt. Rather, the finding that black males in
Boston are disproportionately and repeatedly targeted for FIO
encounters suggests a reason for flight totally unrelated to
consciousness of guilt. Such an individual, when approached by
the police, might just as easily be motivated by the desire to
avoid the recurring indignity of being racially profiled as by
the desire to hide criminal activity. Given this reality for
black males in the city of Boston, a judge should, in
appropriate cases, consider the report's findings in weighing
flight as a factor in the reasonable suspicion calculus.
Here, we conclude that the police had far too little
information to support an individualized suspicion that the
defendant had committed the breaking and entering. As noted,
the police were handicapped from the start with only a vague
description of the perpetrators. Until the point when Carr
seized the defendant, the investigation failed to transform the
defendant from a random black male in dark clothing traveling
the streets of Roxbury on a cold December night into a suspect
in the crime of breaking and entering. Viewing the relevant
factors in totality, we cannot say that the whole is greater
than the sum of its parts.
Wednesday, September 21, 2016
"Any possibility of unfair prejudice was ameliorated when the district court explicitly instructed the Rhode Island jury not to hold Alcantara's wearing of a Yankees hat against him."
That was the First Circuit explaining why a New England jury could be fair in deciding whether a Yankee fan was guilty:
Alcantara's second claim of evidentiary error runs along
similar lines. He argues that a handful of references to his
wearing a New York Yankees baseball cap prejudiced the jury (which
he assumes to have been composed of Boston Red Sox fans) against
him. As an initial matter, all but two of the cited references
occurred during defense counsel's cross-examination. In any
event, this testimony, like the references to luxury vehicles
discussed above, was relevant to the witnesses' knowledge of
Alcantara and his appearance. Any possibility of unfair prejudice
was ameliorated when the district court explicitly instructed the
Rhode Island jury not to hold Alcantara's wearing of a Yankees hat
against him.
Tuesday, September 20, 2016
Should prosecutors experience one day in prison before taking the job?
These Maryland legislators did just that. They should be praised. They wanted to see what prison life was like so that they were more informed about the criminal justice laws they were proposing and voting on. Prosecutors routinely throw out numbers like 5 years, 10 years, or more, without even knowing what one day is like in prison. Perhaps they should.
From the WP:
From the WP:
The conditions inside the facility were reminiscent of a prison movie: stale air, dim hallways, only the bare necessities. The prisoners described getting about an hour and a half of physical recreation per day, but, depending on where you fell in the lineup for the yard, that could be cut to 45 minutes. Prisoners are allowed outside recreation only four months of the year: June through September. The rest of the year, they are told, is too cold to go outside. Because of lengthy construction projects, some inmates had not been outside for recreation time in more than a year.
On a day when outside temperatures reached 100 degrees, we quickly realized that cellblocks in most state correctional facilities are not air conditioned. It’s so hot that inmates sleep on the floor with their feet in toilet water. Rats infested the food and gnawed through walls.
Monday, September 19, 2016
Jeb exclamation point!
Funny video of Jeb from the Emmys here.
Meantime, all the actors playing lawyers in OJ won. And Marcia Clark actually attended.
Meantime, all the actors playing lawyers in OJ won. And Marcia Clark actually attended.
Thursday, September 15, 2016
Should William Pryor and Julie Carnes have recused from Matchett?
Judge Pryor, joined by Carnes, starts his order respecting the denial of rehearing this way (background here):
A majority of the Court has voted not to rehear en banc our decision in this appeal, United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), which held that the advisory sentencing guidelines cannot be challenged as void for vagueness. As members of the panel (and coincidentally the only members of this Court to have served on the United States Sentencing Commission), we write to explain why we agree with that decision.But as members of the U.S. Sentencing Commission, should they have recused? Andrew Hessick argues in this post that they should have:
We divide our discussion in two parts. First, we explain that Matchett is correct because the vagueness doctrine applies only to laws that regulate the primary conduct of private citizens. Advisory sentencing guidelines regulate judges, not private individuals; they guide judicial discretion within a statutory range. Advisory sentencing guidelines do not define crimes or fix punishments. Second, we explain that Matchett is not worthy of en banc rehearing.
Judge Pryor does not have a personal interest at stake in the case, but he does have an interest in his capacity as a member of the Commission. Holding that the vagueness doctrine does not apply to sentencing guidelines protects his work on the Commission from future challenges of that sort.
