Wednesday, July 31, 2013

Student settles with DEA for $4.1 million for detention without food or water

Hard to believe this actually happened:

A California university student who was left handcuffed in a federal holding cell for nearly 5 days without food or water has reached a $4.1 million settlement with the U.S. Drug Enforcement Administration (DEA), his lawyers said on Tuesday.

Daniel Chong, who was rounded up along with eight other people in an April 21, 2012, drug raid at a San Diego area home, has said that he was forced to drink his own urine and nearly died after being placed in the cell and apparently forgotten.

After the ordeal, the 24-year-old student of the University of California, San Diego, spent five days in a San Diego hospital, three of them in intensive care. Last year, he filed a $20 million claim, a precursor to a lawsuit, against the DEA.

On Tuesday, his attorneys, Eugene Iredale and Julia Yoo, said they had settled that claim with the DEA for $4.1 million.
Chong's lawyers have said that he was arrested at the home of friend during a raid by a drug enforcement task force investigating an ecstasy trafficking ring that included DEA agents, sheriff's deputies and San Diego police officers.

Iredale said that once authorities determined Chong was not part of the ring, a San Diego police officer put him in the 5-foot by 10-foot cell with his hands cuffed behind his back, telling him, "We'll come to get you in a minute."

Instead, Chong remained in the cell for four and a half days and by the time he was found he was suffering from severe dehydration, muscle deterioration, hallucinations, liver and kidney failure and extremely high levels of sodium, according to his attorneys. He lost 15 pounds during the ordeal.

So, I ask you readers of the blog, would you go through that ordeal for the money?

Would you spend 4+ days in solitary confinement without food, water, or a bathroom for $4 million? free polls 

Tuesday, July 30, 2013

Compromise verdict in "pill mill" case

Judge Marra has been trying a lengthy trial of two doctors that lasted most of the summer.  These are the final two defendants from the large George brothers' organization.  The two doctors were found not guilty of almost all of the charges and guilty of conspiracy to commit money laundering.  Neither side seems too thrilled.

From the Sun-Sentinel:

More than two dozen clinic employees, doctors and managers pleaded guilty to related charges in the case. Some, including clinic owner Christopher George, formerly of Wellington, testified against Castronuovo and Cadet during their two-month trial.
Castronuovo and Cadet, the only clinic employees who did not plead out, denied being part of or even knowing about a conspiracy to illegally distribute drugs. Each claimed that they prescribed medications based on need.
The allegations were severe: Cadet was accused of prescribing drugs that led to the deaths of seven patients. Castronuovo's prescriptions led to two deaths, prosecutors said.
Each faced life in prison and a fine of up to $2 million if convicted of the most serious charges.
But jurors at the federal courthouse in West Palm Beach did not believe there was enough evidence to warrant a conviction on the conspiracy and drug charges.
The money laundering conspiracy charge carries a maximum prison term of 10 years, though it's unclear whether either doctor will face that much time in prison.
"He's disappointed," said Thomas Sclafani, Castronuovo's lawyer. "He's not as disappointed as he could have been."
Catronuovo and his wife celebrated their 51st wedding anniversary during the course of the trial, Sclafani said. He is planning to appeal the conviction.
So is Cadet's lawyer, Michael D. Weinstein, who called the verdict a compromise by a jury that showed signs of confusion throughout the day.
Early Tuesday afternoon, jurors told U.S. District Judge Kenneth Marra that they were finished deliberating. But with prosecutors, defendants, and spectators gathered to hear the verdict, the jurors revealed that they were actually deadlocked on all but a few of the charges. Marra ordered them back into the jury room, where they spent the next three hours coming to a decision.
"We believe this was a compromise verdict, and we're going to appeal it," said Weinstein, who was nonetheless quick to praise the not-guilty verdicts as "a huge victory."
The jury will return to the courthouse Wednesday to decide whether the doctors should forfeit their proceeds from their work at the pill mills. The defense lawyers said the not guilty verdicts should preclude any attempt at forfeiture.

UPDATE -- The Palm Beach Post has some more detail about the verdict:

 Throughout the day Tuesday, it was clear jurors were struggling to reach a consensus. At 2 p.m., they announced, a verdict had been reached.
However, U.S. District Judge Kenneth Marra grimaced when he reviewed it. The jury hadn’t decided nine of the 13 charges the two doctors faced. It cleared Cadet of causing three deaths and Castronuovo of one.
“Each count has to be voted on either guilty or not guilty,” Marra told jurors. “You can’t leave it blank. If you’ve left it blank, that’s not a decision.”
The jury returned three hours later to again say it had reached a verdict. But again, Marra said, it was flawed. He asked the foreman to specify whether the jury had found Castronuovo guilty of money laundering. That last-minute change raised Sclafani’s eyebrows and, he said, yet another reason for appeal.

