New 11th Cases

United States v. Beasley: The Eleventh gets slapped down and then has to explain why (kind of).

What is interesting about the case is the degree that the Supreme Court in Carr v. United States, 130 S.Ct. 2229 (2010) (which remanded Beasley) and the Eleventh took to avoid the obvious ex post facto problem with applying the law to Beasley. 

In sum, the Eleventh found that a federal law that made it a crime for somebody who is (1) required to register as a sex offender, (2) to travel in interstate commerce, and (3) fail to register in a new state, applied to a guy who moved to Georgia before the federal law took effect.  The Supreme Court reversed, reasoning that the plain language of the statute required travel to violate the law, and thus the law could only have been violated after it took effect. 

United States v. Weatherald:

Speaking of ex post facto, Weatherald addressed the problem of whether or not a court can utilize newer guidlines (2008) to a crime that was committed in 2002, if the newer guidlines are harsher:

"Thus, the application of the correct Guidelines range is of critical importance, and it cannot be said that the Ex Post Facto Clause is never implicated when a more recent, harsher, set of Guidelines is employed."

But still, in true Eleventh Circuit fashion, the judges managed to find that the defendants were not screwed enough to warrant reversal because the sentencing judge said he would have given the same sentence under either guideline.

"Appellants have presented no evidence that these sentences were affected by the district court’s reference to the 2008 Guidelines, and their speculation that the judge might have departed even further had he employed the 2002 Guidelines is not sufficient to show a substantial risk of harsher punishment."
...

"Therefore, we will only find an Ex Post Facto Clause violation when a district judge’s selection of a Guidelines range in effect at the time of sentencing rather than that at the time of the offense results in a substantial risk of harsher punishment."

Whatever happened to due process?  Harmless error is a beeotch.

Banna Boat Law

Forum non conveniens ("FNC").  That doctrine, is fast becomming the darling of multinational corporations which want to be free from liability for torts (crimes?) that they commit in foreign countries.

It was convenient for Chucky Taylor to be brought to the US for crimes he committed in Liberia, which had no connection to the United States, solely because he was an American citizen (and by the way, that was the right result).  But not for Dow, Occidental, Dole, Shell, and many other large corporations.

Those companies have a tool that Chucky did not have - FNC.

To prevail on a motion to dismiss based upon FNC, a defendant must establish a few things:

"that “(1) an adequate alternative forum is available, (2) the public and private factors weigh in favor of dismissal, and (3) the plaintiff can reinstate his suit in the alternative forum without undue inconvenience or prejudice"

Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1330 (11th Cir. 2011).

If they prevail, the plaintiff is out of court in the US and must pursue the claim in an alternative forum.  The benefits to the corporate defendants are obvious, not the least of which is the ability to force plaintiffs who often have little resources into jursidictions that have a great deal of "respect" for corporate defnedants.

Shell took advantage of the doctrine several years ago in seeking to send some peasent farmers back to the Nicaraguan courts after those individuals sued in the United States.  Shell won in the Fifth Circuit.  Delgado v. Shell Oil Co., 890 F.Supp. 1324 (S.D.Tex. 1995).

In Delgado, Shell convinced the Court that Nicaragua was a fine place to litigate a case.

Apparently Nicaragua is only okay for Shell if they are going to win. 

In another case just decided by the Eleventh Circuit, the Nicaraguan courts hit Shell with a 97+ million dollar judgment on similar claims to Delgado.  Shell fought the judgment in the United States, this time arguing that the jurisdiction it requested in the Delgado case really wasn't that adequate.

Needless to say, Shell won - a district judge found that the Nicaraguan courts (1) lacked subject matter and/or personal jurisdiction over Shell, (2) did not comport with standards of due process, and (3) the Nicaraguan judgment was repugnant to Florida public policy.

Of course, the Eleventh affirmed, but did not want to create precedent that would cause the immediate denial of future FNC motions when the other forum is Nicaragua, so it made sure to state that "we do not address the broader issue of whether Nicaragua as a whole “does not provide impartial tribunals” and decline to adopt
the district court’s holding on that question."

So now it seems that if you are a Nicaraguan who wants to sue a big company for something it did to you in Nicaragua (but planned in the United States), you better be prepared to (1) get kicked out of the US courts and (2) have your judgment rendered unenforceable if you do happen to win in Nicaragua by the US courts.

Seems fair to me.

