The conviction of former #lobbyist Kevin Ring, a one-time ally of uber-lobbyist Jack Abramoff, was upheld Friday by the D.C. Circuit Court of Appeals.

In a unanimous, 24-page decision that makes for poignant reading, the court's three-judge panel acknowledged that Ring made "powerful" arguments and that "this case is nothing if not close." Nonetheless, the court, in a decision written by Judge David Tatel, ultimately upheld the conviction on so-called "honest services fraud."

Honest services fraud is tricky; in Ring's case, prosecutors had show that Ring gave gifts with an “intent ‘to influence’ an official act” by way of a corrupt quid pro quo. On appeal, Ring challenged how the trial judge set out in jury instructions what was required.

Starting with a literate explication of lobbying, including a reference to the depiction of lobbying in the movie "Lincoln," Tatel noted that "the distinction between legal lobbying and criminal conduct may be subtle, but, as this case demonstrates, it spells the difference between honest politics and criminal corruption."

Following a hung jury the first time around in 2004, a jury convicted Ring on three  honest-services counts, an illegal gratuity count, and aconspiracy count. Ring was sentenced to twenty months’ incarceration, but the district court, observing that his case “presented challenging and novel questions of law,” stayed that sentence pending appeal.

A White House #protester can pursue her #lawsuit against the Secret Service agents that tried to shut her up, a federal judge has ruled.

In a First Amendment-friendly 19-page decision, U.S. District Judge James E. Boasberg kept alive the suit filed by Pennsylvania resident and long-distance walker Debra L. Hartley. Boasberg, rejecting Justice Department requests to dismiss the suit, concluded Hartley just might have a case.

Here's what happened, largely in Boasberg's words:

On July 20, 2009, following a 225-mile trek from her home,  Hartley arrived in Washington seeking to meet with Michelle Obama to express her concerns about sex discrimination in law enforcement. Standing on the sidewalk in front of the White House and wearing a vest bearing the words “Walking to the White House,” Hartley was confronted by two uniformed Secret Service officers, one of them named Wilfert.

Wilfert informed Hartley that if she remained, she would be required to provide background data, including her name, date of birth, and Social Security number, as well as to fill out a card and submit to questions. He advised her to leave, rather than be added to the Secret Service list and be “considered one of the crazies who protest in front of the White House.” Intimidated, Hartley left.

Hartley subsequently sued, alleging a violation of her free-speech rights. Though not rendering a final decision, Boasberg concluded Hartley has made enough of an argument to continue; the judge noted:

"Hartley was not threatened with arrest here if she continued speaking. Wilfert’s words, however, sought to intimidate her and to deter her from speaking – the same effect as a threat of arrest."

#Pot advocates have lost an effort to force #DEA authorities to reconsider how marijuana is classified.

In a 28-page majority opinion, a three-judge panel of the D.C. Circuit Court of Appeals rejected the pleas made by Americans for Safe Access and disabled veteran Michael Krawitz. The pot advocates claim that numerous peer-reviewed scientific studies demonstrate that marijuana is effective in treating various medical conditions, but the DEA ignores them to keep marijuana tightly regulated as a Schedule I drug.

Here's how the majority decision, authored by Judge Harry T. Edwards, teed up the issue:

"The question before the court is not whether marijuana could have some medical benefits. Rather, the limited question that we address is whether the DEA’s decision declining to initiate proceedings to reschedule marijuana under the (Controlled Substances Act) was arbitrary and capricious."

Judge Karen LeCraft Henderson wrote a lively dissent, arguing the pot plaintiffs lacked standing.

To be reclassified, the DEA would have to concluded that pot has a  “currently accepted medical use.” The DEA’s regulations define “currently accepted medical use” to require, among other things, “adequate and well-controlled studies proving efficacy.” 

Concluding that "something more than 'peer-reviewed' studies is required to satisfy DEA’s
standard, and for good reason," Edward stated.The court concluded:

"The DEA’s construction of its regulation is eminently reasonable. Therefore, we are obliged to defer to the agency’s interpretation of 'adequate and well-controlled studies.'"

 

Former #Marine #judge advocate Michael Mori has won a second shot at the promotion he says he was unfairly denied, in an extraordinary turn to an extraordinary career.

At one point, military authorities gained access to Mori's personnel records while he was serving as a trial judge, discovered his wife was 17 years old when they married and then used this information to force him off a case. And that weird twist, which is soon going to captivate a top military appeals court and has been well covered by the military law blog CAAFlog, doesn't even have anything to do with the dispute ruled upon Friday.

The ruling Friday centers around work Mori did for former Guantanamo Bay detainee David Hicks.

In a 13-page decision Friday, U.S. District Judge Richard J. Leon ordered the Navy to convene a Special Selection Board that will examine Mori's case for promotion from lieutenant colonel to colonel. Put simply, Mori  believes his zealous defense of Hicks, an Australian accused of supporting terrorism, cost him promotions through the Marine Corps.

Mori is now retired from the service. In his complaint, he argues the Marine Corps' promotion selection boards were stacked with officers biased against him. The Navy rejected his multiple requests for reconsideration by a Special Selection Board.

In the Friday ruling, Judge Leon called the Navy's decision-making "arbitrary and capricious."

"It is not the substance of the plaintiff's request that creates an issue here," Leon wrote. "Rather, it is the Secretary's inadequate explanation of the process by which he reached his decision."

