Do Bloggers irritate judges?

Senior U.S. District Judge Richard G. Kopf has this post today on that exact subject (re Howard Bashman at How Appealing) at his blog, "Hercules and the Umpire."

Meantime, it appears that Judge Kopf has irritated an appellate judge with his use of language on his blog: 

While he thought the story was inspiring, a distinguished federal appellate judge from another Circuit thought my use of a vulgarity (“suck”) in the post about Shon Hopwood offended good taste.  I am glad the judge cared enough to write, and I sincerely thank him. Although I am not keen on receiving lectures on taste and decorum, the judge’s candid criticism about my use of rough, profane or vulgar language caused me to reflect seriously on his point.
I am of two minds. On the one hand, I understand the great strength of the judge’s point. Among other consequences, jarring language such as the word the judge complained about may unnecessarily diminish respect for other judges. Moreover, judges should model civilized writing if for no other reason than they expect civilized discourse from others. Still further, bad words are simply losing their utility in our coarsening society. On the other hand, I want to demystify the work of federal trial judges. Sometimes, rough language expresses my thoughts in a way that more refined language would mask. Indeed, from where I sit, much of what I see and hear is actually profane and vulgar no matter how I might wish to sanitize it.

I really enjoy reading Kopf's blog as it is a pretty open dialogue from a sitting district judge. He also engages his readers in the comment section. If you haven't already, you should check it out.

If you are interested in Supreme Court "beauty contests," there are two good articles to read:

The first is on Above the Law about how the law firms were selected in the Obamacare cases, and the second is from the Daily Report about a case headed to the Supreme Court between Georgia and Florida where Georgia took bids for the case:

Lawyers who want to defend Georgia from Florida's impending lawsuit over water rights range from a former U.S. solicitor general who regularly charges more than $1,100 per hour to a recent law school graduate who offered to work for free. Those were two of the 29 applications the Georgia Law Department received by Tuesday's deadline. Two other applications were submitted after the deadline, and the department has not yet determined whether they will be considered. This is the first time under Georgia Attorney General Sam Olens that the Law Department has sought bids for potential special assistant attorneys general.

Finally, the 11th Circuit decided that ghostwriting for a pro se litigant isn't so bad.  I wonder which law clerk wrote that opinion.

Judge happenings

Interesting news out of Atlanta regarding negotiations over judgeships for the 11th Circuit and the district seat.  From Robin McDonald's article:

Georgia's Republican U.S. senators have cut a deal with state Democrats that, if approved by the White House, would fill six judgeships on Atlanta's federal appeals and district court benches, Georgia lawyers familiar with the nomination process have told the Daily Report.
The package deal would remove roadblocks thrown up by Senators Saxby Chambliss and Johnny Isakson that have held up the confirmation of Atlanta attorney Jill Pryor, a partner at Bondurant Mixson & Elmore, for the Eleventh U.S. Circuit Court of Appeals. Pryor was nominated in February 2012.
The deal also recommends the elevation to the Eleventh Circuit of U.S. District Court Chief Judge Julie Carnes of the Northern District of Georgia. Carnes was appointed to her current post by President George H.W. Bush in 1992.
Carnes' move would create a fourth vacancy on the district court in Atlanta, where judges who left in 2009, 2010 and this year have yet to be replaced.
The new bargain includes the nomination of Leigh Martin May, a personal injury and product liability attorney at Butler Wooten & Fryhofer, for the Northern District bench. May was on a 2009 list of potential nominees that was sent to the White House by a committee appointed by members of Georgia's Democratic congressional delegation; May's law partner, James Butler, was a member of that committee. Chambliss and Isakson initially rejected May and others as nominees.
In return for their agreement not to block the nominations of Pryor and May, Chambliss and Isakson would name candidates to the other three district court vacancies. They include Troutman Sanders partner Mark Cohen, whose name the senators put forth first in 2010 for the Northern District bench and in 2011 for the Eleventh Circuit. Their remaining two picks are two state court judges appointed by Republican Governor Nathan Deal—DeKalb County State Court Judge Eleanor Ross and Judge Michael Boggs of the Georgia Court of Appeals.

Meantime, the JNC has cut the list for district judge in the Middle District.  Now it's up to the Senators to pick from these four:  

Paul Byron, Bill Jung, Carlos Mendoza, Waddell Wallace

Trial for Joel Steinger continued

Who can blame Judge Scola... the dude was in a hospital gown.  From Curt Anderson:

 On the eve of jury selection, a federal judge agreed Monday to delay the trial of the alleged mastermind of an $800 million insurance investment fraud scheme because the man suffers from severe pain and health problems caused by a chronic back ailment.

U.S. District Judge Robert Scola granted the postponement after former Mutual Benefits Corp. chief Joel Steinger, 63, tearfully requested time for spinal surgery. Steinger, who uses a wheelchair and is on strong pain medications, appeared in court in a hospital gown. He frequently wrapped a blanket around his chest.

"You can't do this like this. I don't have the strength to go on. I can't take the pain anymore," Steinger said in a voice breaking with emotion. "You know what I'm thinking about now? Getting back to the hospital so I can get more dope."...

Steinger would have needed frequent breaks if trial had gone forward in his current condition, along with a special chair, oxygen bottle and a nurse standing by to handle his needs - all at taxpayer expense. These conditions, Scola wrote, "make his presence throughout the trial a logistical and hygienic nightmare" that surgery may avoid.

Justices out talking

 Justice Scalia spoke in Texas:

U.S. Supreme Court Justice Antonin Scalia visited Houston on Friday and offered his thoughts about Christian morality and economic systems.
The 30-minute lecture explored the question: Is capitalism or socialism more conducive to Christian virtue?

