Wednesday, August 31, 2011

Circuit Split Brewing?

As you all know - the always excellent Sowmya Bharthi, from our stellar FPDs office, had a great win in the 11th in relation to the FSA.  Because of her efforts, the 11th has ruled that so long as a defendant is sentenced after the FSA takes effect, that defendant gets the benefit of the FSA, regardless of when the crime occurred.

The Fourth just issued an opinion that seems to suggest it might disagree with the 11th.  In US v. Taylor, upon request of the government, the 4th vacated a judgment and remanded for resentencing in light of the FSA.  But in doing so, the Court added this:

"By this disposition, however, we indicate no view as to whether the FSA is retroactively applicable to a defendant like Taylor, whose offenses were committed prior to April 3, 2010, the effective date of the FSA, but who was sentenced after that date. We leave that determination in the first instance to the district court."

I guess the district court could get the case and resentence the defendant, holding the FSA does not apply - seems to me that is what the 4th is looking for.

Tuesday, August 30, 2011

Monday, August 29, 2011

Shaygan Order Out

Looks like it is coming back to Judge Gold for round 2:

Quite an interesting way to start for Judge Pryor:

"The stakes in this appeal are high: they involve the sovereign immunity of the United States, the constitutional separation of powers, and the civil rights and professional reputations of two federal prosecutors."

I guess in your run-of-the-mill appeal where a defendant is sentenced to Life, the stakes aren't so high.

What is intersting/troubling about Pryor's opinion (as it relates to the Hyde Amendment Fees), is that he goes through this lengthy recitation of the facts, as though it is a Rule 29 appeal from a conviction (crediting everything in favor of the government), with zero discussion concerning the cross-examination and argument that had to have been made, that the government's witnesses were full of it.  There is not even a discussion, such as you might expect to see in a civil case, laying out both sides cases/version of events.  A magistrate judge found that law enforcement witnesses were lying and ordered evidence suppressed; the jury rejected the government's evidence; Judge Gold found that at least one of the prosecutors was not straight with the court, and yet, no credit to those findings from Pryor.

"We express no view about whether the district court should conduct further proceedings, but if the district court decides again to consider sanctions against Cronin or Hoffman, it must, of course, afford them due process. An attorney charged with misconduct is entitled to notice of the charge: that is, the attorney is
entitled to know the precise rule, standard, or law that he or she is alleged to have violated and how he or she allegedly violated it. Each of these attorneys also cannot be held responsible for the acts or omissions of others: Cronin, for example, cannot be held responsible for the acts or omissions of his superiors, such as
Gilbert, and Hoffman cannot be held responsible for Cronin’s acts or omissions.

Another reprimand also would be subject to another appeal to this Court. We do not mean to suggest or even hint that the district court should consider sanctions against either Cronin or Hoffman. It is not apparent to us that either attorney necessarily violated any ethical rule or any constitutional or statutory standard. The record before us is unreliable because it was developed, after all, without affording either of them due process.

The award of attorney’s fees and costs against the United States is VACATED. The public reprimands of Cronin and Hoffman are VACATED, and this matter is REMANDED."

Edmondson wrote an interesting dissent in which he essentially argued that the Court should rely on its prior precedent in reviewing bad faith issue:

"I conclude that the evidentiary record is sufficient as a whole to support the Hyde Amendment fact-findings of the District Judge, but I make two specific observations. First, the District Judge heard the testimony of the lead prosecutor and rejected the prosecutor’s explanation. I am aware that we uphold criminal convictions regularly based upon the sufficiency of evidence that proceeds from a criminal defendant’s testifying to his innocence. We say -- I believe entirely correctly -- that a fact-finder is entitled to believe the exact opposite of what a witness testifies to and, then, to treat this disbelieved testimony as substantive evidence of guilt. United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). I think the same thought process applies here: the prosecutor and the criminal investigator offered explanations for their questionable conduct; the District Judge rejected their explanations and determined that the opposite -- a prosecution hammered into shape “in bad faith” -- was the truth.8