Monday, July 29, 2013

Very secret case

So secret that the judge can't read a government motion in his chambers.  Via the Sun-Sentinel:

The evidence against two Broward County brothers accused of plotting a terrorist attack is voluminous, a government prosecutor said Friday, and could take months for defense lawyers to sort out.
Assistant U.S. Attorney Karen Gilbert also told U.S. Magistrate Judge John J. O'Sullivan the government is drawing up a highly secret motion in Washington, D.C., to be hand-delivered to the judge by special courier. "Because of the classification level, you'll have to view it somewhere else than your chambers," she said.
Gilbert told O'Sullivan that she has turned over to defense attorneys nearly all the government's evidence in the case of Sheheryar Alam Qazi, 30, and his brother Raees Alam Qazi, 20. The Oakland Park men, 2000 immigrants from Pakistan, are charged with plotting to detonate a bomb somewhere in New York City.
Much of the evidence consists of wiretapped recordings and computer correspondence, Gilbert told the judge during a hearing in Miami federal court, enough to fill a file cabinet.
"There are thousands of audio sessions of different lengths," she said. "There's probably thousands of emails. It would take weeks, if not months, to get through."
If the judge can't look at the motion in chambers, can the prosecutors prepare it in their offices?  Where do they review the evidence?

Friday, July 26, 2013

Sen. Nelson issues blue slip for William Thomas, but Sen. Rubio still holding out

That's the report by The Washington Blade:

The confirmation of William Thomas, whom President Obama first named in November for a seat on the U.S. District Court for the Southern District of Florida, was as of last week held up by both U.S. senators in Florida — Bill Nelson and Rubio — who had yet to return the “blue slips” for the nomination even though it had been pending for more than eight months.

But on Wednesday, following the publication of several media reports on the issue — including one from the Washington Blade — Nelson submitted the blue slips for the nomination, according to Senate sources familiar with the process. Dan McLaughlin, a Nelson spokesperson, confirmed the Florida Democrat had returned the blue slips for the nomination.

Judge Nushin Sayfie is also coming to Judge Thomas' aid, sending this letter to Sen. Rubio.

HT: Glenn Sugameli, who has all the info on Judge Thomas at his website.

Friday news and notes -- Law Professor edition

1.  Professor Rick Bascuas' appellate clinic at UM is making new law again.  This time it's a confrontation clause issue in United States v. Manouchecka Charles.  The issue -- can an agent testify regarding a defendant's translated statement to him through an interpreter, or does the government have to call the interpreter to comply with the Constitution's right to confront witnesses.  The 11th Circuit held that a defendant is entitled to confront the interpreter and relying only on the agent violates the Confrontation Clause.  But because there was no objection during the trial, there was no plain error.  Congrats to Professor Bascuas for spotting this issue and running with it.

2.  Courts around the country continue to give huge downward variances in fraud cases -- even after trial -- because the guidelines make no sense.  Professor Berman has the update on the latest one here, by Judge Kimba Wood in an bid-rigging case:

As reported in this Wall Street Journal, headlined "US set back on bid-rig sentencing," a federal district judge in NYC yesterday handed down a set of white-collar sentences that were far below calculated guideline ranges and far below the sentences being sought by federal prosecutors.  Here are the details:
US District Judge Kimba Wood of the Southern District of New York handed Peter Ghavami, the former co-head of UBS' municipal-bond reinvestment and derivatives desk, an 18-month sentence. Prosecutors had sought at least 17½ years and as long as 21 years, 10 months for Ghavami, who also served as the Swiss bank's head of commodities at one point.
The much harsher sentence proposed by the government would have been longer than the 11-year term given in 2011 to Galleon hedge-fund founder Raj Rajaratnam for his insider-trading conviction.
But Judge Wood, a one-time nominee to become US attorney general who also sentenced former Drexel Burnham Lambert executive Michael Milken to 10 years in prison, raised questions about the government's method of calculating losses in the case, which it had pegged at about $25 million.
She also praised Ghavami's "admirable history" and noted that he faces other penalties including a $1 million fine and deportation to Belgium, where he is a citizen. Because Ghavami, 45 years old, is not a US citizen, he also has to serve in a "low security" prison instead of a "miminum security" camp.
One of Ghavami's former colleagues, Gary Heinz, 40, a former vice president on UBS' municipal-bond reinvestment desk, was given a 27-month sentence Wednesday, while Michael Welty, 49, another former vice president, got 16 months. Prosecutors had asked for at least 19½ years for Heinz and about 11 years or more for Welty.
Last summer, a New York jury found the three former UBS employees guilty of leading a scheme that caused municipalities to pay millions of dollars more for bond deals than they needed to pay. The case dealt with an obscure corner of the bond market in which local governments raise money from investors through bond deals, then invest the proceeds in investment products that banks and others are supposed to sell in a competitive process....
3.  Professor Fredrick Vars has started an online petition to save the Federal Defenders:

