Last year the Sentencing Commission retroactively amended the crack guidelines. But what happens when a defendant was sentenced as a career offender? Here's the Law.com article discussing how the 11th Circuit oral argument from the 5 consolidated cases (4 from Judge Hurley, 1 from Judge Middlebrooks) went in Atlanta today:
Today, two of the most controversial issues in sentencing law -- the length of sentences for crack cocaine offenders and judges' ability to go outside the federal sentencing guidelines -- will intersect in arguments at a federal appeals court panel sitting in Atlanta.
The five cases from the Southern District of Florida, consolidated for oral argument at the 11th Circuit, have the potential to affect many other cases throughout Florida, Georgia and Alabama. The appellate chief at the U.S. Attorney's Office in Atlanta, Amy L. Weil, said she'd seen about a dozen motions by defendants in the Northern District of Georgia alone that raise the same issue.
In each case before the court today the defendant was convicted of a federal crack cocaine offense and sentenced before more lenient crack cocaine sentencing guidelines went into effect in November. Each is trying to get a new sentence based on the change in the guidelines but has been stymied because prosecutors argue they were sentenced as career offenders. (see below for related case briefs.)
Crack cocaine sentencing guidelines have been criticized because the sale, manufacture or possession of crack carries a much harsher sentence than that for a similar amount of powder cocaine. The disparity has been described as a 1-100 ratio, meaning a small amount of crack is equivalent under the sentencing guidelines to a large amount of cocaine. Defenders of the disparity in sentencing have said that crack is more likely to be linked with crimes of violence, while critics note that the harsher crack guideline disproportionately affects African- Americans.
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Friday, August 22, 2008
Thursday, August 21, 2008
"A rising legal star in Miami agrees to plea bargain involving mail fraud, laundering charges "
That's the headline from the National Law Journal article about Richard Simring. Here's the intro:
A rising Miami legal star and community activist has quietly agreed to a plea deal in which he has pleaded guilty to conspiracy to commit mail fraud and money laundering in connection with his role as in-house counsel to an indicted billionaire businessman. Few in Miami have known that Richard Simring, a former partner at Stroock Stroock & Lavan and Jorden Burt, plead guilty in July in the Eastern District of Virginia and is facing possible suspension of his Florida Bar license. Simring took the plea deal, in which he faces a possible five years in prison and must testify against his former boss, before a grand jury could indict him, according to his lawyer, Brian Tannebaum of Miami's Tannebaum Weiss. "He's taking responsibility for what the government says he did," Tannebaum said. "He didn't want to roll the dice and face…a jury." Simring was charged in connection with his role as chief legal counsel to Ed Okun, a Carmel, Ca., billionaire who operated the "1031 Tax Group." The company was one that specialized in 1031 tax exchanges, a way to defer capital gains taxes by exchanging one investment property for another. U.S. v. Richard Simring, No. 3:08cr00321-REP (E.D. Va.).
Very sad.
UPDATE -- I re-read the article and this struck me:
Simring, according to the information, told Okun that he must stop transferring client funds and that he risked going to jail. In 2007, Simring became aware that Okun was continuing to misappropriate millions from clients and was on the verge of insolvency, according to the information. That's when the Okun resigned and Simring was appointed interim chief executive officer. According to the information, Simring complied with Okun's orders to continue transferring millions of dollars of client money. Simring resigned three days after assuming the role of CEO. Okun's company soon after filed for bankruptcy.
Three days!
A rising Miami legal star and community activist has quietly agreed to a plea deal in which he has pleaded guilty to conspiracy to commit mail fraud and money laundering in connection with his role as in-house counsel to an indicted billionaire businessman. Few in Miami have known that Richard Simring, a former partner at Stroock Stroock & Lavan and Jorden Burt, plead guilty in July in the Eastern District of Virginia and is facing possible suspension of his Florida Bar license. Simring took the plea deal, in which he faces a possible five years in prison and must testify against his former boss, before a grand jury could indict him, according to his lawyer, Brian Tannebaum of Miami's Tannebaum Weiss. "He's taking responsibility for what the government says he did," Tannebaum said. "He didn't want to roll the dice and face…a jury." Simring was charged in connection with his role as chief legal counsel to Ed Okun, a Carmel, Ca., billionaire who operated the "1031 Tax Group." The company was one that specialized in 1031 tax exchanges, a way to defer capital gains taxes by exchanging one investment property for another. U.S. v. Richard Simring, No. 3:08cr00321-REP (E.D. Va.).
Very sad.
UPDATE -- I re-read the article and this struck me:
Simring, according to the information, told Okun that he must stop transferring client funds and that he risked going to jail. In 2007, Simring became aware that Okun was continuing to misappropriate millions from clients and was on the verge of insolvency, according to the information. That's when the Okun resigned and Simring was appointed interim chief executive officer. According to the information, Simring complied with Okun's orders to continue transferring millions of dollars of client money. Simring resigned three days after assuming the role of CEO. Okun's company soon after filed for bankruptcy.
Three days!
Tough times
From AboveTheLaw (which has a new editor):
* It looks like 2008 will be the worst year for law firms since 2001. The American Lawyer says the "silver lining" is that firms can "winnow out unproductive lawyers and apply greater discipline to expense control." In other words: more layoffs, less perks. [American Lawyer]
* Law firms are not the only ones suffering. Florida courts will cut 250 positions by October 1. [Daily Business Review]
* It looks like 2008 will be the worst year for law firms since 2001. The American Lawyer says the "silver lining" is that firms can "winnow out unproductive lawyers and apply greater discipline to expense control." In other words: more layoffs, less perks. [American Lawyer]
* Law firms are not the only ones suffering. Florida courts will cut 250 positions by October 1. [Daily Business Review]
Tuesday, August 19, 2008
Random questions from the last two days
And for the comments:
How many billable hours were lost in the rain?
Did BigLaw make their secretaries work?
Should the federal courts track the school closures?
If the court is closed, should you be able to e-file motions?
Sunday, August 17, 2008
Federal court in Miami closed Monday & Tuesday
UPDATE -- because the SDFLA tracks Dade County Schools, Miami federal court will be closed Tuesday.
Here's the notice from the court website:
AUGUST 17, 2008, 7:30 p.m.Federal District Court Operations and Tropical Storm Fay
The U.S. District Courthouses in Miami-Dade, Broward, and Monroe Counties will be closed on Monday, August 18, in accordance with Administrative Order 2007-44. This administrative order mandates that, in the event of hazardous weather that causes the local public schools in a particular county to close, the U.S. District Courthouse in that county will also close. The U.S. District Court closures include the U.S. Bankruptcy Courts.
Jurors have been instructed to call in for further reporting instructions.
At this time, the U.S. District Courthouses in West Palm Beach and Fort Pierce will remain open on August 18 unless the public schools in those locations also close.
Any change to the scheduled closures will be made via media announcements. Changes will also be posted on the Court's website at http://www.flsd.uscourts.gov/
Here's the notice from the court website:
AUGUST 17, 2008, 7:30 p.m.Federal District Court Operations and Tropical Storm Fay
The U.S. District Courthouses in Miami-Dade, Broward, and Monroe Counties will be closed on Monday, August 18, in accordance with Administrative Order 2007-44. This administrative order mandates that, in the event of hazardous weather that causes the local public schools in a particular county to close, the U.S. District Courthouse in that county will also close. The U.S. District Court closures include the U.S. Bankruptcy Courts.
Jurors have been instructed to call in for further reporting instructions.
At this time, the U.S. District Courthouses in West Palm Beach and Fort Pierce will remain open on August 18 unless the public schools in those locations also close.
Any change to the scheduled closures will be made via media announcements. Changes will also be posted on the Court's website at http://www.flsd.uscourts.gov/
Thursday, August 14, 2008
Wednesday, August 13, 2008
"I didn't want to go in the life raft. He made me go. He had my gun."
That was Joe Cool defendant Guillermo Zarabozo talking about co-defendant Kirby Archer, who has already pleaded guilty. Zarabozo was testifying today at a motion to suppress.
More from Curt Anderon's AP article:
"What was going through your mind?" asked defense attorney Anthony Natale.
"That I would get shot. He had just shot four people," Zarabozo said.
The hearing Tuesday concerned whether statements Zarabozo made to the Coast Guard and FBI after he and Archer were rescued from the life raft will be allowed at trial. U.S. District Judge Paul Huck ruled those statements could be used because Zarabozo was not under arrest or being interrogated, but simply answering routine search-and-rescue questions.
"That would be a normal Coast Guard procedure and not a nefarious, underhanded attempt by the Coast Guard to obtain criminal information," Huck said.
His trial is scheduled for September.
More from Curt Anderon's AP article:
"What was going through your mind?" asked defense attorney Anthony Natale.
"That I would get shot. He had just shot four people," Zarabozo said.
The hearing Tuesday concerned whether statements Zarabozo made to the Coast Guard and FBI after he and Archer were rescued from the life raft will be allowed at trial. U.S. District Judge Paul Huck ruled those statements could be used because Zarabozo was not under arrest or being interrogated, but simply answering routine search-and-rescue questions.
"That would be a normal Coast Guard procedure and not a nefarious, underhanded attempt by the Coast Guard to obtain criminal information," Huck said.
His trial is scheduled for September.
Juror research
Julie Kay examines the new trend of investigating jurors here.
In last year's federal terrorism case against once-suspected "dirty bomber" Jose Padilla, a team of defense lawyers were sitting at a back table in the Miami federal courtroom with their laptops searching online all the jurors when they discovered one had lied on her jury questionnaire.
The woman, a Miami-area government employee who has not been identified, said she had no personal experience in the criminal system.
It turned out she was currently under investigation for malfeasance, according to Linda Moreno, a Tampa, Fla., solo trial lawyer who served as a jury consultant for one of Padilla's co-defendants. After the judge was informed, she dismissed the juror. See U.S. v. Hassoun, No. 0:04cr60001 (S.D. Fla.).
The Miami case was not unusual. As more and more information on people becomes available on the Internet, through posting on personal blogs, MySpace, Facebook and other social networking Web sites, the Internet has, in the last few years, become an important tool for jury consultants and trial lawyers.
Jury consultants say such sites are a treasure trove of information about potential and seated jurors that can be used in picking the right jurors, bouncing potential jurors and even influencing jurors through the trial and in closing arguments.
To mine the gold, jury consultants have begun turning to private investigators, some of whom have started niche businesses offering Internet jury research and "personality profiling" of jurors.
"If it's within the law, with peoples' lives at stake and millions and millions of dollars at stake, people will do whatever it takes to win a case," said Marshall Hennington, a Beverly Hills, Calif., jury consultant at Hennington & Associates. "The stakes are getting higher and higher, and it's becoming increasingly difficult to persuade jurors that have strong biases ... so we need information ahead of time. Everything is fair game."
One lawyer suggests it may be unethical to research jurors on the internet. I don't see the argument at all. Thoughts?
In last year's federal terrorism case against once-suspected "dirty bomber" Jose Padilla, a team of defense lawyers were sitting at a back table in the Miami federal courtroom with their laptops searching online all the jurors when they discovered one had lied on her jury questionnaire.
The woman, a Miami-area government employee who has not been identified, said she had no personal experience in the criminal system.
It turned out she was currently under investigation for malfeasance, according to Linda Moreno, a Tampa, Fla., solo trial lawyer who served as a jury consultant for one of Padilla's co-defendants. After the judge was informed, she dismissed the juror. See U.S. v. Hassoun, No. 0:04cr60001 (S.D. Fla.).
