Boobie boys opinion

The 11th Circuit yesterday decided the "Boobie Boys" case, affirming most of the convictions. The court did reverse two of the convictions for "Jonathon "Moose" Hawthorne and Ben "Bush" Johnson. Judge Barkett wrote the 137 page opinion. The court repeatedly said that the district court erred in admitting all sorts of hearsay and opinion testimony, but for most of the appellants, the court found the error harmless.

Professor Berman has this interesting comment about the case, which also contains a link to the case:

In his opinion for the majority in Blakely, Justice Scalia expresses concern about defendants possible being punished for an uncharged murder and possibly being punished based on weak hearsay testimony proven to a judge only by a preponderance of the evidence. If these issues truly concern Justice Scalia (and other members of the Blakely majority), the Supreme Court ought be interested in a cert. petition coming from today's decision by the Eleventh Circuit in US v. Baker, No. 00-13083 (11th Cir. Dec. 13, 2005) (available here). (Tech warning: the PDF of this opinion is causing Adobe to crash for me sometimes.) Starting at page 124 of an 137-page opinion(!!), the 11th Circuit in Baker affirms long sentences for a number of co-defendants in a large drug conspiracy on the basis of hearsay testimony concerning their involvement in an uncharged murder. Fans of Crawford debates will especially enjoy the court's work in footnote 68, where the Eleventh Circuit
explains why Crawford is to be inapplicable at sentencing.

Hamilton Bank jury in

The jury could not reach a verdict in the Hamilton Bank trial -- US v. Masferrer. Judge Moore declared a mistrial and set the retrial for April. The deliberations took some strange turns -- two jurors were excused for reading the newspaper, requiring two alternates to come into a jury room where there had been 3 days of deliberations. Nonetheless they were required to start considering the case from scratch. Then one of the alternates got sick and an ambulance had to be called to the courthouse. After all this, the jury hung. Defense lawyers were Howard and Scott Srebnick. Prosecutors were Ben Greenberg and Andrew Levy.

News and notes

1. Slow blogging -- sorry for being out of touch the last couple days. I've been going back and forth to Savannah preparing for a big trial scheduled for January 16. The lead prosecutor said in court last week that it was the largest case ever in Savannah. The case is just immense and it's taking up almost all of my time.

2. No bond for Cuban exiles in illegal weapons case -- From the AP: "U.S. District Judge James I. Cohn sided with prosecutors, upholding another judge's ruling denying bail for Santiago Alvarez, 64, and 63-year-old Osvaldo Mitat. They are charged in a seven-count grand jury indictment with illegal possession of machine guns and other weapons - some with serial numbers erased - that were allegedly stored at an apartment complex near Fort Lauderdale owned by Alvarez." "These weapons have no utilitarian purpose other than to harm others," Cohn said. Kendall Coffey, Alvarez's lawyer, said: "These aren't criminals. These are two honorable men. These men will be acquitted at trial."

3. Hamilton Bank trial -- no verdicts yet. Jury has been out a long time. The worst part of being a trial lawyer is waiting for the jury to come back. Terrible.

Middle District News

Hat-tip to one of our anonymous readers:

"Al-Arian acquittals across the board (with a sprinkling of hung counts) -- no convictions!
One defendant, Fariz, was represented by Fletcher Peacock's Middle District defenders."
Read Yahoo news

Press for Anonymous Miami Blog

Julie Kay writes about the Justice Building Blog in today's DBR. Here's the intro to the article:

The dishy Washington, D.C., court blog UnderneathTheirRobes.com, which talked up the “hotties” of the federal bench, disappeared after the assistant U.S. attorney who wrote it was outed last month. But a Miami version debuted last month, and it features the same menu of irreverent judicial gossip and satire, including a poll ranking the sexiest judge on the bench. It’s likely to rile lawyers, judges and elected officials — and be devoured by them. “Welcome to the unofficial Richard E. Gerstein Justice Building blog,” the anonymously written blog reads. “This site will be dedicated to justice building rumor, humor, innuendo and good stories about the judges and lawyers who labor in the world of Miami’s criminal justice.”

Our blog gets a mention:

But two other South Florida lawyer-bloggers, who put their names on their postings, doubt he’ll be able to maintain his anonymity very long. “We’ll see how long he stays in the closet,” said Miami criminal defense attorney David Markus. “E-mails can be traced.” That’s how the Washington blogger was outed. Predicted Miami criminal defense lawyer Brian Tannebaum: “He will be discovered.”

Anyone know who it is?

More judges?

Today's DBR (pass through link required) details a new bill in Congress to add 3 judges to our district, as well as splitting up the 9th Circuit. Although splitting the 9th is talked about every year and is very controversial, we would be the beneficiaries if the bill passes. I'm quoted in the article:

“We are the busiest and best district in the country and we could always use more judges,” said David Markus, vice president of the Florida Association of Criminal Defense Lawyers. If new judgeships are created in South Florida, a battle over where they would be stationed is likely, said insiders. A push to post the new judges in Broward, Palm Beach or Martin counties, where the population is rapidly growing, is expected, although some would likely want the judges based in Miami. “We’d like to see them in our brand new courthouse which is opening next year,” Markus said.

Booker in the 11th Circuit

Hat tip to Doug Berman over at the Sentencing Law and Policy Blog for this head's up:

Law.com this morning has this article discussing the state of Booker appeals in the 11th Circuit. The article reviews the interesting concurrences this week from Judge Tjoflat (discussed here) and Judge Carnes (discussed here). The article also interestingly notes that the "11th Circuit has handled nearly 1,100 decisions in the past 10 months that pertain to Booker, according to a Lexis database search."

Here's the conclusion of the article, which highlights the internal fights in the 11th:

Although a majority of the 12-judge circuit voted not to rehear the Rodriguez case, Tjoflat criticized Carnes' approach in a dissent, saying Carnes will make applying Booker "a meaningless formality in all but the rarest of cases." Carnes' rejoinder came in a 43-page opinion. Carnes wrote that Tjoflat's conclusion "requires not just a set of reading glasses but also a vivid imagination."

Not so fast...

We earlier discussed how the Justice Department was trying to avoid a showdown on the Presidential powers debate in the Supreme Court re Padilla by charging him here in the Southern District of Florida. The Government counted on the fact that the Fourth Circuit would approve of the transfer to this district to face charges. But the Fourth wasn't so happy about the fact that its ruling was based on allegations far more sweeping than those alleged by the Government in its indictment here.

Judge Luttig has asked for the following question to be briefed: "Whether, if the government's motion is granted, the mandate should be recalled and our opinion of Sept. 9, 2005, vacated as a consequence of the transfer and in light of the different facts that were alleged by the President to warrant Padilla's military detention and held by this court to justify the detention, on the one hand, and the alleged facts on which Padilla has been indicted, on the other." The government has until Dec. 9 to file its new brief on that issue. Padilla's lawyers are to file their brief a week later, by Dec. 16.

Lyle Denniston has this analysis over at ScotusBlog.com:

The Fourth Circuit had upheld Padilla's detention on the basis of more serious claims of wrongdoing than the charges contained in the new criminal indictment. The government contended, in seeking to justify his detention, that he had been
planning to release a radioactive bomb in a terrorist plot in this country. The
new indictment levels charges of joining in a terrorist "cell" of activity to support global terrorism efforts. The indictment describes a quite minor role for Padilla.
If the government has no interest in pursuing the more serious charges, for whatever reason, the Fourth Circuit may believe that its September ruling has been undercut. This will become clear after it acts following the new briefing. In the meantime, the Justice Department has until Dec. 16 to file its response to Padilla's appeal to the Supreme Court. The Circuit Court's order may complicate that proceeding, because it will not have ruled on the transfer motion, and the possible withdrawal of its September ruling, by Dec. 16. The government, of course, would be free to ask for a further extention of time to file its response.

No word yet on how this will affect the ongoing Southern District case.