Petition: Save Federal Defender Services

Sequestration imperils the constitutional right of criminal defendants to adequate legal representation.  About 90% of federal criminal defendants require court-appointed counsel.  In FY 2013, sequestration resulted in a $52 million cut to Federal Defender Services, bringing massive layoffs and furloughs.  It is estimated that in FY 2014, if nothing is done, FDS will be forced to terminate as many as one-third to one-half of employees.
Funding for prosecutors is apparently headed in the opposite direction.  The Senate Appropriations Committee last week announced a $79 million increase to the FY 2014 budget for U.S. Attorneys’ offices for the express purpose of bringing more criminal cases in federal court.  This radical imbalance threatens the fundamental right to counsel.
Please join me in urging Congress and the President to restore adequate funding for Federal Defender Services. 
Update: Thanks to all for the strong support so far. Please send me an email ( with your name, institutional affiliation (if applicable), and city of residence. I will subsequently post a document with this petition and the names of signatories.
Fredrick Vars
Associate Professor, University of Alabama School of Law
Birmingham, Alabama

Wednesday, July 24, 2013

Your moment of Zen -- cubicle guy

The First Circuit's 57-page opinion about a misdemeanor for soiling a federal courthouse bathroom

Here, including pictures and a dissent.

Judge Richard Kopf discussed the case at his blog:
In Strong, the defendant was convicted of three misdemeanors, and received a sentence of seven days in jail, for literally messing up a bathroom in a federal court-house.  He claimed to have a problem with his bowels, but the government saw his conduct in more a malicious light.  This is the way the bathroom looked to the cleaning lady shortly after Strong left the bathroom:

The supervisor of the courthouse’s cleaning company,
Christina Mason, arrived to clean the restroom after receiving a call requesting that it be cleaned. She smelled feces from the hallway, and when she opened the door she could not enter the restroom because feces were on the floor where one would need to step to get inside. The restroom was unusable because it was so soiled. She saw that seventy-five percent of the floor was covered in feces, in chunks. She also saw feces smeared in spots on several walls in different areas. In fact, some of the feces were
smeared more than two feet up on the walls. Feces were smeared on the paper towel and toilet paper dispensers, on the toilet paper itself, and on part of the toilet seat and the left side of the toilet bowl. There was also urine in the toilet, which had not been flushed; no feces were inside the liquid in the bowl. Mason testified that the feces were not only all over the bathroom but were “smear[ed] in spots,” and not splattered. Strong’s plaid blue boxers, which were covered in feces, were found by Mason draped over the wastebasket where Strong admits he placed them because they were “destroyed.”
The state of the bathroom was so bad that Mason, who had
fourteen years’ experience at the courthouse and training in
cleaning up bodily substances, was initially at a loss for how to clean the restroom. She devised a plan and first used paper towels and disinfectant to remove the feces from the floor. She then cleaned the restroom three times with a bleach and water solution, and discarded the soiled underpants, the potentially soiled rug that had been outside the restroom, and the clothes she had been wearing using a biohazard bag.
Id. at slip op. pp. 5-6.

Strong appealed. If you include the dissent, and the photographs attached to the decision, the discussion on whether the defendant had been proven guilty goes on for 57 pages. Two judges voted to affirm the conviction, and one judge voted to reverse.

I don’t know much.  But I do know this:  No misdemeanor case about a soiled toilet and a seven-day jail sentence is worth 57 pages of attention from a United States Court of Appeals. That’s true even if you, like me, are a freak about toilets.

Monday, July 22, 2013

"Justice Sequestered"

That's the headline of this NY Times opinion piece.  The intro:

The madness of Washington’s across-the-board budget cuts known as sequestration is causing real damage to the American justice system — undermining the sound functioning of the courts and particularly imperiling the delivery of effective legal representation to poor people accused of federal crimes.
The $350 million reduction in the federal judiciary’s budget for fiscal 2013 has resulted in a roughly 8 percent cut to the network of high-quality federal defender offices across the country. It has forced the layoffs of many experienced lawyers who have devoted their professional careers to the underappreciated and underpaid work of representing indigent federal defendants. And it has inflicted a pay cut on the defenders who remain on staff in the form of up to 20 unpaid furlough days.
These hits to the core legal staff have been accompanied by other blows, including reductions in lawyer training, research, investigation of cases and expert help, including interpreters. The cuts have also meant crippling reductions to federal probation and pretrial services, including mental health treatment, drug treatment and testing, and court supervision — all with disquieting implications for people’s rights and public safety. 

And it's not getting better:
That things have reached this point is a deep embarrassment for a nation grounded on the rule of law. Yet it appears that the situation is about to get much worse. Federal defender offices have been told to prepare for another round of cuts of roughly 14 percent for the 2014 fiscal year that begins Oct. 1. 

But this will save the government money, right?  Nope.  Huffington Post followed up with this article about how the cuts will cost the taxpayer much more:

When federal public defenders aren’t able to take a case because of a conflict, or because their workload is too great, the job falls to private court-appointed attorneys known as Criminal Justice Act panel attorneys. Those lawyers are paid from the same pool of money as federal public defenders, but they cost much more and, according to some studies, are less effective.
To keep the budget from completely exploding, the Judicial Conference, a group of senior circuit judges that helps administer guidelines for the courts, could -- indeed, may have to -- reduce the rates paid to private attorneys, but that could mean fewer CJA lawyers would be willing to take up such cases. That, in turn, would result in the accused spending more time in prison waiting for trials -- only further driving up costs.
“It’s a situation where the federal government will wind up paying far more,” said A.J. Kramer, the top federal public defender in Washington, D.C.
It doesn't make any sense. But it wasn't supposed to. The $85 billion in sequestration cuts -- which included reductions to the federal public defender budget -- were designed to be so onerous that lawmakers would have no choice but to turn the whole thing off. Except they never did.

 What's the federal government's answer?  Build more prisons even though it costs more to put someone in prison than it does to supervise him.  A lot more:

In 2012, the annual cost of placing an offender in a Bureau of Prisons institution or federal residential reentry center was roughly eight times the cost of placing the same offender under post-conviction supervision by a federal probation officer. Pretrial detention for a defendant was nearly 10 times more expensive than the cost of supervision of a defendant by a pretrial services officer in the federal system.

Trayvon Martin demonstration held outside Miami federal courthouse over the weekend

It was covered by the NY Times and the Miami Herald.

From the Herald:
But Trayvon’s dad had a far simpler message Saturday in downtown Miami.
“I’d like the world to know that Trayvon was my son. He was a loved child. He did nothing wrong,” Tracy Martin said to the crowd of about 500 at the federal courthouse on North Miami Avenue.
“I promised Trayvon, when he was laying in his casket, that I would use every ounce of energy in my body to seek justice for him,” he said. “I will continue to fight for Trayvon until the day I die.”
“Not only will I fight for Trayvon, I’ll be fighting for your child as well,” he said. “One of our deepest missions is to make sure that we advocate against senseless violence. Senseless violence is just a disease. And we as a people have the cure. We just have to come together.”
Some pictures by Emily Michot of the Herald:

Thursday, July 18, 2013

Federal JNC to interview for two open judicial seats, not just one

Here's the letter from Senators Nelson and Rubio, saying that in addition to Judge Seitz's seat, they would like the JNC to interview for Judge Graham's seat because he is taking senior status at the end of the year.  Applications are due August 19, and the interviews will be September 17 (see JNC letter). 

Meantime, it's time for William Thomas to be confirmed to the federal bench.  This is just getting absurd already (his nomination has been pending 263 days) and people are starting to take notice. For example, the Congressional Black Caucus had this to say (via the Miami Herald):

“We have no idea,” Rep. Frederica Wilson, D-Miami, said in an interview, her frustration visible. “When there’s just absolute silence, you can’t think of anything but political gamesmanship.”

The complaints from the Congressional Black Caucus are broader than Florida. In a statement, the group said, “Currently, 30 percent of judicial nominees pending confirmation in the Senate are African-American.”

The group said that out of 787 federal positions, only 95, or about 8 percent, are held by black judges.

“A more diverse judicial system helps to deliver justice but also to boost public confidence in the vote,” Wilson said. “So I ask, why the delay?”

Judge Thomas is one of the most respected state court judges that we have. It's not right that he's been waiting so long.

From the Huffington Post:

Rep. Alcee Hastings (D-Fla.) said he has known Thomas since he was a child and can't figure out why Rubio isn't letting his nomination through. Both nominees have cleared Florida's Federal Judicial Nominating Commission, which vets nominees and makes recommendations to senators representing the state.
"I know this much: William Thomas was here before Marco Rubio's family came here," Hastings fumed during a press conference with members of the Congressional Black Caucus, or CBC. "It would seem to me that Marco Rubio could pick up the telephone and call me and ask me a little bit more about William Thomas if he needs to know something more about him."

Glenn Sugameli always has the scoop on this stuff, and is tracking the lengthy delay for Judge Thomas, which will hopefully end soon.

Tuesday, July 16, 2013

Zimmerman jury initially split

I find the post-trial interviews with the jurors fascinating. Last night one of the jurors spoke with Anderson Cooper and explained that the initial vote was 3 Not Guilty, 2 Manslaughter, and 1 Murder. Wow -- this just shows how hard it is to get an across-the-board acquittal and how much closer this case was than the pundits said. I also thought it interesting how important jury instructions are in close cases. The jurors quickly came to agreement on the facts, but struggled with how those applied to the law, especially with manslaughter and self-defense. Who can blame them... the instructions were impenetrable. Lots of credit to jury consultant Robert Hirschhorn who picked the jury.