His participation in the decision also raises separation of powers concerns. The sentencing guidelines are legislative in nature. A judge who both sits on the Commission and rules on the Commission’s guidelines acts as both judge and legislator. Of course, judges sit on committees that create all sorts of rules―evidence, civil procedure, etc. But those committees prescribe rules for the administration of the courts. Sentencing guidelines are different. They prescribe terms of imprisonment. Anxiety about deprivations of liberty at the hands of the government is a major reason the Constitution separates powers.
Tuesday, September 13, 2016
"But just to reassure my colleague, I note that I do not now nor have I ever lived in fear that the Sentencing Commission might issue a “nonsensical guideline about ‘cheese.’”
That was Judge Rosenbaum, referring to Judge Pryor's opinion respecting the denial of en banc review in the big Matchett case. (She says this footnote referring to that sentence: "Now, that is a sentence I never imagined I would write in an opinion.")
Lots to digest in the 88 pages of opinions, but Rosenbaum vs. Pryor is fun to read. And, of course, Martin's dissent is full of good stuff too. But back to Rosenbaum. Here's her footnote 3:
More to follow.
Lots to digest in the 88 pages of opinions, but Rosenbaum vs. Pryor is fun to read. And, of course, Martin's dissent is full of good stuff too. But back to Rosenbaum. Here's her footnote 3:
In fact, I would be surprised if the Sentencing Commission had reason to issue a
guideline about cheese at all. After all, the moon does not fall within the Sentencing
Commission’s jurisdiction. See Robert Nemiroff & Jerry Bonnell, Hubble Resolves Expiration Date for Green Cheese Moon, ASTRONOMY PICTURE OF THE DAY (Apr. 1, 2002), http://www.phys.ncku.edu.tw/~astrolab/mirrors/apod_e/ap020401.html (“The popular ‘Moon is made of Green Cheese’ myth can be traced back almost 500 years. It has been used historically in context to indicate a claim so clearly false that no one . . . will believe it.”); see also Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies art. I, Jan. 27, 1967, 18 U.S.T. 2410 (“The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.”).
More to follow.
Monday, September 12, 2016
Is "young and vivacious" the way you should be describing a law school dean?
Well, the UF Dean was not too happy about the description by the UF Law Review, but now is going to apologize for her objections:
The dean of the University of Florida's Levin College of Law, who like other lawyers is trained to weigh words with care, has created a stir with her objection to being called "young and vivacious."
An expert in feminist legal theory, Laura Rosenbury wrote a 4,000-word article for the New England Law Review that ended by recounting a banquet last fall when the male president of UF's Florida Law Review introduced Rosenbury with that description. In the article published this summer, Rosenbury said when she discussed her concern — whether a male dean of the college would be described as "vivacious" — the law review adviser responded, "But you look so much younger."
Now Rosenbury is being criticized by others connected to the Levin College of Law for such public criticism of her colleagues, who though not specifically named can be identified by their positions.
“The UF Levin College of Law and the University of Florida should be embarrassed that the Dean of their law school publicly calls out and identifies one of her own students and faculty members with the borderline slanderous accusation of sexism, against two of the most well-respected, tolerant and unprejudiced people at the school,” Michael Balducci, an alumnus and former Florida Law Review executive editor, wrote in a Facebook post.
Rosenbury said she has heard similar pushback from others.
***
Rosenbury said the last part of the article was to say she still encountered implicit gender bias as a dean, and while overt bias Frug had faced during her life has lessened with time, bias based on one’s identity still exists. In hindsight, she said she could have made the point in a way that avoided any embarrassment to the student.
“I think it’s good that people are talking about implicit bias in the legal profession,” she said. “I hope, though, that we can find more productive ways of talking about it.”
She’s been traveling the past week, but she plans to apologize to the student and faculty adviser once she’s back at UF.
“I will certainly apologize if they think I was calling them sexist,” she said. “Certainly that was not my intent, and I want to apologize for that.”
Thursday, September 08, 2016
UM's Law Review Edition on the 11th Circuit is out (UPDATE with Fed Bar news for tonight)
UPDATE -- I forgot to mention that tonight is the Federal Bar Association's big Awards Dinner at the JW Marriott Marquis. I am so proud and happy to say that Judge Robert L. Dube is being award the "NED" award (Judge Edward B. Davis Award). Judge Davis would have been so happy with this choice as he and Judge Dube were close friends when they served on the bench together.
Here.
Below are the articles, including one by yours truly and the forward by Judge Darrin Gayles. Also of note is that Professor Frohock's article is extremely timely as the 11th Circuit just granted en banc review of the case she covers, Patterson v. DOC.
Here.