...

"The cardinal sin of capitalism is greed, but the cardinal sin of socialism is power. I'm not sure there's a clear choice between those evils," Scalia said. "While I would not argue that capitalism as an economic system is inherently more Christian than socialism … it does seem to me that capitalism is more dependent on Christianity than socialism is. For in order for capitalism to work - in order for it to produce a good and a stable society - the traditional Christian virtues are essential."
Scalia, who is Catholic, discussed how religious orders once took care of orphans and the elderly, which is now done in large part by "salaried social workers" and financed by tax dollars.
"The governmentalization of charity affects not just the donor but also the recipient. What was once asked as a favor is now demanded as an entitlement," he said. "The transformation of charity into legal entitlement has produced donors without love and recipients without gratitude. ... It's not my place or my purpose to criticize these developments, only to observe that they do not suggest the expanding role of government is good for Christianity."

Some of the Q and A:

Q: Have you ever noticed that positions of justices on a particular subject changes or becomes more liberal the longer they stay on the bench?

A: "It's demonstrably false. I've been there longer than anybody and I think I'm further from left than I was. … It is a common phenomenon."
Q: You are so persuasive and logical - why arent' you able to persuade your liberal colleagues?
A: "Most of these issues on which we disagree, it's fundamental stuff. … [People] think most of the time, we are contemplating our navels: 'should there be a right to die,' 'should there be legal abortion' - something that Joe Six-Pack knows the answer to as well as I do. … Most of the time we are doing real law: We're figuring out the meaning of the Bankruptcy Code, the Internal Revenue code. That is hard and really dull stuff."
Q: Evaluate the condition of the Catholic Church in the United States.
A: "I think it's doing OK. It's been around a long time, you know."
Q: Are you a Redskins fan?
A: "I'm not really much of a football fan. To the extent I am, I hate the Redskins. In fact, I always root for Dallas."
Q: How would you handle Syria?
A: "Naw. I shouldn't talk about that. I have strong views on it, though."
Q: What is the constitutional basis for the principal of 'stare decisis' (legal principal of judges respecting the precedent established by prior decisions) and does it play inherently to the socialist?
A: "It is impossible to run a judicial system without it. You can't reinvent the wheel with every case. … The constitution implicitly expects the courts to function in a manner that is not nuts."
Q: What is the greatest miscarriage of constitutional justice during your tenure?
A: "Oh, there are many candidates. … The most disreputable area of our law is the establishment clause. (Congress shall make no law respecting the establishment of religion.) … A violation of the establishment clause that does not affect someone's free exercise - there is no reason why you should have standing.

Meantime, Justice Ginsburg was speaking too:

Supreme Court Justice Ruth Bader Ginsburg, who recently officiated at a friend's same-sex wedding, told a Philadelphia audience Friday that growing acceptance of gay marriage reflects the "genius" of the U.S. Constitution.

Ginsburg said equality has always been central to the Constitution, even if society has only applied it to minorities - be they women, blacks or gays - over time.

"So I see the genius of our Constitution, and of our society, is how much more embracive we have become than we were at the beginning," Ginsburg said in a far-ranging discussion of her work at the National Constitution Center, steps from the nation's founding at Independence Hall.

... Ginsburg has often been on the losing side of the epic battles, but said some would have turned out differently had the first female justice, Sandra Day O'Connor, not retired in 2006.

"The year she left us, in every case where I was among the four, if she had remained, I would have been among the five. So her leaving the court made an enormous difference," Ginsburg said.

Ginsburg criticized her majority colleagues for what she called "activist" decisions that overturned laws better understood by Congress, such as the Voting Rights Act, which had been extended by a series of bipartisan presidents, most recently George W. Bush.

"That's an example of striking down legislation on a subject that the people in the political arena are better informed about than the court is," she said.

Ginsburg, 80, gave no hint she would wind down her judicial career anytime soon, noting that the fall docket includes such important issues as campaign finance limits and affirmative action. And, despite her sharp ideological differences with some colleagues, including close friend Antonin Scalia, she said their work environment remains cordial.

"One of the hallmarks of the court is collegiality," Ginsburg said. "You could not do the job that the Constitution gives to us if you didn't, to use one of Justice Scalia's favorite expressions, `Get over it.'"

Closer to home, the psychic trial is still going.  Paula McMahon is covering it with her last two articles here and here.   You can't beat the headlines:

"Psychic dictated messages from Brad Pitt and Colin Powell, witness testifies"
and
"Dead husband's frozen sperm did not sire a child, psychic's client says she was told"

The articles are fun reads.

Friday news and notes

It's a quiet Friday after the Jewish holiday, so here's a quick post to get you through the weekend:

1.  Sen. Rubio is taking heat about his refusal to issue a "blue slip" for Will Thomas and another African-American judge, Brian Davis, in the Middle District.  From the Orlando Sentinel:

One seat in particular, in the Middle District, has sat empty since December 2011 — the result of a fight between President Barack Obama and Senate Republicans over his nominee: Judge Brian Davis, a Nassau County circuit judge.
Though Davis initially had the support of U.S. Sen. Marco Rubio, the Florida Republican recanted more than a year ago, citing concerns about comments that Davis made about two black officials tied to controversy in the Clinton administration.
Davis, who is also black, implied that the two — former U.S. Surgeon General Joycelyn Elders and Dr. Henry Foster Jr., a nominee for that position — either lost the job, in Elders' case, or didn't get it, in Foster's, because of their race.
"Republicans on the Judiciary Committee have had objections to Judge Davis, and those should be taken seriously and reviewed thoroughly before moving forward," said Brooke Sammon, a Rubio spokeswoman, in a statement this week.
But the Obama administration isn't budging on Davis or its selection in November of Judge William Thomas, a Miami-Dade circuit judge, to fill a slot in the Southern District.
Rubio has withheld support for Thomas, citing — among other issues — a controversial decision by Thomas in January to sentence a hit-and-run killer to less than a year in jail. An attorney for the guilty driver, Michele Traverso, argued that a long sentence would be risky for Traverso, who has a rare genetic disorder. The light sentence angered family members of the victim, bicyclist Aaron Cohen.
A White House spokeswoman said the administration had no intention of replacing the nominations of either Davis or Thomas.
"They are both distinguished judges, combining for nearly three decades on the bench, and the nonpartisan American Bar Association has rated each of them 'well-qualified,'" said Joanna Rosholm, a White House spokeswoman.