In other news:

1. The NY Times covers the government's secret surveillance program and how it's playing out in courts, including our District:

In February, in a 5-to-4 decision that split along ideological lines, the Supreme Court accepted Mr. Verrilli’s assurances and ruled in his favor. Justice Samuel A. Alito Jr., writing for the majority in the case, Clapper v. Amnesty International, all but recited Mr. Verrilli’s representation.

“If the government intends to use or disclose information obtained or derived from” surveillance authorized by the 2008 law “in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.” (Again, note the phrase “derived from.”)

What has happened since then in actual criminal prosecutions? The opposite of what Mr. Verrilli told the Supreme Court. Federal prosecutors, apparently unaware of his representations, have refused to make the promised disclosures.

In a prosecution in Federal District Court in Fort Lauderdale, Fla., against two brothers accused of plotting to bomb targets in New York, the government has said it plans to use information gathered under the Foreign Intelligence Surveillance Act of 1978, or FISA, which authorized individual warrants. But prosecutors have refused to say whether the government obtained those individual warrants based on information derived from the 2008 law, which allows programmatic surveillance.

Prosecutors in Chicago have taken the same approach in a prosecution of teenager accused of plotting to blow up a bar.

In the Fort Lauderdale case, Magistrate Judge John J. O’Sullivan ordered the government to disclose whether it had gathered information for the case under the 2008 law. He relied on Justice Alito’s statement in the Clapper decision. The government has moved for reconsideration.

2. I always like FNU LNU stories:

When the man appeared before a federal judge in Manhattan to be sentenced in a drug case, he had a lawyer by his side, supporters in the courtroom and letters attesting to his character. Only one thing was missing: his true identity.

A program from “Fnu Lnu,” an Off Broadway play inspired by a newspaper correction published after the term was mistaken for an actual name.

Throughout his trial and conviction, the defendant had claimed to be someone he was not, and no one had any idea who he really was.

“I sentence people almost every day,” the judge, Richard J. Sullivan, said, “and I will tell you candidly, I am not aware of anybody who has done what you have done in this case.”

Court records had listed the man as “Fnu Lnu,” shorthand for “First name unknown, Last name unknown.” The acronym is often used in the early stages of a criminal case, when investigators cannot identify a voice on a wiretap, or the identity of someone picked up in an immigration sweep.

“Fnu Lnu is a stand-in; he’s the missing man; he’s the defendant you know exists but cannot name,” said Steven M. Cohen, a former federal gangs prosecutor.

But the designation, at once mysterious and common, has taken on a life of its own in courts around the country, with Fnu Lnus being mistaken for an actual name, confusing judges and lawyers, and in one case spawning a memorable newspaper correction and even an Off Broadway play.

At any given time there can be hundreds of Fnu Lnus in the court system. Such defendants’ identities are usually sorted out quickly, through fingerprints or by other means. But in rare cases where defendants have remained anonymous throughout their entire prosecution, defense lawyers end up making arguments that can border on the surreal.

3. Should the AG be commenting on (some say undermining) a jury verdict? From the Washington Post:

With the acquittal of George Zimmerman continuing to reverberate nationwide, Attorney General Eric H. Holder Jr. said Monday he shares concerns about “the tragic, unnecessary shooting death” of an unarmed black teenager in Florida last year, and he vowed to pursue a federal investigation into the matter.

In a speech at the social action luncheon of the Delta Sigma Theta sorority, Holder pledged that the Justice Department would “continue to act in a manner that is consistent with the facts and the law” and would work to “alleviate tensions, address community concerns and promote healing” in response to the case.

“We are determined to meet division and confusion with understanding and compassion — and also with truth,” he said. “We are resolved, as you are, to combat violence involving or directed at young people, to prevent future tragedies and to deal with the underlying attitudes, mistaken beliefs and stereotypes that serve as the basis for these too common incidents. And we will never stop working to ensure that — in every case, in every circumstance, and in every community — justice must be done.”

Sunday, July 14, 2013

Should the feds indict George Zimmerman?

Although Zimmerman was just acquitted of second degree murder, many are now clamoring for a federal indictment.

But doesn't the double jeopardy bar a federal prosecution after a complete acquittal in state court?

Nope. Although the Fifth Amendment provides, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb," the Supreme Court in Abbate v. United States, 359 U.S. 187 (1959), said the dual sovereignty doctrine permits both the State and the Feds to prosecute the same person for the same crime:

The basic dilemma was recognized over a century ago in Fox v. Ohio. As was there pointed out, if the States are free to prosecute criminal acts violating their laws, and the resultant state prosecutions bar federal prosecutions based on the same acts, federal law enforcement must necessarily be hindered. For example, the petitioners in this case insist that their Illinois convictions resulting in three months' prison sentences should bar this federal prosecution which could result in a sentence of up to five years. Such a disparity will very often arise when, as in this case, the defendants' acts impinge more seriously on a federal interest than on a state interest. But no one would suggest that, in order to maintain the effectiveness of federal law enforcement, it is desirable completely to displace state power to prosecute crimes based on acts which might also violate federal law. This would bring about a marked change in the distribution of powers to administer criminal justice, for the States under our federal system have the principal responsibility for defining and prosecuting crimes. See Screws v. United States, 325 U. S. 91, 109; Jerome v. United States, 318 U. S. 101, 104-105. Thus, unless the federal authorities could somehow insure that there would be no state prosecutions for particular acts that also constitute federal offenses, the efficiency of federal law enforcement must suffer if the Double Jeopardy Clause prevents successive state and federal prosecutions. Needless to say, it would be highly impractical for the federal authorities to attempt to keep informed of all state prosecutions which might bear on federal offenses.

Even though the law allows for a federal prosecution, it seems extremely unlikely in this case for all sorts of policy reasons.

The DOJ issued this statement, saying its investigation was ongoing:


As the Department first acknowledged last year, we have an open investigation into the death of Trayvon Martin. The Department of Justice's Criminal Section of the Civil Rights Division, the United States Attorney's Office for the Middle District of Florida, and the Federal Bureau of Investigation continue to evaluate the evidence generated during the federal investigation, as well as the evidence and testimony from the state trial. Experienced federal prosecutors will determine whether the evidence reveals a prosecutable violation of any of the limited federal criminal civil rights statutes within our jurisdiction, and whether federal prosecution is appropriate in accordance with the Department's policy governing successive federal prosecution following a state trial.

The Herald quotes friends of the blog here:

Jurors found that prosecutors failed to prove the more serious second-degree charge that Zimmerman, the neighborhood watchman at a Sanford gated community, possessed “ill-will,” “hatred” or “spite” in the fatal shooting of Martin. Instead, the six female jurors found that Zimmerman acted in self-defense.

Consequently, experts said, it would be legally inconsistent for the Justice Department to consider filing criminal charges against Zimmerman under the federal Shepard-Byrd Hate Crimes Prevention Act of 2009. Generally, that law prohibits someone from “willfully causing bodily injury” to another person because of his race, color, religion or national origin.

“If the state jury had been persuaded beyond a reasonable doubt that Zimmerman caused bodily harm to Trayvon Martin because of Martin’s race, it would have almost certainly convicted Zimmerman of second-degree murder, which requires proof of ‘ill-will’ or ‘malice,’” said Scott Srebnick, a prominent federal criminal defense attorney in Miami. “So, to bring a federal civil-rights prosecution against Zimmerman, the attorney general would essentially be second-guessing the state jury’s verdict as opposed to vindicating a different or broader federal interest.”

Srebnick added: “I find it doubtful that the attorney general will pursue a prosecution on a civil rights theory simply out of displeasure with the state jury’s verdict.”

Brian Tannebaum, a Miami defense attorney and past president of the Florida Association of Criminal Defense Lawyers, agreed.

“People are comparing this case to Rodney King, where there was a federal prosecution after a state acquittal, but the difference there was there were witnesses, specifically the video everyone still remembers,” Tannebaum said, referring to a man’s sensational videotape of the police beating.

Friday, July 12, 2013

Role Reversal: Zimmerman closing arguments

Interesting dynamic in the Zimmerman closings so far.

The prosecutor's closing yesterday seemed very much like a defense closing -- passionate and poking holes in Zimmerman's story. He seemed to be arguing that there is a reasonable doubt about Zimmerman's version of events.

This morning, O'Mara started his closing by accepting the burden of proof and arguing that Zimmerman is "100% innocent." He is also very low key, walking them through the facts and the elements of self-defense.

I thought the prosecution crushed the defense in opening statements, but it seems just the opposite so far in closings. The prosecutor was screaming and yelling way too much.

Anyway, Rumpole hates when juries go out on Friday afternoon... But I don't think there will be a verdict today.

UPDATE -- the rebuttal was much better, but than the opening summation. Intense, but not screaming at the jury. Predictions on when the verdict will come back and what it will be?

Thursday, July 11, 2013

Thursday News & Notes

1.  Judge Lenard denied Juan Caro's bid for a new trial, rejecting his request for a hearing to find out when the government knew about Nevin Shapiro's bad acts.  From the Herald:

Lenard rejected a new bid by defense attorney Arturo Hernandez to hold an evidentiary hearing to explore whether a Justice Department lawyer who teamed up with a Miami prosecutor in the La Bamba trial knew about the FBI’s investigation of Shapiro in New Jersey months before he took the stand.
Hernandez filed documents such as government emails in hopes of challenging the Miami prosecution team’s timeline.
The Miami prosecutors first informed Hernandez of the Shapiro criminal probe when Shapiro was charged in April 2010.
Hernandez argued that had he been told about the Shapiro probe, he would have asked him about his investment scam on the witness stand. Hernandez said he was “disappointed” with the judge’s ruling.

