Friday, September 30, 2011

See you Monday

Here's what's up:
1. Did Bill Buckner appearing on Curb cause the Sox to lose?
2. I love when pro-se litigants win.
4. Is this guy for real, arguing that mandatory guidelines are good? I would challenge him to a debate, but he'd never accept.

Wednesday, September 28, 2011

Rosh Hashanah news and notes

1. Former ICE chief Anthony V. Mangione made his initial appearance today in federal court on this indictment (where he drew Judge Marra). His defense lawyer is David Howard. (The Herald has more here.)

2. Speaking of Judge Marra, he has ruled that the feds should have notified the victims (via PBP):
A federal judge has paved the way for victims to continue their fight to invalidate a secret deal, which saved billionaire sex offender Jeffrey Epstein from facing serious federal charges and significant prison time.

Monday’s 14-page ruling by U.S. District Judge Kenneth Marra rejects the U.S. Attorney’s Office argument that it was under no obligation to notify victims prior to striking a non-prosecution agreement with Epstein simply because there were no federal charges filed against him.

Marra ordered that discovery in the case proceed, which means that the victims — and the public — may get access to previously secret correspondence between Epstein’s attorneys and the government.

Attorneys Paul Cassell and Brad Edwards have been fighting on behalf of Jane Does No. 1 and No. 2 to have the federal non-prosecution agreement overturned, because, they say, it was done without notice or consent of the victims, which violates the federal Crime Victims’ Rights Act.

In his ruling, Marra agrees that the language in the act provides for victims’ rights to include pre-charge proceedings.

“The government’s interpretation ignores the additional language throughout the statute that clearly contemplates pre-charge protections,” Marra wrote in his ruling.

Marra also rejects the government’s argument that “pre-charge CRVA rights could impair prosecutorial discretion and decision-making.”

Cassell, a former federal judge, called the ruling “a home run" for all victims.

3. Here's an interesting opinion on the plain view doctrine and screen savers, via Orin Kerr:
The legal question: When a computer is in screensaver mode, does a police officer’s touching a key or moving the mousepad in order to reveal the contents of the screen constitute a Fourth Amendment “search”?
The ruling: In United States v. Musgrove, 2011 WL 4356521 (E.D.Wis. 2011) (Joseph, M.J.):

Whether there is a search here is a close call because the officer did not actively open any files. A truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a “search” for Fourth Amendment purposes. Arizona v. Hicks, 480 U.S. 321, 328 (1987). However, this is not such a case. By touching a key or moving the mouse, the officer put into view the Facebook wall, which was not previously in view. Though a close call, the Court concludes that this was a search, however minimal, which required further authority, a warrant or consent. The government submits that the officer’s manipulation of the computer was for the purpose of seizing the computer, not to conduct a preliminary search. However, intent is not generally relevant in assessing whether a search ensued. See, e.g., United States v. Mann, 592 F.3d 779, 784 (7th Cir.2010)(citing Platteville Area Apt. Ass’n v. City of Platteville, 179 F.3d 574, 580 (7th Cir.1999)). The Court therefore recommends that the defendant’s Facebook wall be suppressed.

Tuesday, September 27, 2011

"Head of ICE in South Florida arrested on child porn charges"

That's the headline from the Sun-Sentinel.

Initial Florida Bar vote finds 2255 waivers unethical

Last week, the Florida Bar's Professional Ethics Committee voted 13-11 that criminal defense lawyers could not ethically advise their clients to waive their 2255 (habeas) rights in a plea agreement. Staff from the Florida Bar will now draft an advisory opinion for the committee's consideration, and the committee will consider it at its next meeting (sometime next year). The government will oppose the proposed ethics opinion.
But why? Why do prosecutors attempt to have criminal defense lawyers waive their clients' 2255 rights in a plea agreement? How can a criminal defense ethically tell his client that the client should waive a claim that he (the lawyer) is ineffective? There are conflict issues both for the prosecutor and the defense lawyer here. And yet, the government pushes these waivers, forcing the lawyer in most cases to either plead straight up.
Judge Roettger was great on these issues. He never let a defendant waive his appellate rights. Back then prosecutors didn't ask for 2255 waivers (or Booker waivers). Judge Roettger would cross the appellate waiver out of the plea agreements and ask prosecutors whether they worked for the Department of Justice or Injustice. He asked them why shouldn't an appellate court review his rulings at sentencing. What if he made a mistake?
So, SDFLA readers, what do you think? Should the government be asking for 2255 (and other waivers) or is Judge Roettger (and the Florida Bar) right that these waivers are unethical.

