November 14, 2019 / by 


Reggie Walton Unleashes the Rocket’s Red Glare

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Well well well. who couldda knowd?? Acute prosecutorial foul play has ended the big Roger Clemens perjury trial at it’s gestation. From ESPN:

The judge presiding over Roger Clemens’ perjury trial declared a mistrial over inadmissible evidence shown to jurors.

U.S. District Judge Reggie Walton said Clemens could not be assured a fair trial after prosecutors showed jurors evidence against his orders in the second day of testimony.

He will hear a motion on whether a new trial would be considered double jeopardy.

Whooo boy, Judge Walton must have been a little upset. Why yes, yes, he was:


“I don’t see how I un-ring the bell,” he said

Walton interrupted the prosecution’s playing of a video from Clemens’ 2008 testimony before Congress and had the jury removed from the courtroom. Clemens is accused of lying during that testimony when he said he never used performance-enhancing drugs during his 24-season career in the major leagues.

One of the chief pieces of evidence against Clemens is testimony from his former teammate and close friend, Andy Pettitte, who says Clemens told him in 1999 or 2000 that he used human growth hormone. Clemens has said that Pettitte misheard him. Pettitte also says he told his wife, Laura, about the conversation the same day it happened.

Prosecutors had wanted to call Laura Pettitte as a witness to back up her husband’s account, but Walton had said he wasn’t inclined to have her testify since she didn’t speak directly to Clemens.

Walton was angered that in the video prosecutors showed the jury, Rep. Elijah Cummings, D-Md., referred to Pettitte’s conversation with his wife.

“I think that a first-year law student would know that you can’t bolster the credibility of one witness with clearly inadmissible evidence,” Walton said.

Well, yes, Reggie Walton is exactly right. It was not only an inappropriate attempt at backdoor admission of what was, at the time, hearsay but, much, much, more importantly flew directly in the face of a direct and specific previous order of the court on this EXACT issue. You just do not do that, and if you do you cannot whine when the court spanks your ass. You got said ass whuppin the old fashioned way, you earned it.

So, now the germane question is where do we go from here; i.e. what about a new trial. Well, that depends on a fair amount of pretty complicated things that are not going to be self evident to those not more than intimately experienced in the nuances of technical trial law are going to understand. I will get into that in detail, and discuss the legal implications and situation, when the pleadings are filed. Judge Walton has scheduled a Sept. 2 hearing on whether to hold a new trial, or dismiss the case permanently due to double jeopardy. clemens’ defense team will have until July 29 to file the motion to dismiss with prejudice and the prosecution has until Aug. 2 to respond.

A lot of judges would have tried to paper over this bogosity by the prosecution. Reggie Walton is PISSED. He may well say they are done based on double jeopardy. Those are gonna be fun briefs, and a very interesting oral argument.

One further thing, despite the incredibly short tenure of this jury trial – literally really in the first day of evidentiary presentation – today’s antics were NOT the first instance of prosecutorial misconduct. Oh no, the government was acting maliciously and unethically from the get go in the opening statements.

[Judge Walton] said it was the second time that prosecutors had gone against his orders — the other being an incident that happened during opening arguments Wednesday when assistant U.S. attorney Steven Durham said that Pettite and two other of Clemens’ New York teammates, Chuck Knoblauch and Mike Stanton, had used human growth hormone.

Walton said in pre-trial hearings that such testimony could lead jurors to consider Clemens guilty by association. Clemens’ defense attorney objected when Durham made the statement and Walton told jurors to disregard Durham’s comments about other players.

Yes, boy howdy, that is precisely right.

I think that the Laura Pettite bit, coupled with the improper attempt at prohibited guilt by association in the openings makes a fast pattern to malicious prosecution. If Reggie wants, he can dismiss and ground it upon both mistrial and sanction for malicious.

I’ve been telling people for years that it was NOT just former IRS goon come FDA stoolie agent Jeff Novitsky (although it all starts with him) that was malfeasant in the BALCO cases, including the Mitchell report kerfuffle, it was the AUSAs too.

This mendaciousness is just bogus and deplorable. Congratulations to Judge Reggie Walton for fingering it for what it is. Now dismiss this bunk forever please.

The Un-Patriot Acts of Harry Reid

As you undoubtedly know by now, the furious rush to extend the Patriot Act is once again in full swing. The Patriot Act is an odious piece of legislation that was birthed by fearmongering and the imposition of artificial drop dead, if we don’t pass this today the terrortists are gonna OWN us, artificial time emergencies. Then it was extended the same way. That is not a bug, it is indeed a feature.

When the government, through its executive and compliant Congress, wants to cut surveillance and privacy corners out of laziness and control greed, and otherwise crush the soul of the Constitution and the 4th Amendment, demagoguery and fake exigencies are the order of the day. And so they are again. Oh, and of course they want to get out of town on their vacation. And that is what has happened today.

Senators Wyden and Mark Udall had a superb amendment proposed to narrow the Patriots core provisions ever so slightly so as to maintain some Constitutional integrity. Marcy explained the details here. But, because that would engender real and meaningful debate on the efficacy of Patriot, it had to be quashed, and that is exactly what has occurred. Harry Reid and Diane Feinstein gave a couple of hollow and meaningless “promises”, of unknown content, to Wyden and Udall and strongarmed them into withdrawing their amendment. The citizens are simply not entitled to meaningful debate on their Constitution.

Spencer Ackerman, over at Wired’s Danger Room, shredded Reid for his unPatriotic act. Gloriously:

Remember back when a Republican was in the White House and demanded broad surveillance authority? Here’s Reid back then. ”Whether out of convenience, incompetence, or outright disdain for the rule of law, the administration chose to ignore Congress and ignore the Constitution,” Reid said about Bush’s warrantless surveillance program. When Bush insisted Congress entrench that surveillance with legislation in 2008, Reid turned around and demanded Bush “stop fear-mongering and start being honest with the American people about national security.” Any claim about the detrimental impact about a lapse in widespread surveillance were “scare tactics” to Reid that ”irresponsibly distort reality.” (Then Reid rolled over for Bush.)

That’s nowhere near the end of Reid’s hypocrisy here. When the Senate debated renewing the Patriot Act in 2006, Reid, a supporter of the bill’s surveillance procedures, himself slowed up the bill’s passage to allow amendments to it — the better to allow “sensible checks on the arbitrary exercise of executive power.” Sounding a whole lot like Rand Paul, the 2006-vintage Reid registered his “objection to the procedural maneuver under which Senators have been blocked from offering any amendments to this bill” and reminded his colleagues, ”the hallmark of the Senate is free speech and open debate.”

Reid could hardly be more of an opportunist here. He favors broad surveillance authorities — just as long as those scary Republicans stop being mean to liberals. When Attorney General John Ashcroft warned civil libertarians that their “phantoms of lost liberty… only aid terrorists,” Reid told CNN on December 8, 2001 that “people should just cool their jets” — but not that Ashcroft was actually, you know, wrong. By contrast, the ultra-conservative pundit Bob Novak said Ashcroft made “one of the most disreputable statements I have heard from an attorney general.”

Exactly right. But it gets worse. Rand Paul also had an amendment, but he, unlike our fine Democratic Senators, was not willing to quietly go off into the night. Paul stood his ground and now Reid has agreed to let Paul’s amendment to exempt gun purchases from Patriot’s scope have a vote:

Senate Democratic leadership seems poised to acquiesce to Sen. Rand Paul’s (R-Ky.) demand that the chamber vote on an amendment that would restrict national security officials from examining gun dealer records in their efforts to track potential terrorists.