2.  The Justice Department found lots of bad Miami police shootings.  From the NY Times:

Federal officials have found that the Miami Police Department engaged in a pattern of excessive force that led to a high number of shootings by officers, among them episodes that resulted in the deaths of seven young black men over an eight-month period in 2011.
The findings, released on Tuesday, came after a two-year investigation by the Justice Department’s civil rights division, and they identified “troubling” practices, including delays in completing investigations of officer-involved shootings, questionable police tactics and a lack of adequate supervision. From 2008 to 2011, officers intentionally fired their weapons at people 33 times, the investigation found.       
In a summary addressed to Tomas P. Regalado, Miami’s mayor, and Manuel Orosa, the police chief, the Justice Department noted that its own investigation would have been completed sooner if not for the Police Department’s “frequent inability to produce necessary documents in a timely fashion.”

 Here's the letter to the Mayor.

3.  Young guns can see who the best closer is at this upcoming competition.  My advice -- don't start with a knock knock joke.

4.  Judge Kozinski is so good.  Footnote 1 from a 1992 opinion of his that was recently emailed to me:

We do not (except in the caption) follow the appellant's counsel's interesting practice of writing the names of the people involved in CAPITAL LETTERS. Neither do we follow the appellee's counsel's practice of writing appellant's name in BOLD-FACED CAPITAL LETTERS. Nor do we intend to write all numbers both as text and numerals, as in "eleven (11) loose teeth, two (2) of which were shattered[;] [m]oreover, her jaw was broken in three (3) places." Appellee's Brief at 7. Finally, we will also not "set off important text" by putting it on "separate lines" and enclosing it in "quotation marks."
See id. at 10. While we realize counsel had only our welfare in mind in engaging in these creative practices, we assure them that we would have paid no less attention to their briefs had they been more conventionally written.

Tuesday, July 09, 2013

AUSA Michael Garofola doesn't get a rose

This was Michael G.'s last episode (prior blog coverage about the federal prosecutor on the Bachelorette here).  He had a good run on the show, making it to the final five. 


Gossip Cop has the recap of the show.  Some highlights:

Next up was Michael G, getting to have a 1-on-1 with Hartsock for the first time.
After going tobogganing, the federal prosecutor opened up about his estrangement with his father, his battle with Type I diabetes, and finding out his live-in girlfriend was cheating on him.
“The silver lining to all this is that — I mean this from the bottom of my heart — is I’m feeling these feelings again,” he told Hartsock, adding to the camera later that he’s “falling in love.”
For her part, the reality star told the camera that “Michael is one of the greatest guys I ever met.”
At the rose ceremony, Hartsock ultimately gave roses to everyone except Michael.
She explained to the shell-shocked contestant her other relationships were “growing differently.
“I’m heartbroken,” he confessed as Hartsock went on to praise their “friendship,” before wishing each other “the best.”

Monday, July 08, 2013

Did you know we had a secret court, operated by similar thinking judges on an ex parte basis?

The New York Times had a front page piece on the FISA Court this weekend.  The whole thing is worth a close look.  From the article:

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.
Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. In fact, it is not clear in all circumstances whether Internet and phone companies that are turning over the reams of data even have the right to appear before the FISA court.

Created by Congress in 1978 as a check against wiretapping abuses by the government, the court meets in a secure, nondescript room in the federal courthouse in Washington. All of the current 11 judges, who serve seven-year terms, were appointed to the special court by Chief Justice John G. Roberts Jr., and 10 of them were nominated to the bench by Republican presidents. Most hail from districts outside the capital and come in rotating shifts to hear surveillance applications; a single judge signs most surveillance orders, which totaled nearly 1,800 last year. None of the requests from the intelligence agencies was denied, according to the court.

Closer to home, visa-fraud prosecutions are up.  According to the Herald:

A report released in April by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) showed that visa fraud criminal prosecutions now rank third among the top 10 immigration law prosecutions in the country.
Also, a Government Accountability Office report issued in September said the State Department screens visa applicants for fraud.
But GAO auditors found that consulates do not systematically employ methods to prevent fraud.
“State has a variety of technological tools and resources to assist consular officers in combating fraud, but does not have a policy for their systematic use,” the GAO report said.
In response, the State Department said it generally agreed with GAO findings and would implement recommendations to improve fraud tracking .
The GAO report said the top 10 countries where visa fraud occurs are China, Dominican Republic, Mexico, India, Brazil, Ghana, Cambodia, Jamaica, Peru and Ukraine.

Friday, July 05, 2013

Your Friday moment of Zen

Gotta love technology.  Here's Rachel Maddow on the Zimmerman trial getting Skype Bombed:

And here's the actual raw footage of the whole thing:


Wednesday, July 03, 2013

Happy Birthday to the Blog!

Yesterday, the blog turned 8 years old.  Pretty neat.

This was the original post, asking the President to appoint a Floridian to the Supreme Court.  We are still waiting 8 years later....

