Florida Criminal Appeals Attorney Law

Appellate Law, Criminal Defense and Appeals and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit

Tag: Southern District of Florida

United States Supreme Court Hears Oral Argument in Kaley v. United States, 12-464: Government’s Use of Pre-Trial Asset Seizure and the Right to Counsel of Choice

Federal criminal trial and criminal appeals attorneys who follow this blog might remember that the US Supreme Court accepted cert in the case of Kaley v. United States, No. 12-464, a federal criminal case which arose from our very own Southern District of Florida.  (You can read my previous post here.)

Well, on October 16, 2013, the Court heard oral argument in the case, and if the Court’s questions posed during oral argument are any indicator, the case may be too close to call.  You can read the transcripts of the argument by clicking here.  If you prefer the audio recording, click here.

I don’t know about you, but I find this case extremely compelling because it so heavily impacts a defendant’s right to counsel of choice.  That the Government is permitted, by statute, to freeze the assets of a criminal defendant pre-trial, based only on a grand jury indictment, and that the defendant is not permitted to challenge to the evidentiary basis for Government’s asset freeze, is just astounding.  We’ll just have to wait and see what the Court decides, but when the opinion is issued, I know I’ll be looking for the magic word “reversed.”

Supreme Court Smackdown and Eleventh Circuit Fun

Since I’ve not had the chance to read through many Supreme Court and Eleventh Circuit opinions lately, I thought I’d try to catch up.  A word of caution: if you are a South Florida criminal defense or criminal appeals lawyer needing some good news, you won’t find it here.

The Eleventh Circuit has been busy handing down opinions at a pretty good clip.  In Booker v. Secretary, Florida Dept. of Corrections, No. 10-14966, the Court affirmed the denial of a 2254 petition for habeas relief.  In so doing, the Court held that the state trial court’s refusal to instruct the jury on Booker’s eligibility for parole was neither contrary to, nor an unreasonable application of, Simmons v. South Carolina, 512 U.S. 154 (1994).  In Trepal v. Secretary, Florida Department of Corrections, No. 10-15306, the Court affirmed another denial of a 2254 petition for habeas.  Although the opinion is quite long-72 pages-it’s a good one to read if you have some spare time.  In addition to the discussion of the standards of Giglio v. United States, 405 U.S. 150 (1972) and Brady v. Maryland, 373 U.S. 83 (1963), the opinion might also make you think twice about what can happen if you’re not nice to your neighbors.  In a case that originates from the Southern District of Florida, United States v. Welch, No. 10-14649, the Court examined the voluntariness of a consent to a search, the “fruit of the poisonous tree” doctrine, and whether a Florida conviction for robbery is a “violent felony” for purposes of the Armed Career Criminal Act.  (Hint: the consent was voluntarily given, there was no fruit of the poisonous tree, and the Florida conviction for robbery qualifies as a “violent felony.”)  My favorite part of the opinion?  Footnote 20.

Finally, in Parker v. Matthews, No. 11-845, the United States Supreme Court issued an opinion that reads like a smackdown of the 6th Circuit.  A mere 13 pages long, the pointed tone with which the opinion is written leaves no doubt about how wrong the Sixth Circuit’s decision was.

Eleventh Circuit to Rehear Michael Duane Zack, III v. Tucker, No. 09-12717, En Banc to Decide Issue of Timeliness of Federal Habeas Claims

In a rare move, the United States Court of Appeal for the Eleventh Circuit has voted to rehear a case en banc.  The case, Michael Duane Zack III v. Tucker, No. 09-12717, concerns the issue of timeliness of federal habeas claims.  In the original opinion, released in January, 2012, the Court held that the District Court erred in applying the statute of limitations separately to each claim in the petition to find that only certain claims were timely filed.  I suspect that most criminal defense and criminal appellate lawyers would agree that it seems logical that the timeliness of a federal habeas petition should be viewed as to the whole petition, not claim-by-claim.  I certainly hope that the Court does not change its conclusion on rehearing. The order granting rehearing en banc can be viewed here.  For those of you who practice in the Southern District of Florida, take note that our own Judge Jordan’s name appears on the order granting rehearing.

Practical Tips for Federal Court-Part II

Just a few more tips for those of you who might find yourselves in Federal court, especially in the Southern District of Florida . . .

1.  You probably know that everything in Federal court gets filed electronically on CM/ECF.  To avoid getting too many nasty-grams from the Clerk’s office for improper filing, it’s probably a good idea to visit the Clerk’s website and download a copy of the Administrative Procedures governing CM/ECF.

2.  If you’re a civil attorney whose case gets assigned to a Judge that runs a “rocket docket,” you should consider consenting to the jurisdiction of a United States Magistrate Judge.  Most often, you’ll have the ability to special set your hearings and trials, and you might get a bit more time to work the case up effectively.  To consent to the jurisdiction of one of the Magistrate Judges (notice that I am NOT referring to them as “magistrates”–that term is for state court only), you can obtain the proper consent form from the Local Rules.  Both sides need to agree, as do the clients.

3.  If you’re a criminal defense attorney who handles a lot of sentencing hearings, you might want to reconsider sending in all those letters extolling the virtues of your client.  Several Judges who were at the Federal Bench Bar conference in West Palm Beach on April 27, 2012, actually said that they are not really persuaded by the letters.  Rather, the Judges would find it more helpful for criminal defense attorneys to focus the court’s attention on the sentencing factors listed in 18 U.S.C. section 3553(a).  As required by United States v. Booker, 543 U.S. 220 (2005), the Judges said they really try to focus on determining a sentence that is “sufficient and not greater than necessary.”  However, if you do find it necessary to submit letters, some of the Judges said that any person submitting a letter should not also be called as a witness.  As for the length of the hearings, the Judges also said that most sentencing hearings should be completed in about 30 minutes.  Finally, several of the Judges said that since Booker, they might be more apt to go along with a sentencing variance, as opposed to an outright departure, since departures are more vulnerable to reversal on appeal.

4.  Finally, whenever you are in the Federal courthouse, as in any courthouse, be nice to everyone.  Negative comments about lawyers spread quickly.  Deputy Marshals will gossip just as much as the CRDs, Clerks’ staff, and chambers staff.  Be nice to everyone there, and they will be nice to you (well, for the most part . . .)

Congratulations to Judge Robin S. Rosenbaum, United States Magistrate Judge for the Southern District of Florida

The word is that congratulations are in order for Judge Robin S. Rosenbaum, a United States Magistrate Judge for the Southern District of Florida.  According to a report I received from the Palm Beach Chapter of the Florida Association of Women Lawyers, and as reported by the Boston Globe website, President Barack Obama has nominated Judge Rosenbaum to replace U.S. District Court Judge Alan S. Gold, who is taking senior status.  If Judge Rosenbaum is approved by the Senate, she will be one of the only, if not the only, Magistrate Judges in the Southern District to have ever been elevated to the position of District Court Judge.  Congratulations Judge Rosenbaum!


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