The Kentucky Republican had been insisting that such language at least receive a vote as an addition to the extension of the USA Patriot Act.

So, that is where the Democratic party, Democratic Senate Leadership and the Obama Administration are on protecting the Constitution and its 4th Amendment. Sane and intelligent amendments to narrow focus and appropriately protect American’s privacy are squashed like small irritating bugs under a hail of fearmongering and demagoguery – from Democratic Leadership – and terrorists’ rights to buy guns with impunity and privacy are protected because just one GOP senator has the balls to actually stand up and insist on it.

Hanoi Harry Reid is on point and leading this clown car of civil liberties insanity, and so deserves a healthy chunk of the blame, but he is certainly not alone. For all the noise they made, why cannot Ron Wyden and Mark Udall stand up in a similar fashion? Where are the other Democrats who used to have such alarm when it was the Bush/Cheney Administration doing these things? Where is Russ Feingold, I miss him so, but I am sure that Obama and Reid are glad he is gone on days like today. Exactly why Feingold was, and is, so important.

UPDATE: There is late word Reid may have talked Mitch McConnell and GOP Senate leadership into putting a clamp on Rand Paul and holding up his amendment debate demand. We shall see.

Goodwin Liu To Get Senate Floor Vote On Cloture Thursday

News broke this afternoon that Harry Reid might file for cloture on a floor vote on Obama’s nominee for the 9th Circuit Court of Appeals, Goodwin Liu:

Goodwin Liu’s bid for a federal judgeship may be headed for a crucial vote this week, in what would be the biggest fight yet over any of President Barack Obama’s nominees for the lower federal courts.

Senate Majority Leader Harry Reid (D-Nev.) is considering filing a cloture petition as soon as tonight, a spokesman said. That would set up a vote later this week on whether to end debate on Liu’s nomination, a motion that needs the support of 60 senators to pass. The Democratic caucus controls 53 seats, so they would need Republican help to defeat a filibuster.

Well, shocking as it may be, and it really is, Harry Reid indeed pulled the trigger:

Prior to adjournment on Tuesday, May 17th, Senator Reid filed cloture on Executive Calendar #80, Goodwin Liu, of California, to be United States Circuit Judge for the Ninth Circuit. Senators should expect a roll call vote on the motion to invoke cloture on the Liu nomination to occur at a time to be determined on Thursday.

This is a fairly astounding happening as Liu was first nominated to the 9th in February of 2010, but the nomination died at the end of the 2010 session from lack of even an attempt to call for a floor vote. President Obama promptly renominated Liu, and he was again promptly reported out of the Judiciary Committee on a straight party line vote, but it appeared as if the nomination would be again be left to die a quiet death. Apparently not.

If you do not know about Goodwin Liu, you should. Liu is quite arguably the brightest and most accomplished young legal liberal star in the universe. He is the future of any liberal hope on the Supreme Court; like Antonin Scalia or John Roberts on the right, Liu is the future legal heavyweight for the liberal future. At only 39 years of age, Liu’s resume and record of accomplishment, service and involvement in the law makes Elena Kagan look like a malnourished piker. He is literally that good and valuable for the future, Liu is worth fighting for tooth and nail. For a great look at Goodwin Liu the man and scholar, take a look at Bob Egelko’s in depth biography from the San Francisco Chronicle.

So Goodwin Liu is set to get a floor vote on cloture Thursday, and if that threshold can be passed, he would look good on an up or down vote for confirmation. That is the good news. The bad news is, unless Harry Reid and/or the Obama White House have cut some kind of deal to get Liu through, there is little, if any, chance his nomination can muster the 60 votes necessary for cloture. And, despite some fast checking this afternoon, I can find no evidence of any such a deal having been cut or even discussed.

We will know by Thursday night whether Harry Reid and the Obama White House actually had a plan to get Goodwin Liu through and confirmed, or whether they just want the issue done and over with. One thing is for sure, it will not happen unless there is a plan and they have whipped some GOP support for cloture. Will Reid and Obama be heroes or goats? Stay tuned.

The Weakness Of The Barry Bonds Obstruction Verdict

Yesterday the Barry Bonds trial ended with a single conviction for obstruction of justice and a mistrial declared due to a hung jury on the other three remaining counts. There were originally five counts in the indictment, but count four was dismissed prior to the case being given to the jury. The case was in front of Judge Susan Illston in the Northern District of California (NDCA) District Court.

Of the four counts given to the jury, the three mistried were for what is commonly referred to as perjury, but formally described as false declaration before a grand jury or court under 18 USC 1623(a). The jury votes on those three counts now dismissed via mistrial were 9-3 acquit (HGH use), 8-4 acquit (steroid use) and 11-1 convict (the injection count). As always, I strongly suggest that reading very much into such numbers on hung counts is foolish; the dynamics behind such numbers are never simple, and never what you think they are. Most media types covering the trial have, almost universally, stated they do not expect a retrial on the three hung counts. I think such a statement is premature, and somewhat ill advised, under the circumstances as the likelihood of a retrial will be dependent on what Judge Illston does with the coming motion to set aside the verdict and, assuming that is denied, the sentencing of Bonds.

The fascinating question right now, however, is exactly how firm is the obstruction conviction? The answer is maybe not so firm at all. When I first heard there was a partial verdict, I thought – as did several others around me – that it was likely a conviction and hung jury on the other counts. Well, that was exactly right, however I assumed the conviction would be on the injection count; never contemplated for a second that the jury would not convict on any of the substantive predicate counts but still convict on the catch-all obstruction count. So, let’s take a look at that count, and the conviction thereon, because there are some serious issues involved that tend to undermine its strength above and beyond the fact there were no convictions on the underlying counts.

The obstruction count is charged under 18 USC 1503, which reads:

Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b). If the offense under this section occurs in connection with a trial of a criminal case, and the act in violation of this section involves the threat of physical force or physical force, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case.

Now the astute reader will note there is no materiality requirement in the direct language of 18 USC 1503. However, a prior case in the 9th Circuit, US v. Thomas, has held that materiality of the obstructive conduct is indeed a necessary element for a conviction under 18 USC 1503.

In light of Ryan and Rasheed, we conclude that although not expressly included in the text of § 1503, materiality is a requisite element of a conviction under that statute. Our conclusion does not, however, mandate a reversal of Thomas’s obstruction conviction, because it is clear that the jury found the requisite element of materiality in convicting Thomas on count six. The jury unanimously returned a special verdict on Thomas’s § 1503(a) charge indicating that the false statements alleged in counts one and three of Thomas’s indictment obstructed justice, and the jury in turn had found Thomas guilty of making material false statements with respect to counts one and three. By convicting Thomas of perjury on counts one and three, the jury necessarily found the statements in those counts to be material. And by indicating in a special verdict form that these statements obstructed jus- tice, the jury necessarily found that Thomas’s obstruction conviction was based on two material statements.

Several things are interesting here. First off, the Thomas decision was authored by the infamous torture memo author Jay Bybee. More importantly, however, Thomas was yet another in the long line of BALCO persecutions propagated by the rabid IRS investigator Jeffrey Novitsky. Lastly, the judge in the Bonds case, Susan Illston, knows the Thomas case well; she was judge on that case also. Illston has a wealth of experience in the BALCO cases and, by my understanding, has no great love for the affair as a whole or the antics of lead investigator Novitsky.

