Tuesday, September 15, 2015

“This case was stunningly weak.”

That was Federal Public Defender Michael Caruso about the case against his client Irfan Khan, which was dismissed before trial.  The New Yorker covers the entire case here in a very interesting read, called "The Imam's Curse."  The article starts with a description of how the feds really pumped up this dud of a case:
At dawn on May 14, 2011, more than two dozen federal agents and local police officers converged on a working-class neighborhood near the Miami airport and surrounded a small green-and-white stucco building—Masjid Miami, one of the city’s oldest mosques. Police sealed off a two-block radius, and F.B.I. agents, some armed with AR-15 rifles, assembled outside the door.
Inside, eight men were kneeling for the first prayer of the day. When agents called for them to open up, one of the worshippers, a former police officer, went out and asked them to wait until the prayer was finished. The agents complied, and then they arrested the mosque’s imam, Hafiz Khan, an émigré from a mountainous corner of Pakistan near the Afghan border. Khan was in his late seventies, an albino with thick glasses and a long colorless rush of beard. He had moved to America, with members of his family, in 1994, at the encouragement of a younger brother in Alabama. They became citizens, but Khan spoke no English and rarely left the mosque or a one-room apartment across the street, which he shared with his wife, Fatima. He was known to some of the locals as el viejito barbón—the old bearded man. Kids referred to him as the Santa Claus imam.
While the F.B.I. was arresting Khan, another team of federal agents and police assembled forty miles away, in the city of Margate. They surrounded Jamaat Al-Mu’mineen, a large mosque presided over by Hafiz’s youngest son, Izhar Khan. Izhar, who was twenty-four, was about to lead the morning prayer when agents in F.B.I. windbreakers confronted him in the parking lot. Izhar had moved to Florida when he was eight years old, and he spoke barely accented English. He wore a long dark beard, a black cotton robe, and a skullcap. The agents examined the computers in his office, and when they searched his cell phone they noticed that many of his text messages were about the Miami Heat and other teams.
Meanwhile, a third maneuver in the F.B.I.’s operation against the Khans was unfolding in Los Angeles, where it was 3 A.M. and Izhar’s brother Irfan, a thirty-seven-year-old software programmer, was asleep in his room at the Homestead Studio Suites, an inexpensive business hotel in El Segundo. Married, with two kids, Irfan was a sitcom buff who made hammy jokes about his waistline. (“This won’t be good for my diet!”) He lived in Miami and worked for American Unit, an I.T. company. For the past three months, he had been commuting every two weeks to an assignment in El Segundo. He was awakened by a phone call from the police, advising him to go to the door. He was handcuffed and led to a waiting car, past bomb-sniffing dogs and helmeted men in camouflage.
After the arrests, federal authorities announced that, in all, six people in Florida and abroad had been charged with funnelling tens of thousands of dollars into a conspiracy to “murder, kidnap, or maim persons overseas,” orchestrated by the Pakistani Taliban, an ally of Al Qaeda. The group was known for having trained Faisal Shahzad, a Pakistani-American who, in May, 2010, tried to set off a car bomb in Times Square. In 2012, Pakistani Taliban gunmen boarded a bus in northwest Pakistan and shot Malala Yousafzai, a fifteen-year-old schoolgirl who had called for the education of women.

The F.B.I. had been secretly tracking the Khans for at least a year, monitoring their finances and recording thousands of hours of conversation, in person and on the phone. Two other members of the family were also indicted—a daughter and a seventeen-year-old grandson, who live in Pakistan—along with a Pakistani shopkeeper, who had served as a middleman. In the indictment, they were accused of conspiring to buy guns, shelter the Taliban, and send students “to learn to kill Americans in Afghanistan.” The indictment described phone calls from Miami, in which the father “called for an attack on the Pakistani Assembly” and “called for the death of Pakistan’s President.” The U.S. Attorney Wifredo A. Ferrer told the Sun Sentinel that a list of cash transfers totalling fifty thousand dollars was “just the tip of the iceberg,” and declared, “We will be able to prove that there is more than fifty thousand dollars that went to the Taliban.” Each of the accused faced between forty-five and sixty years in prison.
While the feds do have some resources to fight cases like this, the State Public Defenders do not.  John Oliver does this amazing piece on how state PDs need more funding:

Monday, September 14, 2015

Federal courts are open today...

