Breathe.

So, how about some happiness for your blog pleasure this week...

Judge Scola is celebrating five years on the federal district court bench. To honor the occasion, the Judge and his wife, Judge Jacki Hogan Scola, gathered with over a dozen of his former and current law clerks and staff during the weekend of October 29-30. That Saturday evening, his law clerks held a dinner in his honor at a former clerk's home in Coconut Grove, and on Sunday the Judge hosted a lunch for everyone in Coral Gables.

In 2011, President Obama nominated Judge Scola to fill the seat on the Southern District of Florida made available when Judge Paul C. Huck took senior status.  Judge Scola had previously served for over a decade on the state court bench.  He was confirmed as a federal district judge on October 19, 2011 and received his commission the following day.

Happy fifth anniversary, Judge Scola! Let's hope President Trump gives us more like him!

Here are some pictures from the event.  Check out this cake!

How will a Trump presidency affect the SDFLA and the Supreme Court

• Trump will select between 2-4 Justices.  William Pryor stands a good chance of being Justice Pryor. Federico Moreno also made Trump's short list.
• Who will be Attorney General?  Rudy Guliani? (I think it's less likely it will be Christie after the Bridgegate convictions, but who knows).
• If HRC had won, there was talk that U.S. Attorney Ferrer would stay on (or that Joan Silverstein would become U.S. Attorney), but that won't happen now. Any thoughts on who Trump names?  Jon Sale? (he would be great).
• There are going to be a bunch of open district court seats in the District.  Who gets those slots?

Happy Election Day!

Here's your moment of Zen:

RIP Janet Reno, Guest Post by John Kozyak

RIP Janet Reno, Guest Post by John Kozyak

Janet Reno passed away this morning after living with Parkinson’s Disease for more twenty years.  I had the privilege of being Janet’s friend and I am so grateful that I had a chance to say good-bye several times over the weekend.  Some said that she was enjoying all the love in her house, which had been built by her Mother. Others said she was waiting until Hilary was elected the first woman President and others acknowledged that this brave woman had never given in easily to anything in her 78 years.

The NY Times  already has an obituary online, which provides a glimpse into the public part of Janet’s life.  I particularly like “Ms. Reno was never a natural fit in Washington’s backslapping, backstabbing culture.”  In this ugly election, this might be one of the best compliments for a strong, brave woman, who approached each day of her life wanting to do the right thing. She did  so much better  than the rest of us and  that is why she is legend to me and many.

I had no familiarity to Parkinson’s Disease when I first met Janet 40 years ago or when she was diagnosed in 1995, but I sure did after my Mother found out she had it about 14 years ago and my Father received the same news 3 years later. I will never forget telling Janet and having her comfort me. She gave her phone number for my Mother to call her. My Mother loved the photograph that Janet signed and loved her visits with her. Janet lived gracefully with Parkinson’s until fairly recently. She continued as the Attorney General and tried to beat Jeb Bush as Governor. She set an example for people living with Parkinson’s and she set an example for so many more to live life to the fullest , to be humble and to do the “right thing”.

She certainly set an example for women. After graduating from Harvard Law, she had difficulty even obtaining a legal job because of her gender and she went on to become the longest serving Attorney General in the United States. When she came to the Minority Mentoring Picnic, young women law students and everyone else loved being with her. She spoke often with encouragement and sincerity. I never heard her complain about the gender discrimination or her Parkinson’s.  

For the past 3-4 years, Janet has been the Honorary Chair of the National Parkinson Foundation’s Moving Day in Miami. She and her family joined with mine to form Team Kozyak & Reno, which usually had the most walkers. Moving Day will take place in Miami this Sunday, November 13^th in Museum Park in Miami. Janet’s health did not permit her to attend last year, but I am positive her niece, Hunter and her daughters and other friends will join Janny in spirit.   I’d be honored if you’d walk with Team Kozyak& Reno this coming Sunday morning. This is not  a solicitation for donations, but more of a request for a group hug in honor of a wonderful woman. I am sharing two photos of Janet at Moving Day two years ago. I love the first one with her sister, Maggy.  Sorry that it doesn’t include Hunter’s face, but she is behind Janet.

