CourtSide: September 2009 Archives
CourtSide - The FindLaw Breaking Legal News Blog

September 2009 Archives

Dope Smugglers Caught Napping On 350 Lbs of Pot

Smuggling pot is a risky venture. Sleeping on top of the 353 pounds of marijuana that drug traffickers tasked you with bringing across the U.S.-Mexico border only increases that risk.

Just ask Luis Alberto Pesina-Hernandez and Jesus Vela-Rodriguez, the two men nabbed by U.S. Customs and Border Protection agents early Saturday morning near the Brownsville, Texas Landfill a few kilometers from the border.

No, this is not an episode from Weeds,...yet.

The 2nd Circuit Declares Global Warming a Nuisance

Last week, the 2nd Circuit Court of Appeals handed down a decision that promises to alter the environmental law landscape. 

In the decision, the court determined that plaintiffs could sue a power generator under federal nuisance law for releasing greenhouse gases that contribute to global warming.  In making its ruling, the 2nd circuit overturned the district court, which had declined to hear the case after it held that the claims presented non-justiciable political questions.

Ex-Yankee Chuck Knoblauch Charged With Choking Wife

Chuck Knoblauch (inset), the ex-New York Yankees second baseman, was arrested by Houston police on Friday night on felony domestic violence charges accusing him of assaulting his wife Stacey by choking her, causing "redness around her neck and swelling near her eye."

The couple, who have a 5-year-old son together, are in the midst of divorce proceedings.

You can read Knoblauch's arrest report and criminal charges below.

Supreme Slackers?

Is the Supreme Court getting lazy?

Adam Liptak explores the Supreme Court's Incredible Shrinking Docket in a column in the New York Times today, and lists some of the theories that have been bandied about to explain the sharp drop in the number of cases that the Court hears each term.

In the early '80's, the Court heard over 150 cases each term; now it decides around half that amount.

'Jimmy' King Pleads Guilty in NJ Public Corruption Scandal

James "Jimmy" King, the 67-year-old former executive director of the Jersey City Parking Authority, unsuccessful candidate for Jersey City Council, and head of the 'Jimmy King Civic Association', pleaded guilty to federal criminal charges yesterday for his role in the feds' corruption sting charges against New Jersey officials this summer. You can read King's plea agreement below.

The ex-lawman -- King was once an undersheriff for Hudson County, NJ -- was recorded accepting thousands of dollars in bribes, included $5,000 in cash from the trunk of the government's cooperating witness, convicted bank fraudster Solomon Dwek (inset, left).

Justice Ginsburg Hospitalized Overnight, but Already Back at Work Today

It must have been a scary afternoon at One First Street yesterday.

Ruth Bader Ginsburg, the 76 year-old justice who had surgery for pancreatic cancer earlier this year, reported feeling faint after a treatment for anemia and was taken to Washington Hospital Center.

(U.S. Ct. of Appeals, 4th Cir., Sept. 24, 2009) - A federal appeals court in Virginia overturned a U.S. district court's award of $8 million in compensatory damages and $2.1 million in punitive damages in a lawsuit filed by the father of Lance Cpl. Matthew Snyder against a hate-speech prone preacher and his church for protesting against gays in the military near the deceased soldier's funeral.

Why did the court overturn the verdict for Albert Snyder, Matthew's father, against Fred W. Phelps and his Kansas-based Westboro Baptist Church?

Hollywood Couple Sues Blog Over Non-Sex Tape

Ah, there's nothing I love more than gossip blogs, celebrity sex tapes and lawsuits, especially when they're all wrapped up in one neat, tidy package.

That's exactly what I got with the news that Eric Dane and Rebecca Gayheart filed a $1m lawsuit yesterday against Gawker Media - the company that runs gawker.com and a number of other blogs - in the federal district court for Los Angeles. 

Najibullah Zazi conspired with other terror suspects to used weapons of mass destruction (WMD) and detonate improvised explosive devices (IEDs) in the United States, according to an indictment and related court filing.

The Afghan native and legal U.S. resident was arrested last weekend after having been found with notes on his computer about how to make explosive Triacetone Triperoxide ('TATP') using "hydrogen peroxide, acetone, and a strong acid (such as hydrochloric acid." Two of these ingredients, according to the notes, could be found in a hair salon.

So when federal agents subsequently learned that Zazi bought "unusually large quantities of hydrogen peroxide and acetone products from beauty supply stores in the Denver" area, they apparently weren't thinking that the 24-year-old airport shuttle driver was intent on becoming a hairstylist like in the Zohan's footsteps.

Lowe's Workers' Overtime Case Settled for $29.5M

A California court approved a $29.5 million class-action settlement agreement (see below) between workers at Lowes Home Improvement stores and the company in a lawsuit that charged the company required employees to work "off the clock" -- i.e., without being paid -- before and after their normal shifts.

