Macondo Law

When I No Longer Feel the Butterflies

2011-10-11T23:16:00.003-04:00

If I ever stop feeling those butterflies when I'm about to go into a jury trial, make an opening statement to a jury, a closing argument, or an argument to an appellate court, I'll know for sure the time to quit practicing law has come. I mean it. To me, any attorney that can go into a jury trial or to oral argument on appeal not feeling them either does not know what he's doing or simply doesn't care anymore, ... and I really don't know which is worse.

But there is something magical about those butterflies. If you have prepared well -and I usually overprepare- the moment you get into your opening statement to that jury, or that oral argument to the appellate judges, or the closing arguments they just seem to go away, at least for that stage. Oh, they'll be back, that's for sure. But you start realizing what they're all about. They are a reminder that you want to do well, that you have really serious business to take care of, that a human being's liberty may depend not only on the facts but on how well you perform. Above all, they're a reminder that you care about what you do, and you care about that person you are representing, yes, your client, the one who has all his hopes and prayers placed on you.

Every trial I go to is the same, and they're all different. The same in the sense that my wife always tells me (several times as it gets later and later into the night), "Tom, you've been preparing for this forever, and you just can't let go. You need to come to sleep or you'll look lousy in front of that jury tomorrow morning. Don't worry, I'll wake you up really early." She simply doesn't understand that I will not get any sleep unless I feel I'm ready or too exhausted to continue getting readier. Sooner or later, usually later, I follow her suggestion. The same routine is played at several different stages. "Dear, I need to get this just right. I have to argue that Rule 29 motion. It's really important." Or, "I prefer to be tired than not ready. Tired I can perform; not ready, no way!" They're also different in that some trials you go into feeling there is a real fighting chance, whereas other times you know that the deck is really stacked against you. You know it, yes, but you still give it all your best. Even criminal trials where the deck is stacked against you as defense attorney have a funny way of playing out once you're into it, and you just have to be ready to make your moves. Simply, you have to always be prepared.

And don't worry, the butterflies will be back even when you don't have to do much of anything, ... such as when you're standing there waiting for a verdict to be announced. You look at those jurors as they march into the courtroom, try to read them and hope they look at you or your client with a sympathetic eye. If they don't look, I usually worry a lot. But that's not always justified. I've had jurors look at me and convict, and others look away or down and acquit. But when even one of them looks at you and smiles gently just that teeny little bit, as if to try to calm you, to reassure you, ... oh boy!

In another post I'll write about the time I hugged my client before they even announced the verdict. That was funny! Well, the Judge didn't think so, ... but that's why he became a judge and I a criminal defense attorney.

The story of a CJA Voucher

2011-10-08T17:34:00.002-04:00

"Frustrated" is not an accurate description for my feelings about the length of time it has taken to have a CJA Voucher processed and paid. Yes, the and paid is a very important step in this process. I filed a CJA Voucher on April 24, 2011. It was near mid-August, and the voucher had still not been audited at the District Court's CJA Clerk's Office. I know they have been overworked and understaffed, but almost 4 months is still a long time to have a voucher waiting to be audited. After some calls indicating that I was ready to commit suicide if the voucher was not audited sometime soon, it finally got audited in a few days and sent to the District Judge, who approved it within two days of receiving it from the CJA Clerk. But, because the voucher requested excess compensation (it exceeded the case compensation maximum) it still had to receive the blessing of the Chief Judge of the First Circuit Court of Appeals or her designee, who is usually the most junior judge on the Court of Appeals. But before reaching the designee at the First Circuit, it goes through another audit at the First Circuit. It finally got audited and approved again in mid-September 2011, and then it makes its way back to San Juan, to the CJA Clerk. So, as of Wednesday, September 28, 2011 the CJA Payment Status page at the District Court's website indicated my voucher had been "processed for payment."

You would think that is tantamount to telling me that the check is in the mail, but it isn't. The "processed for payment" entry means they have taken some step (I think) in getting it moved towards being actually paid, but definitely not all. And as of Friday, October 7, 2011, whatever additional internal steps were required to enter the voucher for payment had yet to be taken! When they finally take all the necessary steps at the District Court here, the Administrative Office of the U.S. Courts will receive electronic notice and the next day will issue and mail my check. Then the prayers start for the postal service to be efficient, as the Administrative Office does not do any direct deposit of these payments, although I'm told that they have long had the capability of doing so.

So -with luck- I will actually receive that payment from the April 24th voucher sometime in mid-October, or perhaps a little later?

P.S. - I stand corrected. The CJA Voucher payment was issued Sept. 29th. But ... it still took from April 24 to Oct. for me to receive payment!!

eMarketing reflections - a new blog from Australia

2010-01-23T16:00:00.002-04:00

Jeroen Hoekman, an eMarketing specialist, has started his new blog eMarketing reflections. The content, however, is not only relevant to eMarketers, but to all who use or may be thinking of using social media. After all, when we use social media (facebook, twitter, etc.) to communicate with others, not all of those "others" are so-called "close friends" that we might want to trust with certain information. I find that some of the concerns about using social media for eMarketers which Jeroen Hoekman expresses apply to us all. For example, think of the things you have said on Facebook which you would definitely not want some prospective employer seeing or learning about. Some good counsel in some of those reflections by Jeroen. I invite you to take a more in depth look at his blog, which is just starting out.

Lou Gehrig's Speech on July 4th, 1939 and my friend Jorge L. Arroyo Alejandro

2009-07-04T20:00:00.004-04:00

On July 4, 1939, Lou Gehrig reminded the world that even though he'd had a bad break, he had an awful lot to be thankful for. Watch a tribute to the Iron Horse which reminds us this Independence Day of all we have to be thankful for in our lives.

This also brings to the minds of many of us at the Puerto Rico Association of Criminal Defense Lawyers the passing away last October of our dear friend and Past President, Jorge L. Arroyo Alejandro, who reminds me of what Lou Gherig would have been like if he had been an attorney. As if fate were calling, Jorge died of ALS, or Lou Gehrig's disease.

Not too long ago I ran into Jorge's wife, Ana, and one of his beloved daughters. All I can tell you is that I cried a little after meeting them, just feeling their own inner strength. Jorge, you must be watching over them, I know.

Obama and the Dems Better Get their Act Together

2009-06-16T23:41:00.005-04:00

I was so glad that the Obama administration decided to take on health care. And I was extremely glad when he pushed for a public option. Truly, I'm all for telling insurance companies to go to hell, and would like to see universal health coverage, but would settle for a single payer system. I'd even settle for just having a decent public option.

Yet I am deeply disappointed to see that President Obama is even considering as something acceptable the half-baked so-called public option hatched by the Democratic right wing - and I'm talking of the idea of cooperatives. This is not a solution. See Making the Case for Public Plan Option, Part III: Coops are Not the Answer at Balkinization.

Give us a real public option or else forget about 2010 or 2012!

Barack Obama: There Will Be Bamboozling

2008-02-21T01:04:00.004-04:00

Is this what this guy is all about? I have been feeling that he has been the one playing the race card all along, just as his wife has, and I'm more convinced than ever that is the case. There will be buyer's remorse with Obama.

In Puerto Rico he has promised things that he knows he is not capable of ever delivering, but I guess it's okay for him to baboozle us. Shame on you, Barack!

Nuevo Blog - Puerto Rico

2008-01-07T11:47:00.000-04:00

If you can read Spanish and are interested in Puerto Rico's history, you will find the columns appearing at the new blog - Puerto Rico - authored by Francisco Ortíz Santini, quite interesting. The blog consists mostly of his columns published in El Vocero newspaper. Here, from his introductory post, is an idea of what the author wants to do:

Lo que usted encontrará aquí, son una serie de columnas sobre temas de Historia de Puerto Rico y el Caribe, previamente publicadas en días viernes alternos en el periódico El Vocero de Puerto Rico. Las mismas no necesariamente llevan una secuencia cronológica o analítica de la historia. Son más bien el fruto de un modesto esfuerzo por provocar la discusión de temas históricos, políticos, jurídicos y antropológicos, más allá de los espacios académicos. No son textos para citar ni mucho menos; pero son un esfuerzo.

El paso de los años no debe ser óbice para la rectificación y la iluminación del entendimiento opacado por el barniz de la leyenda.

The discussion of the Insular Cases from the beginning of the 20th Century is very good, one covered by my former boss, Judge Juan R. Torruella, U.S. Court of Appeals for the First Circuit, in his book The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal (1985), as well as other scholars. I invite you to check out this new blog.

Chega de Saudade - Antonio Carlos Jobim & Joao Gilberto Reunited

2007-11-17T03:49:00.000-04:00

Two musical giants who have given so much joy to so many for so long.

Yet Another Political Discrimination Case from Puerto Rico Reaches the First

2007-10-22T18:04:00.000-04:00

Today's decision by the First Circuit in Carlos Calderon-Garnier v. Hon. Anabelle Rodríguez, No. 06-2222 (1st Cir., Oct. 22, 2007) involves an interlocutory appeal in yet another Puerto Rico political discrimination case. The appeal is from the denial of qualified immunity. The parties to the appeal are a former Commonwealth prosecutor (now a PRACDL member) and a former Commonwealth Secretary of Justice (now an Associate Justice of the Commonwealth of Puerto Rico Supreme Court). The PRACDL member prevails, at least at this stage of the proceedings.

Meetings before President's Task Force on Puerto Rico's Status and Congressional Action on October 23, 2007

2007-10-21T23:19:00.000-04:00

Meetings will be held at the Department of Justice next Tuesday, October 23, 2007 presided by the President's Task Force on Puerto Rico's Status. We last posted here on the Report by the President's Task Force on Puerto Rico's Status.

Also on Tuesday the House of Representatives will be going through the markup of what appears to be an Amendment In The Nature of a Substitute to H.R. 900 Offered by Mr. Rahall of West Virginia. In essence, this provides for a referendum vote for or against the current status -- a colonial status.

UPDATE: You can view the House Committee on Natural Resources markup hearing here.

New Look for Macondo Law

2007-10-21T18:56:00.000-04:00

Perhaps getting a new look on Macondo Law will make me want to post more regularly. It's not as if I don't want to post, or have run out of things to write about. Recently I have had a lot of work to get out. I can say that I am cautiously optimistic about the outcome of Gall v. US, No. 06-7949 and Kimbrough v. US, No. 06-6330. (Briefs and Oral Argument Transcripts added to the sidebar).

On the Puerto Rico front, we had the recent embarrassing news spread all over the world about the dozens of pets seized from their owners and thereafter apparently thrown over a bridge some 50 feet to their deaths (for the most part). The pet owners resided in public housing and had been threatened with eviction unless they handed over the pets. A lawsuit requesting in excess of $20 millions has been filed in U.S. District Court against the municipal government of Barceloneta, PR, the mayor, personnel from the municipality, as well as a private entity --Animal Control Solutions, Inc. (ACS)-- alleged to have carried out the part of taking the pets away and throwing them over the bridge to their deaths. ACS owner Julio Díaz has also been sued.

More news on this later as it develops.

Happy Birthday to "El Gabo" and Cien Años de Soledad

2007-03-05T01:26:00.000-04:00

The story of Macondo turns 40 as Gabriel García Márquez turns 80 on March 6th. Our congratulations and thanks to him for such enjoyable times in our many readings of "Cien Años de Soledad" and the many other great novels.

Some PRACDL Members Compete in World's Best 10K Race

2007-02-27T20:27:00.000-04:00

In the photo on the left is attorney Lydia Lizarribar (probably discussing a case with a client) before starting her run at the World's Best 10K this past Sunday.

There were runners, dominated by the Kenyans, and there were walkers (of which I was supposed to be one). A bad cold during the last week, probably the result of a recent change in climate while visiting New Orleans for the Annual CJA Panel Representatives Conference, caused me to drop out of the race. Next year we plan to organize a team of runners and walkers from the Puerto Rico Association of Criminal Defense Lawyers.

Luis Balbino Arroyo Colón

2006-06-10T22:14:00.000-04:00

Luis Balbino Arroyo Colón, all of age 16, earned his bachelors degree with a 4.0 grade point average from the University of Puerto Rico, with a major in Physics. He now plans to go on for graduate studies in Physics and, then, for a law degree! At his graduation ceremony he was awarded all sorts of prizes: a recognition as the outstanding student in the Arts and Sciences Faculty, the Enrico Fermi Award, given to the best student in the Physics Department, and the Luis Stefani Raffucci Award, the top academic award granted by the UPR's Recinto Universitario de Mayaguez.

Luis says he is "very happy." We are also very happy for Luis, who should have a distinguished future in anything he sets out to do.

Top 10 Law Schools for 2007 from U.S. News & World Report's

2006-04-03T11:57:00.000-04:00

U.S. News & World Report's ranking of the top 10 law schools for 2007:

Yale Law School
Stanford Law School
Harvard Law School
Columbia Law School
New York University School of Law
University of Chicago Law School
University of Pennsylvania Law School
University of California, Berkeley School of Law
University of Michigan Law School
University of Virginia School of Law

Report by the President's Task Force on Puerto Rico’s Status

2005-12-22T21:34:00.000-04:00

There is very little that goes on in this lovely island of Puerto Rico that is not somehow permeated with status politics. Today The White House released the Report by the President's Task Force on Puerto Rico’s Status. I have always favored statehood for Puerto Rico as a preferable solution to independence. Puerto Rico's current status is unstable. Just think, Congress can do away with our U.S. Citizenship unilaterally according to this Report.

My wish for the coming year? That all local politicos would only say things to the public as regards the status issue that would serve to properly educate the public and help them make proper choices, rather than the choices necessarily advocated by the particular politicos. If they do this, then win, lose, or draw I'll be more than satisfied.

A Lesson from my Friend Carlos

2005-11-18T00:05:00.000-04:00

My friend Carlos has passed on. He had long suffered from muscular dystrophy. Recently he had some breathing problems and had to be hospitalized. He developed a pneumonia and three days ago, early in the morning, he stopped breathing.

As is natural, some of us who knew Carlos all our lives were talking about him. Some of the outrageous (at least in his mom's eyes) things he would do as a kid, only made us laugh a little. But we also spoke of the manner in which Carlos dealt with his muscular dystrophy. He never gave in to his illness, but did everything humanly possible to continue living as normal a life as possible despite his condition. Others may have become extremely depressed, but Carlos, in his own way, faced up to the harsh reality and did not want anyone to feel sorry for him, nor did he feel sorry for himself.

A funny thing happened to me today. My cell phone rang, and it was a call from Carlos! At least that is what the caller ID indicated. Actually it was his older brother, who is my age and also a lawyer, who was calling me from Carlos' house to let me know the time of the funeral this morning.

Carlos never seemed to have asked "why me?" Instead, he accepted it and set out to live with and around his illness. In so doing, Carlos not only made life easier for himself, but for all of us around him as well. And, even more important, he taught us all how to deal with adversity.

Carlos, I will try to recall your lesson often. Until we meet again, a big hug.

Rosa Parks, R.I.P.

