"He left behind a watch collection that Prince Charles would be envious of."

Mike Tein has gotta be the most quotable lawyer in the District. The watch collection belongs to Won Sok Lee. The Palm Beach Post has the story:

After four years as a fugitive, alleged hedge fund swindler Won Sok Lee was in U.S. District Court on Friday morning; having been arrested in his native Korea in February as he tried to board a plane to Argentina.
Lee faces more than 30 counts of mail fraud, wire fraud and money laundering in connection with KL Financial Group, which swindled wealthy Palm Beach residents out of almost $200 million.

Tein was the receiver in the KL case.

-------------------------------------------------------------------------------------

A couple of you have emailed me the story about the federal lawsuit by ASA David Ranck against State Attorney Kathy Rundle. The Herald had an editorial about the case here. And Jay Weaver has been covering the case -- here's a snippet from the latest article:

The original prosecutor on the case, David Ranck, had similar misgivings about Espinosa's shooting of the teen. Ranck was taken off the case by Fernández Rundle after he told the Miami-Dade lead detective it was "not a good shoot" early in the investigation."The deceased was found unarmed, and no firearm was found around where he fell nor on the codefendant when he was captured, " Ranck wrote in an office memo a month after the January 2004 shooting, noting that homicide detective Charles "Buck" McCully told him that no gun was ever found.Also in the memo, Ranck alleged an "appearance of impropriety" because a Miami-Dade police major, Angus Butler, had called the state attorney's office to have him removed from the case. Ranck, who said he was taken off the case for "diplomatic reasons, " raised doubts about the "independence" of Fernández Rundle's office.Last August, Ranck sued Fernández Rundle and her top two assistants after she suspended him without pay for 30 days because he posted his memo on the Justice Building Blog, a Miami-Dade legal community website. Ranck said he posted it in May 2008 only after he had been assured by prosecutor Richard Scruggs that the case would be closed. A key hearing in Ranck's federal lawsuit is set for June. For his part, Llanes pleaded guilty in 2005 to burglary and second-degree felony murder charges, being held responsible for the officer's fatal shooting of Barquin. Llanes received a six-year probationary sentence as a youth offender.

There's Rumpole making news again. The case raises some interesting questions -- can a prosecutor be suspended for speaking out about the handling of a case?

Blogging Block

Nothing is grabbing me for a post today. Maybe because it's Spring Break next week... Or maybe because I have to go to FDC this morning. I dunno...

Anyway, I guess I could write something up about the accountant accused of hiding money in the UBS Swiss bank account.

Or maybe the cops in Ft. Lauderdale who were sentenced in a drug ring yesterday.

I could write about the potential penalties for Donte Stallworth and ask for your opinion about who should get more time -- a DUI defendant who kills someone or a first-time fraudster in federal court.

Hmmmm... Perhaps I should engage the commenter in the post below who asks what I would do if I were U.S. Attorney.

But alas, I need to head out for a couple hours now. Hopefully I'll come back and have some great posting idea. Post suggestions in the comments please.

Federal Bar luncheon

via Celeste Higgins:

Please join me in welcoming this month’s Federal Bar Association's Lunch Series speaker, Dr. Redmond Burke. His presentation is: Medicine at the Speed of Thought. Dr. Burke, a graduate of Stanford University and Harvard University Medical School, became the Chief of Pediatric Cardiovascular Surgery at Miami Children’s Hospital at the age of 36. Dr. Burke is also the co-director of the Congenital Heart Institute of Miami Children’s Hospital at Arnold Palmer Hospital.

Dr. Burke has worked with a heart team to find and develop applications of information technology to improve medical outcomes resulted in a relational database for congenital heart surgery: a web based information system for a medical team and web based reporting of medical outcomes in real time.

The web based information system enabled a unique form of rounds, which are called "internet rounds", enabling information exchange and clinical decision making over the Internet.
Dr. Burke’s research, writing and surgery is legendary in his field. So much so, that he was cast as the host of the ABC network television reality program The Miracle Workers, which first aired March 6, 2006. The program followed patients through complex medical treatments, showing the technical and emotional aspects of modern medical care. Dr. Burke has appeared on CNN, Good Morning America, The Today Show, CNN Entertainment, Extra, and Entertainment Tonight to describe novel medical achievements.

I hope you can join us in welcoming Dr. Burke to our luncheon series.

RSVP to Celeste_Higgins@fd.org

A new day

Maybe the Obama Justice Department means business: it is dropping its case against Sen. Ted Stevens because prosecutors withheld evidence. Here's the AP article. Perhaps this will send a strong message to line prosecutors around the country that Brady material should be disclosed. From the article:

The Justice Department said Wednesday it would drop corruption charges against former Sen. Ted Stevens because prosecutors withheld evidence from the senator's defense team during his trial.
The reversal is an embarrassment for the department, which won a conviction against the Alaska Republican in October and is now asking to overturn it.
The week after his conviction, Stevens lost his Senate seat in the November election. The patriarch of Alaska politics since before statehood, Stevens, 85, was also the longest serving Republican senator.
***
In court filings, the Justice Department admitted it never turned over notes from an interview with the oil contractor, who estimated the value of the renovation work as far less than he testified at trial.
"I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial," Attorney General Eric Holder said in a statement released Wednesday. He said the department must ensure that all cases are "handled fairly and consistent with its commitment to justice."
The Justice Department is investigating the conduct of the prosecutors who tried the Stevens case.
***
In December, Stevens asked a federal judge to grant him a new trial or throw out the case, saying his trial had many deficiencies.
U.S. District Judge Emmet Sullivan held Justice Department lawyers in contempt in February for failing to turn over documents as ordered. He called their behavior "outrageous."
Sullivan had ordered Justice to provide the agency's internal communications regarding a whistle-blower complaint brought by an FBI agent involved in the investigation of Stevens. The agent objected to Justice Department tactics during the trial, including failure to turn over evidence and an "inappropriate relationship" between the lead agent on the case and the prosecution's star witness.

I'm happy for Stevens and his lawyers (from my old law firm Williams & Connolly), but dropping the case now doesn't put Stevens back in the same position he was in. He lost his Senate seat. His reputation has been ruined. He had to pay for a very expensive criminal trial.

Jury votes for death in Turnpike murder case

The Sun-Sentinel has the story here. It's the first time a jury has voted for the death penalty in this District since the feds authorized it back in 1988:

Two men who executed a family of four on Florida's Turnpike deserve to die for the murders of the two young children they shot, a jury decided with a 12-0 vote on Tuesday afternoon.The same jury that convicted Daniel Troya and Ricardo Sanchez Jr. earlier this month of killing Luis Escobedo, his wife Yessica Guerrero Escobedo, and their two sons Luis Julian, 4, and Luis Damian, 3, on Oct. 13, 2006 voted to impose the death penalty on both men – but only for the murders of the children. The two will receive life sentences for the murders of the two adults.The unanimous verdict marks the first time a federal defendant has been condemned to death in Florida since Congress reauthorized capital punishment in 1988. Since then, prosecutors unsuccessfully sought the death penalty at least three times in South Florida but failed to persuade jurors. A unanimous jury vote jurors is required to impose the death penalty in federal cases.

One of the defendants reacted to the verdict:

There was a scuffle in the courtroom after the jury was dismissed.Troya began making inaudible comments and would not stop talking after he was told to be quiet.He picked up a bottle of water and threw it. The bottle did not hit anyone but U.S. Marshals wrestled him to the ground and pulled him from the courtroom.Troya's family members, including his mother and sister, called out: "Daniel, no" and asked the federal agents not to hurt him.

