Remembering Judge Cooke

 Judge Cooke always had a great holiday party at the courthouse on the 11th Floor -- Just Desserts.

The judges on the 11th Floor have continued the tradition and there was a nice gathering yesterday.  In keeping with Judge Cooke's tradition of holiday giving, participants were able to contribute to programs that were especially meaningful to Judge Cooke.  And you can too! Just hold your phone up to the code and get the link.

Holiday cheer.

 Two wonderful orders to discuss.

1. Almost one year to the day last year, Sam Rabin and Andrea Lopez were in trial on a reverse money laundering scheme where they advanced the affirmative defense of entrapment on behalf of their client.  After a one-week trial, the jury acquitted their client of a conspiracy charge but convicted their client on four of the five substantive money laundering charges.  They requested that the Judge leave their client on bond through Christmas, but the AUSA requested he be remanded.  He was remanded the night before Christmas.  Months later, upon the discovery of the Government’s suppression of favorable Jencks material, Sam and Andrea filed a motion for new trial, which was referred by Judge Moore to a Magistrate Judge. On October 11, 2024, the Magistrate denied the motion for new trial.  The motion alleged, in part, that the undisclosed Jencks contradicted the trial testimony of the undercover agent.  Judge Moore reversed the Magistrate’s report and recommendation and GRANTED their client’s motion for new trial.  He should be home in time for Christmas this year.  The case is USA v. Othoniel Gomez, Case No. 23-20153.  Here is the order.

2. Judge Rudy Ruiz certified to the 11th Circuit his intention to grant a new trial for psychiatrist Mark Agresti, whose case is on appeal from his conviction on Medicare fraud charges arising from drug testing of sober home residents (to prevent and detect relapse). Richard Klugh and former AFPD Jenny Wilson, along with Greg Rosenfeld, successfully argued and established at an evidentiary hearing that the government’s chief witness invented, and perjured himself regarding, core factual support for the government’s theory that the doctor was involved in the fraud. Judge Ruiz will issue a formal order shortly.

"This sentence is unnecessarily long, unjust, and does not meet the statutory purposes of sentencing. But the Court is bound to follow the law until wisdom and common sense prevail."

1. That was Judge Roy Dalton in the Middle District of Florida lamenting his hands being tied in having to sentence a homeless man to 5 years in prison for delivering drugs for $30 on his bicycle.  Here's the whole order, which starts like this:

Mr. Moore is a homeless man who was living in a tent in the woods behind an apartment complex. While doing some odd jobs for one of the residents, Mr. Moore was approached by a stranger, Tyrone Green, who offered him $30 to ride his bicycle to drop off a package that contained drugs. For that, Mr. Moore is going to spend the next five years of his life behind bars. Mr. Moore played the most minor of minor roles in this conspiracy managed by Green—who has not been arrested. Mr. Moore did not know Green, and there is no evidence that he owned a phone, made any phone calls, arranged meetings, discussed drug type, quantity, or value, or did anything else in the conspiracy. Other than the fact that the package contained drugs, Mr. Moore had no other knowledge about the drugs—the type or the weight—or the conspirators. He was Case 6:24-cr-00040-RBD-EJK Document 115 Filed 12/06/24 Page 1 of 7 PageID 481 2 not even a bottom-rung street-level courier who delivered drugs for Green regularly over the months the conspiracy took place. Rather, Mr. Moore delivered one package—one time—on his bike and got $30 in return. (See Docs. 82, 83, 89.) But despite his low level of culpability, the minimum mandatory sentence for his crime is sixty months’ imprisonment. See 21 U.S.C. § 841(b)(1)(B).

2. In other news, ABC and George Stephanopoulos agreed to pay $15 million as part of a settlement with Donald Trump.  It's a pretty impressive win for Trump, who was represented by our very own Richard Klugh, along with Alejandro Brito.  They also get attorney's fees of $1 million.  The case was before Judge Altonaga.  Shortly before the settlement, both Trump and Stephanopoulos were ordered to sit for depositions in the coming weeks.