Which brings us back to the Bonds obstruction conviction and materiality. In the aftermath of the verdict, I engaged in a Twitter discussion with Adam Bonin on the issue. My initial take was the conviction would hold up; but, after diving into this, and seeing the actual verdict form, I am far less convinced.

The jury instruction on the obstruction charge read as follows:


(18 U.S.C. § 1503)

The defendant is charged in Count Five with obstruction of justice in violation of 18 U.S.C. § 1503. In order for the defendant to be found guilty of Count 5, the government must prove each of the following elements beyond a reasonable doubt:

1. The defendant corruptly, that is, for the purpose of obstructing justice,

2. obstructed, influenced, or impeded, or endeavored to obstruct, influence, or impede the grand jury proceeding in which defendant testified,

3. by knowingly giving material testimony that was intentionally evasive, false, or misleading.

A statement was material if it had a natural tendency to influence, or was capable of influencing, the decision of the grand jury.

The government alleges that the underlined portion of the following statements constitute material testimony that was intentionally evasive, false or misleading. In order for the defendant to be found guilty of Count 5, you must all agree that one or more of the following statements was material and intentionally evasive, false or misleading, with all of you unanimously agreeing as to which statement or statements so qualify:

1. The Statement Contained in Count One

2. The Statement Contained in Count Two

3. The Statement Contained in Count Three

4. Statement A:

Q: Let me move on to a different topic. And I think you’ve testified to this. But I want to make

sure it’s crystal clear. Every time you got the flax seed oil and the cream, did you get it in person

from Greg?

A: Yes.

Q: Is that fair?

A: Yes.

Q: And where would you typically get it? Where would you guys be when he would hand it to you generally?

A In front of my locker, sitting in my chair.

Q: Did he ever come to your home and give it to you?

A: Oh, no, no, no. It was always at the ballpark.

5. Statement B:

Q: …Do you remember how often he recommended to you about, approximately, that you take this cream, this lotion?

A: I can’t recall. I don’t – I wish I could. I just can’t . . . I just know it wasn’t often. I just think it was more when I was exhausted or tired than like a regular regimen. You know, it was like if I was really sore or something, really tired…that’s – that’s — that’s all I can remember about that.

Q: … would you say it was more or less often or about the same as the amount of times you took the liquid, the flax seed oil, the thing you understood to be flax seed oil?

A: I don’t know. I never kept track of that stuff. I’m sorry. I didn’t sit there and monitor that stuff.

6. Statement C:

Q: Did Greg ever give you anything that required a syringe to inject yourself with?

A: I’ve only had one doctor touch me. And that’s my only personal doctor. Greg, like I said, we don’t get into each others’ personal lives. We’re friends, but I don’t – we don’t sit around and talk baseball, because he knows I don’t want – don’t come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we’ll be good friends, you come around talking about baseball, you go on. I don’t talk about his business. You know what I mean? …

Q: Right.

A: That’s what keeps our friendship. You know, I am sorry, but that – you know, that – I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don’t get into other people’s business because of my father’s situation, you see…

7. Statement D:

Q: Did Greg ever give you testosterone in injectable form for you to take?

A: No.

Q: Would you have taken it if he gave it to you?

A: He wouldn’t jeopardize our friendship that way.

Q: And why would that – you’re very clear that that would jeopardize your friendship. Why would that jeopardize your friendship?

A: Greg is a good guy. You know, this kid is a great kid. He has a child.

Q: Mm-hmm.

A: Greg is – Greg has nothing, man. You know what I mean? Guy lives in his car half the time, he lives with his girlfriend, rents a room so he can be with his kid, you know? His ex takes his kid away from him every single five minutes. He’s not that type of person. This is the same guy that goes over to our friend’s mom’s house and massages her leg because she has cancer and she swells up every night for months. Spends time next to my dad rubbing his feet every night. Our friendship is a little bit different.

Out of all those bases for determining that Bonds obstructed justice, the jury picked one single base. They did NOT find any of the substantive bases applicable from any of the the substantive perjury counts in items 1-3. They did NOT find any of the more damning statements in Statements A, B or D applicable. No, the jury, as their sole basis for conviction of Bonds for obstruction, premised their finding on the weakest and lamest possible choice, in isolation, Statement C. Here is the official verdict form from the court evidencing just this fact, signed sealed and dated by the jury foreman.

It is really hard to see, in isolation, how this meandering statement by Bonds is materially obstructive. First, the question at the GJ was whether Bonds’ trainer, friend since childhood Greg Anderson, had given Bonds “anything that required a syringe to inject yourself with”. Bonds gave a semi-responsive answer that the only person that ever touched him (presumably referring to injection) was his doctor, and then meandered off that such was not the nature of his friendship with Anderson. Was it mostly unresponsive rambling at that point? Sure. But calling that – isolated from any of the substantive perjury/false statement allegations, not to mention more germane statements – materially obstructive, in and of itself, of the whole steroid investigation seems weak. At best.

The statement is not particularly material to the investigation; it does not directly mislead, it simply meanders a little. There is no indication the questioning prosecutor attending to the grand jury particularly even cared enough to say the answer was unresponsive or follow up with a another and/or more specific question. There is not evidence it had any significant impact whatsoever.

Now, the fact is, Bonds’ defense team moved for a directed verdict of acquittal based on insufficiency of the evidence at the close of the prosecution case, as is standard practice in the criminal defense community. As is standard in the court community, that motion was denied and the case allowed to go to the jury.

So, these exact arguments will now be made by Bonds’ defense team, and indeed that indication has already been preliminarily given and such motion will be considered at a court date already set by Judge Illston for this and other issues on May 20th. The specific motion is a motion for directed verdict of acquittal despite the jury’s finding, and is controlled by Rule 29(c) of the Federal Rules of Criminal Procedure (FRCrP). These motions are a staple of a good criminal defense lawyer, but they are very rarely successful. As in almost never.

Does such a motion, which is made in the trial court before sentencing and any appeal therefrom, stand any chance in the case of Barry Lamar Bonds? Maybe. As stated previously, Judge Illston is not crazy about the prosecution and investigation antics in the BALCO cases in general, and for very good reason. And, remember, Illston has the experience directly on point with the Thomas case and 9th Circuit decision thereon. While Bybee and the 9th upheld the analogous Thomas verdict on obstruction, keep in mind that it specifically relied on the fact Thomas was also found guilty on the substantive perjury counts in her indictment. Barry Bonds was not, there is nothing substantive behind the so-called obstruction in Bonds.

So, we shall see on May 20th if the conviction of Barry Bonds actually holds up or not. My guess is there will be written briefing fleshing all this out between now and then. But, suffice it to say, this is a LOT closer call than the claimed “experts” on teevee are blathering about. Yes, Lester Munson of ESPN, I am talking about you; just shut up. In fairness to ESPN, their other legal analyst, Roger Cossack, I almost always find to be informed and sober in his assessments, and I do with his comments on the Bonds verdict as well.

Oh, and one last parting shot. Can someone, anyone, explain to me just how the hell Barry Bonds is prosecuted for false statements, but Lloyd Blankfein is not? Seriously, what kind of two faced double standard is going on over at the Department of Justice? Not to mention that Blankfein may be one of the few humans in the world that makes Barry Bonds look likable in comparison. Come on DOJ, honor your oath and prosecute the real criminals.

