Old Judges Don't Just Fade Away, They Loose Their Appeal.

U.S. District Court Judge Pleads Guilty to Obstruction of Justice
WASHINGTON – U.S. District Judge Samuel B. Kent pleaded guilty today to obstruction of justice in federal court in Houston, Acting Assistant Attorney General Rita M. Glavin and Andrew R. Bland III, Special Agent in Charge of the FBI’s Houston office announced.

Kent, 59, a district judge in the Southern District of Texas, pleaded guilty to making false statements to a special investigative committee of the U.S. Court of Appeals for the Fifth Circuit during an investigation of a judicial misconduct complaint filed against him. Kent’s guilty plea was accepted by the Hon. Roger Vinson, Senior U.S. District Judge for the Northern District of Florida, who was sitting by designation in the Southern District of Texas.

A grand jury in the Southern District of Texas indicted Kent in August 2008 on two counts of abusive sexual contact and one count of attempted aggravated sexual abuse for his alleged repeated assaults on an employee of the Office of the Clerk of Court, identified as Person A. In January 2009, the grand jury returned a superseding indictment against Kent, maintaining the original charges and adding one count each of abusive sexual contact and aggravated sexual abuse for Kent’s alleged repeated assaults on another U.S. District Court employee, identified as Person B. The January 2009 superseding indictment also added one count of obstruction of justice, alleging Kent obstructed an investigation into a misconduct complaint filed by Person A.

As part of his plea, Kent admitted that in both 2003 and 2007, he engaged in non-consensual sexual contact with Person A. He also admitted that he engaged in non-consensual contact with Person B from 2004 through at least 2005. According to court documents, when Person A filed a misconduct complaint against Kent, the Fifth Circuit appointed a committee to investigate whether Kent had engaged in unwanted sexual contact with Person A or any other individuals. Kent admitted that when he appeared before the committee in June 2007, he falsely testified about his conduct with Person B.

Sentencing is scheduled for May 11, 2009.

The case is being prosecuted by Senior Deputy Chief Peter J. Ainsworth and Trial Attorneys John P. Pearson and AnnaLou T. Tirol of the Criminal Division’s Public Integrity Section, which is headed by Section Chief William M. Welch II. The case was investigated by the FBI.
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(ABA Journal. 23 Feb 2009)
U.S. District Judge Samuel Kent has pleaded guilty to obstruction of justice in a plea deal that avoids a trial scheduled to begin today.

The plea resolves five other charges of aggravated sexual abuse based on allegations Kent fondled two court employees, the Houston Chronicle reports. The obstruction charge is based on accusations Kent lied in a court internal probe of sexual abuse allegations. The government is seeking a three-year prison term when Kent is sentenced on May 11, although the charge carries a maximum of 20 years in prison, Texas Lawyer reports.

Kent’s lawyer, Dick DeGuerin, says his client intends to retire from the bench, the Texas Lawyer story says.

DeGuerin said last week that his client’s contact with the women was consensual, and he was merely trying to protect one of the women when he lied in the court investigation.

Kent usually speaks loudly and clearly, but he nearly whispered his guilty plea today, the Chronicle says.

After the court hearing, DeGuerin read a statement to reporters, according to the Chronicle report. "A trial would have been long, embarrassing and difficult for all involved,'' he said.

Legal experts have said prosecutors upped the ante when they charged Kent under a section of the obstruction law that was strengthened after the collapse of Enron. "It's the Martha Stewart case," said New York University law professor Stephen Gillers in an interview with the Houston Chronicle last month. "You can prove obstruction sometimes even when there is no underlying crime

Big Brother Tracks Your Every Move.

Is this useful information, or a waste of time?

The oversize white envelope bore the blue logo of the Department of
Homeland Security. Inside, I found 20 photocopies of the government's
records on my international travels. Every overseas trip I've taken
since 2001 was noted.

I had requested the files after I had heard that the government tracks
"passenger activity." Starting in the mid-1990s, many airlines handed
over passenger records. Since 2002, the government has mandated that
the commercial airlines deliver this information routinely and
electronically.

