Tuesday, November 27, 2012

How would you like to appear in this Courtroom?

In a land where life has little value...how would you like to be the defense attorney appearing in this Courtroom?  The judges are seated and I am guessing the guy standing in the gray hat is the prosecutor?

Not too different from the way I feel before Judge __________ with AUSA _____________, perhaps a bit more level a playing field.

Wednesday, November 7, 2012

Now, lets turn our attention to Israel

Congratulations to President Obama on his reelection. Although I believe he was far from what he promised in '08, he still has tried to do the right thing and has some legislative accomplishments.

But, if elections are to mean something...then it is time that our president has a serious sit down with Israeli leadership. Never more overtly than this past election (including Iran with the '79 hostage crisis) has a foreign government tried to interfere with internal United States politics. Nethanyahu stuck his nose where it does not belong, and we should feel no compunctions about being extremely forceful with Israel in the coming years to force a resolution to the Palestinian/Israeli question.

"According to the report published by the Congressional Research Service Israel has received more assistance from the US than 15 European countries did to recover from the devastation caused during World War II. More than 67 billion dollars of the Washington's aid to Israel has been in military, the report said. The astonishing report adds that the US has allocated 3.1 billion dollars, around one-fifth of its defense budget, to Israel this year alone."

Taken with the fact that Israel is now facing a very real threat from Iran in the form of its nuclear program and we have two very large leverage points to exert influence over Israeli policy. I want Israel to survive and exist. I firmly believe that if permitted to continue down the path it has been on in terms of settlements within occupied Palestinian territory and the refusal to permit the establishment of a Palestinian state, Israel will not survive...it will become a pariah and will loose any international support that it still has for its existence.

The cold truth is that eventually oil will run out in the middle east - 50 years, 100 years, 150 years, it doesn't matter. When it happens, the United States will no longer have any interest in expending resources in that area of the world. Once that happens, Israel will be on its own. Today's friend is tomorrows foe. Just ask Saddam Hussein (who received substantial support from the US during the Iran Iraq war) Assad, Mubarak, Marcos, and countless other leaders/countries who have gone from friend to other in our history.

Now is the time for Israel to strike a lasting peace with the Palestinians. It will have to accept terms that it does not want to, but if done correctly, Israel will gain the support of the international community (except Arab states that will never fully recognize it) for its existence within recognized geographic borders. Once that happens, Israel will have international support to defend itself from attacks by terrorist organizations or neighbors. Israel cannot last forever without that support.

Obama should now threaten to pull US aid to Israel absent Israel's willingness to sit down and give real concessions to come to a final resolution acceptable to all parties and ratified by the United Nations.

Thursday, September 27, 2012

Oye Veh!

I would hope my people could do better than this

Kind of reminds me of a road runner sketch.  If the whole thing wasn't so damn serious, I would have a bunch more to write.

Wednesday, September 12, 2012

[Updated] - ???????????? - the Man with Blood on His Hands

Today, the first thing I saw on TV was news that 4 Americans were murdered in Libya because of a film that is "disrespectful" to Islam.

Here is the story

Can there be any greater insult to a religion than to murder in its name?  Look at how the crusades, inquisition, holocaust and countless other religiously inspired affronts to humanity are viewed by objective historians - they are anathema.  So too will the killings being carried out by religious zealots in the name of Islam.  But I did not write this to discuss the murderers - I am writing to discuss those to set in motion the murders - they are equally guilty.

Meet Sam Bacile an unknown person who may be using a pseudonym - the man behind the trailer for the "Innocence of Muslims"

From the article:

Sam Bacile, whom The Wall Street Journal Web site identified as a 52-year old Israeli-American real estate developer in California. He told the Web site he had raised $5 million from 100 Jewish donors to make the film. “Islam is a cancer,” Mr. Bacile was quoted as saying.

Apparently the information reported is not accurate - "Sam Bacile" is likely a pseudonym and the actors on the set had no idea they were working on a film about Mohammad.  Instead, they believed they were making a film called "Dessert Warrior."  In addition, the parties responsible may be right wing Christian extremists, not Jews at all.