Terror Trials, Ray Kelly and the FBI Director Job

A couple of weeks ago quite a stir was created when the rumor was let leak that President Obama was considering three different high level Bush/Cheney Administration officials to replace FBI Director Robert Mueller, whose ten year term will expire will expire on September 4, 2011. The two names most prominently featured were former Bush Deputy AG James Comey and former Bush National Security AAG Ken Wainstein but also mentioned was former Bush Homeland Security Advisor Fran Townsend. The story creating the hubbub, almost as an afterthought, also mentioned that Sen. Chuck Schumer had been lobbying for current NYPD Commissioner Ray Kelly for the job.

Today, however, comes a news report from local New York investigative reporter Murray Weiss that the FBI Director chair is Ray Kelly’s “for the taking”:

And when sources with solid connections in the White House tell you Kelly has been told by Attorney General Eric Holder that the FBI director’s job is his for the taking, it is impossible to ignore them. All the signals, including the aside from Kelly, are in sync.

Here is the news, according to my sources.

Kelly, who served in two federal posts during the Clinton administration, is this close to heading out of Manhattan and back to Washington to cap his long career of public service by running the FBI.

There are several things interesting about the report. One is Kelly’s age – he is 69 years old. The article addresses that issue:

The FBI Director’s term is 10 years. My sources say the White House has told the 69-year-old Kelly to view the position as a five year commitment, which would coincide nicely with the end of a second Obama term.

If so, and Kelly is indeed nominated, this is a contemptible plan. The intent behind having a ten year service period for the FBI top spot is to give it some space from hard partisan politics. In this case, seeing as how rare it is that a party who has had the presidency for two terms gets it for a third, setting up the FBI job to be open in the face of what would historically be and expected GOP president in 2016 seems short-sighted and extremely ill considered. I guess that presupposes Obama is reelected, but you have to assume the White House believes that will be the case and is acting under said assumption.

What is more interesting, however, is what a Ray Kelly nomination would say about the Obama 9/11 Terror Trials fiasco that culminated three days ago in the Administration announcing, through the water carrying mule known as Attorney General Eric Holder, that the 9/11 suspects/detainees, including Khalid Sheikh Mohammed, would receive second tier justice in the untested and almost certainly unconstitutional Guantanamo military commission system. This was a decision noted Constitutional authority Dahlia Lithwick termed “Cowardly, Stupid, and Tragically Wrong” and further noted:

Say what you want about how Congress forced Obama’s hand today by making it all but impossible to try the 9/11 conspirators in regular Article III courts.* The only lesson learned is that Obama’s hand can be forced. That there is no principle he can’t be bullied into abandoning. In the future, when seeking to pass laws that treat different people differently for purely political reasons, Congress need only fear-monger and fabricate to get the president to cave. Nobody claims that this was a legal decision. It was a political triumph or loss, depending on your viewpoint. The rule of law is an afterthought, either way.

What Dahlia noted is quite correct (and her article is spot on; if you have not seen it, read the whole thing), but the potential specter of a Ray Kelly nomination to FBI director makes you wonder whether Obama’s hand was forced so much as he used the caterwauling of Congress as an excuse for something he just felt politically expedient. And that is where we get back to Ray Kelly, because it was Kelly, just as much as Congress, that blew up the ability of New York to hold civilian trials for KSM and the other 9/11 suspects, not to mention future terrorism cases. As Marcy Wheeler noted, the indictment had been returned, and was really quite solid in how it was constructed.

Yes, the right wing howlers were grumbling in Congress, but it was Ray Kelly’s fearmongering over security which fueled the Community One Association of lower Manhattan into a negative frenzy over the specter of the trials actually being held where the crimes were committed. The breaking of the will of New York to hold the trials that broke the back of effort as a whole.

Notably, however, these were not principled fears Kelly whipped up, it was a just another political theater play over a struggle for money and power. As Jane Mayer noted at the time:

For months, companies with downtown real-estate interests had been lobbying to stop the trial. Raymond Kelly, the commissioner of the New York Police Department, had fortified their arguments by providing upwardly spiralling estimates of the costs, which the federal government had promised to cover. In a matter of weeks, in what an Obama Administration official called a “classic City Hall jam job,” the police department’s projection of the trial costs went from a few hundred million dollars to a billion dollars.

Kelly friend and compatriot Michael Bloomberg had been in favor of the trials And Kelly and his friend Bloomberg were resolutely in favor of the trials, until they learned there would be not be a financial funding windfall sufficient for their desire from the Feds. Kelly then whipped the public frenzy, Bloomberg and Chuck Schumer fell in line, and it was game over as to public will in New York.

Ray Kelly, attempting to build his and his department’s budget and power, ran a shakedown play on the Obama Administration. Or so it seemed at the time. But what if Ray Kelly had his eye on succeeding Mueller at FBI longer than Weiss relates in today’s article (which discusses Kelly auguring for the job as early as last summer). What if the real shakedown Ray Kelly was running on the White House, Eric Holder and the Administration early in the terror trials issue was for the FBI job, it started much earlier than last summer, and the blowing up of the ability to conduct civilian trials in New York was simply his end of the bargain?

This is conjecture at this point, but it certainly fits the facts, and would also explain why Obama would be considering a man far older than logic and recent precedent would consider appropriate for the job. What a panel of potential nominees the White House has ginned up – three Bush/Cheney hands and Ray Kelly, the shakedown specialist. Either way, if it does ever turn out Ray Kelly is Obama’s nominee for FBI Director, it would be another profound comment on the Administration’s “cowardly, stupid, and tragically wrong” handling of the civilian trials in Article III courts issue.

Scott Bloch Headed To Prison

[UPDATE: Bloch was sentenced to one month prison, one year probation and 200 hours of community service. His attorney indicated they will appeal, which could be interesting since the plea appears to, on its face, disallow appeal. And the saga of Scott the Blochhead rambles on…..]

Since mid-February an important, but little noticed, criminal case has been playing out in DC District court in which former Bush/Cheney administration Special Counsel Scott Bloch is charged with criminal contempt of Congress pursuant to 2 USC 192. As I summarized in an earlier post:

As you will recall, former former Bush/Cheney Administration Special Counsel Scott Bloch destroyed evidence by wiping government computers clean, lied to Congress about it and conspired with the DOJ to minimize the conduct and slough it off with a sweetheart plea deal. Then, outrageously, when the court indicated it was inclined to impose the mandatory minimum month in jail, which was mandated by the statute Bloch pled guilty to, Bloch and the DOJ conspired to get the plea, which had already been accepted and entered by the court, withdrawn.

When Bloch and DOJ both worked together to get the plea withdrawn, and frustrate justice, the egregious nature of the attempt was documented here in a fully argued and supported post published on Tuesday March 1, 2011. Subsequent to that post, the court also found questions with the attempt to withdraw the plea and ordered Bloch to file a reply supporting the attempt.

At the previous date set for sentencing, on March 14, the court gave Bloch one last shot to brief his way out of the hole he dug for himself and ordered a tight briefing schedule therefore. Bloch filed his Motion for Reconsideration on March 14, The government filed their response, again colluding with Bloch, on March 17, and Bloch filed his reply on March 23.

Late yesterday afternoon, Judge Deborah Robinson ruled on Bloch’s latest attempt to get out of the mandatory incarceration sentence he pled guilty to, and entered her order denying his motion. The court fairly well blasted Bloch’s whining attempt to withdraw and, by extension, the continued craven collusion by the government in said attempt.

