Thursday, April 28, 2011

Your Burden, My Burden?

The Ninth Circuit just came down with an interesting opinion reversing the conviction of a defendant for illegal reentry under s. 1326(a). 

The government convinced the trial judge to find that the defendant's claim that although he was born outside of the USA, he had derivative citizenship, was an affirmative defense.  Not so fast says Reinhardt - it is the government's burden to prove the defendant is an illegal alien, not the defendant's burden to prove he is not.

US v. Sandoval-Gonzalez

Curious if anybody has run across this issue in this district.

Why is it that federal prosecutors are constantly doing everything they can to prevent defendants from presenting a defense?  How does it harm the government if a defendant calls into doubt an element of its case?

Wednesday, April 27, 2011

Barack Obama Born in the USA!

If you

(1) Burglarize 2 businesses;
(2) Escape from the custody of the police after you are caught; and,
(3) It all occurs on the same day and you are convicted,

You are subject to a 924(e) enhancement in the Eleventh Circuit because the violations are three separate crimes of violence.

United States v. Proch

In other news - turns out that Obama was most probably actually born in the USA.  He has now posted his actual birth certificate, rather than the ole 'certificate of live birth.'  You would think that he could have manufactured this much sooner, but I assume he was enjoying (and probably getting political mileage out of) the whack-job republicans who claimed he was born in Kenya.  Here is a link to the scanned version.

Thursday, April 21, 2011

Lindsy Lohan, Paris Hilton, Stalking - And the Fourth Just Keeps Giving

Although the Fourth reversed portions of United States v. Elaine Cioni, finding that the government improperly elevated a misdemeanor offense to a felony, the most interesting part of the case is the recitation of what a scorned lover can do in this new age.

Pay attention to how the Fourth slipped Lindsay Lohan and Paris Hilton into the opinion. And ask yourself: who should poor Craig Scott should be suing?

"Heaven has no rage like love to hatred turned/ Nor hell a fury like a woman scorned." 

-William Congreve

"Beginning in the summer of 2005, Cioni began having an affair with Bruce Enger, her former supervisor at Long & Foster Realty in Northern Virginia. Both Cioni and Enger were married at the time. During the affair, which continued for approximately two years, Cioni suspected that she was not the only one with whom Enger was having an affair. Nonetheless, after Cioni relocated to the Chattanooga, Tennessee area to take a new job and after the affair ended, Cioni and Enger
remained on speaking terms, and occasionally communicated by telephone or e-mail.

Beginning in March 2007, however, Cioni began an anonymous electronic campaign of harassment against Enger, that lasted more than a year and that was uncovered only after an extensive investigation.

Initially, Enger started receiving harassing telephone calls from an unknown source. The calls were made to several of Enger’s telephone numbers, including those of his office, mobile telephone, his wife Maureen’s telephone, and the telephones of several of his business associates. In each case, the person making the call spoke in a distorted male voice and revealed private information regarding Enger’s work and personal life. For example, on August 24, 2007, the unidentified
person called Enger on his Blackberry and said, "I know where you are . . . be]cause I’m there too. I followed you." At other times, the caller recited the contents of Enger’s password protected e-mail accounts and told Enger that "we’re
watching every move you make" and that copies of damaging e-mails would be sent to Enger’s family while he was travelling. Occasionally the calls also made threats toward Enger,telling him, for example, that he "need[ed] to get on out of Dodge." Caller identification indicated that the calls originated from telephone numbers familiar to Enger, such as his home telephone number or his daughter’s cell phone number, but in fact they originated from other telephones. Although Enger sought to avoid the calls by changing his telephone numbers several times, these efforts were unsuccessful, and the harassing calls continued through May 2008.

At Enger’s prompting, the harassment campaign was investigated by Long & Foster, which sought to identify the caller’s identity. Long & Foster’s investigation focused on Craig Scott, a former employee who Long & Foster believed had a
motive for retaliating against company officials, as well as the technical knowledge necessary to carry out the campaign. Between March and September 2007, Long & Foster gathered evidence relating to the calls, to prior computer network intrusions, and to Scott’s whereabouts. Long & Foster then provided that information to local authorities, who charged Scott with making the harassing telephone calls and improperly accessing Enger’s e-mail. The charges, however, were later dismissed because of a lack of supporting evidence. The investigation nonetheless had a catastrophic impact on Scott, who lost both his job and his marriage in the process.