8 This determination was not simply a matter of disbelief. The record reflects many irregularities in the Government’s handling of this case. For example: the magistrate judge, in recommending that the District Court grant Defendant’s motion to suppress, found the testifying DEA agents -- including the principal criminal investigator -- to lack credibility (and the District Court accepted that magistrate judge’s recommendation); the Government has admitted to multiple discovery violations; and the Government not only conducted an improper investigation of defense counsel, but kept this investigation from the District Court until the Government’s hand was forced by the revealing testimony of one Government witness. Plenty of evidence in the record corroborates the District Court’s finding of a prosecutorial position of bad faith and its finding that the prosecutor and criminal investigator lacked credibility.


By the way, no party to this case contends that the first Indictment in this case was filed in bad faith. I understand the Government not to dispute that, as a matter of law, the manner of advancing a prosecution can make the Government’s position in that prosecution a position “in bad faith,” even when the initial Indictment was not “in bad faith.” But whether the Government does or does not accept this legal proposition, I do. Moreover, the Government, by its very nature, can act only through agents who represent it, such as its Assistant United States Attorneys prosecuting criminal cases. The word “position,” as used in the Hyde Amendment, can easily apply to the way in which the Government conducts the prosecution, including the illwill state of mind that a prosecutor’s acts evidence; this definition is not a strained use of the word “position.” The Oxford English Dictionary defines “position” as “[m]ental attitude; the way in which one looks upon or views a subject or question.” XII OXFORD ENGLISH DICTIONARY 165 (2d ed. 1989). To me, in this sense the word “position” echoes Congress’s use of the phrase “in bad faith” in the statute."


"Pursuant to Rule 404(b), we routinely allow evidence of other crimes and wrongs to show the bad motive and bad intent that accompanied a criminal defendant’s conduct as he did something else. FED. R. EVID. 404(b). Especially applying the rationale of 404(b), it seems to me that the District Court had ample support to think that the filing of the Superseding Indictment was motivated by the same bad faith as the later acts of
discovery violations and improper investigation of the defense team."


"I also think the facts of prosecutorial misconduct in this case -- as found by the District Judge -- are exceptionally troubling: I do not believe we will often see cases involving fact-findings for this sort of extensively manifested prosecutorial ill will toward the defendant and defense lawyers."

Tuesday, August 23, 2011

Computer Law

Rick B. and David O. - If a computer, using a complex formula, makes a decision that effects us - say develops new administrative regulations...can it ever be arbitrary and capricious? Or, are we just f-ed?

From the BBC:

"At last month's TEDGlobal conference, algorithm expert Kevin Slavin delivered one of the tech show's most "sit up and take notice" speeches where he warned that the "maths that computers use to decide stuff" was infiltrating every aspect of our lives.

Among the examples he cited were a robo-cleaner that maps out the best way to do housework, and the online trading algorithms that are increasingly controlling Wall Street.

"We are writing these things that we can no longer read," warned Mr Slavin.

"We've rendered something illegible. And we've lost the sense of what's actually happening in this world we've made."

It is not just robots, it turns out these programs are actually helping or making daily decisions for us.

"British firm Epagogix is taking this concept to its logical conclusion, using algorithms to predict what makes a hit movie.

It takes a bunch of metrics - the script, plot, stars, location - and crunches them all together with the box office takings of similar films to work out how much money it will make.

The system has, according to chief executive Nick Meaney, "helped studios to make decisions about whether to make a movie or not".

In the case of one project - which had been assigned a £180m production cost - the algorithm worked out that it would only take £30m at the box office, meaning it simply wasn't worth making.

For another movie, it worked out that the expensive female lead the studio had earmarked for a film would not yield any more of a return than using a less expensive star."


"a recent study by psychologists at Columbia University found that reliance on search engines for answers is actually changing the way humans think.

"Since the advent of search engines, we are reorganising the way we remember things. Our brains rely on the internet for memory in much the same way they rely on the memory of a friend, family member or co-worker," said report author Betsy Sparrow.