Below are the articles, including one by yours truly and the forward by Judge Darrin Gayles. Also of note is that Professor Frohock's article is extremely timely as the 11th Circuit just granted en banc review of the case she covers, Patterson v. DOC.
Volume 70, Issue 4
Eleventh Circuit Issue
Foreword
by Hon. Darrin P. Gayles
by Hon. Darrin P. Gayles
Articles
ISIS’s Get Rich Quick Scheme: Sell the World’s Cultural Heritage on the Black Market—Purchasers of ISIS-Looted Syrian Artifacts Are Not Criminally Liable Under the NSPA and the McClain Doctrine in the Eleventh Circuit
by Lindsey Lazopoulos Friedman
by Lindsey Lazopoulos Friedman
Sentence Structure: Prohibiting “Second or Successive” Habeas Petitions After Patterson v. Secretary
by Christina M. Frohock
by Christina M. Frohock
Hurst v. Florida’s Ha’p’orth of Tar: The Need to Revisit Caldwell, Clemons, and Proffitt
by Craig Trocino and Chance Meyer
by Craig Trocino and Chance Meyer
That ‘70s Show: Why the 11th Circuit was Wrong to Rely on Cases from the 1970s to Decide a Cell- Phone Tracking Case
by David Oscar Markus and Nathan Freed Wessler
by David Oscar Markus and Nathan Freed Wessler
Notes
Neither Strict Nor Nuanced: The Balanced Standard For False Claims Act Pleading In The Eleventh Circuit
by C. Caitlin Giles
by C. Caitlin Giles
Tuesday, September 06, 2016
Privacy rights and Justice Scalia
Although I've argued many times in the past that Justice Scalia was the best Supreme Court Justice for criminal defendants on the Court in which he sat, he was not a big 4th Amendment guy and certainly not a big privacy rights advocate. Nevertheless, his family asked that his burial site be kept secret from the public. The internet didn't let that happen for long. From the AP:
Supreme Court Justice Antonin Scalia's funeral was attended by thousands and carried on live television, but when the hearse pulled away from the church and headed to his burial site, his family asked for privacy and Supreme Court officials declined to say where Scalia was being laid to rest.But few things stay private in the internet age, and Scalia's grave has become public with the help of a website.Within months of his death in February, the location of Scalia's grave - at Fairfax Memorial Park in Virginia - was recorded on the cemetery website Findagrave.com with precision: Garden of the Crucifixion, Lot 870, Site A. A contributor to the site added photos, too. Recently Wikipedia added the location and a photo to Scalia's page.Citing privacy, cemetery President Michael H. Doherty declined to discuss the late justice or say how frequently visitors ask for help finding Scalia's gravesite in the cemetery that is dotted with brightly colored artificial flowers and in-ground memorial markers rather than headstones. But the cemetery will direct anyone who asks, its standard practice for any gravesite, though with the information posted online, visitors don't necessarily need help. When an Associated Press reporter visited recently, a bronze vase that's part of the justice's gravesite was empty; Find A Grave's pictures from May showed fresh flowers.Scalia is the first Supreme Court justice to be buried at the cemetery. Some are buried at Rock Creek Cemetery and Oak Hill Cemetery in Washington and Cedar Hill Cemetery in Suitland, Maryland.
Sunday, September 04, 2016
Should Obama be doing even more with his commutation power?
The WP says yes. From the intro:
PRESIDENT OBAMA began August by commuting the sentences of 214 federal inmates, and he ended the month by commuting 111 more. Generally the pardon and commutation power is used sparingly and gets attention only when presidents use it to help cronies or former staffers. Now it is being used to commute the sentences of people who could not spare a dime to donate to a political campaign. This is a historic milestone — but it is also not nearly enough.Mr. Obama’s August tally is the highest one-month presidential commutation total ever — even including those last-minute flurries of commutations and pardons presidents typically unleash during their final days in office. In a single month, Mr. Obama doubled the number of sentences he has shortened since taking office — to 673. His accelerating pace reflects an initiative to use the commutation power with more ambition than any modern president. His cumulative total is higher than that of the past 10 presidents combined.
The president has the power to shorten sentences in order to compensate for inequities in the justice system, an authority and responsibility that most neglect. Two years ago, the Obama Justice Department announced a program to encourage certain types of federal prisoners to petition for clemency. Mr. Obama chose to target inmates who are serving long sentences for nonviolent crimes, mostly drug-related, and who would be sentenced more leniently under current rules. The White House points out that more than a third of those the president has commuted were serving life sentences, even though they were relatively low-level offenders.