Here is a link to the trailer -  

I encourage you to watch it for the pure crap that it is.  Sam Bacile somebody yet to be identified raised and spent $5 million dollars from Jews some group or perhaps themselves, in the name of Jews hatred, to make a film that is an open mockery of a religion known to have extremists who react with violence to any perceived insult.  

The Constitution of the United States gives him the right to do so - but it does not relieve him those who produced the film of responsibilities for his their actions.  

The horrible deaths of J. Christopher Stevens, Sean Smith (father of 2), and two others yet to be named are squarely on the bloodied hands of Sam Bacile and the people who contributed to the making of this film.  

If there is a God, whatever religion, the guilt of this will torment these shameful people the rest of their lives.

Next I will post on how DOJ can bring a prosecution that will not be prohibited by Freedom of Speech.

Tuesday, September 11, 2012

The Eleventh is OFF ITS ROCKER

"Dortch presents three arguments:

(1) that the district court erred when it submitted an unredacted indictment that contained references to several of his previous convictions to the jury; (2) that the district court constructively amended the indictment when it instructed the jury that it could convict Dortch of the firearm charges if it found that he possessed any firearm instead of the specific firearms named in the indictment; and (3) that the district court abused its discretion when it refused to admit evidence of a judgment of acquittal on related state charges. All of Dortch’s arguments lack merit."

So says Judge Dredd Pryor.

Sounds like a clear cut case...right?


Let's look at the first two issues.

Issue 1

"At trial, the district court refused to admit into evidence five of the felony convictions because they were either too old or too prejudicial. The district court allowed the government to introduce evidence of the three convictions for possession of cocaine from 1995, 2001, and 2003. Dortch stipulated that he was a convicted felon, and the government presented testimony that Dortch had not had his right to carry a firearm restored."

Nevertheless, an unredacted indictment that included specific descriptions of the 5 felonies went back to the jury room.

"Dortch’s reliance on United States v. Coleman, 552 F.3d 853 (D.C. Cir. 2009), is unavailing. In that decision, the District of Columbia Circuit ruled that a defendant convicted of being a felon in possession of a firearm established plain error where the district court read to the jury venire during voir dire an unredacted
indictment that contained the defendant’s previous conviction for assault with a deadly weapon, the defendant had offered to stipulate that he was a convicted felon, and the evidence against the defendant was weak. As the District of Columbia Circuit explained, the dispute in the evidence regarding possession boiled down to the word of the defendant against the word of a police officer who had changed his story several times. In contrast with the weak case against the defendant in Coleman, the evidence against Dortch was strong."

In other words - in Judge Pryor's mind, an argument presenting an issue that constitutes reversable error in the D.C. Circuit "lacks merit" in the Eleventh.  Holy Shit - does nobody point this out to this judge?

Issue 2

"Dortch argues that the district court constructively amended his indictment because the district court failed to instruct the jury that it could convict Dortch of the charges of possession only if it found beyond a reasonable doubt that Dortch possessed the two specific firearms described in counts one and two of the indictment. The indictment charged Dortch with possessing “firearms, that is, a Taurus, Model pT45. .45 caliber pistol and an Arminius revolver,” and at trial the government introduced evidence about four firearms, the two handguns found inthe front bedroom and the two rifles found elsewhere in the residence. But the district court instructed the jury that it could convict Dortch if it found that he possessed “a firearm.” Dortch argues that a constructive amendment amounts to a per se reversible error."


"We need not address whether a constructive amendment amounts to a per se reversible error when the defendant fails to object at trial because, even if we assume that the district court erred, the error was not plain. Under the plain-error standard, we will not correct an error raised for the first time on appeal unless
there is an error, that is plain, that affects substantial rights, and seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Langford, 647 F.3d 1309, 1325 n.11 (11th Cir. 2011). “For a plain error to have occurred, the error must be one that is obvious and is clear under current law.” United States v. Carruth, 528 F.3d 845, 846 n.1 (11th Cir. 2008). An error is not obvious and clear when “[n]o Supreme Court decision squarely supports” the defendant’s argument, “other circuits . . . are split” regarding the resolution of the defendant’s argument, (3) “we have never resolved the issue.” See United States v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999)."