The Miami case was not unusual. As more and more information on people becomes available on the Internet, through posting on personal blogs, MySpace, Facebook and other social networking Web sites, the Internet has, in the last few years, become an important tool for jury consultants and trial lawyers.
Jury consultants say such sites are a treasure trove of information about potential and seated jurors that can be used in picking the right jurors, bouncing potential jurors and even influencing jurors through the trial and in closing arguments.
To mine the gold, jury consultants have begun turning to private investigators, some of whom have started niche businesses offering Internet jury research and "personality profiling" of jurors.
"If it's within the law, with peoples' lives at stake and millions and millions of dollars at stake, people will do whatever it takes to win a case," said Marshall Hennington, a Beverly Hills, Calif., jury consultant at Hennington & Associates. "The stakes are getting higher and higher, and it's becoming increasingly difficult to persuade jurors that have strong biases ... so we need information ahead of time. Everything is fair game."
One lawyer suggests it may be unethical to research jurors on the internet. I don't see the argument at all. Thoughts?
Paris in Miami
Paris Hilton has been sued in Miami federal court for not promoting a movie she was in, National Lampoon's Pledge This . The case, available here, landed before Judge Martinez. Here's the Herald article on the case. From the intro:As if starring in the flop flick National Lampoon's PledgeThis wasn't bad enough, socialite Paris Hilton now has been sued for refusing to promote the film when it was released.
Hilton's breach of contract cost the producers of the film ''lost revenue and profits,'' according to the suit, filed in Miami federal court Tuesday.
A call to Hilton's Los Angeles attorney wasn't immediately returned.
Fort Lauderdale lawyer Michael I. Goldberg, a court-appointed receiver of the film's production company -- The Entertainment Group Fund -- filed the suit against Hilton and her company, Paris Hilton Entertainment.
The Entertainment Group Fund is an affiliate of Worldwide Entertainment Group, a one-time concert promoter that now stands accused of fleecing $300 million from investors.
Entertainment Group paid Hilton $1 million to star in Pledge This, filmed in South Florida.
This should be fun.
Tuesday, August 12, 2008
Terrible news
Anyone who has tried a case in Ft. Lauderdale knows Creolina's and Rosie. It closed. TERRIBLE NEWS. From the Sun-Sentinel:
Creolina’s, the New Orleans-style restaurant in Fort Lauderdale’s Himmarshee district, will reopen in Davie by September.
After 17 years, owner Mark Sulzinski closed the doors on Southwest Second Street on June 28th. His new restaurant, Creolina’s Dixie Take Out, will be located at 13150 W. State Rd. 84 in the Randal Plaza. There’s a Dunkin’ Donuts and a McDonald's in the same plaza.
“The owner of the building on Second owns the bar next door and he wanted my space to expand,” explains Sulzinski. “So he didn’t renew my lease.”
Creolina’s was on Second since 1996. It first opened in 1991 on Seventh Avenue between Sistrunk and Sunrise.
The house specialties—étouffée, jambalaya, beans and rice—will remain. But prices will be lower. Jambalaya was $8.95 a lunch and $12.95 at dinner. It will be $6.95 all day at the new Creolina’s.
The chef will also add classic Southern dishes, many of which he’s offered as specials. Look for country fried steak, chicken and dumplings, pulled pork and country-style ribs. Sides will includes corn bread, greens, black-eyed peas as well macaroni and cheese.
Fans of Creolina's can rest easy. Waitress Rosemary “Rosie” O’Neal, who has been at restaurant since it opened, will make the move to Davie.
“She’s having a nice vacation,” says Sulzinski. “ This is the longest we haven’t worked in 17 years. We’ve never taken more than a week at a time.”
Sulzinski doesn’t yet have phone service at the new location, but says the old number — 954-524-2003—will soon transfer callers.
If September can't come soon enough, Sulzinski teaches a class at Chef Jean-Pierre's Cooking School in Fort Lauderdale on August 25.
After 17 years, owner Mark Sulzinski closed the doors on Southwest Second Street on June 28th. His new restaurant, Creolina’s Dixie Take Out, will be located at 13150 W. State Rd. 84 in the Randal Plaza. There’s a Dunkin’ Donuts and a McDonald's in the same plaza.
“The owner of the building on Second owns the bar next door and he wanted my space to expand,” explains Sulzinski. “So he didn’t renew my lease.”
Creolina’s was on Second since 1996. It first opened in 1991 on Seventh Avenue between Sistrunk and Sunrise.
The house specialties—étouffée, jambalaya, beans and rice—will remain. But prices will be lower. Jambalaya was $8.95 a lunch and $12.95 at dinner. It will be $6.95 all day at the new Creolina’s.
The chef will also add classic Southern dishes, many of which he’s offered as specials. Look for country fried steak, chicken and dumplings, pulled pork and country-style ribs. Sides will includes corn bread, greens, black-eyed peas as well macaroni and cheese.
Fans of Creolina's can rest easy. Waitress Rosemary “Rosie” O’Neal, who has been at restaurant since it opened, will make the move to Davie.
“She’s having a nice vacation,” says Sulzinski. “ This is the longest we haven’t worked in 17 years. We’ve never taken more than a week at a time.”
Sulzinski doesn’t yet have phone service at the new location, but says the old number — 954-524-2003—will soon transfer callers.
If September can't come soon enough, Sulzinski teaches a class at Chef Jean-Pierre's Cooking School in Fort Lauderdale on August 25.
Monday, August 11, 2008
Enjoy it while it lasts...
One more week of good traffic.
Then school starts.
And people forget how to drive.
Friday, August 08, 2008
Law.com - Prosecutors Change Course on Money Laundering Charges Against Prominent Attorney
http://www.law.com/jsp/article.jsp?id=1202423615601
Here's some reading, sent from the road.
The case keeps getting worse for the government. It's time to drop it already, isn't it?
--David Oscar Markus
www.markuslaw.com
305-379-6667
Tuesday, August 05, 2008
Agent Donald Pettit, RIP
More sad news today. Customs Agent Donald Pettit was shot to death in front of his daughter. The cause of the shooting looks like road rage. Herald article here.
Prosecutors seek protection
Julie Kay reports here on the government's desire to get prosecutors more protection:
In the wake of three murders and the recent attack on a federal prosecutor in a New York courtroom, a group representing the nation's federal prosecutors is calling for stepped-up security, including home alarms, self-defense training and the right to carry firearms.Additionally, the National Association of Assistant U.S. Attorneys, which represents the country's 5,400 federal prosecutors, wants secure parking for prosecutors, particularly those who handle dangerous criminal cases."Statistically, we are threatened more than judges," said Steve Cook, chairman of the NAAUSA security committee and a Tennessee federal prosecutor. "Security is a very important issue for us."
Hmmmm. Self-defense training? My advice -- let the Marshals do the defending for you guys. That's all we need -- [INSERT NAME HERE] going toe to toe with an armed career criminal...
According to the article, prosecutors also want to be able to carry firearms without having to wait two weeks to get approval. Oh boy.... How long till a defense lawyer gets shot?
In the wake of three murders and the recent attack on a federal prosecutor in a New York courtroom, a group representing the nation's federal prosecutors is calling for stepped-up security, including home alarms, self-defense training and the right to carry firearms.Additionally, the National Association of Assistant U.S. Attorneys, which represents the country's 5,400 federal prosecutors, wants secure parking for prosecutors, particularly those who handle dangerous criminal cases."Statistically, we are threatened more than judges," said Steve Cook, chairman of the NAAUSA security committee and a Tennessee federal prosecutor. "Security is a very important issue for us."
Hmmmm. Self-defense training? My advice -- let the Marshals do the defending for you guys. That's all we need -- [INSERT NAME HERE] going toe to toe with an armed career criminal...
According to the article, prosecutors also want to be able to carry firearms without having to wait two weeks to get approval. Oh boy.... How long till a defense lawyer gets shot?
Monday, August 04, 2008
Steve Chaykin funeral
I just got back from Steven Chaykin's funeral, which was very emotional and extremely well-attended.
I only knew Steve professionally, having worked with him on a couple of cases. But after the funeral, I felt like I've known the guy for a long long time. His brother Robert Chaykin and his sister Robin Chaykin spoke beautifully. Donna Shalala from UM spoke, as did his friends Sam Rabin, David Mandel, Dan Gelber, and Bruce Udolf.
Rumpole wrote a very nice tribute on his blog about Steve. I echo the sentiment.
Here's more from SFlaLawyer:
Steve's younger brother Robert shared tearful remembrances of growing up in North Miami Beach, and running away at age 9 to the nearby Royal Castle and 163rd Street Mall, playing in a local band, and even getting into a sibling squabble or two.Steve's younger sister Robin perhaps is a secret Dylan ranter, as she quoted the lyrics from "You're Gonna Make Me Lonesome When You Go":
But I'll see you in the sky above,In the tall grass, in the ones I love,Yer gonna make me lonesome when you go.
UM President Donna Shalala ended her eloquent tribute to a huge UM booster with an invitation to Steve's ten-year old daughter Sydney -- the door is always open for you at the University of Miami.Sam Rabin -- still shocked as are we all -- told old stories, funny stories, and gave us a picture of a man that he described as a total "mensch."David Mandel choked back tears as he quietly remembered a dear friend and mentor.Dan Gelber was funny, quick, and to the point as usual, and ended with some beautiful words to Steve's daughter about a man that he said "took him under his wing and never left."Bruce Udolf shared several remarkable stories of "Diamond Steve" Chaykin and the heyday of the US Attorney's Office in the 80s and early 90s. He even said that Steve and Bruce were perhaps planning to assist in restoring public trust in the US Attorney's office, and of course everyone in Steve's orbit shared his passion for politics and for a change in the direction of the country.
I only knew Steve professionally, having worked with him on a couple of cases. But after the funeral, I felt like I've known the guy for a long long time. His brother Robert Chaykin and his sister Robin Chaykin spoke beautifully. Donna Shalala from UM spoke, as did his friends Sam Rabin, David Mandel, Dan Gelber, and Bruce Udolf.
Rumpole wrote a very nice tribute on his blog about Steve. I echo the sentiment.
Here's more from SFlaLawyer:
Steve's younger brother Robert shared tearful remembrances of growing up in North Miami Beach, and running away at age 9 to the nearby Royal Castle and 163rd Street Mall, playing in a local band, and even getting into a sibling squabble or two.Steve's younger sister Robin perhaps is a secret Dylan ranter, as she quoted the lyrics from "You're Gonna Make Me Lonesome When You Go":
But I'll see you in the sky above,In the tall grass, in the ones I love,Yer gonna make me lonesome when you go.
UM President Donna Shalala ended her eloquent tribute to a huge UM booster with an invitation to Steve's ten-year old daughter Sydney -- the door is always open for you at the University of Miami.Sam Rabin -- still shocked as are we all -- told old stories, funny stories, and gave us a picture of a man that he described as a total "mensch."David Mandel choked back tears as he quietly remembered a dear friend and mentor.Dan Gelber was funny, quick, and to the point as usual, and ended with some beautiful words to Steve's daughter about a man that he said "took him under his wing and never left."Bruce Udolf shared several remarkable stories of "Diamond Steve" Chaykin and the heyday of the US Attorney's Office in the 80s and early 90s. He even said that Steve and Bruce were perhaps planning to assist in restoring public trust in the US Attorney's office, and of course everyone in Steve's orbit shared his passion for politics and for a change in the direction of the country.