Increasingly, she argues, we are knowing where information can be found rather than retaining knowledge itself."


"Up to 70% of Wall Street trading is now run by so-called black box or algo-trading."


"In the so-called Flash Crash of 2.45 on May 6 2010, a five minute dip in the markets caused momentary was the computer program that the unnamed trader was using that was really to blame....No-one has ever managed to pinpoint exactly what happened, and the market recovered minutes later."

So what happens when algorithims start making decisions for the State that effect us...really effect us, like passing regulations?  Deciding who to do secondary screening on at the airport?  Who to arrest instead of PTA on a minor misdemeanor?  Who to sell a gun to?  Who to hire or fire?


Friday, August 19, 2011

3 Men are going to plea no contest to Murders of 3 young boys, and immediatly be set free?

Years ago, Damien Echols, Jason Baldwin and Jessie Misskelley were convicted for the horrific 1993 murders of 3 Cub Scouts in Arkansas. Two were sentenced to life, and one to death.

Prosecutors argued that the boys were killed as part of a satanic ritual.

Years of litigation ensued, and thanks to DNA evidence, it now appears the men were factually innocent.

Rather than just admit the defendants' innocence, the prosecutors appear to have struck a deal with them - in exchange for no contest (Alford) pleas, the men will be released.

Those of us who practice in State court routinely enter no contest pleas for our clients - in Federal Court, at least in the Southern District of Florida, such a plea is almost unheard of.

Is it the right call?  It seems to me that for the defendants it is.  How could they be counseled not to accept a withhold of adjudication, or even a conviction for the crime, if it means going free - immediately? 

To me, that is the joke of the Federal plea colloquy - you have a guy who is 851 mandatory life eligible, who is told that if he pleas, he will receive 10 years, but if he looses at trial he will receive mandatory life.  The cases usually involve snitches and some evidence of involvement, but also a viable defense.  So, the client who tells you he is innocent is given a choice.  What does he do usually?  Take the plea.  Then, in front of the judge, he is required to acknowledge that he was NOT coerced, forced or threatened to enter a plea of guilty.  Right.

The problem with the case is that if you presume these men are innocent, there is a real killer(s) at large.  What happens now?  Does the search for the murderer of these three innocent young children end?   What happens if the killer is caught - doesn't he have a great chance of prevailing because there are three men who were convicted of the crime?

One of the parents of the children took exception to it:

"He said Thursday that prosecutors told him that they planned to reach a no-contest plea.

"There's certainly no justice for the three men that's been in prison or my son and his two friends," Byers said. "To me, this is just a cop-out from the state for not wanting to admit that they made a mistake.""

I believe that Federal Court should take more no contest pleas - if for no other reason than to avoid the hypocrisy of guilty pleas that are coerced out of clients by a system that virtually guarantees a much higher sentence post-trial.

I think this is one case where the State should not be offering such a deal and the defendants should be seeking it. Is justice being served?

Interesting issues - I am curious about your thoughts.

Thursday, August 18, 2011

Eleveth Circuit republishes "Catch-22"

United States v. Willis

Let's see if I can summarize this 22-page opinion that details why the defendant didn't raise anything for appeal...

Defendant sentenced as a career offender and receives firearm enhancement.  Defendant receives an 18% reduction under 5k for cooperation.  Defendant appealed the sentence in light of the firearm enhancement - he looses.

Defendant files 2255 motion alleging that his counsel was ineffective for failing to raise various objections, including to the firearm enhancement, drug quantity and career offender recommendations of the first PSR.  Government concedes on career offender and judge orders that:

"Movant Charles Willis is entitled to be resentenced absent the career offender enhancement applied at his initial sentencing.  Accordingly, the United States Probation Office is DIRECTED to prepare a new presentence investigation report reflecting the fact that Willis is not a career offender under the sentencing

PSR comes back and judge orders sentencing for next day.

Judge does not hear any objections to anything during sentencing hearing.  Judge sentences Willis to bottom of the guidelines and then denies government's motion for 5k.