2.  An important decision from the Second Circuit on securities law:

“We conclude as follows.  First, Section 10(b) and its implementing regulation, Rule 10b-5, do not apply to extraterritorial conduct, regardless of whether liability is sought criminally or civilly.  Accordingly, a defendant may be convicted of securities fraud under Section 10(b) and Rule 10b-5 only if he has engaged in fraud in connection with (1) a security listed on a U.S. exchange, or (2) a security purchased or sold in the United States.”

 
3.  "Small-time Miami actor, wife plead guilty to $15 million Medicare scam"  Via the Miami Herald:

Roberto F. Marrero, a bit-part TV actor in such shows as Miami Vice, pleaded guilty Thursday along with his wife and another Miami man to a $15 million Medicare fraud scheme.

4.  Bolivia official in trouble.  From Curt Anderson:

A high-ranking Bolivian National Police official was sitting in a South Florida jail Thursday on U.S. charges that he tried to extort thousands of dollars from the former owner of a Bolivian airline.
According to an FBI affidavit filed in federal court, Mario Fabricio Ormachea Aliaga, 42, flew from La Paz, Bolivia to Miami on Aug. 29 to meet with Humberto Roca, who formerly ran Bolivia's AeroSur airline.
Roca previously had fled to the U.S. to avoid Bolivian charges alleging he provided tickets to what authorities there called anti-government foreign mercenaries. The FBI affidavit said that Roca calls the charges politically motivated and is seeking asylum in the U.S.
Before the meeting with Ormachea Aliaga — whom Roca referred to as the "Colonel" — Roca contacted the FBI on the advice of a lawyer. Agents monitored and recorded their meetings, during which Ormachea Aliaga — the No. 2 official in the national police's anticorruption unit — allegedly told Roca that in exchange for $30,000 "he would drop the charges against (Roca) and charge someone else instead," according to the FBI affidavit.

Read more here: http://www.miamiherald.com/2013/09/05/3607090/top-bolivia-police-official-jailed.html#storylink=cpy

Read more here: http://www.miamiherald.com/2013/09/05/3608135/small-time-miami-actor-wife-plead.html#storylink=cpy

Read more here: http://www.miamiherald.com/2013/09/05/3608135/small-time-miami-actor-wife-plead.html#storylink=cpy

News & Notes -- Rosh Hashanah edition

The Eleventh Circuit just decided Temple B'Nai Zion vs. City of Sunny Isles Beach.  It's quite a read.  The issue presented is one of ripeness: "This appeal presents the question whether an Orthodox Jewish synagogue’s statutory and constitutional challenges to its designation as a historic landmark by a municipality are ripe for adjudication."  But check out some of these facts:

The City was not supportive of the Temple’s expansion plans, and in the period that followed Rabbi Lankry met with Mayor Edelcup on several occasions to work out the differences. The meetings went badly. At one point, Mayor Edelcup allegedly referred to the Sephardic Jewish community as a “bunch of pigs.” When Rabbi Lankry inquired as to whether he could quote the mayor as to his pejorative comment, Mayor Edelcup responded, “I don’t care what the [expletive] you do.” The animosity between the parties now proceeded at full bore: when the Temple rebuffed the City’s attempt to purchase the property on which the Temple was situated (the Temple is apparently located adjacent to city hall), Mayor Edelcup directed the City’s code enforcement officers to inspect the Temple, and between September 2007 and February 2009, the Temple received 12 separate code violation notices from City officials.
***
At a public hearing held before the full City Commission on September 2, 2010, the same witnesses who had appeared before the Preservation Board appeared again and provided essentially the same testimony. Because the hearing was public, citizens were permitted to take the lectern and offer comments during the proceeding; many took the opportunity to complain about the operation of the Temple, accusing Rabbi Lankry and the Temple of removing memorial plaques from the walls, failing to light candles for deceased congregants, denying access to former congregants, and absconding with the Temple’s Torahs. The City Commissioners—three out of five of whom were members of the Temple congregation before it became Orthodox—also offered public comments before voting on the designation. Commissioner Gerry Goodman, who had previously sat on the Temple’s board of directors, for example, questioned Rabbi Lankry at length about why the Temple seemed to be closed to the public on certain days. Commissioner Goodman had purchased a memorial plaque for a loved one at the Temple some years earlier but had been unable to view the plaque when he attempted to do so. Goodman then began to ask Rabbi Lankry whether the Temple was being leased out, but Mayor Edelcup interjected, admonishing Goodman to “[f]ocus on the issues.” Before closing his remarks, Goodman asked Rabbi Lankry whether Lankry had called him an anti-Semite in the local newspaper.