A passenger record typically includes the name of the person
traveling, the name of the person who submitted the information while
arranging the trip, and details about how the ticket was bought,
according to documents published by the Department of Homeland
Security. Records are made for citizens and non-citizens who cross our
borders. An agent from U.S. Customs and Border Protection can generate
a travel history for any traveler with a few keystrokes on a computer.
Officials use the information to prevent terrorism, acts of organized
crime, and other illegal activity.

I had been curious about what's in my travel dossier, so I made a
Freedom of Information Act (FOIA) request for a copy.

My biggest surprise was that the Internet Protocol (I.P.) address of
the computer used to buy my tickets via a Web agency was noted. On the
first document image posted here, I've circled in red the I.P. address
of the computer used to buy my pair of airline tickets.

(An I.P. address is assigned to every computer on the Internet. Each
time that computer sends an e-mail—or is used to make a purchase via a
Web browser — it has to reveal its I.P. address, which tells its
geographic location.)

The rest of my file contained details about my ticketed itineraries,
the amount I paid for tickets, and the airports I passed through
overseas. My credit card number was not listed, nor were any hotels
I've visited. In two cases, the basic identifying information about my
traveling companion (whose ticket was part of the same purchase as
mine) was included in the file. Perhaps that information was included
by mistake.

Some sections of my documents were blacked out by an official.
Presumably, this information contains material that is classified
because it would reveal the inner workings of law enforcement.

Here's the lowdown on the records.

The commercial airlines send these passenger records to Customs and
Border Protection, an agency within the Department of Homeland
Security. Computers match the information with the databases of
federal departments, such as Treasury, Agriculture, and Homeland
Security. Computers uncover links between known and previously
unidentified terrorists or terrorist suspects, as well as suspicious
or irregular travel patterns. Some of this information comes from
foreign governments and law enforcement agencies. The data is also
crosschecked with American state and local law enforcement agencies,
which are tracking persons who have warrants out for their arrest or
who are under restraining orders. The data is used not only to fight
terrorism but also to prevent and combat acts of organized crime and
other illegal activity.

Officials use the information to help decide if a passenger needs to
have additional screening. Case in point: After overseas trips, I've
stood in lines at U.S. border checkpoints and had my passport swiped
and my electronic file examined. A few times, something in my record
has prompted officers to pull me over to a side room, where I have
been asked additional questions. Sometimes I've had to clarify a
missing middle initial. Other times, I have been referred to a
secondary examination. (I've blogged about this before.)

When did this electronic data collection start? In 1999, U.S. Customs
and Border Protection (then known as the U.S. Customs Service) began
receiving passenger identification information electronically from
certain air carriers on a voluntary basis, though some paper records
were shared prior to that. A mandatory, automated program began about
6 years ago. Congress funds this Automated Targeting System's
Passenger Screening Program to the tune of about $30 million a year.

How safe is your information? Regulations prohibit officials from
sharing the records of any traveler — or the government's risk
assessment of any traveler — with airlines or private companies. A
record is kept for 15 years—unless it is linked to an investigation,
in which case it can be kept indefinitely. Agency computers do not
encrypt the data, but officials insist that other measures — both
physical and electronic — safeguard our records.

I wonder if the government's data collecting is relevant and necessary
to accomplish the agency's purpose in protecting our borders. The
volume of data collected, and the rate at which the records is growing
and being shared with officials nationwide, suggests that the
potential for misuse could soar out of hand. Others may wonder if the
efforts are effective. For instance, I asked security expert Bruce
Schneier Schneider about the Feds' efforts to track passenger
activity, and he responded by e-mail:

"I think it's a waste of time. There's this myth that we can pick
terrorists out of the crowd if we only knew more information."

On the other hand, some people may find it reassuring that the
government is using technology to keep our borders safe.

Oh, one more thing: Are your records worth seeing? Maybe not, unless
you've been experiencing a problem crossing our nation's borders. For
one thing, the records are a bit dull. In my file, for instance,
officials had blacked out the (presumably) most fascinating parts,
which were about how officials assessed my risk profile. What's more,
the records are mainly limited to information that airline and
passport control officials have collected, so you probably won't be
surprised by anything you read in them. Lastly, there may be a cost.
While there was no charge to me when I requested my records, you might
charged a fee of up to $50 if there is difficulty in obtaining your
records. Of course, there's a cost to taxpayers and to our nation's
security resources whenever a request is filed, too.

