Still North of the Border

I'm still in trial and plan on catching up this weekend with SDFLA news. In the meantime, I did notice that the en banc 11th Circuit affirmed Judge Lenard in the Cuban Spy case (USA v. Ruben Campa), in which a panel of the 11th Circuit originally reversed on venue grounds. The original panel (Judges Birch and Kravitch) dissented. And the en banc court remanded to the panel to consider the other issues raised on the appeal. I haven't had a chance to read the opinions which run over 120 pages, but when I do this weekend, I'll post some thoughts. If any of you have read it, please post your comments.

A stranger in a strange land...

Sorry for the slow blogging... I'm in trial in Broward State Court (or as Rumpole would say: North of the Border). Here's an article about the trial if you are interested.

Big news in federal court -- drum roll please -- attorneys are now permitted to bring camera phones into the courthouse. I commend Chief Judge Zloch for amending the old rule prohibiting such phones. Pictures, of coures, are still prohibited..

Congrats to U.S. Attorney Alex Acosta

... who was confirmed today by the Senate.

We wish him, a rumored reader of the blog, all the best.

J. Middlebrooks rules against Sharapova in documentary suit

The AP reports: "A federal judge ruled Wednesday against tennis star Maria Sharapova, saying a Florida production company was entitled to market a documentary on the athlete despite her agents' attempts to halt distribution.U.S. District Judge Donald Middlebrooks said Byzantium Productions Inc. was lawful in its production of two films, 'Anna's Army' and `Russian Women's Tennis.' The documentaries did not violate trademark laws, the judge found."

Padilla trial continued...

... until January 22, 2007. "No further continuances will be granted," according to Judge Marcia Cooke. Here's the AP report.

To be noticed or not to be noticed - that is the question

by Marc David Seitles
For anyone who was wondering whether a defendant and his counsel had to be notified if the district court was going to grant a variance above the advisory guidelines range - the answer is no. Today, in US v. Irizzary, No. 05-11718 (11th Cir. Aug. 1, 2006), the Eleventh Circuit held that "the district court was not required to give Defendant advance notice before imposing a sentence above the advisory guidelines range based on the court's determination that sentences within the advisory guidelines range did not adequately address section 3553(a) sentencing factors."

On a sidenote, who created the term "variance"? A district court shall impose a sentence sufficent but not greater than necessary after considering all the factors set forth 18 USC 3553(a) - and that's it. The sentencing court renders its decision after considering the required statuory language. Therefore, should any decision post Booker truly be called a "variance"? Thoughts?

Judge William Thomas

Former Federal Defender and current State Circuit Judge William Thomas issued a big ruling today in a highly publicized murder case. Rumpole has the scoop here. (And to avoid any confusion, that's not me who was quoted in the article. That's another lawyer with the same first and last name -- different middle names.) UPDATE -- here's Judge Thomas' Order. Worth a read.

Sentencing in Federal Land...

I typically try to keep this blog neutral and use it as a way to keep up on the exciting cases in this District. But following up on Marc's post below, I think there should be a lot more discussion about sentencing for federal offenses. The leading blog on sentencing is Sentencing Law and Policy by Douglas Berman, which is doing a great job highlighting many of these issues.

I really believe that if more regular people knew about how sentencing really occurs, they would be horrified. Marc highlights the acquitted conduct issue which is baffling to me (the actual 11th Circuit opinion which he references can be read here, and Judge Barkett's concurrence -- blasting the idea of using acquitted conduct at sentencing -- is definitely worth a read; here is Berman's take on this issue). Under the current state of the law, if you are charged with being a felon in possession of a firearm and murder, and a jury finds you not guilty of the murder and guilty of the felon in possession, then a sentencing judge could still sentence you as though you committed the murder. I'm not kidding.

There are many, many other troubling sentencing issues. Here's a few:

• Why should crack offenders get sentenced on a 100-1 ratio to cocaine users?
• Why are probation officers allowed to interpret the law and then advise judges of their opinions in an ex parte manner?
• Why doesn't the Confrontation Clause apply with the same force at sentencing and trial?
• Why does the preponderance standard apply at sentencing when at trial the standard is beyond a reasonable doubt?
• Why don't the rules of evidence apply at sentencing?

And the Southern District just saw one of the worst sentencing problems (as serious as using acquitted conduct) -- punishing someone for exercising his right to a jury trial. One of our judges just sentenced Eduardo A. Masferrer to 30 years in prison on a white-collar offense. Thirty *years*! Thirty years ago I was three. In thirty years, Masferrer will be long gone. His co-defendants, who pleaded guilty, were sentenced to 28 months a piece. Ellen Podgor touches on the issue of being punished for proceeding to trial here.

The reason for the huge disparity between trial and plea is in part because some judges, after trial, hit the defendant with all of the guideline adjustments and enhancements possible whereas if there is a plea, both the prosecutor, probation officer, and judge are willing to negotiate those adjustments and enhancements away. This is especially evident in white collar cases like Masferrer's. It is even more true in weaker cases. In weaker cases, the prosecution really wants to bargain for lower sentences (so as not to lose at trial), increasing the risks of testing the government's case at a trial.

It's for this reason -- the enormous risks to defendants -- that trial numbers are way way down, especially in white-collar cases. The solution? I'm not sure. I suspect that our big sentencing changes (i.e. Apprendi/Blakely/Booker) aren't finished (and I'm sure that the Supreme Court will revisit the acquitted conduct issue)... But I never count on those sorts of changes. So my personal decision may sound a bit strange, but I think we (both sides) should just try more and more cases.

Anyway, enough for my Sunday rant. Back to the regular business of the blog....

Aquitted Conduct

by: Marc David Seitles
In United States v. Faust, the Eleventh Circuit did not find a constitutional problem with enhancing a sentence based on acquitted conduct. While the Eleventh Circuit is not the only circuit to hold the same, it does seem to run contrary to the whole point of why we have trials in the first place. Indeed, I would bet that if you asked 100 people (non lawyers!) whether they could be sentenced for conduct where a jury concluded that he/she was "not guilty," 99 of those folk would say "no way, that's impossible." What do you think?

Notice of Appeal

A funny notice of appeal is making the rounds...

News and notes

Quick notes:

1. The National Association of Criminal Defense Lawyers is having their annual meeting here in Miami Beach. It started tonight and it goes through Saturday. The focus is on cross-examination. Tomorrow, legendary defense lawyer Larry Pozner is lecturing. On Friday, we tap the local talent: Albert Kreiger and Jeff Weiner.

2. The Miami 7 "terror" defendants were in Court today before Judge Lenard for the first time. She set trial for March 2007, with discovery to be exchanged by this fall. She also told the parties not to leak to the press.

3. Magistrate Judge Ted Klein's cases have been reassigned temporarily to Judge Torres. The order can be found here on the court's website. Judge Klein is in all of our thoughts.

"Vamos a Cuba" back on school shelves

Judge Alan Gold in an 89-page order said the School Board in banning 24 books "abused its discretion in a manner that violated the transcendent imperatives of the First Amendment.'' Here's the Herald article. And here's Matthew Pinzur's blog post covering the story and a teacher's take before the opinion came out.

Padilla lawyers home...

... according to this DBR article:

"Three defense attorneys in a Miami terrorism case who were trapped in war-torn Beirut while interviewing witnesses got tired of waiting for the U.S. Marines to evacuate them. So they hitched a ride on a Norwegian freighter. The attorneys — Orlando do Campo of the federal public defender’s office in Miami, Andrew Patel of New York City and William Swor of Detroit — along with an Arabic-speaking interpreter they hired arrived in Cyprus last Wednesday and caught flights home the next day."

