My Baby Steve Zack, He Wrote Me A Letter!

Not one to simply let Chief Judge Moreno hog all the spotlight, ABA Prez Steve Zack (captured mid-phone above) has jumped in with his own letter about all those darn federal judicial vacancies, and why can't the Senate just get along pre-recess and confirm a few of these folks so that whole system of laws thing doesn't break down, don'tcha know:

Thirty-eight of the present vacancies have existed for so long and created such untenable workloads for the remaining judges on the courts that the seats have been declared judicial emergencies by the Administrative Office of the U.S. Courts. As lawyers who practice in federal courts across this nation, ABA members know firsthand that long-standing vacancies on courts with staggering caseloads impede access to the courts and create strains that will of the courts to vindicate constitutional rights or render fair and timely decisions. In Arizona, for example, the Speedy Trial Act has been temporarily waived, and criminal defendants wait up to 6 months for a trial, while businesses and individuals wait up to 2 years before their cases are heard.

So far so good (I mean bad).

But then Steve continues:

We realize that the aging of our federal judiciary has contributed to the growing vacancy crisis.

 Hey now!

Being the silver-tongued devil that he is, Steve politely refers to the nationwide decaying judge issue as "attrition":

According to Department of Justice estimates, 60 new vacancies will be created through attrition each year for the next decade. Obviously, progress toward reducing vacancies requires a confirmation rate that outpaces the attrition rate; at present, it is barely keeping abreast of it.

So I believe what Steve is saying is we either need to develop new methods of preserving and extending the lives of our aging federal judges -- perhaps through alien intervention, cloning, cryonics, or sophisticated and groundbreaking time-travel technologies that are currently beyond our scientific capabilities -- or we just need to confirm some of these nominees.

Hard to tell which is a more realistic and practical course of action given what's happening in DC at the moment.

Law Updates for July 22, 2011

Rodriguez, 36 FLW 1517, 4th DCA, Impeachment, prior inconsistent statement - Trial court erred in refusing  to allow testimony that the victim told detective he did not know who shot him, after the victim testified on cross-exam that defendant shot him, and he did not remember telling the detective he did not know who shot him.  When a witness at trial does not remember earlier inconsistent statement, the witness does not "distinctly admit making" the statement under 90.614(2) and therefore extrinsic evidence of it is admissible - harmless error here where victim was heavily sedated at the time of the previous statement and defendant told officer he killed the victim.  The gun used in shooting linked to defendant and all eyewitnesses gave descriptions of the shooter that matched the defendant.

B.C., 36 FLW 1532, 1st DCA, Trespass no school grounds - Deputy who said he was a school board police officer and did not have authority to exclude children inasmuch as deputy was not under the command of the school principal. There being no connection between the deputy and principal's office, the essential element of 810.097(2), the conviction constituted fundamental error - conflict certified.  There was a similar case last week.



The Law Offices of Roger P. Foley,P.A.

Is it Possible to Write a Boring Letter About Hard Core Porn?

I never thought so, but attorney Keith Lipscomb pushes the envelope in this impassioned yet detailed and somewhat technical defense of his client, a South Florida porn producer, and its efforts to go after people who may have illegally downloaded their provocative content:

Attorney Keith Lipscomb, with the Miami law firm of Lipscomb Eisenberg, PL, insists that his client Patrick Collins, Inc., says they have a strong legal case against Claudette and the 999 others named in their suit.

"Unless my client enforces its copyrights, the public will come to learn that it can infringe my client’s copyrights with impunity. When that happens, my client fears that it’s business will suffer more or even fail since its primary product is a movie capable of being converted into a digital media file and downloaded illegally through the internet. The way I see it, PCI’s decision to enforce its copyrights is really no different, except that PCI’s store is online, than Home Depot’s decision to prosecute every person who shoplifts from it," said the lawyer whose client is better known as Elegant Angel Productions, which produces hard-core porn videos.

"First, by establishing that the subscriber’s IP address was used to commit the infringement, we have pled a prima facie case for copyright infringement," he wrote me. "If Claudette wants to claim her Wi-Fi was unprotected and someone else used her IP address to download the movie, she will have to prove it. In response to our prima facie case, a Doe can defend on the basis that its Wi-Fi was hacked pleading it in an answer and affirmative defenses," he said.

"Should that defense ever be raised in a litigation then, among other things, my clients would investigate by verifying how far the subscriber’s Wi-Fi signal carries. Most modems don’t project signals far enough to establish a good connection into a neighboring house. If it did carry a signal to another house then we would, subpoena and depose the Doe’s neighbors to ascertain whether: (a) they have a computer, (b) they have internet service, and (c) they have ever used a neighbor’s open access Wi-Fi connection. If the neighbors have a computer and internet then there is no reason to hack."

"Here is the bottom line, however, merely because a Doe could possibly prove that its Wi-Fi was hacked and that it was not the infringer does not make my client’s copyright enforcement campaign overbroad, unlawful or unethical. To underscore the point, let me pose the question back to you: What would you do if your revenue model was pay per download and your articles were being illegally downloaded on the scale that my client’s digital movies are being illegally downloaded? I think you would do the same thing. I know I would and I am personally very proud to be defending my client’s copyrights to the best of my ability."

Ok ok you've made your point, but deposing Claudette's neighbors and seeing whether they tapped into her Wi-Fi to download hard-core porn videos?

Well it is Connecticut, and I'm pretty sure The Ice Storm is 100% accurate and exactly how all wealthy suburban families behave.

Key party, anyone?

Judge Hurley Strikes World's Worst Errata Sheet (About Anthrax).

We previously discussed the ridiculous "errata" sheet filed by the Justice Department in the wrongful death suit arising from the feds' decade-long anthrax investigation.