Lowe's denied all the allegations in the overtime lawsuit, and the settlement agreement states that the lawsuit's resolution "is neither a concession nor and admission" of any wrongdoing alleged by the workers in their overtime lawsuit.

In a pair of simultaneous deliberations occurring in Washington D.C. this week, the Justice Department is attempting to shape how many of its secrets are revealed to the public, and how much of the public's secrets it can collect.

the DoJ has announced a new process for determining whether or not to assert the state secrets privilege, and a established new set of guidelines and standards it will employ when it does decide to make a state secrets claim.  In a statement, Attorney General Eric Holder said that the goal of the new standards is to ensure that the government claims the state secrets privilege "only when necessary and in the narrowest way possible."
The Obama Administration caught a break from two courts yesterday, both of which decided to give the president more time to figure out how he wants to proceed with trials of Guantanamo Bay detainees.

The trial by Military Commission of five high-profile detainees accused of responsibility for the 9/11 attacks, including alleged mastermind Khalid Sheikh Mohammed, was to begin soon.  Two of those men, however, had filed broad constitutional challenges to the military court system at Gitmo in domestic federal courts. 

Plaxico Burress Goes Directly to Jail for 2-Year N.Y. Prison Sentence

Plaxico Burress, the ex-N.Y. Giants wide receiver who pleaded guilty to weapons charges after a grand jury indicted him on gun possession and reckless endangerment charges in August.

Burress entered Manhattan Criminal Court carrying his 3-year-old son Elijah, with his wife Tiffany and criminal defense lawyer Benjamin Brafman at his side.

Plaintiffs' Lawyer Groups Join Forces to Lick Iqbal

During its last term, the US Supreme Court issued an important ruling in a terrorism case, Ashcroft v. Iqbal, that ended a Pakistani man's civil suit against former Attorney General John Ashcroft and former FBI Director Robert Mueller because the plaintiff had not made sufficiently detailed allegations in his complaint.

The language of the opinion did not limit itself to civil terrorism suits, however, and essentially changed the rules for civil pleadings in federal court.  Building on what the Court had already done in Bell Atlantic v. Twombly, Justice Kennedy wrote that Federal Rule of Civil Procedure 8, which sets out the rules for federal civil pleadings, required "more than an unadorned, the-defendant-unlawfully-harmed-me accusation."

Explosive Terror-Related Charges Allege Lies, Bomb-Making Guide

Terror-related charges filed over the weekend against three Afghan-born legal U.S. residents allege that 24-year-old Najibullah Zazi had "nine-pages of photographs with handwritten notes" with detailed information on how to make, handle, and detonate explosives, and that his father Mohammed Wali Zazi, and New York City Imam Ahmad Wais Afzali allegedly lied to federal agents investigating the 24-year-old Zazi's possible terrorism connections.

According to allegations in the FBI affidavit filed in support of his arrest, the young Zazi had traveled to Peshawar, Pakistan at least twice during the last two years, and was overheard in a wiretapped conversation with Afzali discussing potential "evidence" in his rental car. Law enforcement officials reportedly suspect that Zazi underwent al Qaeda training while in Pakistan's northwestern tribal areas.

Microsoft's Malvertising Lawsuits Try to Find Hackers

Microsoft announced yesterday that it filed five (5) lawsuits (shown below) in Washington State court to try and learn the identities of people who used the company's adManager service to distribute malicious online advertising, better known as 'malvertising.'

According to Tim Cranton, Microsoft's Associate General Counsel, the malvertising operated under the business names of "Soft Solutions," "Direct Ad," "qiweroqw.com," "ITmeter INC." and "ote2008.info."

Lawyers Ask Supreme Court to Stop Second Attempt to Execute Ohio Man

The State of Ohio tried to execute Romell Broom, convicted of the brutal 1984 rape and murder of a 14 year-old girl, on Tuesday, but had to call off the procedure after technicians attempting to administer the lethal cocktail of drugs couldn't find a suitable vein.

Now, Broom's attorneys have filed an application with the US Supreme Court asking the Court to review an earlier denial of Broom's application to join an ongoing federal lawsuit challenging Ohio's lethal injection procedure.

Broom's lawyers also stated that they plan to file state and federal appeals in which they will argue that the second execution attempt violates their client's civil rights. 

Jury Acquits Kentucky Football Coach of Criminal Charges

High school football coaches around the country are probably cheering tonight after a Kentucky jury acquitted Jason Stimson of the reckless homicide and wanton endangerment he was charged with in the death of a 15-year-old sophomore whom he had run sprints on a hot day of football practice in August 2008.

The larger question, however, is what -- if anything -- coaches and players will learn from the tragedy and its aftermath.

Federal Judge Resigns, Says He Needs More Money

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U.S. District Judge Stephen G. Larson has announced that he's stepping down from the federal bench because he's not making enough money to support his family, which includes seven children all under the age of 18.