However, if you are being detained at the border or if you suspect a
problem with your records, then by all means request a copy. U.S.
Customs and Border Protection is required by law to make your records
available to you, with some exceptions. Your request must be made in
writing on paper and be signed by you. Ask to see the "information
relating to me in the Automated Targeting System." Say that your
request is "made pursuant to the Freedom of Information Act, as
amended (5 U.S.C. 552)." Add that you wish to have a copy of your
records made and mailed to you without first inspecting them. Your
letter should, obviously, give reasonably sufficient detail to enable
an official to find your record. So supply your passport number and
mailing address. Put a date on your letter and make a copy for your
own records. On your envelope, you should conspicuously print the
words "FOIA Request." It should be addressed to "Freedom of
Information Act Request," U.S. Customs Service, 1300 Pennsylvania
Avenue, NW., Washington, DC 20229. Be patient. I had wait for up to a
year to receive a copy of my records. Then if you believe there's an
error in your record, ask for a correction by writing a letter to the
Customer Satisfaction Unit, Office of Field Operations, U.S. Customs
and Border Protection, Room 5.5C, 1300 Pennsylvania Avenue, N.W.,
Washington, D.C. 20229
(By Sean O'Neill (AP))

Fed Court Of Claims Shoots Down Autism Claim.

Yates Hazlehurst celebrated his 9th birthday Wednesday. On Thursday, 12 Feb 2009 the U.S. Court of Federal Claims ruled against his parents' claim that the vaccinations Yates received within his first year of life caused his gastrointestinal condition and his autism.

It wasn't the birthday present his parents, Rolf and Angela Hazlehurst of Jackson, hoped for. He was diagnosed with autism at age 3.



The judges said the evidence in three autism test cases before the court was not only contrary to the parents' claims, but also that there were years of science that found no risk.


The evidence "is weak, contradictory and unpersuasive," concluded Special Master Denise Vowell, who ruled in the Snyder case, one of the three. "Sadly, the petitioners in this litigation have been the victims of bad science conducted to support litigation rather than to advance medical and scientific understanding" of autism.


The Hazlehursts' case is one of a trio of test cases that represent thousands of similar claims. Thursday's ruling has major implications - reassuring parents scared about vaccinating their babies.


Dr. Paul Offit, an infectious disease expert at the Children's Hospital of Philadelphia and developer of a rotavirus vaccine, said, "A choice not to get a vaccine is not a risk-free choice," pointing to recent outbreaks of vaccine-preventable diseases.


The Jackson parents' case, Hazlehurst v. Secretary of Health and Human Services, was chosen as the second test case in the joint proceeding known as the Omnibus Autism Proceeding, or OAP. The other cases heard were Cedillo v. Secretary of Health and Human Services and Snyder v. Secretary of Health and Human Services.

From Oct. 15-18, 2007, the Hazlehursts testified in the U.S. Court of Federal Claims in Charlotte, N.C.

More than 5,500 claims have been filed by families seeking compensation through the government's Vaccine Injury Compensation Program, and Thursday's rulings dealt with the first three test cases which argued that a combination of the measles-mumps-rubella vaccine plus other shots triggered autism.


Rolf, a local attorney, is both frustrated and disappointed. "Our attorney, Curtis Webb, who's been handling vaccine claims for 25 years, did an excellent job. We won't let this stop us."


Angela said she'd just pulled into the driveway at their yellow, three-story brick home from a job interview and was feeling very upbeat, "when Rolf said we lost all three cases. I thought he was kidding.


"You have to consider that we've exhausted all our savings, our retirement, our 401(k) paying for Yates' care, so it's very disappointing to us for Yates and his future," she said.


Yates was diagnosed with autism in June 2002, and the Hazlehursts filed their claim in March 2003, when he was 3. The trial began when he was 7.


Angela said they provided early intervention as quickly as he needed it, "but as our resources have dwindled - he really needs an in-home program - more one-on-one." That takes money they don't have.


"Autism is definitely treatable," Rolf added. "Experience shows that the earlier you begin treatment, the better the child will get."


National statistics show that it takes more than $4 million over the life span of an autistic child to raise them and that 80 percent of parents divorce if they have an autistic child, Angela said. They said they couldn't have made it this far without a major support group of parents, relatives, friends and church.