I could not be more proud that the Reno family has been so supportive and welcoming.  I will never, ever forget sitting in Janet’s bedroom on Friday night while her sister, Maggy, her nephew , Doug, niece , Hunter, and several others recited long poems with such enthusiasm. I had learned that this was a family tradition when Janet’s brother, Mark, passed away 2 years ago. It was amazing. Yesterday, I barely missed a small group holding hands around Janet’s bed and singing “God Bless America”. It was not easy saying good-bye yesterday, but the love in the Reno home helped so much.

I don’t want to tell my Mother that Janet Reno has passed and think it is best to wait until I see her next week in St. Louis.

Love,

John

Your Thursday afternoon moment of zen

"I don't know what's happening at the U.S. Attorney's Office. This is the latest of a series of incidents that is affecting the credibility of this office ... Someone has got to look at this thing … There's a problem here that needs to be rectified in some way."

That was Judge Darrin Gayles in a strong rebuke of his former office.  We wrote about this latest in a string of prosecutorial misconduct cases on the blog here.  Paula McMahon covers the judge's decision, which was delivered orally (there is no written order) in this article:

A bizarre South Florida case involving an indicted fraud suspect who spied on his co-defendants — and their lawyers — after secretly making a plea deal led a federal judge to blast the U.S. Attorney's Office for letting it happen.
After two days of hearings on the allegations against the "mole," his lawyer and the prosecution, U.S. District Judge Darrin Gayles issued a blistering ruling in court in Miami late Tuesday. He barred the man from testifying against his co-defendants when they go to trial in May and strongly criticized federal prosecutors' "extraordinary" handling of the matter.
***
The defense asked the judge to punish the prosecution by throwing out the charges against Pisoni, Pradel and Ramirez. The judge said prosecutors previously had so much evidence that it was impossible for him to rule that Leon's actions affected the case enough to dismiss the charges against the other three.
But the judge expressed shock that the prosecution was still considering letting Leon testify, in some limited way, in trial against the other three men.
"If the government isn't willing to bar him, I will," Judge Gayles said, ruling Leon was prohibited from testifying.
Prosecutors told the judge they regretted not running the decision about how to handle Leon up the chain of command at their office but said they thought what they did was allowed by law. The judge said they should have, at a minimum, consulted their bosses and sought the judge's explicit approval.
A spokeswoman for U.S. Attorney Wifredo Ferrer declined to comment because the case is pending. Officials also declined to say if any disciplinary investigation is underway or anticipated.

Supreme Cubs fan

In other news, this guy is presenting a tough issue for the magistrate judge:

Every criminal suspect has the right to remain silent, but one South Florida man may be taking that advice very literally.
Since federal charges were filed against him in May, Gerald Petion hasn't uttered a single word during any of his eight or so court appearances. He has also declined to speak to his defense lawyer.
Petion, aka Gangsta, won't even say "not guilty" in response to federal drug and weapons charges. He is accused of selling heroin linked to a man's near-fatal overdose in March in Delray Beach.
Petion, 32, of Pompano Beach and Delray Beach, doesn't misbehave in court. He complies when the deputy marshals tell him where to go and what to do. He stands up straight and doesn't look around the courtroom.
But he also doesn't answer questions from any of the judges. He doesn't make eye contact. And he seems totally unfazed by the uncomfortably long silences when people try to communicate with him.
***
The judge told Petion he could detect occasional "flickers" so he knew Petion could hear him.
"This is the United States of America vs. you," the judge told Petion in a polite and friendly tone. "They're not just going to go away. They're not going to fold their tents. … They'll just wait you out."
Brannon told Petion he understood it was possible that Petion's silence may not be a ploy and that perhaps he has just mentally shut down because "the situation is so awful."
But he urged Petion to listen to the doctors who will be evaluating him during the next few months and issuing another report. The judge told him to think hard about his situation before he next returns to court in late January for the next hearing on his competency.
Petion didn't respond.

Former Prosecutors UNITE against the FBI director

Former federal prosecutor Bruce Udolf wrote this op-ed in the Miami Herald this weekend, saying James Comey "screwed up big time."  From the conclusion:

Sad to say, in this regard, whether by design or inadvertence, Comey failed, and he should take immediate steps to correct his blunder. If that means calling all hands on deck to comb through these new documents, he should do so with all dispatch. He has demonstrated in the past that he is a person big enough to admit his error, and I hope he will do what he can to clean up this mess immediately.
To do otherwise, I fear, could result in history calling into question this most critical election of our lifetime.