Monday, September 26, 2011

The trial tax

Despite this NY Times article about declining trials, this district still tries cases -- Judge Ungaro has closing arguments in a criminal antitrust case this morning; Judge Seitz is in the middle of a lengthy mortgage fraud case; Judge Cooke is starting a trial this morning. That said, the NY Times examines whether the "trial tax" is too high, forcing too many people to plead. The article focuses on state cases in Florida, but here's a snippet on the feds:

The shift has been clearer in federal district courts. After tougher sentencing laws were enacted in the 1980s, the percentage of criminal cases taken to trial fell to less than 3 percent last year, from almost 15 percent, according to data from the State University at Albany’s Sourcebook of Criminal Justice Statistics. The explosion of immigration prosecutions, where trials are rare, skews the numbers, but the trend is evident even when those cases are not included.

Nearly nine of every 10 cases ended in pleas last year, the federal data show, while one in 12 were dismissed (the percentage of dismissed cases was substantially higher a generation ago).

The number of acquittals dropped even further. Last year, there was only one acquittal for every 212 guilty pleas or trial convictions in federal district courts. Thirty years ago, the ratio was one for every 22.


Some federal prosecutors worried that their power would be weakened by a 2005 Supreme Court ruling that made sentencing guidelines advisory only. But academics say the ruling had much less effect than what some predicted as many judges still largely follow the guidelines, and the ruling did not affect other laws that have given prosecutors more power.

Friday, September 23, 2011

Friday's speed of light edition

1. Are there particles really moving faster than the speed of light? If so, this is the biggest news of our lifetime.

If not, there is still legal news:

2. Is this an effective letter to a sentencing judge by C. Coke?

3. The 11th Circuit says Florida deep-sea explorers must return 17 tons of silver coins from a sunken ship to Spain.

4. Former U.S. Attorney in DC calls federal sentencing "draconian."

5. Watch out for the falling satellite this weekend.

6. FIU posted the highest bar passage rate.

7. Yesterday, the Hispanic Bar honored Judge Jose Gonzalez at the federal courthouse. I heard that Judge Gonzalez gave a beautiful speech.

Thursday, September 22, 2011

One judge to another during oral argument: "Shut up."

Remember the tiff between Judges Sparks and Jones over the Kindergarten email sent to lawyers. Well, Judge Jones is in the news again over judicial demeanor and ethics. Above The Law has the whole story and it's a doozy. This time, Judge Jones goes at it with Judge Dennis during an oral argument (here's the recording). Here's the transcript, prepared by ABT:

MR. TURNER: I think the amount of drugs in that truck supports the intent to distribute. And the jury….

JUDGE DENNIS: Well, we’ve said over and over that the amount…. this court, no court has said that you can infer….


JUDGE DENNIS: … just on the basis of the amount of drugs …


JUDGE DENNIS: Can I, can I, can I ask a question?

CHIEF JUDGE JONES: You have monopolized, uh, uh, seven minutes….

JUDGE DENNIS: Well, I’m way behind on asking questions in this court. I have been quiet a lot of times, and I am involved in this case….

CHIEF JUDGE JONES slams her hand down on the table (loudly), stands halfway up out of her chair, and points toward the door.

CHIEF JUDGE JONES: Would you like to leave?

JUDGE DENNIS: Pardon? What did you say?

CHIEF JUDGE JONES: I want you to shut up long enough for me to suggest that perhaps….

JUDGE DENNIS: Don’t tell me to shut up….

CHIEF JUDGE JONES: … you should give some other judge a chance to ask a question …

JUDGE DENNIS: Listen, I have been in this courtroom many times and gotten closed out and not able to ask a question. I don’t think I’m being overbearing….

CHIEF JUDGE JONES: You’ve been asking questions for the entire seven minutes….

JUDGE DENNIS: Well, I happen to be through. I have no more questions.

CHIEF JUDGE JONES: I just want to offer any other judge an opportunity to ask a question. Some may support your position. If nobody else chooses to ask a question, then please go forward.

RANDOM FEMALE JUDGE WHO IS NOT EDITH JONES (timidly): I would like to ask a question about the necessity for a Sears instruction….


Tuesday, September 20, 2011


Lots of news the last few days...

-- New Federal Judges being vetted (Thornton & Rosenbaum)
-- Huge sentences for Medicare fraudsters
-- Judge Jordan's confirmation hearing was today
-- Hung jury after a long mortgage fraud trial (happy for Michael Walsh after how the case began for him)
-- Padilla case decided 2-1

Here's a little more:

-- Pacenti reports on a case in which Nevin Shapiro testified but the defense was not made aware of the pending investigation against him;

-- The NY Times covers the question of whether jurors should be required to sign a pledge under penalties of perjury that they won't search the internet about the case while sitting as jurors, while the NY Post asks whether a prosecutor can work as a dominatrix.

-- I know the feds like to keep lawyers at the podium, but this may be a bit too far -- a judge has given authority to marshals to in their discretion SHOCK a lawyer representing himself if he strays from the podium. An anklet has been installed that will administer the shock. Seriously.

Monday, September 19, 2011

Mistrial in 4 month long mortgage fraud trial

This was trial #2 in the cop mortgage fraud trial, where trial #1 resulted in 4 of the 6 defendants being acquitted. For the second group of defendants, the jury hung, and I'm told it was 10-2 for acquittal. I feel for Judge Cohn, the defendants, their lawyers, and the prosecutors. This was an excruciatingly long trial. Is the government going to retry these defendants? As I've said before, I don't think retrials in cases like these are appropriate:

I'm not sure why a prosecutor should be able to retry a case after he couldn't convince a jury to convict. Isn't that reasonable doubt? To force someone to defend against two federal trials is impossible in every way -- financially and emotionally. The government had its shot in what was a controversial prosecution. Now time to go after a real criminal.

11th Circuit decides Padilla case 2-1

Here is the opinion .

Judge Dubina writes the majority, which Judge Pryor joins, affirming the conviction and reversing Jose Padilla's 17 year sentence as too low. Judge Barkett dissents on both the conviction and sentencing holdings. In total, there are 120 pages of opinions. This case seems destined for Supreme Court review.

More to follow...

Friday, September 16, 2011

BREAKING -- Rumors regarding district judge openings UPDATE -- Rumors confirmed!

Well, this wouldn't be printed if it were a newspaper or a legitimate publication, but because this is a blog, and I trust my sources, I am going to post the rumor that is being whispered about around town. Again, this isn't confirmed, but if it's being discussed at La Loggia, it can be discussed here too.

As we all know, 4 names were sent up by the JNC to fill Judge Gold's seat. Apparently, the White House is vetting two of those names, John Thornton and Robin Rosenbaum -- one to fill Judge Gold's seat and one to fill Judge Jordan's seat (see below; his confirmation hearing is next week).

If the rumor is true, congrats to Judges Thornton and Rosenbaum!

If anyone out there can confirm or refute this rumor, please email me and it will remain anonymous. Thanks.

UPDATED -- It's confirmed. Congratulations to Judge Thornton and Judge Rosenbaum! Here's hoping that the President and Senate move quickly.

Judge Jordan's confirmation hearing next week

It's set for Tuesday, September 20. That was quick -- Well done to the adminsitration for moving this nomination forward. After his hearing, then he will get written questions from the committee and then there will be a vote. Looks like Judge Jordan may be on the 11th by sometime in November.

Now we need to get Bob Scola confirmed. He is #19 on the list of district judges waiting confirmation, so if they do a few per week, we are looking at October for Judge Scola.

Things are starting to move, which is nice.

Big shout out to Dore Louis for his posting over the past two days. Good stuff.

Thursday, September 15, 2011

Great Ruling on Strange Issue

By guest blogger, Dore Louis

Judge Cooke has just issued an Order in an interesting matter.

In July of this year, Governor Scott signed into law Fla. Stat. § 790.338, which contained a few odd provisions. Basically, the statute provided a basis to impose sanctions upon a doctor or health care provider who asks a patient about gun ownership or otherwise discriminates against a patient because of gun ownership.

"According to the State’s legislative findings, the State passed the law in reaction to an incident in Ocala, Florida, where a physician advised the mother of a minor patient that she had thirty days to find a new pediatrician after the mother refused to answer questions about firearms in her home."

Governor Scott is our Tea Party Governor. Big free market ideas...'let the market sort it out, government shouldn't be telling us what to do, etc.'; so it seems odd to me that he would sign into law a regulation that mandates a physician treat a patient who that physician does not want to treat because he/she owns a gun. Free market theory would instruct that if there are enough gun owners in the marketplace, the physician will either change his/her ways or go out of business.

Turns out the reason the pediatrician was doing what he/she did, was because the American Academy of Pediatrics counsels physicians to give guidance on gun safety. We don't want kids like this walking around, no matter how cute they are.

But why should politics make sense? Thankfully, Judge Cooke is able, through her thoughtful order, to make sense of subjects I was not particularly good at in Law School - First Amendment and Preliminary Injunction Law. What are those standards?

"At issue in this litigation is a law directed at maintaining patients’ privacy rights regarding firearm ownership within the context of the doctor-patient relationship. In effect, however, the law curtails practitioners’ ability to inquire about whether patients own firearms and burdens their ability to deliver a firearm safety message to patients, under certain circumstances. The Firearm Owners’ Privacy Act thus implicates practitioners’ First Amendment rights of free speech. The Act also implicates patients’ freedom to receive information about firearm safety, which the First Amendment protects."


"The State has attempted to inveigle this Court to cast this matter as a Second Amendment case. Despite the State’s insistence that the right to “keep arms” is the primary constitutional right at issue in this litigation, a plain reading of the statute reveals that this law in no way affects such rights. The right to keep arms refers to the right to “retain,” “to have in custody,” and “to hold” weapons, including firearms."


"I will not speak to the wisdom of the legislation now before me. Questions of a law’s constitutionality do not create “a license for courts to judge the wisdom, fairness, or logic of legislative choices.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). The First Amendment, however, “was not designed to facilitate legislation,” whether wise or not. FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 503 (2007) (Scalia, J., concurring). Based on the foregoing, I find that Plaintiffs have a substantial likelihood of succeeding on the merits of their constitutional challenge."


"Each of the factors for a preliminary injunction weighs in Plaintiffs’ favor. For that reason, the Plaintiffs’ Motion for Preliminary Injunction (ECF No. 16) is GRANTED. The State is preliminarily enjoined from enforcing § 790.338(1), (2), (5), and (6). The State is also preliminarily enjoined from enforcing § 790.338(8), to the extent that it provides that violations of § 790.338(1) and (2) constitute grounds for disciplinary action. The State is further preliminarily enjoined from enforcing § 456.072(1)(mm), to the extent that it provides that violations of § 790.338(1), (2), (5), and (6) shall constitute grounds for which disciplinary actions specified under § 456.072(2) may be taken."

I am a bit saddened that there were no Yosemite Sam references. Here is the Order.

Wollschlaeger Order

Wednesday, September 14, 2011

Federalist Society Panel

By Guest Blogger, Dore Louis

Last night the Federalist Society hosted an event at the Banker's Club entitled "War Zone or Crime Scene: Walking the Tightrope of Justice Ten Years After September 11th."

The panel included every person who held the position of US Attorney since 9/11 - Guy Lewis, Marcos Jimenez, Alex Acosta, Jeff Sloman, Wilfredo Ferrer, and acting Federal Public Defender Michael Caruso, who proved a bit elusive to the camera. Neal Sonnet moderated.

The night included everything one might expect a Federalist Society event to have: a well-stocked bar and plenty of time to mingle; a book co-authored by John Yoo, gifted to the panel members; a regional CIA recruiter mingling with the guests (no joke); Marshals to protect the dignitaries; and, the obligatory "Osama"...oops..."I sometimes say "Obama"" joke by a panelist.

All in all, it looked as if it was going to be a 'hanging jury' for Michael. As anybody who knows Michael would expect, Michael shined.

The discussion was very interesting and quite non-partisan. Essentially, it was a walk trough the history of the US Attorney's Office in the Southern District of Florida, from 9/11 onwards. Michael did a great job adding color to the other side of the equation - bringing home the impact that ramped up prosecutions for offenses such as routine immigration violations or the effects prolonged isolated confinement have on people.

Guy Lewis led off. He talked about how he and other members of the office sat watching the terrorist attacks unfold on 9/11 and the eerie "radio silence" that prevailed from DOJ during the attacks. 16 of the 19 hijackers had either lived in the Southern District or otherwise had connections here, and they were simply not on the radar. The day after 9/11 GL convened a meeting of federal and local law enforcement and began to redirect the priority of the office from prosecution of offenses such as violent crime, cyber crime and money laundering to the prosecution and prevention of terrorism.

Marcos Jimenez took over after GL left to D.C., and one of his first impressions was how much the office changed from when he had been a AUSA. MJ really gave the audience a good feel for how much pressure a US Attorney feels while in the office, including the fear that his efforts would not be enough to prevent an attack from happening. MJ specifically mentioned port security and the nightmare scenario that something would happen on a cruse ship, and bunch of people would get killed and he would have "egg on his face."

Other than Michael (who I admit to being partisan to and who will always have my vote), Dean Alex Acosta was the most impressive speaker of the night. I did not realize what an intellectual the guy is. AA gave a terrific overview of military tribunals in the United States, going back to Nazi spies in the beginning of WWII. Whether you agree or disagree with the policies the government pursued post-9/11, it is very apparent that AA had thoroughly thought through the legal basis for the actions taken, and would be able to provide justification for each and every one. Frankly, if AA presents like this always, I fully expect to be calling him Judge in the future - if that is what he is after.

Jeff Sloman, who had been involved in terrorism prosecutions and investigations before 9/11, spoke to a concern that was raised by MJ. Radicalized people who are willing to die for a cause. Such concerns led to cases such as the Liberty City 7 case, that were targeted at neutralizing threats before they became capable of carrying out a terrorist act.

Willy Ferrer was obviously more constrained in what he could say because he is the current US Attorney - he was able to provide statistics and a broad overview of efforts that are ongoing to prevent terrorist acts. But what WF said that struck me most, was the mention of his law school class mate - Geoffrey Cloud, who went to work in the World Trade Center on 9/11 and was killed in the attacks.

I am certain that people like WF, who lost friends during 9/11 will not forget the destruction of that day. Whether you agree or disagree with the policies that our government pursues, folks like those who hold the office of US Attorney in the Southern District of Florida are tasked with keeping us all safe. I want them to remember that day, and I want that memory to drive them to do the best job they can.

Whether ultra left or ultra right, we all hate terrorism and want our government to keep us safe. That is the point that Michael was really able to drive home - yes, we need to be kept safe, but at the same time, we need to protect our Constitutional liberties and hold true to the values that have made us this great Nation.

How far can law enforcement can go to protect us? God forbid something terrible happens again - law enforcement did not go far enough. In the name of terrorism prevention, continue prosecuting immigrants who try to sneak into America with the sole intention of working hard and earning a living - too far.

It is a very difficult question to address, and the reason that we should all encourage participation in more events like the Federalist Society panel discussion. That organization and its leadership deserve a lot of credit for gathering the panelists together to attempt to confront the issues.

The threat is real, it is deadly, and we do not want the people protecting us to forget it.

- Bette and Peter Cloud, the parents of terrorist attack victim Geoffrey Cloud of Sudbury, speak about their son to people gathered for a 9/11 remembrance at the September 11th Memorial Garden at Heritage Park in Sudbury Sunday.

Tuesday, September 13, 2011

Kindergarten cop

District Judge Sam Sparks recently got the attention of blogs and email lists with his "Kindergarten Order."

Edith Jones, the Chief Judge of the 5th Circuit, wasn't happy with the order and sent Judge Sparks this email:

Dear Sam, It has not escaped my attention, or that of my colleagues or, I am told, nationally known blog sites that you have issued several ‘cute’ orders in the past few weeks. The order attached below is the most recent. Frankly, this kind of rhetoric is not funny. In fact, it is so caustic, demeaning, and gratuitous that it casts more disrespect on the judiciary than on the now-besmirched reputation of the counsel. It suggests either that the judge is simply indulging himself at the expense of counsel or that he is fighting with counsel in what, as Judge Gee used to say, is surely not a fair contest. It suggests bias against counsel. No doubt, none of us has been consistently above reproach in our professional communications with counsel. We are all prone to human error. But no judge who writes an order should allow such rhetoric to overcome common sense. Ultimately, this kind of excess, as I noted, reflects badly on all of us. I urge you to think before you write. Sincerely, Edith Jones.

Ouch. According to the Texas Lawyer, Jones wasn't happy her email got out:

Jones declines comment on the substance of the e-mail but says she was “saddened” that it had been released to others, including Texas Lawyer. “It’s an internal matter,” Jones says. “And I’m saddened that somebody breached the intended limited scope of the intended distribution.”