First the court gutted the claimed ability of Bloch to have a motion for reconsideration entertained on the merits at all:

In sum, while judges of this court have, on occasion, entertained motions for reconsideration of interlocutory orders in criminal cases, no Federal Rule of Criminal Procedure, or Local Criminal Rule of the United States District Court for the District of Columbia, provides for such motions. The undersigned finds that although the pending motion is styled a “Motion to Reconsider[,]” it is effectively an effort “[to] rehash[] previously rejected arguments” regarding both the finding that the offense to which Defendant pled guilty carries a mandatory minimum sentence, and the order denying Defendant’s motion to withdraw his guilty plea.

Undoubtedly Judge Robinson, recognizing the significance of Bloch’s case to both the Executive Branch and Congress, not to mention the defendant himself, wanted to give Bloch every opportunity to make his record. But when decision day came, she followed the law and properly noted the procedural disfavor of such motions as Bloch was proffering. It was smart of Robinson, however, to let Bloch play out the string before so ruling.

And then the court got to the factual merits of Bloch’s argument. To say that the court found no merit in this regard is somewhat of an understatement:

The court finds that Defendant has failed to show that the court “made an error in failing to consider controlling decisions or data[.]” Defendant blithely proclaims that the court “fail[ed] to discuss in its Memorandum Opinion – or even mention – the only two prosecutions in the past twenty years which proceeded under 2 U.S.C. § 192: United States v. Miguel O. Tejada, Cr. 09- mj-077-01, and United States v. Elliot Abrams, Cr.-91-575 (AER)[]” (see Defendant’s Motion for Reconsideration at 4). However, Defendant’s proclamation is belied by the record: the court has, in fact, considered both of those prosecutions


The court finds that Defendant’s claim that “the Plea Agreement contemplated eligibility for probation” (Defendant’s Motion for Reconsideration at 4) is equally specious. No such provision is included in the plea agreement; moreover, Defendant “acknowledge[d] that [his] entry of a guilty plea to the charged offense authorizes the sentencing court to impose any sentence, up to and including the statutory maximum sentence, which may be greater than the applicable Guidelines range.”


Finally, the proffer of the advice of counsel, offered, for the first time, through the affidavit of one of the lawyers who represented Defendant (see Affidavit of Ryan R. Sparacino, Esq. (“Sparacino Affidavit”) (Document No. 49-1)), is of no moment.


To the extent which the affidavit of counsel has probative value at all in this context, it is that it serves to highlight the court’s finding that Defendant was aware that the offense to which he pled guilty was one for which a mandatory minimum sentence was provided.


Counsel’s advice that the court was not likely to impose the mandatory minimum sentence simply because two other judges apparently had not done so is not

germane to any issue now before the court.

Ouch. That’s going to leave a mark. And that mark should be on the DOJ and its assigned attorney in this case, Glenn Leon, as well. It was nothing short of a craven attempt by the Obama DOJ to collude with a defendant to escape punishment because the administration does not want to have a precedent that – gasp – Executive Branch officials that lie to and are otherwise in contempt of Congress could be sent to prison. Good bet Mr. Tim Geithner is paying close attention to this ruling.

At any rate, Scott Bloch will be sentenced by Judge Robinson on his guilty plea conviction today at 4:00 pm EDT. Bloch will be sentenced to at least one month of prison. He should be sentenced to the full six months that are the upper end of the sentencing guidelines range for his plea, but it is unlikely, under the circumstances, the court will impose more than the mandatory one month.

DOJ’s New Miranda Policy Betrays Constitution & Power of Judiciary

The proclivity of the Obama Administration to simply do as it pleases, whether it violates the Constitution, established authority or the separation of powers doctrine is beyond striking. Last week at this time they were ignoring the Constitutional right of Congress, the Article I branch, to be the determinative branch on the decision to take the country to war. Today Mr. Obama’s Department of Justice has stretched its ever extending arm out to seize, and diminish, the power and authority of the judicial branch and the US Constitution.

Specifically, the DOJ has decided to arrogate upon itself the power to modify the Constitutionally based Miranda rights firmly established by the Article III Branch, the Supreme Court. From Evan Perez at the Wall Street Journal:

New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades.

The move is one of the Obama administration’s most significant revisions to rules governing the investigation of terror suspects in the U.S. And it potentially opens a new political tussle over national security policy, as the administration marks another step back from pre-election criticism of unorthodox counterterror methods.

The Supreme Court’s 1966 Miranda ruling obligates law-enforcement officials to advise suspects of their rights to remain silent and to have an attorney present for questioning. A 1984 decision amended that by allowing the questioning of suspects for a limited time before issuing the warning in cases where public safety was at issue.

That exception was seen as a limited device to be used only in cases of an imminent safety threat, but the new rules give interrogators more latitude and flexibility to define what counts as an appropriate circumstance to waive Miranda rights.

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.

This type of move has been afoot for almost a year, with Eric Holder proposing it in a string of Sunday morning talk shows on May 9, 2010 and, subsequently, based on Holder’s request for Congressional action to limit Miranda in claimed terrorism cases, Representative Adam Smith proposed such legislation on July 31, 2010. Despite the howling of the usual suspects such as Lindsay Graham, Joe Lieberman, etc. the thought of such legislation died in the face of bi-partisan opposition from a wide range of legislators who actually understood Constitutional separation of powers and judicial authority. They knew the proposed legislation flew in the face of both concepts. And they were quite correct.

It was bad enough for the Obama Administration, headed by the supposed and so called “Constitutional scholar” Barack Obama, to propose inappropriate and unconstitutional legislation to restrict criminal suspects’ Constitution based Miranda rights, but it is an egregious step beyond to simply arrogate to themselves the unitary and unilateral power to do it by DOJ memorandum fiat.

It is not as if this is some kind of unexplored area with no legal precedent; there is clear precedent on the nature of Miranda rights. In Dickerson v. United States 530 U.S. 428 (2000), the Supreme Court left no mistake as to the nature of Miranda:

But Congress may not legislatively supersede our decisions interpreting and applying the Constitution. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 517—521 (1997). This case therefore turns on whether the Miranda Court announced a constitutional rule or merely exercised its supervisory authority to regulate evidence in the absence of congressional direction.


In sum, we conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively.

Furthermore, the “public safety exception” the administration disingenuously bases their new Miranda policy on, is limited and does not support their expansive power grab. The public safety exception, first announced by the Court in Quarles v. New York, applies only where there is an imminent and immediate “great danger to public safety” and the officer who questions the suspect reasonably believes the information sought is necessary to protect the immediate public safety and the questions are limited to only those necessary to obtain the information to mitigate such threat. That is NOT what the Obama/Holder DOJ is contemplating or restricting their policy to and, thus, their policy is simply unconstitutional and inappropriate.

Let us not forget, this attempt by the administration is not aimed at terrorists and enemy combatants on foreign soil, it is aimed squarely at individuals arrested on domestic soil under the regular Article III criminal system. The law is quite established that the reading of the Miranda warning does not confer rights upon the arrestee, the rights are inherent and flow from the Constitution.

I am sure others can, and will, disagree (see for instance the bleatings of John Yoo), the principle is really quite simple: Miranda is a Constitutional based rule, and confirmed by Supreme Court precedent, and it cannot be amended or overruled by act of Congress. And it sure as heck cannot be overruled or amended by administrative fiat via a FBI memorandum.