Yikes.  At the end of the day, the Court engages in some technical ripeness analysis but asks the parties for some reflection (which is appropriate at this time of year!):

We do not know who will ultimately prevail between the Temple and the City in this ongoing feud. That question—a merits one—is not ours to answer. We merely decide today that the claims enumerated in the Temple’s complaint are ripe for judicial adjudication. And while we embrace some hope that the parties might bury their strife before the next stage of federal litigation comes to pass, again on that score, only time will tell. At this juncture, it is enough to say that the order of the district court is vacated, and that the Temple’s challenges to the enactment of the historic designation are ripe for review.

Dan Wallach of Becker & Poliakoff represented the Synagogue. Coffey Burlington represented the City.

Sorry kids, summer's over

That means it's time for football, traffic, and... some changes at the U.S. Attorney's office.  Here's your new lineup:

Marcus Christian is leaving the local office and heading to DOJ -- UPDATE: Actually he is headed to a law firm in DC, and not DOJ.  Thanks to the commenters and tipsters.
George Karavestos takes over as Executive Assistant U.S. Attorney
Lynn Kirkpatrick takes over for George as the Chief of Narcotics
and Norman Hemming is now Special Counsel

Meantime, the government has charged two lawyers in the Rothstein saga.  From the Sun-Sentinel:

Nearly four years after Scott Rothstein's massive Ponzi scheme spectacularly imploded, the long-simmering criminal investigation entered a new phase Friday with the arrests of two Broward County attorneys accused of assisting the fraudster.
Douglas L. Bates, a Plantation attorney, was picked up at his Parkland home early Friday by IRS agents. Christina Kitterman, who had worked at Rothstein's law firm, surrendered at the West Palm Beach federal courthouse. Both are accused of lying to some of Rothstein's investors as he kept his $1.4 billion fraud alive.
"The success of such a large-scale scheme depended on the complicity of Rothstein's colleagues and associates, like Douglas Bates and Christina Kitterman," said U.S. Attorney Wifredo A. Ferrer.
The two attorneys became the first defendants to be indicted for their roles in the alleged criminal activities the now-disbarred attorney ran out of the Rothstein Rosenfeldt Adler law firm. The now-imprisoned Rothstein and eight other defendants all cut deals with the federal government in advance of being criminally charged.

What is Marco Rubio's reason for blocking Will Thomas?

The DBR (John Pacenti) has a lengthy article about Marco Rubio's decision to block two African American nominees -- William Thomas and Brian Davis -- to the district court.  But he refuses to explain his reason for the decision. 

Republican U.S. Senator Marco Rubio, a tea party darling, is blocking confirmation hearings for two black judicial nominees by withholding the formality of submitting what is known as a "blue slip." Miami-Dade Circuit Judge William Thomas was nominated 552 days ago for a Miami opening in the Southern District of Florida. Nassau Circuit Judge Brian Davis has been waiting even longer — 612 days — for action to fill a Middle District of Florida vacancy in Tampa. The blue slip is a required by the chairman of the Judiciary Committee, Senator Patrick Leahy, D-Vermont. Waiting for blue slips is a longstanding procedure that the chairman does not plan to break, his spokeswoman Jessica Brady said Thursday. Florida's other senator, Democrat Bill Nelson, has submitted blue slips for both candidates. Rubio's and Nelson's offices did not respond to telephone calls or emails seeking comment by deadline. The failure to submit blue slips marks a ratcheting up of Republican efforts to block President Barack Obama's judicial nominees, even if means alienating minorities, critics say. Thomas and Davis fulfill Obama's goal of bringing greater diversity to the federal bench. Both are black, and Thomas is openly gay. Obama has been more dedicated to diversity than any of his predecessors, with 43 percent of women nominees compared with 22 percent under George W. Bush and 29 percent by Bill Clinton. Obama also surpassed his predecessors on nominating blacks and Hispanics. By delaying the nominations of minorities, Republicans hope to hinder a lasting legacy on the lifetime appointment of jurists, said Andrew Blotky, director of Legal Progress, part of the Center for American Progress in Washington. "If you look at how long these vacancies have been open, it's ridiculous and unconscionable," he said.

Meantime, the district continues to try interesting cases.  The psychic trial is going on in Ft. Lauderdale.  Via Paula McMahon:

When Sylvia Roma visited a psychic in late 1997, she was a successful executive who figured her life was happy and the tarot card reading was "just for entertainment."
But Roma was quickly convinced that her family was cursed, she said, and over the next 14 years she sent close to $800,000 worth of cash and gold coins to the woman she knew as Joyce Michaels, but who was really Rose Marks.
Marks summoned her to Fort Lauderdale in July 2002 and told her that nearly $500,000 in cash and gold coins Roma had already given to Marks had burned in the 9/11 terrorist attack on the World Trade Center — yet Roma continued to send money and jewelry to Marks, she testified.
"I was in so far, I had nothing to do but believe her. I didn't see any way out," Roma testified Thursday in federal court in West Palm Beach, where Marks is on trial.
Prosecutors say Marks, 62, of Fort Lauderdale, and her family defrauded about $25 million from victims they met in Manhattan and South Florida.
It's rare for so-called Gypsy fortune-telling frauds cases such as this one to go to trial, law enforcement experts say, and one of the reasons is that alleged victims are embarrassed and ashamed to admit they've been tricked.
Roma, who will be back on the witness stand Friday to be cross-examined by the defense, told jurors that she became depressed and isolated as Marks urged her to send more and more money.
Marks told Roma she couldn't discuss "the work" with anyone because it would let "negative energy" affect Marks' efforts to lift the curse and help Roma to have a happier life, she said. Marks told her she was meditating and building an altar and a protective shield with the hundreds of gold coins that Roma provided to her.

Any predictions on how this one will turn out?