Well, Judge Hurley this week noticed that there was nothing "errata" about the proposed changes to the sworn testimony, and that something called "good cause" would be needed to amend or revise asserted "facts" of this magnitude:

While deposition transcripts are occasionally accompanied by “errata” sheets intended for the correction of stenographic errors in interpretation, there is no authority under the Federal Rules of Civil Procedure or local rules of this court allowing for unsolicited submission of “errata” sheets purporting to correct editorial errors in legal briefing. The court is thus not inclined to accept the defendant’s invitation to red-line its earlier submitted papers in the manner suggested. See generally Norelus v Denny’s, Inc., 628 F.3d 1270 (11th Cir. 2010).

If there are substantive errors of material fact in the earlier filed papers that the government wishes to withdraw or correct at this juncture, the appropriate mechanism for bringing this to the attention of the court is by motion seeking permission to file an amended motion or supporting statement, supported by good cause shown. While this order is without prejudice for the defendant to file such a motion, counsel is advised that merely finding a different, better or more detailed way to express a thought does not constitute “good cause” shown for the submission of amended pleadings or motions before this court.

 I'll leave it up to the reader to decide whether the Gov's subsequent filing meets Judge Hurley's standard.

(Wait a second -- I just found a better way to express that thought, time for another "errata" post!)

Come Back to the Five and Dime Bunker, 3d DCA 3d DCA

Gosh it's slow around here and I'm sitting on so many juicy tips but sometimes you have to suck it up and pay people the respect they deserve.

(BTW, I love this clip but let's be serious -- Greg Hawkes should be rocking the Keytar.)

3d DCA Watch -- Literally, I've Got Nothing.

PER CURIAM.

Affirmed.  See cite from a few years ago that I won't provide any context about, won't care to explain its relevance (if any) to the legal dispute at hand, and won't even bother to do a parenthetical over because its meaning and plain applicability should be exceedingly obvious to any moron with a law degree.

Hey, the Robed Ones are artists too!

Foreign Corrupt Practices Act | Guest Author Todd Foster

Foreign Corrupt Practices Act (FCPA)

Washington, DC - For 10 weeks, from May 13 through July 7, 2011, I was in trial in U.S. District Court in Washington, DC, defending my client against an Indictment charging criminal violations of the FCPA. For those of you unfamiliar with the Foreign Corrupt Practices Act (FCPA), if may be time to get acquainted.

The FCPA, found at Title 15 U.S. Code Section 78dd, prohibits “bribes” to any individual working in the executive, legislative, or judicial branch of a foreign government in order to obtain or retain business. For years, business was done in certain foreign countries under a “pay to play” scenario- someone needed to get paid in order to get the deal done. Most often, when these arrangements were detected, the Department of Justice imposed civil fines and penalties and permitted the American company and its employees to keep doing business. That trend seems to have ended.

The DOJ and FBI have recently ramped up criminal enforcement of this law. Entire FBI squads as well as teams of DOJ lawyers are now assigned, full time, to identifying criminal violations and prosecuting alleged violators, individuals and companies. In addition to our very recent case in DC, on May 10, 2011, the government obtained convictions of Lindsey Manufacturing and two of its executives on charges of Conspiracy to violate the FCPA, arising out of an scheme to bribe Mexicans officials. Another criminal FCPA trial against employees of a California company, alleging bribes to a Chinese officials, will begin soon in Los Angeles. Do not think that these cases are limited to Fortune 500 companies and their employees- my client owned a mid-sized police equipment supply company in St. Petersburg . I must admit that I did not realize the full scope of the government’s efforts in this area until becoming involved in this case.

What happened in my case? After 9 weeks of trial and 6 days of deliberations, a mistrial was declared when the jury was unable to reach a verdict. They were hung 9-2 with one undecided for acquittal on the conspiracy, but closer on the substantive counts. We had raised many defenses available under the FCPA, including lack of business nexus between the payment and the contract, and absence of mens rea - the statute requires the government to prove both willfulness and corrupt intent. We also attacked, successfully, I believe, the method and integrity of the FBI’s investigation.

The bottom line here is that all clients and companies doing business with foreign governments must be made aware of this law. Although “bribes” are illegal, there are permissible ways to compensate foreign agents and foreign officials under limited circumstances. It is important to recognize the difference. Look for a lot more of these cases in the future.

Special Thanks to Guest Author Todd Foster.

TampaLawFirm.com

The Wall Street Journal | Top Attorneys In Florida

Thank You. I Just received this award and as an Attorney / Lawyer and advocate in the criminal justice system, I am flattered to be honored in such a prestigious publication as The Wall Street Journal. Thank You to my peers and fellow attorneys that have recognized my Professional achievements in the nearly 20 years I have practiced trial law.

Casey Ebsary

W.F. "Casey" Ebsary, Jr.
Attorney / Lawyer

Board Certified Criminal Trial Lawyer

Tampa, Florida

July 26, 2011

813-222-2220

Toll Free 1-877-793-9290

Senator Leahy Speaks Out on Behalf of Stalled SD FL Judicial Nominations

As David noted the other day, Chief Judge Moreno has started writing letters in hopes of getting Kathy Williams and Bob Scola confirmed as judges sometime this century.

And Glenn Sugameli, a DC wonk who has done great work on this issue, passed along this floor statement by Senator Leahy in which the Senator quotes Judge Moreno's letter and highlights the larger context in which very qualified nominees are being held up for no good reason:

Recently, Chief Judge Moreno of the Southern District of Florida wrote to the Senate leaders urging that they expedite action on two nominations to fill judicial emergency vacancies in that district. Both Kathleen Williams and Robert Scola are among the many judicial nominees who were reported unanimously by the Judiciary Committee, yet both are being delayed for no good reason.

Chief Judge Moreno writes:

 [T]he judicial shortage with three vacancies in our district is becoming acute. For this reason, I ask your assistance in expediting both confirmations. The Judiciary Committee has found the nominees qualified and the people of South Florida eagerly await their service. 

Both of these nominees have the support of their home State Senators— Senator NELSON, a Democrat, and Senator RUBIO, a Republican. The two Senators have set aside partisan actions, and the Senate Judiciary Committee has set aside partisan actions by voting for the nominees unanimously. Why should they be held up because of partisan actions on this floor?

