Monday, February 27, 2006

It's official...

... the FDC-Miami officials have lost their marbles.

Check out the DBR article today (another Julie Kay special) about the new dress code at the prison -- FOR LAWYERS. Here's the intro:

Going to visit a client in the Federal Detention Center in Miami? Better make sure you’re wearing a conservative suit, and whatever you do, don’t wear gray slacks and a blue blazer. In recent weeks, the FDC has begun cracking down on villainous lawyers who wear nonmatching pants and blazers, gray pants and blue blazers and even khaki pants. And women who wear skirts above the knee or with slits are reportedly being turned away, too. Miami lawyer Bruce Alter said in a phone message he was turned away from the FDC last week for wearing khaki pants, as was Darryl Wilcox, an assistant federal public defender, who was wearing gray pants, a white shirt, red tie and blue blazer. “I was wearing the standard out-of-court outfit,” Wilcox said. “They told me it was too similar to what the Bureau of Prisons guards wear.” While Wilcox was not allowed to enter the jail, the public defender-hired translator was waiting inside with Wilcox’s client, who speaks only Spanish. Wilcox ended up returning to his Fort Lauderdale office without being able to see his client. “I was annoyed,” Wilcox said. “But I guess security is security.”

Saturday, February 25, 2006

Sleepless in Savannah

So I'm still here in Savannah trying this case. One week down, who knows how many to go. In the first four days of trial, we've picked a jury, done 11 opening statements, and have examined 28 witnesses. No joke...

I miss the Southern District of Florida.

In actual SDFLA news, check out this Sun-Sentinel article about FDC getting slammed again, this time by Judge Cooke. Frankly, the BOP deserves it.

During this period of slow blogging, I'm counting on you all (I guess I should say y'all) to keep the blog buzzing in the comment section about all the goings-on in the district.

Wednesday, February 22, 2006

U.S. Probation - Powerful or Powerless

The authority of the United States Probation Office was addressed last week by the Eleventh Circuit Court of Appeals. In U.S. v. Nash, No. 05-11440 (Feb. 13, 2006), the Court agreed with the defendant that the district court erred in delegating to a probation officer the judicial task of determining whether he should participate in a mental health program, but otherwise affirmed the sentence. The Eleventh Circuit concluded that the district court, not U.S Probation, must decide whether a defendant should participate in mental health counseling.

On the other hand, the Court made clear that U.S. Probation still has the discretion to discuss a defendant’s prior criminal record, or personal history or characteristic with third parties. The Court also upheld the condition of supervised release which delegated to a local U.S. Probation Officer the task of requiring the defendant to secure prior approval from his probation officer before opening any checking, credit, or debit account (Nash was convicted of fraud).

Does United States Probation have too much authority or too little? What about travel restrictions placed on defendants while on Supervised Release? Fair on unjust? Throw your jabs and lets hear some comments.

More Departures From U.S. Attorney's Office

Kenneth Blanco, Deputy Chief of the U.S. Attorney's Office is off to D.C. He has been named Chief of the Narcotics and Dangerous Drugs Section at the Department of Justice. Ken has been at the U.S. Attorney’s Office in Miami since 1998 and had recently applied for the position of the U.S. Attorney for the Southern District of Florida.

AUSA David Buckner is also moving on. After 8 years with the U.S. Attorney’s Office in Miami he is entering private practice. David’s last case was a memorable one as he argued the en banc appeal in the case of the five Cuban spies.

It goes without saying that Miami is losing two very good federal prosecutors with lots of experience. Yet strangely, it appears that they have been hiring mostly younger prosecutors as of late with a lot less trial experience. Thoughts?

More on this topics in an article by Julie Kay in Tuesday’s Daily Business Review.

Tuesday, February 21, 2006

News and notes

Well, we picked a jury in Savannah today. We started at 9AM and were done by 2PM. When the case is over, I will have more commentary on federal jury selection. I have posted previously on eliminating the peremptory challenge.

Busy day at the Supremes. There was a Blakely cert grant. Abortion debate is back in DC. But I know most of you were following the hallucinogenic tea case. Today, the High Court -- per Roberts -- allowed the small church to continue drinking it (to the disgust of the DEA) so that they could connect with God. Right about now, I could use some of that tea. (The Court took no action in the Padilla case, so right now it's full steam ahead for the trial to proceed in September in front of Judge Cooke).

Excuse the slow blogging while I'm in trial... I'm hoping Seitles and Anon will pick up the pace...

Friday, February 17, 2006

Padilla to remain detained

So ordered Judge Marcia Cooke. Padilla had appealed his detention (ordered by Judge Garber) to the district court. At a hearing this morning, that appeal was denied. Initial coverage here, here and here.

Tuesday, February 14, 2006

Issues involving Cuba

1. The en banc argument in the Cuban Spy case was today. Here's some coverage. AUSA David Buckner argued for the government and AFPD Richard Klugh argued for the defense. Two Harvard grads going at it...

2. AUSA Dexter Lee is asking Judge Moreno to dismiss the case filed by the 15 Cubans who landed on the wrong bridge (which was not considered U.S. soil by the U.S.). See here.

Padilla Challenges Detention

In depth article by Julie Kay in today's Daily Business Review about the alleged "dirty bomber." Here are some highlights. Lawyers for Jose Padilla have appealed Magistrate Judge Garber's pre trial detention order. In their appeal, his lawyers contend that Mr. Padilla's application may be a fraud. The Government argued at the detention hearing that Mr. Padilla completed the form in 2000. Defense lawyers also assert that the government did not present evidence that Mr. Padilla could speak Arabic and therefore understand the contents of the form, or that he ever adopted the Arabic name Abu Adallah al Mujahir. Justice Department lawyer Stephanie Pell explained at the hearing that the application was authenticated by a cooperating government witness. One of the most interesting assertions in the appeal is that there were apparently more than 50,000 phone calls in the alleged 8 year terrorism conspiracy, and Padilla participated in only seven conversations. Defendant's counsel believes that Padilla should be released because he has signficant family ties to this community and to the United States and that he is not a flight risk.

The case is presently set for trial in September before U.S. District Judge Judge Marcia Cooke. Hard to argue that this case should not be added to the list of one of the most high profile cases ever in the Southern District of Florida. Thoughts?

Monday, February 13, 2006

Aleman releases jailed lawyer Adam Katz...

...according to the Miami Herald.

New federal courthouse

I'm in Savannah, but found a computer and ran across this DBR article about the new federal courthouse. Here's an excerpt:

The heavily fortified and architecturally unique Wilkie D. Ferguson Federal Courthouse in Miami is scheduled to open this fall, more than a year behind schedule. Completion of the $163 million courthouse — in the works for 15 years — was slowed by change orders, contractor delays and hurricanes, according to U.S. District Judge K. Michael Moore, who has overseen the project. But the biggest reason for the setback, Moore said, is that dozens of louvers controlling air intake and exhaust had to be removed and replaced due to water infiltration from Hurricane Wilma. The issue of who bears financial responsibility for the mistake — architects Arquitectonica and HOK or contractors Dick Corp. of Pittsburgh and EllisDon Construction of Canada — is in dispute. “We have to concentrate on fixing it now and then figure out who was responsible,” Moore said.

Saturday, February 11, 2006

Lawyer jailed in state court

I really don't cover the state court system and this blog is dedicated to this federal district, but I couldn't help but notice this article about Broward State Judge Cheryl Aleman jailing a lawyer for 60 days for not appearing for court. For those state practioners who think the federal judges are rough, I've never heard of such a thing. Anyone have any good contempt stories from our district?

Judge Ungaro and red tape don't mix

"Bureaucracy doesn't exist to serve itself. It exists to serve the people.'' Well said by Judge Ungaro as she "lashed out" at a government lawyer representing the Justice and Homeland Security departments and the U.S. Citizenship and Immigration Services. Anyone who has ever had to deal with the red tape of the immigration system knows how frustrating it can be.

Friday, February 10, 2006


Judge Moreno continues to lead the "funniest judge in the district" poll, but there have been whispers that the poll is not valid because it did not include Magistrate Judge Klein. Sorry about the oversight!

Thursday, February 09, 2006

Reverse Venue Issue

On February 14, 2006, the en banc 11th circuit will hear oral argument on the venue issue for the Cuban Five.

Now, the opposite issue has arisen in front of Judge Cohn. Here the Cuban exile defendants are claiming that the feds should not have brought the case against them in Ft. Lauderdale where there is barely any connection to the crime. Instead, they argue, the case should be transferred to Miami where the firearms were actually seized because in Miami they will receive a jury of their peers. ''[T]he government ignored the overwhelming ties of parties and witnesses to Miami-Dade and maneuvered to improve its chances of securing convictions by minimizing, if not eliminating, the participation of Cuban Americans in the petit jury and in the grand jury that returned the indictment,'' wrote their lawyers, Ben Kuehne, Dennis Kainen, Kendall Coffey and Arturo Hernandez. See the Herald article here.

I wonder how CABA will react to this. They just filed an amicus brief supporting the government in the 11th Circuit on the venue issue arguing that it was discriminatory for the panel to hold that the spies could not get a fair trial in Miami... Will they support the defense or the prosecution on this issue? I'm sure the spies are going to cite this case as an admission from the government as to jury dynamics in Miami.

Defenders of the government on this issue argue that if venue is even arguably proper in Ft. Lauderdale, the U.S. Attorney's office should not be faulted for bringing the case there if it thinks it will get a more favorable jury... Thoughts?

Wednesday, February 08, 2006

DBR covers our new Circuit Justice

Carl Jones does a nice job explaining the ramifications of our Circuit Justice changing from Kennedy to Thomas in today's Daily Business Review (UPDATE -- available from here). We covered that change here. Here's an excerpt from Jones' article:

On Feb. 1 Chief Justice John G. Roberts Jr. assigned Thomas to oversee the 11th Circuit. The move was part of a shuffle following the confirmation of Justice Samuel Alito Jr. The power to grant emergency stays is most critical in death penalty cases. But it’s also a key method of freezing judgments and judicial orders in time-sensitive legal disputes like those that arose in the end-of-life case involving Terri Schiavo and in the 2000 presidential election recount battle. If a justice denies a petition, a litigant can still ask the other eight justices, or the full court, to review the case. But experts say the chances of being granted review decrease if the justice in charge of a circuit already has denied review. Thomas’ appointment to cover the 11th Circuit makes some Florida criminal defense lawyers nervous. “I don’t perceive Justice Thomas as being particularly friendly toward death penalty defendants,” said Neal DuPree, the Fort Lauderdale-based capital collateral regional counsel for South Florida. His state agency represents death row inmates in post-conviction habeas corpus petitions.

Tuesday, February 07, 2006

Elections v. Appointments?

Over at the MJB blog, there's a lot of talk about the state judicial elections and which judges are drawing opposition. The whole election of judges thing* is amazing to me. Judges aren't really permitted to campaign, except to post lots of signs around town. There is no debating the issues. There is no platform. There is just who has the better and more electable name. Seems silly...

We have it much better over here, don't we?

*Even more amazing to me is that our state PD has to run for election. How do you campaign -- "I lost more cases than anyone else?"

Unruly defendants...

Zacarias Moussaoui, the only person to be put on trial in the United States for involvement in the Sept. 11 terrorist attacks, was ejected from a federal courtroom on Monday at the start of the jury selection process because of an outburst in which he shouted "I am Al Qaeda." He was thrown out of court a total of 4 times for his continued outbursts.

So what should the judge do? This guy shouldn't be permitted to make a mockery of the system. But there is no easy solution... Someone mentioned to me that they should muzzle him, but imagine that spectacle in Court.

Interesting contrast with Moussaoui and the Padilla defendants here in the Southern District of Florida, who have been described as courteous, respectful, and polite during court appearances. The judge in the Padilla case ordered that the defendants' shackles be removed during court.

Friday, February 03, 2006

News and notes

Some quick Friday afternoon news:

1. Judge Marcia Cooke ordered that Jose Padilla not be shackled in Court.

2. Judge William Zloch sentenced attorney Sam Burstyn to 42 months (18 months less than the 60 month statutory cap the government was asking for and 35 months more than the credit time served sentence the defense was asking for). Burstyn scored out much higher than the 60 month cap (for a 371 conspiracy) under the guidelines.

Thursday, February 02, 2006

New FBI Chief in Miami

The FBI has announced that Jonathan I. Solomon is the new special agent in charge of the FBI's Miami division. Mr. Solomon has been with the FBI for more than twenty years and had a brief stint here in South Florida in 2004. It will interesting to see how this will affect the number and types of cases prosecuted in the Southern District of Florida.


Judge Alan Gold preliminarily approved a $1.075 billion settlement between Exxon Mobil Corp. and thousands of service station dealers who were found by a jury to have been overcharged by the company, settling a 14-year fight that went to the Supreme Court. The dealers are represented by Eugene Stearns, Mark Dikeman, and Mona Markus at Stearns Weaver. Exxon has been represented by lots of lawyers. At trial it was Larry Stewart. At the 11th Circuit, it was Howrey & Simon. At the Supremes it was Carter Phillips. And during the claims administration process it was Hunton & Williams and Burlington Weil. Fourteen years after the case was filed and after losing at every level of federal court, Exxon finally relented.

