Breaking -- Ariana Fajardo Orshan appointed to state circuit bench

By David Oscar Markus

Gov. DeSantis just appointed our former U.S. Attorney, Ariana Fajardo Orshan, to the state bench.  She previously served from 2012-2018 as a state judge (she was appointed by Rick Scott back in 2012) and then as U.S. Attorney from 2018-2021.   

I wonder if this is a first -- a state judge becoming U.S. Attorney and then getting re-appointed to the state bench.

Congrats to Ariana!

Trials and more

By Margot Moss 

The Operation Varsity Blues' Trial Begins

The trial of John Wilson and Gamal Abdelaziz began Monday.  The 2 men are accused of paying bribes to coaches and officials to have their children admitted to elite colleges.

The government claims that Wilson and Abdelaziz worked with fraud leader Rick Singer to portray the kids as athletic recruits when they weren't actually talented enough to compete in college athletics.  In her opening statement, the prosecutor offered, "This is not a case about wealthy people donating money to universities with the hope that their children get preferential treatment in the admissions process."  Instead, she contended that the case was about lies:  "Lies to obtain admissions spots that were bought and paid for."  As proof of these claims, the government plans to admit recordings of conversations Singer made with the parents.

The defense contends that donations is exactly what this case is about - or at least what the parents thought was happening but for Rick Singer conning them.  Wilson's attorney stated in Opening, "Rick Singer is one of the great con men of our time."  John Wilson "trusted a con man who stole his money.  That con man knows how to play people better than anybody in this courtroom."  The attorney said that the parents did not know that Singer was creating fake athletic profiles for the children applying to the schools and pocketing part of their donation money for himself.

Interestingly, the government does not plan to call Singer as a witness.  Turns out, Singer made notes at the times of the recordings with parents that the agents pressured him and "continue to ask me to tell a fib and not restate what I told my clients as to where [their] money was going - to the program not the coach and that it was a donation, and they want it to be a payment."  

So interesting.

Fifty seven people, including celebrities, business people, athletic coaches, proctors, and administrators, have been charged in the case since March 2019.  Forty six of them have pleaded guilty, and one parent was pardoned by former president Trump.  Wilson and Abdelaziz are the first to go to trial.

Meanwhile, another trial has ended early.

Arizona Federal Judge Declared a Mistrial in the Backpage Case

From Law 360:

An Arizona federal judge on Tuesday called an early mistrial in a pimping case against former executives and employees of Backpage.com, who argued that prosecutors had poisoned the jury with irrelevant stories of human trafficking.

U.S. District Judge Susan M. Brnovich ordered the do-over eight days into a trial that had lasted more than two months, dealing a win to defendants who sparred with the government for three years over admissibility of evidence in the sprawling case. Prosecutors are seeking to prove that former Backpage executives Michael Lacey and Jim Larkin and a half-dozen underlings facilitated prostitution with adult ads on the now-defunct classifieds site.

The Defense's scathing motion for Mistrial begins:

The government's opening argument was a parade of horribles about human trafficking destroying the lives of trafficked women and children, with barely any mention of charged counts and zero linkage of any Defendant to any charged count.  The opening offended the law, ignored indisputable facts, and consisted of inflammatory, unproven, and unprovable assertions that fail in any event to address what the government must prove to convict any defendant.

In the end, the judge agreed.

... and last, but not least ...

The Federal Bar Association Annual Meeting & Convention is Next Week!

Yaniv Adar, President of the South Florida Chapter of the FBA, and many others have been working extremely hard to put together what I'm sure will be a wonderful and informative event next week.  They've put together a great program, including local SDFL judges and speakers from across the country.   Register here to attend.  

 

#Womenalsoknowlaw

By Michael Caruso

Although there's a vigorous debate about the impact of social media on our lives, there's no debate that these platforms can enhance communication, collaborative learning, and creative expressions. In particular, Twitter is the home to many active law professors who write about the criminal legal system (and who also happen to be women). 