"No Supreme Court precedent or precedent of this Court squarely supports Dortch’s argument. Dortch fails to cite any controlling authority that a district court constructively amends an indictment that alleges possession of particular firearms by instructing the jury that it may convict for possession of any firearm.
And our sister circuits are split regarding whether a district court constructively amends an indictment in this circumstance."


"In the absence of any controlling precedent about this issue, “we conclude that the district court’s alleged error is not ‘obvious’ or ‘clear under current law.’” Humphrey, 164 F.3d at 588. “Without a ‘plain’ error, we lack authority to reverse the district court.” Id. (citing United States v. Olano, 507 U.S. 725, 734, 113 S.
Ct. 1770, 1777 (1993). Dortch’s argument fails."


Say you don't win, not plain error, can't reverse - but Meritless?

Monday, August 20, 2012

Why do we care?

In the "wrong point" column:

Everybody is in a huff over Congressman Kevin Yoder (Kansas) going swimming nude in the Sea of Galile. 

What should really be bothering people is that the lobbying arm of a foreign interest - sorry AIPAC is not about Jews, it is about Israel - is spending $10,000 +/- per person (the congressman and his wife cost 20k) to steer US Policy.

That our foreign policy is for sale is the real story.

Thursday, August 16, 2012

Congratulations Michael Caruso

Nationally, there is no law firm that could come close the the SD FPD is terms of the amount of Federal cases successfully litigated.  The office continuously hires, trains, maintains and produces the best litigation attorneys in the Country.  Today, Michael Caruso is getting sworn in as the Federal Public Defender for the Southern District of Florida.  Perhaps the only person capable of filling the shoes left by Kathy Williams, Michael is a tremendous person and lawyer.  It is the best decision rendered by the Eleventh Circuit in a very long time.

Congratulations Michael - I look forward to blogging in the future about your office's victories under your guiding hand.

Wednesday, July 11, 2012

Eleventh Circuit Judge with a Conscience???

"Absent correction, I fear this Court’s different approach for reviewing up and down sentence variances may erode public trust in our work."

That is Judge Martin concurring in the result of US v. Early, which affirmed a 116% increase above the guideline range based upon 3553 factors.

Of course, what Judge Martin was speaking to was the Court's willingness to reverse much smaller deviations below the guideline range, which in Judge Martin's veiws seemed to have much greater record support.

"My reading of these cases tells me that in considering sentences above the Guideline range, we look only to whether the sentencing court seemed to consider the § 3553(a) factors and we ignore whether the court might have disregarded one of the factors or weighed the factors in an unreasonable way.  In contrast, for
downward variances, we show no such deference and instead scrutinize how a sentencing court applied each and every § 3553(a) factor.  We even go so far as to decide for ourselves whether the factors were weighed correctly. See Irey, 612 F.3d at 1196–1225; Pugh, 515 F.3d at 1194–1203."

Judge Martin appears to have finally recognized what we all know - that the law and rulings of the Eleventh are slanted in such a manner as to establish beyond question that the Court is unfair to criminal defendants.

Tuesday, May 29, 2012

Power, Conscience and Responsability

Many criminal defense lawyers are lauding the recent article about Judge Gleason's outcry about unfair Federal minimum sentencing guidelines.  The article is here.  It seems to me this has long been a problem; but far scarier is the numbing of the judicial and prosecutorial conscious that comes with those sentences.  Judges and prosecutors do not flinch at handing out 10, 15, 20 and 30 year sentences to young men and women who clearly do not pose such a threat as to deserve such treatment (some do, but those are not who I am addressing) - it is because they have become numb to humanity and have lost the capability to appreciate what it is they are doing, and they have gained the ability to falsely reason that what they are doing is "right."