 Good question -- anyone have an answer?

Video | Arrest Warrant Tampa Police | Record Roundup

Tampa Arrest Warrant,
Hillsborough County 

Defense Attorney notes a record-breaking roundup of persons with outstanding arrest warrants.

Code Name is Operation Summer Heat .

Warrant for Arrest? 

Call Me at 813-222-2220

"At dawn Tuesday, Tampa police launched what they say is the biggest warrant roundup in the department's history. With nearly 6,000 outstanding warrants on their list, their first action was to go after 459 violent felons, including eight wanted for murder."

Source: http://www.tampabay.com/news/publicsafety/crime/tampa-police-seek-hundreds-in-their-biggest-warrant-roundup/1182468

Arrest Warrant Update 10:05 am

View Larger Map of Arrest Warrant Attorney Lawyer

Update from Tampa Police 11:57 pm EST

Operation Summer Heat

72 Warrants Cleared

33 of the warrants were cleared by arrest and 5 of those arrests were by the US Marshals Service in Georgia, Ohio, Virginia, Texas and Jacksonville.

The arrests include: Attempted Murder (2) Robbery cases, (3) Felony Battery cases, Armed Robbery VOP, False Imprisonment, Deriving Proceeds from Prostitution, Compelling Individual to Become a Prostitute, Trafficking Oxycodone and multiple Felony Drug Charges.

19 suspects were deceased

20 suspects were located in prison and will be charged with TPD warrant when released.

Tampa Arrest Warrant Attorney

Magistrate Judge Torres Explains the Legal Caste System!

This is a great R&R from Judge Torres awarding fees pursuant to 28 U.S.C. § 1920 to H&K in defending an "objectively unreasonable" copyright suit.

There are so many interesting things in this order I don't know where to begin.

Let's start with the fact that it took 19(!) H&K lawyers in four cities (Miami, Atlanta, DC, and Boston) to handle an objectively unreasonable lawsuit.

Then there's the whole billing rate problem:

To be fair, the record shows that various Florida lawyers were indeed involved and billed extensively on the file, including highly experienced and respected lawyers like Sandy Bohrer and Chris Bellows, who are seeking even higher rates. But that then leads to the question whether their billable rates are necessary to attract competent counsel in this community to represent Coca-Cola. Clearly they are not.

Judge Torres continues by way of analogy:

In other words, one can drive from point A to point B in a Ferrari, a BMW, or a Ford Fusion. Which car one chooses is ordinarily a matter of personal style coupled with financial freedom. The successful personal injury or criminal defense lawyer may choose the Ferrari. The average corporate defense lawyer will wisely choose the BMW. But a successful attorney fee applicant can only choose the Ford Fusion. It is quite reliable, consistent, and effective for the task at hand, and will not break the bank. And because of that only the cost of a Ford Fusion is compensable under an attorneys’ fee statute based on the American Rule that governs federal litigation.

A few questions:

1)  Why is the successful PI and criminal defense lawyer lumped together, both driving a Ferrari?

2)  What is "wise" about the average corporate defense lawyer's choice of a BMW, and don't some (many) also drive fancy sports cars or even Ferraris?

3)  This is not good publicity for Ford Fusions.

The Judge is not done:

That is why premium-rate lawyers who work at large high-powered law firms like H&K exist. They are lawyers who graduated from the best law schools like Georgetown, at the top of their classes at schools like Columbia or the University of Miami, who clerked for distinguished federal judges, who work night and day, 365 days a year, in the interest of that corporate client that demands perfection 100 percent of the time. These lawyers are (in very rare cases) the Ferraris and (in most cases) the BMWs of their profession who would never market themselves as merely “competent” or “average” or “reasonably priced.” These lawyers market premium legal service, which carries with it premium hourly rates.

Hmm, that's an awful lot of assumptions in one paragraph.

Georgetown, heh?

Hey, I know a Magistrate Judge who graduated from there!

BTW, I'm sure Coke's shareholders are happy they hired a firm who put 19 lawyers from around the country (plus another firm out of LA) on a case that had absolutely no merit whatsoever.

Oh well, $425 an hour's not bad for the ham-and-schleppers stuck driving around the South Florida legal community in their crappy Ford Fusions.

Beats the Ford Pinto, I guess.

Should You Include Reasons in Your Motion to Dismiss?

Judge Altonaga tackles a hot-button issue that is all the rage among us civil litigators -- when you prepare a motion to dismiss, should you include reasons why the action should be dismissed as to your client?

My own feeling is as follows:

I'm an artist.  You wouldn't ask John Coltrane to explain one of his mind-blowing sax solos, nor would you ask Chagall to explain one of his paintings or James Joyce to explain Finnegans Wake.

Likewise, my 12(b)(6) motion stands on its own, inviting -- nay, challenging -- the reader to find his or her own meaning in my random collection of important-sounding legal words, and arrive at the correct conclusion in spite of (and most definitely not because of) my brillant if maddeningly obscure wordcraft.

Isn't that the very definition of transcendent art?

Alas, Judge A has a different view:

As a general observation, the Court notes that, in their Individual Motion, Barillas and Chaveco address the 12 counts of the Complaint in a cursory fashion. They argue, without citation to any authority or analysis, that the Complaint fails to allege with specificity what it is they did to be liable in all 12 counts. In their Reply [ECF No. 36], Defendants attempt to make concrete arguments relating to some of the counts, for instance by pointing out that the Complaint does not allege what actions they took to make them personally liable under the FDUTPA or for unfair competition. Nonetheless, they cite to no law and do not provide any legal argument addressing the sufficiency of the non-Lanham Act claims. As the court noted in Rux v. Republic of Sudan, “a moving paper makes a specific request for relief of some sort . . . [a] memorandum of law in support, on the other hand, supplies the reasons why the moving party is entitled to that relief.” No. Civ.A. 2:04CV428, 2005 WL 2086202, at * 14 (E.D. Va. Aug. 26, 2005) (emphasis in original). In the absence of any meaningful legal analysis regarding the sufficiency of the remaining claims stated against these Defendants, the Individual Motion fails to persuade.