Larson's announcement on Tuesday that he would leave his seat in the Central District of California has reignited the ongoing debate on judicial salaries and their effect (or lack of effect) on the federal judiciary. 

Chief Justice John Roberts of the US Supreme Court stated in 2006 that the low judicial salaries have "now reached a level of constitutional crisis." 
Are you reading this at work?  If so, odds are you don't work for the California state courts, the nation's largest court system.

Except for a few workers who are being kept on for emergency situations, the California state courts were closed today for the first of ten furlough days imposed in order to make up for cuts in the court system's budget.  

Kevin Alderman (inset, right), a virtual world entrepreneur whom Wired called 'Second Life's Porn Mogul,' filed a copyright and trademark infringement suit against Second Life's corporate owner, Linden Research, commonly known as Linden Labs.  The suit charges that the company profits from the counterfeit sales by others of his company's products, and that it doesn't effectively monitor and police infringers from selling counterfeit virtual goods on the site. Shannon Grei (below), a real-world proprietor of virtual world clothing for Second Life characters, is a co-plaintiff in the suit

Eros, LLC, Alderman's company, makes millions selling virtual reality sex beds and other adult-themed products under the trademarked 'SexGen®' name on Second Life.

If you think sex only sells in the real world, think again.  Second Life users apparently can't get enough virtual foreplay and action in their lives.  The lawsuit claims that "Eros counts over 100,000 active Second Life users as customers."  Co-plaintiff Grei claims to have "sold hundreds of thousands of her Nomine products within Second Life."

President Obama gave a speech marking the one-year anniversary of the Lehman Bros. collapse in Lower Manhattan today and expressed his desire for stricter regulation of the financial industry. 

Just up Broadway Ave., at the District Court for the Southern District of New York, however, Judge Jed Rakoff rejected a proposed settlement agreement between the Securities and Exchange Commission and Bank of America, and upbraided the SEC for its "cynical" handling of the case. 

Lawsuit Against Annie Leibovitz Being Settled; Terms Unclear

The lawsuit over a $24 million loan filed by Art Capital Group against acclaimed photographer Annie Leibovitz has been settled, according to a statement from spokespeople ACG and Leibovitz.

But answers regarding the exact terms of the settlement remain unclear.

Did He Doo-Doo That? How to Get Your Bail Revoked

A 25-year-old Maine man indicted on federal charges for selling a stolen tractor on eBay appears to have been busy while free on bail. Instead of "doing time," perhaps Matthew Theriault was thinking about someone else doo-doo'ing time while he was getting preparing to defend his upcoming tractor scam trial.

U.S. Marshalls took Theriault back into custody last week after new allegations surfaced (see below) that -- while out on bail -- he allegedly threw poo-poo into the SUV of one of his father's tenants.

Imagine that you're a judge who was threatened by a litigant in one of your cases.  Faster than you could hit your gavel to the bench, I'm guessing that you'd pick up the phone and call some law enforcement folks to investigate things.

But if the person who threatened you, or your judicial colleagues, was prosecuted in your court, do you think they would get a fair trial?

A federal judge in Chicago doesn't think so.

Supreme Court Has a Day of Firsts During a Rare Special Session

Numerologists attribute special meaning to today's date, 09/09/09, but differ on just what exactly that meaning is. 

The Chinese, for example, consider the number 9 to be the second luckiest number in their numerology, bested only by the number 8.  The past two years, therefore, have had two very auspicious days for the Chinese: 08/08/08 last year, and 09/09/09 this year.

The Japanese, on the other hand, consider 9 to be the second most unlucky number, so today will probably go uncelebrated on the Japanese archipelago. 

Whatever your thoughts on the numerological significance of today's date, however, it is definitely an historic day for the Supreme Court. 

Annie Leibovitz and Lender Focus on Legal Negotiations

After yesterday's original deadline passed for acclaimed photographer Annie Leibovitz to repay the $24 million loan she obtained last year, she and lender Art Capital Group are reportedly in negotiations to resolve the legal dispute.

Legal Lens on Annie Leibovitz Loan Due Today

Renowned photographer Annie Leibovitz has her legal close-up today when a $24 million loan that she secured in 2008 from Art Capital Group, Inc. ('ACG') and its afilliate, American Photography, LLC is due to be repaid.

It doesn't appear that this is the kind of focus that Leibovitz needs right now.

But according to ACG's lawsuit against Leibovitz (see below), the photographer's own "dire financial condition" is responsible for the legal scrutiny that she has brought upon herself.  The suit alleges that she had "sophisticated counsel" to help her negotiate and understand the agreement.