For example, Rachel Barkow (NYU/@RachelBarkow) is the author of  the recent book,  "Prisoners of Politics: Breaking the Cycle of Mass Incarceration." She's also at the forefront of advocating for systemic changes in our clemency process.  

Leah Litman (Michigan/@LeahLitman) writes on constitutional law, federal post-conviction review, and federal sentencing.  She's also the co-host of the Strict Scrutiny podcast that discusses the culture of the Supreme Court and individual cases. 

Melissa Murray (NYU/@ProfMMurray) is also a co-host of Strict Scrutiny. Professor Murray writes about criminal law as well as justice issues in our society. Many have mentioned her as being on President Biden's shortlist for the Supreme Court.  

Carissa Byrne Hessick (North Carolina/@CBHessick) heads the Prosecutors and Politics Project at UNC and will publish her book "Punishment Without Trial: Why Plea Bargaining Is a Bad Deal" next month. 

Last, but certainly not least, is our own Aya Gruber (Colorado/@AyaGruber). Professor Gruber is a former law clerk and AFPD in our district. Last year, she published her first book, "The Feminist War on Crime: The Unexpected Role of Women's Liberation in Mass Incarceration" to wide acclaim. Congrats Aya! 

If you're a Twitter user and have any interest in the criminal legal system, start following these important and engaging legal minds! 

#Womenalsoknowlaw

9/11 TWENTY YEARS LATER

 

By Phil Reizenstein

September is my favorite month, especially when I can spend part of it in New York, like I did last week. Fall is beginning to poke its way into the end of summer. The air was cold enough to make a Miami lawyer shiver, while New Yorkers ( I used to be one until Janet Reno hired me in 1986) wore shorts and T-shirts and soaked up the remaining sun. Saturday, the twentieth anniversary of the  9/11 attacks,  hung over everything, mostly unspoken, but never far away.

I grew up in Brooklyn, and I watched the twin towers being built. As a child I marveled at the predictions for Battery Park and the lower west side of Manhattan. There would be apartment buildings for people to live in! In lower Manhattan! This was a strange concept in the days when only struggling artists inhabited industrial lofts in an area of Manhattan vaguely known as “SoHo”.  

Fast forward to May 26, 1977, and I am staying at my father’s loft at 100 Wooster Street. He wakes me up and drags me to the roof  where we  watched George Willig climb South Tower Two. Willig made it to the top, was arrested, and later paid a fine. For me the Towers were no longer a symbol of Wall Street- they now had a little rebel New Yorker in them- an attitude I admired, like when Springsteen sings “When they said sit down, I stood up.” in Growin' Up.

As a New Yorker, I had one very specific need for the Towers: every time I got out of a subway station in Manhattan, I would spin around until I saw the towers; then I was oriented to downtown and uptown and could set off on my journey. The first time I exited a subway station after 9/11, I instinctively did my spin and did a futile 360- they were gone. 

Make no mistake, 9/11  impacted the American legal system.  The US Patriot Act – an Orwellian named law, expanded surveillance powers of government agencies to new heights. Guantanamo Bay became and remains the failed poster child for indeterminate detention. 

In Holder v. Humanitarian Law Project, 561 US 1, (2010)  CJ Roberts, writing for the majority, in a 6-3 decision,  upheld 18 U.S.C.A. §§ 2339A & B in which Congress prohibited almost any conduct that provided “material support” to a designated terrorist organization.  In other words, say what you want, do what you want, support whom you want, unless you are speaking out for, and supporting an organization Congress does not like (which in the 1950’s included the American Communist Party). The law has frightening implications.

Maybe Roberts thought he was just calling balls and strikes when he opined “If only good can come from training our adversaries in international dispute resolution, presumably it would have been unconstitutional to prevent American citizens from training the Japanese Government on using international organizations and mechanisms to resolve disputes during World War II.” Holder, 561 U.S. at 38. I understand the analogy, but a bit of judicial activism crept into Roberts’ reasoning IMHO. 

