Thursday, January 31, 2013

Can we clone Judge Gleeson?

District Judge John Gleeson is doing more good work in the Eastern District of New York.  The latest is this sentencing order about the guidelines in drug cases.  The reasoning applies also in white collar cases and just about every other guideline calculation.  Judge Gleeson is no bleeding heart -- he is a former (very tough) federal prosecutor who put John Gotti away. We need more Judge Gleesons. From his order (via Professor Berman's site):

Last year in United States v. Dossie, I wrote about how the mandatory minimum sentences in drug trafficking cases distort the sentencing process and mandate unjust sentences. This case illustrates a separate but related defect in our federal sentencing regime....
Diaz will be sentenced in a few weeks, and when that happens I will carefully consider all the factors set forth in 18 U.S.C. § 3553(a) except one — the length of imprisonment recommended by the United States Sentencing Commission’s Guidelines Manual. Though I will not ignore Diaz’s Guidelines range, I will place almost no weight on it because of my fundamental policy disagreement with the offense guideline that produces it. In fairness to the government, I write here to explain my belief that the offense guideline for heroin, cocaine, and crack offenses (“drug trafficking offenses”) is deeply and structurally flawed. As a result, it produces ranges that are excessively severe across a broad range of cases, including this one.
The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability.
If the Commission wants greater adherence to the Guidelines, as it should, it needs to get better at fixing broken offense guidelines.  The drug trafficking offense guideline was born broken.  Many judges will not respect it because as long as the sentences it produces are linked to the ADAA’s mandatory minimums, they will be too severe.  Indeed, as discussed further below, for almost two decades the nation’s judges have been telling the Commission to de-link the drug trafficking offense guideline from those harsh mandatory minimums and to reduce the sentencing ranges.  The Commission should listen and act.  It should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses.  That process will take time.  In the meantime, because real people, families, and communities are harmed by the current ranges, it should immediately lower them by a third....
Let those who advocate for longer prison terms, and even a return to the dark days of mandatory Guidelines, go ahead and make their case.  The debate is good for the health of our federal criminal justice system.  But the suggestion that federal sentences should become more severe in the name of racial equality is preposterous.  That case has emphatically not been made, and the Commission’s repeated suggestion that it has insults the entire judiciary and demeans the Commission itself.  If it does nothing else, the Commission should take affirmative steps to remove the race issue, which it unwisely inserted into the discussion of federal sentencing policy, from the debate....
The Commission should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses.  If it does, those ranges will be substantially lower than the ranges produced by the current offense guideline.  The deep, easily traceable structural flaw in the current drug trafficking offense guideline produces advisory ranges that are greater than necessary to comply with the purposes of sentencing.  We must never lose sight of the fact that real people are at the receiving end of these sentences.  Incarceration is often necessary, but the unnecessarily punitive extra months and years the drug trafficking offense guideline advises us to dish out matter: children grow up; loved ones drift away; employment opportunities fade; parents die.

Closer to home, Judge Scola is beaming in testimony from Pakistan.  Curt Anderson has the details:

U.S. District Judge Robert Scola approved the unusual testimony in the case of 77-year-old imam Hafiz Khan. The first five witnesses will be questioned beginning Feb. 11 at an Islamabad hotel, and jurors will watch on courtroom TV screens. Scola said Tuesday the arrangement is costing taxpayers about $130,000.
Khan is on trial for allegedly funneling at least $50,000 to the Pakistani Taliban, listed by the U.S. as a terrorist group linked to al-Qaida. Khan insists the money was for innocent purposes, and the Pakistani witnesses are expected to back that up. If convicted, Khan faces up to 15 years in prison on each of four counts.
At a hearing Tuesday, Khan attorney Khurrum Wahid asked Scola to allow six additional witnesses to testify from Pakistan, over prosecutors' objections. The judge did not immediately rule but seemed inclined to approve the request, noting that an appeals court might toss out any convictions if the trial appears unfair to Khan.
"I don't want to have a second trial. I want to have one fair trial," Scola said.

Tuesday, January 29, 2013

Is the Constitution a living document or is it "dead, dead, dead"?

Justice Scalia said the latter in a speech in Dallas, via the Dallas Morning News:

“The judge who always likes the results he reaches is a bad judge,” he told an audience Monday evening at Southern Methodist University.

He and SMU law professor Bryan A. Garner shared the stage at McFarlin Auditorium for a lecture on their second book together, Reading Law: The Interpretation of Legal Text.
Garner said that though he and Scalia differ politically, they agree on staying true to the law and on separating politics from legal interpretation.

“I will tell you that my political beliefs are different from those of Justice Scalia,” he said.
Garner supports gay marriage and favors stricter gun control laws.
But Scalia, who is regarded as one of the most conservative justices on the high court, declined to contrast his opinions on such matters.
“I haven’t expressed my views of either of those,” Scalia interjected. “You’re a bleeding heart.”

