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
Wednesday, March 09, 2011
Judge Gold is Zen
Judge Gold gave a nice talk today about civility in court. But it wasn't the same old talk. His theory is that stress is causing the incivility among both lawyers and judges. And he gave practical tips for trying to get rid of stress. In fact, Judge Gold is starting a group of lawyers and judges to deal with these issues. So what do you all think we can do to decrease the insane stress and pressure that each of us faces every day?
“My wife tells me what to do.”
That was Matt Gulla, the main snitch against the cops in the mortgage fraud trial, when asked whether another co-defendant told him what to do. "The answer momentarily caught [the defense lawyer] off guard, before he drew a titter throughout the courtroom by retorting that wives are the presumed bosses in the spousal pecking order."
A titter, huh?
That reminds me of the cross-examination question of a special agent getting thrown back at a defense lawyer many years ago: Question: "Aren't all agents special agents?" Answer: "My mom doesn't think so."
More from James Burnett, who is covering the case for the Herald:
“Yes” and “I don’t recall” became mantras Tuesday for Gulla, who has already accepted a plea deal that could send him to jail for less than three years, as defense attorneys pushed him repeatedly to admit carrying out the fraudulent transactions.
Gulla admitted that he and partner Rene Rodriguez, who has also accepted a plea deal, persuaded lenders to approve the applications, by making up fake lease agreements for properties the defendants already owned, to try to show non-existent rental income. Many of the fake leases used the names of Gulla’s high school classmates and in-laws. He said he and Rodriguez also stacked the deck for the accused cops by falsely telling lenders the defendants planned to make the investment properties their primary residences. The ultimate goal, Gulla said, was to secure better interest rates and larger loans for the defendants.
Under stiff cross examination by several defense attorneys Tuesday, Gulla explained how they were able to beat the system: Submitting fake documents and documents intentionally incorrectly filled out on the assumption that lenders simply wouldn’t catch on. Perhaps the most important toothless policy that Gulla and Rodriguez used to their advantage was the Stated Income Program, which essentially allowed potential home buyers to get loans with little to no proof of their income and credit worthiness.
But Gulla insisted the defendants were aware of his deceptions to lenders, and sometimes found humor in it.
He had testified Monday that once he bumped into Mittauer at an attorney’s office, where the alleged fraud ring held mortgage closings. When he asked Mittauer why he was there, Gulla testified Mittauer responded that he was just “trying to figure out where I’m moving this week,” an apparent reference to the frequently used “primary residence” lie.
“It was kind of sad, really,” Gulla said. “We both just kind of laughed about it.”
A titter, huh?
That reminds me of the cross-examination question of a special agent getting thrown back at a defense lawyer many years ago: Question: "Aren't all agents special agents?" Answer: "My mom doesn't think so."
More from James Burnett, who is covering the case for the Herald:
“Yes” and “I don’t recall” became mantras Tuesday for Gulla, who has already accepted a plea deal that could send him to jail for less than three years, as defense attorneys pushed him repeatedly to admit carrying out the fraudulent transactions.
Gulla admitted that he and partner Rene Rodriguez, who has also accepted a plea deal, persuaded lenders to approve the applications, by making up fake lease agreements for properties the defendants already owned, to try to show non-existent rental income. Many of the fake leases used the names of Gulla’s high school classmates and in-laws. He said he and Rodriguez also stacked the deck for the accused cops by falsely telling lenders the defendants planned to make the investment properties their primary residences. The ultimate goal, Gulla said, was to secure better interest rates and larger loans for the defendants.
Under stiff cross examination by several defense attorneys Tuesday, Gulla explained how they were able to beat the system: Submitting fake documents and documents intentionally incorrectly filled out on the assumption that lenders simply wouldn’t catch on. Perhaps the most important toothless policy that Gulla and Rodriguez used to their advantage was the Stated Income Program, which essentially allowed potential home buyers to get loans with little to no proof of their income and credit worthiness.