Thursday, September 01, 2016
You have the right to confront an actor against you.
Another "terror" trial and another set of witnesses allowed to testify in disguise. From the Herald:
The federal government’s secret informant and undercover agents who helped catch a suspected Key West terrorist last summer may testify at trial using fake names and even disguises, a judge has ruled.
***
Two FBI agents and one confidential informant “may testify under their undercover pseudonyms at trial without disclosing their true identities,” Magistrate Judge Lurana Snow wrote in an Aug. 17 ruling. “The defense shall be prohibited from asking any questions seeking personal identifying information from or about [them].”
Also, the witnesses may enter and leave the courthouse from a non-public doorway and their voices and pictures may not be publicly disclosed through any recordings or images, Snow ordered.
Tuesday, August 30, 2016
Election Tuesday
Thank goodness we don't elect judges in federal court. I'm not saying it's a great system we have, but I think it beats elections. Asking the lawyers that appear before you for money... Ads that have nothing to do with judging... Yuck.
Anyway, I was very proud of having the blog after lasts week's comments and posts about Hogan and Richey. People wrote such beautiful tributes and memories. Speaking of which, there is a memorial this Friday for Jay Hohan at the Biltmore at 11am.
Sunday, August 28, 2016
Judge Gayles' new clerk was just married and it's in the NYT
Here.
Shahrzad Daneshvar, the daughter of Afsaneh Pournaderi Daneshvar and Farhang Daneshvar of Fair Oaks, Calif., was married Aug. 25 to Travis Viola, a son of Teresa Viola and Vincent Viola of New York. Judge Ann Claire Williams of the United States Court of Appeals for the Seventh Circuit officiated in her chambers in Chicago.On Sept. 17, A. Reza Sheikholeslami, emeritus professor of Persian studies at Oxford, is to lead a traditional Persian ceremony at the Waldorf Astoria in New York.Ms. Daneshvar, 28, is keeping her name. Next month, she is to begin a clerkship in Miami for Judge Darrin H. Gayles of the United States District Court for the Southern District of Florida. She graduated summa cum laude from George Washington. She also received a master’s degree in education from the University of Miami and her law degree with honors from the University of Chicago.Her father retired as an industrial engineer in Fair Oaks.Mr. Viola, also 28, is the vice president for hockey operations for the Florida Panthers of the National Hockey League. He graduated from Fordham. His father is owner, chairman and governor of the Panthers.The couple were originally supposed to meet on a blind date in 2010. Though that date was canceled, they kept in touch, and met in person five months later in New York.
Friday, August 26, 2016
Jay Hogan obit in the Herald
Jay Weaver starts with a story I just love hearing about every time it's told:
Everyone seems to have a story about courtroom legend James Jay Hogan, who died this week at age 82, but no one will ever forget this surreal moment: In the mid-1980s, the Miami defense attorney got a key government witness to testify that in his previous life he was Hollywood icon Jean Harlow.
The credibility of the witness, it is safe to say, was instantly in serious question.
During the federal trial, Hogan unveiled a blown-up photo of the Roaring Twenties blonde bombshell, who died in 1937 of a brain infection. The man testifying was born five years later. Hogan’s client, a Miami lawyer accused of preparing phony real-estate documents for the witness, was acquitted.
Former law partner Hy Shapiro recalled how Hogan dug up the tidbit about Harlow from a little-known book written by the witness, a revelation that drew gapes and howls from jurors. He said Hogan’s secret weapon was his work ethic.
“He would eat, sleep and breathe a case when he got into it,” Shapiro said on Thursday. “He would delve more deeply than anyone into a witness’ life.”
Here's the newspaper story from the time, which is fun to read.
Everyone seems to have a story about courtroom legend James Jay Hogan, who died this week at age 82, but no one will ever forget this surreal moment: In the mid-1980s, the Miami defense attorney got a key government witness to testify that in his previous life he was Hollywood icon Jean Harlow.
The credibility of the witness, it is safe to say, was instantly in serious question.
During the federal trial, Hogan unveiled a blown-up photo of the Roaring Twenties blonde bombshell, who died in 1937 of a brain infection. The man testifying was born five years later. Hogan’s client, a Miami lawyer accused of preparing phony real-estate documents for the witness, was acquitted.
Former law partner Hy Shapiro recalled how Hogan dug up the tidbit about Harlow from a little-known book written by the witness, a revelation that drew gapes and howls from jurors. He said Hogan’s secret weapon was his work ethic.
