Supplemental Brief filed by Amici in US v. Councilman

On December 8, 2004 the en banc Court will hear oral argument in US v. Councilman. 373 F.3d 197, 201 (1st Cir. 2004), withdrawn, 385 F.3d 793 (1st Cir. 2004), a case we have commented on here, here and here.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

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!

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

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

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

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

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

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.