Monday, January 28, 2013

Congratulations to Magistrate Patrick Hunt

He was sworn in today by Chief Judge Moreno.

Monday news and notes (updated)

Update-- the Sentencing website has been re-hacked and is now the game Asteroids. I would have preferred Galaga...

Sorry for the slow blogging lately.  Hopefully will be back in full blogging mode soon.  In the meantime, here's what's up:

1.  The Sentencing Commission website was hacked by Anonymous (it's back up now).  From Anonymous' statement:

Last year the Federal Bureau of Investigation revelled in porcine glee at its successful infiltration of certain elements of Anonymous. This infiltration was achieved through the use of the *same tactics which lead to Aaron Swartz' death. It would not have been possible were it not for the power of federal prosecutors to thoroughly destroy the lives of any hacktivists they apprehend through the very real threat of highly disproportionate sentencing.
As a result of the FBI's infiltration and entrapment tactics, several more of our brethren now face similar disproportionate persecution, the balance of their lives hanging on the severely skewed scales of a broken justice system.
We have felt within our hearts a burning rage in reaction to these events, but we have not allowed ourselves to be drawn into a foolish and premature response. We have bidden our time, operating in the shadows, adapting our tactics and honing our abilities. We have allowed the FBI and its masters in government -- both the puppet and the shadow government that controls it -- to believe they had struck a crippling blow to our infrastructure, that they had demoralized us, paralyzed us with paranoia and fear. We have held our tongue and waited.
With Aaron's death we can wait no longer. The time has come to show the United States Department of Justice and its affiliates the true meaning of infiltration. The time has come to give this system a taste of its own medicine. The time has come for them to feel the helplessness and fear that comes with being forced into a game where the odds are stacked against them.
This website was chosen due to the symbolic nature of its purpose -- the federal sentencing guidelines which enable prosecutors to cheat citizens of their constitutionally-guaranteed right to a fair trial, by a jury of their peers -- the federal sentencing guidelines which are in clear violation of the 8th amendment protection against cruel and unusual punishments. This website was also chosen due to the nature of its visitors. It is far from the only government asset we control, and we have exercised such control for quite some time...

2.  The D.C. Circuit says no to recess appointments.  It will be interesting to see how this plays out.  The case will certainly go to the Supremes.  Remember that a recess appointment was used with Judge Pryor, but he was eventually confirmed by the full Senate 53-45, so the case has no bearing on him.

3.  Speaking of the 11th Circuit,  Chief Judge Joel F. Dubina, will be the keynote speaker at a PBCBA membership luncheon on February 1 at 11:45 a.m. at the Marriott West Palm Beach. He will be speaking regarding the inner workings of the 11th Circuit and how things work behind the scenes. The luncheon will be co-hosted by the Palm Beach County Chapter of the Federal Bar Association and the Bankruptcy Bar Association for the Southern District of Florida.
President George H.W. Bush appointed Chief Judge Dubina to the 11th Circuit in 1990 and he was appointed as Chief Judge in 2009. Judge Dubina previously served as a U.S. District Judge for the Middle District of Alabama from 1986-1990. He received his B.S. from the University of Alabama and his J.D. from Cumberland School of Law. Pre-registration for this luncheon is required and can be done on the Bar's website by clicking here.

Friday, January 25, 2013

“JUSTICE THOMAS: Well, there — see, he did not provide good counsel.”

The riddle is solved. From the Washington Post:

[T]he court released a new transcript Wednesday that contains the complete sentence:

“JUSTICE THOMAS: Well, there — see, he did not provide good counsel.”

The point remained the same. Thomas was tossing a lighthearted barb during a discussion about the qualifications of some of the attorneys representing murder suspect Jonathan Boyer.

One had attended Yale and one had attended Harvard. Thomas is a Yale Law grad who has been a frequent critic of his alma mater. On the other hand, he may have been making a crack about rival Harvard, because the lawyer from Cambridge was a man, and the New Haven graduate was a woman.

Maybe the joke was directed at the entire Ivy League, a favorite Thomas target. Every member of the high court attended Yale or Harvard, although Justice Ruth Bader Ginsburg finished at Columbia.

Wednesday, January 23, 2013

Judge Carnes to take over as Chief of 11th Circuit

This summer Judge Dubina will hand over the reigns to Judge Carnes. Aly Palmer has more:

Chief Judge Joel Dubina of the U.S Court of Appeals for the Eleventh Circuit will step down as chief on August 1, Dubina told the Daily Report this week.

Dubina, who maintains his primary chambers in Montgomery, Ala., has been chief judge since mid-2009. He said the next chief judge will be Edward Carnes, a Montgomery-based judge who is next in line by seniority.

Court rules allow chief judges to serve up to seven years. “It has been the highlight of my judicial career,” Dubina said of his time as chief. “But there comes a time when you need to turn the reins over to someone else, and I believe that time has come for me.”