2005-10-25T01:37:00.000-04:00

It is with great sadness that we learn of the death of Rosa Parks. Her last name -it seemed to us- should have been Spark rather than Parks, for her one woman act of defiance certainly was a spark for the civil rights movement.

Harry Potter

2005-07-18T00:09:00.000-04:00

Scholastic, the U.S. publisher of J.K. Rowling's Harry Potter series, said a record 6.9 million copies of "Harry Potter and the Half-Blood Prince" were sold in the first 24 hours in the U.S. And you just wait until Harry starts blogging!

End of Term - My Pick of the Worst Decisions

2005-07-12T00:39:00.000-04:00

The term is up, and I have let sufficient time pass to allow everyone else in the blogosphere to comment about it. To me the following were the biggest disappointments: the remedies portion of U.S. v. Booker, No. 04-104 (Jan. 12, 2005); Kelo v. City of New London, No. 04-108 (June 23, 2005) (see our previous posts here and here); and Castle Rock v. Gonzales, No. 04-278 (June 27, 2005) (see our post It was "Poor Joshua!" then and will it now be "Poor Rebecca, Katheryn, Leslie and Jessica"?

And on the question of who will replace Justice O'Connor, I only hope that it is someone who will be an additional vote to undo the Booker remedial opinion, and who will also vote to undo Harris and Almendarez-Torres, but I will not hold my breath waiting.

Nino's Dictionary -- or -- The Meaning of "Shall" from Booker to Castle Rock

2005-06-30T11:20:00.000-04:00

During Oral Argument in United States v. Booker last October 4, 2004 (transcript here), Justice Breyer and Justice Scalia had the following exchange:

JUSTICE BREYER: All right, if I believe that that is just out of the question, it's so complicated, nobody could do it, it would [*45] be a radical change, Congress could never have intended that, what about a much simpler approach? What you would do is take 3553(b), and you say, "Read the word 'shall' -- i.e. 'shall apply the guidelines' -- to 'may,'" so that the guidelines become advisory, either because the "shall" becomes a "may" or because you give each judge the power to give any reasonable reason at all as to why the Commission's guideline, they didn't actively consider this factor. In other words, read 3553(b) as permissive. And now, assuming I've expressed myself on the underlying Apprendi questions, so I, but suppose Blakely does apply, would you -- is -what would be wrong with taking that approach?

MR. CLEMENT: Assuming I understand the approach you propose, there would be nothing wrong with taking that approach.

JUSTICE BREYER: All right, I have thought of one thing that might be wrong.
[Laughter.]

JUSTICE BREYER: So I'll ask you about it, if you want.
[Laughter.]

JUSTICE SCALIA: Could it be that "shall" [*46] does not mean "may"? Right?
[Laughter.]

JUSTICE SCALIA: Oh, that's not it? "Shall" -

JUSTICE BREYER: All right, well, I -- you see nothing wrong with that. That makes the guidelines advisory, and there are a number of objections -- maybe not, maybe big, maybe small. One objection I was worried about is -- I'm giving you my thought process, you know, and I -- because I'm trying to get a -- your response -- is that if we did take that approach, you'd leave the appellate section in place. That means every time the judge didn't use the guideline, the appeals courts would have to review for reasonableness. Now that would be in place. We would discover judges all over the country having different views on that. Courts of appeals would have different views about was or what was not reasonable. We would be here to review those differences, and we would become the sentencing commission. I thought I had escaped.
[Laughter.]

JUSTICE BREYER: Now, how, how serious an objection is that? Or do you recommend that, if [*47] you lose on this point, we take the approach of, in that way, making the guidelines advisory?

That was Booker and Justice Scalia was quite cocky as to "shall" does not mean "may." But somehow he found a new dictionary when it came time to write the opinion in Castle Rock v. Gonzales, and decided that he would interpret the Colorado statute at issue so that every shall was magically turned to a discretionary shall or a may. The statute reads in part (taken from Court's opinion):

“YOU SHALL USE EVERY REASONABLE MEANS TO ENFORCE THIS RESTRAINING ORDER. YOU SHALL ARREST, OR, IF AN ARREST WOULD BE IMPRACTICAL UNDER THE CIRCUMSTANCES, SEEK A WARRANT FOR THE ARREST OF THE RESTRAINED PERSON WHEN YOU HAVE INFORMATION AMOUNTING TO PROBABLE CAUSE THAT THE RESTRAINED PERSON HAS VIOLATED OR ATTEMPTED TO VIOLATE ANY PROVISION OF THIS ORDER AND THE RESTRAINED PERSON HAS BEEN PROPERLY SERVED WITH A COPY OF THIS ORDER OR HAS RECEIVED ACTUAL NOTICE OF THE EXISTENCE OF THIS ORDER.” Ibid.

Nino, you are less than consistent. As a matter of fact, you have done in Castle Rock that which you so much complain of: you made up the law to suit the result you wanted.

Director of the U.S. Marshals Service Resigns

2005-06-27T09:49:00.000-04:00

Law.com reports here that the director of the U.S. Marshals Service, Benigno Reyna, announced his resignation Friday, following strong criticism over inadequate security for federal judges. The resignation is effective July 31, 2005, bringing to a close his tenure in that office since October 2001.

On Edgar Ray Killen's Conviction

2005-06-21T19:42:00.000-04:00

Justice delayed is justice denied, but there is always a modicum that can be achieved even 41 years later. Such is the case with the conviction of Edgar Ray Killen for manslaughter in the deaths of Andrew Goodman, then 20, and Michael Schwerner, then 24, and James Earl Chaney, then 21, three young, idealistic civil rights workers who were in Mississippi in 1964. The conviction has come 41 years after the murders, and Mr. Killen - what a name - should have been in prison for years now, but it is better late than never.

As a citizen, I like to see justice done. And when proper convictions have been achieved, I like to see them upheld. But as a lawyer I also understand that prosecutors sometimes do things that jeopardize these convictions, and this annoys me because the prosecutor acts in a manner that may deprive a defendant of a fair trial, not to say jeopardizing a conviction that should otherwise stand. I mention this because in an Associated Press article on the conviction, it states that "Prosecutors had asked the jury to send a message to the rest of the world that Mississippi has changed and is committed to bringing to justice those who killed to preserve segregation in the 1960s." Prosecutors should not be asking jurors to send messages to the world. This is absolutely improper argument, and may well jeopardize an otherwise valid conviction. That jury was not there to atone for past wrongs by some of Mississippi's citizens; it was only there to decide the guilt or lack thereof of one man in the deaths of 3 young men 41 years ago. Shame on the prosecutor for making this sort of argument. The end does not justify the means. If it did, someone would have probably murdered -justifiably- Mr. Killen long ago, rather than wait 41 years for a modicum of justice.

Chief Judge Steven J. McAuliffe (D.N.H.) to sit by designation in Marquez-Marin v. Gonzales, et al.

2005-06-21T15:43:00.000-04:00

First Circuit Chief Judge Michael Boudin, at the request of District of Puerto Rico Chief Judge José Antonio Fusté, has designated Chief Judge Steven J. McAuliffe, District of New Hampshire, to preside over Marquez-Marín v. Gonzales, et al., Civil No. 05-1619, a case brought by Carmen Marquez-Marín, a former Assistat U.S. Attorney in Puerto Rico, against Attorney General Alberto Gonzales and U.S. Attorney for the District of Puerto Rico Humberto Garcia a/k/a "Bert". You can see the designation here, and our previous post (with link to the Complaint) here.

Marquez-Marín v. Gonzales, et al. - Complaint by Former AUSA

2005-06-17T01:52:00.000-04:00

Here is the Complaint in Marquez-Marín v. Gonzales, et al. No. 05-1619 -HL. Most of the stuff alleged therein has been vox populi for some time now. Former AUSA Carmen Marquez-Marín is a straight shooter, incapable of including allegations in a complaint that are not true. The question then becomes: will there be anyone at our U.S. Attorney's Office who will stand up and tell the truth, rather than constantly telling everyone else outside the office how bad things are in there? Carmen's credibility will withstand any attacks from defendants, so I would suggest to defendants they ought to think twice before deciding that the only thing to do is defend at all costs. I doubt they listen to me, so . . . let the games begin.

I saw Bert on TV - He's Distracting Us

2005-06-15T04:47:00.000-04:00

I actually got to see H. S. "Bert" Garcia, our Texan U.S. Attorney in Puerto Rico, on the TV news last night when they showed a portion of a press conference the U.S. attorney's Office gave to announce a number of indictments in what they call a $4 billions a year money laundering operation and drug trafficking conspiracy. I was going to repress myself and not comment on the case, given that I have a client who is accused, but why should I have to shut up while the U.S. Attorney blabs to the press.

Bert, my client is innocent!

Bert must be thrilled to have some big indictments to put forth after playing with silly putty for more than a year. See our post on "Thin Resources" a/k/a AUSA's in D.PR in which we summed up the Chief Judge's comments to one of the Assistant U.S. Attorney's as to the paltry grand jury returns for the past year in this district.

Moreover, Bert must also be thrilled to have something to distract the attention momentarily from a lawsuit filed against him and others by former Assistant U.S. Attorney Carmen Marquez, who Bert fired. Carmen was a serious prosecutor, and she now has a formidable attorney named Judith Berkan. I would not enjoy being on the opposite side of Judy Berkan.

So, Bert, the distraction will only last for a short while. Enjoy your depo. Maybe I'll help Judy set it up in TrialDirector so that the same can be videotaped and then the transcript can be played along synchronized with the video. And, remember, the truth and nothing but the truth! Can you handle that?

You cannot bully people around and expect all of them to go away quietly. Some will inevitably come back to haunt your life. You cannot sully someone's reputation and expect them to take it in stride. No, Bert, you can't do that. And I believe Carmen any day, just any old day, before I believe you.

To the reader it may seem as if I have something against Bert. Well, I really do not know Bert other than by what gets out to us defense lawyers - but that's usually an earful - and the lousy treatment he gave me the one time I called him directly on a civil forfeiture matter. Bert, you could have been courteous, it would not have hurt much. Arrogance, sheer arrogance!

Google celebrates Frank Lloyd Wright

2005-06-08T11:37:00.000-04:00

Google celebrates Frank Lloyd Wright.

(CTRL + left click on image) And I again daydream what if's about my architectural career that never happened. But, hey, being a lawyer --particularly a criminal defense lawyer-- is not bad at all.

No Entrapment Here

2005-06-07T19:42:00.000-04:00

Today the First Circuit decided United States v. Villafañe-Jiménez, No. 03-1230 (1st Cir. June 7, 2005) dealing with an appeal from one of the trials in the "Lost Honor" investigation. As expected, defendants lost on all the important issues to their appeals. I wrote about the "Lost Honor" investigation and prosecutions over at The Best Defense some time back. See When defendants think they know more than the lawyers. While I am not handling the appeal for the client I represented at trial, it all looks too familiar and the result would surprise me if it was any different.

Gal Costa

2005-06-03T16:07:00.000-04:00

This year's Puerto Rico Heineken JazzFest is dedicated to the great Brazilian singer Gal Costa. She will be performing Saturday night and I will be right there to enjoy. Lawyers who have gone through the hassle of having to reinstall everything in their computers, and then do innumerable updates, do deserve some leisure time.

Fresh Starts

2005-05-31T14:31:00.000-04:00

I'm sitting here waiting for my dial-up connection to download Scansoft's PaperPort 10 Professional (a 258.4 MB download), one of several downloaded programs I lost when my previous hard-drive decided to call it quits. I am greatful that I had backups of all my files, as that would have really represented a huge loss. And I am also greatful for the fast attention Dell Latin America gave to me, getting a new hard drive installed at 9:00 a.m. after having contacted them the previous afternoon. Oh, and they actually delivered exactly as they said they would: "Mr. Lincoln, we don't have the Maxtor 120 GB drive, so we will be sending you a Seagate Barracuda SATA 160 GB drive, if you don't mind."

Now, if that download would only end soon, but it's only about 42% through. I've had to download Windows XP Service Pack 2, Norton Internet Security 2005 (plus all the updates), Acrobat Reader, and a few other programs. We have both DSL and cable internet connections available in San Juan, so maybe it's time to think of upgrading from my old trusty dial-up.

To Circuit Judge Howard: You may be last, but certainly not least

2005-05-23T13:44:00.000-04:00

We blogged on the May 12, 2005 Memorandum and Order in Igartua de la Rosa v. United States in this post. The First Circuit has now published an errata for the Igartua de la Rosa case here, that reads as follows:
ERRATA

The memorandum and order of this court issued on May 12, 2005, should be amended as follows:

On the cover sheet replace "Torruella, Selya, Lynch, Howard and Lipez, Circuit Judges." with "Torruella, Selya, Lynch, Lipez and Howard, Circuit Judges."

Well, my favorite Circuit Judge has always been the one with the least seniority on the Court, since it is to that Judge that the Chief Judge traditionally delegates the review of all CJA Vouchers from the District Court, so Circuit Judge Howard may now be last, but certainly not least, certainly not in my view of things.

It is a Crime to Gossip

2005-05-16T22:58:00.000-04:00

No, I'm not kidding and neither is the mayor of Icononzo, Colombia.

Fed up with people targeted by false rumors turning up dead or wrongfully arrested, the mayor of a small Colombian town has made gossip a crime punishable by up to four years in prison.

"Human beings must be aware and recognize that having a tongue and using it to do bad is the same as having dynamite in their mouths," says an official municipal decree issued last year in Icononzo, 40 miles southwest of the capital, Bogota.

According to this Associated Press story, a story that could have just as well been written by Gabriel García-Marquez, the move to criminalize gossiping was necessary --said the mayor-- because "in a country as violent as Colombia, gossiping can have serious consequences."

Nobody has been charged with felonious gossiping, but officials say it is not because they aren't gossiping, but merely that they have not been caught. There are also fines up to $150,000.00 for gossiping.

While the story does not mention our esteemed Representative Feeney, we have noticed that Rep. Feeney did not vote on the House of Representatives' latest harsh sentencing bill, H.R. 1279. See this Final Roll Call under NV here. Could it be that Rep. Feeney has moved to Icononzo, Colombia? Ooops, better not start gossiping now.

"Thin Resources" a/k/a AUSA's in D.PR

2005-05-12T16:34:00.000-04:00

An Assistant U.S. Attorney shows up before Chief Judge Fusté (D. PR) for what was supposed to be a change of plea hearing. Defense counsel requests additional time because there are additional matters to be resolved before defendant can enter a guilty plea (i.e., defendant wants a better plea offer). Chief Judge Fusté is known to move his cases along, sometimes faster than one would desire. So he sets a trial date and then the Assistant U.S. Attorney informs him that she has another trial and the Judge replies that another AUSA can try this case. Thus far, okay. But then the AUSA tells the Judge that the resources of the U.S. Attorney's Office are already stretched thin. The Chief Judge was surprised, to say the least, at this response, and must have been wondering whether she worked at another U.S. Attorney's Office. He simply said (and I'm paraphrasing): "Have you seen the grand jury returns for this district? Your office has hardly done anything for some time!" With that, he recessed.