What do you all think of Sparks' initial order and Jones' email? I guess all of this could segue into the discussion of the new Florida Bar rule on civility, but I'm tired after watching the Dolphins last night so I can't think of a witty way to do it.

Monday, September 12, 2011

Federal Courthouse in WPB evacuated this morning (UPDATED -- Courthouse reopened)

From the PBP:

A federal courthouse in Florida has been evacuated while authorities investigate a suspicious vehicle parked nearby.

West Palm Beach police spokesman Chase Scott says a police dog alerted to the possibility of explosives inside the rental van after 8 a.m. Monday. It was being checked because of unspecified derogatory comments written on the outside of the van.

A post office and a state health department building were also evacuated.

A police bomb squad and Homeland Security Department officials were among those responding to the situation.

Authorities have been on heightened alert nationwide for potential terrorist activity coinciding with the 10th anniversary of the Sept. 11 attacks.

UPDATE -- OK, back to work. The courthouse has been reopened. Here's the coverage:

West Palm Beach Police have determined that a "suspicious van" parked across from the federal courthouse downtown is not a threat and begun the process of clearing the scene, according to police spokesman Chase Scott.

He said hundreds of workers are being let back into the federal courthouse, Florida Health Department, U.S. Post Office and other surrounding buildings.

It's still unclear why a police bomb-sniffing dog alerted on the rental box-style moving van this morning, Scott said. It could have been some previous cargo in the unattended vehicle, which had been parked "for at least a day."

But the van's side panel attracted attention with the block-lettered message: "Google Edgar Bushey. Frank Baker PBSO lied and did no investigation" - a message that Scott characterized as "anti-law enforcement."

"Given the date, the location, the fact that it was a rental vehicle, has (anti-law enforcement) graffiti all over it," Scott added, "We were taking an abundance of precautions."

The van is being impounded and is now the subject of a West Palm Beach police investigation, he said. It is unclear who owns the van. A Google search of the name, "Edgar Bushey," takes one to a website and seemingly official documents regarding a 1995 sexual assault investigation.

Is Big Brother spelled GPS?

That's the question Adam Liptak asks in his weekend NY Times piece on the upcoming Supreme Court case:

In a series of rulings on the use of satellites and cellphones to track criminal suspects, judges around the country have been citing George Orwell’s “1984” to sound an alarm. They say the Fourth Amendment’s promise of protection from government invasion of privacy is in danger of being replaced by the futuristic surveillance state Orwell described.

In April, Judge Diane P. Wood of the federal appeals court in Chicago wrote that surveillance using global positioning system devices would “make the system that George Orwell depicted in his famous novel, ‘1984,’ seem clumsy.” In a similar case last year, Chief Judge Alex Kozinski of the federal appeals court in San Francisco wrote that “1984 may have come a bit later than predicted, but it’s here at last.”

Last month, Judge Nicholas G. Garaufis of the Federal District Court in Brooklyn turned down a government request for 113 days of location data from cellphone towers, citing “Orwellian intrusion” and saying the courts must “begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine.”

The Supreme Court is about to do just that. In November, it will hear arguments in United States v. Jones, No. 10-1259, the most important Fourth Amendment case in a decade. The justices will address a question that has divided the lower courts: Do the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time?

Their answer will bring Fourth Amendment law into the digital age, addressing how its 18th-century prohibition of “unreasonable searches and seizures” applies to a world in which people’s movements are continuously recorded by devices in their cars, pockets and purses, by toll plazas and by transit systems.

The Jones case will address not only whether the placement of a space-age tracking device on the outside of a vehicle without a warrant qualifies as a search, but also whether the intensive monitoring it allows is different in kind from conventional surveillance by police officers who stake out suspects and tail their cars.

There's also some interesting stuff in the DBR today, like Brian's op-ed (which I can't comment on since I'm still litigating the case), and Pacenti's article about the local jails.