Dubina said he was leaning towards taking senior status—a form of semi-retirement in which judges can work a lighter caseload—in August, as well, but he didn’t commit to doing so. “I have not sent a letter to the president yet about senior status, and I have not definitively made up my mind about that,” he said.

Tuesday, January 22, 2013


UPDATE -- Everything you want to know about the Supreme Court Skullcaps (worn yesterday by Justices Scalia and Breyer) is here.

Last week was pretty eventful in the SDFLA and around the federal courts.  A quick recap:

1.  Judge Scola did the right and courageous thing by granting the defense's motion for judgment of acquittal in Izhar Khan's case.  Here is the JOA ruling. The money line: "This court will not allow the sins of the father to be visited upon the son." And here is Curt Anderson's coverage.

2.  Clarence Thomas spoke during an oral argument.  No one is really sure what he said. Here's the audio so you can hear for yourself.

3.  Raul Iglesias was convicted.  It was a hard fought battle.  Rick Diaz after the verdict: “An appellate court will allow that evidence at a new trial, and he will be vindicate. In the meantime, the verdict suggests that we should put all city of Miami police officers on a leave of absence and give their guns and badges and cruisers to the crack addicts in the city of Miami.”

4.  The Supreme Court weighed in on houseboats.  Lozman's was a house and not a boat.

Read more here:

Friday, January 18, 2013

Raul Iglesias jury back

Convicted on eight counts, including two civil rights violations, conspiracy to possess and possession with the intent to distribute cocaine and crack cocaine, obstruction of justice and making false official statements.

Thursday, January 17, 2013

Breaking-- Judge Scola grants rule 29 in Pakistani terror case

For one of the defendants, Izhar Khan. He was represented by Joe Rosenbaum, Dore Louis, and Kim Acevedo.

Congrats to the defense team. This is the second of three defendants to be dismissed from the case. The first was represented by Michael Caruso, the FPD. Also congrats to Judge Scola for having the courage to issue this ruling.

From the Herald article by Jay Weaver:

A federal judge threw out the terrorism charges against a young Muslim
cleric from Broward County in a trial where he and his father, an imam in
Miami, are accused of providing financial support to the Pakistani Taliban
terrorist organization.

Izhar Khan, the imam of a mosque in Margate, will be a free man later
Thursday after U.S. District Judge Robert Scola issued a verdict of
acquittal for the 26-year-old Muslim scholar.
The prosecution, which rested its case Wednesday in the material support
trial, failed to mount sufficient evidence of wrongdoing against the
younger imam, imam of Masjid Jamaat Al-Mumineen mosque off Sample Road.

“I do not believe in good conscience that I can allow the case to go
forward against Izhar Khan,” Scola ruled Thursday.

The judge also noted that the government nonetheless “proceeded in this
case against Izhar Khan in good faith.”

After the judge’s verdict, the defendant hugged defense lawyer Joseph
Rosenbaum and members of his Margate mosque shook each other’s hands,
quietly celebrating.

Liars or Heroes?

That's the question for the jury today in the case of Raul Iglesias, the Miami police officer on trial for allegedly planting evidence. The prosecution has called the witnesses heroes and the defense has called them liars.  I know this was a hard fought battle between Rick Diaz for the defense and Rick Del Toro and Michael Berger for the prosecution, in a case where the defendant testified. 

Should be interesting to see what happens.  More from closing (via the Miami Herald):

“We had four eyewitnesses — police officers who stood up to corruption, who stood up to what was wrong,” Assistant U.S. Attorney Ricardo Del Toro told the 12-member jury during closing arguments Wednesday.
“What reason do these guys have to lie? None,” added fellow prosecutor Michael Berger. “Which person has the only reason to lie? That’s the defendant. And that’s because his liberty, his job and his livelihood are at stake.”
On Wednesday, his defense attorney, Rick Diaz, argued that none of the four detectives in Iglesias’ unit testified that they ever witnessed him stealing drugs seized from street dealers, and only one claimed he saw the supervisor swipe money confiscated from a trafficker in April 2010. Diaz said that detective’s testimony was a lie, pointing out that the dealer testified at trial that he had no money on him.
Diaz told jurors that an anonymous letter was sent on April 13, 2010, to Miami police’s Internal Affairs, claiming Iglesias stole drugs and money from dealers two to three times a week over a four-month period. He said it was written by detectives seeking revenge against their new boss because he was trying to tame the “undisciplined” squad and transfer a few officers.
“That letter came back and hit them in the head like a boomerang,” Diaz told jurors, adding that the prosecution’s case doesn’t “mathematically” add up. He suggested that Iglesias’ former undercover officers, internal-affairs detectives and FBI agents were “trying to set this man up.”
Diaz strived to portray Iglesias, an 18-year police veteran who served with the Marines in the Iraq War, as a man of character who deserved to be acquitted on all nine counts.
“This is all or nothing for Raul Iglesias,” Diaz implored jurors. “Make no mistake about it.”