Geared towards Conviction

If you ever doubted that the federal system is geared toward gaining convictions, read the quote below.  It appears in US v. Higdon, a ruling granting a petition for a writ of mandamus brought to the Third Circuit by the government, after a jury could not agree whether or not the defendant possessed a firearm.  During the trial, the judge essentially submitted an interrogatory to the jurors - the defendant had stipulated that he was a convicted felon and that the gun traveled in interstate commerce - the judge refused to inform the jury about the stipulations and instead instructed them they had to determine whether or not the defendant possessed a firearm.  Therefore, the only thing for the jury to determine was whether or not the defendant possessed a firearm.  The quote that bothered me in the context of the opinion was:

"Possession of a firearm is ordinarily not a crime, and the emotions and fervor surrounding efforts to restrict gun ownership are all too familiar to require citation. Therefore, it is quite likely that a juror would be concerned about prosecuting someone merely for possessing a firearm, particularly if the juror is a gun owner. Although no one other than the people on Higden's first jury can know why it deadlocked, common sense suggests that it may well have been because of concerns about convicting someone for simply possessing a gun. The fact that the first trial resulted in a hung jury also suggests that at least some of the jurors may have been confused about why Higden was on trial in the first place."

The problem is that the opinion went on to suggest that it would be error for the court to bifurcate a s. 922 trial (possession of a gun by a convicted felon), an issue the district judge had not ruled on.  That ruling, in light of the recognition above is quite extraordinary.

Think about it.  The appellate court found that the jury likely could not follow the judge's instructions to determine whether or not he possessed a firearm, because they had not been told the defendant was a convicted felon.  That is a particularly disturbing statement given the plethora of case law that says 'a jury is presumed to follow the instructions...'.  Essentially, the court recognizes that a jury would be less likely to convict if they are not told a defendant is a convicted felon, and they therefore must be told he is.  And yet, we have to deal with 404(b) case law every day that says a limiting instruction is sufficient.  Total B.S.

Rotten.

Roy Black's Blog

Roy Black has started a blog, and it is a must read for young lawyers - go to it and pick up any insight you can.  I would also encourage you to write in questions, I am certain Black will entertain answering them and providing guidance worth a heavy price.

I find myself often consulting other lawyers when I have questions and need guidance in matters.  I don't want to embarrass any of them by naming them here and associating them with this often ill thought out, poorly written and intemperate blog, but I find that in general, some of the finest attorneys in the Southern District are very free with their time to help a colleague and better the profession. The consultations I have received have been invaluable and frankly, worth paying for if I had to.

We should all try to become better lawyers each day - in skill and professionalism; I am certain that reading Black's blog and gaining insight into how one of the greats views the law is a step in that direction.

In other news - why is Quaddafi still in power?  Is this yet another f-up by Obama?  To wait so long to take any action, only to give Quaddafi an opportunity to accept the demands of the UN and further stall his ouster seems to me to be another missed opportunity of the Obama administration.  Of course, maybe I am just pissed at Obama because of his lack of skill in handling the federal appointments.

Our Blood Money

The concept of "blood money" is quite old.  Wigmore, in a book called A Kaledidoscope of Justice, (1941), wrote about it - the concept is not quite the same as the references in the Bible when Judas receives payment for the betrayal of Jesus.

It seems, we (that's right, you and me and the rest of American tax payers), have paid blood money.

"A Pakistani court has freed a US CIA contractor after acquitting him of two counts of murder at a hearing held at a prison in Lahore, officials say.

Raymond Davis, 36, was alleged to have shot dead two men in the eastern city of Lahore in January following what he said was an attempted armed robbery.

The acquittal came when relatives of the dead men pardoned him in court.

They confirmed to the judge overseeing the case that they had received compensation - known as "blood money".

Under Pakistani law, relatives of a murder victim can pardon the killer.

Reports say about 18 family members of the two dead men were in court on Wednesday and confirmed that they wanted Mr Davis to be freed and pardoned because they had received "blood money"."

I do not pretend to know what happened with Mr. Davis - whether he was killing in our name, in self-defense or for some other reason, but I do know that the payment to family members to obtain the dismissal of a case doesn't sit well with me. 

If the court had found that he had diplomatic immunity and set him free, I would be more comfortable with the outcome.  I guess the ultimate question is how do you value a life?  Does a person who has been a victim of a homicide deserve more than simply a value placed upon their head?  Obviously in civil practice, values are placed on decedents every day, but there is a line between negligence and murder, which is why the State steps in and prosecutes defendants, regardless of a civil settlement.  Does anybody think a defendant should be able to pay off the family members in our system?

"I'd sell your heart to the junkman baby
For a buck, for a buck
If you're looking for someone to pull you out of that ditch
You're out of luck, you're out of luck.