Barbara Loe Fisher, president of the National Vaccine Information Center that questions vaccine safety, said more studies are needed.

"I think it is a mistake to conclude that, because these few test cases were denied compensation, it's been decided vaccines don't play any role in regressive autism," said Fisher.


The court still must rule on additional cases that argue a different link - that vaccines that once carried the mercury-containing preservative thimerosal are to blame, if the mercury reached and damaged brain cells. The court has given no timetable for a ruling.


Angela said the other families need "to find comfort that we're going to fight this. This is just round one. The science is developing.


"It's unfortunate that the government won't perform a test between vaccinated and unvaccinated children," she said.


She pointed out that the Amish, who do not vaccinate their children, have seen autism only in children who've been adopted and vaccinated before becoming part of the Amish community.


Rolf said that so far, the only studies that have been done are on single vaccines. No studies have been performed based on children receiving multiple vaccines.


"And our children receive 40 vaccines by age 2," Angela said.


"We're not giving up and we will continue the appeals process," Rolf said. "I was told in the beginning that Special Master Denise Vowell would never rule against the government."


He explained that the National Childhood Vaccine Injury Act of 1986 was enacted because many lawsuits had been filed for children injured "by the old DPT vaccine. So they came up with a safer version of DPT. And they created the act that I prefer to call the National Vaccine Manufacturers and Administrators Protection Act."

Under this act, there is a three-year statute of limitations, he said, which means only a handful of cases "will survive it. It's a catch-22.

"The statute begins to run when the first symptom is diagnosed, but most won't get a diagnosis until ages 3, 4, 5 or even age 6," He said. "No one gets a diagnosis at the first symptom. Most people have lost before they've even begun the fight."


Keep in mind that the Hazlehursts aren't "anti-vaccine parents," Rolf said. "Yes, we need vaccines. The issue is vaccine safety."


What he wants to tell parents who have children with autism, he said, is "Keep going. Your children depend on you. Take care of yourself. The government is not going to take care of you."


Rolf said he likes to recall the saying of Annie Bell Cole, who helped raise him. "She'd say, 'I may give out, but I won't give up.'


"She's raised five children, and two were special needs. She has inspired me." he said. "We may be 90 years old when this is over, but we won't give up."


The Associated Press contributed to this story.


Visit jacksonsun.com to share your thoughts.

Plot To Kill Obama.

Daniel Cowart, 20 years old from of Bells,TN and 18-year-old Paul Schlesselman, 18 years old of Helena-West Helena, Ark. have been accused of planning to kill the President. They are being held without bail.


MEMPHIS, TN (AP) - A federal judge in Memphis says the two men charged with plotting to kill President Barack Obama can have limited access to court records on the selection of the grand jury that indicted them.


The men - 20-year-old Daniel Cowart of Bells and 18-year-old Paul Schlesselman of Helena-West Helena, Ark. - contend the grand jury had too few white members and failed to represent a cross-section of the judicial district.

Federal prosecutors in West Tennessee say two men charged with threatening President-elect Barack Obama are wasting time with claims they were improperly indicted. The two contend they were indicted by a federal grand jury with too few white people on it and that the charges should be dropped. In a filing on 5 Jan 2009, prosecutors said the men have no legal grounds for their claim and that holding a hearing on their arguments would be a waste of time.


Judge J. Daniel Breen says defense lawyers can review the court's population data and the master list of citizens from which the jury was selected. He says the defense can question procedures for selecting jurors but can't challenge the resulting racial makeup of the actual jury.


Cowart and Schlesselman are charged with conspiring to launch a crime spree against Black victims, including an attack on Obama. They're being held without bond.

TurboTax Told Me I Could Get Away With It.

Timothy Geithner, President Obama's choice to run the U.S. Treasury and spearhead America's recovery from its financial crisis, is well on his way to being confirmed after the Senate Finance Committee voted 18-5 Thursday to forward his nomination to the full Senate.

But the endorsement came only after he underwent embarrassing scrutiny for his failure to pay all of his income taxes in 2001 and 2002 -- a mistake he blamed on, TurboTax, an easy-to-use computer income tax program used by 18 million taxpayers a year.

Geithner said he used TurboTax to complete his income tax forms in those two years, and he failed to include self-employment taxes in his federal returns.