Another article in the NY Times highlights this transition in personality.

What comes across as a bit of a puff piece for Obama, actually is quite scary:

"Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will"

"Mr. Obama has placed himself at the helm of a top secret “nominations” process to designate terrorists for kill or capture, of which the capture part has become largely theoretical. He had vowed to align the fight against Al Qaeda with American values; the chart, introducing people whose deaths he might soon be asked to order, underscored just what a moral and legal conundrum this could be."

"This was the enemy, served up in the latest chart from the intelligence agencies: 15 Qaeda suspects in Yemen with Western ties. The mug shots and brief biographies resembled a high school yearbook layout. Several were Americans. Two were teenagers, including a girl who looked even younger than her 17 years."

I believe that we can fairly debate whether or not it is acceptable to assassinate terrorist operatives or leaders before they have an opportunity to harm others.  But, I draw the line well short of Obama's decision to kill an American, who was not actively shooting or blowing anybody up, without a trial --

"This is an easy one,” Mr. Daley recalled him saying, though the president warned that in future cases, the evidence might well not be so clear."

On that front, perhaps no case would test Mr. Obama’s principles as starkly as that of Anwar al-Awlaki, an American-born cleric and Qaeda propagandist hiding in Yemen, who had recently risen to prominence and had taunted the president by name in some of his online screeds. 

The president “was very interested in obviously trying to understand how a guy like Awlaki developed,” said General Jones. The cleric’s fiery sermons had helped inspire a dozen plots, including the shootings at Fort Hood. Then he had gone “operational,” plotting with Mr. Abdulmutallab and coaching him to ignite his explosives only after the airliner was over the United States. 

That record, and Mr. Awlaki’s calls for more attacks, presented Mr. Obama with an urgent question: Could he order the targeted killing of an American citizen, in a country with which the United States was not at war, in secret and without the benefit of a trial? 

The Justice Department’s Office of Legal Counsel prepared a lengthy memo justifying that extraordinary step, asserting that while the Fifth Amendment’s guarantee of due process applied, it could be satisfied by internal deliberations in the executive branch. 

Mr. Obama gave his approval, and Mr. Awlaki was killed in September 2011, along with a fellow propagandist, Samir Khan, an American citizen who was not on the target list but was traveling with him.
If the president had qualms about this momentous step, aides said he did not share them. Mr. Obama focused instead on the weight of the evidence showing that the cleric had joined the enemy and was plotting more terrorist attacks."

I have a hard time understanding how the assassination of Awlaki can be justified as necessary because of imminent attacks when the Justice Department had sufficient time to draft a memo debating and ultimately approving of its lawfulness.

But this is my point, that type of false justification allows a judge, prosecutor or president to become numb to the actual scope and effect of their actions, and then foments more egregious conduct:

"Just days after taking office, the president got word that the first strike under his administration had killed a number of innocent Pakistanis. “The president was very sharp on the thing, and said, ‘I want to know how this happened,’ “ a top White House adviser recounted. 

In response to his concern, the C.I.A. downsized its munitions for more pinpoint strikes. In addition, the president tightened standards, aides say: If the agency did not have a “near certainty” that a strike would result in zero civilian deaths, Mr. Obama wanted to decide personally whether to go ahead."

The president's concern did not last long.  In the course of a year or so, these deaths became acceptable, and the false reasoning that allows one to participate in the killing of innocents (or sentencing of people to unconscionably lengthy terms) surfaced in Obama's policy decisions -- 

"...Mr. Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent. 

This counting method may partly explain the official claims of extraordinarily low collateral deaths. In a speech last year Mr. Brennan, Mr. Obama’s trusted adviser, said that not a single noncombatant had been killed in a year of strikes. And in a recent interview, a senior administration official said that the number of civilians killed in drone strikes in Pakistan under Mr. Obama was in the “single digits” — and that independent counts of scores or hundreds of civilian deaths unwittingly draw on false propaganda claims by militants. 