And a bunch of former prosecutors signed this letter, railing on Comey:

Director Comey's letter is inconsistent with prevailing Department policy, and it breaks with longstanding practices followed by officials of both parties during past elections.  Moreover, setting aside whether Director Comey's original statements in July were warranted, by failing to responsibly supplement the public record with any substantive, explanatory information, his letter begs the question that further commentary was necessary.  For example, the letter provides no details regarding the content, source or recipient of the material; whether the newly-discovered evidence contains any classified or confidential information; whether the information duplicates material previously reviewed by the FBI; or even “whether or not [the] material may be significant.”

Perhaps most troubling to us is the precedent set by this departure from the Department’s widely-respected, non-partisan traditions.  The admonitions that warn officials against making public statements during election periods have helped to maintain the independence and integrity of both the Department’s important work and public confidence in the hardworking men and women who conduct themselves in a nonpartisan manner.

We believe that adherence to longstanding Justice Department guidelines is the best practice when considering public statements on investigative matters.  We do not question Director Comey’s motives. However, the fact remains that the Director’s disclosure has invited considerable, uninformed public speculation about the significance of newly-discovered material just days before a national election.  For this reason, we believe the American people deserve all the facts, and fairness dictates releasing information that provides a full and complete picture regarding the material at issue.

Some of the local guys who signed: Jeff Marcus, Jerry Greenberg, Dan Rashbaum, Curt Miner, David Buckner, Seth Miles.

Hope everyone has a great Halloween.

Read more here: http://www.miamiherald.com/opinion/op-ed/article111398437.html#storylink=cpy

 

 

Third case of spying on the defense alleged

After Monday's post, I received an email tip with the following case of alleged spying, which is the third time it is alleged that the prosecution has invaded the defense camp. This one is from the summer but it is still being litigated.  From the Florida Bulldog:

Miami federal prosecutors stand accused of spying on the defense – this time in the case of an alleged $28-million, international sweepstakes fraud.
As described in court papers, the “invasion of the defense camp” appears to have begun in February when one of four defendants in the case cut a secret plea deal with the U.S. Attorney’s Office and began working undercover.
The informant, John Leon of Wilton Manors, participated in defense team strategy sessions for three months as a government “mole,” obtaining documents and listening to privileged discussions about witnesses and other sensitive defense matters and reporting back to the government, the documents say.
The fallout: defense accusations that the case has been irretrievably “tainted” due to constitutional violations of the attorney-client privilege.
“For a period exceeding two months, Leon, acting as a government informant with the government’s acquiescence, invaded the defense camp where he learned critical defense strategies by actively participating in numerous meetings, after already accepting a government plea and agreeing to cooperate,” say court papers filed by attorneys Marc Nurik of West Palm Beach, J. David Bogenschutz of Fort Lauderdale and Marshall Dore Louis of Miami.
...
The judge ... has sided so far with the defense. On Aug. 3, after an initial hearing, he ordered the government to turn over to the defense all “rough notes” of interviews of Leon by Internal Revenue Service agents who helped build the government’s fraud case. The defense had sought the agents’ notes, contending the government had “carefully sanitized” memos of interviews with Leon produced to the defense.

1 Billion Dollars...

Oh, this is such a South Florida story -- about a billion dollar bond.  Paula McMahon has the details:

When a South Florida man's friend sent him photos of a $1 billion bond earlier this year, investigators said, Michael Ifrah quickly pronounced it was genuine.
Ifrah wrote back to his pal that "the bond was real and it was more real than any other bond in the world," federal prosecutors said.
But that assurance was about as credible as the counterfeit bond, prosecutors told a judge Monday in federal court in Fort Lauderdale.
"This case is about two defendants trying to cash an unbelievable amount of money — a $1 billion bond. Few people have actually seen a billion-dollar bond, and that is because these bonds do not legally exist," prosecutor Daniel Cervantes wrote in court records.

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:

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.
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.

 I mean, this is getting ridiculous already.  Let's see how this plays out.  

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

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."

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.’”

Vote for Pedro!

and for this blog.

and for Rumpole.

Thanks!

Manrique oral argument summary

From SCOTUSblog is here:

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.

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.

Federal Courts closed, but schools are open.

So is your office open today?

Are your offices open today?

Yes because schools are open.

Yes because Columbus day is not a holiday.

No because federal courts are closed.

No because Columbus day is a holiday.

Yes because there were two hurricane days last week and we need to get back to work.

My office is open but I'm staying home.

pollcode.com free polls

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.

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). 

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:

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.

    

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:

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: