THE FEDERAL LAWYER The Magazine of the Federal Bar Association Volume 60, Issue Two MARCH 2013 Washington Watch Who and What to Watch in 2013 page 8 CRIMINAL LAW Judicial Profiles pages 28–36 Member Spotlight View Your Chapter’s New Members and Sustaining Members page 99 FBA Events Midyear Meeting • April 4–6 Indian Law Conference • April 11–12 Labor and Employment Law Conference • May 2--3 Insurance Tax Seminar • May 30–31 Annual Meeting and Convention • Sept. 28–30 THE Federal Bar Association Midyear Meeting April 5-6, 2013 The annual Midyear Meeting for the Federal Bar Association, comprised of the National Council, Chapter Presidents, Section and Division Chairs, Vice Presidents for the Circuits, and Board of Directors. Please join us for the meeting; below is a tentative schedule of events. Friday, April 5 3 p.m. – 5 p.m. Midyear Registration and Packet Pick-up Westin Arlington 9 a.m. – 5 p.m. FBA Board of Directors Meeting (Held at FBA Headquarters) Gateway 2 – 4 p.m. FBBC Board Meeting (Held at FBA Headquarters) q 6 – 8:30 p.m. Moot Court Competition Final Round and Reception 801 North Glebe Rd. Arlington, VA 22203 U.S. COURT OF APPEALS FOR THE ARMED FORCES, 450 E STREET, NW, WASHINGTON, D.C. All are encouraged to attend. Group Rates Saturday, April 6 Tuesday, April 2 and 7 a.m. – 5 p.m. Registration Wednesday, April 3 $198/night 7 – 9 a.m. Continental Breakfast q 8 – 10:15 a.m. Circuit Vice Presidents/Section/Chapter Leaders Meeting Thursday, April 4 through q 10:30 – 11:30 a.m. Circuit Vice Presidents/Section/Chapter Leaders Breakouts Saturday, April 6 q 11:30 a.m.– 1:30 p.m. Foundation of the FBA Board Meeting $156/night q Noon – 1:30 p.m. Luncheon ($45/ticket) q 2 – 5 p.m. National Council Meeting Reservations q 5 – 6 p.m. Reception (Immediately after National Council Meeting) For reservations, call q 6:30 p.m. Foundation of the FBA Dinner (Fellows and Guests Only) 888.627.7076 and INVITATION TO FOLLOW mention the FBA Midyear Please check boxes for events you plan to attend; all events held at the hotel unless otherwise noted. Meeting. Reservations should be made by March 12, 2013. Name Title Discounted car rental is offered to FBA members Phone E-mail by Avis. To reserve, call (800) 331-1600 and use ID Code A974699. Address City/State/Zip To register, mail or fax Current Leadership Position this form to: FBA Midyear Meeting Please let us know about any special needs you may have 1220 N. Fillmore St. Suite 444 I would like to purchase ________ Luncheon Tickets @ $45/each. Lunch tickets are also available Arlington, VA 22201 online at www.fedbar.org. Luncheon is the only cost associated with the Midyear Meeting. (571) 481-9090 (fax) or register online at q q q q My check, payable to the FBA, is enclosed. American Express MasterCard Visa www.fedbar.org. Credit Card Number Exp. Date Billing Zip Code Please submit your registration no later than March 12, 2013. Cardholder Name Signature THE April 5-6, 2013 FEDERAL LAWYER The Magazine of the Federal Bar Association Volume 60, Issue Two EDITORIAL BOARD Editor in Chief Becky Thorson March 2013: Criminal Law [email protected] Managing Editor Sarah Perlman (571) 481-9100 [email protected] Book Review Editor Henry Cohen 46 [email protected] Judicial Profile Editor A History of the Criminal Justice Hon. Michael Newman Act of 1964 [email protected] 55 Board Members By Geoffrey Cheshire Gregory Arnold Federal Re-entry Courts and James Briggs Jr. Sarah Buthe Other New Models of Supervision Jonathan Hafen René Harrod By Hon. Laurel Beeler Rachel Hughey Kim Koratsky Elizabeth Kronk 61 Michael McGlone John Okray Must a Wolf Prove that He Hector Ramos Philip Savrin Withdrew from the Pack? Philip Schatz he Supreme Court Addresses the 67 Michael Tonsing T Vernon Winters Burden to Prove Withdrawal from a Michael Zuckerman Returning to Confrontation Conspiracy in Smith Clause Sanity The Federal Lawyer (ISSN: 1080- 675X) is published 10 times per By Jennifer Beidel The Supreme Court (Finally) Retreats year, monthly, except for Jan./Feb. from Melendez-Diaz and Bullcoming and Oct./Nov. when it is bimonthly, by the Federal Bar Association, 1220 By Hon. G. Ross Anderson Jr. N. Fillmore St., Ste. 444, Arlington, VA 22201 Tel. (571) 481-9100, Fax (571) 481-9090, E-mail: tfl@fedbar. org. Editorial Policy: The views pub- lished in The Federal Lawyer do not 74 necessarily imply approval by the FBA or any agency or firm with which the Sixty Years of Touhy authors are associated. All copyrights are held by the FBA unless otherwise By John A. Fraser III noted by the author. The appearance of advertisements and new product or service information in The Federal Lawyer does not constitute an endorse- ment of such products or services by Also in this issue the FBA. Manuscripts: The Federal Lawyer accepts unsolicited manu- scripts, which, if accepted for publica- Focus On: Why MSPB Judges Reject 98 Percent of Whistle- tion, are subject to editing. Manuscripts 37 | must be original and should appeal to a blower Appeals diverse audience. Visit www.fedbar.org/ TFLwritersguidelines for writer’s guide- By Robert J. McCarthy lines. Subscription Rates: $14 of each member’s dues is applied toward a sub- scription. Nonmember domestic sub- Focus On: Ten Commandments for Effective Case Management scriptions are $35 each per year; foreign subscriptions are $45 each per year. 38 | By Hon. Jack Zouhary All subscription prices include postage. Single copies are $5. Periodical postage paid in Arlington, Va., and at additional mailing offices. POSTMASTER, send Focus On: Strategic Considerations for Appellees in the changes of address to: The Federal Lawyer, The Federal Bar Association, 42 | Federal Courts of Appeals 1220 N. Fillmore St., Ste. 444, Arlington, VA 22201. © Copyright 2013 Federal By Andrew J. Tuck Bar Association. All rights reserved. PRINTED IN U.S.A. COLUMNS Federal Bar Association 3 PRESIDENT’S MESSAGE • By Robert J. DeSousa Federal Bar Association VICE PRESIDENTS FOR THE What Gets Measured (Part One) 1220 N. Fillmore St., Ste. 444 CIRCUITS Arlington, VA 22201 FIRST CIRCUIT Phone: (571) 481-9100 Katherine Gonzalez-Valentin 4 AT SIDEBAR • By James I. Briggs Jr. Fax: (571) 481-9090 Christopher P. Sullivan [email protected] • www.fedbar.org Language Assistance Obligations for Recipients of DOT Federal Financial SECOND CIRCUIT Raymond J. Dowd BOARD OF DIRECTORS Assistance John G. McCarthy PRESIDENT Robert J. DeSousa THIRD CIRCUIT 8 WASHINGTON WATCH • By Bruce Moyer [email protected] Bridget E. Montgomery John W. Shaw Who and What to Watch in 2013 PRESIDENT-ELECT Hon. Gustavo A. Gelpi Jr. FOURTH CIRCUIT [email protected] Andrew K. Clark 10 TECHNOLOGY TALK • By Richard K. Herrmann Christine C. Varnado TREASURER A Lawyer’s iPad Personal Journal Matthew B. Moreland FIFTH CIRCUIT [email protected] J. Todd Hedgepeth Dougals Truxillo 13 CORPORATE TYPE • By John Okray DIRECTORS Matthew T. Acock SIXTH CIRCUIT Updated Guidance on the U.S. Foreign Corrupt Practices Act [email protected] Tonya Kennedy Cammon Christian K. Adams James W. Satola 15 LABOR AND EMPLOYMENT CORNER • By Corie J. Tarara [email protected] SEVENTH CIRCUIT The FLSA: The Law That (Most) Every Employer is Violating W. West Allen Sheri Mecklenburg [email protected] Maria Z. Vathis Kip T. Bollin EIGHTH CIRCUIT 18 LITIGATION BRIEF • By William Frank Carroll [email protected] Robert C. Gainer Class Actions—The Battles Continue Robert S. Clark Tara C. Norgard [email protected] NINTH CIRCUIT 23 TAX TALK • By Christine S. Hooks Henry Eigles W. West Allen [email protected] Alison S. Bachus The Tax-Related Privilege You May Have Already Waived Hon. Elizabeth A. Kronk TENTH CIRCUIT [email protected] Hon. Robert E. Bacharach 84 LANGUAGE FOR LAWYERS • By Gertrude Block Matthew C. Moschella Jonathan O. Hafen [email protected] ELEVENTH CIRCUIT 85 SUPREME COURT PREVIEWS • Provided by Cornell Law School Hon. Michael J. Newman Richard S. Dellinger [email protected] Devinti M. Williams Patrick E. O’Keefe D.C. CIRCUIT [email protected] Ronald C. Crump JUDICIAL PROFILES Elizabeth G. Smith Lauren L. Fuller ON ICHAEL ARRETT By Joan Brady and Lindsay Potrafke [email protected] 28 H . M R. B • Maria Z. Vathis SECTION AND DIVISION CHAIRS U.S. District Judge, Southern District of Ohio [email protected] CHAIR, SECTIONS AND DIVISIONS COUNCIL Hon. Michelle H. Burns EX OFFICIO MEMBERS ALTERNATIVE DISPUTE RESOLUTION 31 HON. GREGORY A. WHITE • By James W. Satola Hon. Michelle H. Burns Gregory L. Bertram [email protected] U.S. District Judge, Northern District of Ohio ANTITRUST & TRADE REGULATION Raymond J. Dowd James T. Southwick [email protected] 34 HON. JANE J. BOYLE • By Katie Cummiskey BANKING Kelly S. Scalise Charlotte Bahin U.S. District Judge, Northern District of Texas [email protected] BANKRUPTCY NATIONAL STAFF Robert Weber EXECUTIVE DIRECTOR CIVIL RIGHTS BOOK REVIEWS Karen Silberman Eileen Rosen [email protected] CORPORATE & ASSOCIATION COUNSEL 91 LINCOLN’S CODE: THE LAWS OF WAR IN AMERICAN HISTORY DEPUTY EXECUTIVE DIRECTOR John Okray Stacy King • [email protected] By John Fabian Witt • Reviewed by Burrus M. Carnahan CRIMINAL LAW DIRECTOR OF DEVELOPMENT Geoffrey T. Cheshire Heather Gaskins ENVIRONMENT, ENERGY & NATURAL 93 LINCOLN’S HUNDRED DAYS: THE EMANCIPATION PROCLAMATION AND [email protected] RESOURCES ACCOUNTING Sheila S. Hollis THE WAR FOR THE UNION Staff Accountant FEDERAL CAREER SERVICE April Davis • [email protected] Ila Deiss By Louis P. Masur • Reviewed by Henry Cohen EDERAL ITIGATION ADMINISTRATION F L 94 EXECUTIVE EMPLOYMENT LAW: PROTECTING EXECUTIVES, Receptionist William Frank Carroll Patty Richardson GOVERNMENT CONTRACTS ENTREPRENEURS AND EMPLOYEES [email protected] Matthew Solomson EALTH AW CHAPTERS AND CIRCUITS H L By Jotham S.