Ed Carnes concurs with Ed Carnes

This morning Chief Judge Carnes issued this opinion.  He also concurred with his own majority opinion.

His majority opinion starts this way (with a reference to Downton Abbey: Season 3, Episode 6, see *):

It may be, as the Downton Dowager bemoaned, that “[l]ie is so unmusical a word,”* but it strikes the right note for some of the statements that Dr. Patricia Lynn Hough made in her tax returns. So does 26 U.S.C. § 7206(1), which provides a penalty of imprisonment for a person who willfully files a return “which [she] does not believe to be true and correct as to every material matter.” That is one of the statutes that Hough was convicted of violating. The other is 18 U.S.C. § 371, which prohibits conspiring to defraud an agency of the United States, including the IRS. This is her appeal of those convictions and her sentence.

And below is the opening salvo from his concurrence regarding what a prosecutor can ask character witnesses.  There is a long line of cases in the 11th Circuit holding that a prosecutor cannot assume guilt in asking a character witness whether that would change the witness' opinion of the defendant.  The majority found that violation harmless in this case, but Carnes decided to concur to express his displeasure with this line of cases:

 Not surprisingly, as the author of the Court’s opinion I concur in all of it. I write separately to offer my view about our decisions in Guzman and Candelaria-Gonzalez insofar as they hold that a prosecutor cannot cross-examine the defense’s opinion or reputation character witnesses by asking whether their testimony would change if the defendant had committed the crimes with which she is charged. See United States v. Guzman, 167 F.3d 1350, 1351–52 (11th Cir. 1999); United States v. Candelaria-Gonzalez, 547 F.2d 291, 293–95 (5th Cir. 1977). We are bound to follow prior panel precedent even if we disagree with it, but we are not bound to remain silent about whether it is wrong. And the central holding of Guzman and Candelaria-Gonzalez is wrong.

Candelaria-Gonzalez first announced the erroneous holding in a case involving the cross-examination of defense witnesses who gave testimony about the defendant’s good reputation in the community, 547 F.2d at 293–95, and Guzman extended the holding to cross-examination of witnesses who gave opinion testimony about the defendant’s good character, 167 F.3d at 1351–52. The reason given for the holding was that “[t]hese hypothetical questions [strike] at the very heart of the presumption of innocence which is fundamental to Anglo-Saxon concepts of fair trial.” Candelaria-Gonzalez, 547 F.2d at 294; see Guzman, 167 F.3d at 1352. No they don’t.

Judge Carnes ends his concurrence with a strong defense on cross-examination:

Regardless of how the witness answers the question, it is a proper one on cross-examination because it helps the jury get at the truth. Cross-examination, as Professor Wigmore stated, is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 John Henry Wigmore, Evidence in Trials at Common Law § 1367, at 32 (Chadbourn rev. 1974). That engine for the discovery of truth should be allowed to run at full speed and not be choked to a halt by misunderstandings about conditional questions and answers or by facile references to “Anglo-Saxon concepts of fair trial.” Candelaria-Gonzalez, 547 F.2d at 294. As Thomas Paine observed, “such is the irresistible nature of truth, that all it asks, and all it wants, is the liberty of appearing.” Thomas Paine, Rights of Man 151 (Everyman’s Library ed. 1958) (1791). We ought to do what we can to give truth the liberty of appearing in a trial.

Ellisa Martinez's case reheard

The 11th Circuit had rehearing on Ellisa Martinez's case in light of the Supreme Court's decision in Elonis.  And this is what happened:

This case is before this Court for further consideration in light of Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001 (2015). We previously affirmed Ellisa Martinez’s conviction under 18 U.S.C. § 875(c) for knowingly transmitting a threatening communication. United States v. Martinez, 736 F.3d 981 (11th Cir. 2013). The Supreme Court vacated the opinion and remanded the case to us for consideration in light of Elonis. See Martinez v. United States, 135 S. Ct. 2798 (2015).
In Elonis, the Supreme Court reversed and remanded the defendant’s conviction under § 875(c), holding a jury instruction providing “that the Government need prove only that a reasonable person would regard [the defendant’s] communications as threats” was error. 135 S. Ct. at 2012. The Court determined that “[h]aving liability turn on whether a ‘reasonable person’ regards the communication as a threat—regardless of what the defendant thinks”—is insufficient for a conviction under § 875(c). Id. at 2011. The Court cited “the basic principle that wrongdoing must be conscious to be criminal,” id. at 2009, and held that “what [the defendant] thinks does matter,” id. at 2011. While the Supreme Court declined to answer the question of the exact mental state required by a defendant, it held negligence is not enough to support a conviction under § 875(c). Id. at 2013.
...

Based on the Supreme Court’s holding in Elonis, Martinez’s indictment is insufficient as it fails to allege an essential element of § 875(c). An indictment must set forth the essential elements of the offense. United States v. Fern, 155 F.3d 1318, 1324-25 (11th Cir. 1998). This rule serves the purposes of (1) informing the defendant of the nature and cause of the accusation, as required by the Sixth Amendment; and (2) ensuring a grand jury found probable cause to support all the necessary elements of the crime, as required by the Fifth Amendment. Id. at 1325. The indictment fails to allege Martinez’s mens rea or facts from which her intent can be inferred, with regard to the threatening nature of her e-mail. It alleges only that a reasonable person would regard Martinez’s communication as a threat. Martinez’s indictment does not meet the Fifth Amendment requirement that the grand jury find probable cause for each of the elements of a violation of § 875(c).
In light of the Supreme Court’s holding in Elonis, our holdings in Martinez and Alaboud are overruled. Martinez’s conviction and sentence are vacated, and we remand this case to the district court with instructions to dismiss Martinez’s indictment without prejudice.
VACATED AND REMANDED.

