Miami attorney Julio Ayala in skirmish with Alex Rodriguez's lawyer Joe Tacopina

From the NY Daily News:

According to several sources with knowledge of the altercation, Tacopina instigated a confrontation with Julio Ayala, one of the Miami attorneys who represent Anthony Bosch, the proprietor of the now-defunct Biogenesis clinic that was a source of performance-enhancing drugs for more than a dozen big leaguers — and MLB’s chief witness.
During the first week of the arbitration, the sources say, Tacopina launched an aggressive attack on Bosch’s credibility after Bosch authenticated a pile of documents and electronic communications that MLB says reflect the league’s conclusion that Rodriguez acquired banned substances from Bosch over several years. It was during a break in one of those tense sessions that Tacopina and Ayala nearly came to blows.

The sources told the Daily News that Tacopina — who was frustrated that Bosch’s testimony had dominated the first three days of the hearing — asked another MLB attorney how long he planned on having baseball’s most important witness on the stand during the break in the testimony on Oct. 2.
The attorney, the sources said, told Tacopina that Bosch’s testimony would take several more hours and might spill over to the next day. “Well, I guess we have all of October, and by then Mr. Bosch will be in jail,” Tacopina replied, referring to the fact that Bosch and his now-defunct clinic are being investigated by Florida state authorities and federal law-enforcement officials from the Southern District of Florida.

“If he is, he is not going alone,” Ayala fired back, implying that if Bosch goes to prison, he is taking Rodriguez with him.
Tacopina, a former hockey player who holds the Skidmore College record for most penalty minutes in a season, then made a derogatory statement about Ayala and “his lying wife,” Susy Ribero-Ayala, another attorney representing Bosch, angering Julio Ayala. Tacopina then “bull-rushed” Ayala, who went toe-to-toe with Tacopina, in the words of one source.
Ayala, a former high school football player, stood his ground, but other attorneys restrained Tacopina before any punches were thrown. Eventually, the two men calmed down and the hearing resumed after the break.
Tacopina and Ayala both declined to comment on the incident when contacted by The News, citing the confidentiality order barring participants in the arbitration hearing from discussing it publicly. It is not known if arbitrator Fredric Horowitz, who will ultimately decide if Rodriguez’s suspension should be upheld, reduced or overturned, witnessed the altercation. The incident is not likely to be part of the official record, since the court reporter was taking a break at the time.
Rodriguez and Bosch did not witness the confrontation — they were both using the men’s room when things got heated in the arbitration room.
One source told The News that Tacopina apologized to Ayala the following day, and that Ayala accepted the apology and said he wished to move on.

Howard Srebnick and Richard Strafer head to the Supremes

They have oral argument this week in Kaley v. United States, presenting the following issue: whether, when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, the Fifth and Sixth Amendments require a pre-trial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges.

Here's the 11th Circuit opinion, holding that no adversarial hearing was required, which split with a number of other circuits, leading the Solicitor General to agree with the cert request.

Harvey Silverglate wrote an op-ed in the WSJ supporting the Kaleys:

On Oct. 16, the Supreme Court will hear oral arguments on a claim brought by husband and wife Brian and Kerri Kaley. The Kaleys are asking the high court to answer a serious and hotly contested question in the federal criminal justice system: Does the Constitution allow federal prosecutors to seize or freeze a defendant's assets before the prosecution has shown at a pretrial hearing that those assets were illegally obtained?
Such asset freezes often prevent a defendant from hiring the trial counsel of his choice to mount a vigorous defense, thus increasing the likelihood of the government extracting a guilty plea or verdict. Because asset forfeiture almost automatically follows conviction, a pretrial freeze ultimately enables the Justice Department to grab the frozen assets for use by executive-branch law enforcement agencies. It is a neat, vicious circle.

And Jay Weaver covered the upcoming argument in the Miami Herald:

Srebnick will argue that defendants should be allowed to keep their bank accounts and other possessions unless prosecutors can show before trial that the evidence supporting an indictment justifies the seizure of those assets.
For decades, prosecutors have only needed to point to a federal grand jury indictment to argue that defendants' assets are traceable to the criminal allegations and therefore can be seized. And judges have almost always ruled in the prosecution's favor because of the presumption that the grand jury found "probable cause" that a crime was committed.
Eventually, depending on whether a defendant is found guilty or is acquitted, frozen assets are either kept or returned by the government.
In legal briefs, Srebnick has asked the Supreme Court to allow a hearing that would test the strength of the prosecution's evidence before a jury hears the government's case against his two clients, a New York couple. Kerri and Brian Kaley were charged in 2007 with illegally profiting from the resale of older medical devices in South Florida's "gray market." The equipment had been given to the wife and other equipment sales representatives by hospitals that no longer needed them because they purchased newer devices.
The couple obtained a $500,000 equity line of credit on their home so they could pay projected legal fees to their "preferred" defense lawyers, Srebnick, and colleague, Susan Van Dusen, who claimed the government's case was "baseless." But after the couple's indictment, prosecutors obtained a judge's order to seize their home and other assets valued at nearly $2.2 million, leading to the Supreme Court case.

Read more here: http://www.sacbee.com/2013/10/13/5818574/supreme-court-to-hear-challenges.html#storylink=cpyGood

Good luck Howard and Richard!

Judge Jordan sits for first time on Miami panel

He was paired with Judge Martin and a visiting judge this week on the 12th Floor of the King Building.  It was the first time Judge Jordan was on an oral argument calendar in Miami.  They heard an interesting case regarding a "voter purge" issue.  John Pacenti covered the story.

President Obama is trying to get other judges on the 11th Circuit.  But it's a slog.  Here's the latest from the Robin McDonald:

Georgia's Congressional Democrats met Thursday in Washington with staff of the Office of White House Counsel to discuss Georgia's open federal judgeships, an aide to U.S. Rep. David Scott confirmed.
The meeting took place after Georgia's five Democratic House members sent a letter on Sept. 17 to President Barack Obama's White House counsel, Kathryn Ruemmler, expressing their shock and disappointment over a proposed list of six candidates for federal judgeships in Georgia, including two open seats on the Eleventh Circuit U.S. Circuit Court of Appeals and four seats on the District Court.
... In their letter to the White House counsel, the Democratic congressmen insisted it is "essential" that they participate in selecting candidates for nomination to the federal bench "to ensure a representative federal judiciary in Georgia."
The current slate of proposed nominees includes one African-American woman for the District Court, three white women—two for the Eleventh Circuit and one for a District Court seat—and two white men for the District Court.
Georgia lawyers familiar with the nomination process who asked not to be identified because of the sensitivity of the negotiations have told the Daily Report that the proposed nominees for two open seats on the Eleventh Circuit are:
• Jill Pryor, a partner at Atlanta's Bondurant, Mixson & Elmore whom President Obama has twice nominated to an open post on the Eleventh U.S. Circuit Court of Appeals.
• U.S. District Court Chief Judge Julie Carnes of the Northern District of Georgia, who was appointed by President George H.W. Bush in 1992.
U.S. Senators Saxby Chambliss and Johnny Isakson have, so far, blocked Pryor's nomination, but as part of the deal agreed to waive their objections in return for Carnes' appointment and three nominees of their choosing for the Northern District of Georgia bench.
Carnes' nomination, if confirmed, would create a fourth vacancy on the District Court bench in Atlanta, where three judges who took senior status in 2009, 2010 and this year have yet to be replaced.
The senators' picks for the Northern District are:
• Troutman Sanders partner Mark Cohen, whose name the senators put forth first in 2010 for the Northern District bench and then in 2011 for the Eleventh Circuit after he defended Georgia's voter identification law in a federal lawsuit;
• DeKalb County State Court Judge Eleanor Ross, a former prosecutor who was appointed to the bench by Governor Nathan Deal in 2011 and the only African-American on the list;
• Judge Michael Boggs of the Georgia Court of Appeals , a former Superior Court judge from the Waycross Judicial Circuit in the Southern District of Georgia and a Deal appointee to the appeals court.
The only Democratic nominee for the District Court is Leigh Martin May, a personal injury and product liability attorney at Butler Wooten & Fryhofer.

The Miami Herald ran an op-ed earlier in the week, titled: "Blacks lack presence on federal court." Here's the intro:

The government shutdown epitomizes the dysfunction caused by a small faction of Congress. But for federal judicial nominations, which require the “advice and consent” of the Senate, obstruction is nothing new. The confirmation process has been broken for some time. The result is a judicial vacancy crisis that harms the administration of justice and, just as important, the diversity of the federal bench.
Sen. Marco Rubio has blocked the nomination of William Thomas to Florida’s federal district court. Thomas is the first openly gay African-American nominee to any federal court. Sen. Rubio’s own 64-member judicial search commission supported Thomas as did the senator, initially. Sen. Rubio has now withdrawn his support, effectively denying Thomas a confirmation vote by the Senate. This obstruction, in the face of a superbly qualified candidate, is cause for great concern. But it is not the only issue looming for Florida’s federal judiciary.
Another issue concerns the racial diversity of judges on the federal appellate court that serves Florida, Georgia and Alabama, the U.S. Court of Appeals for the Eleventh Circuit. With the ever-shrinking docket of the U.S. Supreme Court, the Eleventh Circuit is effectively the court of last resort for residents of these states. Twenty-five percent of the residents are African-American, giving the Eleventh Circuit the highest percentage of African Americans of any circuit court in the country.
Although there are 12 judicial seats on the Eleventh Circuit, only one is held by an African American. Judge Charles Wilson, from Florida, was appointed by President Clinton in 1999.
Only one other African American has ever served on this court. The Eleventh Circuit was created in 1981, when Congress divided six states comprising the Fifth Circuit into two circuits. At that time, Judge Joseph Hatchett, also a Floridian and the only African American on the Fifth Circuit, was reassigned to the Eleventh. When he retired, Judge Wilson took his place.
In other words, the number of African-American judges sitting today on the Eleventh Circuit is the same as it was more than 30 years ago. This should concern everyone who cares about ensuring that our federal judiciary reflects the diversity of our nation and that our courts inspire confidence among our communities. Given its substantial African-American population, and the large pool of superbly qualified African-American attorneys and judges from which to select an appellate judge, the Eleventh Circuit should have more than one African-American jurist by this time.

Read more here: http://www.miamiherald.com/2013/10/08/3677936/blacks-lack-presence-on-federal.html#storylink=cpy

We need more Judge Gleesons

I can't do justice to the 60-page sentencing order that Judge Gleeson entered today, calling DOJ out for using the threat of 851 enhancements to force defendants to plead. 

Here's the conclusion to the must-read order:

I sentenced Lulzim Kupa to a 132-month term of imprisonment for a variety of reasons. The most important by far was because I could, that is, I was not required to impose a sentence of life in prison for his nonviolent drug trafficking offense. And the only reason for that is Kupa buckled under the enormous pressure that looming sentence placed on him. The prior felony information ushered that 800-pound gorilla into the case at the eleventh hour and it took the case over. Once it was filed, everything that followed was done with all eyes on the draconian sentence that a jury’s verdict of guilty would require me to impose. It snuffed out an imminent trial at which Kupa wanted to do what our Constitution and Bill of Rights guarantee
him: hold the government to its burden of proving him guilty beyond a reasonable doubt. And indeed the desire to snuff out that trial was reason the sole reason the prosecutor filed it.
Throughout, I have assumed that both the drug offense mandatory minimums and the onerous enhancements triggered by prior felony informations are here to stay, at least in some form. After all, as a circuit judge wrote in 2009, “[t]he Judicial Conference of the United States for almost 20 years, and the Sentencing Commission for almost 10 years, have pleaded with the judiciary committees of Congress to do something about the serious injustices that these long, mandatory minimum sentences impose – to no avail.”181 I have also assumed the constitutionality of using prior felony informations as bludgeons in federal prosecutors’ efforts to get defendants to plead guilty. But arguing that it is not illegal for prosecutors to use prior felony informations to produce the guilty pleas and sentences described above is no way to defend such a wayward policy. Attorney General Holder’s admirable leadership toward sentencing reform should lead him to refocus his attention on prior felony informations. If DOJ cannot exercise its power to invoke recidivist enhancements in drug trafficking cases less destructively and less brutally, it doesn’t deserve to have the power at all.

And here's the entire order:

US v Kupa Statement of Reasons Final

Tuesday news and notes

1.  David Mandel, the lawyer who got the huge verdict against TD Bank in the Coquina case, participated in a charity boxing event and knocked down his opponent.  Check out the video here. 