What the Chief Judge said is not news to anyone practicing before the District of Puerto Rico. And if they are "stretched thin" it is only because they have been treating people so badly that a whole bunch of Assistant U.S. Attorney's have either resigned or sought transfers elsewhere.

Is there some headcounting going on here?

2005-05-12T15:00:00.000-04:00

On May 4th, 2005 the First Circuit sitting en banc heard argument in Igartúa de la Rosa v. United States, No. 04-2186 (1st Cir. Oct. 14, 2004). The 3 judge panel opinion was withdrawn when petitioners' requested rehearing or, alternatively rehearing en banc, and the panel agreed to rehear the case and vacated its opinion and judgment and ordered additional briefing by the parties. With briefing completed, but before rehearing by the 3 judge panel, the en banc Court decided to take up the case. A link to the audio of the en banc oral argument can be found here.

Today the First Circuit has issued a Memorandum and Order (per curiam) with a strong dissent by Circuit Judge Juan R. Torruella, over whether Senior Circuit Judge Levin Campbell, who sat in the initial 3 judge panel, can sit on the en banc panel. The majority concludes that he may, and Judge Torruella argues that he may not. It is abundantly clear that had the Court taken up the matter en banc following the original panel's opinion, Senior Judge Campbell would be qualified to sit on the en banc panel. But Judge Torruella argues (and I'm simplifying a bit here) that because the panel's opinion and judgment had been vacated by the 3 judge panel itself and no rehearing before the panel had taken place when the en banc Court motu propio decided to take over, the en banc Court is really reviewing the district court's opinion and not the opinion by a 3 judge panel, since there was no longer an opinion by the panel at the time of the en banc court's decision to take the case, and in that scenario the Senior Judge cannot sit on the en banc.

Aside from the legal niceties, I wonder whether there is some counting going on here, or merely a discussion of purely legal issues. After all, there are only 6 active Judges in the First Circuit, and Judge Torruella was the dissenting judge in the original panel's decision. Hey! It happens in the Supreme Court, so why would it not happen elsewhere?

Will the First Circuit's en banc Opinion in U.S. v. Councilman Matter?

2005-05-08T18:11:00.000-04:00

We have previously posted on the First Circuit's opinion in United States v. Councilman, 373 F.3d 197, 201 (1st Cir. 2004), withdrawn, 385 F.3d 793 (1st Cir. 2004) and en banc ruling pending, in the following:

The Volokh Conspiracy on US v. Councilman (July 14, 2004)
Amici Brief in US v. Councilman (September 11, 2004)
First Circuit Grants Petition for Rehearing en banc in US v. Councilman (Oct. 5, 2004)
Supplemental Brief filed by Amici in US v. Councilman (November 29, 2004)

For more information see United States v. Councilman at the Electronic Privacy Information Center. Professor Orin Kerr, who wrote the amicus brief on behalf of the Center for Democracy and Technology, The Electronic Frontier Foundation, The Electronic Privacy Information Center, The American Library Association, The American Civil Liberties Union, and the Center for National Security Studies as Amici Curiae in Support of the United States in favor of reversal, has recently pointed out two matters in this post at The Volokh Conspiracy:

The First Circuit has yet to decide the case after rehearing en banc (oral argument was held, I believe, on December 8, 2004); and
If the en banc First Circuit upholds the panel's opinion, there is already a piece of clarifying legislation that would likely be passed by congress to remedy the situation, so Councilman's holding may have little or no impact beyond the particualr case itself.

There was a strong dissent in the Councilman panel opinion by Circuit Judge Kermit Lipez, which I believe the en banc Court will likely follow. But if it doesn't, it is at least a good thing that Senator Leahy is ready for the outcome with legislation. This should be easy legislation to get passed, as both DOJ and civil liberties groups are in agreement on this one.

Are You a Republican?

2005-05-08T17:21:00.000-04:00

I have just checked my health and have been informed that I am doing fine!

I am:
0%
Republican.

"You're a complete liberal, utterly without a trace of Republicanism. Your strength is as the strength of ten because your heart is pure. (You hope.)"

Are You A Republican?
Link via TalkLeft.

Should Burger King be preparing for this?

2005-05-05T14:57:00.000-04:00

From CrimLaw, Ken Lammers asks : Are you sane enough to kill if you tell the psychiatrist that you're going to go to Burger King after your execution? And I ask, could this have a connection to the body parts that have been appearing in fast food?

Audio of Rehearing En Banc Oral Argument Today in Igartúa-de la Rosa v. United States (1st Cir., Oct. 14, 2004)

2005-05-04T17:43:00.000-04:00

I will be posting more on the background and the oral argument held this afternoon in Igartúa de la Rosa v. United States, No. 04 2186 (1st Cir. Oct. 14, 2004)(be sure to read Circuit Judge Torruella's dissent). In the meantime, you can listen to the en banc oral argument here.

P.S. - The case is about whether the rights of more than 4 million U.S. "citizens" residing in Puerto Rico are being violated by not being allowed to vote for electors in U.S. presidential elections. The First Circuit has previously said no in rather stark terms, so I'm wondering what they asked about at oral argument.

Injustice Anywhere - New Texas PD Blog

2005-04-29T14:20:00.000-04:00

A Texas Public Defender is publishing a new blog - Injustice Anywhere - that looks promising. Check it out. We have added a link to the sidebar. LV: Ken Lammers' CrimLaw.

New Look

2005-04-24T04:08:00.000-04:00

If you are wondering why I changed the template for Macondo Law (again) the only reason was that I wanted a white background to write on, which I think makes it easier to read. If your blog was listed here and now it is not, drop me an e-mail, since I lost some of my links in transition.

Professor Berman on "The Human Face of Retroactivity"

2005-04-11T02:25:00.000-04:00

I invite you to read Professor Berman post on The Human Face of Retroactivity at Sentencing Law and Policy. In particular, read the letter from an inmate which is attached at the end of the post. Quite a moving reminder that there are thousands of lives adversely affected by the Courts' reluctance to apply Booker retroactively.

One can't help but wonder at the sense of having been forgotten that these persons imprisoned under sentences that under Booker are illegal must feel. Read that letter.

TrialPrep

2005-04-09T16:45:00.000-04:00

Today the Puerto Rico Association of Criminal Defense Lawyers has launched TrialPrep - another PRACDL blog.

Today's Version of a Beautiful Mind?

2005-04-06T19:58:00.000-04:00

Not wanting to be outdone by a manure stealing Harvard Prof, a student working toward a doctorate in math at Princeton, was arrested for two counts each of recklessly endangering another person and tampering with a food product, one count of theft and one of harassment.

So what did the student actually do? According to a university spokesperson, the student admitted to campus security he cut women's hair and poured semen and urine into women's drinks when they were not looking. It is believed this has been going on since 2002 until his arrest in March of this year!

See AP report here. Attempts to reach the student have been --understandably-- unsuccessful. Since his arrest, he has been in a mental health ward of a hospital in Trenton.

I always knew that math --beyond the basics-- could really screw you up! Just think of it. A graduate student working on his doctorate in math and goes around campus cutting off girls' hairlocks and pours semen and/or urine into their drinks! I'm sure the Harvard Economics Prof feels at least he's got a half decent explanation: Why should anyone pay for shit?!

Economics 101: Guns and Manure or Manure and Butter?

2005-04-06T19:49:00.000-04:00

Give me a break! The Associated Press reports here on a Harvard Economics Professor accused of stealing manure. Is he a candidate for one of those shaming sentences? Perhaps he'll be made to walk around with a sandwich board that has written on it "I'm a thief. I steal shit!"

The Pope and the President on the Culture of Life: Two Very Different Visions

2005-04-06T08:26:00.000-04:00

The New York Times has an op-ed by Nicholas D. Kristof titled The Pope and Hypocrisy. It is an excellent op-ed about the talk of the "culture of life" and the inaction of our government as regards the barbarities taking place in Darfur.

Great Teaching Tool: Landmark Supreme Court Cases

2005-03-24T21:05:00.000-04:00

We invite you to visit Landmark Supreme Court Cases which we learned of at Robert Ambrogi's Lawsites. The site's description reads, in part, as follows:

This site was developed to provide teachers with a full range of resources and activities to support the teaching of landmark Supreme Court cases, helping students explore the key issues of each case. The "Resources" section features basic building blocks such as background summaries and excerpts of opinions that can be used in multiple ways. The "Activities" section contains a range of short activities and in-depth lessons that can be completed with students. While these activities are online, many of them can be adapted for use in a one-computer classroom or a classroom with no computer.

Depending upon the amount of time you have to teach the case, you may want to use one or more of the "Resources" or "Activities" in conjunction with one or more of the general teaching strategies.

Check it out! The site has been developed through the collaboration of teachers, attorneys, law students, Street Law, and The Supreme Court Historical Society.

Help Wanted for TV Documentary (includes the free legal services of a renowned defense attorney)

2005-03-24T16:27:00.000-04:00

I received the following e-mail today, and I'm posting it in case any of the lawyer readers of this blog have information which may be useful to Mikaela Beardsley. I was curious as to who she was, and did a Google search and found the following link most useful:

IMDb Mikaela Beardsley

Now here is the e-mail in case any of you wants to help out in this matter:

Dear Tom,

I am a producer at a New York production company, Stick Figure Productions. We are developing a new television series for Court TV. We are looking for cases for which we will provide - for free – the legal services of a renowned defense attorney in exchange for participation in our show. In terms of the case, we are open to different scenarios; our only stipulation is that it not be rape or murder. The case could be criminal or civil.

Our company’s website (www.stickfigureproductions.com) will give you a sense of the kind of programming we do. We are not “reality TV” producers – this series for Court TV will be all documentary footage and will in effect showcase the towns and townspeople where the case is taking place, as well as follow a case from start to finish.

Can you list my query and contact info on your blog? Or do you have any cases that fit the bill? If you have any questions, I can be reached via email or at 212/277-3600.

Many thanks. I look forward to hearing from you.

Mikaela Beardsley

--
Mikaela Beardsley
Producer
Stick Figure Productions
6 West 18th Street 11th Floor
NY, NY 10011
212/277-3600 (office)
212/277-3611 (fax)
917/716-5231 (cell)

If anyone does get in touch with Mikaela on this matter, will appreciate your letting Macondo Law know of it.

UPDATE: It appears the same e-mail got around to Skelly at Arbitrary and Capricious as well as to Three Generations of Imbeciles are Enough.

UPDATE (3/29/05): Looks as if Stick Figure Productions is really looking for a young lawyer or a 3L to cast. As Robert Ambrogi states here: "First case: Defending Stick Figure in a bias suit for discriminating against older lawyers." I join that class action.

And it's also "Poor Jennifer and Iris!"

2005-03-22T21:55:00.000-04:00

How timely! In Rivera v. State of Rhode Island, No. 04-1568 (1st Cir. March 22, 2005) we are once more reminded that there is rarely a duty for the police to protect you from the actions of a non-state actor, certainly not a duty that is actionable under Title 42, U.S. Code, Section 1983, except in very, very rare circumstances. These rare circumstances do not include when the police promise to protect you if you agree to testify against someone in a murder trial, and then don't protect you despite repeated threats against your life and their knowledge of the threats and further promises to protect you, and you are thereafter murdered for your cooperation. As Judge Lynch so aptly puts it:

It would be inhumane not to feel a sense of outrage over Jennifer's death, or a sense of deep sympathy for Iris Rivera who has lost her daughter. But our question is one of federal law, not one of sympathy.

It's all about the Fourteenth Amendment and substantive due process. Hmm! Explain that to Jennifer's mom. When people start realizing that there is no real duty to protect them, they'll stop cooperating, as little Jennifer might have --but for the empty promises of state actors. Then, perhaps, that federal law which Judge Lynch is obliged to uphold will change, if for no other reason than to accommodate the needs of law enforcement.

As Rivera goes on to state:

[...] "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197 (1989). That is because the purpose of the Due Process Clause is to protect the people from the state, not to ensure that the state protects them from each other. "The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security," id. at 195, because "[t]he Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes," id. at 196.

Elsewhere, the opinion states:

DeShaney directs that a state's affirmative constitutional duty to protect an individual from private violence arises when there is some deprivation of liberty by state actors. See DeShaney, 489 U.S. at 200 ("The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf."). The state's promises, whether false or merely unkept, did not deprive Jennifer of the liberty to act on her own behalf nor did the state force Jennifer, against her will, to become dependent on it. See Monahan, 961 F.2d at 993 (finding no constitutional liability when the state did not force the plaintiff to become dependent on the state). Moreover, the state did not take away Jennifer's power to decide whether or not to continue to agree to testify. Merely alleging state actions which render the individual more vulnerable to harm, under a theory of state created danger, cannot be used as an end run around DeShaney's core holding.

(footnote omitted)(emphasis added). Somewhere along the writing of this opinion the fact that Jennifer was only 15 years old seems to have lost importance. But then again, "Poor Joshua!" in DeShaney was also a child.

Of course, DeShaney is the very case upon which petioner in Town of Castle Rock, CO v. Gonzales, No. 04-278 relied upon in urging reversal of the Tenth Circuit at oral argument before the Supreme Court yesterday. See our posts here, and here. And see Crime & Federalism post on Rivera v. Rhode Island Illustrates Inadequacy of Current Affirmative Duty Doctrine, which also proposes a solution to current doctrine. See also this post at Appellate Law & Practice, and read the comments to the same.

It Appears it Will Be "Poor Rebecca, Katheryn, Leslie and Jessica"

2005-03-22T09:58:00.000-04:00

Judging from this article at Law.com -- High Court Wary of Giving Protective Orders Constitutional Protection by Marya Lucas -- on yesterday's argument at the Supreme Court in Town of Castle Rock, CO v. Gonzales, No. 04-278 (see our post here), it appears that the Tenth Circuit will be reversed. Perhaps Justice Ginsburg can write a "Poor Rebecca, Katheryn, Leslie and Jessica" dissent.

First Circuit Quietly Enters a Booker Remand in Antonakopoulos

2005-03-22T09:53:00.000-04:00

In United States v. Antonakopoulos, No. 03-1384, 2005 WL 407365, at *4 (1st Cir. Feb. 22, 2005), the First Circuit, after rejecting all of the Blakely/Booker claims actually raised by defendant on direct appeal, stated as follows:

There is another type of Booker argument available but which Antonakopoulos has not made: that there is a reasonable probability that the district court, freed of mandatory guidelines, would have given him a lower sentence. Because this case establishes the standard for such a claim, we think it fairer to give Antonakopoulos and his counsel time to consider whether he wishes to advance the argument. If so, the prosecution must have a chance to respond

At sentencing the defendant sought a downward departure based in part on the fact that his son was brain damaged and he had been his son's caretaker. The court determined that others can also provide care, and indeed have done so during his imprisonment. The main grounds on which he sought remand, under Blakely, are now gone. This ground, that of family circumstances, is still open and is not frivolous.

If defendant wishes to pursue this remaining type of Booker resentencing claim, he should advise this court and submit a supplemental brief within ten days, in compliance with our rules, not to exceed 15 pages. The brief should address the standards articulated in the opinion. The government shall have five days to file a response of no greater length. If the defendant does not make such a supplemental filing within the time allotted, he will be deemed to have waived this option and judgment shall enter accordingly.