JNC decides to interview these 17 applicants

Two new federal district judges will come from this list:

Beatrice Butchko
Jack Tuter, Jr.
John Thornton, Jr.
David Haimes
Thomas Rebull
Mary Barzee Flores
Martin Bidwill
Daryl Trawick
Jeffrey Colbath
Darrin Gayles
Robin Rosenberg
Migna Sanchez-Llorens
Meenu Sasser
Veronica Harrell-James
Beth Bloom
Barry Seltzer
Peter Lopez

I've listed the applicants in interview order.  The interviews are on September 17, and this list will be narrowed to 4 people.

Fat Joe to the Big House

For 4 months on a tax evasion case.  He's at FDC.  From TMZ:

Fat Joe has just turned himself in to prison to serve his 4 month sentence for tax evasion.

The rapper -- real name Joseph Cartagena -- is officially in custody at the Federal Detention Center in Miami.

As TMZ previously reported, Joe pled guilty back in December to stiffing Uncle Sam on a boatload of taxes for the years 2007 and 2008 ... more than $1 million total.

He originally faced up to two years in the slammer for the crime -- but was ultimately sentenced to just 4 months and a $15,000 fine, plus one-year supervised release.

Justice Ginsburg not going anywhere

She's been giving a bunch of interviews lately, the most recent one on the front page of yesterday's NY Times. Lots of really interesting stuff, including that she's not leaving the Court any time soon:

On Friday, she said repeatedly that the identity of the president who would appoint her replacement did not figure in her retirement planning.

“There will be a president after this one, and I’m hopeful that that president will be a fine president,” she said.

Were Mr. Obama to name Justice Ginsburg’s successor, it would presumably be a one-for-one liberal swap that would not alter the court’s ideological balance. But if a Republican president is elected in 2016 and gets to name her successor, the court would be fundamentally reshaped.

Justice Ginsburg has survived two bouts with cancer, but her health is now good, she said, and her work ethic exceptional. There is no question, on the bench or in chambers, that she has full command of the complex legal issues that reach the court.

Her age has required only minor adjustments.

“I don’t water-ski anymore,” Justice Ginsburg said. “I haven’t gone horseback riding in four years. I haven’t ruled that out entirely. But water-skiing, those days are over.”

Justice Ginsburg, who was appointed by President Bill Clinton in 1993, said she intended to stay on the court “as long as I can do the job full steam, and that, at my age, is not predictable.”

“I love my job,” she added. “I thought last year I did as well as in past terms.”

In other news, Eric Holder is speaking out for PD funding. Here's his op-ed:

Fifty years ago, the U.S. Supreme Court unanimously held that everyone who is charged with a serious crime has the right to an attorney. In Gideon v. Wainwright, Justice Hugo Black observed for the court that “in our adversary system, any person haled into court, who is too poor to hire a lawyer, cannot be assured of a fair trial unless counsel is provided to him.” As a prosecutor, as a judge and as our nation’s attorney general, I have seen this reality firsthand.

Despite the promise of the court’s ruling in Gideon, however, the U.S. indigent defense systems — which provide representation to those who cannot afford it — are in financial crisis, plagued by crushing caseloads and insufficient resources. And this year’s forced budget reductions, due largely to sequestration, are further undermining this critical work.

In stark contrast to many state defender programs, the federal public defender system has consistently served as a model for efficiency and success. According to court statistics, as many as 90 percent of federal defendants qualify for court-appointed counsel, and the majority of criminal cases prosecuted by the Justice Department involve defendants represented by well-qualified, hardworking attorneys from federal defender offices. Yet draconian cuts have forced layoffs, furloughs (averaging 15 days per staff member) and personnel reductions through attrition. Across the country, these cuts threaten the integrity of our criminal justice system and impede the ability of our dedicated professionals to ensure due process, provide fair outcomes and guarantee the constitutionally protected rights of every criminal defendant.

I join with those judges, public defenders, legal scholars and countless other criminal-justice professionals who have urged Congress to restore these resources, to provide needed funding for the federal public defender program and to fulfill the fundamental promise of our criminal justice system.

The Justice Department is strongly committed to supporting indigent defense efforts through an office known as the Access to Justice Initiative, which I launched in 2010, and a range of grant programs. The department took this commitment to a new level on Aug. 14 by filing a statement of interest in the case of Wilbur v. City of Mt. Vernon — asserting that the federal government has a strong interest in ensuring that all jurisdictions are fulfilling their obligations under Gideon and endorsing limits on the caseloads of public defenders so they can provide quality representation to each client.

Unfortunately the federal public defender program is in dire straits. As I write, federal defenders representing the Boston Marathon bombing suspect are facingabout three weeks of unpaid leave. In Ohio, the director of one federal defender office who had served there for nearly two decades has laid himself off rather than terminate several more junior attorneys.

This shameful state of affairs is unworthy of our great nation, its proud history and our finest legal traditions. In purely fiscal terms, the cuts imposed by sequestration defy common sense because they will end up costing taxpayers much more than they save. The right to counsel is guaranteed under the Constitution. On the federal level, this means that every defendant who is unable to afford a lawyer must be represented by either a federal public defender or an appointed attorney from a panel of private lawyers. While federal defender offices are staffed by experienced, dedicated professionals operating in a framework that has proved both effective and efficient, panel attorneys often possess less experience and incur significantly higher fees. An increased reliance on panel attorneys may result in less desirable outcomes as well as significantly higher costs.

Five decades after the Supreme Court affirmed that adequate legal representation is a basic right, sequestration is undermining our ability to realize this fundamental promise. The moral and societal costs of inadequate representation are too great to measure. Only Congress has the ability to restore the funding that federal defenders need to ensure that justice can be done. It is past time for our elected representatives to act.

