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?

Wrong.

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."

Now - HOW THE FUCK IS THE ARGUMENT "MERITLESS?"

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

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.

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.

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.

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.

 

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?

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.