Antonakopoulos, slip op. at 29-30.

An examination of the First Circuit's Docket in Antonakopoulos shows that Supplemental Briefs were in fact filed thereafter. The Docket also shows that on March 15, 2005 an Order was entered by Judge Bruce M. Selya, Senior Judge Norman H. Stahl, and Judge Sandra L. Lynch, which (as per the docket entry) states as follows:

After consideration of the supplemental briefs filed by the parties, we vacate the defendant's sentence and remand the case to the district court for resentencing pursuant to United States v. Booker, 125 S. Ct. 738 (2005). We intimate no view as to what sentence should be imposed on remand. So ordered."

The docket also reflects that on the same date Judgment was entered by Judge Bruce M. Selya, Senior Judge Norman H. Stahl, and Judge Sandra L. Lynch. The corresponding docket entry states as follows:

Consistent with the court's opinion of February 22, 2005, the conviction of Stelios Antonakopoulos is affirmed. After consideration of the supplemental briefs filed by the parties, the defendant's sentence is vacated and the case is remanded to the district court for resentencing pursuant to United States v. Booker, 125 S. Ct. 738 (2005). The district court's order for restitution to Mercantile Bank and Trust is, on remand, to be reduced to $100,000. We intimate no view as to what sentence should be imposed on remand.

So Antonakopoulos did in fact result in a Booker remand, contrary to what we had published earlier here at the PRACDL Blog and here in Macondo Law. We thank the folks on the CJAFirstCircuit group for pointing this out to us.

It was "Poor Joshua!" then and will it now be "Poor Rebecca, Katheryn, Leslie and Jessica"?

2005-03-19T23:10:00.000-04:00

It is reported that Chief Justice Rehnquist will be back on the bench on Monday, when arguments are heard in Town of Castle Rock, CO v. Gonzales, No. 04-278. Is this the best time for the Chief Justice to be back on the bench, to defend his earlier decision in DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189 (1989), the one memorable for Justice Blackmun's heart wrenching dissent in which he wrote "Poor Joshua!" - in reference to the child that the Court found had no substantive due process right to protection from private violence.

Castle Rock is a tragic and shocking story of police ineptitude and indifference, one resulting in the murder of three minor girls, Rebecca, Katheryn, and Leslie Gonzales, killed by their own father. If you want some good reading on Castle Rock, over at Crime and Federalism Norm Pattis has written about it here, and Mike has followed up here and here. And over at SCOTUSblog there's an excellent post by Steven Wu here. The ACLU has reported on the case here.

Behind all the legalese, what is truly at issue is the fear that municipalities will be held accountable for money damages for acts of private violence. In Puerto Rico there are no jury trials in civil cases in the Commonwealth Courts. Damages amounts handed down by judges tend to be stingy. Thus, the opportunity to get the cases into federal court is of great importance to plaintiffs in the shoes of Jessica Gonzales, respondent in Castle Rock.

The Merits Briefs:

The Tenth Circuit's panel opinion, Gonzales v. City of Castle Rock, 307 F.3d 1258 (10th Cir. 2002) is here, and the en banc opinion Gonzalez v. City of Castle Rock, 366 F.3d 1093 (10th Cir. 2004) is here (must scroll down a bit).

The Tenth Circuit got things right. Let's see if the Supreme Court can do the right thing this time around. I believe that this case is clearly distinguishable from DeShaney and that the Court will not have to overrule it for respondent to prevail, as she should.

There's a good article in The National Law Journal - March 9, 2005 on Castle Rock - Supreme Court to Weigh in on Due Process and Domestic Violence – Justices to Decide if Police are Liable, by Marcia Coyle. Thanks to Crime and Federalism for the link. The article has some good observations from Section 1983 guru Sheldon H. Nahmod, whose first ed. (when it was still a single volume) of Civil Rights and Civil Liberties Litigation - The Law of Section 1983 (now in its 4th edition) served as my bible when I worked at the Commonwealth of Puerto Rico Department of Justice - Federal Litigation Division.

From the First: Judges Lipez and Torruella Disagree with a Critical Aspect of Antonakopoulos' Plain Error Standard for Unpreserved Booker Errors

2005-03-05T08:23:00.000-04:00

It did not take long for some in the First Circuit express disagreement with at least part of United States v. Antonakopoulos, No. 03-1384, 2005 WL 407365, at *4 (1st Cir. Feb. 22, 2005). In United States v. Serrano-Beauvaix, No. 02-2286 (1st Cir. March 4, 2005) (a case involving, inter alia, an unpreserved Booker claim) the First Circuit (in an opinion written by Judge Lynch) holds that no remand for resentencing is necessary because "Serrano has failed to carry his burden that there is a 'reasonable probability' that he would be sentenced more leniently under an advisory Guidelines system." While Judge Lynch's opinion has some portions that appear to us to even go beyond Antonakopoulos, it is the concurrence by Circuit Judge Kermit V. Lipez, joined by Circuit Judge Juan R. Torruella that is of note in Serrano-Beauvaix.

We commence with Circuit Judge Lynch's main opinion, wherein she states:

We have recently set forth the applicable framework for review of unpreserved Booker claims in Antonakopoulos. Utilizing the four-prong test in United States v. Olano, 507 U.S. 725 (1993), there must be (1) an error (2) that is plain, and it (3) affects substantial rights and (4) seriously impairs the fairness, integrity, or public reputation of judicial proceedings. Antonakopoulos, 2005 WL 407365, at *4. The first two prongs of the plain error test are met whenever the district court treated the Guidelines as mandatory at the time of sentencing. Id. But to meet the third prong of the test, the defendant must persuade us that there is a "reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new 'advisory Guidelines' Booker regime." Id. "[I]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice under plain-error analysis." Id. at *6 (citations and internal quotation marks omitted).
Serrano relies upon the district judge's statement at the sentencing hearing: "I have to consider the fact that I cannot sentence him to 60 months. The lowest I can sentence him on that particular situation is 63." This statement, he argues, makes it "clear that the district court would have sentenced [Serrano] to 60 months in prison instead of 63 on count one." Not so. Given Serrano's criminal history category and his role as recruiter, and the amount of drugs involved, the court's statement was a simple statement of fact. The statutory minimum, without the enhancements, was 60 months. He was sentenced to 63 months, out of a possible range of 63 to 78 months. Serrano's argument amounts to an assertion that there was such a reasonable probability that the judge would have totally ignored Serrano's role in the offense and prior conviction and that our confidence in the outcome is undermined by the fact that the judge actually considered these two enhancements. Even post-Booker, the district court "must consult those Guidelines and take them into account when sentencing." Booker, 543 U.S. at __, 125 S. Ct. at 767. And so the court had to consider both role in the offense and his criminal history. Serrano has failed to meet his burden.

This sounds as if the guidelines range were presumptively correct. Was this not one of the examples where the First Circuit in Antonakopoulos would remand for resentencing, i.e., when the District Court expressed that it would have imposed a lesser sentence were it not for the mandatory nature of the guidelines?

In a concurrence in Serrano-Beauvaix by Circuit Judge Kermit V. Lipez, joined by Circuit Judge Juan R. Torruella, while agreeing with much of Antonakopoulos, expresses disagreement with a critical part of Antonakopoulos: the requirement that in cases of unpreserved Booker errors defendant bear the burden of showing prejudice.

I do not believe that we should require defendants invoking unpreserved Booker error to make a specific showing of prejudice (the reasonable probability of a different outcome) to satisfy the third step of plain-error review. Rather, such error should entitle the defendant to a presumption of prejudice, which the government can then try to rebut. This approach, adopted by a panel of the Sixth Circuit in United States v. Barnett, No. 04- 5252, 2005 WL 357015 (6th Cir. Feb. 16, 2005), is well grounded in Supreme Court precedent and has been applied by our sister circuits in other contexts "where the inherent nature of the error made it exceptionally difficult for the defendant to demonstrate that the outcome of the lower court proceeding would have been different had the error not occurred." Id. at *9.

Judge Lipez then goes on to carefully explain why he favors this approach, and his explanation is certainly the more reasonable and convincing one to us. We hope that the approach urged by Judges Lipez and Torruella is adopted by the en banc Court sometime soon.

First Circuit Speaks Out on Booker

2005-02-22T18:04:00.000-04:00

Finally we have some word from the Frist Circuit on Booker. The Court issued two opinions, United States v. Antonakopoulos, No. 03-1384 (1st Cir. Feb. 22, 2005) and United States v. Sahlin, No. 04-1324 (1st Cir. Feb. 22, 2005).

PRACDL Seminar on Booker and Crawford on February 24, 2005

2005-02-10T23:48:00.000-04:00

The Puerto Rico Association of Criminal Defense Lawyers (PRACDL) will be holding a one-day seminar on the application of Booker and Crawford on February 24, 2005 from 8:30 a.m. to 5:00 p.m. at the amphitheater of Inter-American University School of Law.

The guest speakers for the seminar are nationally renowned attorneys:

The Honorable Nancy Gertner, U.S. District Judge, District of Massachusetts
Peter Goldberger, of Ardmore, Pennsylvania
Richard Strafer, Miami, Florida

This seminar is being co-sponsored by the U.S. District Court for the District of Puerto Rico, and all CJA Panel members who attend will receive CLE accreditation.

Here is the PRACDL Booker & Crawford Seminar flyer. You should confirm attendance either by e-mail or by telephone (both e-mail and telephone listed in flyer).

It is very likely that most Judges will not schedule any criminal matters for this day, so as to allow as many in the defense bar to attend the seminar.

Please do not put your nonsense on the record

2005-02-10T23:05:00.000-04:00

As trial continues, we keep getting on friendlier terms. Just a few days ago, at a sidebar, the persecutor wanted the record to somehow reflect that the Judge was not upset at defense counsel making numerous objections as to certain testimony from a snitch that, at best, constituted Fed.R.Evid. 404(b) against just one of the defendants on trial, but which was being presented as to all defendants in this drug conspiracy case.

MR. VAZQUEZ [the AUSA]: The Judge has never been upset with Mr. Lincoln at all.

MR. LINCOLN-SAN-JUAN: Mr. Vazquez, please do not put your nonsense on the record about this or that. I noticed that the Judge was upset. That's my perception.

THE COURT: The Judge is upset because we keep bringing it up again and again interrupting the trial, and the jury is getting upset with all these interruptions that we're having. It's not necessarily good for the jury.

MS. LIZARRIBAR-BUXO: If I may, Your Honor, but we have to, we have to object, Your Honor, to be able to have a fair trial. I mean, the fact that there is evidence coming in that we have had a concern since yesterday for several reasons keep opening up additional concerns on several other points of law, and right now, I am requesting a severance.

Ultimately the entire testimony of the snitch in question was struck, and then it was the prosecutor who was visibly upset.

Today, one police officer testified that he had arrested my client --at least he said my client's name-- but when asked if he saw him in Court, the witness identified another defendant. I have a distinct feeling that tonight every single police officer yet to testify is being shown pictures of all defendants.

Two other police officers were caught with numbers scribbled on their hands to "refresh their recollection" as they testified. Not surprising, since the prosecutor expects the witnesses to testify to evidence envelope numbers relating to seizures conducted more than 3 years ago!

Update on Puerto Rico Electoral Cases & Complaint Against District Judge Domínguez

2005-02-01T07:24:00.000-04:00

The First Circuit issued a corrected opinion in Puerto Rico Electoral Cases - Rossello-González v. Calderón-Serra, slip op. No. 04-2610 (1st Cir. Jan. 28, 2005) -of which we earlier posted on here (original opinion) and here (denial of petition for rehearing en banc).

We have also learned that the judicial ethics complaint filed against U.S. District Judge Daniel R. Domínguez has been dismissed, although we have not seen the Order itself. In our initial report on this here we stated:

We have read a report of some sort of judicial complaint filed against Judge Domínguez by a non-party to any of the cases, alleging that he should not be hearing the electoral cases because the son of one of the candidates -former Governor Rossello- was a law clerk for Judge Domínguez. Funny that none of the parties have requested recusal. I wonder if this "concerned" citizen went to Puerta de Tierra and filed a similar complaint regarding Supreme Court Chief Justice Federico Hernández-Denton, for whom the other candidate, Anibal Acevedo-Vila, clerked at one time. I doubt the concerned citizen did any such thing, but I mention it because I am seeing and hearing too many persons who should know better, make cheap attacks against a highly regarded and impartial federal judge. There are good legal arguments on all sides, and we do not need to wreck our institutions for short term political agendas. Shame on that "concerned" citizen for being such a hypocrite!

We might have also wondered whether another Puerto Rico Supreme Court Justice (Fuster) should have also recused himself, since he once ran against Pedro Rossello for Resident Commissioner. I guess the complainant against Judge Domínguez simply did not know of these matters. Sure!

Boring Evidence Shall Be Excluded

2005-01-28T22:28:00.000-04:00

I have just come up with a new Federal Rule of Evidence:

Evidence that is deemed boring shall be excluded.

Here is an excerpt from yesterdays daily transcript of a trial I'm attending.

11 MR. LINCOLN-SAN-JUAN: Your Honor,

12 I'm going to object. I don't know if a

13 person had the same number of employees

14 throughout the whole course of the two

15 years.

16 This is getting so, I think,

17 boring. I'll say that much, but

18 really, it's I don't know if the person

19 had the same number of employees

20 throughout the two years or whether it

21 was for -- or whether he increased them

22 or decreased them -- whether the

23 witness knows or what. I would suggest

24 we start –

[. . . ]

9 (At sidebar:)

10 MR. VAZQUEZ [the AUSA]: We know that time is

11 of the essence, and that we didn't

12 expect this to happen today, but now

13 we're going to request the protection

14 and the supervisory power of the Court.

15 Before we went to the break,

16 Mr. Lincoln stood up and made as part

17 of an objection, mentioned that this

18 matter was boring, to the point that

19 the jury laughed.

20 That, Your Honor, affects the

21 decorum and the seriousness of the

22 proceeding. We felt insulted, and we

23 still feel insulted.

24 The duty of counsel is to maintain

25 the decorum as officers of the Court,

1 and I would respectfully request from

2 this Court its protection and give a

3 curative instruction to the jury as to

4 that specific incident and to totally

5 disregard it.

6 This is a very serious matter.

7 Now I am requesting the protection and

8 the supervisory power of the Court to

9 this effect.

10 THE COURT: Mr. Lincoln, it's your

11 turn now.

12 MR. LINCOLN-SAN-JUAN: My turn?

13 THE COURT: Yes.

14 MR. LINCOLN-SAN-JUAN: I really

15 have nothing to say, other than I do

16 not agree with counsel's tone as to

17 saying this.

18 Well, he's raising his voice as he

19 said it, so I have to put that on the

20 record, as well.

21 Yes, it was getting rather boring.

22 I don't see how it is humanly possible,

23 Your Honor -- and I bring this to the

24 Court's attention right now, because

25 under Rule 602 of the Federal rules of

1 evidence, a witness should not be

2 allowed to testify based upon matters

3 that -- should testify based upon

4 matters that he or she knows about.