Saturday, August 02, 2008
I'm backkkkkk
Who was the little rat who lied and told Google we were a spam blog, huh? (A couple of days ago we received a msg from Google saying that we were under suspicion of being a spam blog. Google therefore blocked us and said that until it could investigate, we were shut down... This happened to Rumpole a while back too. He was gracious enough to agree to post anything important while we were blocked, but I figured I could use a day or two without blogging.)
Well, your dirty tricks didn't work...
We're back baby.
And now we know what Jay Weaver has been holed up doing the last couple of weeks.... writing about Medicaid fraud. Lots of words to read here.
Cliff's Notes version -- There is a great deal of Medicaid fraud in Florida. 
Thursday, July 31, 2008
Steve Chaykin
The funeral will be held this Monday, August 4th, at Temple Beth Shalom at 11:30 AM. The temple is located at 4144 Chase Avenue on Miami Beach. That is at 41st Street and Chase. The synagogue's phone number is 305.538.7231.
Donations in lieu of flowers can be made to the "Sydney Chaykin College Fund" and mailed c/o
Mr. Sam Rabin
Suite 606
Eastern National Bank Building
799 Brickell Plaza
Miami, Florida 33131
Donations in lieu of flowers can be made to the "Sydney Chaykin College Fund" and mailed c/o
Mr. Sam Rabin
Suite 606
Eastern National Bank Building
799 Brickell Plaza
Miami, Florida 33131
Wednesday, July 30, 2008
RIP Steven Chaykin
I just got terrible terrible news. All around great guy Steve Chaykin died today in Aspen rescuing his wife. This article reports:
ASPEN - A Florida man has died after jumping into a river on Wednesday while trying to save his wife near Aspen.
The Pitkin County Sheriff's Department says the man, Steven Chaykin of Florida, and his wife, who has not been identified, were near the Roaring Fork River 10 miles east of Aspen up Independence Pass.
Deputies on scene say the woman slipped into the river, then Chaykin jumped in to rescue her, but hit his head on a rock.
Bystanders pulled Chaykin from the water and started CPR, but he later died at the Aspen Valley Hospital.
More from the Aspen paper:
A 57-year-old Florida man died at the Grottos on Independence Pass near Aspen on Wednesday.The man, whose name has not yet been released, slid into a pool to rescue his wife, who had fallen in before him at about 1:30 p.m.The women hit her head and injured her leg, but was otherwise OK, authorities said.The man, however, suffered a severe head injury in the slide then fell over a 15-foot fall into the pool below, witnesses said.A few groups of day hikers at the nearby ice cave jumped into action when they heard screams from the waterfall, but it took five minutes to get the man out of the pool, where he floated face-down.One witness ran to her vehicle and drove toward Aspen, dialing 911 as soon as she was within cell phone range. Others performed CPR until Aspen firefighters and Pitkin County sheriff’s deputies arrived.CPR was stopped at 2:37 p.m.Rescue crews transported the injured woman on a backboard to the trailhead and by ambulance to Aspen Valley Hospital.The Grottos is a popular summertime spot east of Aspen, off Highway 82 as it climbs toward Independence Pass. The Roaring Fork River tumbles over waterfalls and through pools formed in the smoothed stone, creating an enticing spot to take a dip.
The whole community will be mourning Steve's untimely death. Our condolences to his family.
ASPEN - A Florida man has died after jumping into a river on Wednesday while trying to save his wife near Aspen.
The Pitkin County Sheriff's Department says the man, Steven Chaykin of Florida, and his wife, who has not been identified, were near the Roaring Fork River 10 miles east of Aspen up Independence Pass.
Deputies on scene say the woman slipped into the river, then Chaykin jumped in to rescue her, but hit his head on a rock.
Bystanders pulled Chaykin from the water and started CPR, but he later died at the Aspen Valley Hospital.
More from the Aspen paper:
A 57-year-old Florida man died at the Grottos on Independence Pass near Aspen on Wednesday.The man, whose name has not yet been released, slid into a pool to rescue his wife, who had fallen in before him at about 1:30 p.m.The women hit her head and injured her leg, but was otherwise OK, authorities said.The man, however, suffered a severe head injury in the slide then fell over a 15-foot fall into the pool below, witnesses said.A few groups of day hikers at the nearby ice cave jumped into action when they heard screams from the waterfall, but it took five minutes to get the man out of the pool, where he floated face-down.One witness ran to her vehicle and drove toward Aspen, dialing 911 as soon as she was within cell phone range. Others performed CPR until Aspen firefighters and Pitkin County sheriff’s deputies arrived.CPR was stopped at 2:37 p.m.Rescue crews transported the injured woman on a backboard to the trailhead and by ambulance to Aspen Valley Hospital.The Grottos is a popular summertime spot east of Aspen, off Highway 82 as it climbs toward Independence Pass. The Roaring Fork River tumbles over waterfalls and through pools formed in the smoothed stone, creating an enticing spot to take a dip.
The whole community will be mourning Steve's untimely death. Our condolences to his family.
You gotta know when to hold em...
They say that the best trial lawyers are good gamblers.
Well, Bill Barzee and Joel Denaro took a huge gamble today, which almost paid off big. After a week of trial before Judge Jordan, the jury was deadlocked. Barzee and Denaro decided to ask for a majority-wins verdict. Jordan said that if the prosecutor, Frank Tamen, would agree the Court would accept the non-unanimous decision. Tamen said no. So mistrial.
What was the vote, you ask.
7-5 for acquittal...
Conventional wisdom from the defense bar is to always require a unanimous verdict; never agree to majority wins. Typically, it's the government, not the defense, that requests such a jury decision.
Dear readers, what do you think about the conventional wisdom? About the Barzee/Denaro gambit? Better to live to fight another day? Or take the verdict with the first trial, your best shot at victory?
Here's some of the Herald article on the case:
Federal prosecutors in Miami have failed to secure a conviction of a man who -- according to his own lawyers -- smuggled enormous amounts of cocaine into the United States from Colombia.
The reason: The feds were unable to prove to the jurors' satisfaction that the crimes of Hernan Prada occurred within the statute of limitations.
As a result, jurors split 7-5 on Tueday in favor of acquittal, forcing U.S. District Judge Adalberto Jordan to declare a mistrial in the trial of Hernan Prada.
Prosecutors are expected to retry Prada, who authorities said once ran an international enterprise that pulled in hundreds of millions of dollars a year, as soon as next month.
During the seven-day trial, it was never in dispute that Prada at one time oversaw shipments of cocaine from Colombia to the United States. Even his lawyers conceded that point.
However, that was not enough for a conviction. The underlying issue of the case was this: Did the alleged Colombian drug-cartel kingpin plan or execute any deals after July 2, 1999, when the statute of limitations in his case would have expired?
When it became clear that a unanimous verdict was unlikely, the defense took an enormous chance.
At Prada's urging, attorneys William Barzee, Joel Denaro and Jelani Davis petitioned the court for a rarely used provision: a non-unanimous verdict. At the time of the proposal, it was not known which side had the most jurors in its corner.
All that was needed to declare guilt or innocence in such a case was a simple majority.
Jordan considered the proposal. Assistant U.S. attorney Frank Tamen dismissed it immediately. Later, it became clear that Prada would have walked if the prosecution had agreed.
''Our instinct was right,'' Denaro said. ``It would have been spectacular if they had agreed. It was really intense.''
Well, Bill Barzee and Joel Denaro took a huge gamble today, which almost paid off big. After a week of trial before Judge Jordan, the jury was deadlocked. Barzee and Denaro decided to ask for a majority-wins verdict. Jordan said that if the prosecutor, Frank Tamen, would agree the Court would accept the non-unanimous decision. Tamen said no. So mistrial.
What was the vote, you ask.
7-5 for acquittal...
Conventional wisdom from the defense bar is to always require a unanimous verdict; never agree to majority wins. Typically, it's the government, not the defense, that requests such a jury decision.
Dear readers, what do you think about the conventional wisdom? About the Barzee/Denaro gambit? Better to live to fight another day? Or take the verdict with the first trial, your best shot at victory?
Here's some of the Herald article on the case:
Federal prosecutors in Miami have failed to secure a conviction of a man who -- according to his own lawyers -- smuggled enormous amounts of cocaine into the United States from Colombia.
The reason: The feds were unable to prove to the jurors' satisfaction that the crimes of Hernan Prada occurred within the statute of limitations.
As a result, jurors split 7-5 on Tueday in favor of acquittal, forcing U.S. District Judge Adalberto Jordan to declare a mistrial in the trial of Hernan Prada.
Prosecutors are expected to retry Prada, who authorities said once ran an international enterprise that pulled in hundreds of millions of dollars a year, as soon as next month.
During the seven-day trial, it was never in dispute that Prada at one time oversaw shipments of cocaine from Colombia to the United States. Even his lawyers conceded that point.
However, that was not enough for a conviction. The underlying issue of the case was this: Did the alleged Colombian drug-cartel kingpin plan or execute any deals after July 2, 1999, when the statute of limitations in his case would have expired?
When it became clear that a unanimous verdict was unlikely, the defense took an enormous chance.
At Prada's urging, attorneys William Barzee, Joel Denaro and Jelani Davis petitioned the court for a rarely used provision: a non-unanimous verdict. At the time of the proposal, it was not known which side had the most jurors in its corner.
All that was needed to declare guilt or innocence in such a case was a simple majority.
Jordan considered the proposal. Assistant U.S. attorney Frank Tamen dismissed it immediately. Later, it became clear that Prada would have walked if the prosecution had agreed.
''Our instinct was right,'' Denaro said. ``It would have been spectacular if they had agreed. It was really intense.''
Tuesday, July 29, 2008
News and Notes
1. Congrats to my friend, Jonathan Kasen, on his victory today in federal court before Judge Ungaro in his first federal trial. 2. Justice Building to 1000 posts.
3. Interesting post here about probation and PSI's. Isn't it time that someone filed a motion about the probation office practicing law without a license?
4. Go see the Dark Knight. Loved it.
5. Vanessa Blum is all over the federal courts.
6. Above the Law Idol, trying to find a new David Lat. Good luck with that.
7. No more Scabulous on Facebook. How depressing.
8. Cocaine Cowboys II came out. My copy just arrived in the mail. Can't wait to watch it.
Monday, July 28, 2008
The DBR's new blog
is here. Looks like it should be pretty good.
Should I take it personally that they don't link to me even though I'm a "DBR affiliated blog"?
Should I take it personally that they don't link to me even though I'm a "DBR affiliated blog"?
Thursday, July 24, 2008
Life for Archer...
Kirby Archer pleaded guilty today, agreeing to life in prison for his role in the Joe Cool murders.
Guillermo Zarabozo is proceeding to trial. The government announced that the death penalty is also off the table for Zarabozo. When Judge Huck heard this, he moved the trial date up to August, and discharged the court-appointed death penalty lawyer, Bill Matthewman.
Here's the Sun-Sentinel coverage, the AP's and the Herald's.
Guillermo Zarabozo is proceeding to trial. The government announced that the death penalty is also off the table for Zarabozo. When Judge Huck heard this, he moved the trial date up to August, and discharged the court-appointed death penalty lawyer, Bill Matthewman.
Here's the Sun-Sentinel coverage, the AP's and the Herald's.
