11th Circuit update

Thanks very much to JANE MOSCOWITZ for this guest post:

Richard Strafer and Howard Srebnick had a big win in the Eleventh Circuit this week in United States v. Kaley. Judges Marcus, Wilson and Tjoflat reversed and remanded the district court's decision not to permit the Defendants to challenge the pretrial restraint of assets they wanted to use to hire their counsel of choice, Howard Srebnick and Susan Van Dusen. Judge Marcus wrote that the Court was bound by United States v. Bissell, 866 F.2d 1343 (11th Cir. 1989), which held that a defendant is only entitled to such a hearing if he meets the Barker v. Wingo balancing test. Here, clearly believing that there should have been an evidentiary hearing, the Court determined that the trial court had failed correctly to balance the Defendants’ assertion of their right to a hearing and the prejudice to them of its denial. Judge Marcus especially noted the prejudice to the Defendants of being deprived of their counsel of choice, calling that a “powerful” form and “substantial source” of prejudice. The Court sent the case back for a correct evaluation of the factors to determine whether a hearing should be held.

Judge Tjoflat concurred in a separate opinion in which he held that Bissell should not apply because its use of Barker v. Wingo was “non-binding dicta.” Judge Tjoflat did not find the return of the indictment or the submission of an ex parte affidavit sufficient to determine whether the restrain was proper. He wrote that under the standard procedural due process test of Mathews v. Eldridge, an evidentiary hearing should be held ( a proposition with which Judge Marcus agreed) and should be held pretrial. The resolution of whether assets that are to be used for the payment of counsel of choice may continue to be restrained cannot wait for determination at the trial. He noted that, if the matter is carried along till trial, the “prosecutorial incentives increase the likelihood of an erroneous deprivation in the absence of a prompt hearing. A prosecutor has everything to gain by restraining assets that ultimately may not be forfeited. By doing so, he can stack the deck in the government’s favor by crippling the defendant’s ability to afford high-quality counsel. If the prosecutor can delay judicial oversight of the restraint until trial, he also has nothing to lose, as he does not have to dedicate any extra resources to defending his decision.”

Friday's notes

School's back Monday. To get you in the mood, here's a clip from Back to School:



The DBR reports that the mold lawsuit filed by Ted Klein's family has been dismissed by Judge Story. Apparently, you can only get $1,000 under the Federal Employees Compensation Act when death results from on-duty injuries of a federal employee. Readers, can this law be constitutional? That seems insane to me.

The UBS case keeps going and going and going. This time a banker and a lawyer have been indicted. Via Curt Anderson:

A banker and a lawyer from Switzerland were indicted Thursday on fraud charges for allegedly helping rich Americans evade taxes by hiding assets in Swiss banks, including UBS AG and a smaller Zurich-based institution.

Among the allegations in court documents against banker Hansruedi Schumacher, 51, and 42-year-old attorney Matthias Rickenbach is that they told a New York businessman they paid an unnamed Swiss government official a $45,000 bribe for information on whether the businessman's account would be revealed to U.S. investigators.

Schumacher and Rickenbach each face a single charge of conspiring to defraud the U.S., which carries a potential five-year prison sentence. Prosecutors said both men remain in Switzerland, and it wasn't immediately clear if they had U.S. lawyers to represent them.

The indictment comes one day after the Swiss and U.S. governments unveiled an agreement in which UBS will divulge names of some 4,450 wealthy Americans suspected of dodging taxes through secret bank accounts. Many of those people, and the bankers and attorneys who advised them, could also face criminal charges.

And from the last post, we're debating Plaxico Burress' two year sentence in the comments. Go post your thoughts.

Quick Poll

I had a lengthy debate with some friends today about whether Plaxico Burress' sentence was the right result or not. (If you aren't familiar with the case, here's some background).

Settle a score for us and vote:

How do you feel about Plaxico Burress' two year sentence?
	Just right
	Too short
	Too long
pollcode.com free polls

Why Professor Dershowitz Rocks

The challenge. This time to Scalia on his dissent, blogged about a couple of days ago by one of our favorite readers:

I hereby challenge Justice Scalia to a debate on whether Catholic doctrine permits the execution of a factually innocent person who has been tried, without constitutional flaw, but whose innocence is clearly established by new and indisputable evidence. Justice Scalia is always willing to debate issues involving religious teachings. He has done so, for example, with the great Rabbi Adin Steinsaltz, and with others as well. He also has debated me at the Harvard Law School. Although I am neither a rabbi nor a priest, I am confident that I am right and he is wrong under Catholic Doctrine. Perhaps it takes chutzpah to challenge a practicing Catholic on the teachings of his own faith, but that is a quality we share.
I invite him to participate in the debate at Harvard Law School, at Georgetown Law School, or anywhere else of his choosing. The stakes are high, because if he loses—if it is clear that his constitutional views permitting the execution of factually innocent defendants are inconsistent with the teachings of the Catholic Church—then, pursuant to his own published writings, he would have no choice but to conform his constitutional views to the teachings of the Catholic Church or to resign from the Supreme Court.

Dersh is one of the best debaters around as is Scalia. I would pay an awful lot to see this matchup. Hat Tip: ATL.