"Ally of ringleader in Liberty City terrorist plot stalled group's plans"

I missed Vanessa Blum's article yesterday about the Miami 7 terror case with the headline above. Here's the intriguing intro to the article:

The arrival in South Florida of a Chicago man linked to the ringleader of a group accused of plotting to blow up the Sears Tower in Chicago and the FBI building in Miami spoiled the FBI's plans to follow the group longer, according to investigative records.Narseal Batiste, charged with conspiracy to support terrorism and wage war on the United States, summoned his spiritual leader, Sultan Khanbey, to South Florida in early April. His visit occurred just as the FBI prepared to introduce an undercover informant posing as an explosives expert from Europe.At the time, a separate FBI informant posing as an al-Qaida agent already had infiltrated the group and asked Batiste and his followers to participate in a fictional al-Qaida plot to bomb FBI buildings in five cities. Instead of accelerating those plans, Khanbey's arrival led to infighting that disbanded the group before the FBI could gather additional evidence about their willingness to carry out an attack.

What is it good for?

The DBR's Julie Kay reports today on 3 defense lawyers who were trapped in Lebanon. (UPDATE -- THE DBR HAS MADE THE ARTICLE PUBLICLY AVAILABLE HERE). Here's the intro:

Three defense attorneys in a Miami terrorism case who were trapped in Beirut by the conflict between Israel and Lebanon have been evacuated safely to Cyprus.Miami Assistant Federal Public Defender Orlando do Campo and two private lawyers, William Swor of Detroit and Andrew Patel of New York, traveled to Lebanon about three weeks ago. They were there to do research and take depositions in preparation for the scheduled federal trial in September of accused dirty bomber Jose Padilla and four other defendants before U.S. District Judge Marcia Cooke.The lawyers were stuck at a Beirut hotel, according to Swor’s secretary. They had departed for Beirut on July 2 and were supposed to return on July 14. But war broke out July 12 when Israel began its campaign to recover two kidnapped Israeli soldiers. Israel bombed the airport, trapping the lawyers and thousands of other Americans and Europeans in Lebanon.The lawyers had no choice but to stay on at the hotel while the U.S. and other governments made plans to evacuate their citizens.While he was trapped at the hotel, Swor sent daily e-mail updates to a list of colleagues from his laptop computer. A local lawyer who was on the e-mail list described some of Swor’s dispatches.“Day 1: We’re sipping piña coladas by the pool. The staff is wonderful.Day 2: We’ve moved into one room. The French got out. This is like Hurricane Katrina all over again — Bush can’t seem to coordinate these things.”At one point, Swor was at a local church while a priest was praying and a bomb went off nearby. The priest didn’t pause, he just prayed faster, Swor reported.Do Campo and Patel represent Padilla. Swor represents Kifah Jayyousi. Padilla, Jayyousi and Adham Hassoun — along with two co-defendants who are in the Middle East and will be tried in absentia — are charged with conspiring to commit terrorism and funding terrorist groups in Bosnia and the Middle East. All have pleaded not guilty.The three attorneys were rescued Wednesday and put on a cruise ship chartered for the rescue effort. They were taken to nearby Cyprus. From there they are expected to fly back to the United States.Sources said the three men may have been rescued by the Swedish government, along with a group of Swedes who also were trapped at the hotel.

The Hokey Pokey

More wet-foot/dry-foot stuff going on in Miami re the 28 migrants who were attempting to get to the United States. Remember that last week the U.S. charged 3 people with smuggling. At their initial hearing, Assistant Federal Defender Bill Barzee asked that the 28 migrants be kept here as witnesses. The judge said yes. But the U.S. had a problem -- if they brought the Cuban migrants ashore, then they got to stay. So the government kept them on a boat a couple feet out... Today, that changed. According to the AP story:

In an unusual move, 28 Cuban migrants were brought to U.S. soil so they can serve as witnesses in a criminal case against the men accused of organizing their deadly smuggling voyage. The decision announced Thursday also means the migrants can stay permanently in the United States.

U.S. Attorney R. Alexander Acosta said the "unique circumstances" of the case led prosecutors to bring the group ashore under material witness warrants, which could require them to testify before a grand jury or in a trial.

"Smugglers often treat migrants as if they were human cargo," Acosta said. "This must stop."
The 28 migrants were brought to Key West early Wednesday after being detained aboard a Coast Guard cutter at sea since the July 8 chase, which resulted in the death of one Cuban woman. They were transferred to U.S. Customs and Border Protection officials and brought to Miami early Thursday, officials said.

U.S. Magistrate Judge Lurana Snow agreed Thursday to allow all the Cuban migrants in U.S. custody to be released to their relatives in Miami under the guarantee that the families will pay $25,000 per person, if they do not appear in court when necessary.

Judge Robert Pineiro on sentencing

Judge Robert Pineiro (or someone pretending to be him) posted the following provocative comment on Rumpole's blog. It's very long for a post, but I think it's worth reprinting (reblogging?) in full. Please feel free to comment on this post. Here it is (hat tip to Marc Seitles):

