§ 453. Oaths of justices and judges

Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of this office: "I, _ _ _ _ _ _, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _ _ _ under the Constitution and laws of the United States. So help me God."

Violation of that oath is grounds for impeachment. U.S. Code Cong. & Admin. News, page 6896 (1990). Mindful of the ancient Chinese proverb that, "one does not have to eat the whole chicken to know the flavor of the bird," a partial sampling of Judge Marcus' cases lead to only one conclusion: no Hispanic can have any sort of fair and impartial hearing before this biased judge. Worse, this character was appointed on November 24, 1997 as a Circuit Judge to the Eleventh Circuit Court of Appeals, where he is now in position to infect appellate court decisions with his bias.

There is much made of the "collegiality" of appellate court judges working with each other. That this judge will persuade other appellate judges to rule against Hispanics in the interest of collegiality is absolutely, certainly, and completely predictable.

For example, Judge Marcus authored the opinion in Thomas v. Whitworth, 136 F.3d 756 (11th Cir. 1998). In this case he held:
 

The question becomes, therefore, whether the jury selection process can be parsed from other aspects of a trial, bringing the process of selecting a jury within the "additional duties" clause of section 636(b)(3). In Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), the United States Supreme Court held that the "additional duties" clause does not encompass the selection of a jury in a felony trial where the defendant has refused to consent to the magistrate's exercise of power. The Court emphasized that voir dire is a "critical stage of the criminal proceeding," and specifically rejected the notion that Congress did not consider voir dire to be part of trial. 490 U.S. at 873, 109 S.Ct. at 2246-47. Thus, "[t]he absence of a specific reference to jury selection in the statute, or indeed, in the legislative history, persuades us that Congress did not intend the additional duties clause to embrace this function." 490 U.S. at 875-76, 109 S.Ct. at 2248. In Peretz v. United States, 501 U.S. 923, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991), the Supreme Court held that the statute's "additional duties" clause constitutionally permits a magistrate judge to supervise jury selection in a felony trial where the parties state their consent. In so holding, however, Peretz reaffirmed the reasoning in Gomez, and added that, where consent is lacking, courts should be reluctant "to construe the additional duties clause to include responsibilities of far greater importance than the specified duties assigned to magistrates." 501 U.S. at 933, 111 S.Ct. at 2667. The principles adopted in these cases have been applied in this Circuit. See Grassi v. United States, 937 F.2d 578, 579 (11th Cir.1991) (per curiam) (acknowledging that, in Gomez, the Supreme Court held that magistrates are not authorized to preside over jury selection in felony cases without a defendant's consent, but finding no error since all parties consented to the magistrate's exercise of this authority).

Thomas v. Whitworth, 136 F.3d 756, 758-759 (11th Cir. 1998)

This was a case involving a non-Hispanic defendant. This exact same issue is now before the Eleventh Circuit Court of Appeals in United States v. Taborda, U.S.C.A. No. 98 - 2319. Now that judge Marcus is firmly ensconced (along with his bias and prejudices) in the Eleventh Circuit Court of Appeals and in a position to infect other judges with his bias against Hispanics, the outcome of the Taborda case is completely and totally predictable. I.e., the Eleventh Circuit will issue a ruling completely at odds with the well-reasoned opinion in Thomas, regardless of whether judge Marcus sits on the deciding panel or not. The decision will be "DENIED" and marked "NOT FOR PUBLICATION."

The predictability of the outcome of the Taborda case is easily seen by a cursory reading of other opinions involving this biased judge.

Gloria-Marie Lopez-Ramirez was dragged through a federal criminal trial because she was merely in the same garage when someone else unloaded a crate packed with cocaine. The Eleventh Circuit Court of Appeals has repeatedly held that mere association with someone is not enough to commit them of conspiracy. Judge Marcus knew this. Not only had he had years of experience as a federal judge, he had been the United States Attorney of the Southern District of Florida from 1982 through 1985. This case was United States v. Lopez-Ramirez, 68 F.3d 438 (11th Cir. 1995). The Eleventh Circuit reversed judge Marcus' denial of her motion for acquittal. Now that Judge Marcus sits on the Eleventh Circuit, future Hispanics will not be so fortunate.

In another case an innocent third party might have had a chance in front of a jury. Unfortunately, he drew judge Marcus as his trial judge. The case itself describes what happened:
 

Ramos knew Yepez as a worker in a car wash where Ramos and his wife took their cars each week. One day, Yepez came to Ramos's home and asked to store some boxes there overnight while Yepez was moving. Ramos did not know the boxes contained cocaine. Rather, he thought they contained books. His wife directed Yepez to place the three boxes upstairs in the master bedroom. After Yepez left, and without Ramos's knowledge, she moved the smallest box into the closet to clear the floor space.

The following day agents came to Ramos's house and asked if it were his residence. He said yes. The agents then said they suspected he had drugs or drug money in his home and asked if they could search. He consented. Ramos immediately told the agents about the boxes and encouraged them to open the boxes because he did not want anything illegal in his home. He also told them he had $5000 cash. He took the agents upstairs where two boxes sat in the master bedroom. The agents opened the boxes, found cocaine, and arrested Ramos.

During the search and arrest, Yepez drove by Ramos's house and was stopped by the agents. They arrested him and took him back to the Ramos house. Ramos identified Yepez as the man who had delivered the boxes; Ramos then signed a written consent to search form. He told agents Yepez had come by twenty minutes earlier but had said he would return later for the boxes.

When the search did not uncover the $5000 cash Ramos had mentioned earlier, the agents asked him where it was. He directed them to the bedroom closet where the agents found both the cash and the third box of cocaine. Ramos repeatedly said he had told them about the third box when they first arrived.

United States v. Ramos, 45 F.3d 1519, 1521 (11th Cir. 1995).

In order to insure Ramos' conviction, judge Marcus refused to allow defendant Ramos to depose Yepez after he had been deported, even though Ramos' attorney advised judge Marcus that before Yepez had left the United States, he had given Ramos' attorney information exculpating Ramos. Such a deposition is covered by Federal Rule of Criminal Procedure 15. Judge Marcus was determined to obtain the conviction of another innocent Hispanic.

[A] conspiracy defendant can only be sentenced for co-conspirator acts that are committed in furtherance of the conspiracy and are reasonably foreseeable. United States v. Fuentes, 991 F.2d 700, 701 (11th Cir. 1993) (emphasis in original) (citations omitted). Judge Marcus' mistakes as to this principle of law are addressed on the same page, id.  Now judge Marcus is free to make mistakes on the Eleventh Circuit Court of Appeals, where his mistakes are essentially unreviewable.

Some of the lawyers' comments from 2 Almanac of the Federal Judiciary, page 18 - 11th Circuit (Aspen Pub. 1999-1) bear repeating.
 

"When it comes to Marcus, I don't think your book is thick enough. He's full of himself and very self-important and arrogant."

"He's very cocky."

"I think he's mean and has no compassion. He thinks criminal defendants are scum and could care less. I think he's mean."

"His scheduling is more important than anything else in human existence. You spend a lot of time waiting outside in the hallway while he handles a lot of matters which are also set at the same time. There's a lot of waiting around because his schedule is paramount."

In other words, clients are paying their attorneys $200-$300 an hour, several at a time, because this judge is disorganized.
 

"A prosecutor really has to convince him that Rule 404 evidence would be admissible because he leans toward keeping it out."

Unless, of course, the defendant is Hispanic. Leonardo Lopez-Santibanez, in case no. 95-845-CR-SM in the Southern District of Florida, had evidence introduced against him in violation of Rule 404. His attorney objected to the introduction of evidence in violation of Rule 404(b) in this case on February 2, 1996, which can be found in the transcript for that case, page 59, lines 12-15.

This issue was raised on a 28 U.S.C. § 2255 petition, CV 98-2114. It was not raised on appeal as Lopez-Santibanez, who could not speak English at the time, had been "conned" by another inmate named Lapinsky who falsely represented himself as a lawyer and charged him for a bogus appeal.

Given the corrosive effect of Stanley Marcus on the Eleventh Circuit Court of Appeals and the "collegiality" about which all appellate court judges are so concerned, the outcome of Lopez-Santibanez' § 2255 petition is completely predictable: "DENIED" and "NOT FOR PUBLICATION."

The discretion of such a judge was addressed centuries ago:
 

The discretion of a Judge is the law of tyrants: it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper, passion. In the best it is oftentimes caprice; in the worst it is every vice, folly, and passion to which human nature is liable.

Lord Camden, L.C.J., Case of Hindson and Kersey, 8 Howell State Trials 57 (1680).

Judge Marcus' bias against Hispanics does not appear to be confined to criminal cases. If there is a Hispanic entitled to something, Judge Marcus will see to it that he doesn't get it. Jose Pasedes, along with four other employees, were entitled to severance pay from International Medical Center (IMC) under the Employee Retirement Income Security Act of 1974 (ERISA). Judge Marcus denied the claim, the Eleventh Circuit reversed and remanded. O'Reilly v. Ceuleers, 912 F.2d 1383 (11th Cir. 1990).

Ubi eadem ratio ibi; idem jus; et de similibus idem est judicium. Where there is the same reason, there is the same law; and where there are similar situations, the judgment is the same. With judge Marcus and his blatant bias against Hispanics on the Eleventh Circuit Court of Appeals, a belief which keeps the public opinion holding the federal judiciary in high esteem will dissipate into contempt.

Institutions without respect-laws violated with impunity, are to a Republic the symptoms and seeds of death. Charge to the Grand Jury by Chief Justice Oliver Ellsworth (Circ.Ct.D.Ga. April 25, 1796).

There is no excuse for a federal judge to commit the violations of 28 U.S.C. § 453 as judge Marcus does in the case of Hispanic litigants. This behavior is certainly below the standard of good behavior required of Article III judges.

Judge Marcus has no business on the federal bench. He should be impeached.