...while public schools and state court are closed.  I always thought that the feds should line up with the state on this issue and close because it's too hard on everyone with kids home and so on.

But if you are working today, check out the four on the short list for federal judge in the Middle District.

Or this NRP article on an NACDL report on federal indigent defense:
A tough new report has concluded that the federal government's system for defending poor people needs to change. The nearly two-year study by the National Association of Criminal Defense Lawyers said judges who are supposed to be neutral arbiters too often put their fingers on the scales.
The report said defense lawyers for the poor who work in the federal court system need more resources to do their jobs. That means money, not just for themselves, but to pay for experts and investigators.
"Having good, fully resourced defense counsel with access to ancillary services is an absolute must in a society that is arresting 14 million people a year," said Norman Reimer, executive director of the NACDL.
In an adversary system, lawyers for poor defendants say, they need to operate on equal footing with prosecutors. But the study, the first of its kind in more than 20 years, found the source of most concern rests with judges who exercise too much control over the process.
Bonnie Hoffman, a deputy public defender in Virginia, led the task force.
"There's some significant ways we feel the federal system is not measuring up — most importantly, in the area of independence," Hoffman said.
That's because judges are in charge. They have a role in selecting the defense lawyers for the poor clients who appear in court. They act as umpires during a plea hearing or a trial. And then those same judges approve or reject the defense lawyers' fee requests.
"It's a shame to think that somebody agrees to do this work, they do the work that they're asked to do ... to be a zealous advocate for somebody who's accused of a crime," Hoffman said, "and then when they finish that somebody can come back and say, 'I know you did good work ... but we don't feel like we should pay you for all the work that you did.' "
H/T: AB

Or, watch this for your moment of zen:

Thursday, September 10, 2015

Thursday News & Notes

1.  Tennis star James Blake not spared awful treatment by the police.  The police have apologized:
The New York Police Department commissioner apologized on Thursday for the mistaken arrest of James Blake, a retired top-10 professional tennis player, who said he was slammed to the ground outside his hotel in Midtown Manhattan.
The commissioner, William J. Bratton, said he wanted “to extend a personal apology’’ to Mr. Blake.
The officer who detained Mr. Blake, who is biracial, has been placed on desk duty. Mr. Bratton expressed concern about “the inappropriateness of the amount of force that was used during the arrest.”
An initial review of video evidence of the arrest, Mr. Bratton said, led him to believe that it may not have been appropriate.
Mr. Blake said he was slammed to the ground by a police officer outside his hotel on Wednesday and detained for 15 minutes after being mistaken for a suspect in an investigation of possible credit card fraud.

2.  DOJ has a sort-of new policy saying they will prosecute more individuals for white-collar fraud and that companies who want to avoid prosecution must snitch on their own employees.  Here's the NY Times story:
Stung by years of criticism that it has coddled Wall Street criminals, the Justice Department issued new policies on Wednesday that prioritize the prosecution of individual employees — not just their companies — and put pressure on corporations to turn over evidence against their executives.
The new rules, issued in a memo to federal prosecutors nationwide, are the first major policy announcement by Attorney General Loretta E. Lynch since she took office in April. The memo is a tacit acknowledgment of criticism that despite securing record fines from major corporations, the Justice Department under President Obama has punished few executives involved in the housing crisis, the financial meltdown and corporate scandals.
“Corporations can only commit crimes through flesh-and-blood people,” Sally Q. Yates, the deputy attorney general and the author of the memo, said in an interview on Wednesday. “It’s only fair that the people who are responsible for committing those crimes be held accountable. The public needs to have confidence that there is one system of justice and it applies equally regardless of whether that crime occurs on a street corner or in a boardroom.”

 3.  Football season is here!  Will the Fins finally make the playoffs? 

4.  The Hispanic National Bar Association will be having its 4th annual Anti-Human Trafficking Conference at St. Thomas University School of Law on Friday 9/18 at 9am.  RSVO to Elba Lumbi at elumbi@immigrationmiami.com

Wednesday, September 09, 2015

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.

Tuesday, September 08, 2015

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.

Thursday, September 03, 2015

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.


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."


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.

Tuesday, September 01, 2015

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!