Judge Roberto M. Pineiro said...
Horace,You have posed some very interesting questions.In response I offer the attached excerpts from a speach I gave some years ago at FIU.Please, excuse my verbosity. You have accused "robed ones" of loving to pontificate so surely, this diatribe must be to your liking as proof positive of your allegations."In order to impose an appropriate and just sentence the judge must factor in the nature of the crime and the nature of individual who has been found guilty of that crime. When I first stated my legal career as an Assistant Dade County State Attorney, 25 years ago, during the dark ages, a judge had full discretion to impose whatever sentence she felt appropriate; the only limitation was the statutory maximum penalty. This gave the judge an opportunity to hand tailor what she thought would be the best sentence for a particular crime and for a particular defendant. The judge would be free to give whatever weight she felt various factors warranted. Without hindrance she could analyze various considerations such as:1.the severity of the crime2.the severity of the injury to the victim3.the injury caused to society by the defendant’s actions4.all the relevant circumstances of the crime 5.the convicts criminal record or lack thereof and his entire past history6.the victim’s need for restitution7.the possibility of rehabilitation8.the possible need to send a message to the community9.a host of other variablesThe law gave the judge full discretion free of any limitation in all cases but one–first degree murder. That crime had a penalty of life in prison with a minimum mandatory sentence of 25 years state prison. This meant that, regardless of any other consideration, the most lenient sentence a person convicted of this crime could receive was twenty-five years in state prison. A spouse who kills his partner to collect an insurance claim would face the same penalty as a spouse who pulls the plug on a terminally ill and suffering partner. In 1977 this was the only minimum mandatory sentence, or “min-man” in legal parlance, on the books.While a judge enjoyed great freedom to fashion the best possible sentence in his estimation this free wheeling discretion led to great disparity of sentences for similar crimes throughout the state. Judges were, in no way, required to try to give similar penalties for similar crimes. There could be great differences in sentencing policies between courtrooms just a few feet apart from each other not to mention differences between cities such as Miami or Tallahassee. In order to promote more uniform sentencing across the state and across the hallway for similar crimes, a laudable goal, the legislature in the early 1980's created sentencing guidelines–thereby bringing mathematics into the art and science of judging. Crimes were categorized by their severity and were given a certain number of points–the higher the number the more severe the crime. Points were also assessed for other factors such as: victim injury, prior convictions, legal restriction at the time of the offense, such as probation, and any additional offenses. All the defendant’s points were then totaled up on a score sheet and the defendant’s guideline sentencing range was computed. Lawyers, many of whom came to the law because they hated the math required for medical school, were shocked to discover they had to learn how to use a calculator. I still don’t know how to use one. That’s why I became a judge; I force the lawyers to use them for me. By law, these guidelines are mandatory and the court must not deviate upwards or downwards absent some very precise and codified circumstances.The sentencing guidelines did provide for more uniformity while allowing the court discretion to sentence within the sentencing range and to determine if any special circumstances exited for mitigation or aggravation of the sentence. The guidelines allowed judges a way of fashioning a sentence for similar crimes in line with other courtrooms around the state. Thus, defendants were treated more equally. The guidelines fashioned a good balance between allowing a judge full discretion to impose a punishment for one certain individual and providing for equal treatment of particular crimes across the state. The guidelines were so successful that the legislature decided that even more uniformity was in order. They felt that certain crimes were so serious that minimum-mandatories or min-mans should be imposed. In the mid eighties in our country and, more particularly, in our state the “cocaine cowboys” were in full cattle drive mode. Substitute coke and other killer drugs for the cows. Our state was drowning in a deluge of illegal and lethal drugs. The drug trafficking also fostered a bloodbath of drug related murders. The Medical Examiners office had to rent a refrigerated Burger King truck to house the overflow stiffs. Drastic measures were needed to stem the tide. The legislature turned to minimum mandatory statutes; keep the drug dealers in prison for a time certain and, at least, that one charming fellow would be out action for a while. One less criminal for law abiding citizens to worry about. Starting with the one min-man statute on the books in 1977 min-mans have proliferated amazingly since the mid 80's; it’s like bunnies high on viagra. We now have dozens of min-man statutes. They include:1.Possession of more than 25 lbs. of marijuana–3 years min-man2.Possession of more than 2,000 lbs. of marijuana–7 years min-man3.Possession of more that 10,000 lbs. of marijuana–15 years min-man4.Possession of more than 28 grams of cocaine–3 years min-man5.Possession of more than 200 grams of cocaine–7 years min-man6.Possession of more than 400 grams of cocaine–15 years min-man7.Possession of more than 150 kilos of cocaine–Life min-manThere are also min-mans for possession of other drugs. The preceding list is just some examples. The court has no discretion, whatsoever, to impose a lesser sentence. The mid level coke dealer in possession of 199 grams of cocaine faces the same min-man as the mule who swallows balloons filled with 29 grams of cocaine. This is where the persuasion and mediation and the uncommon sense of judging comes in–trying to help convince the prosecution that, perhaps, the equities of a particular case or defendant require a more lenient resolution and convincing the defendant that, if found guilty, the prosecution is in the driver’s seat, so it may be in his best interests to cut his loses and take the state’s plea offer.Interestingly enough, while denying the judge, the elected official ultimately responsible to the electorate, the discretion for leniency the legislature gifted it to the State Attorney’s Office. In actuality, a prosecutor just a few years out of law school is in control of the min-man sentence, as opposed to a veteran jurist with decades of experience and with well earned grey hairs. How does the prosecution exercise it’s discretion to waive the minimum mandatory sentence? By law, the prosecution may waive the min-man if the defendant provides “substantial assistance in the identification, arrest, or conviction of any of that person’s accomplices, accessories, co-conspirators or principals or of any other person engaged in trafficking in controlled substances”. Substantial assistance can, in the first place, be provided by, in effect, ratting out your running buddies; your partners in crime. Well and good, you turn in other criminals who have already committed a crime. Certainly, this is of great benefit to society–some more bad guys off the street equals less crime being committed. However, there is a second way of providing substantial assistance. You can assist in the arrest or conviction of “any other person engaged in trafficking in control substances.” Basically, you will be turning in other people who are not your present partners is crime. How this works is that the police go on a fishing expedition trolling you as the bait. You become a police confidential informant, a C. I., and sent out with instructions to make provable cases for them. You are asked to commit crimes with the intention of arresting future criminals. Some plea agreements call for the informant to bring in a certain number of “fish” and of a certain weight. If you do not succeed, then do not pass go and go to prison for your minimum mandatory sentence. However, if you succeed then you are off the hook. You go free and your fish goes to jail; that is unless he too earns his C. I. wings and goes on the prowl, looking for his own catch to turn in. What if you actually do really, really well, better than expected–hey, lets give you permanent employment and start paying you a bonus for future provable cases. We’ll put you on commission. Who says crime does not pay? You have an untrained, highly motivated and proven bad guy engaging in crime with the court’s blessing. There have been notorious incidents where some of these valued confidential informants have committed perjury, have entrapped otherwise honest citizens; one especially infamous female informant traded sexual favors to help set up cases. Prostitution on behalf of law enforcement may not be the most laudable means of crime prevention. This manner of substantial assistance has become so unsavory that I refuse to accept substantial performance pleas involving this second type of assistance.Regardless of the of type of substantial assistance provided, what type of criminal can provide it? The one time dealer who sees an opportunity to make a quick buck, perhaps at the suggestion, maybe even the urging, of a confidential informant? The moronic, desperate mule who is so behind the 8 ball that he would actually swallow balloons filled with poison? The bad guy who, not only, talks the talk, but who also walks the walk of the certified, no-good, down and dirty, poison pedaling scum of a drug dealer? If number three is your final answer, then you’re ready to go on to the next round. Yes, folks the guy most people would want off the streets in a big way has a new lease on life and has been reincarnated as Officer Friendly. Yes, this is the man who enjoys the state’s leniency–the one who least deserves it. The one time dealer knows very little and can’t help the cops. The mule, he’s at the very bottom of the drug dealing totem pole. All he can do is give the name of the person who gave him the drugs, in another country. The prosecution is not in agreement with Jesus Christ’s praise of the old widow who gave one coin to the temple because it was all she had. They’d rather deal with the certified drug dealers who can provide them with lots of gold in the form of substantial assistance. There are other minimum mandatory penalties that apply based upon the geographical situs of a particular crime. If you are in possession of a controlled substance with intent to sell or deliver and are a certain distance from certain facilities, then some min-mans apply. Possession with intent to sell or deliver can be proven to a jury by the amount and packaging of the drugs in your possession. Drug dealers tend to sell drugs in small individualized plastic bags or tin foil. The problem is that drug buyers tend to buy drugs in small individualized plastic bags or tin foil, because that is how dealers sell them. So, how do you differentiate the seller from the buyer? It’s a judgement call for the jury.If you are in possession of a controlled substance with intent to sell or deliver and are within a 1,000 feet of a house of worship, or within a 1000 feet of a child care facility, or within a 1,000 feet of a public or private elementary, middle or secondary school, or within a 1,000 feet of a convenience store, or within 200 feet of a private or public college or university, or within 200 feet of a public park, or within 200 feet of a public housing facility then you face a minimum mandatory penalty of, no questions asked, 3 years state prison. Can any one of you, please, tell me where I can find a place in Miami that is not within the proscribed boundaries of the aforementioned facilities? Unless the state can be persuaded to treat you with leniency, you’ll do your 3 years in the slammer, even if you are an honor student with a drug problem, even if you beg for drug treatment, even if you are a decorated veteran with a “jones” for heroin caused by war wounds, even if you didn’t know that the 7 Eleven was only 999 feet away and you’d never been to it anyway. You are still at the mercy of the state. Certainly, in the aforementioned circumstances you are bound to get some leeway, but you are not legally entitled to it. And well, who knows?You say you’ll take it to the jury. Surely six good people from our community will see you are not really a bad guy; that you’ve never even been arrested before, and give you a break. They won’t find you guilty and send you away for 3 years, day for day, when they find out about how good you are and about how you were addicted because you served our country in war and how unfair the state is being to you. You’re lawyer will tell them to find you guilty of a lesser charge so that the min-mans don’t apply. Wrong. The jury will not find out that you’ve never been arrested before. It is against the law for them to do so. The jury will not find out you were addicted because of your war wounds. The evidence code says it’s not relevant and it is disallowed. The jury will not find out you are facing a minimum mandatory sentence of three years. This too is illegal and will not be allowed in evidence for the jury to hear. The jury is never told the penalty you are facing. Your lawyer will not be able to argue for a finding of guilt to a lesser charge because of the min-mans. The court is legally required to instruct the jury that if there is a finding of guilt it must be for the highest offense which has been proven beyond a reasonable doubt. All of the foregoing will happen because, while I may think your cause is just and that you are deserving of a break, I am a sworn officer of the law and I will follow the law whether I like it or not. My personal feelings have absolutely no say in how I am duty bound to follow the laws by which we must all abide . Absent the state’s magnanimity, you’re goose is cooked... The manic proliferation of these minimum mandatory statutes put the courts on the sidelines in the fashioning of an appropriate sentence. The legislature has let the pendulum swing too much toward lack of discretion and is creating, in many cases, cookie cutter justice. The legislature is to be lauded for giving judges the discretion to upwardly depart in the cases of career criminals and habitual violent offenders to the extent that they can be sentenced to even beyond the statutory maximums. Hopefully, in the future, greater discretion will be exercised in carving out further exceptions to the use of the reasoned discretion of the people’s elected judges. After all, if a judge is doing a poor job by sentencing too leniently, then exercise your right to vote and kick the bum out of office."Judge Roberto M. Pineiro