But Gulla insisted the defendants were aware of his deceptions to lenders, and sometimes found humor in it.
He had testified Monday that once he bumped into Mittauer at an attorney’s office, where the alleged fraud ring held mortgage closings. When he asked Mittauer why he was there, Gulla testified Mittauer responded that he was just “trying to figure out where I’m moving this week,” an apparent reference to the frequently used “primary residence” lie.
“It was kind of sad, really,” Gulla said. “We both just kind of laughed about it.”
Monday, March 07, 2011
741 days
That's how long Judge Hurley has been waiting for Kathy Williams to be confirmed and take over his seat. The Sun-Sentinel covers the story:
"One of the great concerns for the court as an institution is that over time we'll have other vacancies, and if the vacancies aren't filled in a timely manner," legal logjams eventually will prevent people from getting their day in court, he said.
With two of his colleagues - U.S. District Judges Alan Gold in January and Paul Huck in July - joining him on what is known as senior status, his concern is more than academic.
The glacial speed of the U.S. Senate's judicial confirmation process, blamed on partisan politics, has hobbled courts throughout the country.
***
Among local attorneys, the conclusion seems obvious: "It's just partisan politics," Val Rodriguez said.
Miami attorney Neal Sonnett, a former president of the American Judicature Society, which focuses on promoting an independent judiciary, agreed. Last year Republican senators blocked the confirmation process, hoping they would seize control of the Senate in the November elections, he said. Now it appears some are intent on stalling nominations until after the 2012 elections, when they hope to put one of their own back in the White House, he said.
So far, attorneys said they haven't seen lengthy delays in getting cases heard and resolved in South Florida. Chief U.S. District Judge Federico Moreno said the district is lucky because seven senior judges still handle some cases. Further, Hurley said, case filings have slowed, in part, because of the economy.
While he credits the 15 full-time judges with moving cases quickly, attorney Ted Babbitt says eventually something has to give.
"The average person is going to get hurt because they're going to have to wait to have their cases heard," he said.
In other news:
--Maybe trial lawyers should try this on game day.
--The sentencing fight over how much time former Judge Jack Camp should get is probation or a whopping 15 days.
"One of the great concerns for the court as an institution is that over time we'll have other vacancies, and if the vacancies aren't filled in a timely manner," legal logjams eventually will prevent people from getting their day in court, he said.
With two of his colleagues - U.S. District Judges Alan Gold in January and Paul Huck in July - joining him on what is known as senior status, his concern is more than academic.
The glacial speed of the U.S. Senate's judicial confirmation process, blamed on partisan politics, has hobbled courts throughout the country.
***
Among local attorneys, the conclusion seems obvious: "It's just partisan politics," Val Rodriguez said.
Miami attorney Neal Sonnett, a former president of the American Judicature Society, which focuses on promoting an independent judiciary, agreed. Last year Republican senators blocked the confirmation process, hoping they would seize control of the Senate in the November elections, he said. Now it appears some are intent on stalling nominations until after the 2012 elections, when they hope to put one of their own back in the White House, he said.
So far, attorneys said they haven't seen lengthy delays in getting cases heard and resolved in South Florida. Chief U.S. District Judge Federico Moreno said the district is lucky because seven senior judges still handle some cases. Further, Hurley said, case filings have slowed, in part, because of the economy.
While he credits the 15 full-time judges with moving cases quickly, attorney Ted Babbitt says eventually something has to give.
"The average person is going to get hurt because they're going to have to wait to have their cases heard," he said.
In other news:
--Maybe trial lawyers should try this on game day.
--The sentencing fight over how much time former Judge Jack Camp should get is probation or a whopping 15 days.
Friday, March 04, 2011
"This appeal is about usurping the role of the jury in a criminal trial byrelying upon racial stereotypes."
That's how Judge Pryor started the opinion in United States v. Almanzar. Also on the panel was Judge Carnes and our very own Judge Seitz.