Appeal follows.

Court finds that Willis has waived everything except his objection to the one-day turnaround from PSR to sentencing (which is now viewed under a harmless error analysis thanks to the opinion) and his objection to the denial of the 5k.

Now this is the great part.  The Court reasons that all the other issues that Willis tried to raise during his re-sentencing but that the district court refused to hear because those issues had been dealt with in the original sentencing hearing (including the firearm enhancement and drug quantity), and in Willis's 2255 (which had been denied on those issues), were not before the district court on the second sentencing.

BUT - for some reason, the district judge had discretion to deny the 5k motion the second time around when it had ruled the first time Willis was entitled to the reduction and gave him an 18% cut.

And to make it even better, the appellate court finds that Willis raised the 2255 issues which the district court refused to hear because he did not ask the appellate court for a certificate of eligibility on them!

Now - to save time, I am writing on behalf of my favorite poster: "This Blog Sucks!"  Also, I have finally figured out why he is so angry - the attached clip explains it all - now go kick your dog.

Pissed about the UM problems

What really bothers me about the University of Miami ordeal is that it was prompted by the same people who now announce they are "shocked" by the scandal.  These administrators - Shalala included - are the same ones who were more than happy to tout UM Star Football players in the "all about the U" adds that were run ad nauseum during football season (most of which Shalala appeared in):

UM runs the ads to bring in money while Shalala hangs out with the ponzi-scheming scum that is now trying to shave time off his 20-year sentence.

In reality, it was Shalala and UM that were acting like pimps, not Shapiro (who claims to have gotten players hookers).

Why do you think that Shapiro was allowed on the sideline during UM football games?  Was he a coach?  Was he a former player - or even athletic?  No.  It was because he gave money to the school for access to the athletes.  Nothing new - no different than a John with the ladies.  Shalala acted like a pimp with the athletes and now she is "shocked" that they were hanging out with Shapiro the shitbag on his boat with some alleged hookers?


Time to own up to what she fostered and resign.

Monday, August 15, 2011

Good Restitution Case

Tjoflat wrote a nice opinion, which was published today:

"The Government had the burden of proving, with respect to each of the mortgages for which it sought restitution, that the mortgage was the product of a fraudulent misrepresentation. The district court’s statement in the July 22 restitution order that “restitution of at least $1,000,000 has been established by the Government” did not identify the mortgages that had been fraudulently obtained and caused losses totaling that sum.

To enable meaningful appellate review, a district court's calculation of restitution must be supported by specific factual findings. Huff, 609 F.3d at 1248.  In the context of the case here, the district court’s task was, first, to determine by a preponderance of the evidence which of the 56 mortgages the loan officers handled was obtained through a false “gift” letter, a false “credit explanation” letter or a false employment verification form, and, second, where fraud is found, to determine the extent of the actual loss HUD may have incurred due to the mortgage’s foreclosure.The district court failed to carry out this task.

We therefore VACATE the restitution provisions of the Singletarys’ judgements and REMAND the case so that the court may perform this task. We do so with this caveat: the Government is not receiving another bite of the apple. The district court shall render the necessary findings of fact and conclusions of law with respect to each of the 56 mortgages at issue on the basis of the evidentiary record as it now exists."

Basically, the opinion stands for not allowing the government to prove restitution through generalized testimony.  But I also like the part about not allowing the government to have another hearing to fix its case.

Keep it in your pocket à la Bobby Aaron for a sentencing hearing one day.  It will come in useful.

Funny Stuff

You guys know that I am no fan of the right-wing politics that are often associated with Israel.  Don't get me wrong, I am no self-hating Jew, I want Israel to succeed, but I think it is going about it the wrong way.  So, don't go accusing me of being some Muslim-bashing Jew; this note from Congressman West really made me chuckle.

Apparently West hangs around with some accused Muslim-bashing-fanatics, and the Counsel on American-Islamic Relations (CAIR) does not appreciate it.  CAIR asked West to renounce his association with them and he responded with "Nuts."