Tuesday, January 15, 2013

A houseboat is a house!

So says the High Court (at least in this case) in a nice win for local Fane Lozman in: Lozman v. Riviera Beach.  Prior blog coverage here.

Lozman was pro se in the district court case here in the SDFLA, but ended up being represented by a number of high powered lawyers, including Jeffrey Fischer. 

Here's SCOTUSBlog's coverage of the decision today:

Casting aside the simplistic notion that “anything that floats” is a watercraft whose use and activity is controlled by maritime law, the Supreme Court on Tuesday installed a “reasonable observer” at dockside to make the judgment about whether a floating structure qualifies, or not, as a “vessel.” The vote was seven to two, in favor of a maverick Florida owner of a houseboat who was constantly in hot water with marina owners, but now appears to have the last word: the marina probably will have to pay him, not the other way around.
The dissenters complained that the Court was introducing confusion and complexity into what should be straightforward and explicit, and thus upsetting the expectations of the entire maritime industry. The majority, in an opinion by Justice Stephen G. Breyer, insisted that its “reasonable observer” test would work in the real world of floating structures.

While this case turned on a boxy two-story floating home that Fane Lozman had lived in at various marinas in Florida, the Court treated his case (Lozman v. Riviera Beach, 11-626) as one with considerably wider impact on maritime law. What came out of it, in the end, was a reliance upon the traditional legal figure of the “reasonable man” (to be politically correct, now the “reasonable observer”) to make a common-sense assessment of the physical characteristics and activities of a floating structure, and then decide whether it was meant to be a vehicle of water transportation. Courts, of course, will be deciding what the “reasonable observer” would see, presumably on a case-by-case basis.
Under this test, not all houseboats will be exempt from maritime regulation, since many of them have motors to propel them, so a reasonable view of them is likely to be that they can be moved over water, carrying goods and people. But neither will all dockside structures used as homes, and ill-fitted for gliding over the waves, come under the new definition, because they probably will not be seen as transport vessels. It may take some time, and quite a bit of litigation, to see the difference between them, and between other floating structures.

Magistrate opening in Ft. Lauderdale AND JUSTICE THOMAS SPEAKS

First, the magistrate announcement via the Court website (HT Captain):

United States District Court
Southern District of Florida
Public Notice

Posted: January 8, 2013

United States District Court
Southern District of Florida
Public Notice

United States Magistrate Judge
Fort Lauderdale, Florida

The Judicial Conference of the United States has authorized the appointment of a full-time United States Magistrate Judge for the Southern District of Florida at Fort Lauderdale. Due to space limitations and other considerations, the appointee will likely have chambers and case assignments in both Fort Lauderdale and Miami. This appointment will succeed the incumbent who will be retiring on or about January 27, 2013.


Merit Selection panel composed of attorneys and other members of the community will review all applicants and recommend to the judges of the district court, in confidence, the names of at least five applicants for the position whose character, experience, ability and commitment to equal justice under law fully qualify them to serve as a United States magistrate judge. The Court will make the appointment, following an FBI full-field investigation and an IRS tax check of the appointee. An affirmative effort will be made to give due consideration to all qualified candidates, including women and members of minority groups. The current annual salary for the position is $160,080.00. The term of office is eight years.
All applicants are expected to review Administrative Order 2011-50, in re: Procedures Governing Contact with District Judges During Magistrate Judge Merit Selection Process.

All applications will be kept confidential, unless the applicant consents to disclosure, and all applications will be examined only by members of the Merit Selection Panel and the judges of the district court. The panel’s deliberations will remain confidential.

Instructions for completion and submission of the application are included on each application form. Completed applications must be received by 5:00 p.m. on February 8, 2013.


Justice Thomas spoke for the first time during an oral argument in 7 years.  He didn't ask a question.  The transcript shows only four words: "Well, he did not."  But hey, it's something... Here is the transcript:

JUSTICE SCALIA: She was a graduate of Yale law school, wasn’t she?
MS. SIGLER: She’s a very impressive attorney.
JUSTICE SCALIA: And another of his counsel, Mr. Singer — of the three that he had — he was a graduate of Harvard law school, wasn’t he?
MS. SIGLER: Yes, Your Honor.
JUSTICE SCALIA: Son of a gJUSTICE THOMAS: Well — he did not - (Laughter.)
MS. SIGLER: I would refute that, Justice Thomas.
JUSTICE SOTOMAYOR: Counsel, do you want to define constitutionally adequate counsel? Is it anybody who’s graduated from Harvard and Yale?
JUSTICE SOTOMAYOR: Or even just passed the Bar?

 Here is the Above the Law coverage, which has the whole story.

Monday, January 14, 2013

“No one has done anything illegal or broke the law."