Court Denies Scott Bloch & DOJ Collusive Attempt To Withdraw Plea

As you will recall, former former Bush/Cheney Administration Special Counsel Scott Bloch destroyed evidence by wiping government computers clean, lied to Congress about it and conspired with the DOJ to minimize the conduct and slough it off with a sweetheart plea deal. Then, outrageously, when the court indicated it was inclined to impose the mandatory minimum month in jail, which was mandated by the statute Bloch pled guilty to, Bloch and the DOJ conspired to get the plea, which had already been accepted and entered by the court, withdrawn.

When Bloch and DOJ both worked together to get the plea withdrawn, and frustrate justice, the egregious nature of the attempt was documented here in a fully argued and supported post published on Tuesday March 1, 2011. Subsequent to that post, the court also found questions with the attempt to withdraw the plea and ordered Bloch to file a reply supporting the attempt.

Seeing the specious nature of Bloch’s reply filed on March 3, 2011, the Emptywheel blog got involved and initiated a formal filing with the court. We combined much of the material from the previous blog post on March 1 with new argument directly responsive to Bloch’s Reply, and additional general argument, into a formal sentencing recommendation and filed it with the court. The document was lodged on March 4.

Late last night, after consideration of the various pleadings related to the attempt to withdraw Bloch’s plea, the court filed its decision on PACER. Scott Bloch’s motion to withdraw from his plea, despite the collusive help from the DOJ, is DENIED!

For all of the foregoing reasons, the court finds that Defendant, at the time he pled guilty to a violation of 2 U.S.C. § 192, was well aware that he could have been sentenced to a period of incarceration of up to one year. His assertion, through his affidavit, that he would not have pled guilty had he “been informed” that he would not receive probation is, simply put, not entitled to credence. This court–like the Circuit, when confronted with a comparable contradiction between the defendant’s answers under oath during the Rule 11 colloquy and the affidavit in support of his motion – finds that “[Defendant’s] argument – if not his affidavit – amounts to a claim that the defect in the taking of the plea consisted of his committing perjury, when, under oath, he acknowledged the truth of the factual recitals in the plea agreement and in the government’s proffer. Lying to a court is not a ‘fair and just reason,’ Fed.R.Crim.P. 11(d)(2)(B), for allowing a plea to be withdrawn.” (emphasis added)

The entire ruling by the court is 20 pages long and takes apart every argument Bloch makes limb by limb. As it should have been. Perhaps the best line of Judge Robinson’s decision, and a point we argued strongly, is:

Confidence in the fair and orderly administration of justice is undermined by the suggestion that the court should participate in a process by which a sentence is first determined by Defendant and the government, and then an offense expected to guarantee such sentence is alleged.

Boy, the court sure got that right. Not to mention that confidence in fair and honest government is undermined when the DOJ is willing to not prosecute and/or minimize clear crimes committed by other Executive Branch officers. They tried to soft walk Scott Bloch out of this, and it is still awfully small punishment considering Bloch’s crimes, but at least they did not get away with further obfuscation and frustration of justice. Now let’s get the Obama DOJ to get some more prosecutions for all the other egregious Executive Branch crimes of the previous administration going. It is about time.

Bloch’s sentencing is set for this afternoon at 2:30 pm at the E. Barrett Prettyman Federal Courthouse.

Court Should Deny DOJ & Scott Bloch Collusion to Avoid Accountability

As you will recall, Scott Bloch is the senior governmental attorney who formerly served as head of the United States Office of Special Counsel:

The U.S. Office of Special Counsel (OSC) is an independent federal investigative and prosecutorial agency. Our basic authorities come from four federal statutes: the Civil Service Reform Act, the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment & Reemployment Rights Act (USERRA).

In short, it is an unique, but quite important, entity in the federal government, and is entrusted with protecting the sanctity of whistleblowers, who are one of the last checks on an increasingly imperious federal government, and especially the Executive Branch thereof. Mr. Bloch refused to do his job appropriately under the Bush/Cheney Administration and, when members of his own staff, including attorneys, attempted to blow the whistle on Bloch, the man entrusted with protecting whistleblowers unconscionably retaliated against them and blatantly destroyed governmental property and statutorily protected electronic files evidencing his acts.

Once informed of the questionable, inappropriate and/or patently illegal acts by Bloch, the Chairman and Ranking Member of the House Oversight Committee instigated a formal Congressional investigation of Bloch. On March 4, 2008, in the course of formal interviews with Oversight Committee staff, Bloch withheld critical information and lied. (See Bloch’s signed Stipulation of Facts dated 4/27/2010). Bloch entered into a plea agreement with the government and has been awaiting sentencing by Magistrate Judge Deborah Robinson of the District of Columbia District Court.

As Marcy Wheeler and I previously explained, the Obama Department of Justice is furiously colluding with the defendant they are supposed to be prosecuting, Scott Bloch, to ensure that he never does a day in jail for his crimes, and there appears to be no credible reason they are doing so:

The Department of Justice has literally teamed up with Scott Bloch-who previously plead guilty to blowing off Congress–to try to help him avoid any jail time, at any cost to credibility, for that crime. The extent of this collusion first became apparent in a ruling dated February 2, 2011 by Federal Magistrate Judge Deborah Robinson, who is handling the matter.

Now, there’s more than a chance that what is going on here is DOJ scrambling to prevent Bloch from doing jail time because they–part of the Executive Branch–like it that people like Alberto Gonzales, Monica Goodling and John Yoo have managed to avoid almost all Congressional oversight. And, now with Darrell Issa cranking up the not-so-way back investigatory machine, they really do not want a precedent made that executive branch officials who lie to Congress have to – gasp – actually serve jail time.

Then, the willingness of the government prosecutors to fight to keep the criminal Bloch from serving one lousy second in jail goes from the absurd to the ridiculous. A mere four days after having filed the whiny Motion to Reconsider, and before it was substantively ruled on, the government, by and through the ever ethical DOJ, suddenly files a pleading encaptioned “Governments Motion To Withdraw Its Motion To Reconsider The Court’s February 2, 2011 Memorandum Opinion“. In this pleading, the government suddenly, and literally, admits their February 2 Motion to Reconsider was without merit.

The foregoing is the background that brings us to where we are today, with a DOJ unconscionably, and with at least questionable ethics, literally fighting tooth and nail to help Scott Bloch get out of his pleas deal because he might actually have to serve 30 days in jail for his crimes. What, as the remainder of this article, and argument to the court, will delineate is that there is no merit to the attempted withdrawal and, incredibly, both Bloch and the DOJ entered into written covenants that they would not attempt to do so. For the reasons described below, Judge Robinson should deny Mr. Bloch’s motion to withdraw, and the craven DOJ joinder therein, and sentence Mr. Bloch pursuant to the plea and in accordance with her finding and inclination stated in her February 2, 2011 Memorandum Opinion.

I. The Mandatory Minimum Is In The Statute Itself

Defendant Bloch cites and argues Federal Rules of Criminal Procedure (FRCrP) Rule 11(b)(1)(I) for the proposition he should be allowed to withdraw from his plea because the court did not explain, and he did not understand, there was a minimum mandatory sentence of one month in jail.