But in interviews, three former senior intelligence officials expressed disbelief that the number could be so low. The C.I.A. accounting has so troubled some administration officials outside the agency that they have brought their concerns to the White House. One called it “guilt by association” that has led to “deceptive” estimates of civilian casualties. 

“It bothers me when they say there were seven guys, so they must all be militants,” the official said. “They count the corpses and they’re not really sure who they are.” 

If there is one thing that Obama deserves credit for, it is that he appears to accept his role in these assassinations:

"The nominations go to the White House, where by his own insistence and guided by Mr. Brennan, Mr. Obama must approve any name. He signs off on every strike in Yemen and Somalia and also on the more complex and risky strikes in Pakistan — about a third of the total. 

Aides say Mr. Obama has several reasons for becoming so immersed in lethal counterterrorism operations. A student of writings on war by Augustine and Thomas Aquinas, he believes that he should take moral responsibility for such actions. And he knows that bad strikes can tarnish America’s image and derail diplomacy. 

“He realizes this isn’t science, this is judgments made off of, most of the time, human intelligence,” said Mr. Daley, the former chief of staff. “The president accepts as a fact that a certain amount of screw-ups are going to happen, and to him, that calls for a more judicious process.” 

The problem with that, is that Judges and prosecutors, in addition to being able to lie to themselves about the righteousness of an unconscionable sentence, regularly proclaim that they are "just following the law" or "orders" or "policy" or whatever.  Of course, anybody familiar with modern history knows that those types of excuses are not legitimate when societies come to examine the wrongs of others.  You, judges and prosecutors chose to propagate a sentencing scheme that is unduly harsh and unfair - at least you could have the decency the Obama has to accept responsibility for your actions, even if it requires you to lie to yourself.

Wednesday, May 9, 2012

Does this seem wrong to anybody else?

Doesn't it strike a chord reminiscent of exploitative colonialism to hire native (black) Rawandans to drive around a bunch of drunk white guys on motorcycles so that they can pretend they (the drunk white guys) are riding on the back of a polo pony?

The New York Times seems to think there is nothing wrong with it because the natives are getting paid $20.00!!! to risk their lives and well being:

"Back in Rwanda, the drivers are paid $20 for an hourlong game in a country where the average daily income is a little more than $3, according to the World Factbook, a Central Intelligence Agency publication. All damages to motorcycles sustained during matches are paid for by the organizers."

“I don’t know how I can tell you, but this game is so fun,” Ngirimana said during a break after the third quarter. “First, we came for the money; now we just like it.” 

Local residents typically drive the motorcycles, and expatriates ride on back wielding mallets and scoring goals. The ones in control of the machine are considered more important to a winning team." 

The article went on to note that after the match, the winning whites are carried off the polo grounds by the other teams drivers who are forced to wear roses around their necks and serve more beer.  Okay, it doesn't say that, but would you be surprised?

In other news - has the USAO won any cases recently?

Thursday, May 3, 2012

I'm Back!

So, I have returned from vacation in Siberia. It was a nice visit, but the winters are so very cold there.

Seems to me that Senator Edwards has just lost his trial:

"Christina Reynolds, a former Edwards communications adviser and friend of his wife, told of the couple's confrontation a day after a supermarket tabloid published an article about his affair. The National Inquirer had revealed purported details of Mr Edwards' relationship with Rielle Hunter, who became pregnant with his child. Ms Reynolds, 37, said the row happened at Raleigh-Durham International Airport in North Carolina in October 2007. The court heard that Mrs Edwards stormed off and collapsed outside a private aircraft hangar. Ms Reynolds said that she, along with another woman, helped Mrs Edwards get to a bathroom and calmed her down, but Mrs Edwards went outside again to find her husband. Ms Reynolds said Mrs Edwards had screamed: "You don't see me any more." Then she took off her shirt and bra, exposing herself to her husband in front of his staff, the court heard. "He didn't have much of a reaction," Ms Reynolds said."