That was former Miami police officer Raul Iglesias (prior coverage here) on tape to an undercover informer.  Seems like great stuff for him, but it was the feds that played the tape to end their case and rest before Judge Altonaga.  Here are transcripts (part 1 and part 2) of the tapes via the Miami Herald, which covers the case this way:

Later in their chat, Asanza — who was cooperating with authorities and trying to bait his boss into incriminating statements — expressed fears about lying on the witness stand if he was asked to testify. Iglesias agreed that committing perjury would be a bad idea.
“Yeah, of course, you don’t wanna, you don’t wanna f---ing lie,’’ Iglesias responded.
The secret tape recording from June 2010 was the last piece of evidence that prosecutors presented before resting their corruption case Friday against Iglesias, 40, who has been on the force for 18 years.
Iglesias, an ex-Marine and Iraq War veteran who was shot in the leg during a 2004 drug bust, is standing trial on charges of planting cocaine on a suspect, stealing drugs and money from dope dealers, and lying to investigators about a box of money left in an abandoned car as part of an FBI sting.
Asanza, 33, also an ex-Marine, pleaded guilty last year to a misdemeanor charge of possessing cocaine and marijuana. The deal helped him avoid a felony conviction; in exchange, he testified Thursday that Iglesias told him it was “okay” to pay off confidential informants with drugs.
The secret tape recording could cut both ways for jurors. On it, Iglesias did not say anything to Asanza to implicate himself in connection with charges in the nine-count indictment, his defense attorney, Rick Diaz, pointed out Friday. The charges encompass the police sergeant’s brief stint as head of the Crime Supression Unit from January to May 2010.

Read more here:
Should be interesting to see how this thing ends.

Friday, January 11, 2013

The buck stops here.

Looks like there are going to be a bunch of arrests in the FBI investigation into a Miami police gambling ring.  From the Herald:

At least nine Miami police officers are expected to face federal criminal charges or internal discipline from a broadening FBI investigation into a suspected protection scheme involving a Liberty City gambling ring and other criminal activity, The Miami Herald has learned.
Six of those officers have already resigned or been relieved of duty in recent weeks in connection with the investigation, according to sources close to the probe. The FBI, working with Miami police internal affairs investigators, is expected to make arrests before the end of the month.
The officers, who worked in the Model City substation, are suspected of providing off-the-books protection to a Liberty City barber shop that served as a front for an illegal sports-betting operation busted last March. Officers frequented the barber shop so often that one gambler told county police he thought the place was being run by the Miami Police Department, court records show.

Read more here:
On March 26, Miami-Dade police detectives raided the barber shop and two other South Miami-Dade locations following a six-month gambling investigation dubbed “Operation Pass the Buck.” Five men were arrested on gambling charges, accused of organizing bets on football and basketball games in the back rooms, court records show.
The off-duty police work at Player’s Choice, which has since closed, was not approved through proper channels, the sources say.

Read more here:
Generally in our legal system, the buck stops at the Supreme Court, but these statistics (here is the underlying data) confirm that it's almost impossible to get cert granted. Your chances last year, if you filed a cert petition, were less than 1%!  And the year before that, just over 1%. 

Tuesday, January 08, 2013

"[The Eleventh Circuit] does not seem to be listening [to the Supreme Court]."

That's the intro to this New York Times article about death penalty habeas cases in which the lawyer's mistakes end up costing their clients.  One such story from the intro to the article:

A few days after Christmas, a divided three-judge panel of the court ruled that Ronald B. Smith, a death row inmate in Alabama, could not pursue a challenge to his conviction and sentence because he had not “properly filed” a document by a certain deadline.
As it happens, there is no dispute that the document was filed on time. But it was not “properly filed,” the majority said, because Mr. Smith’s lawyer did not at the same time pay the $154 filing fee or file a motion to establish something also not in dispute — that his client was indigent.
Nor did the majority place much weight on the fact that the lawyer himself was on probation for public intoxication and was addicted to crystal methamphetamine while he was being less than punctilious. In the months that followed, the lawyer would be charged with drug possession, declare bankruptcy and commit suicide.
The 11th in a 2-1 decision said no problem. The conclusion to the article explains that Judge Barkett has been dissenting in these cases:
Judge Rosemary Barkett dissented, saying she did not see how the case was materially different from that of Mr. Maples or a 2010 rebuke from the Supreme Court to her court. In that second case, a Florida death row inmate named Albert Holland was given a new opportunity to argue that his lawyer’s inaccessibility and incompetence had caused him to miss a deadline. In a concurrence in April in yet another blown-deadline case, Judge Barkett identified the larger question that runs through these cases: why is it morally permissible to blame clients for their lawyers’ mistakes?
The legal system generally answers by saying that lawyers are their clients’ agents. The answer makes perfect sense when you are talking about sophisticated clients who choose their lawyers, supervise their work and fire them if they turn out to be incompetent or worse.
But the theory turns problematic, Judge Barkett wrote, when the clients are on death row, have no role in the selection of their lawyers and have no real control over them.
Allowing Mr. Smith’s challenge to be heard in a federal court does not mean he would prevail. But, Judge Barkett said, he ought to be allowed to make his case. “It is unjust and inequitable,” she wrote, “to require death row inmates to suffer the consequences of their attorneys’ negligence.”

