You know that you aren't going to win an appeal with that as the opening line of the opinion. And that's how Judge Marcus started off his 87-page opinion in USA v. Chuckie Taylor. And here's the conclusion:
In sum, we affirm Emmanuel’s convictions and sentence in full. The Torture Act’s proscriptions against both torture and conspiracy to commit torture are constitutional, and may be applied to extraterritorial conduct. The district court did not plainly err in applying § 924(c) to Emmanuel’s extraterritorial conduct, nor in its conduct of this lengthy trial. Finally, Emmanuel’s advisory Sentencing Guidelines range was correctly calculated by the district court, and the sentences imposed violate neither the CAT nor the Constitution.
UPDATE -- here's the AP story.
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, July 15, 2010
Wednesday, July 14, 2010
Barefoot Bandit appears before Judge Dube
It was a really quick hearing -- according to Curt Anderson:
The American teenager who police call the "Barefoot Bandit" made his first appearance in a U.S. court since being extradited from the Bahamas.
Colton Harris-Moore appeared briefly in federal court in Miami on Wednesday. He is charged with committing a two-year string of break-ins and plane thefts across the United States. A judge set another hearing Friday to give Harris-Moore time to hire a lawyer.
The 19-year-old convict's alleged crime spree ended Sunday when Bahamian police shot out the engines of a stolen boat and arrested him. He pleaded guilty Tuesday to entering that country illegally and was deported hours later.
He had arrived in the Bahamas last week, crash landing a plane he allegedly stole in Indiana
Tuesday, July 13, 2010
Barefoot Bandit headed to Miami
His real name is Colton Harris-Moore and he was caught in the Bahamas. The kis was born in 1991. From his Wiki page:
Harris-Moore became known as the "Barefoot Bandit" or as the "Barefoot Burglar", by reportedly committing his crimes while barefoot.[3] In Fall 2009, police found footprints at an airport hangar in Bonners Ferry, Idaho; a Cessna 182 stolen from there crash-landed approximately 260 miles (418 kilometers) to the west near Granite Falls, Washington after a few unsuccessful attempts to land at the small airport there. Police in the San Juan Islands also found cartoonish, chalk-outlines of feet all over the floor of a grocery store that was broken into in February 2010.[11] In Fall 2009, a Facebook fan page was set up, drawing thousands of entries,[10] and one local Seattle man started selling T-shirts bearing his picture with the words, "Momma Tried".[9] Local people from Camano Island have also attempted to vent their frustrations through a song,[19] as well as a blog which includes the sale of merchandise and accepts donations to purchase the services of a bounty hunter.[20] In April 2010, 20th Century Fox purchased the film rights to the book Taking Flight: The Hunt for a Young Outlaw, based on a proposal by Bob Friel.[21] Harris-Moore's mother has retained celebrity lawyer O. Yale Lewis to seek control of entertainment interests related to her son. She has also hired John Henry Browne to handle her son's criminal defense.
From ABC on his arrest:
The "Barefoot Bandit" faces deportation to the United States, where a slew of federal officials wait to begin the complicated process of sorting out a lenthy list of crimes that span half the country.
Monique Gomez, Harris-Moore's attorney, told ABC News that he might leave the Bahamas as early as tonight.
Colton Harris-Moore pleaded guilty today in a Bahamian court to a relatively minor charge of illegal entry into the country, The Associated Press reported.
Instead of the extradition process many expected, he'll simply be deported though the U.S. Attorney's Office. Western District of Washington spokeswoman Emily Langlie told ABC News that authorities had not received confirmation of exactly what will happen.
Once on U.S. soil, Langlie said, Harris-Moore would appear in federal court in Miami, the closest district to where he was apprehended, on a single count of interstate transportation of stolen goods. The charge was filed in December 2009, stemming from an incident in which a plane was stolen from Bonner's Ferry, Idaho, and crashed in Granite Falls.
The judge will decide bond for Harris-Moore, basing it according to his flight risk and danger to the community.
"I think the expectation in any detention hearing is the government will argue that Colton Harris-Moore is a flight risk," Langlie said. "I think he's proven that."
Harris-Moore's highly publicized exploits came to an end Sunday when he was taken into custody by Bahamian police after a high-speed boat chase off Harbor Island. The arrest capped off more than two years on the run in which he achieved a folk hero-type following from tens of thousands of Internet fans, even as he left a growing trail of increasingly brazen crimes in his wake.
Get ready for some fun in Magistrate Court this week. He'll have to wear the prison flip flops to Court...
Tuesday News and Notes
It's pretty quiet in the District right now. A couple news items:
1. Attorney General Eric Holder and Department of Health and Human Servies Secretary Kathleen Sebelius will be in the SDFLA (at the James L. Knight Center) on Friday July 16 at 9:45 to have the first in a series of day-long regional summits to discuss innovative ways to prevent fraud within the U.S. health care system.
2. Lindsay Lohan made Professor Erik Luna famous.
3. Mel Martinez didn't last long at DLA Piper.
4. Gravity may not exist (according to one string theorist), but I'm not convinced by the "hair frizzles in the heat and humidity" analogy.
5. Socratic method: good or bad? I disagree with Bainbridge -- it works if it's done right.
What else people?
1. Attorney General Eric Holder and Department of Health and Human Servies Secretary Kathleen Sebelius will be in the SDFLA (at the James L. Knight Center) on Friday July 16 at 9:45 to have the first in a series of day-long regional summits to discuss innovative ways to prevent fraud within the U.S. health care system.
2. Lindsay Lohan made Professor Erik Luna famous.
3. Mel Martinez didn't last long at DLA Piper.
4. Gravity may not exist (according to one string theorist), but I'm not convinced by the "hair frizzles in the heat and humidity" analogy.
5. Socratic method: good or bad? I disagree with Bainbridge -- it works if it's done right.
What else people?
Monday, July 12, 2010
Crazy Monday...
Sorry for the slow blogging, but I've been running around all day. A Mizzou grad posted 17 things he learned in law school (via ATL), and it's pretty funny. So enjoy until I can get back to the blog:
1. Walk, don’t run from the police. See Illinois v. Wardlow, 528 U.S. 119 (2000).
2. A good lawyer knows the law. A great lawyer knows the judge. See DeMentas v. Estate of Tallas, 764 P.2d 628, 632 n.6 (Utah App. 1988) (quoting the “colorful, if occasionally irreverent” trial judge: “It’s hearsay, I agree, but it’s damn good hearsay, and I want to hear it.”).
3. A half-decent lawyer doesn’t belittle the judge’s hometown. See Smith v. Colonial Penn Ins. Co., 943 F. Supp. 782, 784 (S.D. Tex. 1996) (denying a motion to change venue: “Rather, Defendant will be pleased to discover that the highway is paved and lighted all the way to Galveston, and thanks to the efforts of this Court’s predecessor . . . the trip should be free of rustlers, hooligans, or vicious varmints of unsavory kind. Moreover, the speed limit was recently increased to seventy miles per hour on most of the road leading to Galveston, so Defendant should be able to hurtle to justice at lightning speed.”); see also id. at 784 n.2 (“Defendant will again be pleased to know that regular limousine service is available from Hobby Airport, even to the steps of this humble courthouse, which has got lights, indoor plummin’, ‘lectric doors, and all sorts of new stuff, almost like them big courthouses back East.”).
4. “The parties are advised to chill.” Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 908 (9th Cir. 2002).
5. You have a First Amendment right to shake what your momma gave you. G.Q. Gentlemen’s Quarters v. City of Lake Ozark, 83 S.W.3d 98, 102-03 (Mo. App. W.D. 2002).
6. When your state supreme court disciplines you for the third time, it’s unwise to pay your fine out of your IOLTA account, especially if the check says it’s from your IOLTA account. Doing this tends to get you disciplined for the fourth time. In re Coleman, 295 S.W.3d 857, 862 (Mo. banc 2009).
7. Kanye West could probably teach family law at least as well as an adjunct. See KANYE WEST FEAT. JAMIE FOXX, Gold Digger, on LATE REGISTRATION (Roc-A-Fella 2005) (“If you ain’t no punk, holla ‘We want pre-nup! We want pre-nup!’ Yeah, it’s something that you need to have, ’cause when she leaves yo’ ass she gon’ leave with half.”).
8. Ditto for Jay-Z and criminal procedure. See JAY-Z, 99 Problems, on THE BLACK ALBUM (Roc-A-Fella 2003) (“Well my glove compartment is locked, so is the trunk in the back, and I know my rights so you gon’ need a warrant for that.”).[FN1]
9. Some cases are simple. See Denny v. Radar Industries, Inc., 184 N.W.2d 289 (Mich. App. 1970).
10. Criminal defendants tend to be idiots. See State v. Gaw, 285 S.W.3d 318, 320 (Mo. banc 2009) (After approaching Gaw’s vehicle, “Sgt. Frazier asked Gaw to give him his marijuana. Gaw reached into his pants pocket, pulled out a small baggie and handed it to the officer.” Gaw was then arrested.).
11. The bar exam is a test of minimum competency. It’s also the source of the phrase “lowering the bar.” See Miller v. Mo. Highway and Transp. Comm’n, 287 S.W.3d 671, 674 (Mo. banc 2009) (dismissing a worker’s compensation claim because, among other things, the only case supporting the plaintiff’s interpretation of the statute had been overruled by name and citation in the statute).
12. The area between Missouri and Colorado known as “kansas” [FN2] is a black hole where knowledge, hygiene, and genetic diversity go to die. I know this has little to do with law school, but I did come to appreciate this fact while getting my J.D., and I wanted to include this picture:
13. People litigate some really bizarre stuff. See Tulare Irrigation Dist. v. Lindsay-Strathmore Irrigation Dist., 45 P.2d 972, 1007 (Cal. 1935) (use of water by farmers to drown gophers not allowed in area with chronic water shortage).
14. Mark Twain once said, “In the first place God made idiots. This was for practice. Then he made School Boards.” Boy was he right. See Justin D. Smith, Note, Hostile Takeover: The State of Missouri, the St. Louis School District, and the Struggle for Quality Education in the Inner-City, 74 MO. L. REV. 1143 (2009).
15. Some people don’t learn. Ever. See Glick v. Harris, 518 S.W.2d 227, 228 (Mo. App. W.D. 1974) (“We enter our judgment of dismissal of the appeals, but do not labor the reasons. Counsel for the appellants has had the benefit of our previous expressions and has felt the sanction of previous dismissals.”).
16. The Supreme Court of the United States only takes the biggest, most important questions facing our country. Like, “What is golf?” See PGA Tour, Inc. v. Martin, 532 U.S. 661, 700 (2001) (Scalia, J., dissenting).
17. Some case names were just made to be mocked. See Bath Junkie Branson, L.L.C. v. Bath Junkie, Inc., 528 F.3d 556 (8th Cir. 2008).
I’m sure there are other nuggets of knowledge I’ve missed, but this is most of it. And it beats the hell out of watching that Contracts video instead.
—————————————
[FN1] This is actually how I memorized compartment searches for the exam.
[FN2] For those of you who are not die-hard Mizzou fans, know that the ‘k’ in ‘kansas’ is not capitalized because ‘kansas’ is not a proper noun. And if we had our way, it probably wouldn’t be a noun at all. See wikipedia.org/Lawrence_Massacre.
1. Walk, don’t run from the police. See Illinois v. Wardlow, 528 U.S. 119 (2000).
2. A good lawyer knows the law. A great lawyer knows the judge. See DeMentas v. Estate of Tallas, 764 P.2d 628, 632 n.6 (Utah App. 1988) (quoting the “colorful, if occasionally irreverent” trial judge: “It’s hearsay, I agree, but it’s damn good hearsay, and I want to hear it.”).
3. A half-decent lawyer doesn’t belittle the judge’s hometown. See Smith v. Colonial Penn Ins. Co., 943 F. Supp. 782, 784 (S.D. Tex. 1996) (denying a motion to change venue: “Rather, Defendant will be pleased to discover that the highway is paved and lighted all the way to Galveston, and thanks to the efforts of this Court’s predecessor . . . the trip should be free of rustlers, hooligans, or vicious varmints of unsavory kind. Moreover, the speed limit was recently increased to seventy miles per hour on most of the road leading to Galveston, so Defendant should be able to hurtle to justice at lightning speed.”); see also id. at 784 n.2 (“Defendant will again be pleased to know that regular limousine service is available from Hobby Airport, even to the steps of this humble courthouse, which has got lights, indoor plummin’, ‘lectric doors, and all sorts of new stuff, almost like them big courthouses back East.”).
4. “The parties are advised to chill.” Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 908 (9th Cir. 2002).
5. You have a First Amendment right to shake what your momma gave you. G.Q. Gentlemen’s Quarters v. City of Lake Ozark, 83 S.W.3d 98, 102-03 (Mo. App. W.D. 2002).
6. When your state supreme court disciplines you for the third time, it’s unwise to pay your fine out of your IOLTA account, especially if the check says it’s from your IOLTA account. Doing this tends to get you disciplined for the fourth time. In re Coleman, 295 S.W.3d 857, 862 (Mo. banc 2009).
7. Kanye West could probably teach family law at least as well as an adjunct. See KANYE WEST FEAT. JAMIE FOXX, Gold Digger, on LATE REGISTRATION (Roc-A-Fella 2005) (“If you ain’t no punk, holla ‘We want pre-nup! We want pre-nup!’ Yeah, it’s something that you need to have, ’cause when she leaves yo’ ass she gon’ leave with half.”).
8. Ditto for Jay-Z and criminal procedure. See JAY-Z, 99 Problems, on THE BLACK ALBUM (Roc-A-Fella 2003) (“Well my glove compartment is locked, so is the trunk in the back, and I know my rights so you gon’ need a warrant for that.”).[FN1]
9. Some cases are simple. See Denny v. Radar Industries, Inc., 184 N.W.2d 289 (Mich. App. 1970).
10. Criminal defendants tend to be idiots. See State v. Gaw, 285 S.W.3d 318, 320 (Mo. banc 2009) (After approaching Gaw’s vehicle, “Sgt. Frazier asked Gaw to give him his marijuana. Gaw reached into his pants pocket, pulled out a small baggie and handed it to the officer.” Gaw was then arrested.).
11. The bar exam is a test of minimum competency. It’s also the source of the phrase “lowering the bar.” See Miller v. Mo. Highway and Transp. Comm’n, 287 S.W.3d 671, 674 (Mo. banc 2009) (dismissing a worker’s compensation claim because, among other things, the only case supporting the plaintiff’s interpretation of the statute had been overruled by name and citation in the statute).
12. The area between Missouri and Colorado known as “kansas” [FN2] is a black hole where knowledge, hygiene, and genetic diversity go to die. I know this has little to do with law school, but I did come to appreciate this fact while getting my J.D., and I wanted to include this picture:
13. People litigate some really bizarre stuff. See Tulare Irrigation Dist. v. Lindsay-Strathmore Irrigation Dist., 45 P.2d 972, 1007 (Cal. 1935) (use of water by farmers to drown gophers not allowed in area with chronic water shortage).
14. Mark Twain once said, “In the first place God made idiots. This was for practice. Then he made School Boards.” Boy was he right. See Justin D. Smith, Note, Hostile Takeover: The State of Missouri, the St. Louis School District, and the Struggle for Quality Education in the Inner-City, 74 MO. L. REV. 1143 (2009).
15. Some people don’t learn. Ever. See Glick v. Harris, 518 S.W.2d 227, 228 (Mo. App. W.D. 1974) (“We enter our judgment of dismissal of the appeals, but do not labor the reasons. Counsel for the appellants has had the benefit of our previous expressions and has felt the sanction of previous dismissals.”).
16. The Supreme Court of the United States only takes the biggest, most important questions facing our country. Like, “What is golf?” See PGA Tour, Inc. v. Martin, 532 U.S. 661, 700 (2001) (Scalia, J., dissenting).
17. Some case names were just made to be mocked. See Bath Junkie Branson, L.L.C. v. Bath Junkie, Inc., 528 F.3d 556 (8th Cir. 2008).
I’m sure there are other nuggets of knowledge I’ve missed, but this is most of it. And it beats the hell out of watching that Contracts video instead.
—————————————
[FN1] This is actually how I memorized compartment searches for the exam.
[FN2] For those of you who are not die-hard Mizzou fans, know that the ‘k’ in ‘kansas’ is not capitalized because ‘kansas’ is not a proper noun. And if we had our way, it probably wouldn’t be a noun at all. See wikipedia.org/Lawrence_Massacre.
Friday, July 09, 2010
Judge Gold to take senior status in January
I remember when Judge Gold was sworn in -- I was clerking for Judge Davis at the time. All of the clerks were invited to the ceremony, which back then was held in the old courtyard and catered by Christy's. Judge Gold made a point of introducing himself to all of the clerks; he was very nice. He quickly became known as one of the best, most respected judges in this District. Luckily, he intends "to continue to render substantial judicial service as a senior judge." Gold also wished Obama "well in these challenging times."
What I appreciate about him is that he holds lawyers to the highest standards. He believes that the profession is a noble one. I also appreciate that he writes a number of opinions, probably the most in this District. From orders on motions to suppress to sentencing orders, Judge Gold often writes -- which is rare in criminal cases in this District. Accordingly, the parties who appear before him -- win or lose -- know that he has given a great deal of consideration to their issues.
From the DBR: Gold, who sits in Miami, was nominated by President Clinton in 1997 when U.S. District Judge Jose Gonzalez Jr. went on senior status. A graduate of Duke University law school, Gold served as a Miami-Dade prosecutor from 1971 to 1975 before going into private practice. He served as a Miami-Dade circuit judge from 1993 to 1997 before his nomination to the federal bench. *** The question is how long will it take to replace Gold. The Obama administration’s nominations have lagged in the U.S. Senate. U.S. District Judge Daniel T.K. Hurley in West Palm Beach took senior status in February 2009. Federal Defender Kathleen Williams was reported as the front-runner to replace him last December, and she is still awaiting confirmation.
Thursday, July 08, 2010
Federal Sentencing Guidelines under attack by...
She tweeted the following:
It is clearly stated in Article 5 of the U.N. Universal Declaration of Human Rights that...., "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." this was taken from an article by Erik Luna.. "November 1 marked the 15th anniversary of the U.S. Sentencing Guidelines. But there were no celebrations, parades, or other festivities in honor of this punishment scheme created by Congress and the U.S. Sentencing Commission... Instead, the day passed like most others during the last 15 years: Scores of federal defendants sentenced under a constitutionally perverted system that saps moral judgment through its mechanical rules."
Speaking of Federal Sentencing Guidelines -- Judge Cohn sentenced former Miramar Commissioner Fitzroy Salesman today to 51 months' imprisonment. (Here's the Sun-Sentinel article). The government had asked for 8-10 years. In Judge Cohn's last big sentencing -- Scott Rothstein -- he went over the government's recommendation... This time, he explained, Salesman's sentence should be in line with the other politicians caught in the scheme -- former School Board member Beverly Gallagher and former County Commissioner Josephus Eggelletion. Sounds right.
Pure Gold -- Uncle Luke's column in the New Times
From the former, which references a case from the SDFLA:
In 1989, Broward County Sheriff Nick Navarro banned the sale of our album, As Nasty as They Wanna Be, and a federal judge backed him. We appealed. The next year, Kagan, who was working at a Washington, D.C. law firm, wrote a brief that argued the album "does not physically excite anyone who hears it, much less arouse a shameful and morbid sexual response." In other words, my homegirl Kagan was saying people could not be aroused by the lyrics "'cause my dick's on bone" or "me so horny, me fuck you long time." She realized these words did not meet the standard of appealing to prurient interests. She did a great job fighting on 2 Live Crew's behalf, which lets you know that Kagan is not easily swayed by public opinion or by politicians with their own hidden agendas.
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