2.  Kim Rothstein's lawyer Scott Saidel was sentenced to 3 years in federal prison yesterday. From the Sun-Sentinel:

The courtroom was packed Monday morning, nearly 30 strong with supporters of the fallen attorney.
Saidel's defense attorney, Tama Beth Kudman, said her client was not driven by profit or greed and that he erred by viewing Kim Rothstein as a friend rather than a client.
"He saw this woman drowning and he tried to help her," Kudman told the judge. "She was losing everything in the world through no fault of her own. … He handled this horribly, and what he did was absolutely wrong."
Kudman, in her quest for a minimal sentence, emphasized Saidel's "extraordinary life of kindness, and empathy and giving."
"He has lost his career … his wife and child have moved out of their home. … He has no money left," Kudman said. "He's lost everything in the world."
As part of his plea deal, Saidel has agreed to forfeit $515,000 to federal authorities — including the $65,000 he received in legal fees from Kim Rothstein, four expensive pens and a pair of mother of pearl, diamond and sapphire cuff links.
Federal prosecutor Lawrence LaVecchio did not discredit Saidel's good deeds or cooperation with authorities, but he did take issue with minimizing the forethought and planning that went into the scheme to hide the jewelry.
"Nobody gets dragged into federal criminal court in cases like these because they committed errors in judgment," LaVecchio said. "It's not some isolated event, or lapse in judgment, that brought the defendant here today."
From a lectern in the middle of the courtroom, Saidel offered a round of apologies to the government, prosecutors, the judge, the Florida Bar, friends, family and — his voice cracking with emotion — to his client, Kim Rothstein.
"I am profoundly sorry for the conduct that led me here today," he said. "I apologize to my family and friends, who I have let down and hurt and embarrassed, and to my client Kimberly Rothstein, who might not find herself standing here in this very same spot at a later time, if I had simply been a better lawyer."

Seems like a huge sentence to me.  What are your thoughts?

3.  Meantime, why do misbehaving prosecutors get a pass in court opinions?  The Huffington Post examines the interesting issue in this interesting article:

Last month, a three-judge panel from the U.S. Court of Appeals for the Ninth Circuit ruled that a prosecutor in San Mateo County, Calif., committed "textbook" misconduct when she "knowingly elicited and then failed to correct false testimony" during an armed robbery trial. A judge from the U.S. District Court for the Northern District of California also found misconduct in the case, but ruled it was a "harmless error" and upheld the conviction of the defendant, La Carl Martez Dow. The appeals court panel overturned that ruling, and Dow's conviction.
But an important detail was missing from both those rulings -- the prosecutor's name, Jennifer Ow. At the time of Martez Dow's conviction, she was an assistant district attorney for San Mateo county. She currently holds the same title in Nevada County, Calif.
Earlier this year, the U.S. Supreme Court declined to hear an appeal alleging misconduct by a federal prosecutor who made racially offensive remarks during a drug trial in Texas. Justice Sonia Sotomayor wrote a separate opinion that excoriated the prosecutor, who, she wrote, "tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation."
"It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century," she wrote. "Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice."
But Sotomayor didn't name the prosecutor, either. And while her opinion attracted a fair amount of media attention, those initial accounts also failed to give the prosecutor's name.
Ken White, a former federal prosecutor who now blogs at Popehat.com, checked the legal document service PACER and tracked down the name: Sam L. Ponder. He is still an assistant U.S. attorney in Texas.
After White found Ponder's name, many media outlets amended their original reports to include it. But the case is an exception. The names of misbehaving prosecutors are rarely if ever included in appellate court opinions that find misconduct. Those opinions aren't all that well covered in the media to begin with, but when they are, it can take a fair amount of digging for a reporter on the courts beat to match the prosecutor to the case. So most don't.
There's no formal rule precluding the publication of a prosecutor's name in an opinion. White says it's more about professional courtesy.
"It's tradition. It's an informal practice driven by the government's fairly strong stand that the names shouldn't be published," he said. "I've seen some really egregious, outrageous examples of misconduct in which the government actually asked for opinions to be republished to remove names of specific prosecutors." 

4.  The Sun-Sentinel has this long piece on how the Sunrise police department and others like it are making millions off of the cocaine business:

Police in this suburban town best known for its sprawling outlet mall have hit upon a surefire way to make millions. They sell cocaine.
Police confiscate millions from these deals, money that fuels huge overtime payments for the undercover officers who conduct the drug stings and cash rewards for the confidential informants who help detectives entice faraway buyers, a six-month Sun Sentinel investigation found.
Police have paid one femme fatale informant more than $800,000 over the past five years for her success in drawing drug dealers into the city, records obtained by the newspaper show.
Undercover officers tempt these distant buyers with special discounts, even offering cocaine on consignment and the keys to cars with hidden compartments for easy transport. In some deals, they’ve provided rides and directions to these strangers to Sunrise.
This being western Broward County, not South Beach, the drama doesn’t unfold against a backdrop of fast boats, thumping nightclubs or Art Deco hotels.
It’s absurdly suburban.
Many of the drug negotiations and busts have taken place at restaurants around the city’s main attraction, Sawgrass Mills mall, including such everyday dining spots as TGI Fridays, Panera Bread and the Don Pan International Bakery.
Why would police bring criminals to town?
Money.

5.  Is a hot bench always a good thing at the Supreme Court.  The NY Times looks into it:

The Supreme Court has what lawyers call a hot bench, and temperatures are rising.

 

“The hot bench is a bench that asks a lot of questions,” Judge J. Harvie Wilkinson III explained at a judicial conference in June. “The Supreme Court bench seems to me to get hotter and hotter and hotter.”

The justices returned to that bench on Monday. Over the summer, several of them acknowledged that things had gotten out of hand in their courtroom, with their barrage of questions sometimes leaving the lawyers arguing before them as bystanders in their own cases.

Judge Wilkinson, who sits on the federal appeals court in Richmond, Va., made his observations in a public conversation with Chief Justice John G. Roberts Jr. The chief justice pleaded guilty, even as he explained that some people misunderstand the nature of oral arguments.

“First of all, there are excuses for it,” Chief Justice Roberts said.

“We don’t talk about cases before the argument,” he went on. “When we get out on the bench, it’s really the first time we start to get some clues about what our colleagues think. So we often are using questions to bring out points that we think our colleagues ought to know about.”

Justice Ruth Bader Ginsburg made a similar observation to me in August. “Oral argument questions are often directed more to a colleague than to the lawyer,” she said. “It’s a little unruly.”

In remarks at Harvard last month, Justice Elena Kagan agreed. “There’s no doubt,” she said, “that part of what oral argument is about is a little bit of the justices talking to each other with some helpless person standing at the podium who you’re talking through.”

Before Justice Kagan joined the court, she argued before it as United States solicitor general, and she learned to make her points quickly.

“You don’t get a chance to talk in paragraphs at the Supreme Court,” she said.

Chief Justice Roberts gave another reason for the warming trend.

“Recent appointees tended to be more active in questioning than the justices they replaced,” he said, referring to Justices Kagan and Sonia Sotomayor. “It’s nothing bad about either of them. It’s just a fact.”

Justice Ginsburg defended her new colleagues, noting that Justice Antonin Scalia is also a frequent questioner.

“These women are not shrinking violets,” she said. “Justice Sotomayor won the contest with Scalia for who would ask the most questions at oral arguments this year. It’s always Scalia, but this year it was Sotomayor.”