Monday, January 07, 2013

“It’s 90 percent accurate. Except the tutor is not as nerdy.”

That's Chief Judge Moreno discussing his role in the movie Rudy as Rudy's tutor.  Jay Weaver has a very entertaining article about the Notre Dame vs. Alabama Championship game tonight, and the federal judge ties to the game, including in addition to Judge Moreno, Judges Cohn (huge Bama fan) and Zloch (former ND QB).  More about Rudy:

It’s hard to say which fan has more bragging rights, but one thing is abundantly clear: Moreno’s cavernous chambers on the 12th floor of the ship-shaped federal courthouse in downtown Miami is like a shrine to his alma mater.
In the lobby to his office hangs a framed poster of the movie Rudy, autographed by his former college pal, Daniel E. “Rudy” Ruettiger. It reads: “To Judge Moreno, My Best Friend and #1 Inspiration … Ya Da Best, Rudy.”
The 1993 movie is about Rudy’s 27 seconds of fame during his one-game career as a fifth-string Fighting Irish defensive end. He beat all the odds to get into Notre Dame and onto the football team — thanks, in part, to Moreno.
The pair lived in adjacent dorm rooms in 1973 and ’74, while Moreno attended Notre Dame and Rudy was going to a nearby junior college, Holy Cross. Moreno, who majored in government and international relations, tutored Rudy in math, English and Spanish. Rudy was eventually admitted into Notre Dame, and the rest is history.
In the movie, Hollywood took some artistic license with Rudy’s script and portrayed the “tutor” on the big screen as a nerd who wore two watches and depended on Rudy to get him dates.


I particularly like the plaque in Judge Moreno's chambers that says: "Judge like a Champion today." 

And here's Judge Cohn:

“I’ve been an Alabama football fan my whole life,” said Cohn, who was born in Montgomery, raised in Tuskegee and graduated in 1971 from the state university in Tuscaloosa. “When [legendary coach] Bear Bryant came to Alabama in 1958, I was 10 years old. He was a god-like figure in Alabama,” Cohn said. In his Fort Lauderdale chambers, he displays an autographed picture of the current Alabama coach, with the inscription: “To Judge Cohn, Roll Tide, Nick Saban.”

Fun stuff.

Monday news & notes

1.  Anthony Davila is headed to the Supreme Court.  The blog coverage of the appellate case is here and it centered around his lawyer's decision to file an Anders brief before the 11th Circuit.  The appellate court, though, found an interesting issue, and now it's headed to the High Court.  Here's SCOTUSblog's coverage of the issue:

The Justices agreed to hear an appeal by the federal government in United States v. Davila (12-167), testing what the remedy is to be in a plea-bargained criminal case when a federal judge had some role leading up to agreement on the plea deal. The Eleventh Circuit Court ruled that, if the judge (in this case, a magistrate judge) has any role whatsoever in the plea talks, the guilty plea that resulted must be thrown out. The government petition argued that the guilty plea should be overturned only if the judge’s participation had resulted in prejudice to the accused.
2.  Openings were conducted on Friday before Judge Scola in the Pakistani Taliban case. The case is moving at an incredible clip.  Voir dire in a couple days, and each party only requested 20 minutes for opening statements. The Herald coverage, via Jay Weaver:
Hafiz Khan, a hunched man with a flowing white beard, was called the “Santa Claus imam” by the youngsters who attended his modest Flagler Mosque in Miami.
But on Friday, a federal prosecutor portrayed the 77-year-old Muslim cleric as an evil man who spewed hateful words about his adopted country and funneled at least $50,000 to support the Pakistani Taliban terrorist organization in violent attacks against U.S. interests overseas.
His goal, Assistant U.S. Attorney John Shipley said in opening statements of Khan’s terrorism trial, was to help arm the Taliban militants with weapons for their mission to topple the Pakistan government and carry out terrorist attacks against the U.S. military abroad.
“This is no man of peace,” Shipley told the 12-person federal jury Friday. “This is not a religious leader that any of you would respect.’’ 
Hafiz Khan’s attorney, Khurrum Wahid, said in opening statements that prosecutors have created a “caricature” of his client, asserting that his words were “hyperbole” and “contrary” to the Taliban’s violent campaign. Wahid said his client was driven by a “love” for the people in the Swat Valley region of Pakistan, near the Afghanistan border, where he was born and raised before becoming a Muslim leader and founder of a madrassa religious school.
“You’re going to hear he loved helping the poor and needy,” Wahid told jurors. “You’re going to hear he’s not pro-Taliban. In fact, it’s quite the contrary. ... You’re going to hearing of no evidence that the money went for guns. ...You’re going to hear it was for the madrassa, the love of his life.”
The younger Khan’s defense lawyer, Joseph Rosenbaum, minced the prosecution’s case against his client, saying that Izhar rarely came up in FBI-recorded phone conversations and was not personally responsible for sending any money to the Taliban.
Rosenbaum said that Izhar never heard a potentially incriminating voice mail message left on his answering machine by his father to pick up $300 from a South Florida donor, that the father said had been “approved for the mujahideen,” or Taliban militants.
3.  Cops vs. Cops. Rick vs. Rick.  The Altonaga trial is underway with Rick Del Toro and Rick Diaz battling it out.  From Scott Hiaasen:
A pair of veteran Miami narcotics detectives testified in federal court Friday against their former supervisor, accusing Sgt. Raul Iglesias of scheming to plant cocaine on a suspect and once carrying what appeared to be a bag of crack in his personal bag.
Detectives Suberto Hernandez and Luis Valdes told jurors that Iglesias asked the pair if they had any “throw-down dope” to plant on a drug suspect after a search of the man during a Jan. 27, 2010, surveillance operation turned up no drugs.
“He looked at myself and Hernandez and he asked for throw-down dope,” said Valdes, an officer for nearly nine years. “I said, ‘We don’t do that here. Nobody on this team does it.’ ”
Iglesias, 40, is on trial facing nine counts of conspiracy to possess cocaine, violating suspects’ civil rights, obstruction of justice and making false statements. The charges stem from what federal prosecutors have described as four separate incidents of misconduct over a four-month period in 2010, when Iglesias led a team in the police department’s Crime Suppression Unit, which targets street-level drug sales.***But under cross-examination from Iglesias’ lawyer, Rick Diaz, Valdes conceded that he did not see Martinez hand the drugs to Iglesias. Nor did he see Iglesias plant the baggie on Rafael Hernandez. Iglesias told the detectives he found the drugs in the back pocket of Rafael Hernandez’s jeans — though neither detective saw Iglesias search the suspect.
Diaz challenged the detectives’ stories and suggested that Iglesias simply found evidence that Detective Hernandez had overlooked. The lawyer questioned how thorough Hernandez was in his search, noting that, in a case in 2004, the detective had failed to find drugs on a suspect who was later found to be carrying them.
And in an interview with Internal Affairs detectives and an FBI agent in May 2010, Diaz told the jury, Detective Hernandez described his search of the suspect as merely a “pat down” — a less intrusive type of search that does not include searching the contents of a suspect’s pockets.
Valdes and Hernandez also said they once saw a bag of what appeared to be crack cocaine in a military-style bag that Iglesias owned. They said the bag was not marked as evidence or part of a police-issued “sting kit” used when officers pretend to be drug dealers in reverse stings. But Diaz argued that the bag may have contained “sham” drugs or household items that merely looked like drugs.
If the detectives thought Iglesias was carrying illegal drugs or planting evidence, Diaz asked, then why didn’t the officers complain to their superiors, or even arrest Iglesias?

Friday, January 04, 2013

“Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress...

...But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness."

That was Second Circuit Judge Jon O. Newman in an opinion all about the middle finger.  Here's the intro to the opinion:

An irate automobile passenger’s act of “giving the finger,” a gesture of insult known for centuries,1 to a policeman has led to a seizure of two persons ordered to return to an automobile, an arrest for disorderly conduct, a civil rights suit, and now this appeal. Plaintiffs-Appellants John Swartz (“John”) and his wife, Judy Mayton-Swartz (“Judy”), appeal the July 8, 2011, judgment of the United States District Court for the Northern District of New York (David N. Hurd, District Judge) granting summary judgment to Defendants-Appellees Richard Insogna, a St. Johnsville, New York, police officer, and Kevin Collins, an officer with the Montgomery, New York, Sheriff’s Department.

Accepting, as we must at this stage of the litigation, the Plaintiffs’ version of the facts, we vacate the judgment and remand for further proceedings.

I like footnote 1: See Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87, 91 n.1 (2d Cir. 1998) (reporting the use of the gesture by Diogenes to insult Demosthenes). Even earlier, Strepsiades was portrayed by Aristophanes as extending the middle finger to insult Aristotle. See Aristophanes, The Clouds (W. Arrowsmith, trans., Running Press (1962)). Possibly the first recorded use of the gesture in the United States occurred in 1886 when a joint baseball team photograph of the Boston Beaneaters and the New York Giants showed a Boston pitcher giving the finger to the Giants. See Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law , 41 U.C. Davis L. Rev. 1403, 1415 (2008).