I am not really sure how in the hell that testimony could possibly relate to the charges in the case, but it is federal court and under the Federal Rules of Evidence, anything the prosecution wants to offer that will tend to make a defendant look like a dirt bag is admissible.

Me thinks its time for Edwards to try and take a plea...the jury must really hate him.

Friday, February 3, 2012

Eleventh Circuit reigns in 404(b) in drug conspriacies!!!

"Allowing the government to admit such a remote and factually dissimilar conviction would effectively create a per se rule of admissibility of any prior drug conviction in drug conspiracy cases—no matter how old or how different."

US v. Sanders

Too bad for the defendant that the harmless error automatons were at work:

"Because Sanders’s prior 1988 conviction involving 1.4 grams of marijuana had so little, if any, probative value, the district court abused its discretion by admitting the conviction.

Nevertheless, the paucity of probative value creates an additional problem for Sanders—the remoteness and dissimilarity of the prior conviction not only decreases the probative value to show intent but also diminishes the potential for unfair prejudice."

In other words - if the government can convince a judge to allow it to present to the jury...in a drug conspiracy trial...that the defendant was previously involved in drug dealing, it doesn't matter that the admission was erroneous because to be an erroneous admission the evidence has to have little probative value and therefore cannot constitute harmful prejudice!!!"

In other other words - we are wiping our butts with the thought that any defendant could possibly gain a reversal based upon the improper admission of 404(b) in a drug case...ever.

Also gotta love the presumption that law abiding citizens would never find that a guy who is a previously convicted drug dealer may be more likely to be a drug dealer:

"In other words, the prior conviction was so old and dissimilar that it is unlikely that the jury convicted Sanders because of the prior conviction, either because the jury believed Sanders should still be in jail for the prior conviction, or because the conviction demonstrates a propensity to transport large quantities of drugs in a tractor–trailer from Texas to North Carolina."

Why then would the government have wanted to offer it in the first place? What happened to not delving into jury deliberations???

Sucks to be in front of this Court of Affirmation.

Tuesday, January 17, 2012

Move over Wong Sun, the Spanish have something better than the exclusionairy rule!

That's right, Spain, that great nation that has given us such niceties as the inquisition, the Spanish tickler, the Garotte, and the completed genocide of the Arawak, have brought something to the modern world that may actually be laudable:

Attempting to hold those involved in illegal searches accountable criminally.

"Baltasar Garzon, the Spanish judge who famously indicted late Chilean leader Augusto Pinochet, has found himself in the dock for the first time.

He went on trial at the supreme court in Madrid charged with illegally authorizing police to bug the conversations of lawyers with clients.


The judge is accused of overstepping his authority by ordering the recording of prison conversations between three defendants and their lawyers.

Wait - doesn't that happen at FDC every day?

The prosecution is actually not as great as one might think. It is a private prosecution - the same thing that some Spaniards tried to do against Dick Cheney and George W. Bush (which I would support), and is probably tied to the fact that Garzon has been a bit of a renegade when it comes to targeting those that carry themselves as above the law. In Spain, Judges serve as investigating forces in criminal prosecutions - similar to a grand jury.

But, wouldn't it be nice if one day, law enforcement personnel who violate the Fourth Amendment actually faced some repercussions instead of just suppression?

Friday, January 13, 2012


I am having so much fun watching the Republicans devour their own.  Here is a clip of an ad attacking Romney as a liberal, and then pointing out in derogatory fashion that "...he speaks French too!"

To this I say: Quel crétin pourrait éventuellement accepter qu'il est mauvais d'être éduqués et parlent une langue étrangère? Ne cherchez pas plus loin que l'audiance cible!

The Daily Show With Jon StewartMon - Thurs 11p / 10c
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Thursday, January 12, 2012

Our corner of the Universe

Astronomers are now reporting that they believe that in the Milky Way there are 100 billion planetary solar systems - stars that have planets orbiting them.

If you consider that there are believed to be in excess of 170 billion galaxies in the universe, you can really begin to appreciate the significance of the announcement.  This is especially so because we are still finding new life on Earth ("World's smallest frog discovered").