It falls to Chief Justice Roberts to be the traffic cop when two or more of his colleagues try to talk at once, and it is a role he does not relish.

“I’ve had to act as,” he said, pausing to search for the right word, “an umpire in terms of the competition among my colleagues to get questions out.”

There seems to be a consensus that the justices should moderate their volubility.

“It is too much, and I do think we need to address it a little bit,” Chief Justice Roberts said. “I do think the lawyers feel cheated sometimes. It’s nice for us to get a good feel for where everyone else is, but it also would be nice for them to have a chance to present their argument.”

 

Justice Scalia dishes on the devil, pop culture, and ladies

It's an incredible interview in the New York Magazine and well worth the read.  Here are some highlights:


You’ve described yourself as a fainthearted originalist. But really, how fainthearted?
I described myself as that a long time ago. I repudiate that.
So you’re a stouthearted one.
I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used “fainthearted” in reference to was—
Flogging, right?
Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT ­CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT ­CONSTITUTIONAL! Whack! ­STUPID BUT ­CONSTITUTIONAL … [Laughs.] And then somebody sent me one.
***
It was recently reported that the justices don’t communicate with one another by e-mail. Do you go online at all?
Yeah. Sure, I use the Internet.
You’ve got grandkids. Do you feel like the Internet has coarsened our culture at all?
I’m nervous about our civic culture. I’m not sure the Internet is largely the cause of it. It’s certainly the cause of careless writing. People who get used to blurbing things on the Internet are never going to be good writers. And some things I don’t understand about it. For example, I don’t know why anyone would like to be “friended” on the network. I mean, what kind of a narcissistic society is it that ­people want to put out there, This is my life, and this is what I did yesterday? I mean … good grief. Doesn’t that strike you as strange? I think it’s strange.
I’ve gotten used to it.
Well, I am glad that I am not raising kids today. And I’m rather pessimistic that my grandchildren will enjoy the great society that I’ve enjoyed in my lifetime. I really think it’s coarsened. It’s coarsened in so many ways.
Like what?
One of the things that upsets me about modern society is the coarseness of manners. You can’t go to a movie—or watch a television show for that matter—without hearing the constant use of the F-word—including, you know, ladies using it. People that I know don’t talk like that! But if you portray it a lot, the society’s going to become that way. It’s very sad.
And you can’t have a movie or a television show without a nude sex scene, very often having no relation to the plot. I don’t mind it when it is essential to the plot, as it sometimes is. But, my goodness! The society that watches that becomes a coarse society.
***
Can I ask about your engagement with regular pop culture?
I’m pretty bad on regular pop culture.
I know you watched the show 24. Do you also watch Homeland?
I don’t watch Homeland. I don’t even know what Homeland is. I watched one episode of—what is it? Duck Dynasty?
What?
I don’t watch it regularly, but I’m a hunter. I use duck calls …
Did you just stumble on it by accident?
No! So many people said “Oh, it’s a great show” that I thought I’d better look at it. Have you looked at it?
No. But there are three books on the New York Times’ best-seller list about Duck Dynasty.
Is that right?
Yes. Three. Did you watch The ­Sopranos? Mad Men?
I watched The Sopranos, I saw a couple of episodes of Mad Men. I loved Seinfeld. In fact, I got some CDs of Seinfeld. ­Seinfeld was hilarious. Oh, boy. The Nazi soup kitchen? No soup for you!
 ***
You believe in heaven and hell?
Oh, of course I do. Don’t you believe in heaven and hell?
No.
Oh, my.
Does that mean I’m not going?
[Laughing.] Unfortunately not!
Wait, to heaven or hell?
It doesn’t mean you’re not going to hell, just because you don’t believe in it. That’s Catholic doctrine! Everyone is going one place or the other.
But you don’t have to be a Catholic to get into heaven? Or believe in it?
Of course not!
Oh. So you don’t know where I’m going. Thank God.
I don’t know where you’re going. I don’t even know whether Judas Iscariot is in hell. I mean, that’s what the pope meant when he said, “Who am I to judge?” He may have recanted and had severe penance just before he died. Who knows?
Can we talk about your drafting process—
[Leans in, stage-whispers.] I even believe in the Devil.
You do?
Of course! Yeah, he’s a real person. Hey, c’mon, that’s standard Catholic doctrine! Every Catholic believes that.
Every Catholic believes this? There’s a wide variety of Catholics out there …
If you are faithful to Catholic dogma, that is certainly a large part of it.
Have you seen evidence of the Devil lately?
You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He’s making pigs run off cliffs, he’s possessing people and whatnot. And that doesn’t happen very much anymore.
No.
It’s because he’s smart.
So what’s he doing now?
What he’s doing now is getting people not to believe in him or in God. He’s much more successful that way.
That has really painful implications for atheists. Are you sure that’s the ­Devil’s work?
I didn’t say atheists are the Devil’s work.
Well, you’re saying the Devil is ­persuading people to not believe in God. Couldn’t there be other reasons to not believe?
Well, there certainly can be other reasons. But it certainly favors the Devil’s desires. I mean, c’mon, that’s the explanation for why there’s not demonic possession all over the place. That always puzzled me. What happened to the Devil, you know? He used to be all over the place. He used to be all over the New Testament.
Right.
What happened to him?
He just got wilier.
He got wilier.
Isn’t it terribly frightening to believe in the Devil?
You’re looking at me as though I’m weird. My God! Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It’s in the Gospels! You travel in circles that are so, so removed from mainstream America that you are appalled that anybody would believe in the Devil! Most of mankind has believed in the Devil, for all of history. Many more intelligent people than you or me have believed in the Devil.
I hope you weren’t sensing contempt from me. It wasn’t your belief that surprised me so much as how boldly you expressed it.
I was offended by that. I really was.

All in

AFPD Jan Smith made as big a gamble as I've ever seen in a trial, and it paid off. A Hobbs Act case, where the defendant testified, both sides got 30 minutes for closing. After the government's initial closing argument, Jan waived the defense's closing. This meant that the government could not get back up for its rebuttal.

The jury came back not guilty.

Wow, what an incredible gambit!

I think defense lawyers must take risks in trial to win. But this takes the cake. Hats off to Jan Smith for having the guts to do this.