“He would eat, sleep and breathe a case when he got into it,” Shapiro said on Thursday. “He would delve more deeply than anyone into a witness’ life.”
Here's the newspaper story from the time, which is fun to read.
Thursday, August 25, 2016
Judge Cooke rules for Jason Pierre-Paul against ESPN
The NYP covers the story here:
A Florida judge has green-lighted Giants defensive end Jason Pierre-Paul’s invasion-of-privacy lawsuit against ESPN and its reporter Adam Schefter for posting his private medical records online to millions of readers.Meantime, I wanted to thank all of the readers who posted comments yesterday about Hogan and Richey. This is what the blog is all about. Thanks. --dm
The ruling by Miami federal Judge Marcia G. Cooke sets the stage for the state’s second high-profile legal battle in a year between a sports star and a media organization over privacy issues. In March, wrestler Hulk Hogan won a record-breaking $140 million victory over Gawker for publishing his sex video.
***
Cooke agreed in a ruling she issued from the bench Thursday morning after an hour of arguments.
“This just went beyond the pale,” sports law expert Daniel Wallach said of Schefter’s decision to post the private records.
“If this is not where the line is, where would it be?” said Wallach, of the law firm Becker & Poliakoff. Wallach, who is not involved in the case, expects the decision will mean a quick settlement.
“The judge has the case on fast track with discovery cutoff in Februrary, meaning in-season depositions,” Wallach explained.
Lawyers for ESPN and Schefter had asked the judge to toss the case, citing First Amendment protections.
Pierre-Paul is suing for unspecified damages. He is also represented by lawyers Kevin Fritz and John C. Lukacs.
Wednesday, August 24, 2016
RIP Jay Hogan and Bill Richey
I'm so sorry to report that two great men and great lawyers passed away yesterday. Please share your memories/stories in the comments and I will post them. Sad.
From Judge Bob Scola on Jay Hogan:
"One of the true legal legends passed away last night. I tried a seven month long trial with him in Tampa and he was the real deal. It was like participating in a legal seminar every day ( and morning since we met at 5:30 am each day to get ready for that day's session). He invited me to share space with him after the trial and I was with him for 4 years until taking the bench. He was an invaluable resource and had the rare combination of exceptional talent coupled with an incredible work ethic. He was generous with his time, advice and in all other ways. He will definitely be missed."
From Judge Vance Salter on Bill Richey:
I saw your piece on Bill Richey and Jay Hogan this morning—tragic, shocking, I have to say. Bill was an associate at Steel Hector & Davis, following Janet Reno there from the State Attorney’s office (before Janet ran for the office herself). A trial lawyer’s trial lawyer, laser-guided but unfailingly polite and professional. Harlingen, Texas to HLS—big jump. He will be missed.
From Steve Bronis on Jay Hogan:
I was so saddened to learn of passing of Jay Hogan. Like Judge Bob Scola, I was honored to share office space with Jay for many years. He was a cherished mentor. He was a true gentleman and a masterful trial attorney. He had an uncanny ability to foster a great rapport with the jury. Jay was the most skillful cross-examiner I have ever known. I was privileged to be co-counsel with him on many cases including the famous Court Broom federal trial. Jay’s cross-examination of Ray Takiff in that case was absolutely stunning. It should be required reading for every trial attorney. He was one of a kind and will be greatly missed.
From Robert Kuntz on Jay Hogan:
I was a reporter then and covered Court Broom from voir dire to the verdict.
Jay Hogan was just amazing to me. Tall, long elegant hands, big-toothed smile -- and that unlit cigar that I don't think they'd let you walk around with in the courthouse these days. He was a consummate gentleman of the old school. He was totally at ease in the well of that imposing Central Courtroom and when he was up, every eye in the enormous place was on him. Judge Gonzalez didn't exactly defer to Hogan, but Hogan very certainly had the run of the place.
Ray Takiff, lead prosecution witness and literal bag man, had been all bombast and swagger (at least as much as he was capable of while claiming to be so debilitated with a heart condition that Judge Gonzalez reduced his testimony to half days). Hogan on cross was understated, leonine, and he stalked Takiff from the start. He built Takiff up, asking about some of his exploits. (Takiff told a story about walking through a police line of a surrounded house, saying he would speak with "his client," and get him to surrender. Takiff said he then got into the house, handed the barricaded STRANGER a business card and got the case on the spot. True? Who knew? But Takiff told it like it was.)
Then Hogan smoothly went in for the kill.