Wednesday, September 07, 2011

News and Notes

1. Lots of people (91 in total and 45 in Miami!) charged with Medicare Fraud today.

2. Psychics get bond. But they knew that already.

3. Check out this footnote at the end of the opinion in United States v. Smith, which held that an appellate waiver was enforceable: After this opinion was written, the government filed a motion to withdraw its previously filed brief, which had argued that the appeal waiver applies, to vacate the sentence, and to remand for resentencing under the decision in United States v. Rojas, 645 F.3d 1234 (11th Cir. 2011). The motion admits that the sentencing appeal waiver does apply but states that the government has now “determined that it is appropriate under the circumstances to forego reliance upon the appeal waiver provision in this case.” OK, now what?

UPDATE -- I missed the continuation of the footnote on the next page:

The primary circumstance cited in the government’s motion is that Attorney General Eric Holder has changed the Department of Justice’s policy on whether the Fair Sentencing Act applies to cases in which the defendant was sentenced after enactment of that legislation. There has not, however, been any change in the law concerning sentence appeal waivers, and it is on the basis of the waiver that we are deciding this case. Sentence appeal waivers serve interests of the judiciary as well as interests of the government and defendants. See United States v. Bascomb, 451 F.3d 1292, 1296–97 (11th Cir. 2006) (interests of the government and defendants); cf. Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627 (1977) (recognizing
that plea bargains benefit all concerned, including the judiciary). And once an appeal arrives in this Court it is our responsibility to see that it is decided correctly under the law. For these reasons, the government’s motion is denied.


Wesley Snipes loses bid for new trial in the 11th Circuit

Here's the unpublished opinion affirming the denial of his motion for new trial.

From the AP:
The 11th U.S. Circuit Court of Appeals rejected the appeal by Snipes, who was convicted in 2008 on three misdemeanor counts of willful failure to file income tax returns.

His defense lawyers contended they received emails from former jurors reporting misconduct among other members of the panel. One of the former jurors said in the email that three other jurors acknowledged they had determined Snipes was guilty before the trial began.

A federal court rejected the request for a new trial and noted that there were reasons to question the veracity of the allegations made in the emails. The 11th Circuit upheld the ruling on Tuesday, finding that there wasn't "strong, substantial and incontrovertible evidence" that would warrant a new trial.

Tuesday, September 06, 2011

Miami Herald profiles Judge Jordan

Jay Weaver does a nice job here. From the article:

As an undergraduate at UM, Jordan was a walk-on with the Hurricanes baseball team. He would joke to friends that he played “left bench.”

Relatives, friends and peers always described “Bert” Jordan as “scary smart,” a whiz kid.

He excelled as a political science major before finishing second in his UM law-school class. He earned a spot on the Law Review. One of his articles was on the use in legal filings of sports metaphors, entitled “Imagery, Humor and Judicial Opinion,’’ which “simply celebrates the prankster and poet in all of us.”

In 1987, Jordan applied to all nine U.S. Supreme Court justices for a clerkship. O’Connor granted him an interview. She picked him and three others from a field of 10.

But before he went to Washington, Jordan spent a year working for 11th Circuit Judge Thomas Clark in Atlanta.

Back then, he told The Miami Herald that he was following an “unwritten rule” that says clerking for a federal judge is a prerequisite for a Supreme Court clerkship. Quipped Jordan: It applies to “anyone who’s not at Harvard or Yale.”

And the Palm Beach Post rightfully calls for Obama to get this done quickly:

There is no need for such delay over Judge Jordan, an American success story. He came to the U.S. from Cuba as a 6-year-old with his parents. After receiving his bachelor's and law degrees with honors from the University of Miami, he clerked for former Supreme Court Justice Sandra Day O'Connor, worked in private practice and served as a federal prosecutor before becoming a judge at only 38.

Normally, when senators from both states agree on a judicial nominee, he or she is confirmed without controversy. Sen. Marco Rubio, a Republican, would be the one to raise any opposition. According to his press aide, though, Sen. Rubio "has heard nothing but positive things about Judge Jordan, and he looks forward to presenting his nomination before the Judiciary Committee for its consideration." The Senate confirmed Judge Jordan 93-1 in 1999. The result now should be about the same.

Friday, September 02, 2011

Friday notes

Sorry for the slow blogging this week. A couple quick hits before the nice long weekend:
1. No kindergarten party for lawyers after all. (WSJ)
2. What's going to happen with Clemens? We'll find out soon. (
3. Pleading and buyer's remorse (NYT)
4. Fascinating comments by jurors in the MS-13 gang case (
5. DC Circuit divided on 3 evidence cases (BLT)
That's all I got today. Hope you have a nice weekend.