In 11th Circuit news, Judge Carnes is talking structuring.  And he reversed a defendant's conviction in U.S. v. Lang.  Here's the conclusion:

In this case, each count of the indictment charges as a separate structuring crime a currency transaction involving a single check. Each check alleged is for an amount less than $10,000, and no combination of two or more checks is alleged in any count. See App. A. A cash transaction involving a single check in an amount below the reporting threshold cannot in itself amount to structuring because the crime requires a purpose to evade the reporting requirement, and that requirement does not apply to a single cash transaction below the threshold. The government’s theory (at least its current theory) is that Lang received from one source 21 payments exceeding $10,000 over a period of eight months, he had those larger payments broken into multiple checks each of which was less than $10,000, and he then cashed those checks separately in a way that evaded the reporting requirements. That is all well and good, but it is not what is alleged in the indictment. Instead of a series of counts each alleging a payment or payments totaling more than $10,000 that were structured into checks of smaller amounts, which were then cashed, the indictment consists of 85 counts each of which separately alleges that a single check in an amount less than $10,000 was structured. That is not possible. When cashed checks come to the structuring dance, it takes at least two to tango.
***
For these reasons, we conclude that the indictment is “so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted.” Pena, 684 F.3d at 1147 (quotation marks omitted). This is not a mere multiplicity situation where some counts may be upheld if others are vacated. See United States v. Bonavia, 927 F.2d 565, 571 (11th Cir. 1991); United States v. Mastrangelo, 733 F.2d 793, 802 (11th Cir. 1984). Where no count in the indictment charges a crime, the defendant is entitled to have the judgment vacated and the case remanded with instructions that the indictment be dismissed.

Dread Pirate Roberts arrested...

...Inconceivable!  Here's the very interesting "Silk Road" complaint.

The question is whether anyone will be around to prosecute him or hear the case if this shutdown continues.  For now, the courts are humming along, but in about 7 days, there is a question as to what will happen.  For example, at least one of our judges is in a lengthy trial.  What happens when the funding for the jurors, defenders, etc runs out in a week and a half?  Mistrial?

Meanwhile, the Supreme Court is back in business, and the Court granted cert in a bunch of cases, including one on anonymous tips:

The U.S. Supreme Court granted review of a Northern California drug-transportation case Tuesday to decide whether police can stop a car based solely on an anonymous tip of reckless driving.
Under constitutional standards for searches and seizures, officers can detain a driver if they have reasonable suspicion of wrongdoing, and can rely on an identified witness' description of illegal activity that endangers the public. But courts around the nation have disagreed on whether police can pull someone over because an anonymous source reported that the motorist was driving dangerously.
The high court agreed to hold a hearing and decide the issue in the term that ends in June.
The case dates from August 2008, when a Highway Patrol dispatcher got a call from someone who had been run off the road by a pickup truck on Highway 1 north of Fort Bragg. The caller provided the license number, and shortly afterward two CHP officers spotted and stopped the pickup.
The officers smelled marijuana when they approached, and found four bags of the drug in the truck bed, according to a state appeals court. After unsuccessfully challenging the search, the driver and passenger, brothers Lorenzo and Jose Navarette, pleaded guilty to transporting marijuana and were sentenced to 90 days in jail.
The First District Court of Appeal in San Francisco upheld their convictions in October 2012, citing a 2006 California Supreme Court ruling that allowed police to rely on an anonymous tip without actually seeing the motorist driving recklessly.
"The report that the (Navarettes') vehicle had run someone off the road sufficiently demonstrated an ongoing danger to other motorists to justify the stop without direct corroboration of the vehicle's illegal activity," the appellate panel said in a 3-0 ruling.

 You won't get to see any of these arguments on TV, which is just ridiculous.  Here's Justice Alito's recent argument as to why oral argument should not be televised:

In the course of his wide-ranging conversation with Levi, Alito explained his opposition — one shared by his Supreme Court colleagues — to having oral arguments televised. He recalled the arguments made by U.S. Solicitor General Donald Verrilli Jr. in support of the Patient Protection and Affordable Care Act during the last term of the Court.
Calling Verrilli a very good and skillful advocate, Alito noted that the solicitor general frequently argues before the Court and made three arguments on “Obamacare” in a week.
“To prepare for one argument is exhausting. To do three is Herculean,” said Alito. “So the solicitor general got up to argue during one of these arguments — it was not the first — and he had a bad 30 seconds. He was having trouble swallowing — he sipped [water] the wrong way. The argument was not televised, however contrary to our normal practice, we released the audio of this that afternoon. So that afternoon, C-SPAN broadcast the audio, along with still photos of the participants.
“Well, he recovered, he got his voice back, and he made a very good argument. It was one that I happened not to agree with, but he did a very good job of arguing the position the government had taken, as you would expect. Within hours of that, a television ad had been produced saying that ‘There’s no good argument that can be made in support of the constitutionality of the Affordable Care Act and here’s the illustration — we have the solicitor general of the United States, and he’s at a loss for words in trying to support this position.’
“This is an illustration of the way oral arguments can be used if they are televised,” said Alito.

Or if they aren't.

Judge Cooke dismisses federal case against Lewis & Tein

 

Guy Lewis and Mike Tein got a complete victory yesterday before Judge Cooke in the federal case filed by the Miccosukee Tribe against them and others.  Judge Cooke dismissed the case with prejudice -- a complete victory for them and their lawyer Paul Calli. 

Here's the order, which starts like this:

“No one fights dirtier or more brutally than blood; only family knows its own weaknesses, the exact placement of the heart.” Whitney Otto, How to Make an American Quilt (1991). Whitney Otto’s quote seems a particularly apt description of the emotionally and politically charged litigation, occurring in multiple judicial venues, between the named parties, whom include the following.

There's even a Gandhi quote in the conclusion:

I am quite certain that this Omnibus Order will affect minimally the incessant litigation and sour relations between the parties. I simply implore the parties to heed that “an eye for an eye will only make the whole world blind.” - Mahatma Gandhi

The meat of the order is good reading as well:

Despite every effort of the Miccosukee Tribe to bring this battle to the doorstep of the federal courthouse, the door cannot open to allow an intra-tribal dispute of this nature. Even if it could, the Miccosukee Tribe's claims would nevertheless be denied entry because in short the Miccosukee Tribe simply does not state a federal cause of action.

BREAKING -- Robin Rosenbaum being vetted for 11th Circuit

Congratulations to Judge Rosenbaum, who is being vetted for Judge Barkett's seat on the 11th Circuit. Judge Barkett was honored Friday night at a huge (and lovely) event, and the buzz at the party was about Judge Rosenbaum moving up to the appellate bench.

She's smart and has a good temperament, so she has moved up very fast.   A former Judge Marcus clerk (that's him swearing her in below) and former federal prosecutor, she became a magistrate in 2007, and then a district judge in June 2012. 