Disclosure -- Mona is my lovely wife.


... being used to smuggle drugs. Yikes. Here's a pic of the pups and the liquid heroin.

Wednesday, February 01, 2006

Our new Circuit Justice is...

... Clarence Thomas. The 11th Circuit Justice was, for a long time, Anthony Kennedy. Kennedy has been reassigned to the 9th Circuit (O'Connor's old assignment), and Thomas -- who is from Georgia -- is now assigned to us. Thomas will now be responsible for emergency motions (including death penalty emergencies) and filing date extensions.

Still no comment

Some of you have been emailing me and posting comments asking me to blog on the hearing yesterday in front of Judge Moreno regarding the Rodriguez-Orejuela brothers. I don't really feel comfortable commenting about pending cases that I'm involved with. Julie Kay did a nice job covering the hearing and so instead of commenting, I'll simply reproduce some snippets from that article:

Judge Federico A. Moreno lashed out at a federal prosecutor and deputy prison warden Tuesday, calling rules at the Federal Detention Center in Miami barring inmates from being able to meet with their lawyers in conference rooms “asinine” and “stupid.” After threatening to bring accused Cali cartel drug lords Gilberto and Miguel Rodriguez-Orejuela to his courtroom to meet with their lawyers, prosecutors agreed to alter restrictive regulations at the Special Housing Unit of the Federal Detention Center in Miami so that lawyers can meet with their clients under better conditions. “I think this is absolutely stupid, it is asinine,” Moreno yelled. “To not use a conference room when it’s empty anyway — that makes no sense. If I have to run the SHU myself, it will take the 11th Circuit Court of Appeals to stop me.” The outburst came during a hearing on whether the Rodriguez-Orejuelas should be released from the SHU unit and whether the government has knowledge about whether the brothers’ legal fees to their new attorney, David Markus of Miami, are clean. The judge exploded in anger after Markus and his co-counsel Roy Kahn of Miami argued that they are not permitted to use a conference room in the unit to meet with their clients — even though the room is usually empty — due to a prison rule that the room can only be used if four attorneys are present. Instead, they told Moreno, they have to meet them in a tiny room with no bathroom, air conditioning or water and share documents through a tiny slot in the glass.
Finally, Moreno threatened to make his courtroom available for meetings between the Rodriguez-Orejuelas and their lawyers if the prison did not accommodate them. “I don’t want to do that,” he said. “But we have bathrooms here. I can be very innovative at resolving conflicts. I have to give people access to their lawyers.”
Under assault, Assistant U.S. Attorney Matthew Axelrod, after a quick private consultation with Wombacher, agreed to change the regulations and allow the conference room to be used by any attorneys. “The policy will change,” he said. Axelrod had argued that the prison has reasons for its rules regulating the use of the conference room. He said contraband had been found in the bathroom when lawyers were allowed to use it. He also said that the policy of only allowing groups of four lawyers to use the conference room was instituted because other inmates complained that the Rodriguez-Orejuelas were meeting with their lawyers daily and monopolizing the room.
Moreno also sought to resolve the issue of whether legal fees Miguel Rodriguez-Orejuela paid Markus are clean. Markus has asked the government to review his files and inform him if they have knowledge that the fees are derived from illegal gains, but prosecutors have refused. Rodriguez-Orejuela’s previous attorney, Jose QuiƱon of Miami, said he could not satisfy himself that the fees were untainted and withdrew from the case. The issue is being closely watched by other local defense attorneys.
Moreno pressured the government to state whether it had knowledge whether the fees Markus accepted were dirty and if he could be charged with money laundering. After much questioning, Axelrod said he had no such knowledge. Moreno said neither the government nor he want to get involved in the issue because it would set policy and a precedent for future cases. “If they did it for you they’d have to do it for everyone,” he said. “You go to Washington or the appellate court to set policy. I don’t think I should meddle in the attorney-client relationship.” But he gave the government a subtle message when he told Markus, “If you were ever charged with anything, you’d have a perfect defense. You should feel good about this, confident and relaxed. You think the government would want to be the recipient of the government’s wrath? This is not a blessing, but almost.” He also said he did not think taxpayers should be footing the bill for the Rodriguez-Orejuelas’ defense. After the hearing, Markus said that he is more comfortable with his fee and will continue representing Miguel Rodriguez-Orejuela. “I’m pleased that Judge Moreno required the government to say that no crime has been committed and that no conflict exists,” he said. “It’s now on the record.”