 Ok, perhaps she has a point, but how bourgeois is that?

Judge Moreno Denies William Levy Motion to Dismiss!

William Levy, the Latin hearthrob recently in the news for allegedly canoodling with Jennifer Lopez, just got another piece of good news -- Judge Moreno has denied a motion to dismiss in a defamation action Levy filed against an CA attorney arising from an alleged underage sex scandal.

Celebrities -- they really are just like us.

New GT Offices Just Like Home!

The Miami Herald takes a look at GT's new office space, which is designed to be comfortable and just like home, if your home is a huge office building downtown:

“What this space does is embody the old adage of home away from home. Think about it. At home today, no one goes to a ‘home office’ to sit and work on a computer. They have wireless. They sit in the most comfortable space they can find."

Hmm, I like this concept, but fellas please -- no emailing from the bathroom, ok?

“Again, the desired effect is similar to home, in that you want to feel like you’re mobile.”

Indeed, everything at Greenberg is mobile. Even the walls slide on tracks.

Exactly!

My home is so mobile, not only my walls slide on tracks, my whole home slides on tracks.

(In fact, I actually live in a dilapidated trailer park right next to the railroad tracks, so what I'm understanding is GT's new space is pretty much a giant, moveable, wall-sliding mobile home/portable wifi station attached to its own Starbucks/sports bar.)

That does sound warm and comfy!

Guess Who's Representing That Guy Suing Zo?

I'll give you a few hints -- he's got his very own breakfast club; he's written books as well as responses to reviews of his books; and he knows how to wield a sushi knife!

Anyone know who I'm talking about?

Your Daily Anthrax Errata Sheet!

Is anyone besides Glenn Greenwald following the civil suit before Judge Hurley regarding the FBI's allegedly bungled anthrax investigation?

The Justice Department recently filed an "errata" to end all erratas, one that adds so many qualifications and modifications you finish wondering genuinely what the meaning of is is.

The deposition of whoever swore to the errata will be very interesting.

3d DCA Watch -- We Recede, We Recede.

Yes kids, it's that time of the week when the waters recede but the Resplendent Robes fly, when the coffee is swilled but the concrete abides, when the petitioners cry but the (old) thigh master lies, yes it's a good old-fashioned 3d DCA Watch:

State Farm v. Seville Place:

Rehearing en banc!

The Court recedes, in recession, then recedes some more:

To the extent that we previously have granted such a petition when irreparable harm seems possible rather than imminent, we recede from such decisions. . . .Similarly, we recede from the broad holding that “certiorari is available to challenge a premature bad faith claim or premature bad faith discovery.”

 The Court winds up "denying" the petition, rather than dismissing it, which of course brings us Judge Shepherd concurring at his wonky best:

I write to clarify my view that the more appropriate disposition of this case is a dismissal of the petition. The point is more than just academic.

Oh boy.

As previously discussed, that law in this State, as it relates to the petition before us, requires that we dismiss the petition.  The distinction made is not one without a difference.

Didn't he just say that?

Law Updates for July 15, 2011

D.P. 36 FLW 1445, 3rd DCA, A uniformed officer was called to a parking lot where juveniles were loitering following a party, was told by a young woman who appeared nervous and fearful that a juvenile had a gun pointed it at her.  Officer had reasonable suspicion justifying a  pat down search.  Officer approached juvenile to verify the information and the juvenile began backing away from the officer.  Women, never identified by the police before she left the party before the pat down was complete, was a citizen informer rather than a anonymous tipster.  Information provided by her was entitled to a greater indicia of reliability than an anonymous tipster-trial court properly denied motion to suppress.

B.M., 36 FLW 1460, 3rd DCA, Battery LEO-Impeachment - Trial court erred in precluding juvenile from adducing evidence that the officer, whom he allegedly resisted, used excessive force and evidence about an internal affairs complaint juvenile brought against the officer.


The Law Offices of Roger P. Foley,P.A.

Ed Marod Offers Legal Advice to Casey Anthony!

Should Casey Anthony buy a house in Florida?

Here is WPB attorney Ed Marod's free, unsolicited advice:

"Consider the amount of scrutiny she's getting, buying a house in Orlando is not the greatest idea for her to begin with," said Marod. "There are ways to get at, even a homestead. It's just that in the Supreme Court of Florida they're saying a homestead is a homestead. It may be a good idea for her to do that."

Ok, what exactly does this mean?

 

Is Ed saying she should buy a house here, or not, or just that she MAY buy a house but that the asset MAY or MAY NOT be protected?

I think what the bowtied one is saying is "sometimes a homestead really is just a homestead."

Why Would Anyone Want an Expedited Trial?

If you're a civil litigator like me, you enjoy discovery disputes, extended motion practice over the location and timing of depositions, lame and meaningless efforts at striking claims and defenses, multiple attacks on the form and content of the pleadings, lengthy expert depositions filled with high drama, sj motions at nearly every stage of the case, motions directed at jurisdiction and venue, and reams of motions in limine assuming you ever get that far.

Oh yeah I forgot the rare and elusive trial, desperately coveted by litigators but usually the result of lawyers failing to get their case into a posture where both sides can find an acceptable if imperfect resolution.