Judge Altman Featured on Athena Rising Podcast

By John R. Byrne 

Vanessa Johannes and Marissel Descalzo have a great podcast series called "Athena Rising." They've interviewed notable female lawyers and, this season, are interviewing men who have served as mentors to female lawyers, including Willy Ferrer and the blog's own David Markus. They just released an interview with Judge Altman, which covers a variety of topics, including helpful tips on trial strategy. 

Link is below. Enjoy!

https://podcasts.apple.com/us/podcast/athena-rising-the-power-of-the-female-lawyer-collective/id1679384822?i=1000679920281

Will SCOTUS strike down another fraud conviction?

It sure looks like that after argument yesterday in Kousisis, which presented the following question: "Whether a scheme to induce a transaction in property through deception, but which contemplates no harm to any property interest, constitutes a scheme to defraud under the federal wire fraud statute, 18 U.S.C. § 1343."  These fraud cases keep getting reversed by SCOTUS.  It's time that some of our district judges grant motions to dismiss and appellate judges reverse cases with no harm, instead of letting the Supremes do it over and over again.  

The WaPo summarized the oral argument here:

The Supreme Court on Monday appeared divided over whether to uphold the conviction of a government contractor found guilty of defrauding a state transportation program intended to promote diversity, with several conservative justices again expressing concern over how federal prosecutors combat white-collar fraud.

Chief Justice John G. Roberts Jr. suggested that such crimes were better handled by state prosecutors. Justice Neil M. Gorsuch worried that the federal government’s approach was so broad it could allow, hypothetically, for the prosecution of a babysitter for misleading an employer about how she planned to spend her wages. The court’s eventual ruling in the contracting case could affect how federal prosecutors pursue other fraud cases.

The justices were reviewing the case of Alpha Painting & Construction and a project manager, Stamatios Kousisis, who was convicted of fraud in 2018 and sentenced to 70 months in prison for obtaining a multimillion-dollar contract under false pretenses. The company won a contract with the Pennsylvania Department of Transportation to make repairs in Philadelphia to a Schuylkill River bridge and to the 30th Street Train Station that was contingent on the company teaming up with a disadvantaged business for a small percentage of the work to increase diversity in contracting.

Interestingly, it was the liberal wing of the Court trying to defend the crazy broad application of the fraud statute:

“The government wanted a particular person to provide the service,” Sotomayor said.

Justice Ketanji Brown Jackson asked, “Why isn’t this a classic scheme to obtain property under false pretenses?”

Attorney Jeffrey Fisher told the justices that “if there’s no harm that occurs in those transactions, there is no fraud.” ...

The Supreme Court has repeatedly expressed skepticism of federal prosecutions for too broadly applying criminal statutes to combat public corruption and other white-collar crimes.

Last year, the court unanimously overturned the fraud conviction of business executive Louis Ciminelli and others who relied on inside information to win a $750 million development contract as part of former New York governor Andrew M. Cuomo (D)’s Buffalo Billion revitalization project.

In 2020, a unanimous court overturned the convictions of two allies of former New Jersey governor Chris Christie (R) who plotted to cause traffic snarls in a town leading to the George Washington Bridge to punish one of the governor’s rivals.

The conservatives said to leave these types of fraud prosecutions to the states and got into with the government over whether they could charge a babysitter:

Justice Samuel A. Alito Jr. suggested Monday that those rulings had sent a signal that “the court really doesn’t like the federalization of white-collar prosecutions and wants that to be done in state court and is really hostile to this whole enterprise.”

Roberts echoed those concerns when he said “a lot of these things could be dealt with under state law, and you don’t have to federalize every jot and tittle in a large contract? And that it’s a matter of concern that we’ve expressed in many precedents.” ...

During the discussion of the babysitter hypothetical on Monday, Gorsuch and Justice Brett M. Kavanaugh got the government’s lawyer to concede that under its theory, a babysitter could be prosecuted for fraud if she knew she got the job after telling the family she would use the money for college tuition, but instead blew it all on a trip to Cancún.

While Feigin acknowledged the hypothetical babysitter could be charged, he added, “I think the sentencing guidelines would be pretty low.”

“That’s comforting,” Gorsuch quipped.

In response, Sotomayor tried to help the government’s lawyer distinguish between the case of the babysitter and the misrepresentation at issue on Monday as part of a multimillion-dollar contract that specified a particular type of business would perform some of the work.

Sotomayor stressed, “This is not the case of the babysitter.”

Yeah but can they figure out a lunch spot?

 

Here's the full order.

Guest Post -- Bill Barr’s DOJ Predictions

Bill Barr’s DOJ Predictions, by an Attendee of a conference called Government Investigations and Civil Litigation Institute who asked to remain anonymous

Matt Gaetz is out for AG… but Kash Patel is in for the FBI.  What a whirlwind the past month has been.  One thing is for certain – DOJ is in for an interesting ride over the next four years.  William Barr, former AG under Presidents George H.W. Bush and Donald Trump, certainly has a lot of insights about what DOJ may soon endure.  He was the keynote “fireside” speaker at the Government Investigations & Civil Litigation Institute’s recent 10th annual meeting.  Despite current and former prosecutors comprising most of the audience, former AG Barr began his remarks by acknowledging that the “Deep State is real,” and that the DOJ has been “weaponized” by those who profess to “protect democracy” but are doing the opposite.  When did DOJ become infiltrated with the Deep State?  Sometime during his first and second stints as AG (late 1990’s to 2016-ish), when he personally saw a swing in the “politicization” within the rank-and-file. Citing the “bogus” and “fake” prosecutions of Michael Cohen and Gen. Flynn, former AG Barr was clear that “some offices,” such as the SDNY, have more “Deep State” employees than others, who needed to be weeded out to “restore the Department”.  Ironically, former AG Barr did not mention the political investigations and prosecutions of DOJ during decades prior; for example, the 1960s, when covert FBI operations and programs were aimed at discrediting and targeting prominent civil rights activists.  Nor did he mention Trump’s proposed pardoning of hundreds of January 6th rioters, which would seemingly contradict restoring justice and removing politics from the Department.  Towards the end of his remarks, former AG Barr offered some predictions, which did not seem to assuage the crowd: (1) greater controls and supervision over line AUSAs and more adherence to supervision/hierarchy; (2) elimination of DOJ programs that encourage “reverse discrimination”; (3) prohibiting DOJ’s Civil Rights Division from “allowing educators to indoctrinate kids in public schools with views diametrically opposed to popular views” and not allowing the FBI to “police our PTAs”; (4) getting aggressive on the cartels and at the US-Mexican border; and (5) strengthening joint task forces to reduce violence in America.  Former AG Barr also had choice remarks for “Big Law”: strip out the “wokeness”.  He made it clear that he formed his own law firm after Kirkland walked away from Second Amendment cases and “pushed” Clement out… a move, he viewed, dictated by “left woke” associates.

Biden was right to pardon his son and he should do a lot more before it’s too late.

 That's the title of my latest piece in The Hill.  I put together some of my prior thoughts from blog posts and tweets into a short opinion piece.  Let me know your thoughts. Here how it starts off:

A member of the President’s family was convicted of tax crimes and making false statements.  Many believe the prosecution was unjust.  And then came the pardon.  And the criticism.

No, not Hunter Biden.  In 2020, President Trump pardoned Charles Kushner, Jared Kushner’s father (Jared is married to Trump’s daughter, Ivanka).  It was not just Kushner.  Trump pardoned Steve Bannon, Paul Manafort, Roger Stone, and other allies.   Before that, Jimmy Carter pardoned his brother Billy.  Bill Clinton pardoned his half-brother Roger.  Even Abraham Lincoln pardoned a family member.

Now enter President Biden.  He pardoned his son Hunter yesterday for tax crimes and making false statements.  The criticism from both sides of the aisle was fast and furious.  

But Biden was right to pardon his son.  For starters, any parent would do the same thing.  There can be lots of debate about whether Biden should have made promises about pardons (he should not have) or whether Hunter would have been prosecuted if his last name was not Biden (he would not have).  And so on. But there should be no debate that a father should forgive his kid, whether he’s President or not.