Jose Padilla case to be argued in the 11th Circuit this week

And SDFLAers, you won't be able to watch it unless you are in Atlanta tomorrow.

The DBR previews the argument here. Both sides have appealed -- the defense has appealed the conviction and the government has appealed the sentence. Should be interesting to see what the court is focused on during the oral argument.

Here's the intro to the DBR story:

Expect the specter of Osama bin Laden and the torture of detainees to be raised Tuesday during oral arguments in the appeals by reputed dirty bomber Jose Padilla and two co-defendants convicted of sponsoring terrorism abroad. The arguments come just a few weeks after the failed Christmas Day attempt by a Nigerian man linked to the terrorist group al Qaeda to blow up an American airliner. Foremost among the issues before a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta is a decision by the trial judge to allow jurors to see a videotape of al Qaeda leader bin Laden. Attorneys for Padilla, Adham Hassoun and Kifah Jayyousi say the trial was forever tainted when the videotape was played because it linked the defendants to the worst terrorist attack on U.S. soil even though they were charged with other crimes. “The error in the admission of the bin Laden video arose out of tying the architect of the horrific attacks of September 11, 2001, to a case that, as to all defendants, involved conduct which predated these attacks,” Padilla’s attorney, Assistant U.S. Federal Defender Michael Caruso, argues in his brief.

Government: No actual conflict with Mark Nurik

Here's the government's response to Judge Cohn's inquiry regarding whether Marc Nurik is under investigation: he's not. The government explains that he isn't a target or subject in the investigation. But it says:

The government perceives two areas in which Mr. Nurik’s representation of the defendant presents a potential conflict of interest which must be addressed. In examining potential conflicts of interest, the Court’s “goal is to discover whether the defense lawyer has divided loyalties that prevent him from effectively representing the defendant.” United States v. Ross, 33 F.3d 1507, 1523 (11th Cir. 1994). As a former employee of RRA, which has been designated as the Enterprise through which criminal conduct was conducted herein, Mr. Nurik has, at a minimum, professional relationships with other employees of RRA who do have apparent criminal culpability in the case, which could conceivably interfere with the undivided loyalty that Mr. Nurik owes to the defendant.

Secondly,* because Mr. Nurik was an employee at RRA, he may personally be in the position to provide exculpatory evidence on the defendant’s behalf, which would be prohibited if Mr. Nurik persisted in his representation of the defendant.

It is the government’s position that, in the instant case, because the aforesaid constitute potential, rather than actual, conflicts of interest, the defendant may waive those conflicts at a properly-conducted Garcia hearing.

*My question -- is "secondly" a word? Or is it just, "second"?

Congrats to the Hawk

Hometown hero Andre Dawson made the Hall. Sweet!

In SDFLA news, the Scott Rothstein plea has been set, but before Judge Cohn will conduct the change of plea hearing, he is having a McLain hearing next week and requiring the government to state in writing whether it is investigating Rothstein's lawyer Marc Nurik.

I'm in the Middle District today... Will report back this afternoon.

Shocking news

Scott Rothstein to plead guilty. Here's Curt Anderson from the AP:
Disbarred South Florida lawyer Scott Rothstein is negotiating a guilty plea with federal prosecutors on charges of orchestrating a $1.2 billion Ponzi scheme using faked legal settlements, his attorney said Tuesday.
"I can tell you that there will be a change of plea to guilty," said Rothstein attorney Marc Nurik. "We don't have any finalization on the details at this point."
Nurik said he will ask a federal judge Wednesday to set a date for the change of plea hearing. Rothstein, 47, pleaded not guilty in December to a five-count indictment accusing him of racketeering, conspiracy and fraud in a scheme that ran from 2005 to 2009.

Lots going on

Thanks to all my peeps for sending lots of tips the last couple of days. There's lots going on:

1. Judge Zloch is in the news. From not letting Bradley Birkenfeld -- the UBS informant -- push off his surrender date to spanking Loring Spolter. The 60 Minutes gambit by Birkenfeld didn't pay off, I guess. As for Spolter, I'm surprised he's getting as much sympathy as he is: check out Bob Norman's blog here.

2. In the wake of a tough year for DOJ, there are new discovery guidelines for prosecutors. Here are the 3 new memos that criminal practitioners on both sides of the aisle will be reading today:

Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group

Requirement for Office Discovery Policies in Criminal Matters

Guidance for Prosecutors Regarding Criminal Discovery

Tom Withers covers the memos here. A snippet from his summary:

The Guidance Memo then directs that the discovery review should cover the following: 1) the investigative agency’s files, 2) Confidential Informant/Witness/Source files, 3) Evidence and Information Gathered During the Investigation, 4) Documents or Evidence Gathered by Civil Attorneys and/or Regulatory Agencies in Parallel Civil Investigations, 5) Substantive Case Related Communications, 6) Potential Giglio Information Relating to Law Enforcement Witnesses, 7) Potential Giglio Information Relating to Non-Law Enforcement Witnesses and Fed.R.Evid. 806 Declarants, 8) Information Obtained in Witness Interviews, a) Witness Statement Variations and the Duty to Disclose, b) Trial Preparation Meetings With Witnesses and c) Agent Notes.
The Guidance Memo then directs that although prosecutors may delegate the process of review to others, they “should not delegate the disclosure determination itself.”

3. Lots of coverage on the shootings from Las Vegas. Just terrible stuff. Here's the video that is making the internet rounds:



And here's Brian Tannebaum's take:

Today at every federal courthouse security will be a little tighter. People will get a second look, maybe a third. There is no correlation between what happened in Las Vegas yesterday and federal court anywhere else. People get angry at the grocery store, at the post office, and at work. But it's like when someone with a shoe bomb tries to blow up a plane, well, you know the rest.We (those who go to court) all have to deal with what happened yesterday. It will happen again, we all know that. But because we cannot stop a sick, angry litigant from sneaking in with a gun, a shotgun, we have to at least pretend we can. The gunman was dressed in black. Watch "no black" be the next addition to the dress code. We can only sigh and understand that this is the world in which we live.It angers me that today I have to mourn the death of a Court Security Officer, a retired cop now one of the guys in blue jackets that waive familiar lawyers through, and say "how you doin' today counsel?". A guy who just "went to work" right after the new year, and left the courthouse dead. Five seconds before he was probably talking to a prosecutor, defense lawyer, or fellow security officer about his New Year's vacation. or the weekend's football games.Pisses me off.


4. Random thought of the day: Why does Blogger say that internet is misspelled?