This is a specious and meritless argument. The existence of the mandatory month in jail is not the creature of some arcane and separate sentencing provision or the result of the confusing federal sentencing guidelines or some other hard to grasp source. No, the requirement of one month incarceration is directly and specifically in the the statutory crime Mr. Bloch pled guilty to under 2 USC 192:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months. (emphasis added)

For Mr. Bloch to say he did not know of the mandatory incarceration provision, and that the court did not advise him, defies both clear logic and complete credibility. At the April 27, 2010 plea proceeding in front of the court, under oath and on the record, Defendant Bloch stated definitively and unequivocally that he knew, had read, been briefed by competent counsel and understood completely the charge he was pleading guilty to. Bloch, his attorney and the prosecuting AUSA in charge of the case for the DOJ, Mr. Glen Leon, avowed to the court there was no impairment and no reason whatsoever Bloch did not know what he was doing and could not knowingly enter into the plea. (See Plea Hearing Transcript, Exhibit 1 to Bloch Motion to Withdraw).

The following pertinent portions of the plea proceeding apply:

THE COURT: Do you understand the charge that is alleged in the Information?

THE DEFENDANT: I do, Your Honor.


THE COURT: Has anyone promised you what sentence will actually be imposed?

THE DEFENDANT: No one has promised me that, Your Honor.


THE COURT: Do you know that if the sentence is more severe than you now expect it will be, that you are still bound by your plea, and that you will not be permitted to withdraw your plea for that reason?

THE DEFENDANT: I understand that, Your


THE COURT: Do you understand, sir, that parole in the federal system has been abolished, so that if you are sentenced to a period of incarceration, you will not be released early on parole?

THE DEFENDANT: I believe I do understand that, Your Honor. Yes.

THE COURT: Do you need more time to discuss any of the questions I just asked, or any of your own questions about sentencing, with your lawyers before we continue?

THE DEFENDANT: No, I do not, Your Honor

Defendant Bloch repeatedly, under oath, swore he understood the charge, knew the penalties associated with the charge, knew the final sentence was in the Court’s discretion and there was even discussion on the record about the potential for a sentence of incarceration and the temporary provision of pre sentence release. The plea agreement itself specified:

Your client agrees to plead guilty to a one-count Information, a copy of which is attached, which charges a misdemeanor violation of 2 U.S.C. 192 (Criminal Contempt of Congress).

The record is crystal clear. Mr. Bloch himself is an experienced attorney and had the assistance of extremely gifted retained counsel (not just one, but a battery of them). There was no ambiguity as to the offense Defendant Bloch was pleading guilty to. The minimum one month incarceration period is clear as day and directly specified in the elements and body of the criminal statute, 2 USC 192, Bloch pled guilty to.

Further, as the citation to United States v. Padilla, 23 F.3d 1220, 1222 (7th Cir. 1994) in Defendant Bloch’s own motion delineates, “The relevant inquiry must center upon what the defendant actually knows when he pleads guilty.” Well, in the instant case, Defendant Bloch swore under oath and penalty of perjury that he knew exactly the criminal provision he was pleading guilty to, and what he now disingenuously claims ignorance to is in that statute, in glaring black and white, for the world to see. Mr. Bloch’s sudden claim of ignorance is dishonest, in bad faith and does not constitute just cause for withdrawal.

Rule 11(d) specifies that once a plea has been accepted on the record by the court, which is the case here, withdrawal by a defendant can only occur where the court rejects the plea or where “a fair and just” basis is established. Neither circumstance applies in the case of Mr. Bloch.

II. It Was Not A “Probation Plea” and the Terms and Conditions Forbid Withdrawal

The nature and tenor of Defendant Bloch’s motion to withdraw effectively presents a defendant who entered into a probation only plea and is shocked, shocked that he may actually serve some minimal jail time. Yet the plea was not a “probation plea”, and the parties, court, Mr. Bloch, the plea agreement letter and the plea proceeding were all crystal clear that incarceration, within the contemplation of the statute and relevant guidelines, was quite possible, and that Bloch would not be permitted to withdraw if that was the case so long as the sentence was within guidelines.

The plea agreement letter provides in pertinent parts:

The parties further agree that a sentence within the Stipulated Guidelines Range would constitute a reasonable sentence in light of all the factors set forth in 18 USC 3553(a). In addition, neither party will seek a sentence outside of the Stipulated Guidelines Range or suggest that the Court consider a sentence outside the Stipulated Guidelines Range.


It is understood that the sentence to be imposed on your client is determined solely by the Court. It is understood that the Sentencing Guidelines are not binding on the Court. Your client acknowledges that your client’s entry of a guilty plea to the charged offense authorizes the sentencing Court to impose any sentence, up to and including the statutory maximum sentence, which may be greater than the applicable Guidelines range. The Government cannot, and does not, make any promise or representation as to what sentence your client will receive. Moreover, it is understood that your client will have no right to withdraw your client’s plea of guilty should the Court impose a sentence outside the Guidelines range. (emphasis added)

The net result of the above stipulation, made both in the plea agreement letter dated April 19, 2010, and confirmed and further established in the plea proceeding in open court on April 27, 2010, is that Defendant Bloch made a deal in which he

(a) agreed not to contest a guidelines sentence imposed by the Court,

(b) waived his right to withdraw his plea so long as the Court sentenced legally, and

(c) waived the non-admissability of his allocution under FRCrP Rule 11(f).

The plea document literally stipulated:

It is further agreed that any sentence within the Stipulated Guidelines Range is reasonable.

in conjunction with both parties waiving any appeal rights.

Defendant Bloch entered into a plea agreement, and stood before the court to confirm it, that gave him a sweetheart deal to a misdemeanor crime with liberal and favorable further stipulations that he would be classified under the lowest available sentencing guidelines for calculation and imposition of his sentence. He swore he would not seek to withdraw, and the Court instructed him there would be no such withdrawal permitted so long as he was treated within the parameters of his plea. The proposed sentence indicated by the Court in its February 2, 2011 Memorandum Opinion is more than within those constricts. Mr. Bloch’s plea does not permit the action he, and the collusive government, now seek.


The number and quality of felony crimes Bloch could have been, and should have been, charged with are staggering; including obstruction of justice, false statements, perjury, willful destruction of government property and Federal Records Act violations. But Defendant Bloch made a deal to plead to one little misdemeanor with the guarantee he would be considered under the most favorable sentencing guideline conditions imaginable. And, in return for this staggeringly kit gloved treatment, both Bloch and the government swore and promised not to withdraw or appeal. Yet, here they both are in front of this Court seeking to do just that. It is scandalous and should not be permitted by the Court. But there is much more to this case than just that.

It is the duty of the federal court system to provide fair and impartial justice to those before it and to stand as one of the three co-equal branches of government with a solemn duty to protect the sanctity of the government and see that justice is done not just for the powerful and privileged, but for all. For a misdemeanor plea case, there are powerful and critical factors involved in the instant case that warrant consideration by the Court. Central is the question of whether there is now, and will be in the future, meaningful accountability for Executive Branch officials as to the crimes they commit in office and in the peoples’ names.

As described at the start of this essay, our government and constitutional rule of law fails if Executive Branch officials can lie and destroy material evidence, not only to shield themselves from accountability, but to mask their efforts to deny legitimate governmental whistleblowers the light of day with which to inform and protect the public. It is truly that fundamental. And when you then compound the problem with fellow Executive Branch attorneys and officials colluding to minimize the crimes and frustrate even the minimum statutory punishment, the issue, and thus the case of Mr. Bloch, becomes of immense importance.