Judge Scola sentences Khan to 25 years...

...10 more than the prosecution was asking for. The AP's Curt Anderson has this:

Hafiz Khan, 78, had faced up to 60 years behind bars on four terrorism support-related charges. But U.S. District Judge Robert Scola opted for less than the maximum term, although it is 10 years more than the sentence recommended by federal prosecutors.

The case against Khan, who was imam at a Miami mosque prior to his 2011 arrest, was built on hundreds of FBI recordings of both telephone calls and Khan's face-to-face conversations with an undercover informant. In the calls, Khan discusses details of numerous wire transfers to Pakistan over a three-year period that totaled about $50,000.

Khan also was overheard praising deadly attacks by the Taliban in both Pakistan and Afghanistan, including a 2009 bombing at a CIA base in Khost, Afghanistan. In another call, Khan was heard wishing for the deaths of 50,000 U.S. troops in Afghanistan.

"May Allah utterly destroy them. The destruction . if they do not repent and do not revert to the right path," Khan said on the FBI recording.

Scola said several times Friday that the evidence against Khan was strong.

"I can't think of a case where the evidence would be more overwhelmingly clear," the judge said.

During trial, Khan testified in his own defense that although he sometimes made strongly worded political statements, the money he sent to Pakistan was for family, friends and charity. In particular, Khan said he sent money to a religious school, or madrassa, that he'd founded in Pakistan's Swat Valley. That school was closed for a time by the Pakistani government, which claimed it was a Taliban hideout and training ground.

Khan also claimed in his testimony that he only pretended to support extremist Taliban views — including toppling Pakistan's government in favor of one that would impose strict Islamic law — in order to obtain $1 million promised him by the man who turned out to be the FBI informant. Prosecutors said that was a complete fabrication.

"Terrorists need money. What he did was put lives at risk," said Assistant U.S. Attorney John Shipley. "It put Pakistani lives at risk and it put American lives at risk."

In a lengthy statement to the judge in Pashto through an interpreter, Khan again insisted he was not a terrorism financier and that his sole intent was to help the poor in his native Swat Valley.

"I did not send one dollar to the terrorists or the fighting Taliban," Khan said. "I am absolutely against the terrorists and the violence."

Khan's wife, Fatima, appealed to Scola from her wheelchair, also in Pashto, to allow him to come home. She said his rants against Pakistan and the U.S. on the FBI tapes did not mean he was a proponent of violence.

"He gets angry a lot. He is not speaking from his heart," she said.

CJA rates being cut by $15/hour to $110/hour

That's the decision to save the Defenders from having to make massive layoffs around the country. From the USA Today article:

The federal judiciary for the first time is cutting the fees of court appointed defense lawyers, including those representing death penalty defendants, to deal with the "dire consequences'' of required government budget reductions known as sequestration.

The reductions, outlined in a notice to U.S. District Judge Catherine Blake, chairwoman of the Federal Judicial Conference Committee on Defender Services, are part of an unprecedented criminal justice cost-cutting effort that also will scale back operations of federal probation services at a time when authorities are planning to rely more heavily on programs like probation to help reduce the rising federal prison population.

The cuts in attorneys' fees will be implemented next month with payments dropping from $125 per hour to $110 in non-death penalty cases and from $179 per hour to $164 in cases where capital punishment is being sought.

The reductions are aimed at saving $50 million during the next 13 months to avoid further cuts into the full-time staff of the federal defenders service. The defender program consists of both full-time public defenders, who have been targeted for furloughs and layoffs, and private court-appointed lawyers who assist in the representation of the indigent.

In addition to the fee cuts, millions of dollars in fees to the outside court-appointed counsels, scheduled for payment in fiscal year 2014 (beginning in October), would be deferred into fiscal year 2015.

In the letter to Blake made public Monday, William Traxler Jr., chairman of the Judicial Conference's Executive Committee, warned that the fee cuts "may impact the delivery of justice, but are necessary to avoid permanent damage to the federal defender program.''

The sequester hasn't affected the U.S. Attorney's office in the same way as it has not had to fire employees or have furlough days.

It also hasn't impacted BOP. In fact, the government is asking for 15 years in prison (a life sentence) for 78-year old Hafiz Khan. Via Curt Anderson:

An elderly Muslim cleric convicted of sending tens of thousands of dollars to finance the Pakistani Taliban terror organization should spend at least 15 years in prison, federal prosecutors recommended Wednesday.

Hafiz Khan, 78, could get as much as 60 years behind bars when he is sentenced Friday because each of the four terrorism supported-related convictions carry maximum 15-year sentences. Assistant U.S. Attorney John Shipley said in court papers that combining all four potential sentences into one would be sufficient punishment.

Sentencing is scheduled before U.S. District Judge Robert Scola.

Shipley said hundreds of FBI recordings of Khan on the telephone and speaking in person with an informant show he supported the Taliban's attacks on Pakistani and U.S. targets and knew his money was going to promote violence. Some calls showed Khan praising attacks such as a deadly 2009 bombing at a CIA base in Khost, Afghanistan, and the failed 2010 attempt to detonate a bomb in New York's Times Square.

"We are not contending that Khan's misconduct tops the scale of terrorism offenses," Shipley said. "But his sending money to militants in Pakistan helped the Taliban put Pakistani and American lives in jeopardy and fostered violence, not peace."

Khan's attorney, Khurrum Wahid, filed separate papers Wednesday asking for a more lenient but unspecified sentence, pointing to Khan's advanced age and medical problems. He also cited Khan's testimony in his own defense that he intended the roughly $50,000 he sent over a three-year period to be used for family, friends and charity in his Pakistan homeland. Before his 2011 arrest the imam at a Miami mosque, Khan also founded a religious school, or madrassa, in Pakistan's Swat Valley.