This case will not end here obviously. The appellate process will take some time...

Prosecution rests in Castroneves trial

Curt Anderson has the story.

So, will Helio testify?

Although I am blogging this from my Blackberry, I promise I am not doing it inside the courtroom!

Who wants to be a federal judge?

John Pacenti has the story in today's DBR:

Even before a call for official applications, some prominent names are swirling in the Miami legal community to replace U.S. District Judge Daniel T.K. Hurley, who took senior status.

Federal Public Defender Kathleen Williams and Miami-Dade Circuit Judge Robert Scola are expected to apply. Sources say three other Miami-Dade judges — Kevin Emas, Mary Barzee Flores and Darrin Gayles — also plan to throw their hats into the ring.

Flores spent more than a decade as an assistant public defender before taking the bench in 2003. Emas was on the short list for the Florida Supreme Court twice last year.

Attorneys Michael Hanzman, a name partner with Hanzman Gilbert in Coral Gables, and Judith Korchin, a Holland & Knight partner in Miami, also are expected to be in the mix when the Federal Judicial Nominating Commission seeks applications. A notice is expected any day.

So far, the lawyers who are said to be interested in applying are exclusively from the Miami area even though Hurley sits in West Palm Beach. The Southern District has recommended to the administrative office of the 11th U.S. Circuit that the new judge be assigned to Fort Lauderdale, according to the office of Chief U.S. District Judge Federico Moreno.


http://www.dailybusinessreview.com/news.html?news_id=54105


--David Oscar Markus
www.markuslaw.com
305-379-6667

"Once a power couple, Kevin and Mary McCarty pay for ill-gotten gains"

That's the headline from the strong coverage of the McCarty case - she was a Palm Beach Commissioner - from the Palm Beach Post. Here's the link:

She pleaded guilty in the morning (before judge Middlebrooks) and her husband was sentenced in the afternoon. I thought the sentencing of Kevin McCarty was interesting: Judge Ryskamp varied down from the agreed on sentence. From the article:

Ryskamp handed down a sentence shorter than prosecutors and defense had settled on in Kevin McCarty's plea agreement.

Citing a recent argument by U.S. Supreme Court Justice Antonin Scalia, Ryskamp also expressed skepticism about whether the federal law against honest-services fraud should be used to take criminal action against ethics breaches that would be considered civil violations under state law.

Federal prosecutors filed an honest-services fraud charge against Mary McCarty, and they used the same law to prosecute former County Commissioners Tony Masilotti and Warren Newell.

"I am concerned about the federal court taking over violations of state ethics code and criminalizing them," Ryskamp said.

Ryskamp also called the charge against Kevin McCarty, technically known as misprision of a felony, "a seldom-used statute." But the judge added: "It is what it is: ... not only failure to speak up but active participation" in a crime.

BTW, this is the case that led to Chief Judge Moreno's recent Order on cell phones. It was the PBP that had requested permission to bring phones into the courthouse so that their reporters could blog and twitter live from inside the courtrooms. They got the phones approved. But now none of us can email, etc from inside the courtrooms.

UPDATE -- I've been told that the other reporters -- Curt Anderson, Vanessa Blum, and Jay Weaver -- have been talking to Moreno for months about being permitted to bring cell phones in. Well done guys.

Ceremony for Judge Graham

Here are pictures (yes, they were taken with my phone so they aren't so good) from yesterday's really nice award ceremony for Judge Graham:

Judge Graham accepting the award, surrounded by his law clerks.

Judge Graham's staff, who he thanked during his acceptance speech.

Judge Reggie Walton, a district judge from DC, gave a really funny talk about Judge Graham. They were college roommates. George Knox, Chief Judge Moreno, and Martin Raskin also spoke.

There's the Chief and the back of Judge Palermo's head.

Judge Graham and Judge Hoeveler.

Update on Judge Moreno's Adminstrative Order

I have confirmed that the Order applies to attorneys as well as reporters (background here). No one is permitted to text, email, twitter, post, etc from inside the courtrooms...

What's the big secret?

Here's more on the Mutual Benefits recusal from Vanessa Blum...

Our previous coverage here.

From the Blum article:

Over objections from area newspapers, a federal judge today closed a court hearing on secret filings in a case stemming from one of South Florida's biggest frauds.U.S. District Judge Adalberto Jordan said he would consider releasing the secret documents and a transcript of the hearing, in whole or in part, after weighing concerns raised by the South Florida Sun Sentinel and the Miami Herald.The newspapers are trying to break through a wall of secrecy surrounding the latest criminal charges related to Mutual Benefits Corp., a now defunct Fort Lauderdale investment firm.
***
Deanna Shullman, an attorney representing the Sun Sentinel, told Jordan that federal law gives members of the public and media representatives the right to view court records, barring extraordinary circumstances.In a motion, Shullman stated that secrecy in such a high-profile case would create rumors and raise questions about the integrity of the justice system."Greater access is the best medicine to restore the public's faith and confidence in these proceedings," Shullman stated.Following arguments from Shullman and Herald attorney Scott Ponce, Jordan closed the hearing to the public. He said he would rule in the coming weeks."There are a lot of difficult and thorny issues here," Jordan said. "I'm doing my best to navigate my way through."Jordan received the case in January after two other federal judges stepped aside, citing undisclosed conflicts of interest. In addition, two officials in the U.S. Attorney's Office have recused themselves from involvement in the prosecution.The Mutual Benefits case has also drawn interest because the company had deep ties to elected officials in Broward County.

Helio Castroneves

I was at the courthouse today and popped into the Castroneves trial. I lasted there about 5 minutes. After the DOJ prosecutor asked the following question, I left: "Now, we've been discussing general ledgers for some time -- please explain to the jury what a general ledger is."

I promise that I am blogging this back at my office and not inside the courtroom.

Here's more on that issue from the Palm Beach Post.

And now I get to post another picture:

Speaking of the Castroneves case, Judge Graham is being honored today at the University of Miami: he's receiving the William M. Hoeveler Award for ethics and leadership in the legal profession.

New administrative order on text messaging, emailing, twittering, typing, and cellular phone use

Judge Moreno issued a new administrative order today allowing reporters to bring their cells into the courthouse, but:

prohibit[ing] text messaging, emailing, twittering, typing, and any cellular phone use from inside courtrooms. These actions by persons inside the courtroom violate the sanctity of the courtroom and disrupt ongoing judicial proceedings.

Judge Moreno went on to explain:

The Court, however, must balance the interests of preserving the conduct of judicial proceedings against the public's right to know what happens inside courtrooms. Accordingly, it is

ADJUDGED that emailing, text messaging, twittering, typing, and using cellular phones
shall continue to be prohibited inside the District's courtrooms. It is also

ADJUDGED that to balance the interest in preserving the sanctity and conduct of judicial
proceedings against the public's right to know what occurs inside the District's courtrooms, this Order amends Administrative Orders 2006- 16 and 2008-07 to allow news reporters to bring cellular phones, Blackberries, iPhones, Palm Pilots, and other similar electronic personal digital assistants (PDAs) into the courthouse consistent with what is permitted of attorneys, as long as the news reporters agree in writing not to email, text message, twitter, type, or use their cellular phones or other electronic device inside the District's courtrooms. A violation of the agreement will result in contempt of court. The Clerk of Court shall keep the list of reporters who have signed such agreement and make that list available to Court security personnel assigned to each courthouse. The Clerk of Court shall also make space available in each courthouse for those listed reporters to use their cellular phones and other electronic devices outside of the courtrooms. Of course, District and Magistrate Judges retain the discretion to maintain order in their courtrooms, which includes the right to lock their courtrooms should the entry and exit of news reporters become disruptive in a particular proceeding.

