Prosecutors have taken the rare step of asking a federal judge to shut out the public during the testimony of two FBI undercover employees at an upcoming Miami trial of a Kenyan man accused of funneling money to al-Qaida splinter groups.The public, including the media, would be allowed to watch their testimony on closed circuit TV in a separate room in the downtown courthouse — but their images would be obscured in some manner during the terrorism trial.Prosecutors also want to allow the witnesses to be lightly disguised, such as wearing a closely cropped beard and black-rimmed glasses. One CIA officer did that during the 2007 Miami trial of al-Qaida recruit Jose Padilla. And they want the witnesses to use undercover pseudonyms to protect their true identities.The goal, sought by the FBI, is to safeguard the bureau’s counterterrorism operatives and investigations.“The defense shall be prohibited from asking any questions seeking personal identifying information from or about the [undercover employees],” the U.S. attorney’s office requested in a motion filed in February.The defense attorney for Mohamed Hussein Said, arrested in his native country after being targeted by an Internet sting operation based in Miami, views the government's demands as a violation of her client’s constitutional right to a fair trial — akin to a star chamber.Miami attorney Silvia Piñera-Vazquez countered in a court response that the “government’s actions in this case are eerily similar” to the prosecution described in Franz Kafka’s The Trial.In the classic 1937 novel, the attorney noted last week, “a bank teller was arrested and prosecuted by a remote, unidentified authority, of an unidentified crime, by unidentified witnesses, and eventually executed.”Piñera-Vazquez argues that expelling the public from the courtroom during the testimony of the “secret” witnesses and prohibiting any questions about their true identity “insulates” them from “any meaningful cross-examination, thus creating a unilateral, secret prosecution.”Last year, at a federal terrorism trial in Tampa, a judge fashioned a compromise after the Tampa Tribune objected to the prosecution’s efforts to bar the public during the testimony of an undercover employee. The arrangement allowed for an open courtroom, but with the employee testifying behind a screen so that no one in the gallery could see the witness.
Monday, March 02, 2015
Thursday, February 26, 2015
Mary Barzee Flores: Nominee for the United States District Court for the Southern District of Florida
Mary Barzee Flores has been a shareholder at Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. since 2011, where her practice consists of complex commercial and employment litigation. From 2003 to 2011, she served as a circuit judge on the Eleventh Judicial Circuit of Florida in Miami, where she presided over both criminal and civil matters. Prior to joining the bench, she worked in the Federal Public Defender’s Office of the Southern District of Florida from 1990 to 2003, serving first as an Assistant Federal Public Defender and then as a Supervisory Assistant Federal Public Defender. She began her career as an associate at Sonnett, Sale and Kuehne, P.A. She received her J.D. cum laude from the University of Miami Law School in 1988 and her B. Mus. from the University of Miami School of Music in 1985.
A narrowly divided Supreme Court on Wednesday sided with a Florida fisherman, throwing out his conviction for tossing evidence — undersize grouper — back into the Gulf of Mexico under a federal law aimed mostly at white-collar crime.
The fisherman, John L. Yates, was convicted of violating the Sarbanes-Oxley Act of 2002, which imposes a maximum sentence of 20 years for the destruction of “any record, document or tangible object” in order to obstruct an investigation.In two opinions, five justices accepted Mr. Yates’s argument that fish were not the sort of tangible objects with which the law was concerned. Their analysis was based on a close reading of the words and structure of the law.The case arose from a 2007 search of the Miss Katie, Mr. Yates’s fishing vessel. A Florida field officer, John Jones, boarded it at sea and noticed fish that seemed less than 20 inches long, which was under the minimum legal size of red grouper at the time.Mr. Jones, an officer with the Florida Fish and Wildlife Conservation Commission and a federal deputy, measured the fish and placed the 72 he deemed too small in a crate. He issued a citation and instructed Mr. Yates to take the crate to port for seizure.But Mr. Yates had the fish thrown overboard and replaced with larger ones. A second inspection in port aroused suspicions, and a crew member eventually told law enforcement officials what had happened.Mr. Yates was prosecuted under the financial fraud law, which was enacted after the collapse of Enron, the giant energy company. He was convicted and sentenced to 30 days’ imprisonment.Justice Ruth Bader Ginsburg, writing for four justices, seemed to concede that the term “tangible objects” might in some settings encompass fish.“Ordinarily,” she wrote, “a word’s usage accords with its dictionary definition. In law as in life, however, the same words, placed in different contexts, sometimes mean different things.”In announcing her opinion from the bench, Justice Ginsburg used more colorful language. “Fish one may fry,” she said, “but may one falsify, or make a false entry in the sea dwelling creatures?” Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer and Sonia Sotomayor joined her opinion.
The opinion is U.S. v. Yates. Even though Kagan dissented, I like this passage:
Still and all, I tend to think, for the reasons the plurality gives, that §1519 is a bad law--too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I'd go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.
Wednesday, February 25, 2015
Monday, February 23, 2015
U.S. v. Alexander Roy (is it structural error when defense counsel is not present for a period of a trial -- panel said yes)
U.S. v. Quartavious Davis (is a warrant required for cell site location data -- panel said yes)
Berry v. Leslie (did the SWAT team violate the 4th amendment for storming a barbershop for licensing violations -- panel said yes)
Should be interesting to see how the "new" 11th Circuit will address these three important cases.
Full Disclosure -- I am arguing for Mr. Davis in the second case.