Note - I am interested to see who Debbie Wasserman-Schultz (West's nemesis) is hanging around with in the pro-Israel crowd.

Here is West's response:

No long explanations from West - just go F-yourself.

I love the response because it is so A-Political - the guy is basically saying: 'I will hang out with whomever I want to, and I don't have to explain myself to anybody.'  He is certainly willing to stand by his convictions, even if it means buddying up with accused Islamophobes - people that are probably better left in the company of Anders Breivik - but hey, at least West won't be accused of being a fair weather friend!

Stole the story from Pulp.

Friday, August 12, 2011

Surprise Surprise

My readers will never accuse me of not being responsive - one devoted subject wrote:

"When are you going to comment on the 11th striking down Obamacare?"

Now my friend:

Today, the Eleventh struck down Obamacare a law that was intended to make health care in this country more affordable, sustainable and better. 

The opinion, co-authored by Dubina and Hull. 

Of course, some naysayers out there took exception to Dubina hearing the case because "Dubina’s daughter, Rep. Martha Roby (R-Ala.), is one of dozens of freshman Republicans who campaigned on repealing the health care law."  But I am not so cynical. 

I actually do have some concerns about the interpretation of the commerce clause that is necessary to sustain the law - unfortunately, my concern is dangling by a thin hair after having been nearly beaten to death by criminal statutes that are based upon commerce clause jurisdiction. 

I often wondered if there were any limits to the "CLAUSE", and now know that yes, in fact, if you want to use it to do something daring and positive, the courts may not let you - Of course, it does not help that I think the New Eleventh might come down differently on Heart of Atlanta Motel Inc., but that is another story altogether.

So, congrats to the Conservatives in the South - your Eleventh handed you a nice win today.  As one prominent defense lawyer is often times quoted - take the rest of the day off "now figure out how to pay for your policies" and enjoy the weekend.

They're Back!

Thank goodness that once again, gladiators are fighting it out in Rome.  Only this time, it seems that Caesar is not too happy about it.

I can't wait till they bring back the animal fights - David, I think you should take this one on and make sure we can all watch the Elephant vs. Crocodile fight - I have allays wondered about that match-up.

It seems that Bert and Ernie will not in fact marry!

"The makers of Sesame Street say characters Bert and Ernie will not marry in a same-sex ceremony despite an online petition calling for the union.

Campaigners say the best friends should marry as a way to encourage tolerance of gay people.

Nearly 7,000 have signed the petition, with more than 3,000 joining a Bert and Ernie Get Married Facebook page."

Okay - I am perhaps a little left of liberal, but doesn't it strike anybody else as odd that people would want these puppets to marry?  It did the creators too:

"A statement from the show's makers said: 'They remain puppets and do not have a sexual orientation.'

The confirmed bachelors have lived together for 40 years and sleep in the same bedroom, albeit in single beds.

'Bert and Ernie are best friends,' the statement from Sesame Workshop added. 'They were created to teach preschoolers that people can be good friends with those who are very different from themselves.'"

I think that the gay community might be getting hijacked by some extremists - and the media is loving it. Think about it - there are a heck of allot more than 7,000 gay people on Facebook; yet, an article is appearing in the BBC (and I am writing about it), that talks about the aims of this small segment of a group. It is unfair to say that all gay people want Bert and Ernie to marry, but that is the suggestion in the article. It is the same thing that Fox News does with Muslims and terrorists.

Thursday, August 11, 2011

When the cat's away...

Poor David,

He turns over his storied blog to a friend, former defense attorney/star and law professor extraordinaire and what happens?  The prof. blogs about arbitration clauses while the Eleventh Circuit publishes a case that is as old as the "internets," as proved by a scene from War Games - student accessing school grading system to change grades.

Sadly, these students - FAMU undergrads - ended up getting caught and going to prison.  Of course, it may not have just been the grade changes that got them there:

"Using the surreptitiously obtained usernames and passwords, the conspirators accessed FAMU’s grading system, changed grades, added credits for courses which had been failed or not taken, and changed the residencies of several non-resident students to qualify them for in-state tuition. The changes were made via the Internet from the conspirators’ home computers, campus computers at FAMU and Florida State University, and from several wireless laptops."