Breaking -- Applicants for the Southern District of Florida District Bench

Your next two federal judges will come from this list (which is in no particular order):

1. Peter Lopez
2. Gary Eason
3. Marina Wood
4. Darrin Gayles
5. Lornette Reynolds
6. Jeffrey Colbath
7. Barry Seltzer
8. Robin Rosenberg
9. Mary Barzee Flores
10. Beth Bloom
11. Dennis J. Murphy
12. Daryl E. Trawick
13. Candance R. Duff
14. Beatrice Butchko
15. Lisa Hu Barquist
16. Marjorie Gadarian Graham
17. Martin J. Bidwill
18. Jack Tuter
19. David Haimes
20. Ricardo J. Bascuas
21. Lourdes A. Rodriguez de Jongh
22. Isabel “Cissy” Boza Skipper
23. Carlos Augusto Rodriguez
24. Meenu Sasser
25. Thomas J. Rebull
26. Migna Sanchez-Llorens
27. Veronica Harrell-James
28. John Thornton

UPDATE -- Although I believe that this list is complete, it is possible that it is not. If you know of other people who have applied, please email me.

Judge Rosemary Barkett is leaving the 11th Circuit

She's headed to the Iran-United States Claims Tribunal in The Hague, which was established in 1981 to resolve claims between the two countries.

Judge Barkett will be missed.  She's been a strong, independent voice on the court for a long time. 

That'll be vacancy #3 on the 11th Circuit.

Speaking of vacancies, applications were due today for the open district seat.  If I can get a hold of the list of applicants, I will post it.

Monday news and notes -- Back to school edition

1.  Judge Huck is trying to tutor young lawyers.  Via the DBR:

Senior U.S. District Judge Paul C. Huck said when he got out of law school in 1965, he didn't need to consult a career counselor.
Freshly minted lawyers simply cracked open the Martin-Hubbell Law Directory and figured out where they wanted to start practicing law. Then they started to make phone calls.
"Back then if a law firm was really busy and they needed a lawyer, they needed them right then," said Huck, who after graduating the University of Florida loaded up his Volkswagen Beetle and headed south to an Orlando firm.
Coming off the Great Recession, it's not so easy for new lawyers these days.
So Huck organized two seminars aimed at making it a little easier. Early last month, he again assembled the Federal Court Observer Program, a mainstay for seven years. He also reached out to young lawyers at his alma matter.

2. Go Dore Go.  Dore Louis' creative motion for NSA records started a new trend.  I think it's hilarious that the Miami Herald refers to Dore Louis not as Mr. Louis or Louis, but as Dore:

One of the first phone-records motions in a criminal case came from Marshall Dore Louis, a Miami defense attorney who represents Terrance Brown, implicated in a federal bank truck robbery conspiracy case. Dore may have started a trend.

After Dore filed his motion in June, he received calls and email messages from dozens of attorneys across the country interested in filing similar motions in their cases.

In addition, many more attorneys in drug-trafficking cases nationwide are said to be preparing motions after Reuters revealed on Aug. 5 that the NSA is a partner in a special Drug Enforcement Administration (DEA) unit that supplies tips to local law-enforcement authorities. Those tips come from a massive phone-records database that the DEA’s Special Operations Division (SOD) taps, Reuters said.

The expected onslaught of demands for NSA records from defense attorneys is an ironic twist for a once-secretive agency whose acronym was often jokingly said to stand for No Such Agency.

3.  Did Steven Steiner learn his lesson.  Judge Williams hands him a 15-year sentence:

Steven Steiner, a former executive for a Fort Lauderdale insurance brokerage business that fleeced hundreds of millions of dollars from investors, was sentenced Friday to 15 years in federal prison.
Steiner, 61, was convicted earlier this year of conspiring to launder the money to support his expensive lifestyle in waterfront homes in Fort Lauderdale and Maine, and a condominium in Manhattan.
His defense lawyer urged U.S. District Judge Kathleen Williams to show mercy and sentence him to about five years, far less punishment than recommended under federal sentencing guidelines.
“Mr. Steiner is admittedly an imperfect soul,” attorney Joaquin Mendez wrote in an objection to the sentencing guidelines. “However, he requests that the court consider his good deeds and sensibilities, which the sentencing guidelines generally ignore, into account in determining the appropriate sentence.”
Federal prosecutors strongly disagreed, arguing that a 22-year prison term under the sentencing guidelines for Steiner’s offense would not be “unreasonable.”
Williams essentially split the difference in determining the punishment for the former vice president of Mutual Benefits Corp., the business that was shuttered by federal regulators almost a decade ago.
Steiner offered no apology for his wrongdoing, and instead penned a rambling, remorseless note to the judge. He described as “draconian” the indictment against him and his former partner, saying they lost everything in forfeiture to the U.S. government.
“There were clearly no real winners at the end of this trial,” Steiner wrote in his 14-page note, saying he was “no doubt one of America’s biggest losers.”
“I was ultimately punished for the greed and arrogance of others,” he concluded.