The ship is sinking
The ship is sinking
The ship is sinking

There's a leak, there's a leak in the boiler room
The poor, the lame, the blind
Who are the ones that we kept in charge?
Killers, thieves, and lawyers!^"

Poor Justice Scalia

"So the question raised by Justice Scalia’s most recent intemperate display [his dissent in Michigan v. Bryant] remains: what does this smart, rhetorically gifted man think his bullying accomplishes?

It’s a puzzle. But having raised the question, I will venture an answer. Antonin Scalia, approaching his 25th anniversary as a Supreme Court justice, has cast a long shadow but has accomplished surprisingly little. Nearly every time he has come close to achieving one of his jurisprudential goals, his colleagues have either hung back at the last minute or, feeling buyer’s remorse, retreated at the next opportunity."

That from Linda Greenhouse, blogging for the New York Times.  The post is worth a read, I encourage you to take a look.

Any News?

Looking for some District News.....anybody know anything interesting going on? Trials?

And the Asshole of the Month Is:

Peter King!

I know I said that I did not want to unfairly criticize people, but this guy has earned the title.   First, he wants to hold McCarthyesq hearings related to the entire Muslim American population, then he tries to explain how the I.R.A., was not a terrorist group.  From the NY Times:

"We must pledge ourselves to support those brave men and women who this very moment are carrying forth the struggle against British imperialism in the streets of Belfast and Derry,” Mr. King told a pro-I.R.A. rally on Long Island, where he was serving as Nassau County comptroller, in 1982. Three years later he declared, “If civilians are killed in an attack on a military installation, it is certainly regrettable, but I will not morally blame the I.R.A. for it.”

As Mr. King, a Republican, rose as a Long Island politician in the 1980s, benefiting from strong Irish-American support, the I.R.A. was carrying out a bloody campaign of bombing and sniping, targeting the British Army, Protestant paramilitaries and sometimes pubs and other civilian gathering spots. His statements, along with his close ties to key figures in the military and political wings of the I.R.A., drew the attention of British and American authorities.

A judge in Belfast threw him out of an I.R.A. murder trial, calling him an “obvious collaborator,” said Ed Moloney, an Irish journalist and author of “A Secret History of the I.R.A.” In 1984, Mr. King complained that the Secret Service had investigated him as a “security risk,” Mr. Moloney said.
....

Mr. King, son of a New York City police officer and grand-nephew of an I.R.A. member, offers no apologies for his past, which he has celebrated in novels that feature a Irish-American congressman with I.R.A. ties who bears a striking resemblance to the author.

....

He said he does not regret his past pro-I.R.A. statements. The Irish group, he said, was “a legitimate force” battling British repression — analogous to the African National Congress in South Africa or the Zionist Irgun paramilitary in British-ruled Palestine. “It was a dirty war on both sides,” he said of I.R.A. resistance to British rule.
....

 ....Niall O’Dowd, an Irish-born New York publisher and writer who worked with him on the peace process in the 1990s, broke publicly with him Monday on his Web site, IrishCentral.com, describing Mr. King’s “strange journey from Irish radical to Muslim inquisitor.”

In Northern Ireland, Mr. O’Dowd said, they saw a Catholic community “demonized” by its Protestant and British critics and worked to bring it to the peace table. Seeing his old friend similarly “demonize” Muslims has shocked him, he said.

“I honestly feel Peter is wrong, and his own experience in Northern Ireland teaches him that,” Mr. O’Dowd said. “He’s a very honest, working-class Irish guy from Queens who’s had an amazing career. Now I see a man turning back on himself, and I don’t know why.""

Prick.

Obama, Tribunals and Tribulations (our)

Here is a short clip of Obama stating in no uncertain terms that he is going to close Gitmo

Here is a quote from a law Obama signed on January 7, 2011, that all but sealed the deal on Gitmo - meaning it will remain open indefinitely:

"Today I have signed into law H.R. 6523...Section 1032 bars the use of funds authorized to be appropriated by this Act for fiscal year 2011 to transfer Guantanamo detainees into the United States, and section 1033 bars the use of certain funds to transfer detainees to the custody or effective control of foreign countries unless specified conditions are met. Section 1032 represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the potential to harm our national security."

Guess national security is not too important - because yesterday Obama signed an executive order providing for periodic (and indefinite) review of detainees confinement at Gitmo, which included this disturbing phrase:

"This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person."

In other words - you are stuck here - if we do not follow the "review" guidlines that we have laid out for you, tough luck.

