1. Law firm handling "Chinese dry wall" cases has that same problem in their office. (Palm Beach Post)
2. "Lauderdale Lakes woman stole ID to pay for tummy tuck, feds say." (Sun-Sentinel)
3. Mutual Benefits sealed documents to remain under seal. (Sun-Sentinel)
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Thursday, April 23, 2009
Wednesday, April 22, 2009
Roy Black interviewed on Helio case
Tom Withers, who runs the awesome Federal Criminal Defense Blog out of Savannah, Georgia, has this great interview of Roy Black. Check it out.
Here's the intro question and answer:
Q: Thanks for your time and congratulations on the not guilty verdicts in the Helio Castroneves case. Any indication from the government on whether they will retry the conspiracy count against Castroneves and his sister?
Mr. Black: No, but in our view, the government can't retry Helio on conspiracy because of collateral estoppel. If the jury found no tax deficiency on the substantive evasion counts, then there was no unlawful plan. An agreement to comply with the tax code is not a crime. Or, if the jury found no willfulness on the evasion counts, then there can be no willfulness on the conspiracy. Either way we win. At a minimum we get interlocutory review in 11th Circuit before we start any litigation on this issue, we will meet with the government and see what their views are. There are civil remedies the government should be satisfied with.
Here's a snippet about a funny part of the trial with Bob Bennett:
Q: How was the experience of trying this case with Bob Bennett out of Washington, D.C.? Anything you gained from observing his courtroom demeanor/preparation?
Mr. Black: I have known and worked with Bob before and he is a wonderful lawyer. Not just that but the has a great sense of humor which really connects with the jury. One of the funnier parts of the trial dealt with Hugo Boss suits. The government claimed Helio should have reported the income from getting free suits from them. Our defense was that Hugo Boss was a sponsor of the racing team and Helio had to wear the suits. The claim was pretty petty. The total retail value of the suits was around $12,000. The summary government expert even admitted the amount was not material to the return. I cross-examined the CEO of Hugo Boss about how wonderful their suits were and that they wanted to show them off by having a slim good looking guy like Helio wear them. Then Bob got up, stuck his stomach out (which I can attest goes pretty far) and asked how would the suits look on his body. The jury got a good laugh out of that.
Here's the intro question and answer:
Q: Thanks for your time and congratulations on the not guilty verdicts in the Helio Castroneves case. Any indication from the government on whether they will retry the conspiracy count against Castroneves and his sister?
Mr. Black: No, but in our view, the government can't retry Helio on conspiracy because of collateral estoppel. If the jury found no tax deficiency on the substantive evasion counts, then there was no unlawful plan. An agreement to comply with the tax code is not a crime. Or, if the jury found no willfulness on the evasion counts, then there can be no willfulness on the conspiracy. Either way we win. At a minimum we get interlocutory review in 11th Circuit before we start any litigation on this issue, we will meet with the government and see what their views are. There are civil remedies the government should be satisfied with.
Here's a snippet about a funny part of the trial with Bob Bennett:
Q: How was the experience of trying this case with Bob Bennett out of Washington, D.C.? Anything you gained from observing his courtroom demeanor/preparation?
Mr. Black: I have known and worked with Bob before and he is a wonderful lawyer. Not just that but the has a great sense of humor which really connects with the jury. One of the funnier parts of the trial dealt with Hugo Boss suits. The government claimed Helio should have reported the income from getting free suits from them. Our defense was that Hugo Boss was a sponsor of the racing team and Helio had to wear the suits. The claim was pretty petty. The total retail value of the suits was around $12,000. The summary government expert even admitted the amount was not material to the return. I cross-examined the CEO of Hugo Boss about how wonderful their suits were and that they wanted to show them off by having a slim good looking guy like Helio wear them. Then Bob got up, stuck his stomach out (which I can attest goes pretty far) and asked how would the suits look on his body. The jury got a good laugh out of that.
Tuesday, April 21, 2009
The Fourth Amendment is not dead yet...
...not even in cars. See Arizona v. Gant, decided today (holding that police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest).
The lineup of Justices is interesting -- Scalia votes with the majority while Breyer dissents. I think that right now Justice Scalia might be the most pro-defendant Justice on the Court. No joke.
In other news, check out this editorial in the DBR by Patricia Acosta in which she discusses the recent administrative order allowing reporters to bring in their cell phones, but prohibiting them from using them inside the courtrooms. Here's the conclusion:
A thawing of the federal freeze on electronic access? Hardly. The order — citing federal policies and rules adopted when television cameras were the size of refrigerators and blinding lights were needed to make them work — spells out that while the devices can be brought in, they cannot be used. Use, the order says, would “violate the sanctity of the courtroom and disrupt ongoing judicial proceedings.” Past administrative orders banned only the use of cell phones and cameras inside courtrooms but said nothing about text messaging or e-mailing. This bring-don’t-use rule does not, in my opinion, reasonably advance a legitimate judicial interest nor is it required by the old policies or rules. It assumes that texting is the same thing as 1960s-style broadcasting when that plainly is not the case. It also sets the stage for real disruption when all those BlackBerry-toting scribes rush for the exits after each key development to knock out a few lines, then try to get back in to see what they’ve just missed. The truth is that tapping text on silenced electronic devices is no more disruptive of courtroom proceedings than scribbling on a piece of paper, whispering in someone’s ear, a yawn, or a nod of the head in reaction to a ruling or a critical admission. No significant noise is created by the mere act of pressing the keys of a device to create or view a message. Federal judges themselves type electronic messages throughout trials and hearings. They know this does not disrupt the proceedings. Why then, the rule? It’s obvious. Once the tweeting starts, we’ll have real time, electronic reporting on big federal trials. This won’t harm the dignity of the proceedings, but it will further the case for letting video cameras in the door as well. Of course, the case for allowing that to happen was proven not only 30 years ago but also throughout the last 30 years of Florida state court history, so federal judges ought not be afraid that if they now allow a little twittering to go on, it will force them to do what they should have done long ago. We finally have reached the era where knowledge can be transmitted at the speed of light from almost any place. This technological advancement is here to stay and makes the world a better place. In the courtroom, it allows the journalist instantly to report the defendant’s gasp and the relative’s tears as the freshly rendered verdict shocks through the air. Thirty years ago, the spirit of openness drove seven courageous Florida judges to embrace a bold new technology that made our democracy better. Their federal colleagues need to start down that path somewhere. Tweet.
The lineup of Justices is interesting -- Scalia votes with the majority while Breyer dissents. I think that right now Justice Scalia might be the most pro-defendant Justice on the Court. No joke.
In other news, check out this editorial in the DBR by Patricia Acosta in which she discusses the recent administrative order allowing reporters to bring in their cell phones, but prohibiting them from using them inside the courtrooms. Here's the conclusion:
A thawing of the federal freeze on electronic access? Hardly. The order — citing federal policies and rules adopted when television cameras were the size of refrigerators and blinding lights were needed to make them work — spells out that while the devices can be brought in, they cannot be used. Use, the order says, would “violate the sanctity of the courtroom and disrupt ongoing judicial proceedings.” Past administrative orders banned only the use of cell phones and cameras inside courtrooms but said nothing about text messaging or e-mailing. This bring-don’t-use rule does not, in my opinion, reasonably advance a legitimate judicial interest nor is it required by the old policies or rules. It assumes that texting is the same thing as 1960s-style broadcasting when that plainly is not the case. It also sets the stage for real disruption when all those BlackBerry-toting scribes rush for the exits after each key development to knock out a few lines, then try to get back in to see what they’ve just missed. The truth is that tapping text on silenced electronic devices is no more disruptive of courtroom proceedings than scribbling on a piece of paper, whispering in someone’s ear, a yawn, or a nod of the head in reaction to a ruling or a critical admission. No significant noise is created by the mere act of pressing the keys of a device to create or view a message. Federal judges themselves type electronic messages throughout trials and hearings. They know this does not disrupt the proceedings. Why then, the rule? It’s obvious. Once the tweeting starts, we’ll have real time, electronic reporting on big federal trials. This won’t harm the dignity of the proceedings, but it will further the case for letting video cameras in the door as well. Of course, the case for allowing that to happen was proven not only 30 years ago but also throughout the last 30 years of Florida state court history, so federal judges ought not be afraid that if they now allow a little twittering to go on, it will force them to do what they should have done long ago. We finally have reached the era where knowledge can be transmitted at the speed of light from almost any place. This technological advancement is here to stay and makes the world a better place. In the courtroom, it allows the journalist instantly to report the defendant’s gasp and the relative’s tears as the freshly rendered verdict shocks through the air. Thirty years ago, the spirit of openness drove seven courageous Florida judges to embrace a bold new technology that made our democracy better. Their federal colleagues need to start down that path somewhere. Tweet.
Monday, April 20, 2009
Who will be the next U.S. Attorney?
Inside Track has a post here about the slow selection process. Here's a piece:
While other states are starting the interview process, the federal Judicial Nominating Commission in the Sunshine State still has not issued a notice seeking applications to replace Miami U.S. Attorney Alex Acosta, whose term is up this summer. Acosta is interviewing Wednesday for the dean’s position at Florida International University’s law school.
The delay in calling for applications could mean that Acosta’s top assistant, Jeff Sloman, would likely serve as acting U.S. attorney. Sloman, a Democrat, is said to be interested in the job permanently.
Meanwhile, another potential applicant has emerged: Broward Circuit Judge Ilona M. Holmes.
After President Obama was elected and a turnover in U.S. attorneys was apparent, talk centered on Greenberg Traurig attorney Jackie Becerra, a Hispanic woman and the former right hand to U.S. Attorney Marcos Jimenez. But word is she’s happy at Greenberg, and her office confirmed Friday that she just adopted a baby. So, congratulations to Jackie.
Another name in the mix is Miami-Dade Assistant County Attorney Wilfredo Ferrer, a former federal prosecutor.
Other legal eagles who have surfaced as possible Acosta replacements are in alphabetical order David Buckner with Kozyak Tropin & Throckmorton in Coral Gables, Brian Miller at Akerman Senterfitt in Miami, Curtis Miner at Colson Hicks Eidson in Coral Gables, Mark Schnapp of Greenberg Traurig, Miami-Dade Circuit Judge Daryl Trawick and Bruce Udolf at Berger Singerman in Fort Lauderdale.
Diversity came up as an issue for women, blacks and Cuban-American Democrats looking at the makeup of the 56-member commission. Among the names mentioned so far, Holmes and Trawick are black, and the rest are white males.
While other states are starting the interview process, the federal Judicial Nominating Commission in the Sunshine State still has not issued a notice seeking applications to replace Miami U.S. Attorney Alex Acosta, whose term is up this summer. Acosta is interviewing Wednesday for the dean’s position at Florida International University’s law school.
The delay in calling for applications could mean that Acosta’s top assistant, Jeff Sloman, would likely serve as acting U.S. attorney. Sloman, a Democrat, is said to be interested in the job permanently.
Meanwhile, another potential applicant has emerged: Broward Circuit Judge Ilona M. Holmes.
After President Obama was elected and a turnover in U.S. attorneys was apparent, talk centered on Greenberg Traurig attorney Jackie Becerra, a Hispanic woman and the former right hand to U.S. Attorney Marcos Jimenez. But word is she’s happy at Greenberg, and her office confirmed Friday that she just adopted a baby. So, congratulations to Jackie.
Another name in the mix is Miami-Dade Assistant County Attorney Wilfredo Ferrer, a former federal prosecutor.
Other legal eagles who have surfaced as possible Acosta replacements are in alphabetical order David Buckner with Kozyak Tropin & Throckmorton in Coral Gables, Brian Miller at Akerman Senterfitt in Miami, Curtis Miner at Colson Hicks Eidson in Coral Gables, Mark Schnapp of Greenberg Traurig, Miami-Dade Circuit Judge Daryl Trawick and Bruce Udolf at Berger Singerman in Fort Lauderdale.
Diversity came up as an issue for women, blacks and Cuban-American Democrats looking at the makeup of the 56-member commission. Among the names mentioned so far, Holmes and Trawick are black, and the rest are white males.
Will the feds retry Helio Castroneves?
As you all know by now, the jury acquitted Helio Castroneves and his co-defendants of all counts, save for one conspiracy count. Technically the government has the ability to retry Helio on that count. But will they?
In the past, this U.S. Attorney's office has retried defendants after hung juries -- for example, we are on the third Liberty City trial, and the office retried the Joe Cool case after it hung. But this is different because the jury acquitted Helio of every substantive count. I would be really surprised if the feds chose to retry this one count. The sense is that Helio won the trial and was vindicated, so a retrial would look petty and vindictive. Plus, there's no reason to believe that the next jury would have any more reason to find Helio guilty after the first jury rejected almost the entire case. What say you readers -- should the U.S. Attorney's office retry Helio on the one hung count?
(p.s. Rumpole, let me know if you want to double down on your last bet).
In the past, this U.S. Attorney's office has retried defendants after hung juries -- for example, we are on the third Liberty City trial, and the office retried the Joe Cool case after it hung. But this is different because the jury acquitted Helio of every substantive count. I would be really surprised if the feds chose to retry this one count. The sense is that Helio won the trial and was vindicated, so a retrial would look petty and vindictive. Plus, there's no reason to believe that the next jury would have any more reason to find Helio guilty after the first jury rejected almost the entire case. What say you readers -- should the U.S. Attorney's office retry Helio on the one hung count?
(p.s. Rumpole, let me know if you want to double down on your last bet).
Friday, April 17, 2009
Helio Castroneves found not guilty
All three defendants found not guilty. The jury hung on one count as to Helio... I can't imagine that they would retry it. Congrats to him and his defense team.
Rumpole, get that Benjamin ready
The jurors in the Helio case asked for the opening statements to be read back today. Judge Graham said no, telling the jurors that opening statements weren't evidence. From Jay Weaver's article:
The jury said it reached a verdict on two tax-evasion counts against the 33-year-old Castroneves and deadlocked on five others -- including the leading conspiracy charge.
The panel also said it reached a verdict on one charge against the driver's sister/manager, Katiucia Castroneves, 35, but deadlocked on the other six.
Jurors said they did reach a verdict on four counts against Castroneves' sports lawyer, Alan R. Miller, 71, of Michigan, including the main conspiracy charge. Miller was not charged in the three other tax-evasion counts in the indictment.
One of Castroneves' lawyers, Roy Black, urged the judge to bring the deliberations -- now in their sixth day -- to a close. He asked Graham to announce the partial verdicts and to declare a mistrial on the deadlocked counts.
The judge refused.
Miller's attorney, Robert Bennett, then asked Graham if he would at least announce the jury's verdict for his client, saying the anticipation was ``sheer agony.''
Federal prosecutor Matt Axelrod opposed disclosure, raising concern about courtroom ''reaction'' if the jury's verdict on Miller was revealed at this point.
The judge sided with the government, denying Bennett's request.
It appears from the defense lawyers' requests in court that they're confident Miller may have been acquitted and that the jury may also have acquitted the Castroneves siblings on a least a few of the tax-evasion charges. A mistrial declared on the remaining counts would be an additional setback for the government.
The jury said it reached a verdict on two tax-evasion counts against the 33-year-old Castroneves and deadlocked on five others -- including the leading conspiracy charge.
The panel also said it reached a verdict on one charge against the driver's sister/manager, Katiucia Castroneves, 35, but deadlocked on the other six.
Jurors said they did reach a verdict on four counts against Castroneves' sports lawyer, Alan R. Miller, 71, of Michigan, including the main conspiracy charge. Miller was not charged in the three other tax-evasion counts in the indictment.
One of Castroneves' lawyers, Roy Black, urged the judge to bring the deliberations -- now in their sixth day -- to a close. He asked Graham to announce the partial verdicts and to declare a mistrial on the deadlocked counts.
The judge refused.
Miller's attorney, Robert Bennett, then asked Graham if he would at least announce the jury's verdict for his client, saying the anticipation was ``sheer agony.''
Federal prosecutor Matt Axelrod opposed disclosure, raising concern about courtroom ''reaction'' if the jury's verdict on Miller was revealed at this point.
The judge sided with the government, denying Bennett's request.
It appears from the defense lawyers' requests in court that they're confident Miller may have been acquitted and that the jury may also have acquitted the Castroneves siblings on a least a few of the tax-evasion charges. A mistrial declared on the remaining counts would be an additional setback for the government.
BOP listserv moderator Howard Keiffer convicted
Many criminal defense lawyers, prosecutors and judges are members of the BOP listserv, which was started by Howard Keiffer. Keiffer spoke at conferences around the country about the Bureau of Prisons and related issues. I emailed with him a couple times over the years... Turns out he wasn't a lawyer even though he appeared in about 20 different district courts. He was convicted this week in federal court. Here's the AP article:
A man accused of impersonating a lawyer in at least 10 states was convicted Wednesday of mail fraud and making false statements in what a government lawyer hoped would be the first of several federal prosecutions around the country.
It took only about an hour and a half for a federal jury in Bismarck to convict Howard O. Kieffer, who shrank in his chair and gulped as the verdict was read.
Authorities said Kieffer lied on his application to practice law in federal court, but still represented such clients as a former St. Louis Blues hockey player who pleaded guilty to plotting to kill his agent.
At the trial, two witnesses told the jury they each paid Kieffer at least $20,000 to appeal prison sentences for their loved ones, only to find out later that he wasn't a lawyer. Attorneys testified that they thought Kieffer was one of their colleagues because he seemed to know about federal court matters and because they saw him at attorney training seminars.
Kieffer's attorney, Joshua Lowther, called no witnesses, but he said the government did not prove its case beyond a reasonable doubt.
The 54-year-old from Duluth, Minn., faces up to 25 years in prison and a $500,000 fine; a sentencing date was not immediately set. Assistant U.S. Attorney David Hagler said Kieffer could be prosecuted in federal court in other states where he posed as a lawyer.
Here's an article by the ABA which goes into some depth about Keiffer. Worth a read.
A man accused of impersonating a lawyer in at least 10 states was convicted Wednesday of mail fraud and making false statements in what a government lawyer hoped would be the first of several federal prosecutions around the country.
It took only about an hour and a half for a federal jury in Bismarck to convict Howard O. Kieffer, who shrank in his chair and gulped as the verdict was read.
Authorities said Kieffer lied on his application to practice law in federal court, but still represented such clients as a former St. Louis Blues hockey player who pleaded guilty to plotting to kill his agent.
At the trial, two witnesses told the jury they each paid Kieffer at least $20,000 to appeal prison sentences for their loved ones, only to find out later that he wasn't a lawyer. Attorneys testified that they thought Kieffer was one of their colleagues because he seemed to know about federal court matters and because they saw him at attorney training seminars.
Kieffer's attorney, Joshua Lowther, called no witnesses, but he said the government did not prove its case beyond a reasonable doubt.
The 54-year-old from Duluth, Minn., faces up to 25 years in prison and a $500,000 fine; a sentencing date was not immediately set. Assistant U.S. Attorney David Hagler said Kieffer could be prosecuted in federal court in other states where he posed as a lawyer.
Here's an article by the ABA which goes into some depth about Keiffer. Worth a read.
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