"Suit: Contractors caused mold that killed magistrate Klein"
That's the headline for the DBR article here.
"The son and daughter of the late U.S. Magistrate Judge Theodore Klein have filed a wrongful death suit against contractors who handled projects at the courthouse where he worked alleging they created the conditions that killed him."
"The son and daughter of the late U.S. Magistrate Judge Theodore Klein have filed a wrongful death suit against contractors who handled projects at the courthouse where he worked alleging they created the conditions that killed him."
Tuesday, July 22, 2008
"These individuals had it all--success, money, and the admiration of their community."
"But they have tarnished their good names and reputations because they wanted even more than they already had, and they wanted it the quick and easy way."
That's Alex Acosta discussing Carlos de Cespedes, 58, and Jorge de Cespedes, 55, co-owners of Pharmed Group Corp.
The brothers were charged by way of two separate informations (read them here and here).The tax case went to Judge Jordan and the health care fraud case went to Judge Altonaga. Usually when individuals are charged by information that means that they have already worked out deals. I wonder why they did two separate cases though....
From the Herald article:
In a Tuesday afternoon court appearance, the brothers pleaded not guilty, and a federal magistrate ordered their release on $250,000 personal surety bonds.
Their attorneys, Alan Ross and Dennis Kainen, dodged questions about how the brothers ultimately would resolve the case. ''Carlos and Jorge, who are both honorable and charitable men, will be resolving these charges with the same commitment and enthusiasm'' they have shown in this community for many years, the attorneys said in a joint statement.
***
Tuesday's charges signify a huge fall for the brothers, who in 2003 earned a profit of $48 million. They often showed up in matching Bentleys at Chispa, their restaurant in Coral Gables, which is now closed. They went to basketball games at the Pharmed Arena on the campus of Florida International University. The Pharmed name has since been removed.
The Sun-Sentinel coverage is here. Credit to the Miami Herald for the photo above.
That's Alex Acosta discussing Carlos de Cespedes, 58, and Jorge de Cespedes, 55, co-owners of Pharmed Group Corp.
The brothers were charged by way of two separate informations (read them here and here).The tax case went to Judge Jordan and the health care fraud case went to Judge Altonaga. Usually when individuals are charged by information that means that they have already worked out deals. I wonder why they did two separate cases though....
From the Herald article:
In a Tuesday afternoon court appearance, the brothers pleaded not guilty, and a federal magistrate ordered their release on $250,000 personal surety bonds.
Their attorneys, Alan Ross and Dennis Kainen, dodged questions about how the brothers ultimately would resolve the case. ''Carlos and Jorge, who are both honorable and charitable men, will be resolving these charges with the same commitment and enthusiasm'' they have shown in this community for many years, the attorneys said in a joint statement.
***
Tuesday's charges signify a huge fall for the brothers, who in 2003 earned a profit of $48 million. They often showed up in matching Bentleys at Chispa, their restaurant in Coral Gables, which is now closed. They went to basketball games at the Pharmed Arena on the campus of Florida International University. The Pharmed name has since been removed.
The Sun-Sentinel coverage is here. Credit to the Miami Herald for the photo above.
Sunday, July 20, 2008
Former U.S. Attorney: Terror Watch List is Absurd
Former U.S. Attorney Marcos Jimenez (and friend of the blog), whose priority while he was the U.S. Attorney was terrorism, is complaining about the terror watch list. Vanessa Blum has the story here:
As a former federal prosecutor with a top national security clearance, Marcos Jimenez would seem an unlikely terror suspect.Yet when he travels, the former U.S. attorney for South Florida endures delays, searches and other inconveniences, because someone with his name appears on the government watch list airlines use to identify possible terrorists.It happened most recently Thursday, as security personnel at Fort Lauderdale-Hollywood International Airport pulled aside Jimenez, once the region's top federal law enforcement official, for an intrusive physical pat down."They put you off to the side like an animal in a little pen. They wand you. They grab you everywhere," Jimenez said. "To go through this hassle and inconvenience every time you get on a plane is just extremely frustrating."
An animal in a little pen..... Nice imagery. So what does our former U.S. Attorney do to get around this:
Even more absurd, Jimenez says, he can avoid the hassle simply by traveling under his middle name."If I use Marcos Jimenez, I get just short of strip-searched. If I go as Daniel Jimenez, I go right through," he said. "If this is really, truly an important terrorist prevention technique, it's not working because I can avoid it extremely well."
He makes a good point. But I just wonder what would have happened if some newbie major crimes prosecutor got a call from TSA about someone going thr0ugh security with his middle name. They would call it attempted boarding of an airplane with an alias or some such nonsense and chalk up the case as a terrorism stat...
In other news, congrats to my office-mate Marc Seitles (and the co-defendants' lawyers Ken Swartz, Steve Amster, and Lisa Colon) on his not guilty before Judge Altonaga in the last trial in the Tower Building. Judge Altonaga and Judge Cooke are moving to the new building this week, the last judges to do so.
As long as we are on my office-mates, Bill Barzee (and Joel Denaro) start trial Monday morning in front of Judge Jordan defending Hernan Prada, who the government says was one of the kingpins in Medellin who took over for Pablo Escobar. The case is being prosecuted by Frank Tamen.
As a former federal prosecutor with a top national security clearance, Marcos Jimenez would seem an unlikely terror suspect.Yet when he travels, the former U.S. attorney for South Florida endures delays, searches and other inconveniences, because someone with his name appears on the government watch list airlines use to identify possible terrorists.It happened most recently Thursday, as security personnel at Fort Lauderdale-Hollywood International Airport pulled aside Jimenez, once the region's top federal law enforcement official, for an intrusive physical pat down."They put you off to the side like an animal in a little pen. They wand you. They grab you everywhere," Jimenez said. "To go through this hassle and inconvenience every time you get on a plane is just extremely frustrating."
An animal in a little pen..... Nice imagery. So what does our former U.S. Attorney do to get around this:
Even more absurd, Jimenez says, he can avoid the hassle simply by traveling under his middle name."If I use Marcos Jimenez, I get just short of strip-searched. If I go as Daniel Jimenez, I go right through," he said. "If this is really, truly an important terrorist prevention technique, it's not working because I can avoid it extremely well."
He makes a good point. But I just wonder what would have happened if some newbie major crimes prosecutor got a call from TSA about someone going thr0ugh security with his middle name. They would call it attempted boarding of an airplane with an alias or some such nonsense and chalk up the case as a terrorism stat...
In other news, congrats to my office-mate Marc Seitles (and the co-defendants' lawyers Ken Swartz, Steve Amster, and Lisa Colon) on his not guilty before Judge Altonaga in the last trial in the Tower Building. Judge Altonaga and Judge Cooke are moving to the new building this week, the last judges to do so.
As long as we are on my office-mates, Bill Barzee (and Joel Denaro) start trial Monday morning in front of Judge Jordan defending Hernan Prada, who the government says was one of the kingpins in Medellin who took over for Pablo Escobar. The case is being prosecuted by Frank Tamen.
Friday, July 18, 2008
18 USC 48 found unconstitutional by en banc Third Circuit
Via How Appealing:By a vote of 10 to 3, the en banc U.S. Court of Appeals for the Third Circuit holds unconstitutional a federal law criminalizing the sale of creation, sale, or possession of depictions of animal cruelty: You can access today's en banc ruling at this link.
According to the majority's opinion, the "case is the first prosecution in the nation under [the federal statute in question] to proceed to trial, and this appeal represents the first substantive constitutional evaluation of the statute by a federal appellate court."
The majority opinion, written by Circuit Judge D. Brooks Smith, begins:
The Supreme Court has not recognized a new category of speech that is unprotected by the First Amendment in over twenty-five years. Nonetheless, in this case the Government invites this Court to take just such a step in order to uphold the constitutionality of 18 U.S.C. sec. 48 and to affirm Robert Stevens' conviction. For the reasons that follow, we decline the Government's invitation. Moreover, because we agree with Stevens that 18 U.S.C. sec. 48 is an unconstitutional infringement on free speech rights guaranteed by the First Amendment, we will vacate his conviction.Back in October 2006, The Pittsburgh Post-Gazette had an article headlined "Dog fight videos called free speech" reporting on the oral argument of the appeal before the original three-judge panel. And in January 2005, The Associated Press reported on the trial of the case in an article headlined "Dogfight video seller on trial for cruelty; Virginia man is first charged under 1999 federal statute."
In related coverage, a little over one year ago, Adam Liptak of The New York Times had an article headlined "First Amendment Claim in Cockfight Suit." Liptak's new beat for The NYTimes is the U.S. Supreme Court, which is where the case that the en banc Third Circuit decided today is likely heading next.
That lawsuit about cockfighting referenced at the end was the one I (and Rick Bascuas) filed, discussed here. Unfortunately, we had to dismiss the case as the client's business went under (after we had filed this motion for summary judgment). Looks like we would've won. We had a much stronger claim than the dog fighting case in the Third. DAMN! It's not often you get a chance to get a statute declared unconstitutional. Congrats to the PD's office who represented the defendant in the Third Circuit.
Morning buzz
Judge Huck has scheduled a hearing July 28 in which Kirby Archer will plead guilty to first degree murder in the Joe Cool case. He will agree to life in prison..
Prosecutors say the 36-year-old Archer and 20-year-old Guillermo Zarabozo hired the charter boat for $4,000 to go to the Bahamas, then tried to divert it to Cuba.
Zarabozo has passed a polygraph and blamed Archer in court papers for killing the captain, his wife and two crew members when they resisted. Should be a fascinating trial...
Here's the news coverage from the Sun-Sentinel, the Herald, and the AP.
Prosecutors say the 36-year-old Archer and 20-year-old Guillermo Zarabozo hired the charter boat for $4,000 to go to the Bahamas, then tried to divert it to Cuba.
Zarabozo has passed a polygraph and blamed Archer in court papers for killing the captain, his wife and two crew members when they resisted. Should be a fascinating trial...
Here's the news coverage from the Sun-Sentinel, the Herald, and the AP.
Thursday, July 17, 2008
"Defense Team Argues DOJ Ideology Spurred Money Laundering Indictment of [Ben Kuehne]"
Read the article here:
Quoting Bob Dylan and a legal treatise, attorneys for indicted Miami attorney Ben Kuehne and two co-defendants maintain the "unprecedented" money laundering indictment is ideologically motivated by the Justice Department.
At issue is a 1988 carve-out from the federal anti-money laundering statutes that exempts attorneys from criminal liability in accepting defense fees.
"The Department of Justice has been hostile to this exemption for many years and appears not to accept the policies that underlie it," Kuehne's attorneys said in a 13-page dismissal motion. "However, it is Congress that makes the laws."
Kuehne is charged with laundering drug proceeds while vetting $5.2 million in fees collected by celebrity attorney Roy Black to defend Colombian drug kingpin Fabio Ochoa Vasquez. Kuehne, Colombian attorney Oscar Saldarriaga and accountant Gloria Florez Velez were hired to make sure the money was "free from taint" to pay Black's team.
At issue is a 1988 carve-out from the federal anti-money laundering statutes that exempts attorneys from criminal liability in accepting defense fees.
"The Department of Justice has been hostile to this exemption for many years and appears not to accept the policies that underlie it," Kuehne's attorneys said in a 13-page dismissal motion. "However, it is Congress that makes the laws."
