Fresh Starts

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

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

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

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?

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?

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:

1. The First Circuit has yet to decide the case after rehearing en banc (oral argument was held, I believe, on December 8, 2004); and
2. 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?

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?

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)

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.