"In this zero sum game where funds are limited, hard choices must be made....The plain language, purpose, framework and distribution scheme of SIPA, as well as (legal) precedent, all support the method chosen by the trustee"- U.S. Bankruptcy Judge Burton Lifland
A federal bankruptcy judge ruled that victims of Bernard Madoff's massive Ponzi scheme were not entitled to have the amount of their losses upwardly adjusted to account for interest during the period of their investment. More than 1,000 claimants had objected to court-appointed bankruptcy trustee Irving Picard's decision not to include "time-based damages" as part of their loss calculation, arguing that they should be compensated as if their funds had been invested in a legitimate fund that used the strategy Madoff purported to use. United States Bankruptcy Judge Burton Lifland agreed with Picard that there was no statutory or equitable basis for such a claim, and entered an order denying the motion. If the ruling is upheld, nearly $1.4 billion Picard had been forced to allocate to reserves would then be available for distribution to victims.
Shortly after his appointment, Picard made the decision to use the "net investment" method (also known as the "cash-in, cash-out" method) to calculate a victim's losses, rather than relying on the fictitious account statements Madoff had provided to his customers for decades showing steady gains. The net investment method is widely used in Ponzi scheme jurisprudence, and only rarely and under unique circumstances are other methods used (such as the "rising tide" method.). Picard would receive over 16,000 customer claims - ultimately "allowing" 2,436 claims with a total value of approximately $11.10 billion.
However, many claimants objected to Picard's decision to use the net investment method, including not only net winners that had profited from Madoff's scheme, but also those net losers that suffered partial or total losses. Of the various bases for claimant objections, one popular theory was that investors were entitled to receive "time-based damages" that would adjust their losses to account for a theoretical rate of return they could have (but did not) receive. While such a re-calculation would increase the amount of a claimant's net losses, it could also cause some net winners to be converted to net losers - thus significantly increasing the total amount of claims. Indeed, Picard estimated that he was unable to include nearly $1.4 billion in the three distributions he has made thus far to claimants to account for such a scenario.
Picard strongly opposed altering his net equity calculation to include any upward adjustment for interest, arguing that nothing in the plain language of the Securities Investor Protection Act ("SIPA") or the statutory framework envisioned any ability to include time-based damages. Picard also noted that such an adjustment would be at odds with the recovery and distribution approach used in most Ponzi cases and could conflict wth his powers to recover funds from investors that had profited from the scheme. Indeed, if time-based damages were awarded, Picard stated that most of the reallocated distributions would be paid to feeder funds rather than individual investors. As Picard summed it up, "[a]warding Time-Based Damages thus would not serve the purpose for which they are intended in most instances, would be extraordinarily expensive, would create enormous delays, and would create arbitrary results."
The objecting claimants must file an appeal within ten days or the order will become final.
Picard's Motion in support of his position is here.
Judge: Madoff Victims Not Entitled To Interest On Losses
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President Obama's Syria Address
President Obama is about to address the nation on Syria. Here's a thread to discuss.
Update: Shorter version is Obama is asking Congress to delay a vote.
Obama lays out the evidence Assad's regime used chemical weapons. He says if we...
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Update - Westbound Milwaukee On-Ramp Is Open To Westbound I84
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer
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IDAHO STATE POLICE NEWS RELEASE
District 3 Patrol 700 S. Stratford Dr., Meridian 83642
(208) 846-7550
Fax (208) 846-7520
For Immediate Release: 09/10/2013 8:05pm
Please direct questions to the District Office
**Update**
On September 10, 2013 at 3:30pm, the Idaho State Police investigated a one vehicle injury motorcycle crash on the westbound on ramp from Milwaukee to I84.
Leslie J. Penfold, 59 of Boise, was traveling on the westbound on ramp from Milwaukee on a 2004 Honda motorcycle. Penfold lost control of his motorcycle, crossed over to the right shoulder of the on ramp, and hit the jersey barrier. Upon impact, the motorcycle slid coming to rest in the middle of the travel lane.
Penfold was transported by ground ambulance to St. Alphonsus Regional Medical Center. He was not wearing a helmet. The on ramp was blocked for approximately 2 hours.
The westbound on-ramp is now open.
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Idaho State Police is investigating a motorcycle crash westbound I184 at the onramp to westbound I84.