Bankest trial coming to a close

The intro from today's DBR article about the Bankest closings:

"E.S. Bankest, the dismantled Miami factoring company accused of obtaining $190 million through fraud, was “basically an empty shell” that survived on lies and deceit for the better part of a decade, federal prosecutors told jurors Monday. After a four-month trial before U.S. District Judge Adalberto Jordan, prosecutors began closing arguments in what the U.S. government calls the largest bank fraud case in Miami history. Other prosecutors, and then defense attorneys, are scheduled to deliver closing arguments through the end of Wednesday before jurors get the case. On trial are brothers Eduardo and Hector Orlansky and other principals of E.S. Bankest. They are accused by the government of committing multiple counts of bank fraud, wire fraud and conspiracy. According to an indictment handed up in December 2003, nine defendants collaborated to inflate the value of collateral for loans obtained from Espirito Santo Bank of Florida. The government accuses the Orlansky brothers, who headed E.S. Bankest, and two other former executives, R. Peter Stanham and Ariadna Puerto, of multiple counts of money laundering and bank fraud. “Bankest companies were basically an empty shell and they grew the company that way for 10 years — with air,” Assistant U.S. Attorney Caroline Heck Miller told jurors in U.S. District Court in Miami."

Ted Klein

I haven't really heard any news on Judge Klein's condition. I wanted to share this nice (anonymous) comment, which was posted tonight:

Anonymous said...
Magistrate Klein (who as we all know should be US District Court Judge Klein), needs our thoughts and prayers. He is one of the finest jurists this court has ever seen. He is exceptionally smart, always prepared, asks great questions and is totally fair and just. He also has a great personality and can tell some great jokes.He is admired by so many. He is loved by so many.Let's hope his daily running and healthy lifestyle pulls him through this terrible illness.
9:46 PM

Interesting hearing on Padilla

More developments in the Jose Padilla case emerged from a pretrial hearing on Padilla's motion to suppress. Apparently he was first stopped on the pretext that he had over $10,000 in cash at the airport but had only declared $8,000. Law enforcement was hiding in a closet because they didn't want to spook him, waiting to confront him about a possible terror attack... The hearing continues tomorrow in front of Magistrate Judge Stephen T. Brown. The whole AP article is here. Here's a snippet:

Russell Fincher, an agent in the FBI's New York-based unit investigating Osama bin Laden, testified at a pretrial hearing in Padilla's terrorism support case that he traveled to Chicago's O'Hare International Airport in May 2002. He wanted to meet Padilla's plane so that he might uncover al-Qaida's plans.

"I believed there was a terrorist act that was going to happen. I believed he had knowledge of that. I needed his help," Fincher said of Padilla. "I didn't want to arrest him."
During an interview over nearly five hours in an airport conference room, Fincher said Padilla talked freely about his criminal past as a Chicago gang member, his conversion to Islam and his travels in Egypt, Pakistan and elsewhere. But when his story didn't add up, Fincher said he confronted Padilla with terrorist allegations and asked if he would testify before a grand jury about his purported al-Qaida connections.

"He stood up and told me the interview was over and it was time for him to go," Fincher said.
Padilla was then arrested on a material witness warrant, which allows a person with direct knowledge of alleged criminal acts to be taken into custody. A month later, President Bush designated him an "enemy combatant" and he was placed in military custody. He remained there until November, when he was charged in an existing Miami case.

Monday's hearing concerned whether Padilla was officially in law enforcement custody during the interview and, if so, whether he was properly advised of his rights as a suspect. Padilla's lawyers said his statements should be barred from trial if those rights were violated.

"How FBI moles snared terror suspects"

That's the headline of today's Herald article about the now infamous Miami 7 "terror" case. It has many more details than previous press acounts. It explains the initial meeting between the lead defendant, Narseal Batiste, and the FBI this way:

Batiste, a struggling contractor born in Chicago who headed the local branch here of a Moorish religious sect, became friendly with the store's owner after learning that he was going to Yemen on vacation in October. The store owner happened to be an FBI informant.
After the shopkeeper's return, Batiste, with two of his followers present, laid out his vision. Batiste said that he was a member of the Moorish Science Temple -- a sect that blends Christianity, Judaism and Islam -- and that its members were entitled to their own government within the United States. Violence was the only way, he said, and he explained to the store owner that only extreme Islamic groups, such as al Qaeda, could help.
The shopkeeper told the FBI of Batiste's plans. For FBI agents, the threat was serious enough to have him introduce Batiste to another informant, an Arabic man with a thick accent.
The second man was Mohammad, a friend of the store owner's uncle. Batiste pressed the shopkeeper to find out whether the man knew al Qaeda leader Osama bin Laden, but was told that question was off limits.

So far the press has been very pro-defendant. This article is not at all.

Get well

Apparently Magistrate Judge Theodore Klein is seriously ill. We wish him the very best and hope for a speedy recovery.

Padilla reviewing documents at courthouse

So says this AP article.

Justice Kennedy Speaks Out Against Lengthy Sentences

Once again Justice Kennedy has spoken - federal sentences are too harsh. Period. His latest comments came from a speech at the Ninth Circuit Conference this week.

"If an 18-year-old is growing marijuana for a friend, that's distribution," the Sacramento native told judges, lawyers and court officials at the conference, held at the Hyatt Regency. "If he has his father's .22 rifle, that's a firearm. That will get 15 years. "Did you know what 15 years was when you were 18? I didn't when I was 18."

Justice Kennedy also spoke out against the lobbying efforts of correctional officers' unions adding: "The fact that the prison guards' association lobbies for higher penalties is sick," Justice Kennedy said.

I guess the question is what can be done? It appears, at least thus far, that Justice Kennedy's bark is louder than his bite? He has yet to author an opinion with the same rhetoric of his recent speeches. Whatever one's beliefs are regarding the length of federal sentences, it appears that this debate is far from over.

Cocaine Cowboy movie

Readers of this blog might be interested in Alfred Spellman's and Billy Corben's new documentary, Cocaine Cowboys. Check out the profile in the July issue of Ocean Drive and their
blog.