5 Guessing and speculating should

6 not be permitted, and I don't see,

7 quite frankly, why we tell jurors all

8 the time, the Court instructs them,

9 counsel argues this all the time; that

10 jurors are not to lose their common

11 sense when judging in cases, and I do

12 not think that judges lose their common

13 sense when they're dealing with cases

14 either.

15 I think quite the contrary, and I

16 don't see how one can fairly say that

17 it is humanly possible for this witness

18 to be testifying to all that the

19 Government is bringing out of him of

20 all these different people year by

21 year, drug points by drug points.

22 THE COURT: But it hasn't varied

23 that much.

24 MR. LINCOLN-SAN-JUAN: That he can

25 be able to state -- I don't know what I

1 earned in '95 -- that's my earnings --

2 I don't know what I earned in '96 -- I

3 don't know what I earned in '97. And

4 this witness can tell not only what he

5 did, but what 20 other people did and

6 what guns each one had year per year,

7 what drug amounts they sold on a weekly

8 basis, each one of them.

9 Your Honor, it gets to the point

10 where it's absurd.

11 Then the other thing is, Your

12 Honor, Your Honor has requested that we

13 expedite these proceedings as much as

14 possible. As defense counsel, we have

15 to some degree one problem; that we

16 have clients that may not be amenable

17 to certain stipulations that otherwise

18 counsel would enter into.

19 So that precludes us from being

20 able to stipulate to some things. But

21 other than that, I don't know what the

22 Government is really driving at with

23 all this tedious, repetitive evidence.

24 It is, in fact, getting quite boring,

25 and quite repetitive and, really, of

1 people that are not even here, that are

2 not even -- are so almost collateral

3 and unnecessary, really, for this whole

4 conspiracy thing that they're bringing

5 that it gets to be absurd, and

6 Mr. Vazquez wants to play like he's

7 seeking the protection of the Court,

8 and he's really offended and all this.

9 Well, I am offended by having to sit by

10 listening to Mr. Vazquez trying to drag

11 this from a witness that I do not

12 humanly think is possible for a person

13 to remember.

14 MR. VAZQUEZ: May we reply to

15 that, Your Honor?

16 THE COURT: Go ahead. Briefly,

17 because I don't want to make this an

18 everyday situation that now --

19 MR. VAZQUEZ: Mr. Lincoln had all

20 the time in the world to talk.

21 We have a duty to prove a case

22 beyond a reasonable doubt with all the

23 evidence in light of the sentencing law

24 and all the situations; I have to duty

25 to do that before the jury.

1 Number two, my claim at this time

2 does not in any way preclude

3 Mr. Lincoln or any of the other

4 attorneys to bring arguments of law

5 before this Court. What we're

6 objecting to is the method that's being

7 done. He can simply object and give a

8 ground, and if it's to be discussed, it

9 can be discussed at the sidebar out of

10 hearing of the jury.

11 What's been happening this

12 afternoon is a lot of objections with a

13 lot of improper objections and

14 arguments.

15 THE COURT: What are lots? You

16 mentioned one.

17 MR. VAZQUEZ: There was another

18 one.

19 THE COURT: Bring it out.

20 MR. VAZQUEZ: The record, in fact,

21 read --

22 There was improper comment by you

23 of conspiracy. The record read it was

24 drug operation, not conspiracy, and I'm

25 at blame that I did not go on the

1 record at that time, and I still invite

2 the Court to check that record, but

3 that was passed.

4 At this time, Your Honor, the

5 allegations that have to do as to

6 evidentiary matters are not at issue.

7 The issue are the way they're

8 happening, and now it crossed the line

9 when he simply told the jury that the

10 Government's actions were boring, to

11 the point that the jury laughed. That

12 detracts, and we respectfully request

13 an instruction regarding that matter to

14 the jury.

15 THE COURT: What is the

16 instruction you propose?

17 MR. VAZQUEZ: Regarding a comment

18 of counsel as to the fact that the

19 proceedings followed by the prosecution

20 are boring, that's totally stricken

21 from your mind, and this is a serious

22 matter, and that type of comment is out

23 of order, something to that effect.

24 I go to the wisdom of the Court in

25 setting the words, but that's the idea.

1 Right now, before that jury, it was a

2 big joke, and that should have never

3 happened, because objections are

4 objection grounds, and then sidebar

5 discussion out of the hearing of the

6 jury.

7 MR. LINCOLN-SAN-JUAN: I said this

8 was getting repetitive, and it was

9 almost getting boring or getting

10 boring.

11 MR. VAZQUEZ: He said it's boring.

12 MR. LINCOLN-SAN-JUAN: Well, it

13 is. It's repetitive.

14 THE COURT: Did you finish?

15 MR. LINCOLN-SAN-JUAN: Well, I

16 interrupted him, quite frankly, but I

17 would also, if Your Honor is inclined

18 to give an instruction, then I would

19 also request from the Court -- I don't

20 think that the Court should be giving

21 an instruction of that. The Court will

22 decide.

23 MR. VAZQUEZ: This is a serious

24 matter.

[. . .]

15 MR. VAZQUEZ: May we just request

16 a very slight, since the jury laughed,

17 just a simple instruction to them that

18 the remark involving about boring,

19 please strike that remark, and that's

20 without even mentioning the word

21 "counsel". Because they laughed, and

22 we submit that will take care of it,

23 and we submit that the decorum was

24 misused, and the position of the

25 Government was severely prejudiced.

1 THE COURT: I'll tell you what

2 I'll do --

3 MR. VAZQUEZ: Disregard any remark

4 involving boring case, and that's it.

5 THE COURT: Why don't you get up

6 and you state to the Court when the

7 jury is here that the remark that you

8 had stated that the case was getting

9 boring shall be stricken, and I'll say

10 fine, I'll agree with you, and then it

11 does not sound like I am directing it

12 as to you.

13 MR. LINCOLN-SAN-JUAN: Your Honor,

14 I agree with the matter that it was

15 improper for me to say that, but I do

16 and I still submit to the Court that

17 other than for what Your Honor has

18 pointed out, that that could have been

19 taken care of in about two minutes,

20 that testimony. It has been extremely

21 repetitive and drawn out.

22 MR. VAZQUEZ: We object to that,

23 and the ruling is clear.

24 THE COURT: Fine, but the ruling

25 would be that the Court would not think

1 that it's repetitive yet, because the

2 Court insists that --

3 MR. LINCOLN-SAN-JUAN: And

4 speculative of this witness.

5 THE COURT: That can come out in

6 cross.

7 MR. LINCOLN-SAN-JUAN: That's part

8 of the Federal Rules of Evidence too,

9 Your Honor.

10 THE COURT: But it can come out in

11 cross.

12 MR. LINCOLN-SAN-JUAN: That's why

13 I'm saying part of our frustration is

14 we're making arguments under the

15 Federal Rules of Evidence that are

16 addressed to the Court, and the Court

17 is saying, you handle it, and that's

18 part of the frustration we're

19 experiencing with, quite frankly.

20 THE COURT: I'll tell you what

21 I'll do: Either you get up and state

22 that you wish that that comment be

23 stricken, or I will tell the jury the

24 comment "boring" is to be stricken from

25 the record.

1 MR. LINCOLN-SAN-JUAN: Whichever

2 you prefer, Your Honor.

3 THE COURT: I will state it then

4 that the comment as to "boring" is

5 stricken from the record.

6 MR. VAZQUEZ: Thank you, Your

7 Honor. That will suffice for us.

8 - - -

9 (In open court, jury present:)

10 THE COURT: Ladies and gentlemen,

11 the comment about that the case was

12 boring is ordered stricken from the

13 record.

I'm certain that from then on the jury no longer thought the prosecutor's presentation of evidence was boring. That was yesterday. Today I was hoping to catch a couple of jurors falling asleep and then move to request that the Court instruct the jury that while some of the evidence has been boring, they should make an effort to pay attention.

The Fox Guarding the Chicken Coop

2005-01-17T07:10:00.000-04:00

I apologize that I have been away from the blog, but every once in a while we do have such things called trials to attend, and I had just started one on January 12th --briefly interrupted by the Supreme Court's decision in US v. Booker & Fanfan on the 13th-- and, given the amount of coverage Booker was receiving elsewhere, I thought it best to not attempt to be the Judge Paul G. Cassell* of the blogs.

[*Judge Cassell gave us Croxford immediately after Blakely and has now given us US v. Wilson, No. 03-CR-00882 PGC (D.Utah, January 13, 2005) the day after Booker & Fanfan.]

What the Court gave in Booker with one hand (bringing the guidelines within the reach of Apprendi and the Sixth Amendment's jury trial guarantee), it took away with the other (holding that the guidelines would no longer be mandatory and, thus, outside the reach Apprendi and the Sixth Amendment's jury trial guarantee). As most of you know, the Court's opinion was really 2 opinions, the first --the merits opinion-- by Justice Stevens, applying Apprendi and Blakely and the Sixth Amendment jury trial guarantee to the sentencing guidelines; the second --the remedial opinion-- by Justice Breyer, deciding the remedy that should be provided for that fatal illness the guidelines had caught was to make the guidelines advisory, rather than mandatory, thereby taking them out of the reach of Apprendi, Blakely and the Sixth Amendment's jury trial guarantee.

The remedial opinion in Booker was hijacked (a finding I base on hearsay, using a preponderance of the evidence standard) by 5 Justices, 4 of who do not even believe in Apprendi, Blakely or Booker's merits holding! For that majority to write the remedial portion was tantamount to the fox guarding the chicken coop. What they do for a "remedy" is the greatest of ironies, as Justice Scalia indicates in his dissent. The following passage says it all:

The remedial majority takes as the North Star of its analysis the fact that Congress enacted a “judge-based sentencing system.” Ante, at 22 (opinion of Breyer, J.).That seems to me quite misguided. Congress did indeed expect judges to make the factual determinations to which the Guidelines apply, just as it expected the Guidelines to be mandatory. But which of those expectations was central to the congressional purpose is not hard to determine. No headline describing the Sentencing Reform Act of 1984 (Act) would have read “Congress reaffirms judge-based sentencing” rather than “Congress prescribes standardized sentences.” Justice Breyer's opinion for the Court repeatedly acknowledges that the primary objective of the Act was to reduce sentencing disparity. Inexplicably, however, the opinion concludes that the manner of achieving uniform sentences was more important to Congress than actually achieving uniformity—that Congress was so attached to having judges determine “real conduct” on the basis of bureaucratically prepared, hearsay-riddled presentence reports that it would rather lose the binding nature of the Guidelines than adhere to the old-fashioned process of having juries find the facts that expose a defendant to increased prison time. See ante, at 10–11, 22. The majority’s remedial choice is thus wonderfully ironic: In order to rescue from nullification a statutory scheme designed to eliminate discretionary sentencing, it discards the provisions that eliminate discretionary sentencing.

Scalia, J. (dissenting in part) (footnote omitted).

A Switch in Time?

There appears to be "some evidence" from which one can reasonably infer that Justice Stevens' dissent from the remedial majority was actually the majority opinion at one point. See Sentencing Law & Policy in this post wherein Justice Stevens' dissent from the remedial majority is quoted at n.8 (in part) as follows:

n. 8 ... The Court did not, as the dissent would have us do, strike down particular parts of the statute ...

Stevens, J. (dissenting in part). If nothing else, some law clerk didn't do his final proof reading after someone had switched sides. I will leave to others the speculation as to who the switching Justice was.

What now?

The only apparent winners -at least for now- are the federal district judges who have been granted more discretion. Whether they will exercise it or not, and how, still remains to be seen. If one goes by Judge Cassell's views as expressed in US v. Wilson, No. 03-CR-00882 PGC (D.Utah, January 13, 2005) ("Therefore, in all future sentencings, the court will give heavy weight to the Guidelines in determining an appropriate sentence. In the exercise of its discretion, the court will only depart from those Guidelines in unusual cases for clearly identified and persuasive reasons."), then the result in Booker is even more depressing than I'm willing to accept. After all, even with mandatory guidelines Judge Cassell could have departed for some clearly identified, persuasive and allowed reason. Apparently Judge Cassell bought into Justice Breyer's "carefully crafted statement" which Justice Scalia aptly describes in his dissent in part:

The closest the remedial majority dares come to an assertion that the Guidelines must be followed is the carefully crafted statement that “[t]he district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing.” Ante, at 21–22. The remedial majority also notes that the Guidelines represent what the Sentencing Commission “finds to be better sentencing practices.” Ante, at 20. True enough, but the Commission’s view of what is “better” is no longer authoritative, and district judges are free to disagree—as are appellate judges.

Booker (Scalia, J., dissenting in part) at n. 4.

My wish list for sentencing reform?

eliminating mandatory minimums
creating guidelines sentencing ranges that are not so draconian; and
making the guidelines mandatory again, jury friendly (i.e., simplified), and subject to the Sixth Amendment's jury trial guarantee, and going back to Koon standard for departures.

I have a host of questions (and even answers) regarding matters such as 5K1.1, 5C1.2, their statutory counterparts, acceptance of responsibility, etc., but that will all have to wait for another moment.

Up in Smoke!

2005-01-03T11:24:00.000-04:00

If I sound grouchy to some, I probably am, although I'm also very happy. It has now been 6 days since I quit smoking, not an easy thing to do when you smoked 3 packs per day. Now you might be wondering what I've been using to help me stop, and the answer may surprise you: the common cold. Also staying home during these days has helped keep me away from temptation. Only yesterday did I dare to venture outdoors for the first time, . . . and I did not have any urge to smoke.

There is no better time to quit smoking than when you have a bad cold. The memories of your shortness of breath are still fresh, and this helps you fight the urge to smoke. Also, I keep thinking of the money I'm saving by not smoking, and how I can better spend it, which is just another incentive to quit.

Yes, every so often the thought of lighting up comes to mind, but so far everything is under control. As the days go by, it just becomes more and more difficult to imagine a worse habit than smoking, or to imagine ever going back to it. So, if I sound a bit cranky to you, at least you know why.

Oh, and did I mention that I'm doing this at the same time I am on a diet, . . . and taking a medication whose side effects make you hungry?

Bad Marriage Ends Up in Jail

2004-12-31T10:43:00.000-04:00

Some case names speak for themselves: United States v. Bad Marriage, No. 03-30404 (9th Cir. Dec. 30, 2004).

Gmail Accounts to Give Away

2004-12-29T16:21:00.000-04:00

Have 18 Gmail accounts to give away. If you are interested in one, e-mail me.

He should have been a baseball player!

2004-12-23T18:34:00.000-04:00

Skelly reports here at Arbitrary and Capricious on the arrest of a 20-year public defender in Cook County accused of driving drunk and, when Police searched the vehicle, they also found a small amount of cocaine (street value: $1,900.00). Looks as if his days as a PD are sort of over. Now, . . . if he had been a baseball player instead . . .