Former AUSA Michael Garofola (and Bachelorette contestant!) back in the news

S.F. Lawyers beat me to it. 

Earlier this year, Garofola, a former Davis Polk & Wardwell associate and federal prosecutor, took a break from his job as general counsel for Trans Pacific Polymers and Gulf Energy and Chemical Company to appear on "Bachelor in Paradise," a spinoff series of the reality TV hit "The Bachelorette." In 2013, he took an even longer break from the U.S. attorney’s office in Miami to appear on a season of the original show featuring fashion designer Desiree Hartsock.

Garofola was eliminated from "The Bachelorette" in the seventh episode, when Hartsock passed him over for other suitors. His run on "Paradise" ended just two weeks ago, when he was edged out by other contestants vying for the attentions of Tenley Molzahn. ("She's just not that into [I.Q.],” Garofola tweeted to his nearly 16,000 followers.)

If Garofola is smarting from the rejection, he doesn’t let on. “I’m proud of all of my decisions,” he said in an interview after the show. “They’ve all been net positive, and I really wouldn’t change a thing.” And he has no patience for those who would question the choice to flaunt the search for love.
Lawyers enjoy reality shows as much as everyone else, Garofola said. But among reality TV’s critics, they’re “the most hypercritical and judgmental group.”

"I don’t fit that mold,” said Garofola, insisting that he’s always embraced risk. His biggest fear, he said, is having regrets.

PB Post live tweeting federal trial in WPB (UPDATED)

Joe Zada is waiting for a verdict in West Palm Beach. Big fraud case with lots of shenanigans.  The Palm Beach Post live tweeted closing arguments here.  And here's a nice summary from the online paper:

Joseph Zada didn’t show the best judgment when he used other people’s money to buy jewelry, sports cars and palatial homes in Wellington and Michigan, where he threw lavish parties featuring acrobats swinging from trapezes and performing stunts rivaling Cirque du Soleil, his attorney told a federal jury on Tuesday.
In fact, attorney Richard Lubin said, it was downright dumb.

Joseph Zada (right) heads into federal court with his attorney Richard Lubin on July 27, 2015, as jury selection began in his fraud trial. Claiming he was the illegitimate son of an oil-rich oil sheik, Zada claimed he would inherit $600 million as a result of the unidentified Saudia Arabian’s death, SEC lawyers claimed in a complaint they used to get a $121.6 million judgment against Zada last year. (Lannis Waters / The Palm Beach Post)

But, he told jurors on the final day of Zada’s month-long fraud trial, the former Wellington high-flier fully intended to repay those who gave him as much as $55 million. Once he received a more than $250 million inheritance from an overseas businessman, everyone would be made whole, he said.
“He put the cart before the horse,” Lubin said of Zada’s decision to take millions from people before he had the inheritance check in hand.
“There’s no question Joe Zada spent the money before he had it,” Lubin said. “He was so convinced he was going to get this huge amount of money that he spent it before he had it. … It’s not a smart thing to do, but it’s not a crime."

Former NHL player Sergei Fedorov leaves the Federal Courthouse after testifying Aug. 20, 2015, in the fraud trial of Joseph Zada, a former Wellington big shot who is accused of bilking dozens of investors out of millions. Fedorov, who played for the Detroit Red Wings, got a $60 million judgment against Zada for squandering $40 million he gave his onetime friend to invest. (Lannis Waters / The Palm Beach Post)

Federal prosecutors, who are asking jurors to convict the 57-year-old of 15 counts of mail fraud and three counts of bank fraud when they begin deliberations today, scoffed at the notion that Zada made an innocent mistake.
Since the late 1990s, Zada has been duping people into believing that he was a wildly successful businessman who had befriended a variety of preposterously rich men, who left him their fortunes when they died, federal prosecutors said.
First, he claimed he got a windfall from a man who died from AIDS, said Assistant U.S. Attorney Adrienne Rabinowitz. Then, it was a enormous check from his oil-rich Lebanese father, who felt guilty about abandoning his family after they moved to the U.S. Later, he told people he was inheriting money from a man named Wolfgang, a member of a secret committee in London that had access to global investment opportunities. In another twist, he said he was waiting for a $1.5 billion check from the estate of a Saudi oil sheik.
Rabinowitz blasted claims by Lubin that bankers, lawyers and accountants had verified that foreign banks were processing a multi-million-dollar inheritance for Zada.
“The evidence is overwhelming that the defendant isn’t getting an inheritance,” she said. “They’re lies.”

UPDATE -- Zada was found guilty this morning and remanded into custody.

SCOTUS: Bond for ex-Governor

I've never seen the Supreme Court do this before, but it granted bond for former Virginia Governor Robert McDonnell yesterday in this order.  From the Richmond Times-Disptach:

In a surprise to some observers, the U.S. Supreme Court on Monday allowed former Gov. Bob McDonnell to remain free while the justices decide whether to take up his appeal.
In a one-paragraph order, the high court told the 4th U.S. Circuit Court of Appeals to hold off on making its July 10 ruling upholding McDonnell’s 11 corruption convictions final, permitting McDonnell to remain on bond.
Should the justices not take the case, the stay ordered on Monday will end automatically. If the court takes the case, the stay will continue, the court ordered.
“Wow,” said Randall Eliason, former chief of the Public Corruption/Government Fraud Section at the U.S. Attorney’s Office in Washington. “It suggests there is some level of interest at the Supreme Court in reviewing the case, even though not a single appellate judge in the 4th Circuit agreed with his arguments.”
Henry Asbill, one of McDonnell’s lawyers, said, “We’re very grateful for this order and we’re gratified that the justices recognize that this case raises substantial and important legal questions and we look forward to a full merits briefing.”

Lower courts should take a cue from the High Court that appellate bonds are okay!