News and notes

Lots of good stuff in the Review today:

1. Padilla news (subscription required) from Julie Kay: "Defense attorneys involved in the scheduled trial of Jose Padilla and four co-defendants accused of plotting and supporting terrorism are sparing no expense in preparing their defense, including traveling to the Middle East to interview potential witnesses. William Swor, the Detroit lawyer for Kifah Jayyousi, is currently in the Middle East, and Kenneth Swartz, the Miami lawyer who represents Adham Hassoun, is planning on traveling to Jordan and Egypt later this month, according to sources involved in the case. Swartz declined to comment, and Swor was unavailable. It’s unclear whether lawyers for key defendant Padilla also will be traveling to the Middle East. Calls to Andrew Patel of New York and Michael Caruso of the federal public defender’s office in Miami were not returned by deadline. Also last week, Padilla’s lawyers asked the government to initiate a request for “evidence and assistance” from Egypt. No further information about what information Padilla’s lawyers are trying to obtain was available in the court file. Padilla’s attorneys asked for the request to be sealed, so the prosecution team would not find out about it. U.S. District Judge Marcia Cooke denied the request."

2. Former U.S. Attorney news (subscription required) by Carl Jones: Marcos Jiminez is stirring the pot -- "Former U.S. Attorney Marcos Jimenez has filed an unusual petition on behalf of the Miami-Dade Judicial Nominating Commission asking the Florida Supreme Court to override the Legislature and allow the governor to appoint 55 new judges. When the Legislature created the new positions in May it specifically required the judges be elected. Jimenez and the 11th Judicial Circuit JNC — whose nine members were all appointed by Gov. Jeb Bush — asks that the judgeships be filled by appointment by the end of this year. That would mean that Gov. Bush would get to appoint the new judges before he leaves office in early 2007. The surprise move seeks to reverse a delicate compromise reached last year between Republicans and Democrats. Last year, the Republican-controlled Legislature created 55 new judgeships to be filled through appointment by the Republican governor. The deal with the Democrats was that the judgeships created in 2006 would be filled through election. The seats created this year included 35 circuit court judgeships and 20 county court judgeships."

Interesting issue here. Any thoughts?

News and notes

Lots of good stuff in the Review today:

1. Padilla news (subscription required) from Julie Kay: "Defense attorneys involved in the scheduled trial of Jose Padilla and four co-defendants accused of plotting and supporting terrorism are sparing no expense in preparing their defense, including traveling to the Middle East to interview potential witnesses. William Swor, the Detroit lawyer for Kifah Jayyousi, is currently in the Middle East, and Kenneth Swartz, the Miami lawyer who represents Adham Hassoun, is planning on traveling to Jordan and Egypt later this month, according to sources involved in the case. Swartz declined to comment, and Swor was unavailable. It’s unclear whether lawyers for key defendant Padilla also will be traveling to the Middle East. Calls to Andrew Patel of New York and Michael Caruso of the federal public defender’s office in Miami were not returned by deadline. Also last week, Padilla’s lawyers asked the government to initiate a request for “evidence and assistance” from Egypt. No further information about what information Padilla’s lawyers are trying to obtain was available in the court file. Padilla’s attorneys asked for the request to be sealed, so the prosecution team would not find out about it. U.S. District Judge Marcia Cooke denied the request."

2. Former U.S. Attorney news (subscription required) by Carl Jones: Marcos Jiminez is stirring the pot -- "Former U.S. Attorney Marcos Jimenez has filed an unusual petition on behalf of the Miami-Dade Judicial Nominating Commission asking the Florida Supreme Court to override the Legislature and allow the governor to appoint 55 new judges. When the Legislature created the new positions in May it specifically required the judges be elected. Jimenez and the 11th Judicial Circuit JNC — whose nine members were all appointed by Gov. Jeb Bush — asks that the judgeships be filled by appointment by the end of this year. That would mean that Gov. Bush would get to appoint the new judges before he leaves office in early 2007. The surprise move seeks to reverse a delicate compromise reached last year between Republicans and Democrats. Last year, the Republican-controlled Legislature created 55 new judgeships to be filled through appointment by the Republican governor. The deal with the Democrats was that the judgeships created in 2006 would be filled through election. The seats created this year included 35 circuit court judgeships and 20 county court judgeships."

Interesting issue here. Any thoughts?

No bond for old Mafia suspects

Here's the intro from the Sun-Sentinel article on the bond denial in the South Florida Genovese crime family:

A federal judge denied bond Friday to the alleged boss of the Genovese crime family's South Florida operations and three others awaiting trial on charges of extortion, robbery, and money laundering. He will consider bond for another man.U.S. Magistrate Judge Barry Seltzer denied bail for Renaldi ``Ray'' Ruggiero, 72, whom federal prosecutors identified as a Genovese capo or captain, and three of his co-defendants--Joseph Dennis Colasacco, 54, Charles Steinberg, 30, and Mitchell Weissman, 54, said Weissman's attorney John Contini.

Seltzer, prosecutors and attorneys for another defendant, Francis O'Donnell, 47, will continue negotiations for his release on Monday, said Theresa Van Vliet, one of his attorneys. O'Donnell is the head of Coach Industries Group, a financial services company.

Ken Lay is not a convicted criminal

Because he died before his direct appeal was final, Ken Lay's conviction is technically abated, which means that his entire criminal case is treated as though it never existed. (The conviction and sentence of a defendant is vacated when he dies if his appeal is yet to be decided. See Schreiber v. Sharpless, 110 U.S. 76,80 (1884)). My first case at the Federal Defender's office involved this issue, albiet in a different way.

UPDATE -- White Collar Crime Blog has more about the law in the Fifth Circuit:

In a recent Fifth Circuit decision, United States v. Estate of Parsons, 367 F.3d 409 (5th Cir. 2004), the court explained that "the appeal does not just disappear, and the case is not merely dismissed. Instead, everything associated with the case is extinguished, leaving the defendant as if he had never been indicted or convicted." In Parsons, the court vacated a forfeiture order, which means that the government's forfeiture claim against Lay for $43.5 million will be dismissed. The Fifth Circuit explained the rationale for the rule: "The finality principle reasons that the state should not label one as guilty until he has exhausted his opportunity to appeal. The punishment principle asserts that the state should not punish a dead person or his estate." An interesting question is whether one can still describe Lay as having been convicted of a crime, at least in a technical sense, because the law no longer recognizes there having been any criminal case initiated against him.

Bail denied to Miami seven

Magistrate Judge Bandstra denied bond to the suspects charged with plotting to bomb the Sears Tower. Here's the report from Vanessa Blum:


MIAMI - U.S. Magistrate Judge Ted Bandstra on Wednesday denied bond for six of the seven South Florida men arrested last month on charges they planned to bomb the Sears Tower in Chicago and the FBI building in Miami.

Bandstra called the allegations "serious" and said no conditions of release could ensure the safety of the community.

``The charges against each of the defendants are serious charges and constitute counts of violence,'' Bandstra stated, adding that it was ``not relevant that the plans appear to be beyond the abilities of the defendants.''

A lawyer for the plot's alleged ringleader Narseal Batiste called the government's case a "set-up."

"This case is essentially something the government set up to knock it down," said attorney John Wylie.

Happy 4th of July...

... and happy one year birthday to the Southern District of Florida Blog.

We turned one this weekend. This was the first post, urging President Bush to appoint a Floridian to the Supreme Court. I'm shocked that no one listened! But since then, our readership has grown. We're averaging over 175 hits a day during the week. And we've had 32,322 total visits as of this post. Pretty incredible.

And since that first post, our Supreme Court has dramatically changed and the Southern District has continued to get the biggest and best cases in the country. On a personal note, I've started my own firm and have added another child to the Markus clan... It's been a fun year.

Thanks to everyone who reads, emails me with tips, and posts comments.

Miami 7 stuff

The motion to disqualify the FPD was denied. For now, John Wylie is still in the case.