Now, her lender wants a court order allowing it to be Leibovitz' "exclusive sales agent" for her artwork and real estate holdings,

Court: NYC Violated Rights of Mentally Ill under the ADA

New York City violated the Americans with Disabilities Act's integration mandate that requires the city to help people with mental illness "receive services in the most integrated setting appropriate to their needs,"

After an 18-day trial and six years of litigation, the court issued a 210-page opinion, finding that the State's for-profit licensed homes for mentally ill patients:

"have a motive to be unhelpful to residents seeking to move: the Adult Homes are for-profit enterprises that lose revenue with each resident who secures alternative housing."

What does the ADA's 'Integration mandate' say, and how are people with mental illness helped, in this case, by the ADA's provisions?

A federal judge in Kentucky sentenced Steven D. Green, an ex-U.S. soldier, to five (5) life terms in prison today for raping and murdering a 14-year-old girl, and murdering her 6-year-old sister, father, and mother when he was stationed in Iraq near the village of al-Mahmudiyah (see map).


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Steven D. Green, a former PFC with the U.S. Army's 101st Airborne Division in Ft. Campbell, Kentucky, was convicted of these charges on May 7, 2009 after a jury trial.

Daddy Not-So-Dearest Pleads Guilty to Fraud, Kidnapping Kids

David Matusiewicz, a divorced Delaware optometrist, pleaded guilty today to federal bank fraud and kidnapping charges.

Since his crime spree reads like a television drama, it should be no surprise that he was profiled on America's Most Wanted

In 2007, Matusiewicz told his ex-wife that he was taking their 3 young daughters to Disney World in Florida. Instead, he fled with them to Central America via Mexico, taking his elderly mother along for the ride in a 33-foot mobile home.

That's not all.

S.E.C. Report on Madoff Suggests Agency Was Asleep at the Wheel

Most of the time, 10-Ks, 10-Qs, and annual reports can be pretty dull stuff. At least that's what a new SEC Inspector General's report on why the agency failed to 'discover' Madoff's Ponzi scheme suggests.

But every once in a while, the seemingly dry and monotonous business of regulating financial trading and securities enforcement comes alive. 

Like when S.E.C. officials failed discover Madoff's securities fraud and criminal wrongdoing despite a host of formal complaints made between 1992 and 2008.

Has the Stevens Retirement Watch Begun?

US Supreme Court Justice John Paul Stevens has had a good run so far.

At 89, he's currently the second-oldest person to serve on the Court (behind Oliver Wendell Holmes), and his more than 33 years on the court places him seventh on the list of the longest-serving justices.

So, after all that, is Stevens, a key member of the Court's liberal wing, thinking of hanging up his gavel and robe?

Pharmaceutical giant Pfizer, Inc., and its drug subsidiary Pharmacia & Upjohn Company, Inc. are paying $2.3 billion to settle the largest criminal and civil health care fraud action ever brought by the U.S. Department of Justice.

According the DOJ, six whistleblowers ('relators' in legalese) who filed qui tam lawsuits under the False Claims Act will collectively receive more than $102 million for their roles in uncovering fraud and "off-label" use of Pfizer drugs that were not approved by the FDA.

Which former Pfizer employees will reap millions for helping expose the company's illegal practices?

Fast and Furious: Ex-Ontario A.G. Charged With Killing Cyclist

Michael Bryant, former Attorney General for the province of Ontario, Canada, was charged with criminally negligent homicide, and dangerous operation of a motor vehicle causing death in a deadly road-rage incident that killed Toronto bicycle courier Darcy Allan Sheppard.

The incident occurred Monday evening on Bloor Street in Toronto's posh Yorkville neighborhood, just blocks away from the Ontario Legislative Assembly, in the heart of the Canadian city's hotel district.

But here's the real kicker: when Bryant was Ontario Attorney General, he was an outspoken opponent of illegal street racing, arguing that "[t]he damage that these vehicles can cause can sometimes be catastrophic."

Shonya Michelle Young, a 38 year-old suspect accused of being part of a nationwide identity theft ring that successfully preyed upon unsuspecting victims, including Anna Bernanke, the wife of U.S. Federal Reserve Chairman Ben Bernanke, was arrested in Miami while trying to procure a fix over the phone from her heroin dealer.

Criminal charges and a U.S. Postal Service inspector's affidavit filed in June allege that Young traveled around the country to assist the ID theft ring by making 'split deposit transactions':

We have the wolf by the ears, and we can neither hold him, nor safely let him go. Justice is in one scale, and self-preservation in the other.
-- Thomas Jefferson

In addition to being an inventor, philosopher, author of the Declaration of Independence, and President of the United States (as well as, let's be honest, a salacious slave-owner), it turns out that Thomas Jefferson was rather prescient when it came to environmental litigation.

The words that Jefferson wrote two hundred years ago neatly summarize a lawsuit challenging the removal of the Rocky Mountain gray wolf from the endangered species list currently pending before District Court Judge Donald Molloy of the District of Montana.