He said that, to his recollection, the program did not prompt him to report income and pay self-employment taxes.

"I mistakenly believed that I was meeting my obligations fully, including self-employment taxes, but I did not prepare my returns in a way that caught that mistake initially," Geithner told the committee, adding, "these are my responsibility, not the tax software responsibility."

But TurboTax says the program is designed for average taxpayers and prompts everyone to report any additional income or wages earned through self-employment.

"The way TurboTax works, we ask you your personal information up front" and "walk you down an interview path that asks you the source of your income," said Scott Gulbransen, a spokesman for TurboTax. Even if you fill out a W2 tax form from a primary employer, "once you're done with that it will ask you if you had other sources of income," he told FOXNews.com.

"The whole idea of TurboTax is to make sure we have all your information," Gulbransen said.

Intuit, the company that makes the software, estimates that its customers receive tax returns in the hundreds of millions of dollars every year, he said.

"There's a lot of time that's put in to make sure that the product is easy to use for the average American," Gulbransen said. "The numbers speak for themselves."

The tax program -- now in its 25th year -- is retooled annually, he said.

"Because the tax laws change every single year, the code, we -- in essence after every tax season -- have to recreate the product from the ground up as far as tax code goes," Gulbransen said. "So from that perspective, we update it every year for not only the federal taxes, but also for each individual state that has income tax."

Dan Maurer, a senior vice president of TurboTax, issued a statement Wednesday saying user input is key.

"TurboTax, and all software and in-person tax preparation services, base their calculations on the information users provide when completing their returns. TurboTax also has built-in error-checking tools that routinely catch common taxpayer mistakes.

"Federal law and our own privacy policy prohibit us from discussing specifics of any customer's return," Maurer said.

Jury Nullification or Insanity? You Be The Judge.

In a landmark case for veterans suffering from post-traumatic stress disorder (PTSD), a San Jose, California, Santa Clara County jury Tuesday found a former Army Captain Sargent Binkley, diagnosed with PTSD not guilty by reason of insanity for robbing a Mountain View, Calif., pharmacy of drugs at gunpoint.



CAPT Binkley, 34, faced a maximum of 22 years and eight months and a minimum of 12 years in state prison after the same jury convicted him last week of the 2006 robbery. He initially spent about two years in county jail awaiting trial and has been in a residential drug treatment program ever since.
The jury's verdict in the sanity phase of the trial Tuesday means Binkley could be treated for the disorder in a state hospital or as an outpatient. He was taken into custody 13 January to be evaluated.

Was this a case of jury nullification?
"What this case means is that the jury stood behind a Soldier," said Charles J. Smith, one of his attorneys. "We strongly believe that Soldiers should get preferential treatment if they come back with problems after their service to our country."
Binkley and his father, Edward, burst into tears when the verdict was announced.
"There was no reason this case should have ever gone to trial," Edward Binkley said, adding that his son turned himself in after committing a second robbery in San Carlos, Calif.
The prosecutor who tried the case, Deborah Medved, and a spokeswoman for the DA's office could not immediately be reached for comment.
Binkley graduated from West Point and served in Bosnia and Honduras before he received a general discharge in 2003. His defense attorneys argued that he became traumatized by two events - guarding a mass grave in Bosnia and shooting a teenager in a Honduran drug raid.
His father said he became addicted to morphine-based painkillers after dislocating his hip while running away from an alcohol-fueled fight in Honduras over a woman.

SAN JOSE, CA
JANUARY 15, 2009

Sargent Binkley came into the courtroom in a dark green jump suit handcuffed with his hands in front. The bailiff unlocked the handcuffs as soon as Sargent sat down.

Defense proposed that Sargent Binkley be released into his (Chuck Smith's) custody. Smith had procured an ankle bracelet from the Sheriff's Department with GPS monitoring as an added layer of security. Smith attested to Binkley's exemplary performance at the Jericho House, his being negative in all drug tests from two counties, and his continued bail from San Mateo County with appropriate checks from Redwood City staff, as well as continued checks by staff from Santa Clara County.

The DA argued that CA Penal Code requires that persons found guilty of certain crimes including armed robbery are to remain under Court supervised control (e.g. mental hospital, jail) for at least 180 days. DA Medved didn't bring a copy of the code to read so Judge Condron loaned Medved her copy. After the reading, Condron seemed surprised to know about that portion of the law and asked an interogative question "you mean I have no discretion in this matter"? Accepting the law as read by Medved, Condron conceded that she must comply. Further she said that since one of the court appointed doctors, Dr. Seaman, had stated that Binkley still suffered from PTSD and schizophrenia AND that "the jury had obviously used Dr. Seaman's testimony in coming to their verdict", she ruled was prepared to rule.

Defense attorney Smith then introduced another matter by saying that the DA had not turned over a report from her own Crime Lab investigator regarding findings on photos of alleged use of a gun in the robbery. Judge Condron asked Smith when he had requested the report. "Early this week, Monday," said Smith. Condron then asked Medved if she had received the request. "Yes" said Medved. Judge Condron then ordered the report to be turned over to the defense within 24 hours.

Binkley will continue to be held over in Santa Clara County until his next appearance which will be 9:00 a.m., Thursday, February 5th. At that time, Judge Condron is expected to have more specifics as to the defendant's disposition, and the Defense may have a motion to overturn the guilt verdict by reason of prosecutorial misconduct.

I Was Only Doing My Job, the Nuremburg Defense.

A federal appeals court on 6 Jan 2009 upheld former Enron Corp. CEO Jeff Skilling's convictions for his role in the energy giant's collapse but threw out his 24-year prison term and ordered that he be resentenced.

A three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans denied Skilling's request to overturn his convictions. Skilling argued his convictions were invalid because of what his lawyers argued were incorrect legal theory, faulty jury instructions, a biased jury and prosecutorial misconduct, including accusations of witness intimidation and withholding evidence.

The panel wrote in its opinion that Skilling "failed to demonstrate that the government's case rested on an incorrect theory of law or that any reversible errors infected his trial."

While denying those arguments, the appellate panel also found that U.S. District Judge Sim Lake improperly applied a sentencing guideline that resulted in a longer prison term for Skilling, and ordered that he be resentenced. But legal experts still expect Skilling to get a lengthy prison term whenever he is resentenced.

Skilling was convicted in May 2006 on 19 counts of fraud, conspiracy, insider trading and lying to auditors for his role in the collapse of Houston-based Enron, once the nation's seventh-largest company.

Skilling is the highest-ranking executive to be punished for the accounting tricks and shady business deals that led to the loss of thousands of jobs, more than $60 billion in Enron stock value and more than $2 billion in employee pension plans after the company imploded in 2001.

Company founder Kenneth Lay also was convicted of conspiracy, fraud and other charges, but his convictions were vacated after he died less than two months later of heart disease.

Skilling's attorney, Daniel Petrocelli, who represented the Brown/Goldman family in a civil suit against O J Simpson, said he was "extremely disappointed." Petrocelli said he planned to ask for a rehearing before the three-judge panel, or before the entire 5th Circuit court, or he'll appeal to the U.S. Supreme Court.

Skilling is serving his time, the longest sentence in the Enron scandal, in a federal prison in Minnesota.

Federal prosecutors said they were pleased with the decision.

Prosecutors won their convictions of the top two men at Enron by arguing that Enron employees were bound to serve honestly and not put their interests ahead of the company's. If they failed to do so, they deprived the company of "honest services" and committed a crime.

Prosecutors argued Skilling's actions were dishonest and contrary to the needs of the company's shareholders and its financial stability.

When Petrocelli argued his appeal before the 5th Circuit in April, he characterized his client as a loyal employee who didn't commit a crime and might have only bent the rules for the company's benefit.

The 5th Circuit has overturned several Enron-related convictions that were based on the honest services theory, ruling that executives did only what Enron wanted them to do and did not profit at its expense.

Petrocelli said Tuesday that Skilling's honest services argument was the same as those other cases and that his client was unfairly being singled out.

Jack Sylvia, a Boston-based attorney with the firm of Mintz Levin, said Skilling was not able to show that he was acting under the orders of anyone at Enron. Some legal experts had thought that because of the prior reversals, the honest services argument was Skilling's best chance at overturning some or possibly all of his convictions.

"That's why a lot of people were anxious for this opinion to be handed out," said Christopher Bebel, a former federal prosecutor now in private practice in Houston. This opinion "represents an overwhelming victory for the government."