The bond hearing was continued until Wednesday... Here are the details of what happened so far. Looks a little to me like the Government was pre-trying its case because of the bad press it has been getting. I've never seen a bond hearing where the Government shows so many of its cards. Typically the strategy is to show as little as possible because the discovery rules are so restrictive. But here where there have been so many questions about this case, the Government must have figured that it needed to present its case now. The defense gets to present its side on Wedndesday...

Feds arrest alleged South Florida head of Genovese crime family

The AP story here: "Renaldi 'Ray' Ruggiero, whom prosecutors identified as a capo or captain of the family's operations in South Florida, appeared in federal court in Fort Lauderdale Friday morning, along with his co-defendants: Genovese family "soldier" Albert "Chinky" Facchiano, and family associates Joseph Dennis Colasacco, Mitchell Weissman, Francis J. O'Donnell, Clement Santoro and Charles Steinberg."

Motion to disqualify FPD

I just read the Government's motion (filed today by AUSAs Jackie Arango and Richard Getchell) to disqualify the Federal Public Defender's Office from representing Narseal Batiste, the lead defendant in the latest terrorism indictment, due to an actual conflict of interest.* Judge Bandstra will be hearing this motion before the pre-trial detention hearings tomorrow afternoon. Although Scalia's choice of counsel opinion from this week does not apply to appointed counsel cases, it will be interesting to see if the defendant objects if the judge terminates his current counsel. I've heard the PD's office is opposing the motion, which should make for an interesting heairng. More to follow...

*Apparently, the PD's office also represents a potential witness in the case.

UPDATE -- Here's more from the Herald about this witness, nicknamed the Sultan.
ANOTHER UPDATE -- The Daily Business Review has more on the conflict issue here.

Supreme disagreement

Despite the early word on the Roberts' Court -- that everyone was getting along, that there was going to be consensus, and that it was going to be a much different court -- we got back to the old bickering this week. The Court decided three decisions yesterday -- two were 5-4 (the Kansas death penalty case and the right to counsel of one's choice case). In both cases, there were very animated opinions sniping back and forth. And then there was the campaign finance decision, a 6-3 affair but with 6 different opinions for the "winners." Not kidding.

In other very interesting news outside our district, Judge Lewis A. Kaplan (S.D.N.Y.) today ruled, in a must read case, on certain individual defendants’ motions to dismiss an indictment arising from the KPMG tax shelter investigation. (Large pdf here.) The issue was whether the feds properly intimidated KPMG from paying its employees legal fees. Here's Concurring Opinions on what happened:


June 27, 2006
Wild KPMG Fees Decision
posted by Dave Hoffman
Barely one day old, and Gonzalez-Lopez is already making waves in corporate law. To see the connection, however, you’ll have to bear with me for a bit of brush-clearing.
Judge Lewis A. Kaplan (S.D.N.Y.) today ruled on certain individual defendants’ motions to dismiss an indictment arising from the KPMG tax shelter investigation. (Large pdf here.) According to the defendants, their due process rights were violated when the U.S. Attorney pressured their former employer (KPMG) not to advance and reimburse legal fees incurred as individuals defendants. Judge Kaplan found a due process violation, scolded the government, and suggested a new lawsuit against KPMG to recover those legal fees, in which today’s decision would have collateral effect and make the proceedings summary. In short: the decision seems to constitutionalize the right to receive indemnification from your employer.
KPMG had a "longstanding voluntary practice" of paying legal fees where employees required separate counsel in matters arising from the employment relationship, regardless of whether the employee had been charged criminally or civilly with wrongdoing. These arrangements were not memorialized in the partnership agreement governing most of the defendants, nor were there contractual provisions about it. No mention is made in the opinion of the relevant insurance negotiations or provisions.
The background law governing most of the partner-defendants (Delaware) requires neither indemnification nor pre-payment. However, two of the defendants, mere employees residing in California, had a right to indemnification arising out of California statutory law.
Judge Kaplan construed this arrangement as a legal entitlement. At the least, according to Judge Kaplan, the defendants had "every reason to expect that KPMG would pay their legal expenses in connection with the government's investigation." (But this was the sort of expectation, as Judge Kaplan later argued (p.57) that might give rise to a tortuous interference claim). In the alternative, and in a footnote, Judge Kaplan wrote that "arguably" the defendants had a contract "implied in fact from KPMG's uniform past practice and the circumstances of the business." (Fn. 119).
Wow. But how does this contract problem get turned into a Gonzalez-Lopez due process problem? Ah, it turns out that the government has a set of prosecution guidelines to help it determine when to indict a corporation. As a part of those guidelines, the government treated payment of an employee’s legal fees as a blemish on the corporation’s record. And, thus, the U.S. Attorney negotiating with KPMG (itself desperate to avoid indictment) told the Firm that "under the fedaral guidelines misconduct can not be rewarded [by the payment of fees of wrongdoers."]
KPMG got the message. Shortly thereafter, KPMG notified the defendants that their legal fees would be compensated only as long as they cooperated -- they could not take the Fifth, for example. Further, KPMG apparently capitulated to the government's demand by backing away on a recommendation that the defendants obtain counsel.
Judge Kaplan found that this conduct by the government violated the defendants’ right to a fair trial and (I think) to counsel of their choice. In a passage of the opinion I don't really grasp, the court (p. 49) found that the pressure to cooperate exerted by the Thompson memorandum (the relevant prosecutorial guidelines) on KPMG should be subject to "strict scrutiny" because (1) this will be a big trial, requiring "substantial resources"; and (2) the government interfered with the ability of the KPMG defendants “to obtain resources they otherwise would have had." While the government claimed that it only used its guidelines to infer lack of cooperation when the payment of fees was used to impede investigations, the court found that the public perception of such pressure is what matters: "[f]ew if any competent defense attorneys would advise a corporate client at risk of indictment that it should feel free to advance legal fees to individuals in the face of the language of [the guidelines." (p.51) And, under Gonzalez-Lopez, this prejudice creates a per se violation. Judge Kaplan appears to hold that the prosecution guidelines are unconstitutional to the extent that they pressure corporations not to provide indemnification to their employees.
The weirdest part of this interesting decision is the remedy. The court refused to dismiss the indictment (for one, I assume, this would result in an immediate appeal). The government suggested that KPMG be allowed to consider again if it wanted to pay fees, without any threat of retaliation. No go, said the court. Instead, the court said that the defendants must be compensated for all of the expenses they had or would incur. Unfortunately, sovereign immunity bars relief against the government, even though it was the wrong-doer. Instead, the court held that KPMG, a non-party to the proceeding, was obligated to pay. However, the court lacked personal jurisdiction over KPMG. Therefore, the court recommended that the individual defendants sue KPMG. The court would then conduct a “expeditious[]” hearing and provide relief. [There is apparently an arbitration agreement in the partnership agreement which could delay matters, but the court suggested what it thinks of that provision by saying “Assuming that the KPMG Defendants pursue relief against KPMG and that KPMG remains insistent upon its alleged arbitration remedy, the questions whether the arbitration clause properly is so construed and, if so, whether it is void as against public policy [as frustrating the court’s decision] will be addressed . . . .” (fn. 239). Hee.]
To sum up. KPMG, which had no clear contractual obligation to pay these fees, now must do so compelled by a judicial order. The government can not discourage indemnification to criminal defendants as a part of making a decision about the firm's cooprative attitude (or, at least, it can't do so in writing). One possible result of the case: potentially vulnerable firms will draft by-laws or contracts that exclude indemnification absent cooperation, to make clear that the government has the right to demand cooperation from employees.
The prosecutors, scolded by the court as “economical with the truth” (p. 80-81), must be feeling angry. The defendants, 83 pages later, are still going to trial. But the 28 private firms listed in the caption will get paid.