Since then, your first local legal blog has had 2,361 posts and almost 2 million page views

The most popular post this year was breaking the story that AUSA Mike Garofola was going to be a contestant on the Bachelorette.  Second, was Dore Louis' NSA motion.

After the United States, the blog's readership is as follows:

United States
United Kingdom

The blog has broken a number of stories this year, including your newest magistrate judges and the nomination of Will Thomas to the federal bench (he needs to get confirmed already!).  Speaking of magistrates, Alicia Valle was officially named to the bench yesterday.  Congrats to her!

It's been really fun for me to post over the last 8 years, and I hope you have enjoyed the blog as much as I have had doing it.

Happy Fourth of July!


Monday, July 01, 2013

What was Chief Judge Roberts' favorite case of the Term?

B.  Voting Rights
C.  Affirmative Action
D.   DNA
E.  Fane Lozman's house boat case

Yup, you got it -- E.  The Chief Justice loved the case from the Southern District of Florida about whether the floating structure was a house or a boat.  From Forbes:

Turns out the Chief Justice felt the same way. In this interview on C-SPAN, John Roberts called the lawsuit over whether a floating house was a boat one of his favorites from the last term.It’s surprising to hear this, given the momentous cases that were also before the court: The Voting Rights Act, gay rights, affirmative action, human gene patents — nearly all of them had broader implications for society at large than Fane Lozman’s Quixotic battle with the authorities of a coastal city in Florida over whether they had the power to haul his home away.“There are going to be  half-dozen cases people are going to be talking about,” Roberts said in the interview with Fourth Circuit Court of Appeals Judge J. Harvie Wilkinson III.“The littler ones can be quite fascinating,” he said, however. “My favorite from last term was a case called Lozman."“The way cases develop in the law, you have something that seems to fit not comfortably on either category,” Roberts said. “Depending on which side you were on, it was either a floating home or a house boat.”In Lozman’s case, it was a seedy-looking house on a floating platform, connected to shore with a garden hose and an extension cord. Lozman had towed it hundreds of miles around the Florida peninsula, but the house didn’t have any power to move itself. City officials argued it was a boat for purposes of obtaining a maritime lien and impounding it. The court decided otherwise, in a decision with implications for much more significant structures like floating casinos.“We had a lot of fun with it …looking at the different characteristics and posing a lot of interesting hypotheticals at the argument,” Roberts said. At one point, the justices seemed to be toying with the lawyer for Riviera Beach, trying to back him into ridiculous definitions of a boat.Roberts asked if an inner tube qualified. After all, it could support a human and move him from place to place. Then Justice Stephen Breyer chimed in: “This cup. what about the cup?” Justice Sonia Sotomayorasked, “what about a garage door?” And Elena Kagan followed up with: Take the inner tube, and you know, paste a couple of pennies on the inner tube. Now it carries things.”
On a separate note, I haven't been watching the Bachelorette, but I'm told that local AUSA Michael Garofola has made the top 5....  And that he is very against other contestants cursing on the show.  

So you wanna be a federal judge?

The Federal JNC is reconstituted and its finally taking applications for Judge Seitz's open seat.  Applications are due July 31, and interviews will take place on August 21.

The Florida Bar website listing the JNC members was wrong, and so my prior post had the wrong list of JNC members.  The correct list is:

Kendall Coffee
Alex Acosta
Georgina Angones
Reginald Clyne
Vivian de las Cuevas-Diaz
Albert Dotson
Phil Freidin
Carey Goodman
Cynthia Johnson-Stacks
Manny Kadre
Ira Leesfield
Dexter Lehtinen
Richard Lydecker
Thomas Panza
David Prather
Dennis Alan Richard
Jon Sale
Stephen Zack
Marilyn Holifield
Harley Tropin
Danny Ponce

You can grab the application here if you are interested.

Meantime, Holly Skolnick's memorial service was Sunday, and it was an amazing outpouring of love and support.  Really nice memories of her from her family and friends...  What a big loss for the community. Holly is survived by her husband Richard Strafer,* their daughter, and her parents. 

*As an aside, Richard is working on the Kaley case (along with Howard Srebnick), headed to the Supreme Court next Term, which Curt Anderson covered yesterday:

When Kerri and Brian Kaley came under federal investigation for allegedly stealing medical devices, they took out a $500,000 line of credit on their New York house to hire lawyers. Yet after their indictment in 2007, prosecutors sought to prevent the Kaleys from using the money because the government intended to seize the house.
The Kaleys insisted they were legally reselling the medical items. At the very least, they wanted a hearing to determine whether the government's case was strong enough to justify freezing most of their assets and denying them the right to hire the attorney of their choice.
It's an issue federal courts around the country are deeply divided over. Now, the U.S. Supreme Court has a chance to settle the matter after agreeing earlier this year to hear the Kaleys' appeal.