The NY Times has more:

There is usually no mistaking the act or intent of extending a middle finger.
John Swartz was arrested in May 2006 after he raised his middle finger upon spotting a police radar device in St. Johnsville, N.Y. An officer says he thought Mr. Swartz might be seeking help.
Take John Swartz, for example. In May 2006, Mr. Swartz was a passenger in a car in a rural part of upstate New York when he spotted a police car that was using a radar speed-tracking device.
Mr. Swartz, a Vietnam veteran and retired airline pilot, acted on instinct to show his displeasure: he extended his right arm outside the passenger’s side window, and then further extended his middle finger over the car’s roof.
The reaction was swift. The officer followed the car; words were exchanged; backups were called; and Mr. Swartz was arrested on a charge of disorderly conduct.
He later filed a civil rights lawsuit, and although a lower court judge dismissed the case, the prestigious United States Court of Appeals for the Second Circuit in Manhattan reversed that decision on Thursday, ruling that Mr. Swartz’s lawsuit can go forward.
The appellate decision offers a rich thumbnail sketch of the history and significance of the raised middle finger, one that traces possibly the first recorded use of the gesture in the United States to 1886, “when a joint baseball team photograph of the Boston Beaneaters and the New York Giants showed a Boston pitcher giving the finger to the Giants.”
Mr. Swartz’s intent, 120 years later, was undoubtedly similar.
He made the gesture as his fiancée and now wife, Judy Swartz, was driving on the Sunday evening before Memorial Day through St. Johnsville, a village of under 2,000 people, about 50 miles northwest of Albany.
“I couldn’t see the officer, didn’t know who he was,” Mr. Swartz, 62, recalled on Thursday. He explained that his gesture was provoked by his anger that the local police were spending their time running a speed trap instead of patrolling and solving crimes.
“It was very disheartening,” Mr. Swartz said. “They’d do it constantly to the point where they ignored all of their other duties.”

Thursday, January 03, 2013

Starting the year with a bang

Yesterday the Pakistani Taliban trial started.

And today, Judge Altonaga starts a trial with "a Miami police sergeant charged with planting cocaine on a suspect and stealing drugs and money from dealers."  In the sergeant's corner is Rick Diaz.  The government is represented by Rick Del Toro. The Herald has more.

Next month, Kim Rothstein is set to plead guilty to a 371 conspiracy count.  I feel bad for her, especially if it was her husband who ratted her out. The Sun-Sentinal has the coverage.

Life in this District is never boring!

Wednesday, January 02, 2013

SDFLA starts 2013 with Pakistani Taliban trial

Out of the frying pan; into the fire.  That's what Judge Scola must be thinking after just finishing a very lengthy B-girls trial to end 2012, and now starting the Pakistani Taliban trial to begin 2013.

Paula McMahon has the details:

When the high-profile trial of two South Florida religious leaders accused of sending cash to help the Pakistani Taliban begins Wednesday, their defense is expected to argue they were simply offering charity to family and friends in their troubled homeland.
Izhar Khan, 26, was the young imam at a Margate mosque; his father, Hafiz Khan, 77, led a Miami mosque until they were arrested in May 2011 on federal charges they sent cash to the terrorist organization.
The men, both U.S. citizens born in Pakistan, are charged with funneling $50,000 from South Florida to the Taliban between 2008 and 2010. Prosecutors used more than 1,000 wiretapped phone calls, bank records and a confidential informant to make their case.
The case hinges on whether jurors believe the men conspired to help terrorists who target U.S. and Pakistani interests. The Taliban has been linked to al-Qaida and had a role in the failed attempt to bomb New York's Times Square in May 2010 and other attacks, experts say.
Defense attorneys say the men's motives were misinterpreted and the money was for family members affected by violence in the Swat Valley in northwest Pakistan. The money was also to help a school for boys and girls, established long ago by the elder man in his hometown, the defense said.
Both men pleaded not guilty and have been locked up since their arrests. The trial in federal court in Miami is expected to take several weeks.
Jury selection is expected to take a few days. U.S. District Judge Robert Scola Jr. said dozens of potential jurors will fill out questionnaires before he asks about their attitudes toward Islam, terrorism and other possible biases.
Though Hafiz Khan looks frail and confused and comes to court in a wheelchair the judge ruled he was mentally competent for trial and there was evidence he exaggerated some memory problems. At prosecutors' request, jurors shouldn't see the wheelchair, which federal marshals said is used only for convenience to move him quickly from his cell to court.
Izhar Khan was a popular, soft-spoken leader at Margate's moderate Masjid Jamaat Al-Mumineen mosque off Sample Road, congregation members said.
The young man reserved his fervor for basketball and cricket, supporters said. They said he was known for preaching tolerance of other religions and his in-depth religious knowledge. He lived in the U.S. since age 8, records show.
 The courtroom will be missing Federal Defender Michael Caruso, whose client was dismissed from the case months ago.

The case starts today in violation of Rumpole's trial rule #4 -- never try a case in January.