The rest of the opinion's intro:
The key question presented is whether there is sufficient evidence to support a jury verdict that Araceli Almanzar knowingly possessed with the intent to distribute 500 grams or more of methamphetamine. 21 U.S.C. § 841(a)(1), (b)(1)(A). The United States appeals the judgment of acquittal and conditional grant of a new trial entered in favor of Almanzar after a jury found her guilty of the charged offense. During a traffic stop of a truck loaded with 6,665 grams of methamphetamine in a hidden compartment, Almanzar exercised control over the truck and gave both written and verbal consent to its search, lied to a state trooper about the ownership of the truck and her acquisition of it, presented a phony bill of sale, and appeared to be so nervous as to be on the verge of a “panic attack,” with her hands shaking and her mouth dry. Almanzar later admitted that she had lied to the state trooper because her travel by bus from Dallas to Atlanta with her brother to retrieve the truck from two strangers was “suspicious.” She also admitted that she knew the truck contained “something we were not supposed to have.” Before the district court entered a judgment of acquittal, it stated that “life is different for a Hispanic woman in a male dominated culture, . . . the cultural expectations are different and that Hispanic women frequently, basically, do what their male family members ask them to do without asking lots of questions.” The United States argues that the evidence was sufficient to support the jury’s verdict and the district court applied the wrong standard of review, relied on speculation and impermissible stereotypes, considered information not in the record, and substituted its judgment for that of the jury. The United States also argues that the jury’s verdict was not a miscarriage of justice that would support the grant of a new trial. We agree with both arguments of the United States. We vacate in part, reverse in part, and remand with instructions to reinstate the jury’s verdict and conduct further proceedings consistent with this opinion.
Who got this one right -- the district judge or the 11th Circuit?
The rest of the opinion's intro:
The key question presented is whether there is sufficient evidence to support a jury verdict that Araceli Almanzar knowingly possessed with the intent to distribute 500 grams or more of methamphetamine. 21 U.S.C. § 841(a)(1), (b)(1)(A). The United States appeals the judgment of acquittal and conditional grant of a new trial entered in favor of Almanzar after a jury found her guilty of the charged offense. During a traffic stop of a truck loaded with 6,665 grams of methamphetamine in a hidden compartment, Almanzar exercised control over the truck and gave both written and verbal consent to its search, lied to a state trooper about the ownership of the truck and her acquisition of it, presented a phony bill of sale, and appeared to be so nervous as to be on the verge of a “panic attack,” with her hands shaking and her mouth dry. Almanzar later admitted that she had lied to the state trooper because her travel by bus from Dallas to Atlanta with her brother to retrieve the truck from two strangers was “suspicious.” She also admitted that she knew the truck contained “something we were not supposed to have.” Before the district court entered a judgment of acquittal, it stated that “life is different for a Hispanic woman in a male dominated culture, . . . the cultural expectations are different and that Hispanic women frequently, basically, do what their male family members ask them to do without asking lots of questions.” The United States argues that the evidence was sufficient to support the jury’s verdict and the district court applied the wrong standard of review, relied on speculation and impermissible stereotypes, considered information not in the record, and substituted its judgment for that of the jury. The United States also argues that the jury’s verdict was not a miscarriage of justice that would support the grant of a new trial. We agree with both arguments of the United States. We vacate in part, reverse in part, and remand with instructions to reinstate the jury’s verdict and conduct further proceedings consistent with this opinion.
Who got this one right -- the district judge or the 11th Circuit?
Trustee Marika Tolz charged with $16 million fraud
The South Florida Business Journal has the story about 64-year-old Hollywood bankruptcy trustee Marika Tolz here. She is charged with misappropriating $16 million in court funds and pocketing $2.4 million of it for herself.
The case is set for first appearance before Judge Garber today at 1:30. Luis Perez is prosecuting and Ben Kuehne is defending. The case is assigned to Judge Lenard. Tolz is charged by way of information so it is evident that a deal already has been struck. In fact the SFBJ is reporting that Ben Kuehne says that Tolz “acknowledges her errors and fully anticipates that all funds will be fully reimburse or restitution made.” More:
Kuehne confirmed that Tolz intends to plead guilty.