Kuehne is charged with laundering drug proceeds while vetting $5.2 million in fees collected by celebrity attorney Roy Black to defend Colombian drug kingpin Fabio Ochoa Vasquez. Kuehne, Colombian attorney Oscar Saldarriaga and accountant Gloria Florez Velez were hired to make sure the money was "free from taint" to pay Black's team.
***
Miami attorney Richard Strafer, representing Saldarriaga, contends the government doesn't have a case.
He makes the point in his filing with flair, quoting folk rock legend Dylan's song "Like a Rolling Stone" in his motion to dismiss a wire fraud conspiracy count, writing, "When you [ain't] got nothing, you got nothing to lose."
The government alleges the defendants committed wire fraud by converting pesos to dollars to bring them to the United States and subvert the Colombian government's right to seize the assets.
Motions for Kuehne and Saldarriaga argue the Colombians never made an effort to seize the assets and to this day have not filed a forfeiture action.
Strafer, paraphrasing a decision from the 11th U.S. Circuit Court of Appeals, said in an interview, "The government has taken off in an aircraft without wings, engines or wheels" in the wire fraud count. He is asking for additional time to file more motions hinging on complicated issues of foreign law.
He makes the point in his filing with flair, quoting folk rock legend Dylan's song "Like a Rolling Stone" in his motion to dismiss a wire fraud conspiracy count, writing, "When you [ain't] got nothing, you got nothing to lose."
The government alleges the defendants committed wire fraud by converting pesos to dollars to bring them to the United States and subvert the Colombian government's right to seize the assets.
Motions for Kuehne and Saldarriaga argue the Colombians never made an effort to seize the assets and to this day have not filed a forfeiture action.
Strafer, paraphrasing a decision from the 11th U.S. Circuit Court of Appeals, said in an interview, "The government has taken off in an aircraft without wings, engines or wheels" in the wire fraud count. He is asking for additional time to file more motions hinging on complicated issues of foreign law.
Wednesday, July 16, 2008
The state court budget crisis
I'm continually struck by the difference in the state and federal systems. Check out this article by the DBR about the state court budget crisis and how people are being fired left and right:
Florida trial court officials plan to handle future budget cuts with layoffs rather than furloughing employees for weeks without pay. The state Trial Court Budget Commission, which is made up of members of all 20 judicial circuits, met last week to formulate a plan to deal with a projected budget shortfall that already has state agencies scrimping. A hiring freeze and travel ban imposed earlier this year in a budget-saving move have been extended indefinitely, said State Courts Administrator Lisa Goodner. The commission splintered when considering whether to absorb fresh cuts with layoff or furloughs. “A lot of people saw furloughs as a way to make a statement and layoffs is taking it again,” said Palm Beach Chief Judge Kathleen Kroll, who attended the meeting. The commission has not determined how many people would have to be laid off or when, but state agencies are operating with a 4 percent budget holdback.
Who's got some tips for me on an interesting trial or hearing in federal court. Come on people.
Florida trial court officials plan to handle future budget cuts with layoffs rather than furloughing employees for weeks without pay. The state Trial Court Budget Commission, which is made up of members of all 20 judicial circuits, met last week to formulate a plan to deal with a projected budget shortfall that already has state agencies scrimping. A hiring freeze and travel ban imposed earlier this year in a budget-saving move have been extended indefinitely, said State Courts Administrator Lisa Goodner. The commission splintered when considering whether to absorb fresh cuts with layoff or furloughs. “A lot of people saw furloughs as a way to make a statement and layoffs is taking it again,” said Palm Beach Chief Judge Kathleen Kroll, who attended the meeting. The commission has not determined how many people would have to be laid off or when, but state agencies are operating with a 4 percent budget holdback.
Who's got some tips for me on an interesting trial or hearing in federal court. Come on people.
Monday, July 14, 2008
The Conway briefs are in
Our previous coverage of Sean Conway's bar issue and proposed settlement is here (He agreed to settle his bar case for calling Judge Aleman on the Broward Blog an "evil, unfair witch" for a public reprimand). The Florida Supreme Court didn't accept the settlement with the bar, asking if Conway's speech was protected by the First Amendment.
Courtesy of JAABBlog, the briefs are in:
CONWAY RESPONSE BAR RESPONSE ACLU AMICUS BRIEF
The one worth reading is the ACLU brief.
Courtesy of JAABBlog, the briefs are in:
CONWAY RESPONSE BAR RESPONSE ACLU AMICUS BRIEF
The one worth reading is the ACLU brief.
Friday, July 11, 2008
Handshake assault case dismissed
Fights don't only break out in Miami. Remember this case from Ft. Lauderdale? Well, the assault charges against Kathy Brewer Rentas for her "handshake" of AUSA Jennifer Keene have been dropped. The Sun-Sentinel (which is just killing the Herald in its federal court coverage lately) covers the case here:
The case of an over-enthusiastic courtroom handshake that escalated into an assault charge against a local attorney was dropped Thursday by federal prosecutors who deemed it the "prudent" thing to do.Kathy Brewer Rentas, with the Hollywood firm of Becker & Poliakoff, spent the night in jail after her Feb. 7 arrest for assaulting a federal prosecutor by handshake in a Fort Lauderdale courtroom.The victim, Assistant U.S. Attorney Jennifer Keene, was prosecuting Brewer Rentas' husband, Anthony Rentas, for violating probation in a cocaine distribution case out of New York. A hearing had just concluded in which Anthony Rentas was put on house arrest for 90 days.Marshal Robert Kremenik was in the courtroom when Brewer Rentas insisted on shaking hands with Keene. The prosecutor refused at first, he said, but Brewer Rentas persisted, following Keene.
"Brewer forcefully grabbed onto Keene's right hand and squeezed it, pulling Keene toward her, forcing Keene off balance," Kremenik wrote in his report. "With Keene in hand, Brewer made an upward, then a quick downward motion and pulled Keene toward the ground moving her forward, almost causing Keene to fall to the ground."Gilberto Pay, a court security officer, told Kremenik that Brewer Rentas "almost pulled her arm out of the socket."
The case of an over-enthusiastic courtroom handshake that escalated into an assault charge against a local attorney was dropped Thursday by federal prosecutors who deemed it the "prudent" thing to do.Kathy Brewer Rentas, with the Hollywood firm of Becker & Poliakoff, spent the night in jail after her Feb. 7 arrest for assaulting a federal prosecutor by handshake in a Fort Lauderdale courtroom.The victim, Assistant U.S. Attorney Jennifer Keene, was prosecuting Brewer Rentas' husband, Anthony Rentas, for violating probation in a cocaine distribution case out of New York. A hearing had just concluded in which Anthony Rentas was put on house arrest for 90 days.Marshal Robert Kremenik was in the courtroom when Brewer Rentas insisted on shaking hands with Keene. The prosecutor refused at first, he said, but Brewer Rentas persisted, following Keene.
"Brewer forcefully grabbed onto Keene's right hand and squeezed it, pulling Keene toward her, forcing Keene off balance," Kremenik wrote in his report. "With Keene in hand, Brewer made an upward, then a quick downward motion and pulled Keene toward the ground moving her forward, almost causing Keene to fall to the ground."Gilberto Pay, a court security officer, told Kremenik that Brewer Rentas "almost pulled her arm out of the socket."
Steve Stallings makes a move
FOB* Steve Stallings is leaving the U.S. Attorney's office (in Pittsburgh) and going into private practice. It's making news in Pittsburgh (see here and here):
The prosecutor who headed the federal public corruption cases against Dr. Cyril H. Wecht and the Allegheny County Sheriff's Office is crossing the aisle.
Thursday was the last day in the U.S. Attorney's Office for Stephen Stallings, who heads down Grant Street from the federal courthouse to go into private practice at Dreier, a law firm in the Koppers Building.
"Most of my career has been in private practice," said Stallings, 40. "And this was the right time for me and my family to make the return."
Stallings practiced civil law in south Florida before joining the U.S. Attorney's Office in Miami in 2001. He moved to Pittsburgh, his wife's hometown, in 2004.
*Friend of Blog
The prosecutor who headed the federal public corruption cases against Dr. Cyril H. Wecht and the Allegheny County Sheriff's Office is crossing the aisle.
Thursday was the last day in the U.S. Attorney's Office for Stephen Stallings, who heads down Grant Street from the federal courthouse to go into private practice at Dreier, a law firm in the Koppers Building.
"Most of my career has been in private practice," said Stallings, 40. "And this was the right time for me and my family to make the return."
Stallings practiced civil law in south Florida before joining the U.S. Attorney's Office in Miami in 2001. He moved to Pittsburgh, his wife's hometown, in 2004.
*Friend of Blog
Thursday, July 10, 2008
Jack Thompson update
Honestly, I can't keep up with all the twists and turns of Mr. Thompson's various cases. I do know that Judge Dava Tunis has recommended that he be disbarred for life (169 page order). And on another front, he is suing Chief Judge Moreno and the U.S. Marshal. For more updates, visit Game Politics.
Wednesday, July 09, 2008
Caption contest
The actual caption under this photo in the Miami Herald today was:U.S. Attorney Alexander Acosta, right foreground, and Diego Herrera, Director of the Colombian Institute of Anthropology, left, foreground, look at recovered artifacts in Miami, Tuesday, July 8, 2008. Federal authorities in Miami have recovered a treasure trove of pre-Columbian gold, artifacts and emeralds, which were returned to the Colombian government. The treasures will be handed over to authorities from the South American nation on Tuesday. Federal authorities say the items were recovered from an Italian citizen who was living in south Florida and illegally smuggling them into the country.
Can you come up with a better caption?
Tuesday, July 08, 2008
A federal judge's limerick in response to a 465 page complaint
"Plaintiff has a great deal to say,
But it seems he skipped Rule 8(a).
His Complaint is too long,
Which renders it wrong,
Please re-write and re-file today."
via ABA Journal (and Seattle Times)
But it seems he skipped Rule 8(a).
His Complaint is too long,
Which renders it wrong,
Please re-write and re-file today."
via ABA Journal (and Seattle Times)
Monday, July 07, 2008
Sailfish, beagles, and...
...turtles. Oh my.
Tom Watts-Fitzgerald is prosecuting a business for selling small turtles. From Vanessa Blum's article last week:
There's a new salmonella threat in South Florida and this time it's tiny turtles, not tomatoes.Federal prosecutor Thomas Watts-Fitzgerald filed misdemeanor charges last week against a Hollywood-based reptile business. The business is accused of violating a public health law banning the sale of turtles with shells less than 4 inches long.Strictly Reptiles, which claims to be the nation's largest wildlife importer/exporter, illegally supplied 400 undersized Mississippi map turtles and 600 Yellow-bellied sliders that turned up for sale at flea markets, kiosks and pet stores, prosecutors allege.Congress enacted the ban in 1975, after public health investigations identified small turtles as a major source of human salmonella infections, particularly in children who liked to put the critters in their mouths.
Tom Watts-Fitzgerald is prosecuting a business for selling small turtles. From Vanessa Blum's article last week:
There's a new salmonella threat in South Florida and this time it's tiny turtles, not tomatoes.Federal prosecutor Thomas Watts-Fitzgerald filed misdemeanor charges last week against a Hollywood-based reptile business. The business is accused of violating a public health law banning the sale of turtles with shells less than 4 inches long.Strictly Reptiles, which claims to be the nation's largest wildlife importer/exporter, illegally supplied 400 undersized Mississippi map turtles and 600 Yellow-bellied sliders that turned up for sale at flea markets, kiosks and pet stores, prosecutors allege.Congress enacted the ban in 1975, after public health investigations identified small turtles as a major source of human salmonella infections, particularly in children who liked to put the critters in their mouths.