Mori, meanwhile, is in the middle of a separate case to be heard by the U.S. Court of Appeals for the Armed Forces. This separate case involves allegations of unlawful command influence; check this out from one of the briefs; the military judge being discussed is Mori:

"After losing a motion to define a minor--for purposes of child pornography--as eighteen-years-old, the Government sought recusal of the military judge. The Government’s basis for recusal was that, ten years prior to the court-martial, the military judge married a woman when she was seventeen. It gleaned this information from page 3270 of the military judge’s personnel record, which it accessed without his knowledge. The Government then called the circuit military judge to tell him about his subordinate’s ruling, the idea that the military judge was biased, and the imminent challenge for cause."

Ouch. A #judge destroys #Justice Dept. lawyering in a U.S. Court of Federal Claims case, starting with an extended quotation from Alice in Wonderland and ending with a stern admonition for the government to "return to reality."

Suits & Sentences repeats for emphasis: Ouch. Or, perhaps that should be: Yikes!

In an entertainingly brutal 23-page decision, Court of Claims Judge Frances Allegra sides with Laboratory Corporation of America's claim against the Department of Veterans Affair. In substance, the dispute seems like a pretty routine contract clash: the company protests VA's refusal to accept its quotation for a blanket purchase agreement, while the agency says the company bid arrived late.

The substantative details are spelled out in the opinion. But let's cut straight to the judge's assessment of the government's arguments. Among Judge Allegra's observations:

"Defendant, regrettably, has injected an Alice-in-Wonderland quality into this preaward bid protest case... in arguments worthy of the Mad Hatter."

and

"Fortunately, unlike the Mad Hatter’s unsolvable riddle for Alice ('Why is a raven like a writing desk?'), the solution to defendant’s contorted arguments is readily found in the Federal Acquisition Regulations and binding precedent."

and

"Unlike someone on good terms with the Mad Hatter’s Time, the officials at the VA could not whisper a hint to Time and make the clock on this procurement go round, in a twinkling, to a time different than that listed in the solicitation. There is nothing on this side of the looking glass to support the VA’s rejection of plaintiff’s offer. It is time, via an injunction, for defendant to return to reality."

A #judge has agreed that Top #Secret evidence against a Guantanamo Bay detainee can be kept from defense attorneys.

In a 13-page decision, U.S. District Judge Rosemary Collyer rejected the pleas of Wali Mohammed Morafa, an Afghan citizen. Specifically, Morafa's attorneys won't learn of the source of the information used against their client.

The U.S. government alleges Morafa used the cover of  money-changing activities to provide financial services support to the operations of the Taliban and other terrorist organizations. Many complicated legal proceedings have ensued, during which time Morafa's attorneys have held Secret clearances.

And here's the dilemma, as summed up by Judge Collyer:

"There is no adequate substitute available for certain relevant and material source-related information, classified at the Top Secret level. Accordingly, although the Court has reviewed that information in camera, Mr. Morafa’s counsel is unable to review it. Mr. Morafa objects to this outcome, arguing that the unavailability of such evidence to counsel must both preclude Respondents from relying on it to support his detention and preclude the Court from considering it in ruling on his habeas petition."

Prosecutors, Collyer noted, argued the source information was "much too highly sensitive" to be dislosed to Morafa's attorneys. The judge agreed, saying:

"Especially where, as here, a Guantánamo prisoner has access to the substance of the information provided by such sources, the Court recognizes the strong national security interest in protection of the identity of those sources."

But note this: In a potentially intriguing articulation of the necessity of judicial oversight, Collywer  makes a point of noting that "Top Secret information of the kind at issue here must be available to the neutral decisionmaker even if not disclosed to Mr. Morafa’s counsel."

#Judge Royce Lamberth displays both clarity and sympathy in his latest ruling, demonstrating once again why he's a Suits & Sentences favorite.

In a 64-page decision, Lamberth dismissed most of a case brought by a grieving Washington, D.C . woman whose 16-year-old daughter was slain by thugs in a 2010 drive-by shooting. The mother, Nardyne Jefferies, says her daughter Brishell Jones died as a consequence of inactions by a variety of state and federal agencies and officials.

Observe, here, how Lamberth writes with commendable simplicity and directness, offering sympathy that somehow feels at least a little better than the cold comfort provided by the typical nostrums.

"Plaintiff is obviously heartbroken over the tragic death of her only daughter. She feels like her daughter’s death was preventable, and that the District could have and should have done more. She wants to see changes made to a system that, she feels, fails to protect vulnerable communities. Her frustration is understandable."

And observe, as well, how the judge manages to combine both genuine sympathy with a rigorous line of reasoning:

"When presented with heartbreaking facts such as these—an innocent bystander stuck down in her youth, by remorseless thugs pursuing a trifling vendetta—a jury might be overcome with emotion and look for someone to hold financially accountable. But police officers cannot prevent every crime. By the very nature of their jobs, often there will be dire consequences when officers choose, what was in hindsight, the “wrong” path.

Police officers make quick, delicate decisions; to function, they cannot have every choice scrutinized. To prevent the threat of liability from crippling police and emergency services, the public duty doctrine creates a very high bar for suing the government for negligence. If the Court held that the District could be civilly liable for damages in this case, it could create some perverse incentives and interfere with the effective policing of the District."