Frustrated with its lack of progress in the investigation, Long & Foster turned to the FBI, which conducted an extensive investigation and ultimately determined that the harassing calls were made not by Scott but by Cioni and her longtime friend, Sharon Thorn. The FBI learned that Cioni and Thorn had used a service known as "Spoofcard," which enabled them to mask their telephone numbers and voices, and make downloadable audio recordings of their calls. Spoofcard’s billing records, which the FBI subpoenaed, indicated that over 300 calls were made from Cioni’s telephones using some or all of Spoofcard’s features, and more than 220 of the calls were made to Enger’s various telephone numbers. Inspired by actress Paris Hilton’s reported use of similar technology to access rival Lindsay Lohan’s voicemail, Cioni also used Spoofcard to access Enger’s voicemail, during which
time she listened to new messages, played old messages, deleted messages, and left her own disguised messages. Payment for many of the Spoofcard calls was made electronically from computers at Cioni’s home and workplace, using a credit
card belonging to Cioni.

The FBI’s investigation also revealed that Cioni had accessed or attempted to access numerous e-mail accounts belonging to Bruce Enger, his wife, Maureen Enger, their children, and several of Enger’s business associates, including Patricia Freeman, Enger’s former assistant. These intrusions were documented in log files kept by AOL, Google, and other Internet service providers, which indicated that computers with Internet Protocol addresses linked to Cioni’s home and office had accessed or had attempted to access each of the accounts noted. All of the accounts were password protected, and none of the account holders had shared their passwords
with Cioni. The FBI discovered that Cioni had gained access to many of these e-mail accounts by using an online service known as "," which, for a fee, acquired thirdparties’ e-mail passwords surreptitiously. Some of the payments
to were made by Cioni using Thorn’s credit card, with Thorn’s permission, so as to "hide the paper trail."

Finally, on May 22, 2008, FBI agents obtained a warrant to search both Cioni’s office and residence. These searches uncovered additional evidence linking Cioni to the e-mail intrusions and harassing telephone calls. In particular, the agents discovered on Cioni’s computers images of e-mail inboxes belonging to two of Enger’s acquaintances, fragments of e-mail communications between Enger family members, and a confirmation e-mail from for the purchase of Enger’s e-mail password.

Cioni was indicted for her electronic communications crimes, and, following a four-day trial, was convicted on all counts..."

All I can say is Yikes.

Wednesday, April 20, 2011

Fourth Circuit - Liberal Bastion for the Wrongly Convicted?

Well - at least the Fourth doesn't cover its ears to a claim because they don't think a defendant can prevail.

For a good contrast of the Bill Turner case I mentioned a couple weeks ago, read US v. MacDonald, out of the Fourth Circuit -

Reversing a trial judge for not conducting a more expanded post-conviction hearing.  The opinion is pretty technical, but an interesting read for anybody who does post-conviction work.  I think the main thing to draw from it is that the Fourth Circuit - widely thought of as the most conservative circuit - remains committed in theory to the idea of letting a defendant present his case, where our circuit remains committed to the theory of a really, really, really broad harmless-error-type line of thinking (in criminal matters that is).

Take a look at the opinion and mull over which Circuit you would rather be appealing in.

Friday, April 15, 2011

Judge Pryor and the Eleventh Circuit en banc, rule that you can't feed the homeless (or something like that)

"Orlando Food Not Bombs argues that it has a right under the First Amendment to conduct feedings of large groups [homeless people] in any park as often as it likes."

'Nope' says Judge Pryor - 

A translation of the opinion reads:

"Homeless people are yucky and an eyesore on neighborhoods filled with people who don't look like them and don't want them there every day.  Such upstanding citizens prefer to feed their homeless through the traditional "dumpster method"; the "free night in jail ride"; or, the time-honored "drive through guilt-fest."  Forget organization and predictability to feedings, treating homeless people like the beggars they are is a substantial interest which the public holds."

Thursday, April 14, 2011

Worst Litigation Decision This Week?