Friday, July 04, 2008
Three Years Old!
Happy Birthday to us!
Fourth of July weekend three years ago, the SDFLA blog was born -- the first (I think) legal blog in South Florida (since then, a bunch of great local legal blogs have become daily reading -- Rumpole, Broward Blog, SFLawyers, to name a few).
Here's our very first post.
Our 1st b-day post.
And our 2nd (and here).
This is the 930th post! The blog has grown quite a bit and it's been a lot of fun. Thanks for stopping by and reading.
Fourth of July weekend three years ago, the SDFLA blog was born -- the first (I think) legal blog in South Florida (since then, a bunch of great local legal blogs have become daily reading -- Rumpole, Broward Blog, SFLawyers, to name a few).
Here's our very first post.
Our 1st b-day post.
And our 2nd (and here).
This is the 930th post! The blog has grown quite a bit and it's been a lot of fun. Thanks for stopping by and reading.
Thursday, July 03, 2008
Happy 4th
Have a great weekend.
SPECIAL NOTE TO AUSAs and PDs -- on July 23rd we are having a lunch time talk (sponsored by the Federal Bar Association) on opening statements. The panel will include Chief Judge Moreno, Jan Smith, Ed Stamm, and Matt Menchel. Lunch will be served. RSVP to Lourdes at Lourdes_Fernandez@flsd.uscourts.gov AUSAs and PDs only for this one.
Tuesday, July 01, 2008
From the most boring post ever to .....
Well, I've been trying not to blog this story for a bunch of reasons, but everyone is talking about this and I have received more than 20 emails from lawyers, judges, and others asking about it and why I haven't written about it (and thanks for all the tips that came in). So, for the few of you who haven't heard, there was an altercation between Bill Barzee and Benson Weintraub yesterday. I am including a passage from someone who claims to have knowledge of what happened:
"Bill Barzee was headed into the FDC yesterday when he ran into Benson Weintraub on the way out. They ran into each other in front of the tower building. Apparently words were exchanged about one of Bill's clients. Benson told Bill that he was taking over the case. He told Bill to go back to his office and write him a check. He told Bill that there was no need to go into the jail. This led to a further exchange of words...
Benson then attacked Bill, punching him twice in the face. Bill was carrying his briefcase in one hand and his jacket in the other. Bill then tried to push and kick Benson away. He put Benson in a headlock and subdued him until the Marshals came and broke it up.
Benson told others that he cold-cocked Bill because of Bill's comments."
If you were an eyewitness or have further information please email me.
Most boring post *ever*
This post is coming straight at you from the en banc 11th Circuit. I know, I know -- b-o-r-i-n-g.
1. First up is United States v. Svete. The Court agreed to hear the case en banc. This is going to be followed by all prosecutors and defense lawyers. The panel decision reversed a mail fraud conviction because, the court held, mail and wire fraud offenses do not encompass schemes which are not calculated to deceive a reasonably prudent person. The Court will address whether mail fraud (and related offenses) encompass schemes which are not calculated to deceive a reasonably prudent person? Get fired up baby!
2. Next is Jerry Greenberg v. National Geographic Society. No, not that Jerry Greenberg. This Jerry Greenberg. Can National Geographic reproduce (on a CD set) old magazines with Greenberg's pictures without his permission?
Judge Barkett wrote the majority opinion, which starts out this way:
Appellant National Geographic Society is a nonprofit scientific and educational organization that has published a monthly magazine since 1888.2 The Society also produces televised programs and computer software as well as other educational products through National Geographic Enterprises, a wholly-owned and for-profit subsidiary of the Society. Appellee Jerry Greenberg is a freelance photographer, some of whose photographs were published in four issues of the National Geographic Magazine. For decades, the Society has reproduced back issues of the Magazine in bound volumes, microfiche, and microfilm. In 1997, National Geographic produced “The Complete National Geographic” (“CNG”), a thirty-disc CD-ROM4
set containing each monthly issue of the Magazine, as it was originally published, for the 108 years from 1888 through 1996—roughly 1200 issues of the Magazine. In addition, the CNG includes a short opening montage and a computer program that allows users to search the CNG, zoom into particular pages, and print. Greenberg sued National Geographic, alleging that it had infringed his copyrights by reproducing in the CNG the print magazine issues that included his photographs. The district court disagreed and granted summary judgment in favor of National Geographic, holding that because the CNG constituted a “revision” of
the print issues of the Magazine, the reproduction of Greenberg’s photographs in the CNG was privileged under 17 U.S.C. § 201(c) of the Copyright Act and did not constitute an infringement of Greenberg’s copyrights. However, a panel of this Court in Greenberg v. National Geographic Society (Greenberg I), 244 F.3d 1267, 1275–76 (11th Cir. 2001), reversed and remanded for the district court to “ascertain the amount of damages and attorneys fees that are, if any, due as well as any injunctive relief that may be appropriate.” After a jury trial on damages, the jury returned a verdict against National Geographic in the amount of $400,000.
National Geographic appealed again, this time arguing that the intervening decision of the U.S. Supreme Court in New York Times Co. v. Tasini, 533 U.S. 483 (2001), decided after Greenberg I, mandated a reversal of the jury verdict against it. A second panel of this Court agreed, finding that Tasini compelled a reversal of the jury verdict because, under Tasini’s rationale, National Geographic was privileged to reproduce its print magazines in digital format pursuant to § 201(c) of the Copyright Act. See Greenberg v. Nat’l Geographic Soc’y
(Greenberg II), 488 F.3d 1331 (11th Cir. 2007).5 This Court then vacated the Greenberg II panel opinion and granted rehearing en banc to address the question of whether National Geographic’s use of Greenberg’s photographs in the CNG is privileged.
The conclusion:
In the light of the Supreme Court’s holding in Tasini that the bedrock of any § 201(c) analysis is contextual fidelity to the original print publication as presented to, and perceivable by, the users of the revised version of the original publication, we agree with the Second Circuit in Faulkner and find that National Geographic is privileged to reproduce and distribute the CNG under the “revision” prong of § 201(c).
The CNG—albeit in a different medium than print or microform—is a permissible reproduction of the National Geographic Magazine. Greenberg’s photographs are preserved intact in the CNG and can only be viewed as part of the original collective works in which they appeared. Similar to the microforms of Tasini, which preserve the context of multiple issues of magazines, the CNG’s digital CD-ROMs faithfully preserve the original context of National Geographic’s print issues. The CNG’s additional elements—such as its search function, its
indexes, its zoom function, and the introductory sequence—do not deprive National Geographic of its § 201(c) privilege in that they do not destroy the original context of the collective work in which Greenberg’s photographs appear.21 We REVERSE and REMAND to the district court for proceedings consistent with this opinion.
1. First up is United States v. Svete. The Court agreed to hear the case en banc. This is going to be followed by all prosecutors and defense lawyers. The panel decision reversed a mail fraud conviction because, the court held, mail and wire fraud offenses do not encompass schemes which are not calculated to deceive a reasonably prudent person. The Court will address whether mail fraud (and related offenses) encompass schemes which are not calculated to deceive a reasonably prudent person? Get fired up baby!
2. Next is Jerry Greenberg v. National Geographic Society. No, not that Jerry Greenberg. This Jerry Greenberg. Can National Geographic reproduce (on a CD set) old magazines with Greenberg's pictures without his permission?
Judge Barkett wrote the majority opinion, which starts out this way:
Appellant National Geographic Society is a nonprofit scientific and educational organization that has published a monthly magazine since 1888.2 The Society also produces televised programs and computer software as well as other educational products through National Geographic Enterprises, a wholly-owned and for-profit subsidiary of the Society. Appellee Jerry Greenberg is a freelance photographer, some of whose photographs were published in four issues of the National Geographic Magazine. For decades, the Society has reproduced back issues of the Magazine in bound volumes, microfiche, and microfilm. In 1997, National Geographic produced “The Complete National Geographic” (“CNG”), a thirty-disc CD-ROM4
set containing each monthly issue of the Magazine, as it was originally published, for the 108 years from 1888 through 1996—roughly 1200 issues of the Magazine. In addition, the CNG includes a short opening montage and a computer program that allows users to search the CNG, zoom into particular pages, and print. Greenberg sued National Geographic, alleging that it had infringed his copyrights by reproducing in the CNG the print magazine issues that included his photographs. The district court disagreed and granted summary judgment in favor of National Geographic, holding that because the CNG constituted a “revision” of
the print issues of the Magazine, the reproduction of Greenberg’s photographs in the CNG was privileged under 17 U.S.C. § 201(c) of the Copyright Act and did not constitute an infringement of Greenberg’s copyrights. However, a panel of this Court in Greenberg v. National Geographic Society (Greenberg I), 244 F.3d 1267, 1275–76 (11th Cir. 2001), reversed and remanded for the district court to “ascertain the amount of damages and attorneys fees that are, if any, due as well as any injunctive relief that may be appropriate.” After a jury trial on damages, the jury returned a verdict against National Geographic in the amount of $400,000.
National Geographic appealed again, this time arguing that the intervening decision of the U.S. Supreme Court in New York Times Co. v. Tasini, 533 U.S. 483 (2001), decided after Greenberg I, mandated a reversal of the jury verdict against it. A second panel of this Court agreed, finding that Tasini compelled a reversal of the jury verdict because, under Tasini’s rationale, National Geographic was privileged to reproduce its print magazines in digital format pursuant to § 201(c) of the Copyright Act. See Greenberg v. Nat’l Geographic Soc’y
(Greenberg II), 488 F.3d 1331 (11th Cir. 2007).5 This Court then vacated the Greenberg II panel opinion and granted rehearing en banc to address the question of whether National Geographic’s use of Greenberg’s photographs in the CNG is privileged.
The conclusion:
In the light of the Supreme Court’s holding in Tasini that the bedrock of any § 201(c) analysis is contextual fidelity to the original print publication as presented to, and perceivable by, the users of the revised version of the original publication, we agree with the Second Circuit in Faulkner and find that National Geographic is privileged to reproduce and distribute the CNG under the “revision” prong of § 201(c).
The CNG—albeit in a different medium than print or microform—is a permissible reproduction of the National Geographic Magazine. Greenberg’s photographs are preserved intact in the CNG and can only be viewed as part of the original collective works in which they appeared. Similar to the microforms of Tasini, which preserve the context of multiple issues of magazines, the CNG’s digital CD-ROMs faithfully preserve the original context of National Geographic’s print issues. The CNG’s additional elements—such as its search function, its
indexes, its zoom function, and the introductory sequence—do not deprive National Geographic of its § 201(c) privilege in that they do not destroy the original context of the collective work in which Greenberg’s photographs appear.21 We REVERSE and REMAND to the district court for proceedings consistent with this opinion.
Monday, June 30, 2008
Supreme Court Term is over
There aren't many jobs where you get the entire summer off -- school teachers and.... Supreme Court Justices.
Here's Linda Greenhouse's summary of the October 2007 Term. She is retiring, so this may be her last article.
Here's a cool graphic from the article on the major cases of the Term:
Thursday, June 26, 2008
News and Notes
1. We previously covered the plea/sentencing that went bad in the Shahrazad Mir Gholikhan's case. She was sentenced to 29 months a week after Judge Cohn sentenced her to credit time served. Today, that plea and sentence was vacated because everyone, including the prosecutor and the judge, believed that the guidelines were 0-6 when Gholikhan pleaded guilty. The Sun-Sentinel article is here. Trial coming up in August. Bill Barzee for the defense.
