Celebrate -- pots and pans edition!

Government files two responses to Dore Louis' NSA motion

One is classified and one is public.

 Here's the public one, which was posted by Paula McMahon from the Sun-Sentinel.

She writes:

Federal prosecutors filed two versions of their response in federal court in Fort Lauderdale late Wednesday. The unclassified, publicly filed version was 21 pages long and included several lines that stated "CLASSIFIED INFORMATION REDACTED."
Prosecutors filed a longer, classified version of their response with supporting information under seal with U.S. District Judge Robin Rosenbaum — so even the defense attorneys cannot see it — saying the judge would need additional information to make her ruling.
Prosecutors claimed in court records that the secretive NSA program did not capture "information about where a cellular telephone was geographically located at the time a call was made."
"Thus, the government does not possess the records the defendant seeks," they wrote.
The defense will have an opportunity to respond before the judge issues her ruling, which the prosecution asked should be sealed if it contains any classified information.

If the government does not have the data, then so be it.  But 20 pages seems like a lot of words to say we don't have it.  I found the argument heading on page 17 interesting: "Neither Brady nor Rule 16 permit the defendant to conduct a fishing expedition of highly classified NSA Data." 

Government responds to Dore Louis' motion for NSA records

Last week, the blog broke the story of Dore Louis' motion seeking NSA phone records, and Judge Rosenbaum's order requiring the government to respond.  The story got a lot of attention, which was pretty neat.

The government filed a short motion this morning, asking the Court to appoint a CIPA (Classified Information Security Officer) to watch over the classified information that it will be disclosing to the defense and the Court in its response.  Here's a link to the government's motion, which is unopposed. And here is the most interesting part of it:

As a result of the filing of Brown’s Motion to Compel Production (DE:778) and CIPA Section 5 Notice (DE:779), the government’s response will require the discussion of classified material. Pursuant to the Classified Information Procedures Act (“CIPA”), 18 U.S.C. App. 3, and Section 2 of the Security Procedures established under Pub. L. 96-456, 94 Stat. 2025 by the Chief Justice of the United States and promulgated pursuant to Section 9 of CIPA the Court shall designate a CISO in any proceeding in a criminal case in which classified information is reasonably expected to be within.
 To assist the Court and court personnel in handling any motions, pleadings and implementing any orders relating to the CIPA proceedings, the government requests that the Court designate Daniel O. Hartenstein as the CISO for this case, to perform the duties and responsibilities prescribed for CISO’s in the Security Procedures promulgated by the Chief Justice.

All of this means that the government's response is likely to be deemed classified, so the public will not get a chance to see it.  What a shame...

Justice Kagan dials Jenny at 867-5309

Gotta love this -- Justice Kagan cited the famous 1982 Tommy Tutone song in American Trucking Association v. City of Los Angeles:

Under th[e] contract, a company may transport cargo at the Port in exchange for complying with various requirements. The two directly at issue here compel the company to (1) affix a placard on each truck with a phone number for reporting environmental or safety concerns (You’ve seen the type: ‘How am I driving? 213–867–5309‘) and (2) submit a plan listing off-street parking locations for each truck when not in service.

Lots of big decisions coming out this week, and SCOTUSBlog has all of the action. Unless there is some big SDFLA news, there will be very little blogging this week...

Meantime, you can listen to the classic 8675309/Jenny right here.

Supreme Court reverses 11th in Davila v. United States

Apropos of the previous post dealing with the 11th Circuit, the Supreme Court decided Davila today, 9-0:

This case concerns Rule 11 of the Federal Rules of Crim- inal Procedure, which governs guilty pleas. Two provi- sions of that rule are key here. The first, Rule 11(c)(1), instructs that “[t]he court must not participate in [plea] discussions.” The second, Rule 11(h), states: “A variance from the requirements of th[e] rule is harmless error if it does not affect substantial rights.” Rule 52(a), which covers trial court errors generally, similarly prescribes: “Any error . . . that does not affect substantial rights must be disregarded.”
Anthony Davila, respondent here, entered a guilty plea to conspiracy to defraud the United States by filing false income tax returns. He maintains that he did so because a U. S. Magistrate Judge, at a pre-plea in camera hearing and in flagrant violation of Rule 11(c)(1), told him his best course, given the strength of the Government’s case, was to plead guilty. Three months later, Davila entered a plea on advice of counsel. The hearing on Davila’s plea, con- ducted by a U. S. District Judge, complied in all respects with Rule 11.
The question presented is whether, as the Court of Appeals for the Eleventh Circuit held, the violation of Rule 11(c)(1) by the Magistrate Judge warranted automatic vacatur of Davila’s guilty plea. We hold that Rule 11(h) controls. Under the inquiry that Rule instructs, vacatur of the plea is not in order if the record shows no prejudice to Davila’s decision to plead guilty.