I applauded Judge Moreno for the last administrative orders on cell phones, allowing jurors to bring in their phones and allowing lawyers to have cells with cameras (as long as they weren't used) and his propensity to have an open courthouse with a free flow of information, but this order doesn't get it all right. True, the part of this order allowing reporters to bring in their cells is right on.

But not allowing anyone -- even lawyers in the gallery -- to email or text doesn't fit with all of Judge Moreno's recent efforts to catch the court up with technological advances. Does it disturb the courtroom more to write a note to an associate to go outside to call the secretary to bring over a certain file into the courtroom during trial or to shoot over a quick email (or text) asking for the file to be sent over electronically? Is it better for a reporter to scratch notes on a legal pad, run outside to make a phone call and then run back in to hear more of the witness or to simply send an email without getting up?

Plus, the administrative order says that the use of blackberries by lawyers shall continue to be prohibited inside the courtroom. In every single courtroom I have been in, there are lawyers emailing -- A LOT. (In fact, I spoke to a lawyer yesterday who had a cortisone shot in her thumb for typing so much.) So this sounds like a new prohibition to me.

And let me ask this -- does the email prohibition inside the courtroom apply to judges and staff as well? Sorry, but there is always an awful lot of typing going on from everywhere inside the courtrooms, not just counsel table.

Well, the Chief has made a lot of advances with cell phone usage, so it's hard to criticize this order too harshly. And I do love that Judge Moreno knows what Twitter is...

UPDATE -- did I jump the gun? An emailer points out that the order prohibiting emailing, texting, etc may only apply to reporters, not to lawyers. Hmmmmm... It seems more broad than that, but I'd like to be wrong. Thoughts?

SECOND UPDATE -- I was right.

Monday morning...

Ahhhh, it's Monday morning. Everyone had their cafecito yet?

I took the weekend off, trying to recover after the long trial I just finished. It's hard to unwind after being revved up for so long. I went to the NCAA games on Friday -- all four of em... There's nothing like March Madness.

I added some new fish to the tank this weekend as well.

Enough about me -- what about you? What's up in the District? I heard that the government will rest in the Helio Castroneves case this week. Will the defense put on a case or will they surprise the courtroom like Mike Pasano did in his trial (aided by Paul Calli & Marissel Descalzo) in Puerto Rico in which he represented Luisa Inclan an aide to the governor, which led to NGs across the board?

Only the Shadow knows...

Amici support Cuban 5

John Pacenti covers the amicus briefs filed in support of the Cuban 5:

Nobel laureates, scholars and international organizations have flooded the U.S. Supreme Court with legal briefs in support of five convicted Cuban spies, arguing the defendants were sandbagged from the start because the Miami trial took place in a city defined by decades of anti-Castro fervor.
A dozen amicus briefs focus mainly on U.S. District Judge Joan Lenard’s denial of a defense motion to move the trial 25 miles north to Fort Lauderdale.
Her refusal "guaranteed that jurors would be drawn from a cross-section of a community inflamed by passion, warped by prejudice, awed by violence and menaced by the virulence of public opinion," according to a petitions filed by the Civil Rights Clinic at Howard University School of Law in Washington.
The Howard brief has particularly offended the Cuban-American community, said Roland Sanchez-Medina, president of the Cuban American Bar Association. If the Supreme Court decides to hear the case, he said his organization would respond with an amicus brief of its own.
"They obvious did zero actual research to do with anything about the Cuban-American community," he said. "It’s unbelievably inflammatory, ignorant and completely baseless."

Supreme Court stud Tom Goldstein is heading up the Supreme Court litigation for the five:

Tom Goldstein of Akin Gump Strauss Hauer & Feld in Washington, who is handling the Supreme Court appeal for the convicted spies, noted support for the defendants has come "from people from all over the world."
Judge Lenard ruled anti-Castro hostility related "to events other than the espionage activities in which defendants were allegedly involved," and any partiality could be vetted during jury selection.
"This was a serious injustice, and it sent all the wrong signals to the world about our commitment to a fair and impartial trial," Goldstein said.

Interesting article, but Pacenti should have given a little more pub to Richard Klugh, who has been guy writing the legal papers throughout these proceedings.

"Unequal Justice"

That's the title of this riveting Miami New Times piece about prison rape at the Miami FDC. We blogged on this issue before here. Below is the intro to the in depth article that is worth a read:

On the fifth floor of the Federal Detention Center in Miami, a short and stocky inmate stood sweeping the floor. Her name was Shonda Ross, and in her 32 years, she had seen the inside of more than a few prisons like this one — Tallahassee, Raleigh, and Danbury, Connecticut, among them. She had learned to survive in prison; she knew how to make friends with people who could protect her and get her the things she needed, such as the girlfriend in Tallahassee who smuggled in drugs from the back fence. But nothing prepared her for this place.
Built in 1995, the prison featured a Depression-era Art Deco exterior that was a cheery nod to South Beach, but other than that, everything was standard: a white-washed concrete shell for a room, a metal bunk with a thin mattress, a toilet made of steel. There were television sets in the common area, a rec room with Ping-Pong tables, and a place to smoke and get a bit of fresh air. But here in her room with the metal door shut, she was blocked off from all of that. She couldn't hear the traffic humming outside on NE Fifth Street; she couldn't feel the muggy summer heat or hear the music from cars going to the beach. She was sealed off, a stark fluorescent bulb above her, alone with her thoughts.
She churned her broom, picking up dust bunnies off the gray linoleum floor. She was an attractive woman, with disarming, fawn-like brown eyes that had attracted both men and women. The name of one lover decorated her right arm; a tiny red heart adorned her left breast.
She heard the door click open. Through the reflection of the stainless-steel plate that served as her mirror, she could see the figure of a large black man entering her cell.
He sported the uniform of a federal corrections officer: crisp white button-down shirt, neatly pressed gray slacks, sharp black tie, and shiny black shoes. He stood five-foot-nine — four inches taller than her — and carried 200 pounds of taut, sinewy muscle. She recognized him right away. He'd been here before, and every time it was the same thing.
As he moved closer, she could feel his hot breath on her neck. He unbuttoned her jumpsuit, pulled it off her soft shoulders, and let the red cotton garment fall to the floor. He led her to the bottom bunk and sat her down. He didn't have to say anything. They both know why he was there. She leaned back, closed her eyes, and waited for it to end.

Judge Graham to receive prestigious award

Congrats to Judge Donald Graham who is receiving the William M. Hoeveler Award for ethics and leadership in the legal profession from the University of Miami School of Law Center for Ethics & Public Service. The reception is at 4pm on March 25th and the ceremony is at 4:30. If you are interested in attending, please RSVP to Susan Nelson at 305-284-3934.

Google Mistrial

The NY Times has an article about the mistrial in Judge Zloch's courtroom last week after jurors did internet research:

Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.
Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, wasting eight weeks of work by federal prosecutors and defense lawyers.
“We were stunned,” said the defense lawyer, Peter Raben, who was told by the jury that he was on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”
It might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.