Still, there are always efforts to streamline this glorious process, the latest coming from the Northern District of California which has introduced an expedited trial program:

The nuts and bolts of the program include the following:

   •   The program is consensual and binding;

   •   A case may be tried to a judge or jury;

   •   To participate, the parties execute an “Agreement for Expedited Trial and Request for Approval”;

   •   Expedited time schedules and rules of procedure begin when the court approves the Agreement;

   •   The goal is to try the case in six months;

   •   Discovery is limited to ten interrogatories, requests for production and request for admission each and 15 hours of deposition time to be used at the party’s discretion;

   •   Experts are limited to one per side absent agreement of the parties or leave of the court;

   •   Pretrial motions require leave of court and may not exceed three pages;

   •   Neither the terms of the Agreement nor its existence may be revealed to the jury;

   •   Juries will consist of six jurors which may be reduced to five should a juror become unable to serve;

   •   The judge conducts jury voir dire and sets time limits for openings and closings;

   •   Each side is allowed three hours per side for presentation of its case, including cross-examination;

   •   Post-trial motions are limited to recovery of costs and attorney’s fees;

   •   Grounds for new-trial motions and appeals are limited.

This actually seems like a decent option for certain yacht-damage cases.

Does anyone think we should try something like this in our own district?

Citrus Canker -- The Case That Will Never End.

Anyone remember citrus canker?

I can barely remember neighborhood citrus trees, but then I got a voucher at Wal-Mart and wound up purchasing old Adam Sandler movies instead of replanting all my lost tangelo trees.

Now that's what I call high quality H2O!

Anyways, after nearly a decade of wasting taxpayer money on Don Quixote-like legal hail marys, pointless trials and fruitless appeals, the Florida AG's office has found one last place to hide:

The Florida Department of Agriculture, facing current and potential jury awards of tens of millions of dollars, says state law allows it to avoid paying judgments over actions taken to protect public health, safety and welfare, unless the Legislature appropriates the money. And the agency has no plans to make that request.

Hmm, government takings of private property without compensation, taxpayer money wasted on outside legal fees, and jury verdicts undone by legal subterfuge -- where's Rick Scott when you need him?

(On second thought, strike that.)

Foreclosure Case Dismissed When Bank’s Lawyer Misses Court.

Sometimes lawyers defending homeowners win cases at trial as a result of evidence obtained in depositions. Banks also lose cases when they are unable to come forward with admissible evidence to prove each element of their case. There is a third way that banks lose cases that very few lawyers on either side ever discuss, and that is lawyer incompetence. That’s right, banks and loan servicers lose foreclosure cases every week because their cases are assigned to massive foreclosure mills where very inexperienced lawyers are assigned hundreds of cases.

On July 14, 2011, our firm obtained a dismissal of a foreclosure action because Chase Home Finance’s lawyer failed to show up for Court. The foreclosure action was filed against our client in 2009. In June of 2011 the presiding judge entered an order requiring the lawyers for the Plaintiff ( Chase Home Finance), the homeowner, and the co-Defendant, City of Palm Bay, to appear at a status conference at 1:30 p.m. on July 14, 2011. At the status conference, firm attorney Richard Shuster was present for our client, the homeowner. An attorney for the City of Palm Bay, per the Court order, was also present, but the attorney for Chase Home Finance was nowhere to be found. After Judge Jeffrey Mahl asked if there were any attorneys from the firm representing Chase, foreclosure defense attorney Richard Shuster moved for the case to be dismissed for Chase’s violation of the Court’s order. Judge Mahl then granted the motion and dismissed the case without prejudice.

Our firm will now file a motion for attorney’s fees on behalf of the homeowner. Chase as the losing party will have to pay the homeowner's attorney’s fees. Our firm’s goal will be to recover money from Chase to reimburse the money previously paid to our firm by the homeowner. Since the dismissal was without prejudice it is possible that Chase will file a new lawsuit against our client. Of course for that to happen the Chase’s law firm will have to tell Chase that the case was dismissed because they forgot to show up in Court. Perhaps this case will slip through the cracks. Our firm defended this case for approximately thirteen months. If the case is re-filed the bank will have to start over from scratch.

Many homeowners think banks are all powerful. While banks have big friends in Congress and the Federal Reserve a chain is only as strong as its weakest link. The bank's weak link is often the lawyer or law firm hired by the bank to prosecute a foreclosure case. Sadly most homeowners never hire a lawyer and give up their home without a fight. Other posts on the blog discuss firm victories at trial and summary judgment. In those cases there was an adjudication on the merits and the bank cannot refile. Those cases were won with hard work, meticulous discovery, and persuasive argument. This case was won because we showed up and the bank did not. This has happened in many cases before. This is just another secret that banks and their lawyers don’t want anyone to know about.

To review a redacted copy of order dismissing the case please clink the link below:

Redacted Foreclosure Dismissal

Tampa Criminal Defense Attorney | 1-877-793-9290

Tampa Criminal Defense Attorney, W.F. ''Casey'' Ebsary, Jr. ,  knows that hundreds of people are arrested, questioned, and indicted in both Florida State and Federal Courts every day. That's where a Florida Bar Board Certified Criminal Defense Expert, comes in. An experienced former prosecutor of both Felony and Misdemeanor charges explains where to go for help in this 30 second video. 

Stop Worrying. Get Some help Today. Call Toll Free 1-877-793-9290.

Tampa Criminal Defense Attorney | Tampa Criminal Defense Lawyer | Florida

Accidental Smuggler | Junk in the Trunk

Nerd Smugglers Key Codes

Federal Criminal Defense Source has supplied us with an Affidavit from Federal Law Enforcement that outlines how drug smugglers would obtain electronic key codes using the Vehicle Identification Numbers. They would then use the keys to open the trunk to stuff drugs in the trunk outside of the United States, and retrieve them from the vehicle after it had returned to the United States.

Drugs in the Trunk? How Did That Get in There?

"The FBI has uncovered an elaborate drug smuggling scheme along the U.S., Mexican border. It involves G.P.S. devices, duplicate keys, duffel bags stuffed with drugs and regular commuters used as mules" according to a television news report, see video below.

View Larger Map

A Doctor and several other unsuspecting people were arrested at the border after cops found some vehicles to have the drugs in the trunk. All the drivers claimed to not know there was 200 pounds of weed in the trunk. Charges are pending against the smugglers. Excerpts from the Affidavit are below. Smugglers call these unsuspecting folks “blind mules.”

