Thursday, September 30, 2010


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

Really? Who watches these things?

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


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

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


Tuesday, September 28, 2010

Baby steps

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

Some other quick hits:

Anna Nicole is back before the High Court.

Al Capone walked again.

It's raining.

Formal Friday in Jacksonville.

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

Your friendly neighborhood blogger.... back from the Middle District.

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

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

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

Friday, September 24, 2010

Three-week-old news

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

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

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

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

Thursday, September 23, 2010

Judge Gold and the EPA face off

Back in April, having granted summary judgment largely to the plaintiffs in an Everglades environmental suit, Judge Gold told the EPA to quit dragging its feet and clean up the Everglades. A hearing was set for October 7 at which the EPA administrator was to explain to the court why the agency had failed to comply with various orders. Everglades-Swamp.jpgOn September 8, the EPA filed a 9-page motion saying that head Lisa Jackson was too busy to personally attend and would send her Water guy instead. The plaintiffs filed a 9-page response saying that it would really be helpful if Lisa herself came since, you know, this has been going on a long time already and there are lots of things that need to be cleared up. (I’m paraphrasing here.) And then Judge Gold entered a 9-page order saying that the EPA could bring anyone they wanted, as long as Lisa Jackson was among them. Money quotes:
Despite knowing for approximately five months that the EPA Administrator was ordered to appear at the hearing, Defendants now move—one month prior to the October 7, 2010 hearing—for a substitution of appearance.

In sum, Defendants have not demonstrated any showing of a matter of national importance, issue, or great significance to preclude the EPA Administrator—a named party—from attending the hearing. Rather, as recognized by all parties, protection of the Everglades is of considerable national importance. The Court's findings regarding the past actions of all Defendants, including the EPA, reveal how this litigation has continually persisted over the course of years. The Court must be able to make an intelligent inquiry regarding the EPA's position and policy matters, to be addressed by the EPA Administrator.
Well, the EPA filed a notice of appeal referencing that order yesterday. That's what they meant when they told the Herald they were “working with the Department of Justice to respond to the judge’s order.”

Tuesday, September 21, 2010

Get out your red pens

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

Trials in the news

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

images.jpegWEB_Pasano_Michael_color.jpgPasano’s tax fraud trial is in this district, before Judge Zloch, and since I can’t readily link to the DBR, I’ll again follow D.O.M.’s lead and liberally quote from it:
Michael Pasano, a partner at Carlton Fields in Miami, on cross-examination accused [government witness] Habib Levy of trying to hide assets from the government of Venezuela. He also brought up an affair the married Levy had with a woman who worked for Cohen Assor at a perfume business in Paris.

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

A sign of the times

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

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

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

Monday, September 20, 2010

I hope this goes to trial

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

How is this not a bigger deal?

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

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

Friday, September 17, 2010

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

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

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

Thursday, September 16, 2010


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

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

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

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

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

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

Wednesday, September 15, 2010

Quick hits

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

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

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

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

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

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

4. Justices Ginsburg and Kagan know how to parttyyyyyyyyyyyyy.

Tuesday, September 14, 2010


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

The Northern District is hearing the health care lawsuits:

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

Vinson is an interesting judge:

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

In other news, confessions don't work.

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

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

Sunday, September 12, 2010

Football Sunday

Let's go Fins.

Some weekend news:

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

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

Friday, September 10, 2010

Jonathan Goodman investiture today at 2pm (UPDATED)

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

Update -- it was a great ceremony.

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

Wednesday, September 08, 2010

Short week

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

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

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

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

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

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

Tuesday, September 07, 2010

Tuesday morning notes

Here's some fun to get your week started:

In other news:

1. SFL covers political law clerks.

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

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

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

Friday, September 03, 2010

Random Friday thoughts

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

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

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

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

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

Thursday, September 02, 2010

Wednesday, September 01, 2010

Judge Carnes on the Armed Career Criminal Act

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