[UPDATE: More at the White Collar Crime Blog.]

New lawyer for Narseal Batiste

Assistant Federal Defender John Wylie is now representing Narseal Batiste, the supposed leader of the terrorist suspects. I've known John Wylie for a long time -- he's a *great* lawyer.

Lawyers for the terror suspects...

Larry Lebowitz of the Miami Herald will be reporting that the lawyers for terror suspects are:

Tony Natale* (Federal Public Defender) for Narseal Batiste (the supposed leader)
Albert Levin for Patrick Abraham
Nathan Clark for Rotschild Augustine
Richard Houlihan for Naudimar Herrera
Gregory Prebish for Burson Augustin

At the hearing, the U.S. Attorney's office objected to the Federal Defender's appointment saying that the office was already representing a witness. Magistrate Judge Patrick White took the parties sidebar and explained that for now the PD's office would be appointed and if a conflict was later proven, both sides could deal with it. The other lawyers on the case are all appointed from the criminal justice act panel.

*Natale is part of the Padilla team. By mentioning Padilla, I've now done what I was complaining about earlier...

Terror indictment

The Sears tower terror case has been indicted in the Southern District of Florida in front of Judge Joan Lenard. Here is the indictment. And here is Judge Lenard's background.

Terror arrests in Miami

Lots of coverage tonight on the alleged terrorists arrested in the Southern District of Florida. Now the question is whether they will be charged and tried here or in some other district...
Also, does is strike you as strange that every article is mentioning that Jose Padilla is awaiting trial in Miami? There is no alleged connection with these arrests and Padilla so why does every single article mention him?

HEAT HEAT HEAT!!

Wow. Unbelievable. We've been waiting for this for so long. So happy for them... especially Zo. When he blocks a shot, it's better than 5 baskets. Wade is beyond words. Shaq delivers on his promise. UD comes up big. Payton's huge shots. Walker's 3rd quarter. Clutch Posey... And how about Riley.

So many great story lines.

Everyone in Miami is dragging a little today from the last 2 months of playoff hoops. But it is such a happy tired feeling... What a great year.

Sorry for rambling.

If the Heat isn't your thing, and you need Southern District news, check out this Padilla report in the Herald (concerning Judge Cooke granting some pre-trial motions for the defense) and a lengthy article about his co-defendant Adham Hassoun in the Daily Business Review.

Abramoff, Kidan get 3 month surrender extension

So reports the AP here. They are in full cooperation mode. I have to imagine that there are a number of nervous congressmen.

Two new state judges

Congrats to two colleagues -- Reemberto Diaz and Barbara Lagoa. Jeb Bush appointed Reemberto to serve as a state trial judge and Barbara to serve as a state appellate judge. I have tried cases with Reemberto Diaz and have had cases with Barbara Lagoa and believe they will make fantastic judges. Below is the Miami Herald squib with the background on both. I wish both of them well. The criminal defense bar will miss Reemberto and the U.S. Attorney's office will miss Barbara Lagoa. Congratulations again to both.

BUSH APPOINTS LAGOA, DIAZ TO BENCH

Gov. Jeb Bush appointed Assistant U.S. Attorney Barbara Lagoa to the Third District Court of Appeal and Miami attorney Reemberto Diaz to the Circuit Court on Friday.

Lagoa, 38, of Coral Gables, will be the first Cuban-American woman to serve on the 11-member appellate court for Miami-Dade and Monroe counties. She fills a vacancy created by the resignation of Judge David Levy.

Prior to joining the U.S. Attorney's Office in 2003, Lagoa was in private practice at the law firm of Greenberg Traurig. She is a graduate of Florida International University with a law degree from Columbia University.

Diaz, 49, of Coral Gables, is filling a vacancy created by the death of Circuit Judge Henry Leyte-Vidal. Diaz is in private practice. He is a graduate of the University of Miami, with a law degree from Nova Southeastern University.

Bomb squad

Julie Kay reports today that there was bomb scare at the federal courthouse. The article is below. Anyone know what case this is?

When police blew up a suspicious box that caused the evacuation of two federal buildings in downtown Miami, they may have blown up a federal criminal case. Authorities evacuated the courthouses Monday due to a bomb scare.

The Miami Police bomb squad responded and destroyed the box, but it may have contained evidence from a just-decided case. The James Lawrence King Federal Justice Building and the David W. Dyer Federal Building both were evacuated at about 2:30 p.m. for an hour or so on Monday. Hundreds of attorneys and courthouse staffers were ushered out of the buildings by federal marshals wearing yellow vests. They were directed to the street in front of the Federal Detention Center while the bomb squad did its work. Federal judges and magistrates were taken out of the building separately and taken to an undisclosed location.

“A special robot went over to the box, and it went kaboom,” said Mark Schnapp, a partner at Greenberg Traurig in Miami who was at the U.S. attorney’s office when the building was evacuated. But according to two lawyers who were present during the bomb scare and did not want to be named, it turned out that the box contained papers and evidence left on the sidewalk by a federal agent.

The two lawyers said the evidence was from a criminal case in which a verdict had just been reached. That evidence included fake guns and wiretap equipment. Lt. Bill Schwartz, a spokesman for the Miami Police Department, confirmed that the box left between the Miami Dade College campus and the James Lawrence King courthouse contained papers. But he said he had no details about the nature of the papers or who left them there. “Someone accidentally put something down,” Schwartz said. “We felt the need to evacuate the buildings.”

Alberto Hidalgo, a spokesman for the U.S. Marshals Service in Miami, confirmed that the box was blown up by the police bomb squad but said he had no information about what was in the box. Matt Dates, a spokesman for U.S. Attorney Alex Acosta, declined to comment on what the box contained. “We don’t talk about security matters,” he said. If the box did contain evidence in the criminal case, it’s unclear how the loss of the evidence may affect any appeal. Some observers found humor in the situation. “That’s smoking-gun evidence,” said Miami criminal defense attorney David O. Markus, “just not in the way that the agent was hoping for.”

"Is it legal to fire a woman because her breasts are too large?"

Via Ann Althouse, that is the legal question presented in the case of Alice Alyse v. the producers (and various other people associated with) Movin' Out (the Billy Joel musical), filed here in Miami. Alice is represented by Larry Klayman. Here's the Washington Post article. Here's the lawsuit. And here is her website (in case you want to judge for yourself).

Bill Clinton & Bill Nelson

I went to the Bill Clinton/Bill Nelson event tonight. Speakers included: Clinton, Nelson, Nelson's wife Grace, his son Billy, Jim Davis, Rod Smith, Alcee Hastings, and Debbie Wasserman-Schultz. Other than Clinton who everyone was there for, I thought Alcee stole the show and the night. All of the speakers joked that Clinton was late, as usual. But he, as always, delivered a magnetic speech -- there is a rock-star quality to the former President.

Interestingly, there were a number of prosecutors in attendance...

Rock Paper Scissors

Since I highlighted the rock paper scissors order from Judge Presnell a couple days ago, the links to this site and the site meter have been exploding (watch out Rumpole). Fun stuff. Even the mainstream media has picked it up, with articles in just about every major newspaper and big-news website (like CNN). Here's an article from the NY Times, which I liked...

June 9, 2006
Lawyers Won't End Squabble, So Judge Turns to Child's Play
By ADAM LIPTAK
Fed up with the inability of two lawyers to agree on a trivial issue in an insurance lawsuit, a federal judge in Florida this week ordered them to "convene at a neutral site" and "engage in one (1) game of 'rock, paper, scissors' " to settle the matter.

Childish lawyers are commonplace, but the use of children's games to resolve litigation disputes is apparently a new development. The judge, Gregory A. Presnell of Federal District Court in Orlando, wrote that his innovation was "a new form of alternative dispute resolution."