Accidental Smuggler | FBI Arrests Marijuana Blind Mules

The affidavit details the use of blind mules to run drugs from Juarez to El Paso. It's public record in a case out of El Paso, Texas and was filed July 1, 2011.

Electronic Key Codes and Smuggling Excerpts From FBI DEA Agent Affidavit:

Based on the information provided by [Confidential Source] CS-1, the locksmith [they] were using was specifically identified. Throughout the remainder of this Affidavit, this locksmith is referred to as LOCKSMITH A.

13. On 06/17/2011, we interviewed an El Paso, Texas-based licensed locksmith, {not LOCKSMITH A). This licensed locksmith informed us that there were several "key code source" companies that have the capability to provide vehicle key cut codes to licensed locksmiths based on the provision of the VIN by the licensed locksmith, This licensed locksmith further informed us that, as a result of differing standards and policies amongst vehicle manufacturers, "key code source" companies have varied abilities to provide key cut codes depending on the vehicle make and model. For example, this locksmith stated that most "key code source" companies had very limited access to key cut codes for most XXXX key cut codes, but had widely available access to XXXX key cut codes.

14. Texas Department of Public Safety records indicate that LOCKSMITH A is a licensed Texas locksmith with a license expiring on 12/31/2011. Based on the information described in this paragraph and in paragraph 13 above, I believe that LOCKSMITH A has access to one or more "key code source" companies and therefore has the ability to obtain vehicle key cut codes for vehicles, especially Ford vehicles, solely by providing a VIN to one or more of these "key code source" companies.

I have reviewed the information from this database with respect to a single user account (hereafter referred to as USER ACCOUNT A) from a XXXX Dealership located in Dallas, Texas. This information indicates that the following vehicle key codes were pulled by USER ACCOUNT A:

27. Per XXXX Motor Company, USER ACCOUNT A has pulled/accessed 5,321 vehicle key codes in the last 18 months, approximately 10 key codes per day. Also based on my review of this information, USER ACCOUNT A has pulled vehicle key codes for XXXX vehicles which are registered all over the United States, not just in Dallas, Texas. Based on the high volume of key codes pulled, as well as the geographic dispersion of the registered locations of the associated vehicles, I believe that USER ACCOUNT A is being utilized to provide vehicle key codes to one or more "key code source" companies as described in paragraph 13 above,

28. In order to corroborate CS-l's information with respect to LOCKSMITH A, and to confirm the link between LOCKSMITH A and USER ACCOUNT A, we tasked an Individual to go to LOCKSMITH A and request that LOCKSMITH A make a copy of a XXXX vehicle key, solely based on the provision of the VIN for that . . . .  vehicle.

LOCKSMITH A employee informed the Individual that the key would only work to get in to the car, but would not start it.

30. On 06/27/2011, we received confirmation from [the manufacturer's] Global Investigations Department that on 06/24/2011, at approximately 12:22 PM (10:22 PM Mountain Time), USER ACCOUNT A pulled/accessed the TEST VIN for the 2006 [vehicle]. The TEST VIN was therefore pulled/accessed by USER ACCOUNT A during the relevant timeframe that the Individual provided the TEST VIN to the employee at LOCKSMITH A.

[B]y utilizing keys made by LOCKSMITH A and by victimizing individuals whom they have caused to unwittingly smuggle drugs, have violated Title 21, United States Code, Sections 841 and 846, Possession with Intent to Distribute a controlled substance, namely 100 kilograms or more of marijuana and Conspiracy to possess with the intent to Distribute controlled substance, namely 100 kilograms or more of marijuana.

Did Someone Hide Drugs in Your Car? Call me Toll Free 1-877-793-9290 .

Immigration and Criminal Defense Consequences

Immigration and Criminal Defense

Here is an outline titled "Crimigration: The Marriage of Immigration and Criminal Law." Friend of the site and author, Terry Christian is a former Immigration Judge and is also Board Certified in Criminal Trial Law. Complete text for Immigation Consequences of Criminal Convictions and Conduct is here. 

Questions about the Immigration Consequences of Criminal Conduct? Call Me Toll Free 1-877-793-9290.

The topics include:

Definition of a Criminal Conviction

Criminal Conduct Incurring Immigration Consequences

A. Crimes Involving Moral Turpitude
B. Crimes of Violence
C. Drugs and Trafficking Crimes
D. Aggravated Felonies
E. Other Crimes and Criminal Conduct Proscribed in the INA

Consequences of Criminal Convictions and Criminal Behavior

A. Inadmissibility
B. Deportability

Motion to Vacate See Padilla v. Kentucky, Case No. 08-651, S.Ct., Argued October 13, 2009-Decided March 31, 2010.)

Order of Vacatur

Complete Document is a Free Download Here.

Special Thanks to guest contributor Terry Christian.

Criminal Defense | Phone Hacking

Defense Attorney, Lawyer Casey Ebsary was also cited by this publication that was discussing the implications of Phone Hacking and privacy.

Phone Hacking Charges? I Can Help 1-877-793-9290 .

http://www.wtsp.com/news/topstories/article/201732/250/How-safe-is-your-voice-mail

Casey Anthony Release Video | iPhone | iFrame

Orange County FL Jail Map

iFrame Video of Casey Anthony Release Will Be Available Soon.



Orange County Jail Map of 3722 Vision Blvd, Orlando, FL 32839

iFrame Video Jail Release



Flash Video

Jeremy Alters Is An Obama "Bundler"?

Among the usual list of big money Obama bundlers like lawyers Chris Korge and Kirk Wagar is none other than Jeremy Alters, who despite firm squabbles still managed to raise somewhere between 50 and 100k for the President's re-election.

Small change compared to the big boys, but it'll still get you a seat at a State Dinner honoring Chancellor Merkel.

Let's Hear It for Chief Judge Wells!

Oh boy were there good times in the bunker yesterday as Judge Linda Ann Wells became the first female Chief Judge of the 3d DCA.