Perhaps I am invading SFL's space on this one, but it is just too good to pass up.  Not wanting to give away the whole thing, I will leave you with the conclusion -

"Defendants’ Motion is GRANTED. The Ermans are CONGRATULATED. IT IS SO ORDERED."

To understand why United State's District Judge Eric Melgren was entering an order congratulating counsel for the defendant (and his family), take a look at this and enjoy the Shakespeare quote within.

Wednesday, April 13, 2011

Golden Beach Police Officers Arrested

So, one of my two readers asked for thoughts on the recent arrest of two Golden Beach police officers for grand theft and organized scheme to defraud.  Here is a link to the Herald article supplied by the reader (thanks for the tip).

It seems the guys were working private jobs that they were supposed to be off duty for, but were doing it while on duty.

I have never been a fan of police officers taking off duty jobs.  Most of them do a good job, but anybody who has watched some of them at the various bars on South Beach would recognize that an uncomfortably close relationship develops between the bouncers and bar staff and the cops.  Too often I have seen cases where people are arrested by these off duty officers based upon the falsehoods of bouncers who were literally flexing their mussels and bullying people around.  In essence, the employer's actions come accompanied by the stamp of 'approved by law enforcement.'  Take a look at the Ft. Lauderdale cops that were working for Rothstien.

To answer the question - probably a bit overcharged with the whole organized scheme and all, but it is clear the State did that to force the cops into the prison range on the sentencing score sheet.

Monday, April 11, 2011

Frekin' Laser Beam!

Well, at least the Sharks may get here one day.  For now, it seems that our NAVY has developed something a bit more bulky, but pretty effective.

Immigrant smugglers beware - you and your family members from Cuba passengers non-paying fishing friends may suffer this fate as you try to navigate to freedom - I guess it may be better than the .50 cals through the outboard that have been in vogue as of late:

Thursday, April 7, 2011

[covering ears] Eleventh to Bill Turner: "we don't think you could win, so we won't consider your petition"

Bill Turner (no relation to "Bootstrap Bill") files 2244 petition. After petition is filed, Supreme Court rules that mentally retarded prisoner cannot be executed. District court expressly states it is not ruling with prejudice to Turner's ability to raise mental retardation in subsequent 2244 petition. Turner raises his alleged mental retardation in a subsequent 2244 petition and the Eleventh holds:

"...Turner has failed to demonstrate that there is a reasonable likelihood that he is in fact mentally retarded. Therefore, he has not satisfied the requirement of § 2244(b)(3)(C) that he make a prima facie showing that he is entitled to file a successive § 2254 petition asserting a claim under Atkins."

In other words - we will deny you the right to prove your alleged mental retardation because we don't think you can. Now go die.

How's that for "process" under the new and improved "effective" death penalty?

Tuesday, April 5, 2011

Hi Ya'll

Judges Pryor, Carnes and our very own Patricia Seitz, have once again affirmed that if the sentencing judge says he/she would give a defendant the same thing, even if the appellate court says they were wrong on a guideline issue, it does not matter how screwed up the guideline calculations were in the first place.  United States v. Pantle

There has been much ado about the recent Acosta v. Black allegations being publically exchanged between those two lawyers in relation to the Epstein case.  Seems to me that people considering the public pronouncements should probably consider that only one of the two has been: (1) publically reprimanded by a federal judge (Order at p.4 ("Nonetheless, I enter a public reprimand against: (1) the United States Attorney and his senior staff members, for failure to exercise proper supervision...")) and (2) discussed at length in an Inspector General's report relating to the infamous DOJ hiring practice that went on during a portion of the Bush administration:

"Acosta acknowledged that Schlozman had significant responsibility for hiring during Acosta’s tenure as AAG. Acosta said he was not aware that Schlozman acted inappropriately in the hiring process. Acosta said
he believed that all attorneys hired in the Division were recommended by the section chief and the DAAG overseeing that section. Acosta said no one complained to him that inappropriate hiring practices were taking place.

However, Special Litigation Section Chief Shanetta Cutlar told us she complained directly to Acosta about Schlozman’s intent to hire as her deputy an applicant whom she considered unqualified even for a line attorney position..."

Black seems to me to be on pretty firm ground.