This Court, in its February 2, 2011 Memorandum Order, noted:

Thus Congress’s intent was to make the penalty for violating the statute punitive. See Russell v. United States, 369 U.S. 749, 755 (1962) (“In enacting the criminal statute . . . Congress invoked the aid of the federal judicial system in protecting itself against contumacious conduct.”) (quoting Watkins, 354 U.S. at 207). With respect to sentencing, the statute, as enacted in 1857, provided that “on conviction,” a person “shall” pay a fine and “suffer imprisonment in the common jail not less than one month nor more than twelve months.” Act of January 24, 1857, ch. 19, 11 Stat. 155 (emphasis supplied).

These words and opinion are exactly why this Court should deny Defendant Bloch’s motion to withdraw and sentence him as previously contemplated. It is literally the least he deserves. As the Court stated, the federal judiciary has a duty, in conjunction with Congress, to protect against contumacious conduct. This Court should fulfill that duty, stand for the people and rule of law, and send a message to Mr. Bloch and subsequent Executive Branch officials that there is a penalty for criminal behavior in obstruction and contempt of Congress, and that it will be enforced.

The New Obama Policy On Constitutionality Of DOMA & Boies/Olson Reaction

Liberty & Justice by Mirko Ilic

As Marcy Wheeler pointed out, the Obama Administration this morning made an abrupt and seismic shift in its legal policy and position on DOMA (Defense of Marriage Act). There are two documents of note in this regard, the Attorney General’s press announcement and the detailed letter to speaker John Boehner announcing the change in policy and describing the legal foundation therefore.

Marc Ambinder explains what this means to the two key cases in question:

The decision means the Justice Department will cease to defend two suits brought against the law. The first was a summary judgment issued in Gill et al. v. Office of Personnel Management and Commonwealth of Massachusetts v. United States Department of Health and Human Services last May by the U.S. District Court of Massachusetts. The plaintiffs challenged the constitutionality of the law’s definition of “marriage” as a legal union between a man and a woman.

District Judge Joseph Louis Tauro ruled Section 3 of the act unconstitutional on the grounds that it violated states’ rights to set their own marriage policies and violated the rights of same-sex couples in the states that permitted marriages. But the president felt compelled to defend the law, reasoning that Congress had the ability to overturn it. The Justice Department entered into an appeal process on October 12, 2010. Tauro stayed implementation of his own ruling pending the appeal. The department filed its defense in the U.S. Court of Appeals for the 1st Circuit on January 14.

The second lawsuit, involving the cases of Pedersen v. Office of Personnel Management and Windsor v. United States, would have been appealed in the Appeals Court for the 2nd Circuit, which has no established standard for how to treat laws concerning sexual orientation.

I would like to say this is not only a welcome, but extremely strong position that has been taken by President Obama, Attorney General Holder and the Administration. You can say they are late to the dance, that it is political opportunism because the boat was already sailing, or that it is a “bone to the base” with an election looming. To varying degrees, all would have some validity. However, the bottom line is that they have done it, it was extremely bold in its forcefulness and it was the right thing to do. Mr. Obama and his Administration deserves credit where due. This is an area where I have expressed extreme disagreement with Mr. Obama and his policy, and he has met exactly the issues that were faulty, and in a strong way.

Another thing should be noted here. From what I know of the 2nd Circuit, and what others very knowledgable about it confirm, the 2nd is going to find this music to their ears. They may not be the equivalent of the 9th Circuit on everything, but their disposition was going to be to knock down DOMA to start with. With this extra ammunition provided today, expect them to write VERY strong opinions knocking back DOMA and finding clear cut Constitutional protection for sexual identity equality. Couple that with the clear position evinced by the 9th Circuit, and the tide is turning. Fast and hard.

I simply do not see how Anthony Kennedy, based both on what I know of him and his clear opinion in Lawrence v. Texas, will not find for sexual identity equality if and when these cases reach the Supreme Court. This is why I have always maintained that Boies and Olson should stipulate to standing in Perry and get the case to the Supremes.

The above linked documents speak for themselves in most regards, but I would like to point out a couple of things. First, the Administration is not just going to cease defending DOMA, they are doing so on the express ground that it “violates the equal protection component of the Fifth Amendment”. That is huge. Not just that it is wrong, but that it flat out violates the most fundamental protections within the United States Constitution. Secondly, and to a legal eye every bit as important, if not more so, they have concluded:

…that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

Again, huge. They lay out a detailed analysis under Bowen v. Gilliard why this is so, discuss Lawrence v. Texas, Romer v. Evans, Fontiero v. Richardson and conclude:

Each of these factors counsels in favor of being suspicious of classifications based on sexualorientation.


In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent o f the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.

Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny.


And why do I say ballgame?? Because this is far more reaching than just the pending DOMA cases in the 2nd Circuit. No, this seismic change will filter into any LGBT Constitutional rights case pending in federal or state courts. The first case that came to my mind was the Log Cabin Republican case out of the Central district of California (CACD).

I had no sooner started writing about the applicability of today’s Obama Administration announcement to the LCR case, when an even better example of the far ranging consequences came across my desk straight from the 9th Circuit Court of Appeals. David boies and Ted Olson, on behalf of the plaintiffs in Perry v. Schwarzenegger, have filed a Motion to Lift the Stay Pending Appeal on marriage equality in California. Speaking of huge, this instantaneous and hard edged aggressive action by the Perry plaintiffs fits the bill:

Moreover, events of this morning demonstrate that proponents likely cannot prevail even if this lengthy procedural detour were resolved in their favor. In a letter to Congress, the Attorney General of the United States announced the view of the United States that ““classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of”” the Defense of Marriage Act (““DOMA””)——which defines ““marriage”” under federal law to be ““a legal union between one man and one woman””——““is unconstitutional.”” Letter from the Attorney General to Congress on Litigation Involving the De- fense of Marriage Act at 2 (Feb. 23, 2011) (attached as Exhibit A).

These new developments——this Court’’s certification order, the California Supreme Court’’s response to it, and the Attorney General’’s announcement that the gov- ernment will no longer defend DOMA——are materially changed circumstances that warrant vacatur of this Court’’s decision to grant a stay pending appeal. See SEACC v. U.S. Army Corps of Eng’’rs, 472 F.3d 1097, 1101 (9th Cir. 2006).

The long and short of this is that Boies and Olson argue that between today’s announcement of the quantum shift in policy by President Obama and Attorney General Holder and the direction the California supreme Court is heading creates a situation is which there is simply no resolution of the appeal that favors the challengers – the h8ters – actually winning on the merits. There are several ways the case could go down, as pondered through by Boies and Olson, but none of them favor the bigoted proponents of Proposition 8.

Boies and Olson have a pretty compelling point if you total up the legal considerations extant at this point. The other thing I think should be noted here is just how fast the Boies and Olson motion came on the heels of the Obama/Holder announcement. I first heard rumor of the coming announcement of the new Obama policy at 9:15 am PST. Boies and Olson filed their motion and had it entered on the 9th Circuit ECF (Electronic Court Filing) system by 9:56 am PST, a mere 40 minutes later. Trust me, this is not possible, even for ace attorneys like David and Ted.

What the above shows is that there was at least some advance notice to and/or cooperation between the AG/DOJ and the Perry Plaintiffs, and far more than the press got. The Administration should be commended for this as well, when they finally decided to ante in on the right side of the Constitutionality argument, they went all in. Bravo!

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

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