At this time the westbound on-ramp from Milwaukee to continue westbound onto I84 is blocked. Ada County and Boise Police is on scene providing traffic control. Motorists should avoid the area if possible.
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Working With Experts in Your DUI Case
I had a call today from a client we are defending who is charged with driving under the influence of alcohol or drugs (DUI). This case is a little different than the usual DUI because the intoxicating substances charged include several commonly prescribed medications and an over-the-counter antihistamine (containing diphenhydramine). The State has laboratory reports showing these medications were present in the client's blood, but present in what amount? In an amount that would produce intoxication?
I bet that they don't have an expert to establish the amount of any of the medications found in our client's bloodstream would cause intoxication, but we can't simply wait to find out. We have already filed requests for discovery that should require the prosecutors to tell us the information we need, but our next step seems certain: Enter the expert.
In this case we will need a toxicologist or pharmacologist to testify about the levels of such drugs likely in my client's blood stream at the time of his accident (did I mention he was involved in an accident). Without an expert to testify for the State or for the Defendant - there is no way for a jury to decide the question of whether the levels detected would have caused intoxication and affected driving.
Here are three reasons to hire an expert in your DUI case:
First - your lawyer cannot testify, and it is testimony that you need to win. Proof. While there is no requirement that a defendant ever prove anything at trial, don't kid yourself. If you are on trial you need a defense. You need the best defense you can afford, so hire a great lawyer and be ready to hire a great expert to make your case.
Second - an expert offers opinion evidence that most jurors take to be fact. Based on his or her special training, education and experience an expert can explain to jurors why the state is wrong and why you are not guilty. The judge will tell them that the testimony is an opinion, and it is, but that opinion is often the difference between winning and losing.
Third - just hiring and disclosing an expert witness to the State may be enough for them to offer you a way out, short of the DUI. Think of it this way - prosecutors have lots of cases and they don't have the time nor resources to try even a tenth of those cases. At some point they just see a case, not a defendant. If the case goes away, their is another one to move up the ladder and "be resolved."
And that's your advantage in hiring an attorney who will fight for you. We represent you. We will take the steps necessary to build a defense, and if that means we hire an expert witness than that is what we do.
If you are charged with a DUI, Inattentive Driving, Driving without privileges or some other criminal charge, call us at 208-342-4633 and let our years of experience work for you!
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Colorado Recall Results
Today was voting day on the efforts to recall two Colorado legislators over their support for new gun control laws.
For Senate President John Morse: El Paso County Clerk and Recorder live update results here. For State Senator Angela Giron:...
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IN THE NEWS: Drivers cited in Parkway North HOV Lane enforcement
WPXI reports that 60 Pittsburgh-area drivers received traffic citations for improper use of the carpool/high-occupancy vehicle (HOV) lane on the Parkway North. Under the law, the HOV lane may only be used by motorcycle operators and cars that are carrying at least two human passengers inbound from 6:00 AM to 10:00 AM and outbound from 3:00 more »
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Top Texas Court Rules Death Row Inmate Can't Be Forcibly Medicated
214-402-4364-Writ Bond Hotline
bo@kalabuslaw.comwww.rosenthalwadas.comwww.kalabuslaw.com
Office: 972-562-7549
A very interesting ruling came down from the Texas Court of Criminal Appeals on Wednesday declaring that Steven Staley, a mentally ill death row inmate, cannot be forcibly medicated for the purpose of making him competent for execution; and without medication, the judges decided, he is not competent to be executed. Read the full story here.
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1342 people arrested for DUI in Colorado over Labor Day period.
According to a recent article by the Denver Channel, 1342 people were arrested in Colorado and charged with DUI during the period August 16, 2013 through September 3, 2013. Most of the arrests were conducted by the Denver and Aurora Police Departments.
This figure is down approximately 100 arrests from the similar period in 2012 from August 17, 2012 through September 4, 2012, according to an article by Andy Koen of KOAA News.
1442 was the estimated number of DUI arrests over the similar period in 2011 according to an article by Michael Roberts of Westword.
By comparison, California reported 2313 arrests during the similar time period this year according to an article by the Antelope Valley Times: "During the 18-day campaign, 100 county law enforcement agencies conducted sobriety checkpoints, special saturation patrols and routine patrols, which resulted in 2,313 arrests countywide for driving under the influence of alcohol or drugs."