Much like we'll be looking back at the gay marriage wars twenty years from now, the investiture included remembering a time when there were very few woman lawyers (it wasn't that long ago) and a partial reading from Bradwell v. Illinois, the lamentable 1873 Supreme Court decision upholding the right of Illinois to exclude women from the Bar because admitting them to practice would surely destroy their "femininity."

Doesn't it feel good to be on the right side of history?

Judge Emas also led a raucous "Happy Birthday, Mr. President" to Judge Schwartz, who officially turned 39 the other day.

Congrats all around!

Jeff Epstein Wants to Muzzle Jack Scarola.

The twisted tale of billionaire Jeff Epstein rolls on, with inevitable collateral litigation arising from the original claims of underage sexual abuse.

In the latest iteration, Epsteins's complaint against former RRA attorney Brad Edwards was dismissed with leave to amend, and a motion to muzzle Edwards' counsel Jack Scarola was denied as well:

Edwards filed a counterclaim, alleging Epstein filed the lawsuit to get Edwards to back down from representing the victims.

“Mr. Epstein had to pay more to settle these cases than he would have if Mr. Edwards wasn’t out there putting all this pressure on him,” said attorney Jack Scarola, who represents Edwards. “That’s Mr. Edwards’ job ... to put as much legitimate pressure on the defendant as he possibly could and he obviously did an extremely effective job.”

Epstein pleaded guilty to two felony charges: soliciting prostitution and soliciting a minor for prostitution. He served 13 months in the county jail and has to register as a lifelong sex offender.

Representing Epstein, attorney Joseph Ackerman argued unsuccessfully for a gag order. Ackerman said Scarola has repeatedly made statements to several news organizations about the case.

“Mr. Scarola has constantly referred to Mr. Epstein as a pedophile and there’s been no proof of that anywhere,” Ackerman said. “Muzzling lawyers who may wish to make public statements has been long recognized as within the court’s inherent power ... We don’t believe it’s appropriate to wage a media campaign and taint the jury pool.”

Scarola said it would be unconstitutional to impose a gag order.

“There is a complete and total absence of proof that we have engaged in any conduct whatsoever that could be prohibited,” Scarola said.

Scarola said he and Edwards have been asked to appear on national television as well as received interview requests from the foreign press. Scarola said he has been selective in his interviews.

 Exactly -- AVN will just have to wait.

Journalist Conchita Sarnoff provides an interesting first-person report on the hearing and notes that she may or may not have been required to appear for a deposition at Fowler's offices on Brickell back in May.

So far this litigation is moving pretty smoothly I would say.

Law Updates for July 8, 2011

Moreno-Gonzalez, 36 FLW 360, Fla, Failure of officer to sign an affidavit in support of search warrant did not render the warrant invalid.  All the surrounding circumstances clearly and without dispute demonstrate that the entire written affidavit in support of search warrant was initialed and sworn to under oath before the judge who issued the warrant.  There was no evidence of unlawful or malicious conduct or intent on behalf of the police.

D.J., 36 FLW 363, Fla., Trespass on school property - Evidence was not sufficient to prove that a juvenile was warned by a person of authority where the security guard who warned the juvenile to leave school grounds stated her only job was to monitor students behavior.  No evidence this person was vested with this power by the principal to restrict access to school property.

Vardman, 36 FLW 1405, 4th DCA, Judicial vindictiveness - After plea offer rejected by the defendant, defendant was  sentenced to 30 years.  Case discusses the totality of circumstances and the four factors laid out in Wilson, 845 So. 2d 142(Fla. 2003).

Wilbur, 36 FLW 1430, 5th DCA , Similar fact - Trial court erred by permitting state to introduce evidence concerning two earlier sales to the same confidential informant, evidence which was not relevant to case charged and was admitted only to show def's propensity to sell cocaine.  Error was not harmless.


The Law Offices of Roger P. Foley,P.A.

Florida Supreme Court Reverses 3d DCA on Abestos Suit.

The 3d has had an unlucky string recently when it comes to certified conflicts with other districts, and today brings us yet another reversal in a situation where the 3d ruled in a manner eliminating the vested rights of victims exposed to asbestos.

Today the Florida Supreme Court sided with the 4th DCA in an action arising from the retroactive application of the Asbestos and Silica Compensation Fairness Act:

Based on the foregoing, we affirm the holding of the Fourth District in Williams v. American Optical Corp., 985 So. 2d 23 (Fla. 4th DCA 2008), that retroactive application of the Act to the Appellees, and other claimants who had accrued causes of action for asbestos-related disease pending on the effective date of the Act, is impermissible because it violates the due process clause of the Florida Constitution. We disapprove the decision of the Third District in DaimlerChrysler Corporation v. Hurst, 949 So. 2d 279 (Fla. 3d DCA 2007), to the extent it is inconsistent with this opinion.

Hey, if the Marlins can turn it around so can the bunker!

Lawyers, Help Your Judges Out!

Listen, you're in federal court.

You are all big corporations (McArthur Dairy, Dean Foods) so you have good lawyers to represent you.

You have filed a summary judgment motion, which is a carefully-defined pleading with technical and substantive requirements and important consequences if granted.

Yet you have left Judge Cooke with the following:

Rather than articulating independent legal arguments for summary judgment, McArthur and Dean Foods elected to “incorporate by reference the arguments sets [sic] forth in the memorandum in support of their motion to dismiss (ECF No. 18) and their reply in support of their motion to dismiss (ECF No. 22).” (Mem. in Support of Mot. for Summ. J. 6 n.4 (ECF No. 31)). Ordinarily, an order granting or denying a motion for summary judgment identifies the relevant factual findings related to the issues ripe for summary disposition. Unfortunately, in this case, McCowtree has failed or otherwise refused to respond to merits of the motion, with factual contentions or otherwise, and McArthur and Dean Foods have not concisely set forth all facts which are material to the resolution of the claims. The record pleadings, specifically the Complaint, Counterclaims, and answers and affirmative defenses thereto, provide even less clarity as they raise numerous issues of material fact.