The 9/11 attacks took 2,977 lives that day (many more as the years wore on). It set our nation on a course of deadly, costly and destructive wars, and it permanently altered our legal system and enforcement of Constitutional rights. Rightly or wrongly,  a “terrorist exception” was created for the Bill of Rights out of our fears in the aftermath of the attack. And yet, as James Madison wrote in Federalist 41: "Security against foreign danger is one of the primitive objects of civil society, It is an avowed and essential object of the American Union." The tension between the Bill of Rights and the issues of modern America are as prominent and taut as ever.

One last personal note. I spent my formative years in Brooklyn hanging around the fishing docks in Sheepshead Bay until the captain of the Amberjack V took pity on me one day and said “get on the boat kid” which started a decade long love affair with a job as a mate on a fishing boat. In the days after the attack,  I saw pictures of the Amberjack V- my boat- rescuing people from Battery Park on 9/11 and taking them to New Jersey- anywhere in NY was thought to be too dangerous. I could not have been prouder to have been a New Yorker and a mate on the Amberjack.

 I am not sure this post is what David envisioned when he gave a bunch of us a shot at following in his large footsteps with the blog he built. I am grateful for the opportunity, and in the coming weeks and months (and years?) I  will endeavor to bring to your Monday mornings some of my thoughts on the intersection of legal and social issues from hopefully an interesting and personal perspective. Or Maybe David just says "WTF?"  and revokes my access. 

Balls and Strikes

by Robert Kuntz 

When I was a boy, “social media” meant mostly getting together to play baseball and football, the primary “platforms” of our interactions with our peers. We played endless games on our suburban streets, in our connected backyards, in neighborhood parks and even – when local school officials were insufficiently attentive to the locks on their gates – on actual ball fields. If we had enough kids – and at the tail end of the Baby Boom, we often did – we’d play 11-on-11 or 9-on-9 as the season demanded. If too many kids were sick or grounded or on vacation, we engaged in endless personnel adjustments to make the games even. Somebody might be the designated quarterback for both sides. Or the hitting team might provide its own catcher. But there was one position that was never filled: No one was going to waste valuable playtime being the referee or the umpire.

With the exception of the occasional squabble, our honor system worked a treat. If you stepped out of bounds (that is to say, into Mrs. Scheimann's yard), you stopped where you were. If you missed the tag before Billy Miller made it to the back corner of the Buick, you said so. And if too often you didn't, you were subject to the ultimate sanction: Kids who couldn’t be counted on to call it square – on themselves most of all – found their doorbell stopped ringing, because nobody cared if Mikey could come out to play, if Mikey was a cheat.

No one wanted to be the referee, or imagined he had the authority to appoint himself the umpire, but we knew that – at least as measured over the course a summertime baseball season – we had no need of an umpire, because we were all smart enough to sort out balls from strikes, to distinguish the salient truths from the possible fictions.

Not long after those idyllic days of my suburban youth, I was a newspaper reporter. Full of the glories of Bly and Sinclair and Mencken and Woodstein, I was determinedly certain that the Fourth Estate was the key element required for a healthy republic. Over the years, writing and participating in the production of thousands of stories, we mostly got it right. And when we didn’t – when the angry subject of a story called to tell us so, or when more reporting revealed our error – we’d run the correction.

We tried to get it right not merely because getting it right was the right thing to do. No lofty J school platitudes were necessary, nor would they have been sufficient for our readers to trust us. Rather, our bosses’ business models depended on us getting it right, and our jobs depended on serving our bosses' business models. No publisher was long going to employ a reporter who generated too many corrections, because no reader wanted to read a paper that got it wrong, and no advertiser wanted to advertise in a paper that no one read – and no publisher wanted to run a paper that couldn’t make money.