First Circuit Denies Petition for Rehearing En Banc in Puerto Rico Electoral Cases

2004-12-22T14:42:00.000-04:00

As expected by most observers, the First Circuit has today denied in a short Order the Petition for Rehearing en Banc in the Puerto Rico Electoral Cases which was filed by the Rossello plaintiffs.

Rossello-Gonzalez v. Calderon-Serra, No. 04-2610 (1st Cir. Dec. 15 2004)

2004-12-15T18:20:00.000-04:00

Just received from the First Circuit the opinion in the Puerto Rico Electoral Cases taken on Mandamus to the Court of Appeals, Rossello-Gonzalez v. Calderon-Cerra, No. 04-2610 (1st Cir. Dec. 15, 2004). More on this once I read it.

Update: The opinion is a very well written. While the First Circuit denies issuance of the mandamus, the practical effect is the same, since it indicates that it expects the Court to remand the Manny Suarez case back to the Supreme Court of Puerto Rico as the complaint in that case does not present a federal question. But do not confuse this for one second with the First Circuit saying the Supreme Court acted properly when it rushed to judgment, because the opinion states precisely the contrary. At n. 22, the First Circuit states:

We agree with the District Court that the Supreme Court's judgment was void. The governing statute provides that the filing of "a copy of the notice [of removal] with the clerk of [the] State court . . . effect[s] the removal and the State court shall proceed no further unless and until the case is remanded." 28 U.S.C. § 1446(d) (emphasis added). The Supreme Court received notice of the removal at 11:48 a.m. on November 20, 2004 but did not issue judgment until that evening. The judgment is thus, as the District Court found, a nullity.

(Underlining in original, bolding added). So it is hard to understand why Puerto Rico Associate Justice Jaime B. Fuster would be quoted as saying he was satisfied with the First Circuit's opinion, when it in fact states that the Supreme Court acted contrary to federal law in issuing its original decision and judgment. What the Supreme Court did speaks very badly for the respect that State and Federal Courts owe each other. It showed a majority of the Supreme Court willing to jump the gun acting along strict party lines, whereas the minority showed the restraint required -by federal law- at the time.

Beyond that, let the recount continue, and may the one who got the most legitimate votes win.

A Very Sobering Reminder

2004-12-13T10:33:00.000-04:00

The New England Journal of Medicine has this photographic essay Caring for the Wounded in Iraq — A Photo Essay, by George E. Peoples, M.D., James R. Jezior, M.D., and Craig D. Shriver, M.D. It is a sobering reminder of what our soldiers are facing in Iraq.

No Assured Winner in Puerto Rico's Gubernatorial Race Regardless of Courts' Rulings

2004-12-13T10:07:00.000-04:00

Every Tom, Dick and Harry -well, let's leave out Tom- seems to take for granted that without the questioned ballots being annulled by the Courts, pro-colonialist Anibal Acevedo-Vila wins the gubernatorial race. I have news for those of you who believe this: the recounts taking place at the Comisión Estatal de Elecciones are not showing this to be the case.

So, regardless of what the U.S. Court of Appeals and/or the U.S. District Court for the District of Puerto Rico may ultimately rule, pro-statehood candidate and former Governor Pedro Rossello may very well be the winner.

Boston Globe Editorial Urges Court of Appeals to Get Out of Puerto Rico Electoral Issue

2004-12-13T07:49:00.000-04:00

The Boston Globe has an editorial today (Votes for Puerto Rico) in which it urges the US Court of Appeals for the First Circuit "to instruct its colleagues on the San Juan bench that this Puerto Rican dispute is not a federal case."

Update on Puerto Rico Electoral Cases before the First Circuit: Audio of Oral Argument to be Available

2004-12-11T16:34:00.000-04:00

The First Circuit's website now indicates that a recording of the oral argument in the Puerto Rico electoral cases to be heard Monday, December 13th will be posted and available for download upon completion of the sitting.

Puerto Rico's Electoral Cases before the First Circuit & Comments on the Hipocrisy of Those Complaining against Hon. Daniel R. Domínguez

2004-12-10T01:24:00.000-04:00

The First Circuit Court of Appeals has set up a page in its website here with links to all documents filed related to the Puerto Rico Electoral Cases.

Oral argument before the First Circuit is set for Monday, December 13, 2004 at 10 a.m. in the en banc courtroom on the 7 floor of the John Joseph Moakley United States Courthouse in Boston, Massachusetts: Rossello-Gonzalez v. Calderon, No. 04-2610; Rossello-Gonzalez v. The Puerto Rico Electoral Commission, No. 04-2611; In Re:Gerardo A. Cruz, No. 04-2612; and In Re: Comision Estatal de Elecciones, No. 04-2613.

We have read a report of some sort of judicial complaint filed against Judge Domínguez by a non-party to any of the cases, alleging that he should not be hearing the electoral cases because the son of one of the candidates -former Governor Rossello- was a law clerk for Judge Domínguez. Funny that none of the parties have requested recusal. I wonder if this "concerned" citizen went to Puerta de Tierra and filed a similar complaint regarding Supreme Court Chief Justice Federico Hernández-Denton, for whom the other candidate, Anibal Acevedo-Vila, clerked at one time. I doubt the concerned citizen did any such thing, but I mention it because I am seeing and hearing too many persons who should know better, make cheap attacks against a highly regarded and impartial federal judge. There are good legal arguments on all sides, and we do not need to wreck our institutions for short term political agendas. Shame on that "concerned" citizen for being such a hypocrite!

IBM's PC Business

2004-12-08T08:45:00.000-04:00

Although I only purchased two products from IBM - my first computer (with a 30 MB hard drive PS2 Model 30) and a printer (an IBM Quietwriter II) - and swore never to buy any IBM products again because of the lousy experience and a feeling that I had paid a lot more than these products were worth, it is still somewhat saddening to read of IBM selling its PC business to a Chinese company. I mean, any copy of PC Magazine years back touted Big Blue as the standard. They pretty much invented the PC as we know it. And, on its way there, gave Microsoft the greatest opportunity it ever had: putting together IBM PC-DOS, but allowing Microsoft to license MS-DOS for all those IBM clones. The rest is history.

With my first computer and printer I also bought WordPerfect 4.2 and a book to learn WordPerfect from Que Corporation. I recall sitting all weekend at home reading and practicing until I could write a half decent looking letter, prepare envelopes, and prepare a motion that looked presentable. Once I could do that, I felt more in control and the rest was just fun learning. I have stayed with WordPerfect, probably because of its Reveal Codes more than any other aspect of it, and probably because I feel sufficiently at home with it not to want to really learn Word, which I have never liked much (at least from my few attempts at using it).

Anyhow, getting back to IBM's PC business, hats off to the folks at Boca Raton who gave birth to the PC. Those were magical days, and they revolutionized the world.

For a more sober look at IBM's sale see John C. Dvorak's Column at PC Magazine.

Kelo v. City of New London, No. 04-108

2004-12-06T23:42:00.000-04:00

Kelo v. City of New London, No. 04-108, which we reported on here, is one of the more interesting cases before the Supreme Court this Term. The Petitioners' Merits Brief in Kelo has now been filed. As we indicated in our previous post as to Kelo:

It involves "whether a Connecticut city can take away a person's home to clear the way for upscale development." In seriousness, it is not only for upscale development, but also whether the eminent domain power can be exercised to take someone's home or other property for "economic development" that will place the property in the hands of private developers, thereby creating jobs and resulting in more taxes being paid to the government's coffers. Is this exercise of the power of eminent domain for public use?

The Supreme Court in Kelo will likely reassess the viability of Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), a case decided by an 8-0 vote, with Justice Marshall not participating. The Hawaii Housing Authority opinion was written by Justice O'Connor.

The Wall Street Journal: Don't Count the Triple-X Ballots

2004-12-03T13:33:00.000-04:00

Today The Wall Street Journal (subscription required) weighs in on Puerto Rico's on going electoral dispute in a column titled Puerto Rico's Florida and sides with the idea that the triple-X ballots - or "pivazos" as they have been locally termed - should be discarded. The column concludes by stating:

We don't know who's the winner here -- preliminary results show Mr. Acevedo Vila ahead by a hair -- but it seems obvious that the triple-X ballots deserve to be discarded as confusing and possibly fraudulent. Then do a recount and declare a victor -- before January 2, the date the current governor's term ends. If not, there's a nasty political crisis in the offing that could be worse than Florida.

It compares the situation with Bush v. Gore stating that "[i]f all this sounds a lot like Bush v. Gore and the 2000 Florida recount, that's because it is. And it's not just the palm trees in the background. The principle at stake is the same: Election laws ought to mean something; you can't change the rules after votes have been cast." And it then takes a swipe at what the Supreme Court of Puerto Rico did:

There is another parallel with Florida 2000 -- an activist state Supreme Court, which first grabbed the case from a lower court and then ordered that the mixed ballots be counted. The rule, however, is that federal courts decide who has jurisdiction in these cases, and a federal judge has ordered that the triple-X ballots be set aside until he can determine whether they are valid.

Hmm, . . . who would have ever thought of our Supreme Court as an activist one. A Court that takes forever to hand down decisions, practically at flash speed resolved that all was okay with the triple-X ballots and -by the way- without having any evidence whatsoever before it or anything that could be called a record from the lower court to look at. This one The Wall Street Journal got right.

Supplemental Brief filed by Amici in US v. Councilman

2004-11-29T05:30:00.000-04:00

On December 8, 2004 the en banc Court will hear oral argument in US v. Councilman. 373 F.3d 197, 201 (1st Cir. 2004), withdrawn, 385 F.3d 793 (1st Cir. 2004), a case we have commented on here, here and here. This case involves internet privacy - and the panel's majority opinion has been widely and strongly criticized. Judge Torruella wrote the majority opinion, joined by Senior Judge Cyr, with Judge Lipez dissenting. In particular, the case involved whether intercepted e-mails were subject to the Stored Communications Act or to the Wiretap Act. The panel majority held the Wiretap Act did not cover the intercepts.

In granting rehearing en banc the First Circuit stated:

Although the parties can address other issues in their supplemental submissions, and the en banc court is free to consider all of the issues presented, the court specifically requests that the parties address the following questions:

1. Whether the conduct at issue in this case could have been additionally, or alternatively, prosecuted under the Stored Communications Act?

2. Whether the rule of lenity precludes prosecution in this case?

Oral argument is scheduled for 3:00 p.m. on December 8, 2004 in the en banc courtroom in the John Joseph Moakley United States Courthouse.

The court welcomes timely motions to file amicus briefs concerning any of the issues in this appeal.

An excellent Supplemental Brief was filed by Professor Orin Kerr on behalf of the Center for Democracy and Technology, The Electronic Frontier Foundation, The Electronic Privacy Information Center, The American Library Association, The American Civil Liberties Union, and the Center for National Security Studies as Amici Curiae in Support of the United States in favor of reversal.

"Bush practice" in Alaska

2004-11-27T07:01:00.000-04:00

Over at Alaskablawg - a blog penned by a criminal defense attorney in Alaska working for the Office of Public Advocacy, there is this recent post on bush practice (not that Bush) which gives one a feel for what practicing law in Alaska is like. We should all be as relaxed!

The Land of Macondo Law: Where the State Court Decides Whether a Petition for Removal to Federal Court is Timely or Not!

2004-11-25T10:51:00.000-04:00

And the Governor is ....

Puerto Rico awaits to learn who the next Governor will be. But politics has moved from the polling places to the courthouses, with the Supreme Court of Puerto Rico issuing an opinion while a petition for removal was pending, and the U.S. District Court declaring said decision void ab initio, for having been issued in violation of the Federal removal statute, 28 U.S.C. Section 1446(d).

The Supreme Court of Puerto Rico's opinion (in Spanish) in Manuel R. (Manny) Suarez Jiménez v. Comisión Estatal de Elecciones, et al., 163 DPR --, 2004 TSPR 179 (Nov. 20, 2004) purported to decide the issue of the questioned split ballots in which voters had marked an X under one party's insignia, while voting for all the candidates of another party. But when the Supreme Court issued this opinion, it did so fully aware that a Petition for Removal had already been filed in the U.S. District Court, as had a notice of removal before the Supreme Court.

In a concurring opinion, one of the Justices essentially ruled in a footnote that the petition for removal had been untimely filed. In fact, it had been filed 5 days after the filing of the case before the Court of first instance, which had dismissed the case.

U.S. District Judge Daniel R. Domínguez issued an Opinion and Order in the removed case, declaring the Supreme Court of Puerto Rico's opinion void ab initio. See Manuel R. Suarez-Jiménez, et al. v. Comisión Estatal de Elecciones, et al., Civil No. 04-2288 (DRD) (Opinion and Order of Nov. 23, 2004).

In the case that was already pending before the District Court prior to the above mentioned removal petition, the Court issued an Amended Order in which, contrary to what the Supreme Court of Puerto Rico had ordered, i.e., that all of the questioned split ballots be adjudicated as valid, it ordered that such ballots should be tallied but not adjudicated until further order from the U.S. District Court. See Pedro Rosello, Luis Fortuño, et al. v. Sila M. Calderón, et al., Civil No. 2004-2251 (DRD) (Amended Order of Nov. 23, 2004). And it thereafter issued an Amended Order as to Scope of Electoral Recount on November 24, 2004.

Yet, to date, the U.S. District Court has not decided (a) whether it will even exercise jurisdiction, or (b) whether it will accept the removed case or order a remand.

To date, those favoring the counting and adjudication of the questioned split ballots say the Supreme Court acted correctly, with opponents saying the Supreme Court tried to steal the election. In the case of the U.S. District Court, the audience switches sides and those wanting the split ballots adjudicated allege the District Court is trying to steal the elections, whereas those alleging these are null ballots consider that they will only find Justice before the U.S. District Court.

All we can say for the moment is that it clearly appears as though the Supreme Court may have overplayed its hand, even if they are the final interpreters of Commonwealth law, whereas the District Court has yet to render a decision on the merits of the issue. And it seems quite certain that the case will soon head to the U.S. Court of Appeals for the First Circuit.

UPDATE: See dissenting opinions in Manuel R. (Manny) Suarez-Jiménez v. Comisión Estatal de Elecciones, 163 DPR --, 2004 TSPR 185 (Nov. 30, 2004) (Rebollo, J., dissenting), and Manuel R. (Manny) Suarez-Jiménez v. Comisión Estatal de Elecciones, 163 DPR --, 2004 TSPR 186 (Nov. 30, 2004) (Corrada Del Río, J., dissenting) (both in Spanish). See also the District Court's Amended Opinion and Order of November 30th in Rossello v. Calderón, Civil No. 04-2251 (DRD).

So, . . . it is now December 2, and we still await to find out who the next Governor of Puerto Rico will be. In the meantime, it appears the First Circuit will hear oral arguments on a petition for Mandamus on Friday, December 10, 2004.

Congratulations to Michael Cernovich a/k/a Federalist No. 84

2004-11-23T10:56:00.000-04:00

Congratulations are in order to Crime & Federalism blogger Federalist No. 84 -now known to the world as Michael Cernovich- for having been selected as part of the Law.com's Blog Network, even if it cost him his anonimity. Lots of readership guaranteed there, but Michael has had an interesting blog all along.