Come on folks, don't you want the Judge to rule in your favor?

Defense Attorney Lawyer 33778

Criminal Defense Attorney needed in Pinellas County, Florida 33778? Casey Ebsary is a Board Certified Criminal Trial Lawyer who can help with cases in Pinellas County 33778. Casey is experienced in handling Criminal cases near the Pinellas County, Florida courthouses. Casey has a Pinellas Criminal defense resource here.

Pinellas Criminal Defense Needed Call 813-222-2220

Pinellas County Courthouse Criminal Defense Attorney 33778 

Pinellas Criminal Defense Attorney 33778

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Pinellas Criminal Defense Lawyer Clearwater St Petersburg 33778

Defense Attorney Lawyer 33701

Pinellas Criminal Defense Attorney needed in Pinellas County, Florida 33701? Casey Ebsary is a Board Certified Criminal Trial Lawyer who can help with cases in Pinellas County 33701. Casey is experienced in handling Pinellas Criminal cases near the Pinellas County, Florida courthouses. Casey has a Pinellas Criminal Defense resource here.

Pinellas Criminal Defense Attorney Call 813-222-2220

Pinellas County Courthouse Criminal Defense Attorney 33701 

Pinellas Criminal Defense Attorney 33701

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Pinellas Pinellas Criminal Defense Lawyer Clearwater St Petersburg 33701

3d DCA Watch -- Your Summer PCAs Have Arrived!

Hey it's the summer and no one wants to work, especially the coffee-swillers, who per their summer ritual convert the central courtroom into an old movie palace where they play Where the Boys Are on endless loop until everyone accepts that George Hamilton should really be the bunker's next Chief Justice.

(We know who the hold out this year was, but we're not going to say!)

Oh yeah, after four or so apodictic days of continuous Connie Francis exposure, the bunker releases a few glorified PCAs and then they are on to their next summer flick, the delightful yet underappreciated Love at First Bite.

(Not often considered a summer movie, but you have to give the bunker a little leeway, it is the summer after all.....)

Are You Ready for the Casey Anthony Civil Suits?

I'm not, but they're coming anyway.

One interesting suit has been brought by a non-profit missing persons organization, Texas Equusearch, which works with law enforcement to help track down missing persons.

The suit seeks recovery of all the costs and expenses expended to help find Caylee back in 2008.

In related news, Casey plans to change her name and get plastic surgery.

Could Hollywood be far behind?

Pre Foreclosure Mediation Settlement Saves Client over $100,000.00

A Shuster & Saben client’s investment of $1,600.00 in legal fees, will result in over $100,000.00 of savings from a pre-foreclosure mediation agreement negotiated by firm attorney Richard Shuster. The client came to the firm’s Melbourne, Florida office after their prior loan servicer, Chase, denied permanent loan modification of their mortgage. Chase had placed the client in a trial modification that reduced their monthly payment from over $3,000.00 to approximately $1,648.00. After the client made their monthly trial payments Chase refused to convert the loan from a HAMP trial modification to a permanent modification.

After meeting with the couple, attorney Shuster recommended submission of a qualified written request to the loan servicer to investigate whether Chase had a valid reason for denying permanent loan modification. The firm then submitted a Qualified Written Request (QWR) to Chase for a flat, one-time fee of $250.00. Chase’s response to Qualified Written Request revealed that the loan was owned by the Federal National Mortgage Association (FNMA or Fannie Mae) and that Chase alleged that the permanent modification was denied because their file was incomplete. The clients asserted that they submitted all of the requested documents. Some consumer advocates refer to incomplete file denials as the “dog ate my homework” excuse for not making permanent modifications.

After Chase denied permanent modification the client creased making further mortgage payments. The client, a couple nearing retirement age, realized that they could not wipe out their retirement savings to save a home in which they were significantly upside down and had no equity whatsoever.

A few months later, the loan owner, FNMA, transferred servicing of the loan from Chase to Lender Business Process Services (LBPS). When the client advised Shuster & Saben of the change of servicers the firm submitted an updated HAMP application and updated financial disclosures to LBPS. Thereafter LBPS requested pre-foreclosure mediation.

Firm attorney Richard Shuster welcomed the chance to mediate the case before any foreclosure action was filed against the client. Shuster explained that LBPS was proactive and responsible by saving FNMA (the loan owner) the expense of paying a filing fees and attorneys’ fees to file a foreclosure action against the homeowner. Lenders often ask for as much as $4,000.00 to be added to homeowners’ loan balances to pay for such expenses. Since our firm did not have to defend a lawsuit, the homeowners’ legal expenses were also much smaller.

The client hired Shuster & Saben to represent them at mediation under a written agreement that called for a fee of $350.00 together with a success bonus form $500.00 to $1,500.00 depending on the nature of the loan modification obtained. ($500.00 for a small loan modification up to a $1,500 for a loan modification with both interest and principal reduction). The result obtained, a loan modification that will reduce the client’s interest rate to 2% for the next 5 years and to 5% thereafter, qualified the firm for a $1,000 success bonus. The total cost to the client was $1,600 ($250 for QRW, $350 Mediation, $1,000 success bonus). The client’s new mortgage payment of $1,561.78 is a huge savings from their original payment of over $3,000.00 and is less than their prior trial modification payments. At the mediation, attorney Shuster insisted that conversion of the new trial modification to permanent modification be guaranteed in writing and would happen automatically so long as all payments were made. Under the loan modification obtained by Shuster & Saben, the client will save over $85,000.00 during the next five years and over $100,000 over the life of the loan. Shuster’s biggest bonus was two hugs, from the couple whose home was saved by this settlement agreement.

To review the redacted mediation agreement and redacted confirmation letter from LBPS please click the links below.

Mediation Agreement

LBPS Confirmation of HAMP Modification