“She will be accepting full responsibility for her conduct,” he said.
I asked Kuehne if he could say why Tolz started down the path of corruption. The charges against her suggest she used official funds for person expenses beginning in 2003, but the government’s information in the case doesn’t accuse her of living a “lavish lifestyle,” like other recent fraud cases in South Florida.
“At this point offering any factual description would only be viewed as trying to explain away what happened,” Kuehne said. “She is not attempting to offer excuses.”
The case is set for first appearance before Judge Garber today at 1:30. Luis Perez is prosecuting and Ben Kuehne is defending. The case is assigned to Judge Lenard. Tolz is charged by way of information so it is evident that a deal already has been struck. In fact the SFBJ is reporting that Ben Kuehne says that Tolz “acknowledges her errors and fully anticipates that all funds will be fully reimburse or restitution made.” More:
Kuehne confirmed that Tolz intends to plead guilty.
“She will be accepting full responsibility for her conduct,” he said.
I asked Kuehne if he could say why Tolz started down the path of corruption. The charges against her suggest she used official funds for person expenses beginning in 2003, but the government’s information in the case doesn’t accuse her of living a “lavish lifestyle,” like other recent fraud cases in South Florida.
“At this point offering any factual description would only be viewed as trying to explain away what happened,” Kuehne said. “She is not attempting to offer excuses.”
Wednesday, March 02, 2011
Justice Alito doesn't like the First Amendment
He was the lone dissenter in the crush video case. And now he is the lone dissenter in the funeral protester case:
The Supreme Court ruled Wednesday that the First Amendment protects fundamentalist church members who mount anti-gay protests outside military funerals, despite the pain they cause grieving families.
The court voted 8-1 in favor of the Westboro Baptist Church of Topeka, Kan. The decision upheld an appeals court ruling that threw out a $5 million judgment to the father of a dead Marine who sued church members after they picketed his son's funeral.
Chief Justice John Roberts wrote the opinion for the court. Justice Samuel Alito dissented.
Roberts said free speech rights in the First Amendment shield the funeral protesters, noting that they obeyed police directions and were 1,000 feet from the church.
"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and - as it did here - inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker," Roberts said. "As a nation we have chosen a different course - to protect even hurtful speech on public issues to ensure that we do not stifle public debate."
Alito strongly disagreed. "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he said.
Maybe the title to the post is too harsh... Justice Alito did side with corporate First Amendment rights.
In other SCOTUS news, the Court again reiterated that judges weren't tied to the guidelines, even on resentencing cases. In Pepper v. United States, Justice Sotomayor explained that a resentencing court could take into account post-sentencing rehabilitation. Doug Berman has more at his blog, but it is worth pointing out that the Court made sure to reiterate to district courts that there are times that the guidelines are based on "wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted."
In other news, give your thoughts on Magistrate Judge Hopkins.
The Supreme Court ruled Wednesday that the First Amendment protects fundamentalist church members who mount anti-gay protests outside military funerals, despite the pain they cause grieving families.
The court voted 8-1 in favor of the Westboro Baptist Church of Topeka, Kan. The decision upheld an appeals court ruling that threw out a $5 million judgment to the father of a dead Marine who sued church members after they picketed his son's funeral.
Chief Justice John Roberts wrote the opinion for the court. Justice Samuel Alito dissented.
Roberts said free speech rights in the First Amendment shield the funeral protesters, noting that they obeyed police directions and were 1,000 feet from the church.
"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and - as it did here - inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker," Roberts said. "As a nation we have chosen a different course - to protect even hurtful speech on public issues to ensure that we do not stifle public debate."
Alito strongly disagreed. "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he said.
Maybe the title to the post is too harsh... Justice Alito did side with corporate First Amendment rights.