I won't recall verbatim after all these years, but there was a moment. Takiff had claimed that, if not for being barred from taking the case (since he was by then in the secret employ of the government), he'd have walked General Noriega, who had been tried in that same courtroom. Part of what Hogan asked went something like:
". . . and you'd have gotten him off?"
"Yes."
"You'd would have WON that trial?"
"Yes."
"There wasn't anyone better than you?"
"No one."
"You would have saved the guy?"
"I would have."
"It would have been the case of a lifetime, right?"
[Starting to break] "Yes."
"But instead, all you are now is a rat?"
[In tears] "Yes. I'm a rat."
"You're not a lawyer anymore, you're just a rat?"
[More tears] "Yes. Yes. I'm a rat"
Anyway, that's how I remember it more than 20 years later. But I'll bet, if you pull up the transcript, it was even better than that.
From Judge Jonathan Goodman on Bill Richey:
This is the first comment I have ever posted on a blog, legal or otherwise. But Bill Richey's passing is an extraordinary event.
Bill hired me out of the U.S. Attorney's Office in 1988. I became partners with him, Kirk Munroe and Alan Fine less than a year later.
Bill taught me many things. Some of those things concerned the practice of law and being a trial lawyer.
On the law side, Bill was a master of strategy, planning and investigation. That man knew how to take a deposition, let me tell you.
But other things Bill passed on to me were about being a good person, how to deal with people, how to be a mensch and other life lessons.
I hope some of those lessons stuck, even a little.
Bill played a huge role in my life, and I will miss him dearly.
From Judge Milton Hirsch on Jay Hogan
Jay had a defendant in the famous "Court Broom" trial. Ed Carhart also had a defendant, and although "Court Broom" was tried in federal court, the case against Ed's client turned in substantial part on a question of Florida criminal procedure. Ed hired me to testify on that question as an expert, thus affording me a free front-row seat to one of the signature trials in modern Miami history.
So I testified. The government crossed. And then for no particular reason -- I honestly think it was to relieve the tedium of the moment -- Jay Hogan announced that he had a few questions for this witness.
I can, to this very day, reproduce from memory almost the entirety of his cross of me. (No, I'm not going to, but I can.) Ask me to recount a couple of highlights from my largely highlight-free career as a lawyer and a judge; at the top of the list you'll find, "I was cross examined by Jay Hogan."
I couldn't pick up my own bar tab for weeks. Every criminal lawyer in town was happy to buy my drinks just to hear me tell what it was like to be crossed by Hogan.
From Judge Bob Scola on Jay Hogan:
"One of the true legal legends passed away last night. I tried a seven month long trial with him in Tampa and he was the real deal. It was like participating in a legal seminar every day ( and morning since we met at 5:30 am each day to get ready for that day's session). He invited me to share space with him after the trial and I was with him for 4 years until taking the bench. He was an invaluable resource and had the rare combination of exceptional talent coupled with an incredible work ethic. He was generous with his time, advice and in all other ways. He will definitely be missed."
From Judge Vance Salter on Bill Richey:
I saw your piece on Bill Richey and Jay Hogan this morning—tragic, shocking, I have to say. Bill was an associate at Steel Hector & Davis, following Janet Reno there from the State Attorney’s office (before Janet ran for the office herself). A trial lawyer’s trial lawyer, laser-guided but unfailingly polite and professional. Harlingen, Texas to HLS—big jump. He will be missed.
From Steve Bronis on Jay Hogan:
I was so saddened to learn of passing of Jay Hogan. Like Judge Bob Scola, I was honored to share office space with Jay for many years. He was a cherished mentor. He was a true gentleman and a masterful trial attorney. He had an uncanny ability to foster a great rapport with the jury. Jay was the most skillful cross-examiner I have ever known. I was privileged to be co-counsel with him on many cases including the famous Court Broom federal trial. Jay’s cross-examination of Ray Takiff in that case was absolutely stunning. It should be required reading for every trial attorney. He was one of a kind and will be greatly missed.
From Robert Kuntz on Jay Hogan:
I was a reporter then and covered Court Broom from voir dire to the verdict.
Jay Hogan was just amazing to me. Tall, long elegant hands, big-toothed smile -- and that unlit cigar that I don't think they'd let you walk around with in the courthouse these days. He was a consummate gentleman of the old school. He was totally at ease in the well of that imposing Central Courtroom and when he was up, every eye in the enormous place was on him. Judge Gonzalez didn't exactly defer to Hogan, but Hogan very certainly had the run of the place.