Anything judges can do to make sure jurors don't hop on the internet, or is this going to happen in every case?

Judges dispute goes public

Many of you have seen on the email rounds the Zloch-Moreno memos that went back and forth. We made the decision not to blog about it for the reasons Judge Palermo articulated in this Julie Kay article. But now that it's in the DBR, we post the article for your review. I am in Court this morning, so I will have more soon.

Thanks South Florida Lawyer!

Well, after a month of working around the clock, I'm back. It was almost impossible to blog during the trial, so thankfully South Florida Lawyer agreed to step in. He was fantastic and kept the blog alive. Thanks! You are welcome here anytime!

So let's get right back to it. The new courthouse is busy with lots of trials. (As for trying a case in the new courthouse, I thought the technology was great and the layout of the courtroom wasn't as bas as I thought it would be. I think the downsides of the courthouse so far are: 1) no cafeteria and 2) cramped security checkpoint to get in.)

The highest profile case is USA v. Helio Castroneves before Judge Graham. Jay Weaver had a Sunday report in the paper here:

Helio Castroneves was born with a car-racing gene.
He sped from go-karting to Formula Three to IndyCar, his big break coming in late 1999 when Penske Racing signed him. He won the Indy 500 two years straight and finished second in 2003 -- milestones for the celebrated race.
''He had the ability to do things that human beings can only dream of,'' his powerhouse lawyer, Roy Black, told a jury in Miami earlier this month. ``This has taken him to the heights of athletic stardom.''
Now the Brazilian driver's soaring career, fueled by the fame of also winning the reality TV show Dancing with the Stars, is at risk of crashing in the most unlikely place: a federal courtroom. Castroneves, 33, stands accused along with his sister and business manager, Katiucia Castroneves, and his Michigan sports lawyer, Alan R. Miller, of cheating the IRS.
In a seven-count indictment, Castroneves is charged with conspiring with them to evade paying taxes on more than $5 million from a Penske contract dating back a decade. Ironically, Castroneves, who owns a Coral Gables mansion decorated with his trophies, has yet to receive any of that income from Penske.
But that's the point of the U.S. government's case against the trio, because prosecutors say Castroneves should have already paid taxes on that income -- regardless of whether he has actually received it. The three defendants are accused of masterminding a tax dodge across two continents so that Castroneves wouldn't ever have to pay the IRS -- especially if he were to move to a tax haven such as Monaco for retirement.
How the 12-person jury will view the charges amid a crumbling economy remains to be seen. But for Castroneves -- a fun-loving guy known for leading cheers with racing fans -- the outcome could not be more serious.

Next up is the penalty phase in the case of the killing of the Escobedo family along Florida's Turnpike. Here's Vanessa Blum's article:

The prospect of history will hang over a West Palm Beach federal courtroom Monday as 12 jurors weigh whether two men should receive the death penalty for executing a family of four along Florida's Turnpike.The same jury found Daniel Troya and Ricardo Sanchez Jr. guilty on March 5 of armed carjacking resulting in the deaths of Luis Escobedo, 28; his wife, Yessica Guerrero Escobedo, 25; and their sons, Luis Julian, 4, and Luis Damian, 3.No federal defendant in Florida has been condemned to die since Congress reauthorized capital punishment in 1988. However, this case could be different because the deaths of young children tend to sway juries, attorneys said.

And of course, here's the obligatory Helio picture, with Julianne of course.

HOORAY!

You know who here, still...oh hail let's get right to John Pacenti's delicious write-up of the big man's big win:

“This verdict restored my faith in our justice system,” said David O. Markus, one of Shaygan’s attorneys. “It shows win-at-all costs takes a back seat to justice.”

Marc Seitles and Robin Kaplan also represented the doctor.

Seitles was hollering “not guilty” outside the courtroom after the verdict was read in front of U.S. District Court Judge Alan S. Gold.

U.S. Attorney Alex Acosta has said the secret taping of Markus and a defense investigator was wrong, and Cronin and Hoffman violated office policy. The matter has been referred to Justice Department’s Office of Professional Regulation for review.

...

Markus, [Robin Kaplan,] and Seitles said in court documents that Cronin threatened the case would take “a seismic shift” if Shaygan challenged a claim by a Drug Enforcement Administration agent that the doctor failed to invoke his right to counsel when questioned.

Prosecutors promptly filed 100 more counts after Shaygan filed the motion to suppress, which eventually was won by the defense.

Nice quote, David! I also like this exchange from the Sun-Sentinel:

Several jurors lingered outside the courtroom to congratulate Shaygan and his defense team.

"The jury did the right thing," said David O. Markus, Shaygan's lead attorney. "This sends a message that justice prevails."

But Shaygan said he is unsure he will return to practicing medicine.

"I know 100 percent that I want to continue helping people," he said. "That's the most important thing."

Helping people.....has a nice ring to it.

Waiting For the Man.

SFL here, waiting like everyone else for the jury to come back in the big man's trial:

"Addicts sometimes lie to get their drugs and doctors are going to get fooled," defense attorney David Markus said. "But that doesn't make them drug dealers."

Shaygan is charged with 141 counts of unlawful prescribing. He is accused of causing the 2007 overdose death of a West Palm Beach man.

The jury begins deliberations today. If convicted, Shaygan, who lives in Miami Beach, could face more than 20 years in prison.

During the three-week trial, jurors heard from former patients, medical experts and undercover police who went to Shaygan's office posing as pain patients.

Shaygan also took the stand, insisting he did his best to care for his patients. To convict, prosecutors must show Shaygan prescribed medication without "legitimate medical purpose."

In his closing argument, Cronin called Shaygan's medical practice a "charade" and his medical degree "a license to deal drugs."

But Markus said Shaygan gave patients random urine tests to screen for illicit drugs and dismissed several he suspected of abusing narcotics, proving he was no pill pusher.

I'll let you all know as soon as I hear anything.

UPDATE: Rump calls it for the big man!!!

Closing Arguments in the Shaygan Trial

Hi kids, SFL still in da' house (to paraphrase rap artist/Congresswoman Bachmann), while the big man does that thing trial lawyers do, what is it again, oh yeah:

Prosecutors and defense lawyers will make closing arguments today in the trial of a South Florida physician accused of acting as a drug dealer.

Dr. Ali Shaygan, 36, faces 141 counts of improper prescribing and is charged with causing the 2007 overdose death of a West Palm Beach man.

If convicted, he faces at least 20 years in prison.

I see David put his client on the stand:

"Have you ever just sold [prescriptions] for cash?" his attorney asked.

"No, never," Shaygan answered.

The trial, which has lasted almost four weeks, has been contentious, with aggressive lawyering on both sides.

Last week, Shaygan's attorneys asked U.S. District Judge Alan Gold to throw out the case because government agents secretly taped phone calls between the defense team and trial witnesses.

Prosecutors have said the taping "was not handled as well as it should have been," but that the charges should stand.

GOOD LUCK DAVID!!

Shaygan Trial Cross-Examination

SFL here, because David is there:

'These people there said, `Tape-record the defense,' '' defense attorney David O. Markus declared, pointing to prosecutors Sean Cronin and Andrea Hoffman. ``When I called you, you tape-recorded me.''

The government witness, Trinity Clendening, agreed, admitting he recorded Markus on his home phone two times in December.

The strained exchange marked the second time that the defense lawyer got an opportunity to cross-examine Clendening, a Drug Enforcement Administration informant who inadvertently revealed on the witness stand last month that he had taped their conversations before the trial.

Markus said those recordings, along with a second government witness' taping of his private investigator, may have improperly given prosecutors a window into the defense strategy.

Markus attacked Clendening during the cross-examination for asking for money on the phone, suggesting the solicitation was meant to set him up as a lawyer who would pay for information. Markus is seeking to have his client's indictment thrown out.

U.S. District Alan Gold has the authority to dismiss the indictment, declare a mistrial or allow the trial to be completed. He also could instruct the jury on how to weigh the two government witnesses' testimony.

The U.S. attorney's office, though admitting it made a ''mistake'' by failing to follow policy, opposed a dismissal or mistrial. Last week. U.S. Attorney R. Alexander Acosta said the case supervisor, Karen Gilbert, should have sought approval from him and two other senior officials before having the two government witnesses place recording devices on their phones.

Ok, that speaks to (but doesn't answer, in my mind) the authority to record question. What about the disclosure issue?

Oh hail, I'm going back to civil litigation.

Helio Trial Resumes Today.

Hi folks, blah blah blah.

I see the Helio trial resumes today:

Experts say jurors will have to decide if the Castroneves deal was real or contrived to make it appear he didn't have control of his Penske money.

"What the government is saying is, if you are entitled to some cash, and you leave it in your mother's bank account, it's still your cash," said Chas Roy-Chowdrey, a tax expert with the global industry group Association of Chartered Certified Accountants.

Castroneves is a top Indy Racing League driver, winning the Indy 500 in 2001 and 2002 and finishing second in 2003. In 2007, he gained even greater fame by winning TV's "Dancing With The Stars" competition.

Issues at trial have their origins in the final event of1999 of the Championship Auto Racing Teams, or CART — at the time a rival of the Indy Racing League. On Oct. 31 of that year in Fontana, Calif., Castroneves was driving in the final race for his soon-to-be-disbanded Hogan team and Greg Moore was about to sign a lucrative new contract with Penske Racing.

Moore crashed and was killed. In less than a week, Penske signed Castroneves, using Moore's contract by simply crossing out the old names and amounts and replacing them in handwritten notations. Miller negotiated that deal for $6 million — $1 million paid directly to Castroneves and $5 million to license Castroneves' name and image.

At first, the $5 million was supposed to flow to a Panamanian corporation called Seven Promotions.

In mid-December 1999, Miller sent a letter to Penske asking that the transaction be halted, according to trial testimony. Penske's general counsel, Lawrence Bluth, said the company held onto the Castroneves cash until January 2003, when it was invested with Netherlands firm Fintage Licensing B.V., where it remains today.

"We were ready to make payments to Seven Promotions. We were told not to," Bluth testified.

The IRS and federal prosecutors charge that arrangement was a tax dodge.

They contend Castroneves secretly controlled Seven Promotions — disputed vigorously by the defense — and should have paid U.S. taxes under the "constructive receipt" doctrine as soon as Penske was ready to start cutting checks.

"The individual's wishes do not control," said Assistant U.S. Attorney Matt Axelrod. "A taxpayer may not deliberately turn his back upon income and thereby select the year for which he will report it."

Hmm, that's it?

I didn't do too well with trusts and such when I had Professor Gaubatz (RIP), but this strikes me as a tough case for the prosecution.

UPDATE: Pete Yanowitch testifies --

Attorney Peter Yanowitch testified Tuesday that he was involved in contract talks between Castroneves and the Hogan racing team in 1999. Yanowitch says Castroneves wanted his money to go to a Panamanian entity that he owned.

"Much of Brickell Avenue Was Built With Drug Money."

Welcome to Monday, folks -- SFL here, still subbing for the big man.

Remember, no throwing erasures in the classroom!

That great quote above is from Joe DeMaria, weighing in on the black market peso exchange and the government's case against Ben Kuehne:

Kuehne is represented by Miami attorney Jane Moscowitz of Moscowitz & Moscowitz and John Nields of Howrey in Washington. Kuehne has become a cause celebre among peers who see his prosecution as an attempt to chill legal representation for drug traffickers and other high-profile defendants. Kuehne’s clients included Vice President Al Gore in the 2000 presidential recount litigation.

Now his own attorneys are challenging the use of a key government expert, retired DEA agent Donald Semesky, who they say will testify that most of the dollars that Colombians get from the exchange are from narcotics trafficking. “Agent Semesky’s proffered testimony is woefully insufficient” and is intended to fill a gap in evidence, the Feb. 6 defense motion states.

Kuehne argues a federal bankruptcy court in New York recently rejected the government’s characterization of the exchange as utterly corrupt.

DeMaria said it’s disingenuous for prosecutors to denigrate the parallel money market.

“Much of Brickell Avenue was built with drug money. Does that mean you take down all those financial institutions?” he asked. “Sometimes the government has gone too far with the black market peso exchange.”

Take 'em down?

We're probably bailing them out.

Goggles case finally over

Vanessa Blum has the scoop:

A federal judge sentenced an Iranian woman today to five years and three months in prison for trying to illegally export U.S.-made night-vision goggles to Iran.Sharhazad Mir Gholikhan, 31, was found guilty of violating trade laws in December after she represented herself at trial.U.S. District Judge James Cohn said Gholikhan's crimes compromised the safety of U.S. military personnel and the country. However, Cohn gave Gholikhan credit for voluntarily surrendering to face the charges against her."Without that, I think we can all agree she would not be before the court," Cohn said.

Does the JNC Lack Diversity?

Hi folks, SFL here.

It's Friday, so let's talk about women.

Come on now, this is David's blog -- I mean the lack of same on the new JNC Panel:

The 56-member list produced by Nelson and U.S. Sen. Mel Martinez includes 11 women. Three of 20 from South Florida are women.

“I was appalled,” said Lehner, director of the Miami-Dade chapter of the Florida Association for Women Lawyers. “It’s mind-boggling. It’s a total and complete mystery how anyone can constitute a commission, which is supposed to be selecting candidates for federal office, with such a gross disparity and inequality toward women.”

Lehner said she has written a letter of complaint to Nelson’s office and has heard from a number of women lawyers who are concerned about the commission’s gender bias.

“Myself and other women are disappointed in the under-representation,” said Jennifer Coberly, a former member of The Florida Bar board of governors and the general counsel for Point Blank Solutions in Pompano Beach. “It’s important to not just the legal profession but to the community.”

John teased out some great quotes for this story. How about this one:

“Somehow, if there is no contribution, then you don’t rise to the attention of the decision makers,” said Marva Wiley, a Miami attorney and president of the Gwen S. Cherry Black Women Lawyers Association and the Haitian Lawyers Association.

I also like how all those contacted by Pacenti for this story all declined comment:

Zack, like other JNC members contacted, said he had no comment on the number of women on the commission.

That's the smart play of course, but here's what I would have said:

"If the Senators in their judgment determine that a more diverse or different Panel be selected, I would gladly offer up my seat so that this very worthwhile goal could be accomplished."

Maybe that's why I never get picked for these things.

Baker & McKenzie UBS Memo Takes Center Stage

SFL here.

Come on folks -- David needs to focus on his trial, and a bunch of nudnick commenters force him to change his comment policy. Oy.

Meanwhile, the UBS saga unfolds on multiple fronts, in addition to Judge Gold's courtroom. In Senate testimony yesterday, a Baker & McKenzie tax memo took center stage:

According to a 180-page list of exhibits released by the Permanent Subcommittee on Investigations, a UBS memo dated July 4, 2000, shows that the Swiss bank relied on outside legal counsel from Baker & McKenzie when setting up offshore asset vehicles and insurance plans to aid U.S. clients. (The UBS memo citing legal advice obtained from Baker & McKenzie can be seen on PDF pages 178 and 179.)

The memo, which was signed by UBS financial planning and wealth management employees Jonathan Bourne and René Sonneveld, explicitly states that the firm was consulted when setting up such schemes.

It also appears that UBS is arguing some sort of abstention doctrine before Judge Gold:

Branson said that UBS views the John Doe summons filed by the IRS in federal court in Miami as a dispute between the IRS and the Swiss government, which can best be resolved through diplomacy rather than litigation that is neither "proper nor productive."

UBS is being advised by Wachtell, Lipton, Rosen & Katz litigation partners John Savarese, Ralph Levene, and Martin Arms. Eugene Stearns, chairman of Florida firm Stearns Weaver Miller Weissler Alhadeff & Sitterson, is serving as local counsel to UBS along with litigation partners Ana Barnett and Gordon Mead, Jr. (Stuart Gibson, senior litigation counsel with the Justice Department's tax division, is the lead lawyer for the government.)

What is with the Swiss and diplomacy? Also, when is litigation ever "proper or productive"?

Welcome to America!

New Comment Policy

While I am in trial and while SFL is graciously and very ably filling in, I have enabled comment moderation because people are out of control with the personal attacks. If you see a comment you would like removed, please email me and I will take it down as soon as I am able. I do not like moderating comments, but I won't allow the blog to be used to anonymously pick on people. Sorry.

IRS Targeting All Dancing Race Car Drivers?

SFL here -- David is still busy doing something involving the 6th Amendment and government lawyers who tape attorney-client conversations and forget to tell anybody about it.

So let's get on to the important stuff.

The "target" theme appears to be what Roy Black is running with in the Helio trial, according to this Herald report:

But the defense team countered the prosecution's case was fueled by the IRS' drive to target the 33-year-old celebrity.

''They have come up with a fiction,'' Castroneves' attorney, Roy Black, said in his opening statement, saying his client's tax obligation was legitimately deferred until May.

''When he won Dancing with the Stars [in 2007], that made him an even bigger target to the IRS,'' Black said.

Very interesting.

All I know is if 2008 winner Brooke Burke takes up racing, she darn well better have her taxes in order.

Picking A Replacement for Judge Hurley

Hi folks, yes it's me, and yes I'm still here.

David recently posted a list of the JNC for the SD FL, who are charged with recommending a replacement for Judge Hurley now that he is going senior status:

Kendall Coffey (Chair) Georgina Angones Reginald Clyne Gonzalo R. Dorta Al
Dotson Philip Frieden John Genovese Evelyn Greer Jillian Hasner Manny Kadre
Chuck Lichtman Richard Lydecker Tom Panza Luis Perez Danny Ponce David Prather Dennis Richard Justin Sayfie Chris Searcy Steve Zack.

I think the list is pretty solid, what do you all think?

Back when Bush was President, Senator Hatch had this to say about the judicial nominating process:

It seems to me that the only way to make sense of the advice and consent role that our Constitution's framers envisioned for the Senate is to begin with the assumption that the President's constitutional power to nominate should be given a fair amount of deference, and that we should defeat nominees only where problems of character or inability to follow the law are evident.

In other words, the question of ideology in judicial confirmations is answered by the American people and the Constitution when the President is constitutionally elected. As Alexander Hamilton recorded for us, the Senate's task of advice and consent is to advise and to query on the judiciousness and character of nominees, not to challenge, by our naked power, the people's will in electing who shall nominate.

To do otherwise, it seems to me, is to risk making the federal courts an extension of this political body. This would threaten one of the cornerstones of this country's unique success – an independent judiciary.

We must accept that the balance in the judiciary will change over time as Presidents change, but much more slowly. For the Senate, to do otherwise is to ignore the Constitution's electoral process and to usurp the will of the American people. To attempt to bring balance to courts in any other way is to circumvent the Constitution yet again, without a single vote of support being cast by the American people.

Makes perfect sense to me.

Then why, as Washington Monthly notes, was Hatch a signatory to this letter to the President just signed by all 41 Republican Senators:

President Barack Obama should fill vacant spots on the federal bench with former President Bush’s judicial nominees to help avoid another huge fight over the judiciary, all 41 Senate Republicans said Monday.

In a letter to the White House, the Republican senators said Obama would “change the tone in Washington” if he were to renominate Bush nominees like Peter Keisler, Glen Conrad and Paul Diamond. And they requested that Obama respect the Senate’s constitutional role in reviewing judicial nominees by seeking their consultation about potential nominees from their respective states.

“Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee,” the letter warns. “And we will act to preserve this principle and the rights of our colleagues if it is not.”

In other words, Republicans are threatening a filibuster of judges if they're not happy.

Oy. So where does that leave us here in South Florida?

SFL post

SFL here, tending bar.

[DOM edit -- Sorry SFL, I decided to take out the section you wrote up about my trial. I try not to blog about my ongoing trials...]

For more fun government facts, take a look at the previously-secret John Yoo Justice Department memos that explain how the United States should treat its citizens during wartime:

"The current campaign against terrorism may require even broader exercises of federal power domestically," Justice Department officials John Yoo and Robert Delahunty wrote White House counsel Alberto Gonzales in the Oct. 23 memo.

"We do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a (search) warrant," they said.

The U.S. Supreme Court has held that the Constitution's Fourth Amendment ordinarily requires a probable cause and a warrant to execute a search. However, the memo said those requirements "are unsuited to the demands of wartime."

Furthermore, it said, "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."

"The government's compelling interests in wartime justify restrictions on the scope of individual liberty," it said. The Justice Department under Bush had fought a lawsuit which sought to make the memo public.

Oh well, past is past!

New Helio Photo Posted!

SFL here, reporting from inside Judge Graham's crowded courtroom with this exclusive photo of jury selection in the Helio Castroneves trial.

Ok ok, here's an actual story from The Indy Channel on what's going on:

"I wish I could be in a racecar, because I'm in control. Here, I'm not in control at all," Castroneves said. "I trust the people that are handling all of my business."Defense attorneys said they will try to show that an off-shore shell corporation involved in the case, Seven Promotions, was operated by Castroneves' father, not Helio.The trial is expected to last up to four weeks. Several luminaries are expected to testify at the trial, including Roger Penske, Jimmie Johnson and Rep. Jack Kemp.

Interesting, the bolded language -- that's what I always tell my clients when we are contemplating a trial vs. settlement (well, except for the race car bit).

And Jack Kemp? Man, this guy is bringing the firepower!

Helio trial begins today

I'm sure I can count on SFL to post some good coverage and pictures while I am in trial.

--David Oscar Markus
www.markuslaw.com
305-379-6667

Bankruptcy Judges To Modify Mortgages?

SFL here, still foolin' around in the big house....

Mortgage crisis? Really, I hadn't noticed.

But apparently, I am advised, there may be some sort of problem:

President Obama’s proposal to address the rising tide of home foreclosures calls for legislation to allow bankruptcy judges under Chapter 13 to modify the terms of home mortgages when families run out of other options.

The legislation stalled in the House and the Senate for the past two years because of opposition by Republicans and the lending industry. But by 2012, one in every nine homeowners will have lost a home to foreclosure, according to a Credit Suisse Securities analysis. Has the foreclosure landscape changed sufficiently to break the back of the determined opposition?

I see some hotshot law professor from Yale thinks this is a bad idea:

First, the proposal would swamp bankruptcy courts. There are only about 300 bankruptcy judges, and they are already busy with an increasing number of bankruptcies. Clearing millions of new mortgage cases will take a long time and thus have little immediate effect on the foreclosure crisis. In addition, the flood of new cases would delay the resolution of business bankruptcies, to the detriment of the economy.

Professor -- have you been to state court recently? These cases have to be adjudicated somewhere -- why not put them in the hands of those who are expert at valuing assets and determining fair market value?

Also -- aren't there more bankruptcy judges than all federal district judges combined? It's actually 368, btw, but who's counting.....

And the "flooding" Professor Schwartz talks about is not likely to be a permanent condition, as the initial wave of cases is absorbed. Hey, this "scholar" even agrees with me:

But “a more neutral analysis of this is to think back to 2005, about the time bankruptcy law got changed,” said bankruptcy scholar Robert Lawless of the University of Illinois College of Law. “There were two million filings that year, and the system did handle those. There weren’t any reports of major problems.”

Well, there will likely be major problems no matter what we do, the question is which approach gets out of this situation faster and more efficiently.

Federal Judges Might (Finally) Get Pay Bump

Hi folks, SFL still muckin' around in here.

This is an issue near and dear to Judge Fay's heart, as we all know:

House members voted Wednesday for a $410 billion spending plan to keep the federal government running through September, and the plan includes a cost-of-living adjustment for the federal judiciary for the 2009 calendar year. According to the Administrative Office of the U.S. Courts, the proposal would give judges a 2.8 percent increase retroactive to January.

Though it wouldn't bring judges close to the salaries of their friends in private practice or in deanships at top law schools, it would end their status as the only federal employees who did not get a cost-of-living adjustment this year. They have gone without such an increase in seven of the last 14 years, and Chief Justice John Roberts Jr. has made the issue a priority.

The spending plan now heads to the Senate, which has been less receptive to arguments for higher judicial pay and could amend the plan. In October, senators removed plans for the judiciary's 2009 cost-of-living adjustment from auto-bailout legislation passed by the House.

Even though I tweaked the Judge's speech on this at the recent Bench & Bar conference, in all seriousness it is a no-brainer and is long long long overdue.

Federal JNC named

SFL is doing a great job filling in. Thanks!

I just got a note about the new Federal JNC. First up for them -- the new district judgeship created by Judge Hurley going senior. Here's the list of JNC members:

John Fitzgibbons (Statewide Chair)

Northern
Linda Shelley (Chair)Jim ApplemanJohn AurellDuby AusleyMartha
BarnettWilliam "Bill" HarrisonMelanie Ann HinesDon HinkleDoug MannheimerJon
MillsDaryl ParksBuzz RitchieLeander ShawJim SmithSusan Story

Middle
Wayne Hogan (Chair)Steve CheesemanTom DukesW.C. GentryNat GloverSaundra
GreyMichael GrindstaffBen Hill IIITrudie Kibbe-ReedMike MaherMarcos MarchenaBill
McBrideSusan McCaskillHugh NormileSteve PajcicMarsha Santana RydbergBruce
SmathersBruce StrayhornBrian T. WilsonWilliam "Bill" Wilson

Southern
Kendall Coffey (Chair) Georgina Angones Reginald Clyne Gonzalo R. Dorta Al
Dotson Philip Frieden John Genovese Evelyn Greer Jillian Hasner Manny Kadre
Chuck Lichtman Richard Lydecker Tom Panza Luis Perez Danny Ponce David Prather Dennis Richard Justin Sayfie Chris Searcy Steve Zack

Looks like a solid list of members from the Southern District. I note with sadness though that there isn't one criminal defense lawyer on the committee...

Judge Garber Nixes Ochoa Bid for Retrial

SFL here.

Magistrate Judge Garber denies Ochoa motion:

U.S. Magistrate Judge Barry Garber denied the request by Medellín cartel leader Fabio Ochoa, whose lawyer argued that convicted codefendant Alejandro Bernal was not a truthful witness in the 2003 trial.

Attorney Paul Petruzzi cited previously undisclosed evidence showing Bernal had informed federal agents before trial that Ochoa gave $2 million to al Qaeda to help finance the Sept. 11 terrorist attacks. Petruzzi said the prosecution should have turned that evidence over to the defense so it could have challenged Bernal's truthfulness on the witness stand.

But the magistrate judge disagreed.

''Bernal's letter of August 2002 merely sets forth a rumor that Ochoa was involved in assisting in the planning of the Sept. 11 attacks,'' Garber wrote in a four-page order filed this week. ``Such belief was not based on any personal knowledge held by Bernal and is merely speculative without any factual basis.

''As a matter of fact, any reference to terrorist attacks was regarding speculative attacks to take place in Colombia to prevent the extradition of Ochoa to the United States,'' he wrote.

Well, which was it -- financing to conduct the 9/11 attacks, or attacks within Columbia to prevent Ochoa's extradition?

"Well Known" Motorcycle Mechanic Sentenced Before Judge Altonaga

Hi folks!

SFL here, still doin' time at David's fine place while the big man goes to court and cross-examines witnesses -- you know, the stuff we all wish we were doing right now....

Here's what's happening in Judge Altonaga's courtroom:

R. Alexander Acosta, United States Attorney for the Southern District of Florida, and Jonathan I. Solomon, Special Agent in Charge, Federal Bureau of Investigation, announced that defendant Jimmy A. Soto, of Miami Lakes, was sentenced on February 24, 2009, for his participation in a $5.4 million health care fraud and money laundering scheme. U.S. District Judge Cecilia Altonaga sentenced Soto to 140 months' imprisonment.

In December 2008, after a week long trial, a Miami jury convicted Soto of a series of related health care fraud and money laundering charges. The evidence at trial established that Soto conspired with Leonardo Lozada, Eliades Diaz, and Jose D. Claro to defraud Medicare through the fraudulent submission of $5.4 million in durable medical equipment ( DME ) claims during 2005 and 2006. The claims concerned a Hialeah-based DME company operating as Med-Pro of Miami, Inc ( "Med-Pro" ). Medicare paid Med-Pro approximately $1.3 million based on the bogus claims, which were for DME items that were neither prescribed by doctors nor delivered to Medicare patients, most of whom resided in the Treasure Coast area of Florida.

Soto, a well known motorcycle mechanic, was also found guilty of laundering more than a $1million in monies stolen from Medicare. At trial, it was established that Soto recruited his customers and friends to cash several hundred thousand dollars worth of checks for Med-Pro during 2006.

Question -- can someone be a "well known motorcycle mechanic"? The only one I know is that guy from California with all the tattoos (new book cover pictured above), and even he's not that well-known.....

More Complications in the UBS Case

SFL here, still filling in while David does his "trial lawyer" thing.

More on UBS --

Now Judge Gold has a Swiss federal court to possibly contend with:

UBS was sued on Tuesday in a Swiss federal court by wealthy American clients seeking to prevent the disclosure of their identities as part of a tax-evasion investigation by the United States Justice Department.

The lawsuit accuses UBS and Switzerland’s financial regulator, the Swiss Financial Market Supervisory Authority, or Finma, of violating Swiss bank secrecy laws and of conducting what Swiss law considers illegal activities with foreign authorities. It also named Peter Kurer, the chairman of UBS, and Eugen Haltiner, the chairman of Finma, as defendants.

The suit, filed by a lawyer in Zurich, Andreas Rued, on behalf of nearly a dozen American clients, underscores the growing clash between Swiss banking secrecy laws and those of the United States. Tax evasion is not considered a crime in Switzerland. Disclosing client names under Swiss law is a criminal offense and can expose bank executives and officers to fines, prison terms and other penalties.

Oh no -- foreign law possibly impacting our legal process again? Remember that whole Supreme Court controversy a few years back?

Me neither, but Judge Scalia probably does.

Judge Daniel T. K. Hurley...

...is taking senior status.

We are losing a gem of a judge. I recently tried a case with Judge Hurley and he loves being a judge and trying cases. That's evident from being in trial for a month with him. He is courteous to the lawyers and treats both sides with complete respect -- and he is a thoughtful judge. He calls em right down the middle.

We all wish him well.

So, any bets on who President Obama will appoint for that spot?

Ho Hum -- The Princess, A Sex Sting, and UBS

Hey, can you tell it's SFL here?

Yep, still foolin' around while David tries another big case.

So I told you all this UBS thing was big. Here's an update on what went down in Judge Gold's courtroom yesterday:

U.S. District Judge Alan S. Gold set a July 13 hearing on the IRS lawsuit, unless an agreement is reached first. UBS claims that turning over the account names would violate Swiss privacy law and jeopardize the bank's license to stay in business.

"Such violations would expose these (UBS) employees to substantial prison terms, as well as fines, penalties and other sanctions," the UBS lawyers said in a court filing last week. "There is simply no reason to have, nor equity in having, such an expedited process here."

The IRS had sought an accelerated timetable, but Justice Department tax attorney Stuart Gibson and UBS lawyers told Gold at a brief telephone hearing Monday they had agreed on a lengthier process. Gold also set a series of deadlines for court filings.

"I would appreciate the continued efforts to discuss this matter, to narrow down what the legal issues are and the factual issues are," Gold said.

Most judges probably would appreciate that.

What do you know -- the feds bust a Miami Beach sex ring:

Bernabe-Caballero, 34, remained without bond in Miami's Federal Detention Center Monday night and was scheduled for a 10 a.m. hearing Tuesday about extradition to Michigan, where the grand jury in the case had convened.

Bernabe-Caballero's attorney, Rene A. Sotorrio, declined to comment.

Smart move, I wouldn't say anything either if my client was facing these kind of allegations.

And -- can you believe it -- a story about a cocaine princess and federal court.

Sometimes these things write themselves.

More on Kuehne R&R

SFL here, hope you had a nice weekend.

Here's a nice quote from John Pacenti's article on Judge Bandstra's R&R on Ben Kuehne:

If Bandstra’s decision stands, the case would be down to five substantive money laundering counts. Kuehne and Saldarriaga are accused of using a money broker to hide the movement of drug profits into the defense fund. The money broker was an informant working with the government and exchanging pesos for dollars used in U.S. drug stings.

Miami litigator Jane Moscowitz, one of Kuehne’s attorneys, said she was thrilled with the Bandstra ruling.

“It took my breath away that the motion had been granted,” she said.

And us too, Jane.

And here's some more background on the IRS/UBS suit, which is being closely watched in financial and legal circles:

While the deferred prosecution agreement reached between Swiss banking giant UBS and federal prosecutors on Wednesday might have initially looked like a great deal for the government, in reality the Zurich-based bank isn't disclosing nearly as many client names as law enforcement officials are suggesting, says Miller & Chevalier tax partner George Clarke III.

Clarke says that the decision by the Justice Department to file suit against UBS on Thursday in Miami is evidence of this.

Despite forking over $780 million in penalties as part of its deferred prosecution agreement, UBS, represented by Wachtell, Lipton, Rosen & Katz litigation partner John Savarese, managed to secure a pretty good deal for itself, Clarke says.

Sure, not bad for a bunch of carpetbaggers from New York. But what are we, chopped liver?

Another one bites the dust

The government's case against Ben Kuehne is in utter shambles -- Count I (the most serious count) was already dismissed. The case against a co-defendant has been dismissed. And now, Magistrate Judge Bandstra has recommended that Count 7 -- the wire fraud count -- be dismissed against all defendants. It is time for the government to concede defeat, no?

Is It Friday Already?

By SFL

Boy the federal court beat is...a little beat today.

Does it count as SD FL news that I saw Judge Moreno having a nice lunch at La Loggia yesterday?

No, guess not -- darn, where's Julie Kay when you need her?

Anyways, the always-in-trial big man already updated us on Joe Cool. Judge Huck set sentencing for May 6.

Third time's the charm in the Liberty 6 retrial, which is starting to feel like Jarndyce and Jarndyce -- only longer.

What do you all think of this line from the defense opening:

“This case is a 100 percent setup; this is a manufactured crime,” the lawyer, Ana M. Jhones, said in her opening argument, which drew several objections from the prosecution, most notably when she remarked that “taking an oath to Al Qaeda is not a crime.”

True, but do must jurors think it should be?

And finally, more details on the IRS v. UBS showdown unfolding right here in sunny South Florida:

With today’s lawsuit, the U.S. asked a federal judge to enforce its so-called John Doe summonses. On July 1, a federal judge in Miami approved an IRS summons seeking information on thousands of UBS accounts owned or controlled by U.S. citizens. Negotiations between the U.S., Switzerland and UBS have been at a standstill since then, according to a Justice Department filing.

UBS said in a statement that it expected today’s filing.

“UBS believes it has substantial defenses” to the U.S. attempt to enforce the summonses and will “vigorously contest” the case, the bank said in the statement. The bank’s objections are based on U.S. laws, Swiss financial privacy laws, and a 2001 agreement between UBS and the IRS, according to the statement.

Anyone know who has been retained to represent UBS on this? I know a certain humble blogger who's available.

Have a great weekend all!

Joe Cool verdict

Guilty.

I am loving guest-blogger South Florida Lawyer. Great stuff below...

Thanks.

New Plea Agreement Policy Becomes Effective Tomorrow

SFL here, still muckin' around this joint while David tries another big case.

Boy I feel like a dinosaur thinking back to the days when the clerk's office was not automated, and you had to actually walk over to Court to pull a docket or see an administrative order.

Now the clerk can just imprint them directly into the microchip transmitter located behind your retina, saving a lot of time and also something they used to have a long time ago called "trees."

Wait a minute -- that upgrade is set to launch in 2010.

I guess in 09 they're still using old fashioned emails, and I got one earlier today from the clerk that said this:

Administrative Order 2009-2, effective February 20, 2009, provides in part:

ORDERED AND ADJUDGED that as of February 20, 2009, the Southern District of Florida's current policy of providing limited electronic access to plea agreements is rescinded. All plea agreements filed on or after February 20, 2009 will be public documents, with full remote access available to all members of the public and the bar, unless the Court has entered an Order in advance directing the sealing or otherwise restricting a plea agreement.

Please visit the Southern District of Florida web page at http://www.flsd.uscourts.gov for the full text of Administrative Order 2009-2.

Hmm, I have to think this is a good thing, right?