November 22, 1963

2004-11-22T08:57:00.000-04:00

It was 41 years ago that President John F. Kennedy was killed in Dallas, and it is all so fresh in my memory. It is true, as so often has been said, that people remember where they were and what they were doing when they heard the terrible news. I was at Colegio San Ignacio de Loyola, when the announcement was made over the speakers in each classroom that the President had been killed and that all buses would depart shortly.

The immediate answer as to who killed the President was conclusive: Lee Harvey Oswald.

Since then, I have no idea how many Kennedy assassination articles and books I have read, or how many television documentaries and movies I have seen. Other than for that brief period immediately after the assassination, I have never, not once, been able to feel certain that there is not some larger, darker secret about the Kennedy assassination.

It was a dark day in America and in many places all over the world. We all lost our innocence in the sound of those terrible shots.

New Puerto Rico Association of Criminal Defense Lawyers Blog

2004-11-15T13:41:00.000-04:00

The Puerto Rico Association of Criminal Defense Lawyers (PRACDL) -an NACDL affiliate since 1991, has moved and improved its blog to Puerto Rico Association of Criminal Defense Lawyers so drop by an vist us and leave any suggestions you may have either in the Comments or send your comments via e-mail to PRACDL.

There's a Crook at the Federal Court's Security Checkpoint

2004-11-10T09:15:00.000-04:00

When the Checkpoint is no longer secure. The U.S. District Court and the federal building in San Juan have a security checkpoint at the entrance, manned by so called CSO's ("Court Security Officers"). Now, much to my regret, I have discovered there is a thief among the CSO's. The other day I entered to attend a Pretrial Conference and had to leave my cell phone at the entrance, since while the Court allows Assistant US Attorneys to take cell phones into the courthouse area, it does not allow any other attorneys to do so. It is a Motorola flip phone that comes with a leather belt case. I left it with the belt case. When I came out of the conference, I picked up my phone from the checkpoint and, as I was going to put it on my belt, I noticed that someone had removed the phone from the case because the antenna was now facing in the wrong direction (the case is designed for the antenna to face forward when placed on your belt, and it was now facing backwards). Obviously someone had taken my phone out of the case (which was wrong in and of itself), and I mentioned as much to two CSO's who gave responses that lead me to believe they may have known more than they were letting on. I then removed the phone from the case and opened it and turned it on just to make sure it was my phone, which it was, and then left for home.

As I was sitting at the dining table and had removed the case with the phone from my belt, I noticed that the case felt soft, not like the harder, sturdier leather case I had on my phone and, upon inspecting it closer, was 100% certain it was not the case for my phone. Someone had changed my leather case for a vinyl one that looks almost identical but is not 20% as good, on top of the fact that the vinyl one I had been left with was worn out.

Yesterday I informed the CSO's supervisor, and then went to make a formal complaint with the U.S. Marshal himself, and was told that he would investigate and get to the bottom of this. It is not so much the value of the case, as the thought that someone who was such a petty thief and so dishonest would even be allowed to work there that upset me. I clerked many years back for the then Chief Judge in this district and this sort of thing would never be allowed to happen without serious consequences. I hope if they do get to the bottom of this that the perosn responsible gets fired. That may sound harsh but the person deserves it, for violating the trust placed in him. There's plenty of decent and qualified persons without a job or with jobs that pay less, for a petty thief to continue on this one.

And I will never again leave my cell phone at the courthouse entrance. I will turn it off completely before entering, but will not leave it under the control of persons prone to thievery.

New Kids on the Blogs

2004-11-01T14:18:00.000-04:00

Today there are two new blogs I want to mention. One is Alaskablawg - Law and Life in the Last Frontier, penned by a criminal defense lawyer in, you got it, Alaska. Should be interesting to read what practicing criminal defense law is like there.

Another new blog of great interest, is White Collar Crime Prof Blog, at which -starting today- distinguished law Professors Ellen Podgor and Peter Henning "will make daily postings on issues related to White Collar Crime. The Blog will discuss current investigations and indictments, criminal and civil enforcement cases, and issues related to the scope of the criminal law." Both of the contributors at White Collar Crime Prof Blog are NACDL members. This should be a very useful blog.

Both of these blogs have feeds.

Macondo Law welcomes both of these new additions to the blogosphere.

George WMD Bush Endorses John Kerry

2004-10-28T16:35:00.000-04:00

From Lessig Blog the following:

George WMD Bush: “A political candidate who jumps to conclusions without knowing the facts is not a person you want as commander in chief” (you have got to be kidding)

George Bush has apparently endorsed John Kerry for President, advising America that we don't want as commander in chief "a political candidate who jumps to conclusions without knowing the facts." True enough, Mr. President. How much better off we would have been had you not jumped to conclusions (re WMD) without knowing the facts.

Much better, no doubt, is a commander in chief who bases conclusions upon the facts, or, even better, acts when he learns of the facts (as this Administration did not do when it learned, in January, of the mistreatment of prisoners in Iraq and Cuba).

We could not agree more with the Professor. George WMD Bush, remember that "The Truth shall set you free" to go back to Crawford, TX.

DOJ: We like snitches, just not when they snitch on us

2004-10-26T10:36:00.000-04:00

The Washington Post has a column by Stephen Barr titled Justice Department Opposition Holds Up Whistle-Blower Measures.

Endorsements - Do they matter? We'll get what we deserve, either because of ignorance or apathy

2004-10-24T16:59:00.000-04:00

I have no idea what weight any newspaper's endorsements for one candidate or another carry, but TalkLeft has this post on a few interesting Kerry endorsements.

First, The Des Moines Register, in a state that is a "must win" for Bush.

Yes, Kerry is liberal. But what's to fear from a liberal president? That he would run big deficits? That he would increase federal spending? That he would expand the power of the federal government over individuals' lives? Nothing Kerry could do could top what President Bush has already done in those realms.

Next, a Kerry endorsement from the Orlando Sentinel, which endorsed Bush in 2000. This is important because, as TalkLeft reports, "it is in the Tampa Bay/Orlando corridor which is critical to determining Florida's outcome."

This president has utterly failed to fulfill our expectations. We turn now to his Democratic challenger, Sen. John Kerry, with the belief that he is more likely to meet the hopes we once held for Mr. Bush.

Our choice was not dictated by partisanship. Already this election season, the Sentinel has endorsed Republican Mel Martinez for the U.S. Senate and four U.S. House Republicans. In 2002, we backed Republican Gov. Jeb Bush for re-election, repeating our endorsement of four years earlier. Indeed, it has been 40 years since the Sentinel endorsed a Democrat -- Lyndon Johnson -- for president.

As I wonder at the significance -if any- of these endorsements (you can find a running tally of endorsements here), I cannot help but refer you to an op-ed by Jeff Jacoby in today's Boston Globe on the The ignorant American voter. It discusses how little the average American actually knows of the issues, the candidates, and of their government in general, and cites to a number of studies done over the years that support this. So you have many going to vote who are actually voting without any real knowledge of what their vote means, and you have so many others that do not even bother to vote. If Americans only realized how much of their cherished freedom and democracy was riding on their ignorance and apathy, perhaps they would bother to learn and go vote.

So what sort of a mandate does the winner of a presidential election in which so many do not even bother to show up to vote have, when so many of even those that bother to show up don't really know what they're voting for? The answer is simple: he has the mandate that we in our ignorance and apathy have chosen to let him have. It's a sad thing to view American politics descend to stupid attack ads, distortions, and soundbites. But we cannot say we have not asked for it by our willful blindness.

Community Policing

2004-10-18T10:49:00.000-04:00

We always hear of the importance of sports activities for youngsters to keep them out of trouble. Now I'm not sure, but Guatemala may be trying the same thing with some of the adult population.

"I coulda been somebody, I coulda been a contender" - Well, you still can: Make sure everyone who can vote does vote

2004-10-17T14:42:00.000-04:00

Just ask yourself: Do I want George W. Bush to make the next three or four nominations to the Supreme Court, or do I want John F. Kerry making these nominations?

My answer is a very simple one: John F. Kerry.

Looking at it from a distance -a not very far one given the internet- I can only say that I am amazed George W. Bush even stands a chance to win reelection, let alone that he may be ahead in the polls.

There is no way that if all eligible voters went to vote he could win. We do not want to be looking at post-mortems indicating that Republicans were more effective at getting out the vote than Democrats.

Your citizen skills are needed now more than ever. Volunteer immediately to help get voters to the polls. If Kerry loses, at least you will not have to tell yourself you could have done more. It is not enough to just go vote. You must assure others go as well.

Moreover, you can help educate persons who otherwise are somewhat apathetic to the idea of voting on the importance of their vote. But don't leave it at that. On election day, be sure they go vote. Take them there if you must. Every single vote is important. And if you can offer your assistance to make sure nobody's right to vote is improperly denied, then you will have done some of the most important pro bono work of the year.

Get out the Vote! Defeat Bush!!!

2004-10-15T15:22:00.000-04:00

The extremely low percentage of voter turnout in U.S. elections is something that to those of us living in Puerto Rico (and to those living in Afghanistan) must be hard to understand. It is as if the U.S. had lost faith in the very democracy it wants to spread all over the world.

And I can simply not understand how any Republican could be elected president if there were a half decent (by world standards) voter turnout. If each American decided to take it upon himself to see that three other persons went to vote (not much of an effort) we would not be discussing whether Kerry might beat Bush, but only counting Mr. Bush's last days at the White House.

Please, make an effort. Help George W. Bush back to Crawford!!

Booker & Fanfan Oral Argument Transcript

2004-10-15T10:20:00.000-04:00

You may now access the Booker & Fanfan oral argument transcript before the Supreme Court.

Shepard v. United States, No. 03-9168

2004-10-15T10:09:00.000-04:00

For the sake of brevity, we refer you to our prior posts here and here regarding Shepard v. United States., No. 03-9168. For some time, observers -myself included- have thought this would be a good case for the Court to revisit Almendarez-Torres. The NACDL amicus brief in support of petitioner Shepard strongly addressed this, only dealing with the actual question presented in a secondary fashion. However, Petitioner Shepard's Merits Brief does not even cite Almendarez-Torres, and the Government's Merits Brief in Shepard v. United States, addresses the issue raised only by NACDL's amicus brief by arguing as follows:

D. The Continuing Validity Of Almendarez-Torres Is Not Before This Court

Amicus the National Association of Criminal Defense Lawyers contends (Br. 6-22) that Almendarez-Torres , supra , was wrongly decided. NACDL further contends that the decision has been undercut by Apprendi, supra, and its progeny, and that this Court should overrule the decision. For several reasons, this Court should decline that invitation. First, under this Court’s Rule 14.1(a), only a question that is “set out in the petition” or “fairly included therein” will be considered by the Court. The petition presents only questions concerning the kinds of materials a sentencing court may consult to determine whether a prior burglary conviction was for a generic burglary, see Pet. i-ii, and specifically indicated that “[n]o constitutional provision is involved” in this case. Pet. 1. Nor is the question “fairly included.” Amicus does not contend otherwise, indicating that the validity of Almendarez-Torres is an additional issue to be decided “as well as the Taylor issue on which certiorari was granted.” NACDL Br. 2. See generally Yee v. Escondido, 503 U.S. 519, 535 (1992) (Court “disregard[s] [this rule] ‘only in the most exceptional cases,’ where reasons of urgency or of economy suggest the need to address the unpresented question in the case under consideration”) (quoting Stone v. Powell, 428 U.S. 465, 481, n.15 (1976)). Second, petitioner presented no comparable claim in the courts below. See 02-1216 Pet. C.A. Br. 1-46; 99-2167 Pet. C.A. Br. 1-19. See generally Pennsylvania Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 212-213 (1998) (“Where issues are neither raised before nor considered by the Court of Appeals, this Court will not ordinarily consider them.”) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970)). Finally, this Court “do[es] not ordinarily address issues raised only by amici.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 97 n.4 (1991). There is no reason for the Court simultaneously to depart from all of those sound practices in this case.

In any event, the Court in Apprendi was correct in declining to disturb Almendarez-Torres. As the Court stressed in Almendarez-Torres, that case involves recidivism, which is “as typical a sentencing factor as one might imagine.” 523 U.S. at 230 (citing, among other statutes, 18 U.S.C. 924(e)). Principles of notice and fundamental fairness do not require that prior convictions be alleged in the indictment or found by a jury in order for the defendant to be sentenced to a longer term as a recidivist. A defendant cannot claim surprise concerning the fact of a prior conviction, because he previously underwent the criminal process that led to the judgment.

In addition, as the Court observed in Apprendi, “there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt”—which Almendarez-Torres permits—and allowing a judge rather than a jury to find in the first instance facts that “relate to the commission of the offense itself.” 530 U.S. at 496 (internal quotation marks omitted). Indeed, “unlike virtually any other consideration used to enlarge the possible penalty for an offense, * * * a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.” Jones, 526 U.S. at 249; accord Apprendi, 530 U.S. at 488 (noting “certainty” in Almendarez-Torres that “procedural safeguards attached to any ‘fact’ of prior conviction”). Extension of Apprendi to the fact of prior convictions also would disserve future defendants’ interests by bringing their prior criminal misconduct to the attention of jurors. “As this Court has long recognized, the introduction of evidence of a defendant’s prior crimes risks significant prejudice.” Almendarez-Torres, 523 U.S. at 235; Old Chief v. United States, 519 U.S. 172, 185 (1997) (“there can be no question that evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant”); Spencer v. Texas, 385 U.S. 554, 560 (1967) (evidence of prior crimes “is generally recognized to have potentiality for prejudice”); cf. also id. at 563-564 (Due Process Clause does not require bifurcated proceeding when jury resolves recidivist sentencing issues). Finally, this Court has repeatedly denied review in cases that (unlike this case) fairly presented the question whether Almendarez-Torres should be overruled in light of Apprendi, most recently just two weeks before the writ of certiorari was granted in this case. [n. 16]

Under the circumstances, it would be extraordinary for this Court to address a question of such potential significance—which could affect tens of thousands of sentences—in a case in which the question was not raised in the petition for a writ of certiorari (or even in petitioner’s merits brief), and when the question has not been the subject of full briefing by the parties.

[n. 16] See, e.g., Pineda-Cortes v. United States, 124 S. Ct. 2813 (2004) (No. 03-9287); Garza-Garza v. United States, 124 S. Ct. 2096 (2004) (No. 03-8730); Garcia-Saldivar v. United States, 124 S. Ct. 2067 (2004) (No. 03-8536); Meza-Gonzalez v. United States, 124 S. Ct. 2017 (2004) (No. 03-8468); Sanchez-Medina v. United States, 124 S. Ct. 1655 (2004) (No. 03-7510); Lapsley v. United States, 124 S. Ct. 1409 (2004) (No. 03-7331); Jones v. United States, 124 S. Ct. 1145 (2004) (No. 03-6784); Hitt v. Kansas, 537 U.S. 1104 (2003) (No. 01-10864); Bradshaw v. United States, 537 U.S. 1049 (2002) (No. 02-5015); Hagen v. United States, 537 U.S. 828 (2002) (No. 01-9064); Gray v. United States, 536 U.S. 963 (2002) (No. 01-8724); Luzardo v. United States, 536 U.S. 962 (2002) (No. 01-6491); Lozano-Ortiz v. United States, 535 U.S. 1113 (2002) (No. 01-8092); Ford v. United States, 535 U.S. 1098 (2002) (No. 01-7399); Bulgin v. United States, 535 U.S. 1095 (2002) (No. 01-742); Reyes v. United States, 535 U.S. 932 (2002) (No. 01-6151).