2. The Sun-Sentinel also covers this shocking case here. According to the civil defendants in this case, Florida is an "anti-gay" state. Here's the intro from the article:
The family vacation cruise that Janice Langbehn, her partner Lisa Marie Pond and three of their four children set out to take in February 2007 was designed to be a celebration of the lesbian couple's 18 years together.But when Pond suffered a massive stroke onboard before the ship left port and was rushed to Jackson Memorial Hospital, administrators refused to let Langbehn into the Pond's hospital room. A social worker told them they were in an "anti-gay city and state."Langbehn filed a federal lawsuit Wednesday charging the Miami hospital with negligence and "anti-gay animus" in refusing to recognize her and the children as Pond's family, even after a power of attorney was faxed to the hospital within an hour of their arrival.The case raises questions about the way hospitals deal with same-sex or unmarried partners of patients, which has led to controversy in the past. Hospital industry officials say they are constrained by patient privacy laws that can restrict giving visiting access and medical information to nonrelatives, a stance that some patient advocates have branded as discriminatory.
2. The Sun-Sentinel also covers this shocking case here. According to the civil defendants in this case, Florida is an "anti-gay" state. Here's the intro from the article:
The family vacation cruise that Janice Langbehn, her partner Lisa Marie Pond and three of their four children set out to take in February 2007 was designed to be a celebration of the lesbian couple's 18 years together.But when Pond suffered a massive stroke onboard before the ship left port and was rushed to Jackson Memorial Hospital, administrators refused to let Langbehn into the Pond's hospital room. A social worker told them they were in an "anti-gay city and state."Langbehn filed a federal lawsuit Wednesday charging the Miami hospital with negligence and "anti-gay animus" in refusing to recognize her and the children as Pond's family, even after a power of attorney was faxed to the hospital within an hour of their arrival.The case raises questions about the way hospitals deal with same-sex or unmarried partners of patients, which has led to controversy in the past. Hospital industry officials say they are constrained by patient privacy laws that can restrict giving visiting access and medical information to nonrelatives, a stance that some patient advocates have branded as discriminatory.
Local ex-AUSA shines during scandal
The Honors Program has been described as the "jewel" of the Justice Department because it used to have the brightest young lawyers in the country.
But a report was issued this week, explaining how during the Bush Administration, the Honors Program became politicized, screening out qualified applicants because they were members of organizations that appeared to be liberal (like American Constitution Society or Greenpeace) or had other items on their resumes indicating that they weren't staunch right wing Republicans.
There was one bright light, highlighted in the report -- Dan Fridman, a then-AUSA who was doing a detail at Justice in DC (in full disclosure, Dan is a friend of mine and I have blogged about him before here.). Dan was part of the committee chosen to screen applicants for interviews. Dan wanted to screen ... (take a deep breath!) ... based on merit (!!), but was told his job was to weed out the "wackos" (read: the liberals). Dan refused and continued to recommend candidates for interviews based on merit, not on ideology. The money quote of the 100+ page report:
In addition, we believe that various employees in the Department
deserve credit for raising concerns about the apparent use of political or
ideological consideration in the Honors Program and SLIP hiring
processes. For example, Daniel Fridman deserves praise for reporting
his concerns about the process in 2006 to both his supervisor and
Elston and for avoiding the use of improper considerations in his review
of candidates for the Honors Program and SLIP. A few DOJ political
employees also objected to the apparent use of political or ideological
considerations in the hiring process, such as Assistant Attorneys
General Peter Keisler and Eileen O’Connor, and they should be credited
for raising their concerns. Certain career employees, particularly in the
Tax Division and the Civil Division, also pressed concerns about the
hiring process. By contrast, we believe that others in the Department,
such as Acting Associate Attorney General William Mercer and OARM
Director Louis DeFalaise, did not sufficiently address the complaints
about the deselections.
There's a ton more here to read. I enjoyed reading the"Fridman criteria" for receiving an interview:
To identify a subset of highly qualified candidates, we relied on
criteria that one of the Screening Committee members, Daniel Fridman,
described as an indication that the candidates were so highly qualified
that they merited just a quick check before he approved them. Fridman
said that if candidates attended a top 20 law school, were in the top
20 percent of their respective classes, or were at a school that did not
rank students, he tended to approve them automatically unless they
had a C on their transcripts.30 We refer to these criteria as the
“Fridman criteria.”
Here's Keith Olbermann on the whole thing (and he mentions Dan by name):
Of course, anyone who knows Dan, knows he would do the right thing. In fact, see our post here from January 2006:
Congrats to AUSA Daniel Fridman (from this District). He has accepted a special assignment to work with the Acting Deputy U.S. Attorney General Paul McNulty (the #2 guy at DOJ in DC) on shaping the administration's criminal and civil rights policy. Those that know Dan, know that he is a good and fair prosecutor and I hope he uses the time in DC to promote his even-tempered philosophy.
Dan is now at working at Lewis Tein. Congrats to him on how he handled himself in this mess...
But a report was issued this week, explaining how during the Bush Administration, the Honors Program became politicized, screening out qualified applicants because they were members of organizations that appeared to be liberal (like American Constitution Society or Greenpeace) or had other items on their resumes indicating that they weren't staunch right wing Republicans.
There was one bright light, highlighted in the report -- Dan Fridman, a then-AUSA who was doing a detail at Justice in DC (in full disclosure, Dan is a friend of mine and I have blogged about him before here.). Dan was part of the committee chosen to screen applicants for interviews. Dan wanted to screen ... (take a deep breath!) ... based on merit (!!), but was told his job was to weed out the "wackos" (read: the liberals). Dan refused and continued to recommend candidates for interviews based on merit, not on ideology. The money quote of the 100+ page report:
In addition, we believe that various employees in the Department
deserve credit for raising concerns about the apparent use of political or
ideological consideration in the Honors Program and SLIP hiring
processes. For example, Daniel Fridman deserves praise for reporting
his concerns about the process in 2006 to both his supervisor and
Elston and for avoiding the use of improper considerations in his review
of candidates for the Honors Program and SLIP. A few DOJ political
employees also objected to the apparent use of political or ideological
considerations in the hiring process, such as Assistant Attorneys
General Peter Keisler and Eileen O’Connor, and they should be credited
for raising their concerns. Certain career employees, particularly in the
Tax Division and the Civil Division, also pressed concerns about the
hiring process. By contrast, we believe that others in the Department,
such as Acting Associate Attorney General William Mercer and OARM
Director Louis DeFalaise, did not sufficiently address the complaints
about the deselections.
There's a ton more here to read. I enjoyed reading the"Fridman criteria" for receiving an interview:
To identify a subset of highly qualified candidates, we relied on
criteria that one of the Screening Committee members, Daniel Fridman,
described as an indication that the candidates were so highly qualified
that they merited just a quick check before he approved them. Fridman
said that if candidates attended a top 20 law school, were in the top
20 percent of their respective classes, or were at a school that did not
rank students, he tended to approve them automatically unless they
had a C on their transcripts.30 We refer to these criteria as the
“Fridman criteria.”
Here's Keith Olbermann on the whole thing (and he mentions Dan by name):
Of course, anyone who knows Dan, knows he would do the right thing. In fact, see our post here from January 2006:
Congrats to AUSA Daniel Fridman (from this District). He has accepted a special assignment to work with the Acting Deputy U.S. Attorney General Paul McNulty (the #2 guy at DOJ in DC) on shaping the administration's criminal and civil rights policy. Those that know Dan, know that he is a good and fair prosecutor and I hope he uses the time in DC to promote his even-tempered philosophy.
Dan is now at working at Lewis Tein. Congrats to him on how he handled himself in this mess...
Wednesday, June 25, 2008
Exciting week at the Supreme Court
This is the last week for Supreme Court action, and it has been an exciting one. SCOTUSblog is the place to be, and they've added to the drama with their live-blogging feature each morning at 10am. It's worth checking out -- you'll have to see it tomorrow as that will be the last day for decisions. The big one to be decided tomorrow is the gun case, Heller. Today was also big as the Court ruled that the death penalty cannot be imposed in a child rape case (and any other case) that does not result in death to the victim. 5-4, with Kennedy writing for the majority of usual suspects, and Alito writing for the 4 dissenters. The other big case today was the Exxon punitive damages case in which the Court found that punis were limited to compensatory damages.
Here is SCOTUSBlog on the child rape case:
Barring the death penalty for any crime that does not take the life of an individual victim, the Supreme Court ruled Wednesday that it is unconstitutional to impose the death penalty for the crime of raping a child. If the victim does not die and death was not intended, capital punishment for that crime violates the Eighth Amendment, the Court ruled in an opinion by Justice Anthony M. Kennedy. The case was Patrick Kennedy v. Louisiana (07-343). The broad declaration that death sentences should be reserved “for crimes that take the life of the victim” will apply, the Court said, to crimes against individuals — thus leaving intact, for example, a possible death sentence for treason.Part of the Court’s rationale for nullifying a death sentence for raping a child was that the child victim gets enlisted, perhaps repeatedly, to recount the crime, forcing on the child “a moral choice” that the youngster is not mature enough to make. “The way the death penalty here involves the child victim in its enforcement can compromise a decent legal system,” Justice Kennedy wrote.
The decision split the Court 5-4. It nullified a Louisiana law that provided capital punishment for raping a child under age 12. The law was since amended to apply to raping a child under age 13. Five other states have similar laws.
At the close of Wednesday’s public session, Chief Justice John G. Roberts, Jr., announced that the Court will issue all remaining decisions for the Term at 10 a.m. Thursday. The test case on whether the Second Amendment protects an individual right to possess a gun is among those remaining (District of Columbia v. Heller, 07-290). The others still pending are cases on the constitutionality of the so-called “Millionaire’s Amendment” on campaign finance (Davis v. FEC, 07-320), and on federal regulators’ power to undo wholesale energy sales contracts (Morgan Stanley Capital v. Public Utility District, 06-1457, and a companion case).
Justice Kennedy’s majority opinion in the Louisiana capital case was supported by Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens. Justice Samuel A. Alito, Jr., wrote for the dissenters; he was joined by Chief Justice Roberts and Justices Antonin Scalia and Clarence Thomas.
Justice Alito, rejecting the majority view that there is now a national consensus against executing one who rapes a child, argued that the focus should not be on the fact that only six states now have such laws. More might have taken the step, Alito argued, if the Supreme Court in barring execution for raping an adult in 1977 had not given state legislators “good reason to fear” that they never could pass such a law. The broad dicta in that case, Alito said, was not supported by all of those in the majority in Coker v. Georgia. Since then, the Justice added, state courts have read the Coker opinion in its widest sweep, “stunting legislative consideration” of the death penalty when a child was the victim.
Here is SCOTUSBlog on the child rape case:
Barring the death penalty for any crime that does not take the life of an individual victim, the Supreme Court ruled Wednesday that it is unconstitutional to impose the death penalty for the crime of raping a child. If the victim does not die and death was not intended, capital punishment for that crime violates the Eighth Amendment, the Court ruled in an opinion by Justice Anthony M. Kennedy. The case was Patrick Kennedy v. Louisiana (07-343). The broad declaration that death sentences should be reserved “for crimes that take the life of the victim” will apply, the Court said, to crimes against individuals — thus leaving intact, for example, a possible death sentence for treason.Part of the Court’s rationale for nullifying a death sentence for raping a child was that the child victim gets enlisted, perhaps repeatedly, to recount the crime, forcing on the child “a moral choice” that the youngster is not mature enough to make. “The way the death penalty here involves the child victim in its enforcement can compromise a decent legal system,” Justice Kennedy wrote.