Given that humans have been seeking to communicate with extraterrestrial life since the beginning of recorded history, the announcement is quite exciting.  We should assume that other life in the Galaxy would be trying to communicate with outside life as well.  The question that we should now be looking into is how would a far more advanced life try to do it?  Certainly we will continue to develop better ways of "looking" across great distances to learn of the existence of these extraterrestrial systems, but knowing they are there and having an effective way of trying to communicate are very different.

Anyhow, not really related to the law, but interesting stuff, now I will focus on how to communicate with some AUSA re the true meaning of Brady, a task that is far more daunting than reaching ET.

In other news...it is okay to kill a bunch of enemy combatants in war, but God help you if you pee on their dead bodies! Seems a bit confusing to me if you really think about it.

Tuesday, January 10, 2012

Trading Drugs for Guns is a no no!

Turns out that trading drugs for guns in the 11th Circuit will qualify for prosecution under 18 u.s.c. 924(c), for "possession" as opposed to "use" of a firearm.  Seems reasonable.  Good on ya Pryor!

Monday, January 9, 2012

What is a "Person"?

"My head knocks against the stars.
My feet are on the hilltops.
My finger-tips are in the valleys and shores of universal life.
Down in the sounding foam of primal things I reach my hands and play with pebbles of destiny.
I have been to hell and back many times.
I know all about heaven, for I have talked with God.
I dabble in the blood and guts of the terrible.
I know the passionate seizure of beauty
And the marvelous rebellion of man at all signs reading "Keep Off."

My name is Truth and I am the most elusive captive in the universe"
- Carl Sandburg 

The Ninth Circuit took 64 pages to debate the question of what a "person" is...en banc, and still did not arrive at a consensus (spoiler - "person" means a real person).  All the more reason for Rick Santorum to follow through with his threat to disband the 9th! 

I think it would have been more fun if Kozinski wrote a one-page "who am I" poem.

As issue is 18 u.s.c. 876(c), which deals with mailing threats to persons.  From the dissent:

"Disagreeing, the majority concludes that Havelock’s manifesto was not addressed to natural persons because it indicates nothing about the identity of any individual person to whom the communication supposedly was addressed. Unlike the majority, however, I can find nothing in § 876(c) that precludes liability when a threatening communication is addressed to, and threatens mass murder against, a community rather than a specific individual. I also can think of no reason why Congress would not have been concerned about threats
to commit mass murder. I would therefore hold that Havelock’s communications were addressed to natural persons."

It is an interesting read, if for not other reason than to ponder why a man who showed up at the Superbowl with a newly purchased AR-15 and lots of ammo, was not prosecuted for a terrorism related offense - there will be a quiz next week to see if you can figure out the answer.

Here is a link to the opinion: US v. Kurt Havelock

Thursday, January 5, 2012

Former AUSA Smackdown!

If you ever wondered whether or not there is a significant difference between litigating in Federal and State criminal court, look no further than Cliff Berry Inc. v. State of Florida.

Case reversed on Jury instruction, but took time to address a Richardson issue. 

Richardson, for those of you who don't know, basically says that a trial court must conduct an inquiry when there is a discovery violation.  In federal court, that would be the equivalent of actually holding AUSAs responsible when they...let's say...fail to turn over Giglio until the week before trial, when they were supposed to do it 14 days after the discovery order was entered.

Apparently, the former AUSA was practicing like he was back over in federal land where the lunatics run the asylum and there is no accountability as to prosecutors.  Here is the section dealing with the discovery violation:

"The record demonstrates that on November 26, 2008 – the day Schneir began testifying and before the State concluded its direct examination – defense counsel alerted the trial court to a possible discovery violation after it became clear that Schneir’s trial testimony was a significant departure from his pre-trial
statements and deposition:

[DEFENSE COUNSEL]: Judge, one request before we break, it’s through the Court to the prosecutors. . . .
Apparently now, with Mr. Schneir[’s] testimony and questions, it’s clear that Mr. Schneir’s testimony is at
odds with both his sworn [testimony] in May to the prosecutors, and his deposition in June.  And I’m asking if there are other statements, interviews or notes that occurred since that time, that are inconsistent with his prior testimony, that under Brady, that they be produced.