Thus was the circle of accountability drawn (with the assistance of the paper across town, back when towns of any size had more than one paper, ever-eager to call out our mistakes).

But there still were no referees – at least not outside the jury in a libel trial, if you got it that wrong.

Part of the process of getting it right was fact checking. Yes, even back in the prehistoric era when the signature sound of the newsroom was a clattering teletype, and you could smoke at your desk, we had fact checkers. Smaller publications gave the task to someone in the newsroom without a pressing assignment in the moment. Large publications, especially periodicals with long lead times, often employed folks whose entire job it was to run down everything the reporter put into the story and confirm its veracity: “Sheriff Gilbert, our reporter Robert Kuntz visited with you Tuesday for an interview about the new civilian oversight committee. Did you in fact say. ‘I’m the law in this county. I’m the law. Me.’” If the sheriff, hearing his pronouncement in the voice of another, had reason to wish he hadn’t said what I said he said, he might denounce the quote to the fact checker. Then the fact checker came back to me and vetted the details. He asked to see my notes or to listen to the tape, and then made a call – subject to appeal to an editor – about whether the quote would be published or not. [Sheriff Gilbert said exactly that, by the way. I had the tape. We ran the quote.]

But like the call on whether Johnny Newman had crossed the line between the maple and the birch trees that demarcated the end zone, the fact checking process took place among the players.

Today’s professional “fact checkers” operate in an entirely different system. They sit outside the organizations they monitor, apart from the writers – professional journalists and casual Twitter tweeters alike – and they rarely if ever consult those writers or speakers before rendering their unappealable judgments: “Misinformation.” “Misleading.” “Lacks context.” “Disputed.” “Partly false.” Those judgments are then executed not merely with the generation of a correction, but often by disappearing the offending story entirely. More than that, with the flip of a switch, today’s fact checkers can silence not only the story but the story teller, and not only from a single platform, but from practically all of them.

Which might be alright, I guess, if fact checkers were selected from human stock inherently more trustworthy and less prone to bias or self-interest than adolescent ballplayers or small town reporters. But they, predictably, aren’t. And it might be alright if it didn’t turn out – as it, predictably, has – that "independent" fact checking has a business model of its own.

So when the limits of discourse are imposed from without, by the diktats of folks who make their living drafting those diktats, might it be time at least to ask qui bono?

In this month’s Harper’s Magazine, Joseph Bernstein (who, without irony, is described as a “Senior Report at BuzzFeed News”) does just that in his article “Bad News: Selling the Story of Disinformation.” In exhaustive, troubling detail, Bernstein examines the ways in which politics, culture, commerce, and technology have intersected to weaponize “fact checking” into the ultimate political power tool. (And Bernstein goes a long way to dismantling the comfortable rationalization and rhetorical off ramp that, since none of this “private action” falls under the ambit of the First Amendment, it is no legitimate cause for concern.) The piece should be required reading for anyone with even a passing interest in participatory democracy in the Twenty-first Century.

Back in the day, if one of our gang had volunteered for the job of umpire, and especially if he’d done so every time we got together to play, and most especially if he'd figured out how to fund his baseball cards and sodas by doing so, we would have been profoundly dubious, we'd have had a chat with him about his motives, and we would have kept our collective eye on how he was calling the balls and strikes.

Whatever you think of the President immediately preceding the current one, it’s probably worth at least asking if a system that bans his narcissistic, blustering bombast but platforms terror organizations’ manifestos is entirely in balance. One might, it seems, reasonably wonder if silencing every slightly heterodox voice giving consideration to something as staggeringly complex as managing a global pandemic is the very best way to vindicate the once sacred notion of a marketplace of ideas. And so on to a score of examples more or less daily.

It's a precept so old Juvenal asked it in Latin, and so timeless it's the title of a Star Trek episode: As Bernstein's piece conclusively demonstrates, barest prudence demands we pay attention to who exactly is doing the banning and the silencing and why.