The proximate cause of Judge Presnell's ruling, issued Tuesday, was a motion saying the two lawyers in the case could not agree about where to conduct the deposition of a witness. The choices were the building where they both work, four floors apart, or a court reporter's office down the street.

Judge Presnell's order indicated that deciding such things was not part of the job of a federal judge. Still, wary that the lawyers would start a new battle over where to conduct the rock-paper-scissors showdown, Judge Presnell gave them a default site: the front steps of the federal courthouse in Tampa.

That will not be necessary, said David J. Pettinato, a lawyer for the plaintiff. He and his adversary have agreed to meet on June 30, Mr. Pettinato said, at "an undisclosed location."
Mr. Pettinato added that he had been wasting no time since the order came down and had been training with his daughters, who are 5 and 9. They have advised him to open with rock.

Mr. Pettinato said he was inclined to agree "because my case is solid as a rock."
That would be an unusual opening for a lawyer, said Matti Leshem, the co-commissioner of the USA Rock Paper Scissors League, which he described as the governing body of the sport, whose headquarters are in Los Angeles.

"I guarantee you right now," Mr. Leshem said, "that both lawyers will open with paper. Lawyers open with paper 67 percent of the time, because they deal with so much paper."
Mr. Leshem offered to officiate the match. "What I don't want," he said, "is some rogue element of rock-paper-scissors coming down from the bench. When the law takes rock-paper-scissors into its own hands, mayhem can occur."

The second lawyer in the case, D. Lee Craig, declined through a spokesman to preview his strategy. Judging from the spokesman's tone, Mr. Craig did not find the matter especially amusing.

That would be in keeping with the compliment Mr. Craig paid to Mr. Pettinato in a letter last week. "Apparently you think it is in your client's interest to create as much misery and bad feeling as you are able," Mr. Craig wrote. "In those endeavors, you are most able."

A scotch-and-champagne celebration

I had previously posted about Judge Altonga's JNOV in the $78 million verdict against Arriva Pharmeceuticals. Here's Julie Kay's take on the knock the wind out of (or into, depending on what side you're on) your sails ruling. There is a lot of gossipy stuff in here, including how the lawyer who initially lost the case, Jonathan Goodman of Akerman Senterfitt, was dubbed the $78 million man at his firm; the fact that he found out about the verdict while on vacation skiing; and that he sent around an email that was forwarded to everyone in town after Altonaga's ruling vindicating him.

That e-mail soon was copied to just about every lawyer in town. The subject line read: "Fascinating and significant $78 million post-trial victory — If I say so myself (and I do)." Goodman acknowledged the lengthy e-mail was “a blatant example of self-promotion, self-aggrandizement and egomania,” fueled by a scotch-and-champagne celebration. He wrote that “we’re thrilled with the post-verdict result, which is very, very cool.” Not to rival attorney Jim McDonald, who said his team is analyzing the e-mail. “Looks like he had a few drinks when he wrote that,” McDonald said in an interview. “It ain’t over til it’s over, Jonathan. See you at the 11th.”

Round 1 to Jim McDonald. Round 2 to Jon Goodman. Round 3... Any bets?

Middle District news

Judge Gregory Presnell from the Middle District of Florida is a favorite of the federal court junkie... This latest order shows why:

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

Case No. 6:05-cv-1430-Orl-31JGG

AVISTA MANAGEMENT, INC.,
d/b/a Avista Plex, Inc.,

Plaintiff,

-vs-

WAUSAU UNDERWRITERS INSURANCE
COMPANY,
Defendant.
______________________________________

ORDER

This matter comes before the Court on Plaintiff’s Motion to designate location of a Rule
30(b)(6) deposition (Doc. 105). Upon consideration of the Motion – the latest in a series of
Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts – it is ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of “rock, paper, scissors.” The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006. If either party disputes the outcome of this engagement, an appeal may be filed and a hearing will be held at 8:30 A.M. on Friday, July 7, 2006 before the undersigned in Courtroom 3, George C. Young United States Courthouse and Federal Building, 80 North Hughey Avenue, Orlando, Florida 32801.

DONE and ORDERED in Chambers, Orlando, Florida on June 6, 2006.

GREGORY A. PRESNELL

United States District Judge

LOVE IT! Okay, so there's going to be a high stakes games of rock-paper-scissors... What is your strategy? Do you start with the safe play of rock or do you get coy and go paper? But then again, maybe you should start with scissors... Ah, the complexity and strategy of a good r-p-s game! It really should have been best of 5 or at least 3 so that the lawyers could get a feel for each other, don't you think?

Jack Bauer or real life?

When I watch 24 every week, I never thought that the torture scenarios that confront Jack Bauer on a weekly basis come up all that often in real life. Apparently, I was wrong. Here's an AP article about Jose Padilla's latest motion to exclude evidence on the basis that it were acquired by use of torture:

Jose Padilla's lawyers want a federal judge to throw out key evidence because the alleged al-Qaida operative's arrest was based on statements from one source who claims he was tortured and another who was heavily medicated and possibly unreliable. The evidence should not be allowed at Padilla's trial set for this fall based on an FBI affidavit "that distorted the facts in an apparent disregard for the truth," Padilla attorneys [Andrew Patel, Michael Caruso, Tony Natale, and Orlando do Campo] said in a court filing.

Kinda scary, no? And I don't think I'm against torture in all cases. I take the view of one of my law school professors, Alan Dershowitz, that we should debate the issue about when torture can be used and who should be accountable when it is. Certainly, a judge should have to approve it where practicable; the standard for employing it would have to be very high; whatever evidence is obtained by use of the torture should not be admissible in court; and it should only be used in life or death situations where absent torture people would die. Even in these *very* limited circumstances, I'm still extremely queasy about it, but it strikes me that there may be a case of mass terrorism where a large number of people would die absent torturing one of the involved terrorists. Suppose a suspect knew the location of a bomb that was to go off in a matter of hours that would kill thousands of people. If that person absolutely refused to disclose where that bomb was, would anyone chose letting the bomb go off over trying to extract the information from the captured terrorist? But Padilla's case is the other end of the spectrum. With Padilla, the feds were trying to build a case against someone who was already in custody. I can't imagine torture in those circumstances could be justified, and certainly such evidence -- if truly acquired by use of torture -- should not be admissible in a court of law.

Pledge Requirement Unconstitutional

Judge Kenneth Ryskamp found a state law requiring students to recite the pledge unconstitutional. Here's the Palm Beach Post article by Rani Gupta:

A federal judge has declared a state law requiring students to stand for the Pledge of Allegiance unconstitutional, stating it violated the rights of a Palm Beach County student who sued the state last year. U.S. District Judge Kenneth L. Ryskamp also ruled unconstitutional the provision of the 1942 Florida law requiring students to obtain permission from their parents to be excused from reciting the pledge. The American Civil Liberties Union cheered Ryskamp's decision as a landmark ruling that upholds all Florida students' free speech rights. "The highest tradition of being an American is freedom of thought and freedom of speech," ACLU attorney James Green said Thursday. "Freedom of speech includes the right to speak and the right not to speak, and not to be forced to speak in a certain way." But conservative legislators decried the decision, which they said was an assault by "liberal" and "activist" judges on the beliefs of the majority. State Sen. Mike Fasano, R-New Port Richey, called the decision "ludicrous." Fasano this year spearheaded an unsuccessful attempt to ask Florida voters to decide whether the state constitution should require students to stand and recite the pledge. Students would have needed a parent's permission to be excused. "What a federal judge has done is taken away patriotism from our schools," Fasano said.

Ryskamp was appointed by President Reagan.