UPDATE -- I just emailed with Dersh and asked him whether he had ever debated a Supreme Court Justice before and he said yes -- he debated Scalia in his class a few years back (he mentions that debate in the article linked to above). I also asked him what he thought his most famous debate was and he said probably his debate with Rabbi Meir David Kahane:



SECOND UPDATE -- A friendly reader points out that it is "interesting that the dissent which sparked the SCOTUS ruling was issued by a former Catholic nun (Judge Barkett)."

Order in Paris Hilton case

Judge Moreno ruled in Paris Hilton's favor on Monday (background here) -- she does not have to pay $8.3 million even though her film “Pledge This!’’ bombed. From Judge Moreno's order: “The court finds compelling evidence in the record that ‘Pledge This!’ lost money because the film’s inexperienced producers hastily cobbled together a wholly inadequate marketing plan.’’

But Judge Moreno's best case forever isn't over. He wants further briefing (and potentially a further hearing) on the issue of whether she has to repay any part of her $1 million compensation. Yay, more Paris Hilton in federal court.

UBS snitches

Oh, there are going to be a bunch of these. Here's one where the government is recommending a 50% reduction (via Curt Anderson):

A former Swiss banker should get a sharply reduced prison term for helping the U.S. government as a star witness in a wide-ranging tax evasion investigation of banking giant UBS AG, federal prosecutors said Tuesday.
The motion filed in federal court comes a week after U.S. and Swiss governments settled out of court to end an IRS lawsuit against UBS. Under that deal, the Swiss agreed to let UBS name at least some wealthy U.S. clients behind 52,000 accounts, information that had been protected by the country's vaunted bank secrecy laws.
Assistant U.S. Attorney Jeffrey A. Neiman said in the motion that Bradley Birkenfeld, 43, had provided extensive cooperation. Because of that, he deserved no more than 2 1/2 years in federal prison, or half the five-year maximum for his guilty plea on a charge of conspiring to defraud the U.S.
Birkenfeld provided key information not only to U.S. prosecutors but also to foreign authorities investigating UBS, the Securities and Exchange Commission, the Internal Revenue Service and a U.S. Senate panel.
"This substantial assistance has been timely, significant, useful, truthful, complete and reliable," Neiman said in the motion.

Totally off topic, check out this picture of Hurricane Bill. Pretty cool. (HT: A. Spellman)

Judge Barkett's "fervent, lonely" dissent reaches open ears of Supreme Court

One of my favorite readers has sent in this guest post, and I post it here:

Three days ago The New York Times highlighted Eleventh Circuit Judge Barkett as the author of a "fervent, lonely" dissent which expressed frustration with AEDPA's "thicket of procedural brambles." According to Judge Barkett's dissent, deathrow inmate Troy Davis was entitled to a hearing on evidence that strongly supported a compelling claim of actual innocence. The Eleventh Circuit held otherwise. But today, the Supreme Court relied heavily on Judge Barkett's dissent when ordering the district court to hold a hearing on the evidence of Davis' actual innocence. (The short, three-page order stemming from a rare grant of an original writ of habeas is worth reading for its powerful, plain, equity-driven prose.) Facing head-on against the dissenting Justices Scalia and Thomas, Justice Stevens, joined by Justices Ginsburg and Breyer, wrote:

JUSTICE SCALIA’s dissent is wrong in two respects. First, he assumes as a matter of fact that petitioner Davis is guilty of the murder of Officer MacPhail. He does this even though seven of the State’s key witnesses have recanted their trial testimony; several individuals have implicated the State’s principal witness as the shooter; and “no court,” state or federal, “has ever conducted a hearing to assess the reliability of the score of [postconviction] affidavits that, if reliable, would satisfy the threshold showing for a truly persuasive demonstration of actual innocence,” 565 F. 3d 810, 827 (CA11 2009) (Barkett, J., dissenting) (internal quotation marks omitted). The substantial risk of putting an innocent man to death clearly provides an adequate
justification for holding an evidentiary hearing. . . . But imagine a petitioner
in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man. The dissent’s reasoning would allow such a petitioner to be put to death nonetheless. The Court correctly refuses to endorse such reasoning.

Judge Barkett had explained to The New York Times that her dissents are fueled by “mostly frustration that I cannot make people see what I see." Hopefully, today's ruling gives Judge Barkett a small sense of satisfaction that her dissent succeeded in making others see what she sees.

The last week of good traffic

Gridlock starts next week with the start of school...

Looks like the storms are gonna miss us. Rumpole has been updating us all weekend on the positions of the storms. A tip for the future: keep an eye on the Herbert boxes.

The blawgosphere is aflutter over the possibility of free PACER. (Thanks to MDO for the tip, but Miguel, shouldn't you be studying for the fantasy football draft?) I'm all for free access to the courts, but I've heard grumbling among lawyers that electronic filing has led to their pleadings being stolen and that making PACER free will lead to even more stealing. Isn't that the greatest form of flattery? SFLawyers makes passing reference to lawyers looking at Iqbal motions to dismiss. Is it me, or is SFL oddly obsessed with Iqbal. Yes, we had a Paris obsession here a couple weeks back, and that was strange, but this Iqbal craze is, well, strange.

Rick Bascuas blogs about the en banc 11th Circuit looking into sentencing practices after giving discretion back to district judges. Apparently, the government isn't happy about below guideline sentences. Shock.

Anyone trying any cases this week?