Ray Takiff, lead prosecution witness and literal bag man, had been all bombast and swagger (at least as much as he was capable of while claiming to be so debilitated with a heart condition that Judge Gonzalez reduced his testimony to half days). Hogan on cross was understated, leonine, and he stalked Takiff from the start. He built Takiff up, asking about some of his exploits. (Takiff told a story about walking through a police line of a surrounded house, saying he would speak with "his client," and get him to surrender. Takiff said he then got into the house, handed the barricaded STRANGER a business card and got the case on the spot. True? Who knew? But Takiff told it like it was.)
Then Hogan smoothly went in for the kill.
I won't recall verbatim after all these years, but there was a moment. Takiff had claimed that, if not for being barred from taking the case (since he was by then in the secret employ of the government), he'd have walked General Noriega, who had been tried in that same courtroom. Part of what Hogan asked went something like:
". . . and you'd have gotten him off?"
"Yes."
"You'd would have WON that trial?"
"Yes."
"There wasn't anyone better than you?"
"No one."
"You would have saved the guy?"
"I would have."
"It would have been the case of a lifetime, right?"
[Starting to break] "Yes."
"But instead, all you are now is a rat?"
[In tears] "Yes. I'm a rat."
"You're not a lawyer anymore, you're just a rat?"
[More tears] "Yes. Yes. I'm a rat"
Anyway, that's how I remember it more than 20 years later. But I'll bet, if you pull up the transcript, it was even better than that.
From Judge Jonathan Goodman on Bill Richey:
This is the first comment I have ever posted on a blog, legal or otherwise. But Bill Richey's passing is an extraordinary event.
Bill hired me out of the U.S. Attorney's Office in 1988. I became partners with him, Kirk Munroe and Alan Fine less than a year later.
Bill taught me many things. Some of those things concerned the practice of law and being a trial lawyer.
On the law side, Bill was a master of strategy, planning and investigation. That man knew how to take a deposition, let me tell you.
But other things Bill passed on to me were about being a good person, how to deal with people, how to be a mensch and other life lessons.
I hope some of those lessons stuck, even a little.
Bill played a huge role in my life, and I will miss him dearly.
From Judge Milton Hirsch on Jay Hogan
Jay had a defendant in the famous "Court Broom" trial. Ed Carhart also had a defendant, and although "Court Broom" was tried in federal court, the case against Ed's client turned in substantial part on a question of Florida criminal procedure. Ed hired me to testify on that question as an expert, thus affording me a free front-row seat to one of the signature trials in modern Miami history.
So I testified. The government crossed. And then for no particular reason -- I honestly think it was to relieve the tedium of the moment -- Jay Hogan announced that he had a few questions for this witness.
I can, to this very day, reproduce from memory almost the entirety of his cross of me. (No, I'm not going to, but I can.) Ask me to recount a couple of highlights from my largely highlight-free career as a lawyer and a judge; at the top of the list you'll find, "I was cross examined by Jay Hogan."
I couldn't pick up my own bar tab for weeks. Every criminal lawyer in town was happy to buy my drinks just to hear me tell what it was like to be crossed by Hogan.
Tuesday, August 23, 2016
Judge Altonaga gives nod to IRS over Miccosukees
The Herald covers the big ruling here:
In other news, The Florida Bar just approved the 5th annual anti-human trafficking conference by the Hispanic National Bar Association on Friday 9/16/16 at St. Thomas University School of Law, Moot Court from 8:30 a.m. to 1:00 p.m. for 5 CLE credits. Registration is free. Please RSVP to: mvargas@hinshawlaw.com.
The conference will cover trafficking in the Cambodia, a Congressional paper on trafficking in Latin America, religious organizations’ aid to the rescued, the correlation between environmental degradation and trafficking.
The Miccosukee Indians have lost a contentious tax case that experts say will strengthen federal government efforts to collect more than $1 billion in overdue personal income taxes.
U.S. District Judge Cecilia Altonaga found late Friday that a tribal member must pay $278,758 in taxes, interest and penalties to the Internal Revenue Service for failing to file a tax return in 2001. The judge concluded her family's gaming income — a distribution of casino profits — was not exempt from U.S. tax laws, a ruling likely to have ripple effects on many of the West Miami-Dade tribe’s 600 members.
Altonaga's decision, which will be formally filed as a judgment against the Miccosukees and tribe member Sally Jim later this week, provides the IRS with the legal power to compel other members — including Chairman Billy Cypress — to pay personal income taxes on casino gaming distributions dating back more than a decade.