Respondent's Brief at 43-46. Petitioner Shepard's Brief did cite to Jones, Apprendi and Blakely, for the proposition that the First Circuit's interpretation of Taylor v. United States, 495 U.S. 575 (1990) allows the Court to go beyond the mere prior conviction and into the realm of adjudicating by a preponderance of the evidence whether said prior conviction's underlying facts (as culled from police reports rather than merely the judgment) constituted a predicate offense for purposes of the Armed Career Act. Judge Selya's concurrence in the panel's judgment was only because prior panel decisions forced him to concurr, but he indicated he viewed these as wrongly decided and in violation of the Supreme Court's rule in Taylor.

I believe that petitioner Shepard will win this case, unless the Court is ready to set aside Taylor. As to the Almendarez-Torres issue raised by amicus NACDL, I am still wondering whether the Court will actually touch upon it. Certiorari was granted in Shepard on June 21, 2004, only 3 days before Blakely was decided. Oral argument in Shepard is set for Monday, November 8, 2004.

Bush & the Courts: A Marriage of Convenience & a Quick Divorce

2004-10-13T23:22:00.000-04:00

President Bush does not seem to trust the Courts much, from what I gather from his campaign. Can somebody correct me if I'm wrong, but isn't this the guy who became President by judicial fiat? Am I missing something here? Then again, other than for that funny little case that made him President, even Dick Cheney has fared better than he has before the Courts, so it's perhaps understandable he has filed for divorce.

The Pope's Ferrari

2004-10-13T16:12:00.000-04:00

For years I've been waitng for the next year's Pope-mobile model, much as others wait for other car models, only to be frustrated in seeing the Pope stick to his same model. But now it all appears to have changed, drastically.

Ferrari president Luca Montezemolo said today the Italian Formula One team would build a special car for Pope John Paul II to mark his 26 years as pontiff.

"We will make a Ferrari Formula One car especially for the pope," Mr Montezemolo told reporters on a visit to the Vatican.

However, Mr Montezemolo drew the line at changing the colour of the car from its customary red to a different shade that the pontiff might prefer.
"The Pope would not be best pleased to see a Ferrari that wasn't a Ferrari," he remarked.

I can't wait to see him drive it, or even ride in it! And just think of the advertising campaign.

Some of my Favorite Music

2004-10-11T17:04:00.000-04:00

My musical interests can be very broad. Last night it was a lot of Bach Cello Suites by Yo-Yo Ma and Pablo Casals. Soul-searching music.

It can't all be law and politics and so, today, as the afternoon fades away, I've been listening to two of my favorite albums, and I thought I'd let you in on them so you can start getting ready for Christmas giving (and don't forget to give yourself one of each as well). No, really, these are two fantastic albums.

The first, probably my favorite album - Getz/Gilberto (Stan Getz, tenor sax, Joao Gilberto, guitar, vocals, Antonio Carlos Jobim, piano, and Astrud Gilbertoon some vocals). It is really soothing bossa nova music, probably one of the best albums ever. Just listen to some of the samples, Girl from Ipanema, Desafinado, Corcovado (Quiet Nights of Quiet Stars). You will not be sorry if you get this album. This incredible album has been around for some time, having been recorded about 1964. Good music lasts forever! But beware of another album also named Getz/Gilberto, because it is a lousy album. As the story goes, Stan Getz and Joao Gilberto had agreed to make two albums. The first was the linked to fantastic one. The other is a lousy album, to fulfill a contract obligation, but when Getz and Gilberto had already had their differences after Stan stole Joao's wife, Astrud. Not a nice thing to do to a friend.

Then there is Sax for Lovers [Sony] - another really great album I got in one of those chance buys and it turned out to be terrific. This is one of those albums in which they have included an all-star lineup of sax players: Ben Webster, Gerry Mulligan, Stan Getz, Dexter Gordon, Stanley Turrentine, Paul Desmond, Arthur Blythe, Tom Scott, Kirk Whalum, and Grover Washington, Jr. The music is fantastic. There is not a bad or mediocre song or musician on this album. If you like tenor sax, this you will love. Warning: If you sit by yourself to listen to this album you will have a hard time not drifting into a dream-like state. One of my favorite all time albums. Makes a great present for any friend you want to give great music to, especially yourself.

FBI's I-Drives

2004-10-11T09:41:00.000-04:00

This has been going around for some months now, but for those of you who are not aware of this, you should read NACDL's article by Jack King, The FBI's I-Drives -- The Real "X-Files" which every criminal defense lawyer practicing in federal courts should be well aware of. Anyone who has obtained a Court order specifically addressed to the FBI's I-Drives is urged to post a comment.

More on Shepard v. United States, No. 03-9168

2004-10-10T21:53:00.000-04:00

Shepard v. United States, No. 03-9168, is a case which we previously discussed here as one in which the Court could well revisit and overrule Almendarez-Torres.

The NACDL filed an amicus brief in which it argues precisely that, arguing the Court's application of Taylor as error only as a secondary matter (albeit an important one).

The petitioner's merits brief, however, does not even cite Almendarez-Torres., although it cites to Apprendi and Blakely, and it should be noted that cert. was granted just a few days before Blakely was decided. I have not seen the Solicitor General's merits brief and cannot find it at the Office of the Solicitor General's site, so I do not know whether they have or will address the Almendarez-Torres issue raised by NACDL.

Yes, I wanted to be a Mountie . . . and a Gaucho, a Mexican "Charro" and even one of Fidel Castro's militias!!

2004-10-07T10:38:00.000-04:00

Tom and the Mounties

In case you are wondering, I'm the guy on the far right who is getting shot and firing back one last shot as I go down. Yes, I know the hat was a bit large for my head, but I grew into it. The others are my cousins, including the one pulling up her pants in the midst of a shootout! Girls!!

I found this picture not too long ago as I was scavenging in my old boyhood bedroom. My grandparents would travel a lot, and wherever they went, they would bring us different outfits. Thus, at different times I was a "Gaucho" with my "boleadoras" and all. (Those things could kill someone. See here and here.) At other times I was a Mexican Charro all dressed up ready to serenade some "señorita" or get into a fight, probably preferring the latter. And once we even ended up wearing Fidel Castro's militias' olive greens with the 26th of July revolution badge and all. That was a result of a trip to Cuba just as Fidel Castro had taken over and Fulgencio Batista had fled. Castro was still seen by many as the Messiah who had liberated Cuba.

Then came the days when the TV set was King and I would watch Lassie, Rin Tin Tin, Highway Patrol, Perry Mason, Sea Hunt, Bat Masterson, Texas Rangers, Bonanza, Wyatt Earp, Cisco Kid, and sooo many more. And all of these programs were translated into Spanish, including the theme songs. So I know the songs for many of these in Spanish and sing them to my wife whenever I want to get her really annoyed, particularly because I'm a lousy singer, although that has never been an impediment.

US v. Detwiler, CR 03-372-PA (D.Ore. October 5, 2004)

2004-10-06T11:39:00.000-04:00

In United States v. Richard Detwiler, No. CR 03-372-PA (D.Ore. October 5, 2004), Senior U.S. District Judge Owen M. Panner holds:

1. The federal Sentencing Guidelines system, in its present form, is unconstitutional because it violates the separation of powers doctrine.

2. The defects are not severable.

3. The federal Sentencing Guidelines will be treated as true guidelines, and not mandates, when imposing sentence in this and all future cases, pending further directions from a higher court or the Congress.

As you can tell, this was not an issue of applying Blakely to the federal sentencing guidelines. It is a district court reconsideration -sort of- of Mistretta, given the impact that -surprise, surprise- the Feeney Amendment has had on the U.S. Sentencing Commission and how that amendment has wreaked havoc on what the Supreme Court envisioned the Sentencing Commission as in Mistretta. Only the discussion on separation of powers is not as between the legislative and judiciary, which Mistretta dealt with, but between the judiciary and the executive branches.

Prior to the Booker & Fanfan oral arguments I started doing some reading on the Supreme Court cases from Mistretta onwards. When I re-read Mistretta, in light of what we now know of the manner in which the U.S. Sentencing Commission has operated, only Justice Scalia's dissent made any sense.

The U.S. Sentencing Commission should be doing double time right now by making the guidelines Sixth Amendment friendly, as well as preparing proposals for Congress. Or does the Sentencing Commission think it should leave that job to the Department of Justice?!

Cheney's "Facts"

2004-10-06T11:25:00.000-04:00

I have belatedly discovered FactCheck.Org thanks to Vice-President Cheney's reference to factcheck.com - which leads you to George Soros.com which we are most certain is not the website Cheney wanted to plug during his debate with Sen. John Edwards last night.

In any event, after visiting FactCheck.Org we found that it is a great site for seeking out the truth., and -as to last night's Vice-Presidential debate, you can check out the real facts there. There were factual mistakes and distortions on both sides, but I think the intended site clearly paints Mr. Cheney as the one who was outright and knowingly lying the most, rather than simply making mistakes as to facts. Don't believe me. Go see for yourselves.

All I saw from last night's debate was more fear-mongering from the Bush-Cheney camp.

Remember the words of FDR: "We have nothing to fear but fear itself."

First Circuit Grants Petition for Rehearing en banc in U.S. v. Councilman

2004-10-05T23:53:00.000-04:00

We previously reported here on the First Circuit's 2-1 opinion in United States v. Councilman, slip op. No. 03-1383 (1st Cir. June 29, 2004) on internet privacy - an opinion that was strongly and widely criticized. Judge Torruella wrote the majority opinion, joined by Senior Judge Cyr, with Judge Lipez dissenting.

The United States moved for rehearing and rehearing en banc, and we also reported here on the filing of an amici brief in support of the United States' petition for rehearing and for rehearing en banc in the First Circuit.

It now appears that the First Circuit -as seen here- has granted the petition for rehearing en banc.In so doing, the Court has indicated, in part, as follows:

Although the parties can address other issues in their supplemental submissions, and the en banc court is free to consider all of the issues presented, the court specifically requests that the parties address the following questions:

1. Whether the conduct at issue in this case could have been additionally, or alternatively, prosecuted under the Stored Communications Act?

2. Whether the rule of lenity precludes prosecution in this case?

Oral argument is scheduled for 3:00 p.m. on December 8, 2004 in the en banc courtroom in the John Joseph Moakley United States Courthouse.

The court welcomes timely motions to file amicus briefs concerning any of the issues in this appeal.

This is very good news for anyone concerned with privacy issues. Hat tip to Orin Kerr at The Volohk Conspiracy.

Are Booker & Fanfan just the start of S.Ct. v. Congress on Federal Sentencing? -or- The Future of Mandatory Minimums

2004-10-04T10:20:00.000-04:00

It is unfortunate that we will not be able to listen to the argument, and I only hope that a transcript does not take long to be posted somewhere. Jason Hernandez over at Blakely Blog will be attending, as will Professor Douglas Berman from Sentencing Law & Policy. I envy them both for being able to be present during these arguments! Jason expects to have something up at Blakely Blog by about 4 p.m.

We predict that the Court's Blakely majority will hold together and apply Blakely to the federal sentencing guidelines. We have no idea what the Court will do as to the issue of severability. But it appears to us that whatever the Court does on severability, the next move will be in Congress. We think that this post at Sentencing Law & Policy which quotes a set of "DC Observations" from Baylor Law Professor Mark Osler is a worthy but depressing read as to the Congressional mindset. But perhaps the last word will not be more mandatory minimums as many think is the likely Congressional reaction, or -even if it is more mandatory minimums, that these will not survive Court scrutiny. Professor Berman has a very encouraging post in which he indicates that

Though everyone seems to assume mandatory minimum sentencing is immune from the Apprendi/Blakely rule due to the High Court's decision in Harris, Justice Breyer expressed great reservations about his vote in that case. If Congress passes an array of mandatories after Booker and Fanfan, serious reconsideration of Harris might come sooner rather than later.

He goes on to mention the Angelos case now pending before District Judge Paul Cassell in Utah., of Croxford fame. Check out the two complete posts at SL&P.

Wishing T. Christopher Kelly and Rosemary Scapicchio the Best!

2004-10-02T21:52:00.000-04:00

It appears from the Supreme Court's Hearing List for the Session Beginning October 4, 2004 that Acting Solicitor General Paul D. Clement will argue both Booker and Fanfan; T. Christopher Kelly, of Madison, Wis., will argue for respondent Booker in No. 04104; and Rosemary Scapicchio, Boston, Mass., will argue for respondent Fanfan in No. 04105. There will be 2 hours of argument.

Professor Berman indicates at Sentencing Law & Policy that he finds it "a bit of news [that Acting Solicitor General Clement will be arguing both cases] because Deputy Solicitor General Michael Dreeben is reputed to be the 'point person' on these cases, and he argued on behalf of the United States as amici in Blakely." I think they are probably trying to avoid having the same attorney now standing before the Court telling them that the differences between the Washington State sentencing guidelines and the federal sentencing guidelines are all of a sudden of Constitutional significance. It should be interesting to see how much time the Court actually devotes to questions addressing the applicability of Blakely to the federal sentencing guidelines as compared to the more complex issue of severability.

I believe the respondents briefs are excellent, as are those of many of the amici filing in their support. Never having done it, I can only assume that arguing any case, let alone one of the importance of these consolidated ones, before the Supreme Court would give an attorney some butterflies, so we wish T. Chris Kelly and Rosemary Scapicchio the best of luck.

It is unfortunate that we will not be able to listen to the argument, and I only hope that a transcript does not take long to be posted somewhere.

Booker & Fanfan Oral Arguments Will Not to Be Broadcast, and how to obtain transcripts before the 10-15 days usual period

2004-10-02T09:54:00.000-04:00

We have been informed that there will be no exception as to no live broadcast of the Booker & Fanfan oral arguments on Monday, October 4th, in the afternoon. Through BOPWatch I have learned that " When the transcripts become available however, they are posted to the Supreme Court's website (www.supremecourtus.gov) (about 10-15 days after argument) and (with the audio) on Oyez. Transcripts of Supreme Court arguments are available in the Supreme Court Library, about 10 days after the argument. But I have also learned through BOPWatch that the only official (contract) Courtroom reporter, Alderson Reporting Company, provides these transcripts to persons wishing to obtain them sooner than they are posted, for a fee. If you are interested, you should contact Alderson at (202) 289-2260, or www.aldersonreporting.com.

UPDATE: For complete details as to how and where transcripts of oral arguments can be obtained (both paying and free) click here.