Dramatic guilty verdict in psychic trial

Paula McMahon has covered this trial wall to wall.  It's never easy after a guilty verdict:

Though Marks' relatives were initially calm and cried softly as the verdict was read, several of them became very upset after jurors left the courtroom and the family realized their matriarch was not going to be allowed to remain free on bond.
"Please let me hug my mom," Marks' eldest son, Ricky Marks, asked U.S. Marshals and courthouse security officers.
Other family members begged to be allowed to give their phone numbers to "Pinky" — Marks' family nickname — so she could call them from jail.
One grandson jeered at the lead investigator on the case, retired Fort Lauderdale Detective Charlie Stack, asking him, "How are you feeling now, Charlie? You did a good job?"
But Marks' two sons Ricky and Michael Marks tried to calm their family and apologized to Stack.
Daughter Rosie Marks began hyperventilating and collapsed to the floor in the hallway outside the courtroom. She and her two brothers, their spouses, one of Marks' granddaughters and Marks' sister have all pleaded guilty to related charges and are free while awaiting sentencing later this year.
Other members of the extended family shouted and one threw a Bible in the courtroom, yelling "I hate this Bible … I don't want this Bible anymore."
There was more security than usual in the courtroom but the agents and officers handled the disruption diplomatically, urging everyone to remain calm and trying to alleviate the family's concerns.

Psychic's trial now in jury's hands

Paula McMahon has been covering this fun (it's all relative) trial.  Here's the latest article with excerpts from the closing arguments:

Jurors heard from both the prosecution and defense that, in the Romani or Gypsy culture, mothers have a long tradition of teaching their daughters to develop psychic and other skills to help them become fortune tellers.
And while the prosecution said the mixing of family money in Marks' bank account and checks from one family member's client being sent to Marks were evidence of money-laundering to conceal the source of "dirty" money, the defense quoted an expert who said Gypsy families share money among the extended family more commonly than other cultures in the U.S.

More from the prosecution:

Prosecutors urged jurors on Wednesday to find "psychic" Rose Marks guilty of orchestrating a massive con — regardless of how outlandish the allegations sound and whether jurors think the victims were gullible.
"Don't blame the victims, and don't let them blame the victims," Assistant U.S. Attorney Larry Bardfeld said of Marks' defense in closing arguments in the month-long trial.
The victims were "not stupid," but were preyed upon by uncaring scammers who exploited vulnerable people in times of crisis — when they were bereaved and grieving, ill or looking for true love, he said.

And more from the defense:

While prosecutors cast everything in a negative light, Schwartz suggested they could not prove that Marks took money from clients under false pretenses, never intending to return it. He pointed out that she paid back large sums of money to several clients, but said she was unable to make payments after she was arrested and barred from working as a psychic at least until the criminal case is over.
"She doesn't have to prove she intended to pay it back, they [prosecutors] have to prove she didn't intend to pay it back," Schwartz said.

I thought this jury instruction looked interesting:

Jurors were also told that courts have ruled that fortune telling is free speech that is constitutionally protected by the First Amendment.

"Link Rot" at the Supreme Court, and a Will Thomas update

Adam Liptak has this great piece about links in Supreme Court cases not working anymore:

Supreme Court opinions have come down with a bad case of link rot. According to a new study, 49 percent of the hyperlinks in Supreme Court decisions no longer work.

This can sometimes be amusing. A link in a 2011 Supreme Court opinion about violent video games by Justice Samuel A. Alito Jr. now leads to a mischievous error message.

“Aren’t you glad you didn’t cite to this Web page?” it asks. “If you had, like Justice Alito did, the original content would have long since disappeared and someone else might have come along and purchased the domain in order to make a comment about the transience of linked information in the Internet age.” 

It gets worse:

Even links to the Supreme Court’s own Web site have stopped working. One is to a video of what Justice Antonin Scalia called “the scariest chase I ever saw since ‘The French Connection.'”

The chase ended when a police car rammed the vehicle of a fleeing suspect, leaving him paralyzed. The driver sued, saying the police had used excessive force, and in 2007 the Supreme Court ruled against him.

The court posted the video. “I suggest that the interested reader take advantage of the link in the court’s opinion, and watch it,” Justice Stephen G. Breyer wrote in a concurrence.

Good luck: the link does not work. “The fact that the Supreme Court itself has links to its own Web site that no longer function shows the depth of the link rot problem,” Ms. Liebler and Ms. Liebert wrote, noting that the video could still be found with a little hunting around.

There were scores of links in the term that ended in June. For proof that many dog owners use six-foot leashes, for instance, Justice Alito included a link to About.com.

(Should justices conduct independent Internet research of the sort that might appear in a high school research paper? In an article last year in The Virginia Law Review, Allison Orr Larsen, a professor at William & Mary Law School, called the trend worrisome. Judge Richard A. Posner of the federal appeals court in Chicago defended the practice in a new book, “Reflections on Judging,” saying that “the Web is an incredible compendium of data and a potentially invaluable resource for lawyers and judges.”)

Links in Supreme Court opinions are less likely to work as they get older. But even some recent links are broken. A decision from February, for instance, included a citation to statistics from the Ohio court system; the link leads to a dead end.

Even working links may be problematic, as many Web sites are routinely altered. In April 2008, for instance, the court issued an important decision in a case concerning the lethal chemicals used to execute inmates, linking to a draft article. The link now delivers the reader to an article that indicates it was last revised in August 2008.

Meantime, Sen. Rubio is under more fire for his recent decision to block Judge Thomas. The NY Times is covering the story, and Fred Grimm has this excellent editorial in the Herald.  Here's the conclusion, which rebuts Rubio's argument about the sentence in the leaving the scene of the accident case:

But Assistant State Attorney Jane Anderson, who prosecuted the Traverso case in 2012, wrote Rubio that despite the widespread contention that this was a DUI case, the prosecution “had no proof that the defendant had driven under the influence or recklessly. Legally it was an accident.”
The judge, she noted, actually refused a defense motion for downward departure from the sentencing guidelines. He added a year’s sentence to the 11 months Traverso had already served in the county jail — a 23-month sentence, not, as Rubio’s office intimated, 364 days. Anderson wrote, “While the sentence was ultimately disappointing to the state and the victim’s family, Judge Thomas legally sentenced the defendant after hearing all parties and conducting the sentencing hearing with compassion and careful judgment.”
Rubio has a similar letter correcting popular misconceptions about the Traverso case from Nushin Sayfie, chief administrative judge for the criminal court.
Rubio received other letters praising Thomas from bleeding-heart organizations like the Miami-Dade and Broward Police Benevolent Associations, not to mention the League of Prosecutors. Ovalle, who knows everything about that courthouse, insisted that Thomas is regarded as one of the hardest-working, most competent judges in the Miami-Dade criminal court division.
But all this is to pretend that Rubio had some reason other than crass Tea Party politics for sabotaging Judge Thomas’ reputation and aborting the confirmation process.
So the Thomas nomination won’t get a hearing, much less a vote.
Because, you know, he just lacks the right “judicial temperament.”