In other news, The Florida Bar just approved the 5th annual anti-human trafficking conference by the Hispanic National Bar Association on Friday 9/16/16 at St. Thomas University School of Law, Moot Court from 8:30 a.m. to 1:00 p.m. for 5 CLE credits. Registration is free. Please RSVP to: mvargas@hinshawlaw.com.
The conference will cover trafficking in the Cambodia, a Congressional paper on trafficking in Latin America, religious organizations’ aid to the rescued, the correlation between environmental degradation and trafficking.
Monday, August 22, 2016
Rats.
That's how this 7th Circuit opinion by Judge Easterbrook starts:
I can't see to get the pictures from the opinion to paste into the blog post, so go check out the opinion itself. It's pretty funny. And happy first day of school!
Rats. This case is about rats. Giant, inflatable rats, which unions use to demonstrate their unhappiness with employers that do not pay union‐scale wages. Cats too—inflatable fat cats, wearing business suits and pinkie rings, strangling workers. Here is what they look like, as deployed during a labor dispute in the Town of Grand Chute, Wisconsin:
As the pictures show, the rat and the cat are staked to the ground, to prevent the wind from blowing them away. Those stakes led to this litigation.
I can't see to get the pictures from the opinion to paste into the blog post, so go check out the opinion itself. It's pretty funny. And happy first day of school!
Thursday, August 18, 2016
Wednesday, August 17, 2016
Eric Trump testifies in Southern District of Florida
Susannah Nesmith for Bloomberg has the details:
Eric Trump took a page from his father’s playbook Tuesday, telling a judge the billionaire’s renovations to a foundering Florida golf club he bought made it even better.
“We took something that had really gone bad and we made it great again,” Eric Trump, the executive vice president of the golf club, told a judge in West Palm Beach, echoing Donald Trump’s presidential campaign slogan.
The Trump Organization saved Trump National Golf Club Jupiter because it was insolvent, Eric Trump testified. Most members love the renovated golf club now, he said. The suit was filed by former golfers at the club who say they were ripped off when Trump didn’t refund their deposits and barred them from the facilities.
After having insisted for months that people who resigned their memberships at the club didn’t lose access, Eric Trump admitted he was wrong on that point and that some had been barred.
“I’m the first person to have enough hubris to say when you’re wrong, you’re wrong,” he said.
The former members sued the golf club in Jupiter to recover almost $5 million in deposits that they say should have been refunded when the elder Trump changed the membership rules after buying the venture from Ritz-Carlton Hotel Co. in 2012.
No jury in this one... it will be up to Judge Marra:
Both sides in the dispute agreed to waive a jury trial, so U.S. District Judge Kenneth Marra will decide whether Trump must pay the club’s former members back.
Marra said at the conclusion of the two-day trial on Tuesday that he’d rule later.
Tuesday, August 16, 2016
Donald Trump in trial in SDFLA
No kidding. I'm surprised it's not getting more play, but Donald Trump is a defendant in a civil lawsuit in WPB before Judge Marra in a trial that started yesterday. He testified by taped deposition. Here's the PBP:
In classic Donald Trump fashion, the GOP presidential nominee testified Monday that improvements he made to an ailing Jupiter country club were “beautiful,” the members were “very happy” and those who weren’t were just “angry people” he didn’t want in his club anyway.
Never mind that the reason those people are angry is they believe he stole as much as $6 million from them.
Trump’s appearance at the breach of contract trial in U.S. District Court was limited to a roughly 25-minute video deposition. It was taken at his New York City offices in April 2015, long before anyone imagined the real-estate-mogul-turned-TV-celebrity would secure the Republican presidential nomination.
As expected, Trump denied allegations by members of Trump National Golf Club in Jupiter that he improperly changed the rules of their membership contracts when he in December 2012 bought the financially troubled club from Ritz-Carlton Golf Club & Spa for $5 million. He was equally dismissive of suggestions that he got the club at a bargain price by agreeing to assume an estimated $41 million in liabilities that hung over it because Ritz-Carlton promised to refund initiation fees, ranging from $35,000 to $210,000, to members who quit.
“It could have been the club would have closed and gone into bankruptcy and everyone would have lost money,” Trump testified. His purchase, he said, saved the club — and its members — from what he called “the ‘B’ word.”But, three members who filed the class-action suit on behalf of roughly 60 others when he refused to refund their membership fees, said Trump used their money to put the club on firm financial footing.Shortly after buying the club in a gated community on Donald Ross Road near Alternate A1A, he wrote members a letter, alerting anyone who had announced their intention of resigning: “you’re out.”
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