However, California's population in 2012 is reported at 38.04 million people. Whereas Colorado's population in 2012 is reported at 5.188 million people. Thus, Colorado's DUI arrest rate over the same time period is about 7.5 times that of California's.
A DUI arrest can be a startling event in a person's life. There are many consequences beyond the court case which should be considered while the case is still pending in the courts. A DUI conviction in Colorado will stay on a person's criminal and motor vehicle record forever. A DUI conviction can have a severe impact upon a person's driver's license, insurance rates, schooling, social consequences, employment, future employment, and a host of other issues.
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If I missed my criminal court date in New York, what should I do?
If you missed your court date in New York for a summons or another criminal case, you could face serious consequences. Most likely, there will be a warrant out for your arrest. If after missing a court date you were to come into contact with police officers, they will most likely find out about your [...]
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The court set a proposed trial date
The complainant allege that a pharmacist, acting both individually and as an agent of a pharmacy, submitted a number of claims for prescription refills for various recipients, which refills had not been authorized by the prescribing physicians. Later, witness appeared...
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Four Arrested after Staged Theft in Utah
A McDonald’s fast food restaurant manager and three suspected accomplices have been arrested for their purported roles in a staged theft at the restaurant. Help! I’ve Been Robbed! The manager called police and reported she’d been robbed as she was leaving McDonald’s to make a bank deposit. Several law enforcement agencies were notified and the [...]
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YOUR MONEY OR YOUR LIFE
There's an oft repeated sarcastic joke that the best judges go to civil court because in criminal court they deal with life and death but in civil court they deal with important things like money. It's a warped view of the judiciary, but one apparently heartily endorsed by Pam Biondi, Florida's Attorney General who successfully asked Governor Scott to postpone the execution of Marshall Lee Gore because (we couldn't make this up if we tried) the date of the execution conflicted with Biondi's kick-off campaign re-election fundraiser. Has any other public official in Florida taken such a candidly heartless view of human life and more crudely put their personal interests above their obligations as a public official? And how does Scott and Biondi's voracious support of bills designed to speed up execution dates square with their decision to delay an execution to raise money? The Tampa Bay Times article is here. We cannot thing of a more self centered, truly disgusting act that any public official in Florida has done in the last few decades. Biondi's lack of judgment (and Scott's for that matter) give us a clear window into their dark souls: They care more about being re-elected than solemnly discharging the awesome responsibility of overseeing executions in Florida. If these two money grubbers care so little about when Gore is executed, just how much confidence do we have in Scott and Biondi's consideration and denial of Gore's petition for clemency prepared so ably by our own Todd Scher? If they will play bingo with Gore's execution date, did they really consider clemency? And while we are against the death penalty, we wonder how the relatives of Gore's victim's feel about the delay in Gore's execution? The whole sordid mess is disgusting. COMING UP NEXT: LET THE YOGA COME TO YOU. Site Feed
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Recent Virginia Cases Demonstrate Severity of Hit-and-Run Accidents and Charges that Follow
Nearly everyone has experienced the panicky feeling of losing control of a vehicle. Whether due to the weather, a faulty mechanical part, or a simple mistake, losing control of a car can lead to the destruction of property, injury of persons or animals, and, sometimes, death. A car accident can be made even worse with […]
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DId the FISA court overstate NSA's wrongdoing?
Stewart Baker suggests as much at The Volokh Conspiracy. In part: I think a fair-minded judge encountering the issue for the first time in the courtroom would not likely say that NSA’s interpretations were disingenous or the result of bad...
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On 16 November 2006, the People served and filed a statement of readiness
Originally, defendant was charged by complaint dated 4 November 2006 with assault in the third degree in accordance with Penal Law § 120.00 [1], a class A misdemeanor; menacing in the third degree in accordance with Penal Law § 120.15,...
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City Council raises fees for registered sex offenders
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Shotspotter - Now you see it, now you don't
By Jill PapernoSecond Assistant Monroe County Public DefenderThe NSA is not the only organization that monitors the day to day activities of citizens. But you already knew that. One piece of technology that has sprouted up in our own backyard – the city of Rochester – in the last couple of years is called “Shotspotter.” The company that created this device refers to it as a “gunshot detection system.”The Shotspotter technology uses sound sensitive devices placed around the city to detect, record and alert to gunshot sounds. Shotspotter was created and is run by a company in California. The website is Shotspotter.comAlthough Shotspotter is a fascinating technology, be careful before you depend on getting it in at trial. Conversely, don't let the DAs get it in without a fight if it hurts your case.Shotspotter technology produces audiorecordings of the alleged shots, reports of the exact times of each shot, and maps that triangulate to within feet of where the shots were supposedly fired. In a recent case I tried (and lost) I obtained the records relating to gunshots fired in the area at the time of the shooting through use of a non-judicial subpoena duces tecum. (The company is not a governmental agency.) Subpoena service was accepted via internet, though the snafu that occurred initially should have sent off alarms (or shotspotter signals) in my head.After initially being told service would be accepted, I forwarded a subpoena to the company. After months without response, but still months from trial, I contacted the company and was emailed the package, including the recording of the gunshots. The documents and files forwarded included a satellite type map with locations from which the shots were allegedly fired determined through triangulation (within feet), a recording of the gunshots, and the times of the shots. What was not included was sufficient certification for admissibility, or accurate information about who to contact to get the evidence in at trial. Prior to trial the contact I had made at the company, Ric Smith, informed me that Shotspotter did not own the technology or maintain the reports for Rochester and could not lay a foundation for the admissibility of the recordings and reports at trial – the City of Rochester owned it and had the records. I’m still not clear on whether this was accurate for the time of the shooting in my case since we couldn’t ever get a straight answer. So we subpoenaed someone at the Office of Emergency Communications (as we were initially informed) who represented that he could lay the foundation, and had in the past. However, soon he developed amnesia, forgetting he had represented that and claiming he could not lay the foundation. And yes, the prosecution had been in touch with him before he was stricken with this unfortunate illness. No worries – we were told that members of Rochester Police Department could lay the foundation. Wrong again – as we were now in trial and contacting the city attorney’s office and RPD, we came up against one obstacle after another. Eventually RPD sent someone to respond to the subpoena with a single page less professional appearing report that was not the Shotspotter report we had – and reflected fewer shots!!!! The prosecutors must have known our efforts would fail, as they represented the number of shots throughout trial as half that reflected by Shotspotter, apparently without fear that the documents would be admitted. (The number of shots might have established the difference between a shootout and what they described as an execution.)My understanding of how the system presently works in Rochester (and this may differ from the past) is that the sounds activate a signal in California headquarters, and the information is relayed to RPD.According to the website, “The instant a shot is fired, gunfire analysis experts at the SST Operations Center review and qualify all alerts Within seconds SST delivers those qualified alerts to dispatchers, PSAPs and mobile personnel, enhancing the accuracy and speed of response and increasing the usefulness of the system’s database of incidents for pattern analysis.”What I was ultimately told after a lot of misdirection by RPD and non-responses from Shotspotter is that RPD does not own the technology, does not maintain the records, and cannot testify as to the accuracy of the information or technology. During my trial the representatives in California said RPD owned it and California cannot certify. And eventually they stopped communicating with me completely. But RPD remains firm that California owns it, and I now believe that is accurate since RPD does not, based on the representations of its own staff during my trial, have the personnel with sufficient technological skills or sophistication to run this program. So if you have a case with Shotspotter in which you want the Shotspotter information in:1. Contact Shotspotter in California and ask if they have the records;. 2. Find out who you must subpoena (see if they have a New York liaison);3. Do the subpoena;4. Do this all well in advance;5. If you do not get a response to your subpoena for an individual to testify, consider retaining a witness from shotspotter (again, trying to use a New York representative). 6. Review other states' Frye cases to support your claim of admissibility. You’ll have to ask the company to supply a list of cases because a quick Westlaw search of “shotspotter /p daubert” and “shotspotter /p frye” failed to produce cases that addressed admissibility under Frye/Daubert. One document that was generated but was out of my plan was “Defendant’s Memorandum of Law in Support of Motion for Frye-Mack Hearing” in State of Minnesota v. Christopher James Hayes (District of Minnesota, April 4, 2011)If you have been unable to get the records in, you might try having the officers testify to their review of the records and listening to the recording. (Yes – they get the records somehow. And they listen to the recordings.) But be aware, the same amnesia suffered by the OEC employee apparently spread to the officer on the stand, who did not recall the number of shots he heard on the audio recording, and couldn’t remember based on a review of his partner’s report.More often, we're trying to keep the information out. If that's the case, consider whether Shotspotter information should be admitted at any hearing or trial you are handling. Challenge the admissibility of any Shotspotter information and request a Frye hearing. Watch the foundations - who are they bringing in, do they keep records, do they know how the technology works. According to the prosecutors in my case, they'd have to subpoena witnesses from the company in California to have the records, recordings, etc. admissible. Let’s see if that’s still the prosecutors’ position when they’re trying to offer the information. (And if it is not, please let me know!)Whether or not you want to introduce evidence of Shotspotter activation, you will probably still want to get the records. According to Shotspotter website entry from May 1st, the Rochester Police Department integrates the surveillance cameras with Shotspotter monitoring. (Interesting, since they claim to have no control over the system…) The RPD representative stated, “Integrating the ShotSpotter system with the city's video surveillance camera has enabled them to become even more effective in their response and investigations, and increasing arrests and prosecutions for crimes involving gun violence and illegal use of guns. Immediately, when shots are fired, the camera systems start into play ... You can pick up the bad guys off the streets a lot faster because now you know exactly where you're going." - Julie Gulino, Rochester NY Police Department. This quote can be found on the website at: http://www.shotspotter.com/sentinel/article/rochester-ny-police-get-felony-arrest-within-first-48-hours-of-shots
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And speaking of guns . . . How much is the gun industry worth?
Check out the “The Business of Guns, recently published by Minute MBA at: http://www.onlinemba.com/blog/business-of-guns. This short but informative video illustrates the financial might of the gun industry in the United States. So much for a "well regulated" militia. Thanks to Minute MBA for passing this along.
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SJC Rules that Law Reducing Mandatory Minimums for Drug Offenders is Retroactive
In August 2012, the Massachusetts legislature passed the 2012 crime bill, which had both a positive and negative impact on the law. On the one hand, the bill amended sentencing for violent criminal offenses, creating the "three strikes" rule. This rule means that offenders that are convicted of certain violent offenses two or more times, and sentenced to 3 years or more in state prison on each of those convictions, now face life without parole if convicted a third time as a result of this bill. On the other hand, the bill reduced the minimum mandatory sentences associated with various drug crimes, and reduced the size of "school zone" violations, which carry enhanced penalties for drug crimes committed near a school, from 1000' to 300' from the school.
While the decreases in minimum mandatory sentences were undoubtedly a positive change, some uncertainty remains about the bill's impact on the law. For example, anyone who was charged with a drug offense after the bill was passed will clearly benefit from the amendments to the law. But what about people charged prior to August 2012, but convicted after the passage of the law? And what about people serving sentences for drug offenses or school zone charges at the time the law was passed? There are many questions remaining in regard to people falling into these categories.
On August 23, 2013, the Supreme Judicial Court answered one of these questions in Commonwealth v. Galvin. In Galvin, the defendant was charged with selling cocaine to an undercover officer. The sale took place on June 3, 2011. The defendant was subsequently indicted for distribution of a class B substance, and for being a subsequent offender (i.e., having a previous conviction for distribution, or possession with intent to distribute). At the time the indictment was issued, the minimum mandatory sentence associated with the subsequent offender charge was 5 years. Therefore, if the defendant were convicted, the judge would have no choice but to sentence him to at least 5 years, and up to ten, in state prison.
The 2012 crime bill amended the law while the defendant's case was pending, reducing the minimum mandatory sentence associated with his charge to 3.5 years. Specifically, on August 22, 2012, ten days after the bill was passed, the defendant went to trial on the charges and was convicted. The Commonwealth asked the court to impose the mandatory minimum sentence associated with the earlier version of the law - 5 years. The court declined to do so and imposed the minimum mandatory sentence associated with the amended version - 3.5 years. The Commonwealth claimed that the sentence was illegal and appealed.
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AR - Woman (Kristin Johnson) Facing Felony Charge after Filing False Rape Report
Kristin Johnson
Original Article
09/11/2013
BENTON - A woman who told police she had just been raped is now facing a felony charge.
According to the Benton Police Department (BPD), 24-year-old Kristin Johnson was arrested Tuesday after filing a false police report in August.
BPD says officers responded to Watts Road around 3:30 p.m. Aug. 19, where Johnson told them an unknown suspect had just broken into her home and raped her.
Through the course of the investigation, detectives...
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