There is now an online petition circulating for Judge Thomas that you can sign here.

UPDATE -- if you want to read any of the letters referenced in the Grimm article, you can access them at Glenn Sugameli's website.

Marco Rubio should give Will Thomas a "blue slip"

The DBR has the news on the refusal to issue a blue slip and SFL has a nice post explaining why that refusal is wrong.

The thing is -- we are just talking about allowing the process to go forward; to let the Senate vote on Thomas' nomination.  A nomination that Rubio initially recommended.  How can anyone be against allowing the process to proceed?

In other news, William Dimitrouleas sentenced Craig Toll to 2 years in prison, after having sentenced Osorio to 12.5 years.  Interestingly, Chris Korge testified in favor of Toll saying that he didn't know what was going on at the company.

Meantime, prosecutors in Kentucky are arguing that the 2255 waiver is not unethical.  The Kentucky Supreme Court doesn't understand their position:

The justices seemed puzzled by the stance of the federal prosecutors. Repeatedly, the jurists questioned the need for the waiver and whether an attorney can be aware of their mistakes at the time a plea agreement is reached.
Cushing told the justices that allowing later attacks on the performance of an attorney merely prolongs cases and hurts victims and their families.
“It’s about finality,” Cushing said. “Victims of crime have gone through tremendous trauma when these things go through the courts.”
Justice Daniel Venters said there is generally no way for a defendant to know if the attorney made an error until much later.
“It’s always hindsight in terms of defendants,” Venters said.
Justice Lisabeth Hughes Abramson said all justices want to see cases closed, but they must be closed properly.
“You’re asking us to accept the lawyer who is singularly unaware of his own lack of due diligence to be the guardian of the defendant’s rights,” Abramson said.
The case comes three years after the U.S. Supreme Court overturned Kentucky’s high court in a case that hinged on an attorney’s deficient advice. In that case, truck driver Jose Padilla wasn’t told he would face deportation if he pleaded guilty to hauling marijuana in the back of his truck. The U.S. Supreme Court concluded that the lack of due diligence by Padilla’s attorney affected the plea and Padilla’s claim of ineffective assistance of counsel was valid.
Justice Will T. Scott noted that if the waivers had been in place in Padilla’s case, he would have gone to prison and been deported based on bad advice.
“In cases where it matters, it really matters,” Abramson said.

Why you gotta love Judge Ungaro

You can almost hear her engaging the Governor's lawyers (via Curt Anderson):

 Gov. Rick Scott intends to take his fight for random drug tests of tens of thousands of state employees all the way to the U.S. Supreme Court, a lawyer for the Republican governor told a federal judge Thursday.
But Charles Trippe, who was previously Scott's general counsel and is now in private practice, could not persuade U.S. District Judge Ursula Ungaro to delay further proceedings in the case while the state appeals. Ungaro said she did not want to become "a political tool" in the controversial issue — and she also said Scott has "probably about zero" chance of winning a Supreme Court case.
"I just don't think it has likelihood of success," said Ungaro, who previously declared Scott's January 2011 drug-testing executive order an unconstitutional violation of the workers' privacy rights.
The case affecting some 85,000 state employees as well as many job applicants is back before Ungaro because the 11th U.S. Circuit Court of Appeals concluded her April 2012 ruling in was too broad. The appeals court said in May of this year that some workers can legitimately be tested — such as those in law enforcement and sensitive safety jobs — and Ungaro planned to appoint a special master to come up with a proposed list of those positions.
Trippe wanted Ungaro to delay that exhaustive process so the governor can pursue the Supreme Court appeal, which would likely push the case well into election-year 2014. But Ungaro would not issue that order Thursday, even though an attorney for the American Federation of County, State and Municipal Employees did not object.
"How are you going to avoid it? Do we hope the governor will be voted out of office?" Ungaro said of the legal case. "Is this the idea, keep the ball up in the air, pray he is not re-elected?"
The judge said she would not delay the case unless Scott agreed to scrap the executive order should the Supreme Court decline to review it.
"I certainly can't say that," Trippe replied.
The executive order has been on hold pending the outcome of the lawsuit, filed by AFCSME and the American Civil Liberties Union. Also on hold is implementation of a similar state law that gives agency department heads authority to devise their own drug-testing programs, said union attorney Shalini Agarwal.
Ungaro set another hearing for Oct. 11 and urged the two sides to come up with a way forward. For example, the judge suggested the two sides work together on narrowing down which job categories might be exempt from drug testing and which could be covered by it.
"I have no desire to see the citizens of the state of Florida exposed to any more expense," she said.
Trippe, however, said the governor's office may return to the October hearing "with the same position we have today" seeking to delay the case.
"That's fine," the judge replied. "And, I may deny it."

Wednesday News & Notes

1.  The blog broke the news yesterday of the 4 nominees from the JNC for the federal bench.  Two of these nominees will be selected as our next federal judges:

Beth Bloom, Darrin Gayles, Peter Lopez, John Thornton

2.  Meantime, Judge Will Thomas' nomination is still being held up by Sen. Marco Rubio.  A rally on his behalf was held this morning at the federal courthouse.

3.  Claudio Osorio was sentenced to 12 1/2 years in prison.

4.   "Grotesque prosecutorial misconduct" leads to a new trial.  This time it's from New Orleans.  Via CNN:

Jury selection was minutes away for five ex-New Orleans police officers accused of shooting unarmed civilians after Hurricane Katrina when a commenter ripped into the defendants on a newspaper website.

"NONE of these guys should had have [sic] ever been given a badge," the commenter, identified only as "legacyusa," wrote. "We should research how they got on the police department, who trained them, who supervised them and why were they ever been promoted. You put crap in -- you get crap out!!!"

"Legacyusa" turned out to be one of the top federal prosecutors in New Orleans. His post was just one of many anonymous barbs that led a federal judge Tuesday to throw out the convictions of those ex-cops in the Danziger Bridge shootings, which left two people dead and four seriously wounded.

In a 129-page ruling, District Judge Kurt D. Engelhardt cited long list of "egregious and inflammatory" comments by at least three Justice Department officials using a variety of online identities. Those comments fueled a "21st century carnival atmosphere" that tainted the 2011 trial and will require a new one, Engelhardt wrote.

"This case started as one featuring allegations of brazen abuse of authority, violation of the law and corruption of the criminal justice system; unfortunately, though the focus has switched from the accused to the accusers, it has continued to be about those very issues," the order states. "After much reflection, the court cannot journey as far as it has in this case only to ironically accept grotesque prosecutorial misconduct in the end."

In a statement issued Tuesday afternoon, the Justice Department said, "We are disappointed with the court's ruling. We are reviewing the decision and considering our options."