Perhaps a bit over the line, but this case not ready made for comment by ?  Rick, you can do a hell of a good job with United States v. Barrington, now hit one out of the park!

In other news - Europe is considering a ban on short selling.  What the heck are Republican's gonna do if this comes to America?  They won't be able to use best efforts to cause the financial markets to crash so that Obama looks bad, they profit by betting against the market and they pay almost zero in taxes!  End times.

Wednesday, August 10, 2011

Congratulations to Bill Altfield!

Bill Altfield was just appointed to the State bench - it is well deserved, he will be a great judge.

But that doesn't mean that Rick Scott has won me over yet:

Tuesday, August 9, 2011

Bad week to be an Asshole

Poor Rummy - can't get no love.  Last week, a district judge ruled that he can be held liable for ordering the tourture of an American citizen.  Now, the Seventh Circuit came to the same conclusion in a different matter, involving the torture of two American citizens who were working as contractors:

"US military personnel detained them, confiscated their belongings, handcuffed and blindfolded them and took them to a military base in Baghdad, where they were fingerprinted, strip-searched and locked in a cage.

They were then taken to Camp Cropper near Baghdad International Airport, where they "experienced a nightmarish scene in which they were detained incommunicado, in solitary confinement, and subjected to physical and psychological torture for the duration of their imprisonment - Vance for three months and Ertel for six weeks", the court wrote, reiterating the men's allegations.

The men claim they were deprived of sleep, food and water, held in extremely cold cells without warm clothing, and threatened with beatings.

They were ultimately released at the Baghdad airport and were never charged or designated security risks."

So what is Rummy's defense?

"[T]he decision to allow the suit 'saps the effectiveness of the military, puts American soldiers at risk, and shackles federal officials who have a constitutional duty to protect America.'

'Having judges second-guess the decisions made by the armed forces halfway around the world is no way to wage a war,' David Rivkin said in a statement."

Here is the article.

Sadly, Obama is fighting the lawsuit.  So who is this Rivkin guy that Obama is siding with on legal theory?  A Class-A Asshole.   Great company you are keeping Mr. President.

Friday, August 5, 2011

Good on ya!

Judge Allows Torture Suit Against Rumsfeld to Go Forward

"A federal judge has agreed to allow an Army veteran who says he was tortured during a nine-month imprisonment in Iraq to sue former Defense Secretary Donald H. Rumsfeld."

The guy was beaten, subjected to enhanced interrogation techniques torture, and denied counsel. Of course Obama raised the state secret privilege to try and defeat the suit.

I am sure it will work its way up; if this can be done to an American citizen who will then have no recourse...what is the point of having constitutional protections in the first place?

Thursday, August 4, 2011

Rick Scott doesn't like clean water.

"Appellants’ alleged substantive injury—the forthcoming EPA rule mandating numeric nutrient limits—is fairly traceable from the requirements imposed by the consent decree."

That's right, the State of Florida (through one of its "governmental entities") appealed a consent decree between the EPA and some environmentalists which puts rules in place as to how dirty our water can be.  Luckily for us all - the appellants lost.

Gotta love that guy.

Interesting case out of the Fourth:

Gov. indicts defendant, then before he is arrested, sends informant to him to record a conversation, which was very damning.  On appeal, government leads the Fourth Circuit into error by taking the position that the right to counsel did not attach because the defendant was not arrested.  Appeal to Sup. Ct., and solicitor general concedes error and admits that as soon as a person is indicted right to counsel attaches.  Fourth then refuses to address Sixth Amendment claim, and instead remands to district court to determine whether or not the recorded statement violates the Fifth Amendment because of the manner in which it was conducted.

If I had to bet, I would say the Fourth is not looking to establish a bight-line Massiah-type rule in this situation where the defendant had not yet been arrested.