Sports Cases on an NFL Opening Weekend

By John R. Byrne

For starters, I’d like to thank David for giving me the opportunity to post on his blog.  He’s created something special, and I’ll do my best to meet the high standards he has set.

Given that we already have a great group of (mostly) criminal law-focused bloggers, I plan to focus my posts on the civil side of the federal fence.  Still, today, in keeping with the theme of this post, I’m covering a few criminal cases. 

1.  Clinton Portis—the former University of Miami and NFL running back—pled guilty this week to participating in a health care fraud scheme.  The scheme involved submitting false claims to the NFL Player Health Reimbursement Account Plan.  Although the case was prosecuted in the Eastern District of Kentucky, there is a Miami nexus (the Miami FBI Field Office helped with the investigation).  Miami sports fans may recognize another defendant, Tamarick Vanover, who played at FSU and later the NFL (in one Miami-FSU classic at the Orange Bowl, he took the opening kickoff to the house).

2.  The Dolphins open the season against the New England Patriots.  Back in February of 2019, Florida state prosecutors charged the owner of the Pats, Robert Kraft, with misdemeanor solicitation (a charge that was dropped).  In late July, Palm Beach County Judge Leonard Hanser ordered the state to destroy the previously suppressed video evidence (this followed a S.D. Fla. federal court order this past January ordering the video’s destruction).  The case had many a twist and turn and Vanity Fair published a long article about it, if you’re interested in reading more.  

3. In golf news, a week or so back, Judge Ruiz issued an order granting summary judgment to the PGA Tour in a lawsuit filed by Hank Haney.  In short, Haney had blamed the PGA Tour for costing him his radio show at Sirius XM Radio (Sirius had cancelled Haney’s show after he made comments predicting a “Korean” to win the U.S. Women’s Open and going with the last name “Lee” because, if he “didn’t have to name a first name, I’d get a bunch of them right.”).  Order was picked up by ESPN and other news outlets. 

4.  Finally, and on a non-sports note, the high-profile federal criminal trial of Theranos founder Elizabeth Holmes began this past week.  You can read about the opening statements here.  Both sides seem to have the right strategy, with the defense looking to humanize Holmes and calling her "innocent" and the government portraying her as a greed-driven executive. 

 Hope everyone has a great weekend and that the Dolphins get the W.

 

Shadow Dockets

 

By Marissel Descalzo

 

Thank you David for inviting me to serve as a guest blogger.  I’m very excited for this opportunity to contribute to the community you’ve created.

 

If you’ve been following the news over the past few days, you’ve probably heard about the Supreme Court’s cryptic “shadow docket.” The “shadow docket” is a phrase coined by William Baude, a professor at the University of Chicago Law School, to describe the use of emergency orders and summary decisions by the Supreme Court without full briefing and oral argument. 

 

Shadow docket cases typically arise from emergency requests to stop a lower court’s decision where the applicant has to show “irreparable harm” absent immediate intervention. The Supreme Court has historically used the shadow docket to decide unambiguous cases (e.g., federal death penalty cases). 

 

Recently, there has been a recent shift in the type and number of cases being decided on the shadow docket. In the past 18 months, the Supreme Court has issued shadow docket decisions on issues involving the COVID-19 pandemic, restrictions on places of worship, and changes to voting rules during the pandemic.  

 

In the last week of August alone, the court decided three highly politically charged issues – the Biden administration’s eviction moratorium, the Trump administration’s “Remain in Mexico” policy, and the new Texas abortion law – all on the shadow docket. Arguably, the most controversial decision related to the Texas abortion law.  The decision was widely reported and criticized, even David blogged about it  and was reported throughout mainstream media, including was the Texas abortion law  HERE.