In other SCOTUS news, the Court again reiterated that judges weren't tied to the guidelines, even on resentencing cases. In Pepper v. United States, Justice Sotomayor explained that a resentencing court could take into account post-sentencing rehabilitation. Doug Berman has more at his blog, but it is worth pointing out that the Court made sure to reiterate to district courts that there are times that the guidelines are based on "wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted."
In other news, give your thoughts on Magistrate Judge Hopkins.
Cop/Mortgage fraud trial starts
The estimated 5 week trial is in front of Judge Cohn in Ft. Lauderdale. The Herald is covering it here:
The fraud trial of six law enforcement officers accused of helping to run a multi-million dollar home loan scam got underway Tuesday with opening statements in U.S. District Court in Fort Lauderdale.
According to federal indictments filed in July, John Velez, Daryl Radziwon, Casey Mittauer, Joseph DeRosa, all current or former Plantation Police officers, along with Lauderhill Police officer Joseph LeGrasta and FBI Special Agent Robert DePriest, of Plantation, fraudulently secured $16.5 million in mortgage loans in a house-flipping scheme during the housing boom several years ago.
The men are charged with offenses, ranging from conspiracy to mail and wire fraud, to obstruction of justice, and making false statements. All but the false statements charge carry penalties of up to 20 years imprisonment. The latter charge comes with as much as five years of prison time.
Is the case about greed or simple cops?
Federal prosecutors argued that the defendants were willing participants in the plan and had to have known Rodriguez and Gulla were forging documents in their names. Prosecutors also suggested the defendants were motivated by earnings they couldn’t achieve through real estate investments made with their own money and their own credit worthiness.
But defense attorneys opened their cases by arguing their clients were good cops and simple investors, too naive about the workings of fast-paced real estate financing to know their personal information was being used to defraud lenders.
Judge Cohn has to try the case twice:
At the conclusion of this trial, a second trial will start for Joseph Guaracino, his brother Dennis Guaracino, also a former Plantation Police officer, and attorneys Steve Orchard and Stephen Stoll, who allegedly helped seal the fraudulent deals by handling the loan closings.
Some of members of the fraud ring had to be tried separately because they have made incriminating statements about other defendants, and prosecutors believe those statements could tarnish possible convictions and bring about mistrials.
The fraud trial of six law enforcement officers accused of helping to run a multi-million dollar home loan scam got underway Tuesday with opening statements in U.S. District Court in Fort Lauderdale.
According to federal indictments filed in July, John Velez, Daryl Radziwon, Casey Mittauer, Joseph DeRosa, all current or former Plantation Police officers, along with Lauderhill Police officer Joseph LeGrasta and FBI Special Agent Robert DePriest, of Plantation, fraudulently secured $16.5 million in mortgage loans in a house-flipping scheme during the housing boom several years ago.
The men are charged with offenses, ranging from conspiracy to mail and wire fraud, to obstruction of justice, and making false statements. All but the false statements charge carry penalties of up to 20 years imprisonment. The latter charge comes with as much as five years of prison time.
Is the case about greed or simple cops?
Federal prosecutors argued that the defendants were willing participants in the plan and had to have known Rodriguez and Gulla were forging documents in their names. Prosecutors also suggested the defendants were motivated by earnings they couldn’t achieve through real estate investments made with their own money and their own credit worthiness.
But defense attorneys opened their cases by arguing their clients were good cops and simple investors, too naive about the workings of fast-paced real estate financing to know their personal information was being used to defraud lenders.
Judge Cohn has to try the case twice:
At the conclusion of this trial, a second trial will start for Joseph Guaracino, his brother Dennis Guaracino, also a former Plantation Police officer, and attorneys Steve Orchard and Stephen Stoll, who allegedly helped seal the fraudulent deals by handling the loan closings.
Some of members of the fraud ring had to be tried separately because they have made incriminating statements about other defendants, and prosecutors believe those statements could tarnish possible convictions and bring about mistrials.
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