The decision split the Court 5-4. It nullified a Louisiana law that provided capital punishment for raping a child under age 12. The law was since amended to apply to raping a child under age 13. Five other states have similar laws.
At the close of Wednesday’s public session, Chief Justice John G. Roberts, Jr., announced that the Court will issue all remaining decisions for the Term at 10 a.m. Thursday. The test case on whether the Second Amendment protects an individual right to possess a gun is among those remaining (District of Columbia v. Heller, 07-290). The others still pending are cases on the constitutionality of the so-called “Millionaire’s Amendment” on campaign finance (Davis v. FEC, 07-320), and on federal regulators’ power to undo wholesale energy sales contracts (Morgan Stanley Capital v. Public Utility District, 06-1457, and a companion case).
Justice Kennedy’s majority opinion in the Louisiana capital case was supported by Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens. Justice Samuel A. Alito, Jr., wrote for the dissenters; he was joined by Chief Justice Roberts and Justices Antonin Scalia and Clarence Thomas.
Justice Alito, rejecting the majority view that there is now a national consensus against executing one who rapes a child, argued that the focus should not be on the fact that only six states now have such laws. More might have taken the step, Alito argued, if the Supreme Court in barring execution for raping an adult in 1977 had not given state legislators “good reason to fear” that they never could pass such a law. The broad dicta in that case, Alito said, was not supported by all of those in the majority in Coker v. Georgia. Since then, the Justice added, state courts have read the Coker opinion in its widest sweep, “stunting legislative consideration” of the death penalty when a child was the victim.
Tuesday, June 24, 2008
Florida Supreme Court steps in on Conway settlement
We've covered Sean Conway's bar issue and proposed settlement before (He agreed to settle his bar case for calling Judge Aleman on the Broward Blog an "evil, unfair witch" for a public reprimand).
Apparently, the Florida Supreme Court didn't accept the settlement with the bar, asking if Conway's speech was protected by the First Amendment. According to this DBR article:
The Florida Supreme Court is questioning a proposed settlement brokered by The Florida Bar in a disciplinary case against a Fort Lauderdale criminal defense attorney for his critical comments about a judge. The court asked for more information from The Bar and attorney Sean Conway on Monday. It issued an order directing them “to show cause” by July 14 whether “any of the respondent’s comments should be considered protected speech under the First Amendment.”
I hope the Florida Supreme Court does the right thing in the end and dismisses the case brought by the Florida Bar. Kudos to the Court for not rubber-stamping this deal.
Apparently, the Florida Supreme Court didn't accept the settlement with the bar, asking if Conway's speech was protected by the First Amendment. According to this DBR article:
The Florida Supreme Court is questioning a proposed settlement brokered by The Florida Bar in a disciplinary case against a Fort Lauderdale criminal defense attorney for his critical comments about a judge. The court asked for more information from The Bar and attorney Sean Conway on Monday. It issued an order directing them “to show cause” by July 14 whether “any of the respondent’s comments should be considered protected speech under the First Amendment.”
I hope the Florida Supreme Court does the right thing in the end and dismisses the case brought by the Florida Bar. Kudos to the Court for not rubber-stamping this deal.
Is snitching worth it?
Apparently in the case of William Hames, it wasn't.
He lost his pension. He lost his eye. And it appears that he even lost his will to live. Very sad...
Dan Christensen explores the issue here:
After retired police officer William Hames finally came clean about the gun-planting coverup that rocked Miami this decade -- and helped federal prosecutors convict seven fellow dirty officers -- he sought to pick up the pieces of his life.
Instead, they fell apart.
Two city pension funds voted to strip Hames of retirement benefits, citing his 2004 felony convictions in a case in which his cooperation spared him from prison. They demanded Hames, 60, repay the $548,000 he had received since leaving the force in 1998 after 25 years.
Hames, stocking shelves full-time at Publix to comply with the terms of his probation, hired an attorney and tried to fight back, but the law was against him.
On Feb. 21, two weeks before a Miami appeals court upheld a city forfeiture order, the Vietnam veteran and recovering alcoholic pointed a 9mm handgun toward his face and pulled the trigger in his Orlando-area home.
The blast blew out his left eye, but Hames lived.
''Hames advised when the gunshot did not kill him, he waited a few hours before finally driving himself to the hospital,'' says a Volusia County Sheriff's Office report.
He lost his pension. He lost his eye. And it appears that he even lost his will to live. Very sad...
Dan Christensen explores the issue here:
After retired police officer William Hames finally came clean about the gun-planting coverup that rocked Miami this decade -- and helped federal prosecutors convict seven fellow dirty officers -- he sought to pick up the pieces of his life.
Instead, they fell apart.
Two city pension funds voted to strip Hames of retirement benefits, citing his 2004 felony convictions in a case in which his cooperation spared him from prison. They demanded Hames, 60, repay the $548,000 he had received since leaving the force in 1998 after 25 years.
Hames, stocking shelves full-time at Publix to comply with the terms of his probation, hired an attorney and tried to fight back, but the law was against him.
On Feb. 21, two weeks before a Miami appeals court upheld a city forfeiture order, the Vietnam veteran and recovering alcoholic pointed a 9mm handgun toward his face and pulled the trigger in his Orlando-area home.
The blast blew out his left eye, but Hames lived.
''Hames advised when the gunshot did not kill him, he waited a few hours before finally driving himself to the hospital,'' says a Volusia County Sheriff's Office report.
Sunday, June 22, 2008
The FPD/CJA conference
The Southern District federal courthouses were mostly quiet Thursday and Friday as the Federal Public Defenders and CJA lawyers had their annual conference, this time in Naples. (Were you there Rumpole?)
The U.S. Attorney's Office was still working though, indicting this high-profile case (via the AP):
A 22-year-old Miami Beach man whose company had a contract to supply the U.S. military with ammunition for forces in Afghanistan has been charged along with three others with providing prohibited Chinese-made ammunition and saying it came from Albania.
Efraim Diveroli and two others charged in the case made their first appearance Friday afternoon in federal court in Miami. A fourth man was being charged in Utah.
Diveroli's company, AEY Inc., was paid more than $10 million for 35 shipments of ammunition that prosecutors say was manufactured in China.
Prosecutors contend AEY Inc. removed markings from containers to hide the fact they were manufactured in China. In each instance, Diveroli certified that the ammunition was manufactured in Albania and submitted an invoice for it, they said.
Diveroli's company was given a $298 million contract by the U.S. Army in 2007 to provide several types of ammunition. It was not clear how much of that contract had been paid, but the first shipment of ammunition listed in court documents was from June 2007.
Here's Alex Acosta, who is getting pretty good at the soundbite:
At a news conference, U.S. Attorney R. Alexander Acosta said that quality control is one reason the government wants to know the manufacturer and origin of ammunition.
He said Diveroli's company "intentionally cut corners" and that it was "risking the lives of our troops and allies." He also said that the ammunition was "old" but did not say when it was manufactured. He said the defendants could face more than ten years in prison if convicted.
Defense lawyer Howard Srebnick (he is co-counsel with Hy Shapiro) responds:
Diveroli's attorney, Howard Srebnick, said in an e-mail that the government has "misconstrued" the law his client is accused of breaking. He said the government knew Diveroli bought the ammunition from the Albanian government and that it was made in China before a munitions embargo.
If you are looking for some time to kill on Monday morning, check out EW's top 100 movies, TV shows, books, videogames, tech, (and others) of the past 25 years here. Pulp Fiction is a fair choice for #1, but my top TV show is Seinfeld. As for video games, I agree with Tetris, but you gotta move Tecmo Bowl way up...
The U.S. Attorney's Office was still working though, indicting this high-profile case (via the AP):
A 22-year-old Miami Beach man whose company had a contract to supply the U.S. military with ammunition for forces in Afghanistan has been charged along with three others with providing prohibited Chinese-made ammunition and saying it came from Albania.
Efraim Diveroli and two others charged in the case made their first appearance Friday afternoon in federal court in Miami. A fourth man was being charged in Utah.
Diveroli's company, AEY Inc., was paid more than $10 million for 35 shipments of ammunition that prosecutors say was manufactured in China.
Prosecutors contend AEY Inc. removed markings from containers to hide the fact they were manufactured in China. In each instance, Diveroli certified that the ammunition was manufactured in Albania and submitted an invoice for it, they said.
Diveroli's company was given a $298 million contract by the U.S. Army in 2007 to provide several types of ammunition. It was not clear how much of that contract had been paid, but the first shipment of ammunition listed in court documents was from June 2007.
Here's Alex Acosta, who is getting pretty good at the soundbite:
At a news conference, U.S. Attorney R. Alexander Acosta said that quality control is one reason the government wants to know the manufacturer and origin of ammunition.
He said Diveroli's company "intentionally cut corners" and that it was "risking the lives of our troops and allies." He also said that the ammunition was "old" but did not say when it was manufactured. He said the defendants could face more than ten years in prison if convicted.
Defense lawyer Howard Srebnick (he is co-counsel with Hy Shapiro) responds:
Diveroli's attorney, Howard Srebnick, said in an e-mail that the government has "misconstrued" the law his client is accused of breaking. He said the government knew Diveroli bought the ammunition from the Albanian government and that it was made in China before a munitions embargo.
If you are looking for some time to kill on Monday morning, check out EW's top 100 movies, TV shows, books, videogames, tech, (and others) of the past 25 years here. Pulp Fiction is a fair choice for #1, but my top TV show is Seinfeld. As for video games, I agree with Tetris, but you gotta move Tecmo Bowl way up...
Thursday, June 19, 2008
The Onion covers Kozinski
Tuesday, June 17, 2008
Blogging about your own criminal trial...
... as a defendant.
UPDATED BELOW
Yup, you can read about photographer Carlos Miller's trial in state court from Miller's perspective.
I find it fascinating. Apparently, the prosecutor asked Judge Joe Fernandez (in state county court) to prohibit Miller from blogging about the trial. Fernandez denied that request.
Interesting that in a trial about First Amendment rights that the prosecutor would ask for the defendant not to be able to blog about the case....
Good for Judge Fernandez.
Hat Tip Rumpole.
UPDATE -- Well, the trial is over. And blogger/defendant Carlos Miller is not happy with the result. And apparently, Judge Fernandez is not happy with Mr. Miller, sentencing him to more probation than requested by the prosecutor.
UPDATED BELOW
Yup, you can read about photographer Carlos Miller's trial in state court from Miller's perspective.
I find it fascinating. Apparently, the prosecutor asked Judge Joe Fernandez (in state county court) to prohibit Miller from blogging about the trial. Fernandez denied that request.
Interesting that in a trial about First Amendment rights that the prosecutor would ask for the defendant not to be able to blog about the case....
Good for Judge Fernandez.
Hat Tip Rumpole.
UPDATE -- Well, the trial is over. And blogger/defendant Carlos Miller is not happy with the result. And apparently, Judge Fernandez is not happy with Mr. Miller, sentencing him to more probation than requested by the prosecutor.
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