. . . .

THE COURT: So you’re invoking Brady, and I’m assuming, Mr. Scruggs, you’re aware of that, and
anything they are entitled to, you have turned over?

(Tr. 1545-46.)

The prosecutor denied being in possession of any such materials and asserted that “if I had any such reports or anything, they would have gotten them a long time ago.” (Tr. 1546.) [This line of course is cut and paste from the standard response in federal court...'the government is aware of...and will comply...]

Defense Counsel continued:

It’s clear from the question asked about dates and how he [Schneir] lied and all the meetings about dates, that Mr. Scruggs, before he asked these questions, knew that the testimony was going to vary from the sworn testimony previously given.

I believe that the oral statements have been made to Mr. Scruggs or to Mr. Fiedler that are inconsistent, that is within the obligation the prosecutor owes, and I cannot believe that Mr. Scruggs asked the questions, and is
surprised to hear that now the witness is testifying in variance.

So, I think there are statements out there, with all respect to Mr. Scruggs that Mr. Scruggs knows perfectly well and I ask for them now.

(Tr. 1546.)

In the exchange with the trial court that followed, the prosecutor agreed to think about and produce any undisclosed oral or written statements to the defense over the holiday weekend.

As we have already noted, based on the Assistant State Attorney’s Script, [in federal land, this would be referred to as work product, rather than the testimony the prosecutor prepared for the witness] it is clear that the State was aware Schneir would depart significantly from his pretrial sworn statement and deposition at trial before Schneir took the stand. For example, the Script summarizes the information the Assistant State Attorney expected to elicit from Schneir as follows:

• “Theft actually started in early 2000.”

• With respect to the outbound fuel lines, fuel was stolen “approx 12 times in 2000 to March 2003,” and with respect to the inbound fuel lines, fuel was stolen “approx 12 times.”

(Script, at R. P3364-65.)

The Script also outlines questions the Assistant State Attorney planned to (and did, in some form) ask Schneir at the trial:

• “Why lower numbers [and] wrong times for fuel theft?”

• “Why did you give wrong dates in depo?”

• “Why did you give wrong numbers/times in depo?” (Below this series of questions, the words “MINIMIZE INVOLVEMENT” were written in another person’s handwriting. These are the exact words Schneir used at trial to explain his departure from his pretrial testimony.)

(Script, at R. P3370.)

And, in fact, the Assistant State Attorney later confirmed at a post-trial hearing that he learned of the changes in Schneir’s testimony the weekend before Schneir took the stand. The State failed to notify the defense that
Schneir’s testimony had changed until after Schneir began testifying, and, exactly what the State told the defense is all but certain, as the dissent suggests."


"In his pre-trial sworn statements and a pre-trial deposition, Schneir contended that the Defendants began stealing jet fuel from the Fuel Farm in June 2002. At trial, Schneir testified that the theft of jet fuel began much earlier, in January 2000. Schneir's trial testimony at least doubled or tripled the amount of fuel he claimed the Defendants stole from the fuel farm and dramatically increased the duration of the crime. Although the State was aware that Schneir’s testimony at trial would drastically vary from his pre-trial sworn statement and deposition, the State failed to notify disclose the Defendants until Schneir had taken the stand."

The opinion goes on to reason that although the testimony was not Brady or impeachment material, the State was obligated to produce it when it became aware, and failed to do so, resulting in prejudice to the defense.

The contrast is really quite fascinating.  In federal court, there is no chance to depose or obtain statements pretrial, the manner in which this would have unfolded would have been that at trial, the guy would have testified to the higher fuel amounts, and then the government would have (if they were acting in good faith) produced the earlier, different statements.  The case would have gone up and the 11th would have PCA affirmed the conviction.

Great work by the boys over at Carlton Fields!