  
 Seems like a strange reaction from DOJ.  Why do they defense misconduct?

5.   Locally, bond was denied this morning in a case involving Iran, uranium, African mines, and ICE.  From Curt Anderson:

A West African man was ordered jailed Thursday until trial on U.S. charges that he attempted to broker an illegal deal to ship tons of uranium ore from Sierra Leone to Iran, including a trip to the U.S. with uranium ore samples concealed in shoes inside his luggage.
Patrick Campbell, 33, faces a maximum of 20 years behind bars and up to $1 million in fines if convicted of attempting to violate the U.S. embargo against Iran. A U.S. Immigration and Customs Enforcement affidavit filed in federal court says Campbell claimed he could supply enough ore — commonly known as yellowcake — to yield 1,000 tons of purified uranium that could be used for nuclear fuel or weapons.
U.S. Magistrate Judge Barry Seltzer agreed with prosecutors at a hearing that Campbell should not be released on bail, although a trial date has not been set. Campbell is scheduled to enter a plea next week.

Breaking -- JNC cuts list to 4

Your next two federal district judges will be from this list:

Beth Bloom, Darrin Gayles, Peter Lopez, John Thornton

Congrats!!

Interesting to note that all four are sitting state judges in Circuit Court.

JNC interviews today

Good luck to all of the applicants.

After the interviews, the JNC will cut the list to four (for two open seats).  I will post those four names as soon as I have them.

Bonds strikes out

Barry Bonds' conviction was affirmed.  From the San Francisco Chronicle:

Barry Bonds obstructed justice before a federal grand jury when he tried to duck a question about steroid injections with an evasive and irrelevant answer, a federal appeals court ruled Friday in upholding the felony conviction of baseball's home run king.
A jury in San Francisco deadlocked in 2011 on three charges that Bonds committed perjury when he denied, in 2003 grand jury testimony, that he had ever knowingly used steroids or other performance-enhancing drugs.
But jurors convicted him of obstructing the panel's investigation after a prosecutor asked him whether his personal trainer had ever given him injectable drugs. Instead of a yes-or-no answer, he launched into a discourse about his "celebrity" childhood, as the son of ex-ballplayer Bobby Bonds, and his friendship with the trainer, and added, "I just don't get into other people's business."
Bonds appealed his conviction, saying he had testified truthfully. But the Ninth U.S. Circuit Court of Appeals in San Francisco said factually accurate testimony can be obstructive if it is intended to throw an investigation off course.
"When factually true statements are misleading or evasive, they can prevent the grand jury from obtaining truthful and responsive answers," said Judge Mary Schroeder in the 3-0 ruling.
Bonds' lawyers were not immediately available for comment. They could ask the full appeals court for a rehearing. His sentence of 30 days of house arrest, 250 hours of community service and $4,100 in fines and court costs has been on hold during his appeal.
Bonds issued a statement on his website Friday that read, in part: "I have instructed my attorneys to ask the court and probation officials to permit me to begin serving my full sentence and probation immediately. Meanwhile, I also intend to seek further judicial review of the important legal issues presented by the appeal that was decided today."

Here's the intro to the opinion:

 Barry Bonds was a celebrity child who grew up in
baseball locker rooms as he watched his father Bobby Bonds
and his godfather, the legendary Willie Mays, compete in the
Major Leagues. Barry Bonds was a phenomenal baseball
player in his own right. Early in his career he won MVP
awards and played in multiple All-Star games. Toward the
end of his career, playing for the San Francisco Giants, his
appearance showed strong indications of the use of steroids,
some of which could have been administered by his trainer,
Greg Anderson. Bonds’s weight and hat size increased, along
with the batting power that transformed him into one of the
most feared hitters ever to play the game. From the late-
1990s through the early-2000s, steroid use in baseball fueled
an unprecedented explosion in offense, leading some
commentators to refer to the period as the “Steroid Era.”1 In
2002, the federal government, through the Criminal
Investigation Division of the Internal Revenue Service, began
investigating the distribution of steroids and other
performance enhancing drugs (“PEDs”). The government’s
purported objective was to investigate whether the
distributors of PEDs laundered the proceeds gained by selling
those drugs.
The government’s investigation focused on the
distribution of steroids by the Bay Area Laboratory
Co-operative (“BALCO”), which was located in the San
Francisco Bay Area. The government raided BALCO and
obtained evidence suggesting that Anderson distributed
BALCO manufactured steroids to Bonds and other
professional athletes. The government convened a grand jury
in the fall of 2003 to further investigate the sale of these
drugs in order to determine whether the proceeds of the sales
were being laundered. Bonds and other professional athletes
were called to testify. Bonds testified under a grant of
immunity and denied knowingly using steroids or any other
PEDs provided by BALCO or Anderson. The government
later charged Bonds with obstructing the grand jury’s
investigation. After a jury trial, Bonds was convicted of one
count of obstruction of justice in violation of 18 U.S.C.
§ 1503. He now appeals. We affirm the conviction.

In other news, the U.S. Attorney's office in the Eastern District of North Carolina is not going to put up with prosecutorial misconduct. The whole article is worth a read, but here's the intro from the Charlotte Observer:

In May, U.S. Court of Appeals judges were so upset with federal prosecutors from North Carolina’s Eastern District for persistently hiding or mishandling criminal case evidence that a tongue-lashing, perhaps never heard before in the stately wood-paneled U.S. Fourth Circuit Court of Appeals courtroom in Richmond, Va., was delivered from the bench.
“I’ve been an appellate judge for 28 years, and I have never made these kinds of comments to a prosecutor, never,” Appeals Court Judge Barbara Keenan told the prosecutor from the U.S. Attorney’s Office in North Carolina’s 44-county region that stretches from Raleigh to the coast. “But the increasing frequency from your office of this kind of conduct is really troubling, really troubling.”
The circuit judges followed with a ruling two weeks ago in the securities fraud case of United States v. Gregory Bartko, suggesting that a prosecutor had ignored false testimony instead of correcting it during trial, among other concerns. The judges said the case further highlighted a troubling pattern of Eastern District prosecutors withholding evidence from defendants. They asked U.S. Attorney General Eric Holder to review the behavior.
That has led to a shakeup at the U.S. Attorney’s Office for the North Carolina Eastern District. Thomas Walker, the appointed U.S. Attorney since 2011, confirmed changes to the top ranks of his staff and said in an interview that he has adopted new rules for handling evidence in criminal cases.

Read more here: http://www.charlotteobserver.com/2013/09/09/4294706/top-federal-prosecutor-in-nc-eastern.html?goback=.gde_1525477_member_273178346#.UjcNJj_ZV8F#storylink=cpy