Read more here: http://www.miamiherald.com/2013/08/16/3566762/convicted-fort-lauderdale-executive.html#storylink=cpy

Sentences in synthetic marijuana case

Marc Seitles represented the owner, John Shealy, who was sentenced to 18 months.  From the Sun-Sentinel:

Shealey, of Royal Palm Beach, and Harrison, of Lantana, cut deals with federal prosecutors, each agreeing to plead guilty to a count of conspiring to break federal laws. They admitted plotting to distribute an illegal substance and selling a misbranded drug. Both agreed to turn over more than $2 million in assets.
Attorneys for Shealey and Harrison argued Wednesday that their clients had prior attorneys advise them the products they were manufacturing were legal. Whenever the federal government listed a chemical as illegal, Kratom Lab would destroy any products containing it, said Marc Seitles, Shealey's attorney.
The defense attorneys questioned why Shealey and Harrison weren't issued cease-and-desist letters to stop making the products.
Assistant U.S. Attorney Roger Stefin said the two men had to have known what they were doing was highly questionable, if not illegal. They were marketing Mr. Nice Guy as a herbal incense with anyone, including children, able to buy it at gas stations, convenience stores and online.
...With their plea deals, neither man faced more than five years behind bars. Federal prosecutors recommended a 28-month sentence for Harrison and three years in prison for Shealey.
U.S. District Judge Kenneth Marra said he found their cases unusual because of the ambiguities surrounding the laws governing the chemicals.

No bond in "chat room" terror case

No surprise on the bond issue, but the twist here is that the FBI used an undercover agent in a chat room to build this case against people in Saudi Arabia and Kenya.  Curt Anderson has the details:

Two men accused of providing thousands of dollars and recruiting fighters for terrorist organizations overseas pleaded not guilty Tuesday at a hearing where prosecutors revealed the case against them was built largely by an undercover FBI agent posing on the Internet as a terror finance middleman.
Assistant U.S. Attorney Ricardo Del Toro said at a bail hearing that the agent, known only as an "Online Covert Employee," actually used brother and sister personas in an Internet chat room to make contact with Gufran Ahmed Kauser Mohammed, a naturalized U.S. citizen from India who relocated in 2011 to Saudi Arabia. Mohammed was interested in using the FBI undercover agent to help finance al-Qaida and affiliated terror groups in Syria and East Africa, authorities say.
In July 2012, for example, Mohammed told the FBI agent in the chat room that he wanted one of his wire transfers "to fund an al-Qaida terrorist attack on United States citizens or the United Nations," Del Toro said. No specific targets were named.
The other suspect, 25-year-old Mohamed Hussein Said, is a Kenyan involved with al-Shabaab, an African terror organization currently attempting to replace Somalia's government with one that observes strict Islamic law, Del Toro said. Said, who had never travelled to the U.S. until his arrest, identified terrorist fighters for a Syrian offshoot of al-Qaida and received more than $11,000 from Mohammed for the al-Shabaab organization, court documents show.
In one of the online chats, Said in February said he had one recruit "who would be willing to conduct a martyrdom operation within the United States and be like one of the 19," the indictment says. Del Toro said Said was referring to the 19 hijackers in the Sept. 11 terror attacks.
The two men never met in person until their arrests earlier this month in Saudi Arabia. Del Toro said the FBI undercover agent posed as Mohammed on the Internet to convince Said to travel from Mombassa, Kenya, to Saudi Arabia. The men were taken into custody by the Saudis, turned over to the FBI and immediately flown to Miami to face the terror support charges.
The undercover online FBI agent worked out of the Miami office and many of Mohammed's wire transfers actually wound up here. All told, Mohammed attempted to send more than $25,000 to fund al-Qaida and the affiliates, according to the indictment.
U.S. Magistrate Judge John J. O'Sullivan ordered both men held without bail until trial. Mohammed's attorney, Vince Farina, said his client had a computer science master's degree from UCLA and had brothers living in both California and Texas, as well as parents in California. Farina did not provide their names.

Tuesday news and notes

1. Eric Holder's speech was quite a doozy and is a breath of fresh air for the draconian sentences that have been doled out over the past 20 years.

Even though law enforcement is complaining that their snitches won't be as motivated under the new policy, the real question is whether the actual policy goes far enough. Unfortunately, the policy is not law and is not binding on prosecutors.  In other words, it leaves the discretion with individual prosecutors as to whether to follow it or not.  (In the recent Brady policy issued to prosecutors, it's become clear that nothing much has changed because prosecutors still say that they are only obligated to turn over what's required by the rule and not by the policy statement of their boss.) Rumpole also raises the real concern (in the comments) about whether the new policy will be ignored when defendants actually decide to fight and go to trial... Let's see how this plays out; It's still a good start, which should be applauded because judges will be free to judge again instead of imposing arbitrary min/man sentences.

UPDATE --the actual policy can be read here.

2.  The ABA has approved a resolution in support of legislation authorizing judgeships.  Via Legal Newsline (HT GS): 

At this year’s meeting, which runs through Tuesday, delegates voted in favor of comprehensive legislation to authorize needed permanent and temporary federal judgeships, with particular focus on the federal districts with identified judicial emergencies “so that affected courts may adjudicate all cases in a fair, just and timely manner.”

The ABA also is urging President Barack Obama to advance nominees for current vacancies for federal judicial positions “promptly” and the U.S. Senate to hear and vote on the nominations “expeditiously.”

The association noted that Congress has not passed comprehensive legislation authorizing additional judgeships since 1990.

Since that time, federal district courts have experienced a 38 percent growth in caseloads but have seen only a 4 percent increase in judgeships.

“Legislation is needed to ensure that the federal judiciary has the judgeships it needs to adjudicate all cases in a prompt, efficient and fair manner,” according to the association’s executive summary of the resolution.

“As of May 16, 2013, there are 85 federal judicial vacancies and 24 nominations pending. Filling these existing judicial vacancies is essential.”

Last month, U.S. Sens. Patrick Leahy and Chris Coons introduced legislation that would create 91 new federal judgeships in two federal circuits and 32 federal districts across 21 states.

Maybe we should confirm the outstanding judges first...