Monday, December 30, 2013
But before you do, know that other top hit posts were mostly the scoops regarding JNC lists, judges, and magistrates -- including Robin Rosenbaum being vetted for the 11th Circuit seat and the Rubio/Thomas blue slip controversy. With these posts in particular (of the almost 2,500 in total), the blog was able to fulfill its mission of getting District news out quickly and accurately to the local federal court family.
Friday, December 27, 2013
The nomination of Miami-Dade Circuit Judge William Thomas to fill a federal judicial vacancy is illustrative. Mr. Thomas, if confirmed, would become the first openly gay black man to serve on a federal bench. After first recommending him, Sen. Rubio withdrew support, citing concern over two rulings — even though a prosecutor whom the judge ruled against in one case wrote the senator in support of Judge Thomas. Mr. Rubio’s office points out that he has supported some of President Obama’s judicial picks; critics say opposition to Judge Thomas is rooted in anti-gay politics.
As 2016 approaches, the presidential campaign will pick up speed. Given Sen. Rubio’s obvious political appeal, he should be a strong contender for his party’s nomination if he chooses to run, but his political calculus should not require support for an agenda that does not fit the needs of a large, diverse state like Florida.
Read more here: http://www.miamiherald.com/2013/12/21/3830328/rightward-shift.html#storylink=cpy
Thursday, December 26, 2013
Thousands of prisoners are serving life without parole for nonviolent crimes. Gleeson, who is neither naive nor sentimental (as a prosecutor, he sent mobster John Gotti to die in a supermax prison), knows that most defendants who plead guilty are guilty. He is, however, dismayed at the use of the threat of mandatory minimums as “sledgehammers” to extort guilty pleas, effectively vitiating the right to a trial. Ninety-seven percent of federal convictions are without trials, sparing the government the burden of proving guilt beyond a reasonable doubt. Mere probable cause, and the meager presentation required for a grand jury indictment, suffices. “Judging is removed,” Gleeson says, “prosecutors become sentencers.” And when threats of draconian sentences compel guilty pleas, “some innocent people will plead guilty.”
Barack Obama, Attorney General Eric Holder and Sens. Pat Leahy (D-Vt.) and Rand Paul (R-Ky.) are questioning the regime of mandatory minimum sentences, including recidivism enhancements, that began with the Anti-Drug Abuse Act of 1986. Meanwhile, the human and financial costs of mass incarceration mount.
2. The 11th Circuit came out with a big Christmas present for Dudley Bryant -- a habeas win on a Begay/savings clause issue:
Petitioner Dudley Bryant appeals the district court’s dismissal of his 28 U.S.C. § 2241 habeas petition, brought pursuant to the “savings clause” in 28 U.S.C. § 2255(e). Bryant’s appeal presents the issue to which this Court alluded in Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), and subsequently left undecided in Gilbert v. United States (Gilbert II), 640 F.3d 1293 (11th Cir. 2011) (en banc), cert. denied, 132 S. Ct. 1001 (2012), and Williams v. Warden, 713 F.3d 1332 (11th Cir. 2013). The issue is whether the savings clause in § 2255(e) permits a federal prisoner to bring a § 2241 petition when he has established that his current 235-month sentence for an 18 U.S.C. § 922(g) conviction exceeds the 10-year statutory maximum penalty authorized by Congress under 18 U.S.C. § 924(a).
When a conviction has become final, a federal prisoner usually may challenge the legality of his detention only through a § 2255 motion. However, the savings clause in § 2255(e) permits the prisoner to file a § 2241 habeas petition when a § 2255 motion was “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). After review of the record, the briefs of the parties and the amicus, and having the benefit of oral argument, we conclude Bryant has satisfied the savings clause’s requirements in § 2255(e).
Bryant has proven that his prior § 2255 motion was “inadequate or ineffective to test the legality of his detention” and that his § 2241 petition can now proceed under § 2255(e) because: (1) from the time of his initial sentencing in 2002 throughout his first § 2255 proceeding in 2005, our Circuit’s binding precedent in United States v. Hall, 77 F.3d 398, 401-02 (11th Cir. 1996), held that a concealed-firearm offense under Fla. Stat. § 790.01 was a “violent felony” under § 924(e) and squarely foreclosed Bryant’s claim that he was erroneously sentenced above the 10-year statutory maximum penalty in § 924(a); (2) subsequent to Bryant’s first § 2255 proceeding, the Supreme Court’s decision in Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), set forth a new standard to evaluate which crimes constitute violent felonies under § 924(e), and Begay, as interpreted by United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008), and United States v. Canty, 570 F.3d 1251, 1255 (11th Cir. 2009), overturned our Circuit precedent in Hall; (3) Begay’s new rule is substantive and applies retroactively to Bryant’s § 924(e) claim on collateral review; (4) as a result of pure § 924(e)-Begay error and retroactive application of Begay, Bryant’s 235-month sentence exceeds the 10-year statutory maximum authorized by Congress in § 924(a); and (5) the savings clause in § 2255(e) reaches his claim of illegal detention above the statutory maximum penalty. Accordingly, we vacate the district court’s dismissal of Bryant’s § 2241 petition and remand with instructions set forth herein.
We first review the procedural history of Bryant’s case, the savings clause in § 2255(e), and our Circuit’s prior rulings about § 2255(e). We then summarize the five specific requirements a § 2241 petitioner must satisfy to proceed under § 2255(e) and explain why Bryant has satisfied them.
3. President Obama's six (!) nominees are ready for confirmation. Georgia Democrats are not happy about the lack of diversity and the deal cut with Republicans, but it looks like that ship has sailed. From the Daily Report:
President Barack Obama's six federal judicial nominees in Georgia appear poised for Senate consideration after years of delay in filling seats on the U.S. Court of Appeals for the Eleventh Circuit and U.S. District Court for the Northern District of Georgia.
The White House announced late Thursday that Obama had selected Northern District Chief Judge Julie Carnes for the Eleventh Circuit. The president also tapped four lawyers and judges to fill spaces on the Northern District, including one to replace Carnes, a 1992 appointee of President George H.W. Bush.
Those five nominees join Jill Pryor, a partner at Bondurant, Mixson & Elmore who was nominated by Obama for the Eleventh Circuit nearly two years ago. She was blocked by Georgia Sens. Saxby Chambliss and Johnny Isakson, but they appear to back all six nominees now.
The district court nominees are Judge Michael Boggs of the Georgia Court of Appeals, Mark Cohen of Troutman Sanders, Leigh Martin May of Butler, Wooten & Fryhofer, and Judge Eleanor Ross, a DeKalb County State Court judge.
Tuesday, December 24, 2013
Prominent Miami criminal defense attorney Larry Handfield, the former chairman of the Public Health Trust, Jackson Health System’s governing board, has quietly pleaded guilty to filing false tax returns.
The criminal conviction is a surprising chapter in the career of Handfield, 57, one of South Florida’s most prominent African-American lawyers and civic leaders.
Handfield will serve 12 months of probation after he pleaded guilty late last month in Miami federal court to two misdemeanor tax-evasion charges. He must repay $78,842 in restitution to the government.
He is now facing an inquiry from the Florida Bar, which regulates the state’s lawyers.
“This was a seven-year-old matter, and when it was brought to my attention, I fully cooperated with the government and the matter was resolved with a misdemeanor,” Handfield said Monday.
Handfield said he has already paid the government the money and he expects his probation to be terminated by the end of the month.
Handfield, a Miami native, is well known in South Florida legal circles. Over the years, governors have appointed Handfield to several statewide commissions — including Florida’s Commission on Ethics.
Read more here: http://www.miamiherald.com/2013/12/23/3834811/prominent-miami-attorney-larry.html#storylink=cpy
Monday, December 23, 2013
Even Florida has a Festivus pole:
A Nativity scene, a Festivus pole and a chair holding fake pasta with eyeballs and an accompanying “provHerb” from the Church of the Flying Spaghetti Monster have been allowed to be shown as displays at the Florida Capitol.Here's a picture of Chaz Stevens and his Festivus pole in the Florida Capitol:
However, the officials making the decisions are drawing the line with Satan.
The Department of Management Services emailed The Satanic Temple on Wednesday, telling the group its proposed display of an angel falling from heaven into an open fire was “grossly offensive.”
And the spaghetti display, which was allowed (the sign says “A closed mouth catches no noodly appendages. – ProvHerbs 3:27.”):
Friday, December 20, 2013
President Barack Obama has nominated a federal judge from Atlanta to serve in the 11th Circuit Court of Appeals.
White House officials said in a statement Thursday that U.S. District Court Judge for the Northern District of Georgia, Julie E. Carnes, has been nominated to serve in the court of appeals.
Officials say Carnes has served as a federal judge in Georgia since 1992, and has been the District Court's chief judge since 2009.
Officials say Carnes was born and raised in Atlanta, graduated from the University of Georgia School of Law in 1975, and served on the editorial board of the Georgia Law Review.
White House officials say Carnes began her legal career as a clerk for a U.S. Court of Appeals judge in 1975.
Some additional facts: She was an AUSA before becoming a judge. She was nominated by President Bush to the district court. She clerked on the 5th Circuit (Lewis Morgan) and also served on the Sentencing Commission.
Thursday, December 19, 2013
The situation the officers confronted in the instant case bears none of these indicia of an urgent, ongoing emergency. The officers here did not receive an emergency report regarding an ongoing disturbance, but rather a service call regarding what appeared to be a bullet hole, which circumstances known to the officers indicated had been made at least 39 hours prior to when the officers made entry.5
When Officer Martin first arrived at the apartment building, she did not encounter a tumultuous scene, nor were the officers met with chaos when they returned to the building the next day. The officers observed no violent behavior, nor did they see or hear evidence that a fight had taken place or that anyone had been injured, other than finding a single bullet hole.
Nor did the officers have any information that would lead them to suspect that Timmann might be suicidal, or that he might be home (in fact, the absence of his work vehicle indicated that he was likely not at home). Considering the totality of the circumstances, it was not reasonable for the officers to believe that someone inside Timmann’s apartment was in danger and in need of immediate aid. Therefore, we find that the District Court erred in holding that the emergency aid exception justified the officers’ warrantless entry into Timmann’s apartment.
Congratulations to AFPD Brenda Bryn for the appellate victory and AFPD Chantel Doakes for preserving the issue in the trial court.
Tuesday, December 17, 2013
Thomas’ supporters in the legal community say Rubio is unfairly distorting the judge’s record to pander to the Tea Party and other Republican right-wingers.Other news:
Thomas would be the first openly gay African-American federal judge.
Tuesday’s rally is being led by Rev. Carl Johnson, of Miami’s 93rd Street Baptist Church.
“He is well trained in the law. He has a good, honest and discerning character that makes him an outstanding judge,” Johnson said of Thomas, a longtime state court judge.
The group of between 30 and 40 supporters will rally Tuesday outside Rubio’s West Miami-Dade Office, 8669 NW 36th St., at 10:30 a.m.
-- Lewis, Tein & Calli win. Again. This time it's Judge Thornton who issued the sweeping victory.
-- Judge Seitz orders kosher meals at state prisons by July 1 for "all prisoners with a sincere religious basis for keeping kosher." I'd have a sincere belief in just about anything to get out of eating the slop they try to pass as food in state prisons.
-- A federal judge has blocked the NSA spying program because it violates the 4th Amendment. From the NY Times:
A federal district judge ruled on Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution, describing its technology as “almost Orwellian” and suggesting that James Madison would be “aghast” to learn that the government was encroaching on liberty in such a way.
The judge, Richard J. Leon of Federal District Court for the District of Columbia, ordered the government to stop collecting data on the personal calls of the two plaintiffs in the case and to destroy the records of their calling history. But Judge Leon, appointed to the bench in 2002 by President George W. Bush, stayed his injunction “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues,” allowing the government time to appeal it, which he said could take at least six months.“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” Judge Leon wrote in a 68-page ruling. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment,” which prohibits unreasonable searches and seizures.
Monday, December 16, 2013
"The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."
Or the prosecutor:
"Protecting the constitutional rights of the accused was just not very high on this prosecutor's list of priorities. The fact that a constitutional mandate elicits less diligence from a government lawyer than one's daily errands signifies a systemic problem: Some prosecutors don't care about Brady because courts don't make them care."
At Judge Kopf's blog, he recommends having prosecutors turn over everything to the defense to make sure these complaints can't be lodged. I've never heard a good response to this proposal.
Some other notes:
- Albert Lichy, Judge Huck's former law clerk, wrote an op-ed in the DBR, titled: DOJ's Shift in Corporate Prosecutions: Too Big to Ignore. The conclusion:
A retreat of any degree from federal prosecutors' reliance on DPAs to resolve corporate criminal investigations would be utterly misguided. The risk of another Arthur Andersen-style collapse is much too high to justify any added measure of deterrence a criminal conviction offers. While many are quick to criticize the Justice Department for maintaining a de facto policy that some institutions are too big to jail or take to trial, few have offered a convincing argument for why the perceived benefit of a conviction outweighs its potential costs. Corporate defendants, unlike their individual counterparts, can't go to jail—however big or small. They don't suffer the same reputational harm as a branded criminal. Nor do they lose any fundamental constitutional rights. A conviction is purely symbolic. But in pursuing this symbolic gesture, prosecutors are needlessly creating the risk of emitting a systemic shock through the financial system—one that's too big to ignore.
The cautionary note Attorney General Eric Holder sounded in 2002 in arguing against the indictment of WorldCom is as appropriate today as it was then: "to ensure that even more innocent Americans are not harmed, prosecutors must not give in to the pressures of the day and feel compelled to indict more corporations simply because they can."
- Alyson Palmer is doing a great job covering the 11th Circuit appointment process. Here are recent articles here and here covering how the Judge Rosenbaum may be confirmed quickly and who is being interviewed for the open Alabama seat (Judge Dubina).
Tuesday, December 10, 2013
I also want to thank Dave Ovalle for writing this obituary, which captures a lot of great stories about him.
He was almost 60 in this picture. 60! I wish I looked that good now.
And here he is recently, in his 80s:
Thursday, December 05, 2013
2. Judge Mark Bennett is (rightfully) railing on the federal sentencing guidelines. Via CNN:
Nearly 30 years ago, Congress embarked on a remarkable and ultimately tragic transformation of criminal law. Through the establishment of mandatory sentences and sentencing guidelines, discretion in sentencing was shifted from judges to prosecutors.3. Didn't the AG say that he was trying to fix the sentencing problem? Yes, but apparently, he is saying the right things but not actually doing much. According to the Atlantic:
After the changes, prosecutors largely controlled sentencing because things like mandatory sentences and guideline ranges were determined by decisions they made.This change ignored the fact that federal judges are chosen from the ranks of experienced members of the bar precisely because their long legal careers have shown the ability to exercise discretion.It also ignored the contrasting truth that many federal prosecutors are young lawyers in their 20s and 30s who have little experience making decisions as weighty as determining who will be imprisoned and for how long.
The primary reason for the changes was well-intended, though: Members of Congress wanted more uniformity in sentencing. That is, they wanted a term of imprisonment to derive from the crime and the history of the criminal rather than the personality of the person wielding discretion.After nearly 30 years, we know how Congress' experiment turned out, and the results are not good. Federal judges have been relatively lenient on low-level drug offenders when they have the discretion to go that way. Turning discretion over to prosecutors via mandatory sentences and guidelines not only resulted in a remarkable surge in incarceration, it does not seem to solve the problem of disparities.
When the justices of the United States Supreme Court confer Friday morning to consider new cases they will have the opportunity to accept for review a dispute that tests not just the meaning of their own recent Sixth Amendment precedent but the viability of a major new policy initiative implemented this summer by the Justice Department to bring more fairness to federal sentencing while reducing the terrible costs of prison overcrowding.
In Gomez v. United States, a Massachusetts case, the justices have been asked to determine whether they meant what they wrote about juries and drug sentences in Alleyne v. United States, decided just this past June, and at the same time whether Attorney General Eric Holder meant what he said, in August, when he promised to curb the ways in which his federal prosecutors abuse "mandatory minimum" sentences in drug cases to obtain guilty pleas (or higher sentences).
The justices should accept this case for review. And the Court should affirm the just principle that a man cannot constitutionally be sentenced based upon charges that are not brought or upon facts a jury does not even hear. But even if the justices aren't willing to muster up that level of indignation, they ought to at least take the opportunity to call out federal prosecutors for saying one thing in front of the microphones and another in court papers.
4. Here's a great story about how a reporter was able to break the Bonds grand jury testimony. Right place, right time. If you were the reporter's lawyer, would you have had the guts to tell him to go forward?
5. Irfan Khan is suing the federal government for malicious prosecution. Any chance to play this:
6. Texas Rangers Leonys Martin Tapanes was apparently kidnapped and extorted, leading to federal charges. The Herald has the details:
Leonys Martin Tapanes seemed like yet another Cuban baseball player with tremendous promise when he signed a $15.5 million contract with the Texas Rangers in 2011.
But there apparently is a darker story behind Martin’s climb from poverty to Major League Baseball success.
The U.S. attorney’s office in Miami on Wednesday charged three people — Eliezer Lazo, 40, formerly of Miami Lakes, Joel Martinez Hernandez, 37, formerly of Miami-Dade, and Yilian Hernandez, 30, of Hialeah — with conspiring to smuggle, kidnap and extort the 25-year-old Rangers outfielder.
The trio are also charged with smuggling 13 other Cuban baseball prospects to the United States — all of them going from Cuba into Mexico and then into the United States.
Yilian Hernandez, arrested Wednesday by Homeland Security and FBI agents, will have her first appearance in Miami federal court Thursday. Lazo and Martinez are currently serving respective prison sentences of five and seven years for 2012 money-laundering convictions related to Medicare fraud.
7. Finally, the blog gets a little shout out in the DBR for breaking the story yesterday on the two new federal judges being vetted:
The White House is vetting Miami-Dade Circuit Judges Beth Bloom and Darrin Gayles for two open positions on the federal bench in Miami, a legal blog reported.
The Southern District of Florida blog, which is associated with the Daily Business Review, said the judges were picked from among four finalists selected by the Florida Federal Judicial Nominating Commission in August. Miami-Dade Judges Peter Lopez and John Thornton rounded out those on the short list.
Both Bloom and Gayles are serving in the civil division.
The openings were created when U.S. District Judge Patricia Seitz took senior status last November and plans by U.S. District Judge Donald Graham to take senior status this month.
Tuesday, December 03, 2013
Both are current state judges on the Circuit bench. Judge Bloom received her JD from the University of Miami in 1988, and Judge Gayles received his JD from George Washington in 1993. Gayles has ties to the federal system as a former Assistant U.S. Attorney in the late 90s. Both will make excellent federal judges.
Five veteran South Florida federal prosecutors are taking buyouts, the Daily Business Review has learned.
The assistant U.S. attorneys who have opted to take the buyouts are Grisel Alonso, Kerry Baron, Carole Fernandez, Aloyma Sanchez and William White, according to sources.
Alonso, who served for 26 years, and Sanchez, who worked in the office for 23 years, were in the civil financial litigation unit when they took early retirement. Baron was a criminal prosecutor, White was in the national security section, and Fernandez was in the civil division handling most Freedom of Information Act litigation.
All were in the Miami office except for Baron, who worked in West Palm Beach.
Sanchez said the Justice Department offers buyouts on an irregular basis. The assistant U.S. attorneys who spoke to the Daily Business Review didn't want to talk financial specifics but said it included a $25,000 bonus.
Monday, December 02, 2013
Rumpole is giving out free (and good!) trial advice. No jury trials in January. The conventional thinking is that the Thanksgiving to Christmas window is a wonderful time to try cases because jurors are more forgiving. Thoughts?
Meantime, the Supreme Court can't find enough cases to hear. From the WP:
It’s the result of a diminished docket at the court, one with the potential of a historic low. So far, the justices have found fewer cases than usual worthy of receiving full briefing and oral argument.
According to Scotusblog, the independent Web site that tracks the court’s proceedings, the justices are about 10 cases short of what they normally would have taken at this point of the term.
The court has almost total discretion over its docket and accepts about 1 percent of the petitions its receives. At least four of the nine justices must agree to take a case, and attorneys, law professors and legal experts love to speculate on why the court takes so few.
There’s the view that the law clerks who review the petitions are reluctant to suggest their bosses take a case, for fear the case might not turn out to be a good vehicle. There is a theory that the court’s deep ideological divide makes agreement difficult, or that the lack of major legislation from Congress gives the court less to interpret.
But some things simply haven’t worked out the way the justices planned. For instance, the court decided to examine Oklahoma’s new abortion restrictions. But first it asked for clarification from the state’s highest court on the breadth of Oklahoma’s law restricting drug-induced abortions.
When the state court said that the law would virtually eliminate all nonsurgical abortions, the Supreme Court simply let stand the lower court’s decision that it was unconstitutional. There was no explanation, but the justices apparently were looking for an opportunity to decide the more narrow issue on when the drugs could be prescribed.
Another case — on a fundamental civil rights rule that a public policy may be found discriminatory because of its results, rather than any biased intent — was scuttled when the lawsuit was settled just before oral arguments.
The court got rid of one case after it became clear during oral arguments that it had fundamental flaws that prevented the justices from deciding the broader issues at hand.
Justice Antonin Scalia scolded one of the lawyers in the age-discrimination case for not doing of better job of telling the court all the reasons “why we shouldn’t have taken it in the first place.”
In the parlance of the court, the case was DIGged — “dismissed as improvidently granted.”
Your Monday moment of zen:
Wednesday, November 27, 2013
1. Attorney Frank Excel Marley III was convicted yesterday. Paula McMahon explains:
A South Florida lawyer was found guilty Tuesday of stealing about $1.3 million from the Seminole Tribe of Florida in a fraud conspiracy that went on for several years.
Frank Excel Marley III, 39, of Southwest Ranches, was convicted of one count of wire and mail fraud conspiracy and six counts of theft from Indian tribal organizations after a jury trial in federal court in Fort Lauderdale. The jury found him not guilty of three other counts of theft from the tribe.
Prosecutors told jurors that Marley had submitted bills to the tribe – that were inflated by more than $1 million – in a conspiracy that went on between 2006 and 2011.
Marley, who has been free on bond since his arrest earlier this year, was released pending his sentencing on Feb. 21.
2. Curt Anderson has this interesting story about a blast from the past:
While we are thinking about old times, here's a good one from the Wire:Federal drug agents are investigating a Florida aircraft leasing business operated by two former champion race drivers who are suspected of providing airplanes to South American drug traffickers, according to court documents and interviews.
Agents from the U.S. Drug Enforcement Administration, FBI and Homeland Security Department raided the Fort Lauderdale offices Monday of World Jet Inc., which is controlled by brothers Don and Bill Whittington. They raced in the Indianapolis 500 and other tracks, teaming up with a third driver to win the France's 24 Hours of Le Mans race in 1979.
Later, both brothers pleaded guilty for their roles in a $73 million marijuana smuggling ring that authorities said financed their racing careers.
Now, according to a DEA search warrant affidavit that relies on several confidential informants, the Whittingtons are suspected of illegally leasing aircraft from Florida to cocaine cartels and laundering drug-related profits through a hot springs resort hotel and a ranch in Colorado.
Mia Ro, a DEA spokeswoman in Miami, confirmed her agency is leading the investigation but declined to provide details. Agents were seen carrying boxes of records and other items from World Jet's offices at Fort Lauderdale Executive Airport on Monday.
No charges have been filed. An employee at World Jet hung up Tuesday when telephoned for comment, and the Whittingtons did not respond to email messages. It wasn't clear if they had attorneys related to the DEA probe.
According to the DEA, World Jet leases or sells aircraft to drug traffickers in Colombia, Venezuela, Mexico and Africa at inflated prices, keeping the plane under the Whittington name or that of a third party and maintaining a U.S. tail number. After a certain period, the aircraft is returned to World Jet.
"In the event that the aircraft is seized pursuant to a narcotics interdiction, both parties can deny responsibility and World Jet Inc. can reclaim the aircraft," the DEA said in the affidavit, filed in Colorado federal court.
Tuesday, November 26, 2013
Christina Kitterman, one of the lawyers who formerly worked for Rothstein at his Las Olas Boulevard law firm, was charged in August with lying to some of Rothstein's investors to help keep his fraud afloat.
On Friday, a federal judge granted a request from Kitterman's defense attorney, Valentin Rodriguez, to force Rothstein to testify – as a defense witness – in her trial, which is tentatively scheduled for Jan. 6 in federal court in West Palm Beach.
"[Kitterman's] request to compel the production of Scott Rothstein at trial is granted," Senior U.S. District Judge Daniel T.K. Hurley wrote in his order.
But the judge also ruled that Kitterman will have to pay the full cost of moving Rothstein from wherever he is being held, the cost of providing security for him, his prison lodging in South Florida, and the tab for sending him back when he's done.
That happened because prosecutors seemingly were not planning to call Rothstein on their side of the case, a position they did not explain in their court filings.
"The [U.S.] Marshals Service requires a minimum of ten days' notice in order to produce the witness, and that the defendant must bear the cost, in advance, of the transportation, housing and security attendant to the witness' production," Assistant U.S. Attorney Lawrence LaVecchio wrote in court records.
The location where Rothstein is serving his punishment has remained top secret because prosecutors and prison officials think he could be in danger because of his cooperation against people with ties to organized crime. Though Rothstein gave a series of depositions under tight security in the federal courthouse in Miami in late 2011 and 2012, the public and reporters were forbidden from attending. Official transcripts were released later.
Yours truly was also quoted along with some other lawyers:
"The government can't just hide an exculpatory witness and ask for exorbitant amounts of money to produce her accuser so she can confront him in court," said Richard Rosenbaum, a Fort Lauderdale defense attorney who is not involved in the case.
Rosenbaum said he heard from attorneys representing other defendants accused by Rothstein that it would cost an estimated $20,000 to bring Rothstein to testify in South Florida. The U.S. Marshals Service did not immediately reply to a request for comment.
Though Rothstein's allegations are documented on a transcript, Rosenbaum said Kitterman's defense can't "cross-examine the transcript."
Recent revelations in court that Rothstein was helping his soon-to-be ex-wife Kim hide and sell more than $1 million worth of jewelry – after Scott Rothstein was supposedly cooperating and coming clean with prosecutors – have inflicted further damage on Rothstein's trustworthiness as a witness and could make him helpful to the defense, Rosenbaum said.
"It shoots his credibility to pieces," Rosenbaum said of the violation of Rothstein's agreement with prosecutors to tell the truth and confess all of his crimes. "It's also great fodder for the defense when they have Scott on the witness stand … because there he is basically double-timing the prosecution."
David Oscar Markus, a criminal trial and appellate lawyer based in Miami, agreed.
"Rule No.1 of criminal law is 'never trust a rat.' When you're talking about Scott Rothstein, the rat of all rats, Rule 1 is gospel. The feds should know better, but they generally ignore Rule No. 1," Markus said.
Monday, November 25, 2013
The Herald's Julie Brown has all of the details:
Earl Sampson has been stopped and questioned by Miami Gardens police 258 times in four years.
He’s been searched more than 100 times. And arrested and jailed 56 times.
Despite his long rap sheet, Sampson, 28, has never been convicted of anything more serious than possession of marijuana.
Miami Gardens police have arrested Sampson 62 times for one offense: trespassing.
Almost every citation was issued at the same place: the 207 Quickstop, a convenience store on 207th Street in Miami Gardens.
But Sampson isn’t loitering. He works as a clerk at the Quickstop.
So how can he be trespassing when he works there?
It’s a question the store’s owner, Alex Saleh, 36, has been asking for more than a year as he watched Sampson, his other employees and his customers, day after day, being stopped and frisked by Miami Gardens police. Most of them, like Sampson, are poor and black.
And, like Sampson, many of them have been cited for minor infractions, sometimes as often as three times in the same day.
Saleh was so troubled by what he saw that he decided to install video cameras in his store. Not to protect himself from criminals, because he says he has never been robbed. He installed the cameras — 15 of them — he said, to protect him and his customers from police.
Since he installed the cameras in June 2012 he has collected more than two dozen videos, some of which have been obtained by the Miami Herald. Those tapes, and Sampson’s 38-page criminal history — including charges never even pursued by prosecutors — raise some troubling questions about the conduct of the city’s police officers.
The videos show, among other things, cops stopping citizens, questioning them, aggressively searching them and arresting them for trespassing when they have permission to be on the premises; officers conducting searches of Saleh’s business without search warrants or permission; using what appears to be excessive force on subjects who are clearly not resisting arrest and filing inaccurate police reports in connection with the arrests.
“There is just no justifying this kind of behavior,’’ said Chuck Drago, a former police officer and consultant on police policy and the use of force. “Nobody can justify overstepping the constitution to fight crime.”
But Miami Gardens isn't backing down. They are somehow defending the cops:
Mayor Oliver Gilbert said the allegations made by Saleh about police misconduct are untrue. The city has reached out to him in the past and he hasn’t been cooperative, he said.
“We have repeatedly asked the owner of the store to provide information so we can investigate his allegations and he has refused,” Gilbert said.
However, public records, obtained by the Herald, show that Saleh did provide videos to the city. The state attorney also issued a subpoena for the videos last year, and Saleh and his attorney complied. It’s not clear what, if any, action was taken. The state prosecutor’s records were not yet available on Friday.
“I gave them seven videos,’’ Saleh said. “I gave them to the internal affairs commander, Gary Smith.”
Saleh added that after he filed the internal affairs complaint in August 2012, one of the officers he complained about, Michael Malone, confronted a customer who was part of the complaint.
Saleh said that after the officers started harassing him, his employees and customers, he began to doubt that police were conducting an impartial investigation, and he did stop cooperating. He said that should not have stopped them from collecting their own evidence, given the seriousness of the complaint.
“What about their own video, the videos that officers are supposed to take from their cars?” Saleh asked, contending that each time an officer turns on his lights, the vehicle’s dashboard cam is supposed to activate. Saleh said he requested copies of the police videos corresponding to the arrests he recorded and was told the videos didn’t exist.
“They didn’t exist because the officers never put their lights on,’’ Saleh said.
Police documents show that the city ended its investigation of Saleh’s internal affairs complaint earlier this year, claiming that the storekeeper did not provide sufficient evidence.
Saleh and his attorney say they have spent about $20,000 — most of which was paid to the city for public records — to obtain documents that show police and city leaders conspired to violate the civil rights of its citizens through a program of racial profiling, false arrest, illegal search and seizure and intimidation.
They intend to file a federal civil rights lawsuit early next week against the city.
This is some great investigative reporting by the Herald and not just regurgitation of government press releases. Kudos.
Wednesday, November 20, 2013
This case, of course, presents one of the rare instances in which showing deference and comity to the State Court would benefit a federal defendant. But here, in contrast to our usual practice, the Majority shows no comity and no deference to an order of the State Court clarifying the terms of the sentence that it imposed on Mr. Garza-Mendez. The Majority’s refusal to credit the State Court’s clarification of its own sentence is perplexing, especially given that, in my experience, we do not scrutinize State Court judgments in the same way when they result in a harsher sentence for criminal defendants.
The dissent’s assertion that we use comity only when it increases a defendant’s sentence is off the mark. When comity aids defendants in reducing federal sentences, the overwhelming probabilities are there would be no appeals. The dissent does not cite one case in the posture of this case, where defense counsel obtained a clarification order of a state-court sentence well after the state procedural period for challenging the sentence had expired to attempt to alter a later federal sentence in federal court. Under the circumstances of this case, the district judge determined the subsequent state-court clarification order was not entitled to deference, because of the unambiguous language of the sentencing order as well as federal statutory and circuit law. The dissent’s charges impugning the integrity of our court are both outrageous and totally unfounded.
Tuesday, November 19, 2013
Justice Sonia Sotomayor issued a dissent, in which Justice Stephen G. Breyer joined in part, from the denial of certiorari in Woodward v. Alabama, No. 13-5380. In news coverage, Mark Sherman of The Associated Press reports that "Justice Sotomayor faults Ala. death sentences." And Lawrence Hurley of Reuters reports that "Supreme Court declines to hear Alabama death penalty case."Tom Goldstein explains what all of this means at SCOTUSblog: "What you can learn from opinions regarding the denial of certiorari."
Justice Samuel A. Alito, Jr. issued a statement respecting the denial of the petition for writ of certiorari in Martin v. Blessing, No. 13-169. In news coverage, Lawrence Hurley of Reuters reports that "U.S. justice airs concerns about using race in picking lawyers."
And Justice Alito also issued a dissent, in which Justice Antonin Scalia joined, from the denial of certiorari in Rapelje v. McClellan, No. 12-1480.
Today’s order list from the Court included three opinions respecting the denial of certiorari – i.e., denials of review in which the Justices felt strongly enough about the issue that they went to the effort of writing separately. Almost always, when a Justice votes to review a case but there are not enough votes to grant certiorari (four are required), the dissent is not publicly noted. So the parties and lawyers – and litigants in later similar cases – have almost no way of knowing whether the issue generated any interest at the Court.Meantime, trial started for Frank Excel Marley III, a lawyer accused of stealing more than $1 million from the Seminole Tribe. Paula McMahon has the details:
Two of the opinions today were traditional dissents from the denial of certiorari. In a habeas corpus case, Rapelje v. McClennan, Justice Alito wrote an opinion (joined by Justice Scalia) arguing that the Court should review the decision by a court of appeals on how to review a summary order of a state court. In a death penalty case, Woodward v. Alabama, Justice Sotomayor wrote an opinion (joined by Justice Breyer) arguing that the Court should review Alabama’s practice of permitting judges to override juries’ death penalty recommendations. The two cases illustrate that frequently Justices Scalia and Alito will view the federal habeas laws as imposing the most significant constraints on overturning convictions, while Justices Breyer and Sotomayor will have the most interest in considering issues related to the administration of the death penalty.
The more interesting opinion to me as a matter of Supreme Court practice is Justice Alito’s opinion respecting the denial of certiorari in Martin v. Blessing. In an opinion of this kind, a Justice agrees that certiorari should be denied but emphasizes that the denial of review does not endorse the lower court’s ruling. Sometimes the opinion notes a procedural flaw in the case that prevents Supreme Court review. But sometimes there is a further subtext: the opinion is a warning shot that some anomalous practices should be stopped without the Court ever having to get involved. ...
Marley's former legal assistant, Maria Hassun, 66, of Coral Gables, pleaded guilty to her role earlier this year and agreed to testify against her boss.
She is scheduled to begin serving a year and a day in federal prison on Dec. 13 but prosecutors said they will recommend a sentence reduction for her if she testifies truthfully against Marley. She must also repay $148,658 to the tribe.
Marley's attorney, Bruce Zimet, told jurors Monday that his client is part African-American and part Native American and is still owed a lot of money for unpaid work he did for the tribe. Marley "made millions and millions of dollars" for the tribe and protected them from losing millions.
Marley "became a pawn in a war of power" between factions in the tribe, Zimet said.
And Hassun is a liar who gained Marley's trust, then defrauded him, Zimet said. Hassun told prosecutors that she acted on Marley's instructions when she inflated invoices that were submitted to the tribe.
The prosecution says Marley committed fraud by padding his legal bills and charged for services, travel, phone calls and meetings "that did not occur."
Monday, November 18, 2013
Judge Sykes asked Justice Thomas how the Court has changed over the 22 years he has served on the Court, alluding to various SCOTUS developments of the past two decades, such as the rise of a specialized Supreme Court bar. But as Robert Barnes put it in the Washington Post, CT “didn’t seem particularly interested in Sykes’s questions about the workings of the modern court.” That’s a fair characterization, in light of Justice Thomas’s concise summary of life as a justice:
There are a lot of briefs, and people doing a lot of talking. I mean, it’s law.With that attitude, it’s no wonder that Justice Thomas has been silent all these years (at least in terms of asking questions of counsel during oral argument).
But don’t mistake his lack of participation in oral argument for boredom or disinterest. He talked about how a clerk just brought him a draft opinion in a pending case, apologizing for how boring the issue is — by the way, if you have a boring case under submission at SCOTUS, Justice Thomas might be writing your opinion — and he disagreed with that clerk. He explained to Judge Sykes how much he enjoys his work at the Court:
Even the most boring cases are fascinating to me….No, I’m not exaggerating the Oprah-esque outpouring of love. As Robert Barnes put it, in an article entitled Clarence Thomas: The Supreme Court’s most happy fella, “the 65-year-old Thomas was full of ‘love’: for his colleagues, for his law clerks, for his life.”
I love the cloistered life; I was in the seminary. I love my law clerks. I have this wonderful work to do.
But not, it should be noted, for stare decisis. Justice Thomas — who must have a Word macro that says, “this case does not raise / the parties have not argued [issue X], but in an appropriate case, this Court should revisit [issue X] — had the following exchange with his interlocutor:
Judge Sykes: Stare decisis doesn’t hold much weight with you?Cue the standing ovation. To quote Justice Willett again, #Nerdvana.
Justice Thomas: Oh it does. But not enough to keep me from going to the Constitution.
Justice Thomas is patient enough to wait for history to catch up with him, comparing some of his jurisprudence to “a fine wine — it just needs aging.” He noted that it took the first Justice Harlan, author of the great dissent in Plessy v. Ferguson, sixty years to be vindicated.
The high-stakes cases, which cluster toward the end of the Term, can produce tension and frayed nerves. Judge Sykes asked Justice Thomas about this, and whether he’s eager to escape the building by summer. CT diplomatically responded that he doesn’t really have such problems, which led Justice Scalia to call out from the audience: “I get out of there as soon as I can!”
Friday, November 15, 2013
1. The comments to the last post got interesting. Go weigh in.
2. Amy Howe of SCOTUSblog spoke to the Federal Bar Association in Miami on Wednesday. It was a great talk to a packed house. She said that if she and Tom Goldstein sell the blog, they plan on staying on to continue their roles in running it.
3. Ted Cruz says the Obama administration is taking "radical" positions before the Supreme Court because it loses 9-0 a lot. From the BLT:
According to Cruz, who headed Morgan Lewis & Bockius’s Supreme Court and appellate practice until his was elected to the Senate in 2012, the Obama administration is not pursuing “reasonable litigating positions within the bounds of ordinary discourse. These positions are extreme, and they are united by one thing: an embrace of unchecked federal government power.”4. Russell Adler was suspended for 90 days. From the Sun-Sentinel:
As an example, he pointed to U.S. v. Jones, which involved the government’s bid to place a GPS tracking device on a suspected drug dealer’s car without a warrant. “If the Obama Justice Department had prevailed, the federal government would be able to electronically track all of our movements,” he said. “Let me mention an aside. For those of you who have cell phones, please leave them on. I want to make sure President Obama hears everything I say.”
Adler's lawyer, Fred Haddad, called the suspension an overreaction to misconduct that would have resulted in a reprimand if Adler had not been connected to Rothstein.Gotta love Fred Haddad.
"This all comes about because he was, like millions of others, wounded by Rothstein," Haddad said. "Russell Adler has been very successful after leaving that firm. He'll be back, when this suspension is over, same as ever – on top, trying cases and winning."
It's still not clear whether Adler will face criminal charges in connection with his association with Rothstein, who is serving a 50-year prison sentence after pleading guilty to federal charges in 2010.
Adler agreed to pay $350,000 to settle a civil suit in 2011 filed by bankruptcy attorneys looking to recover money for investors scammed by Rothstein's firm.
"Who knows what the feds are going to do," said Haddad, who challenged Rothstein's credibility as a witness who could implicate others in his wrongdoing. "He's less reliable now than when he was a lawyer. He can't be trusted."
5. It's the 150th anniversary of the Gettysburg address, and lots of people are giving their rendition of it here. (I'd like to hear Haddad!). You can watch Crist, Rubio, Wasserman-Schultz, and even Alyssa Milano. I like this Colbert rendition:
Tuesday, November 12, 2013
11th U.S. Circuit Court of Appeals
The 11th U.S. Circuit Court of Appeals represents Alabama, Florida, and Georgia. Its territory comprises the highest percentage of blacks—approximately 25 percent—of any federal judicial circuit in the country. Today, there are eight judges on "active" status on the bench there and eight more on "senior" status. Of these 16 jurists, only one is black—Judge Charles Wilson, who was appointed by President Bill Clinton in 1999. Judge Wilson, in turn, replaced Judge Joseph Hatchett, the first black judge ever to serve in the 11th Circuit since its creation in 1981. There has never been a black female judge on the 11th Circuit.
There have been six vacancies on the 11th Circuit since President Obama took office in January 2009. He has not nominated a single black man or woman to fill them. He has nominated instead one Latino man and four white women. The Senate has confirmed two of these nominees—Adalberto Jordan and Beverly Martin, both of whom were Clinton district court appointees. As set forth below, there is currently a vacancy, for an "Alabama" spot on the 11th Circuit, that is so new the White House has not yet named a nominee for it.
By contrast, four of the 15 judges currently on the 4th U.S. Circuit Court of Appeals are black (two of whom were appointed to their post by President Obama, the other two by President George W. Bush). The territory of the 4th Circuit comprises a slightly smaller percentage of blacks—23 percent—than does the 11th Circuit. Even the 5th U.S. Circuit Court of Appeals, still by far the most conservative in the nation, has two black federal appeals judges—one appointed by President Obama, the other by Bill Clinton.
The black population of Florida in 1970, the first census year following the Voting Rights Act of 1965, was 15.3 percent. Today, according to U.S. Census Bureau figures, it is 16.6 percent. Today, only three of the state's 37 federal trial judges are black women. The first, Marcia Cooke, arrived on the bench just nine years ago, a nominee of George W. Bush. The second, Mary Scriven, arrived in 2008, another Bush nominee. The third, Charlene Honeywell, was nominated by President Obama during his first term.
There are currently four federal district vacancies in Florida (and a fifth is on its way). To the spot vacated by the aforementioned Jordan, the president has nominated the aforementioned Thomas, who would become the first openly gay black man to serve on the federal bench. The president has nominated another black man, Brian Davis, to another federal district position in Florida. Senator Rubio withdrew his hold on the Davis nomination in September but still opposes the Thomas bid. That leaves three vacancies for which the White House has not yet made a nomination.
One of those trial court vacancies was created recently by a promotion. Last week, to replace Judge Rosemary Barkett on the 11th Circuit, President Obama nominated a white woman named Robin S. Rosenbaum. He had appointed Judge Rosenbaum only last year to a spot in the Southern District of Florida, which she will leave if confirmed to the 11th Circuit. So there is no black 11th Circuit nominee from Alabama. And no black 11th Circuit nominee from Florida. Judge Wilson, the Clinton appointee, still stands alone.
The blog got a huge boost in credibility when it hired veteran reporter Lyle Denniston, who began covering the Supreme Court during the Eisenhower administration. Goldstein attracted a deep-pocketed sponsor in Bloomberg Law, the legal research unit of Bloomberg LP, and says he now spends $500,000 a year on the blog. The relationship with Bloomberg is in its third and final year, Goldstein said.I'm also putting this blog for sale if anyone is interested... We'll start the bidding at $1 million.
Next year, Goldstein said he intends to sell SCOTUSblog. To that end, he wants a formal press credential for Denniston, whose pass is courtesy of a Boston public radio station for which he works only rarely, and maybe even Howe.
The formal recognition he seeks is part of a series of moves aimed at making SCOTUSblog more attractive to prospective buyers. "We put more effort into covering the Supreme Court than any other organization in American history," Goldstein says, including in his claim even specialty legal publications like the American Lawyer.
The court, though, has remained noncommittal about how to treat SCOTUSblog. Court spokeswoman Kathy Arberg said she is reviewing the credentialing process for the first time in nearly 40 years. "We won't act on any pending requests until we have completed that process," Arberg said.
In other news, Kim Rothstein is to be sentenced today. I really don't see how sending her to jail does anyone any good. Probation is sufficient here. The Sun-Sentinel has background on her sentencing memo by David Tucker:
Just days before Kim Rothstein will be sentenced for hiding expensive jewelry from federal authorities, the former socialite has filed for divorce from her imprisoned Ponzi schemer husband, court records show.
"Last week, Kim filed for divorce from Scott Rothstein," her attorneys wrote in a sentencing memo filed Friday in federal court in Fort Lauderdale.
Her husband physically and mentally abused her, openly cheated on her, controlled her every move and kept her in the dark about his crimes, her defense team said.
When she confronted him, she said, he yelled at her: "You can't walk away from me, Kimmy. I'm the President of [expletive] Florida and I'll say when you can come and go!"
Kim Rothstein and her friend Stacie Weisman are to be sentenced Tuesday afternoon. Both women admitted they tried to hide about $1 million worth of jewelry from federal authorities after Scott Rothstein admitted he ran the biggest investment fraud scheme in South Florida history.
It was her husband's idea to hide the jewelry from prosecutors and bankruptcy authorites who were seizing the couple's ill-gotten assets, Kim Rothstein's defense attorneys say, but she takes full responsibility for doing it. The couple communicated through coded letters about their plan while Scott Rothstein was held at a secret location before he was imprisoned, the lawyers wrote in court records.
"Kim is fully responsible for her behavior. However, it was her husband, Scott Rothstein who originally requested that she take some family heirlooms, watches and other items of value as insurance," her lawyers, David Tucker and David Kotler, wrote in court records. "Scott also recommended that Kim turn these items over to someone whom she trusted to sell them."
Kim Rothstein claims that through their coded letters, her husband supervised the sale of the assets they were trying to hide from authorities and also her attempts to get the loot back so she could "come clean" with authorities after realizing how much legal trouble she was in.
UPDATE -- Judge Rosenbaum sentenced Kim Rothstein to 18 months in prison.
Monday, November 11, 2013
Here is the NY Times story covering the issue:
For what may be the first time on record, a former prosecutor in Texas is going to jail for failing to turn over exculpatory evidence in a murder trial. The 10-day jail sentence for the prosecutor, Ken Anderson, is insultingly short — the victim of his misconduct, Michael Morton, spent nearly 25 years in prison. But because prosecutors are so rarely held accountable for their misconduct, the sentence is remarkable nonetheless.
In 1987, Mr. Morton was convicted of beating to death his wife, Christine, and sentenced to life in prison. He maintained his innocence, and in 2010 DNA testing confirmed that he was not the killer.
Even before a Texas court vacated Mr. Morton’s conviction, his lawyers alleged that Mr. Anderson, the prosecutor in his case, had deliberately withheld evidence that would have exonerated him. During Mr. Morton’s trial, the judge had ordered Mr. Anderson to turn over any such evidence and received only a few documents in return. In fact, Mr. Anderson possessed many documents he did not turn over, including a transcript of a phone conversation revealing that the Mortons’ 3-year-old son had described his mother’s killer as a “monster” who was not his father.Mr. Anderson, who later became a judge, has said he did not consider the judge’s order official because it was not written down. But he was fully aware of his ethical duty to disclose important exculpatory evidence and that a failure to disclose violates due process rights under the Constitution. In April, a judicial investigation found probable cause to believe that Mr. Anderson was in criminal contempt for withholding the documents. On Friday, he pleaded no contest. In addition to receiving the jail sentence, he was disbarred and stripped of his law license.This case may sound extreme, but prosecutorial misconduct is far too common, and the remedies for it, if any, usually come long after the harm has been done. Criminal defense lawyers have called for judges to issue a standard written order reminding prosecutors of their ethical duty and to warn them of contempt charges if they do not comply. Prosecutors should welcome this practice to reinforce professional standards and identify the wrongdoers among them.