I have become so disillusioned with Obama - I do not think it was just that I had such high hopes for what he would accomplish when he took office at a time when the Democrats had control of Congress (which he squandered) - it is that he seems to stand for nothing but an innate desire to consistently compromise; the values upon which he ran are unrecognizable.  He has done one truly encouraging thing since he took office, and he has somehow managed to screwed that one up too (up until this point) as SFL and David pointed out over the past two days, this being day 742.

Nice Ruling from Eleventh

United States v. Schmitz

"Because we conclude that the federal-funds counts of the indictment did not sufficiently allege a scheme to defraud, we vacate Schmitz’s convictions on those counts."

Gotta love when an opinion starts out that way.  Unfortunately, the very next sentence says "We affirm Schmitz’s convictions for mail fraud."  Duho!

The issue was really technical - the government failed in drafting the indictment, to incorporate by reference the more detailed allegations surrounding the mail fraud counts (which did allege a scheme to defraud) into the federal-funds theft counts.  The defendant moved to dismiss (based upon the same reasons the opinion tossed the convictions) and the magistrate and district court denied the motion.  Gotta wonder why the government wouldn't simply have taken the time to amend the indictment and save the time litigating the motions - even if it thought it was right.  What's wrong with a little extra protection?

Perhaps the more interesting point in the case is that it holds squarely that it is improper for a prosecutor to ask the 'so everybody else is lying' questions: "We first conclude that there was error in the district court’s decision to allow the prosecutor to require Schmitz to say whether other witnesses were lying, and to allow the prosecutor to make comments related to these questions in his closing argument."

The court went on to note that the error was not plain (no contemporaneous objection).  However, kudos to the Court for writing a thoughtful opinion that set forth the error, even if it was not fatal to the conviction.  Too often the Eleventh will rule that any possible error was not harmless, and then not rule on the question of whether or not there was error in the first place.  It provides zero guidance to the trial courts, and leaves  defense attorneys with very little to argue on important issues like 404(b) or Bills of Particular.  This panel easily could have done that, but instead it chose to do its duty and provide reasoned guidance and explanation; and they deserve credit for it. 

So, Judges Martin, Cox and Black (who dissented from a portion of the case), GOOD JOB!  Hopefully we will not see another one of those "...a majority of the court...vacated...rehearing..." cases.

Big First Amendment Ruling

In Snyder v. Phelps, the Supreme Court reaffirmed the power of the First Amendment.  This time in support of bigoted, terrible people who go to military funerals with signs that antagonize the grieving relatives.

The Opinion purports to be narrow, but reading some of the reasserted First Amendment principles embedded in it, one (me) cannot but wonder whether or not this opinion will later be used as a basis to overcome that terribly misguided prosecution that is ongoing in New York that I blogged about a few days ago (jury tampering for passing out pamphlets that inform jurors of their power to nullify).

"Whether the First Amendment prohibits holding West-boro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. “[S]peechon ‘matters of public concern’ . . . is ‘at the heart of the First Amendment’s protection.’” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 758–759 (1985) (opinion of Powell, J.) (quoting First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 776 (1978)). The First Amend-ment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). That is because “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U. S. 64, 74–75 (1964). Accordingly, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Connick v. Myers, 461 U. S. 138, 145 (1983) (internalquotation marks omitted).

Alito dissented.  He characterized the speech as an assault: "In this case, respondents brutally attacked Matthew Snyder, and this attack, which was almost certain to inflict injury, was central to respondents’ well-practiced strategy for attracting public attention,"and then went on to note his trouble with the fact that the church members "far beyond commentary on matters of public concern, specifically attacked Matthew Snyderbecause (1) he was a Catholic and (2) he was a member of the United States military."

Lawyers are LESS trained than interior designers!

The Eleventh Circuit just published an opinion that I found facinating. Not for the legal issues which were "the First Amendment, the Dormant Commerce Clause, and the Equal Protection and Due Process Clauses," rather, for the light it shines on the licencing requirements for interior designers in Florida:

"Florida law requires interior designers practicing in nonresidential, commercial settings within the state to obtain a state license. Fla. Stat. §§ 481.209(2), 81.213. Florida statute § 481.223(1)(b) provides that “[a] person may not knowingly . . . [p]ractice interior design unless the person is a registered interior designer unless otherwise exempted herein.” A designer must complete a combined total of six years of interior design education and internship experience with a licensed interior designer to qualify for a Florida license. See Fla. Stat.§ 481.209(2); Fla. Admin. Code r. 61-G1-22.001(1). The designer must also pass an examination administered by the National Council of Interior Design Qualifications (“NCIDQ”). Fla. Stat. §§ 481.209 and 481.207."

Good to know next time you want somebody to help you pick out your office furnishings.