 

Critics claim that the “right” is using the shadow docket to push an agenda.  Steve Vladeck, a law professor at the University of Texas School of Law, strongly supports this view.  He’s been tracking the shadow docket and reports that 41 requests for emergency relief were submitted by the Trump administration, while only eight were submitted by the Obama and Bush administrations combined.  More about Professor Vladeck’s opinions can be found HERE.

 

Whatever the motivation, the use of the shadow docket is certainly troubling and downright dangerous.  Significant issues that affect our legal system and vulnerable populations are being decided without the benefit of briefing, oral argument, and public input through amicus briefing.  Here’s to hoping that these matters shift back into the light and out of the shadows!

 

 

---

 

Some good reads and great things to watch.

 By Margot Moss:

1.  “I helped destroy people.”  No - not the words of Sal Magluta during the era of the Cocaine Cowboys.  That’s FBI agent Terry Albury.  Albury says that he, along with his colleagues, “were compelled to commit civil and human rights violations.”  The story is here in this Sunday’s New York Times Magazine section.  Albury stated:  We’ve built this entire apparatus and convinced the world that there is a terrorist in every mosque, and that every newly arrived Muslim immigrant is secretly anti-American, and because we have promoted that false notion, we have to validate it. So we catch some kid who doesn’t know his ear from his [expletive] for building a bomb fed to them by the F.B.I., or we take people from foreign countries where they have secret police and recruit them as informants and capitalize on their fear to ensure there is compliance. It’s a very dangerous and toxic environment, and we have not come to terms with the fact that maybe we really screwed up here,” he says. “Maybe what we’re doing is wrong.”  Albury became so convinced that it was wrong that he leaked documents to the media “exposing the hidden loopholes that allowed agents to violate the bureau’s own rules against racial and religious profiling and domestic spying as they pursued the domestic war on terror.”  For sending these documents, Albury was arrested and sentenced to 4 years in prison.  

Sometimes, the bad guys in the courtroom aren’t the defendants.  

2.  In another good read, a law review article examines the “deep flaw” of the sentencing guidelines’ loss section, which “routinely recommends arbitrary, disproportionate, and often draconian sentences.”  Not only does the loss section fail to address unwarranted disparities among similarly-situated individuals, but it “actively exacerbates them.”  Barry Boss and Kara Kapp lay out the history of the guideline, give examples of the outrageous sentences it recommends, and offers reforms that we should pay attention to. 

They point out that some courts “have called the loss tables ‘patently absurd’ and ‘a black stain on common sense’ that rely upon a ‘flawed methodology for tabulating white-collar sentences[.]’  Accordingly, courts have concluded that imposing sentences corresponding to the loss tables would ‘effectively guarantee[ ] that many such sentences would be irrational on their face.’”

Unfortunately, not all courts see it that way and continue to give guideline sentences using the 2B1.1 table.  That’s why reform is necessary.  Boss and Kapp first suggest calculating loss based on actual loss, not intended loss.  Or, in the alternative, to find that the intended loss was substantially likely to occur.  These seem like great places to start.  We all know that Medicare never pays what it’s been billed – if it pays at all.  What do blog-readers think?

3.  I’m fully aware that this is a blog largely devoted to the Southern District of Florida news and notes and other federal goings-on around the country.  But I can’t make my first post without giving a huge shout out to state Chief Judge Nushin Sayfie.  For years, I worked by her side as an APD and then looked up to her on the state bench in Miami.  She is a force and an incredible asset to our community.  And how great is it to have a former criminal defense attorney as the top dog?!  The Passing of the Gavel ceremony recognizing her election as Chief Judge of the 11th Judicial Circuit is this Friday, September 10 at 12:15.  You can watch it live here on YouTube.  Congratulations, Chief Judge Sayfie!

4.  Finally - R.I.P. Michael K. Williams, aka Omar Little, the greatest character on one of the best series on television, The Wire.  If you haven’t watched it, the show is a must-see.  I know David O. Markus likes it.  Here is Michael K. Williams/Omar in a classic scene: