Senate Judiciary Hearing tomorrow at 10am for Bloom & Gayles

Judicial Nominations
Full Committee
Date: Tuesday, April 1, 2014
Time: 10:00 AM
Location: Dirksen 226
Agenda
Beth Bloom, to be United States District Judge for the Southern District of Florida
Paul G. Byron, to be United States District Judge for the Middle District of Florida
Darrin P. Gayles, to be United States District Judge for the Southern District of Florida
Carlos Eduardo Mendoza, to be United States District Judge for the Middle District of Florida

Mutual Benefits Joel Steinger pleads guilty

This was going to be a very long trial with lots of hurdles including a defendant who would have needed lots of medical attention during trial day.  So I'm sure many people are relieved that it's over.  From the DBR:

Joel Steinger, the mastermind behind an $800 million viatical scam run by Fort Lauderdale-based Mutual Benefits Corp., pleaded guilty Friday to fraud conspiracy in two cases pending against him.
Federal prosecutors charged Steinger stole tens of millions of dollars from the company that purchased life insurance policies of seniors and critically ill people. The business plan was to buy discounted policies and make money for investors when the policies matured.
Regulators charged Mutual Benefits faltered when HIV-infected people started living longer because of new medications. Steinger and his brother, Steven Steiner, then turned the enterprise into a Ponzi scheme, prosecutors said.
In a factual proffer signed by Steinger on Friday, he said he made false promises about returns and single-handedly made decisions on life expectancy projections for thousands of policies in a fraud that ran from 1994 to 2004.
"Many investors were falsely told that as many as 80 percent of all MBC policies matured on time or early," according to the proffer.
Mutual Benefits was placed in receivership.
Steiner was sentenced in February to 15 years in prison for his role in the fraud. The company's general counsel, Michael J. McNerney, also pleaded guilty and was sentenced to five years in prison.
Fort Lauderdale attorney Anthony Livoti Jr., who served as the trustee for Mutual Benefits, was convicted at trial last year of multiple counts of fraud and is scheduled to be sentenced Tuesday by U.S. District Judge Robert Scola in Miami.
Steinger once lived in a Fort Lauderdale waterfront mansion but has been held without bond for about 1½ years. He uses a wheelchair because of severe back pain, and prosecutors made arrangements for him to appear at a hearing on his medical condition last week via a video feed from the jail.
Under the plea agreement, the government will drop 24 other fraud counts against Steinger. Prosecutors claimed in the plea agreement filed Friday that there were 250 victims of the fraud.

Is it me or did the first quarter of the year fly by?  Spring break is over and baseball season is here.  It was a pretty quiet 3 months in the District..... Any trials coming up?  Send me your tips, which as always will remain anonymous -- dmarkus@markuslaw.com

Should prosecutors be able to use rap lyrics as evidence?

That's the question posed by the front page of the NY Times today:

No suspects. No sign of the gun used to shoot the men. No witnesses to the shooting outside a house where officers found Mr. Horton sprawled next to a trash can and Mr. Dean on the front porch.

But in 2011, the case was reassigned to a detective who later came across what he considered a compelling piece of evidence: a YouTube video of Antwain Steward, a local rapper with the stage name Twain Gotti, performing his song “Ride Out.”

“But nobody saw when I [expletive] smoked him,” Mr. Steward sang on the video. “Roped him, sharpened up the shank, then I poked him, 357 Smith & Wesson beam scoped him.”

Mr. Steward denies any role in the killings, but the authorities took the lyrics to be a boast that he was responsible and, based largely on the song, charged himlast July with the crimes.

Today, his case is one of more than three dozen prosecutions in the past two years in which rap lyrics have played prominent roles. The proliferation of cases has alarmed many scholars and defense lawyers, who say that independent of a defendant’s guilt or innocence, the lyrics are being unfairly used to prejudice judges and juries who have little understanding that, for all its glorification of violence, gangsta rappers are often people who have assumed over-the-top and fictional personas.

“If you aspire to be a gangsta rapper, by definition your lyrics need to be violent,” said Charis E. Kubrin, an associate professor of criminology, law and society at the University of California, Irvine.

But prosecutors say the lyrics are an important tool for battling criminals who use an outspoken embrace of violence as a weapon of control. “Just because you put your confession to music doesn’t give you a free pass,” said Alan Jackson, a former senior prosecutor in the Los Angeles County district attorney’s office.

In some of the cases, the police say the lyrics represent confessions. More often, the lyrics are used to paint an unsavory picture of a defendant to help establish motive and intent.

THe whole article is worth a read.  What do you all think?

Sen. Rubio issues blue slip for Judge Gayles

Via the Huffington Post (ht Glenn Sugameli):

WASHINGTON -- Florida judicial nominee Darrin Gayles just inched a little closer to becoming the nation's first black, openly gay man to serve as a federal judge.Sen. Marco Rubio (R-Fla.) has given the green light to the Senate Judiciary Committee to proceed with Gayles' nomination to the U.S. District Court for the Southern District of Florida, a committee aide confirmed to The Huffington Post on Tuesday. Specifically, Rubio has submitted his "blue slip" to the committee, a crucial step in the confirmation process whereby a senator can unilaterally approve or block a judicial nominee from his or her home state.Now that both of Gayles' senators have submitted their blue slips -- Florida Democrat Bill Nelson already turned his in -- that signals to committee chairman Patrick Leahy (D-Vt.) to move forward with a hearing. Gayles still has to clear the committee and pass the Senate, but Democrats are expected to carry those votes. By turning in his blue slip, Rubio has removed the biggest obstacle to Gayles' confirmation.

The initial hearing may be as soon as next week.  Congratulations on this big step forward for Judge Gayles.  I assume the blue slip was also issued for Judge Bloom, but I have not yet found any confirmation for that.

Tuesday's news and notes

1.  Bryan Garner has a list of words you should not use in legal writing.  Here are a few from the article:

and/or Is it a word? Is it a phrase? American and British courts have held that and/or is not part of the English language. The Illinois Appellate Court called it a "freakish fad" and an "accuracy-destroying symbol." The New Mexico Supreme Court declared it a "meaningless symbol." The Wisconsin Supreme Court denounced it as "that befuddling, nameless thing, that Janus-faced verbal monstrosity." More recently, the Supreme Court of Kentucky called it a "much-condemned conjunctive-disjunctive crutch of sloppy thinkers."
If a sign says "No food or drink allowed," nobody would argue that it's OK to have both. (Or includes and.) And if a sign says "No admission for lawyers and law students," would you argue that either could go in alone? You'd be thrown out of court.
The real problem with and/or is that it plays into the hands of a bad-faith reader. Which one is favorable? And or or? The bad-faith reader can pick whatever reading seems favorable.
I've done lots of drafting since 1987, the year when I learned how unnecessary and/or really is. I've drafted court rules, jury instructions, model contracts, car warranties and many other documents. Never once have I needed and/or. You won't either. Kill it.
herein Old-style drafters say they stick to their ways for reasons of precision. They like the here and there words—apparently unaware of the ambiguities they're creating. The problem with herein is that courts can't agree on what it means. In this agreement? In this section? In this subsection? In this paragraph? In this subparagraph? Courts have reached all those conclusions and more. Use ordinary English words: in this agreement may be two extra words, but it's more precise.

2.   The Supreme Court isn't going to change its access policies (big surprise).  From Tony Mauro:

The U.S. Supreme Court has “no plans to change” its practices on access to its proceedings, a court spokeswoman said in a letter on March 21. Court public information officer Kathy Arberg was responding to a March 9 letter from the Coalition for Court Transparency, a new group of media and public interest organizations pressing for “policies that will help the public better understand [the court’s] important work.” Addressed to Chief Justice John Roberts Jr., the coalition letter urged the court to allow camera broadcast of court proceedings or, as an “intermediate step,” same-day release of the audio of oral arguments. Under current practice, the audio of oral arguments is released on the Friday of the week in which they occur—too late to be useful in same-day or next-day news coverage. Arberg’s letter notes that “the audio recordings of all oral arguments are available free to the public on the Court’s website, wwww.supremecourt.gov, at the end of each argument week. The written transcripts of oral argument are available on the Court’s website on the same day an argument is heard. There are no plans to change the Court's current practices.” The letter was addressed to Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, a leader of the coalition. Brown said on Monday, "I am appreciative that the Supreme Court responded to our coalition’s letter. I do believe that the smallest of changes to the court’s institutional practices would increase the public’s understanding of and appreciation for the court’s work. I hope that this marks the beginning of a dialogue between the court and those of us who care deeply about press freedom and increasing transparency at our most important judicial institution.” The statement from the court came the same day that a forum on the subject of transparency at the Supreme Court took place in Washington. Co-sponsored by the coalition, New York University and the Reporters Committee, the discussion was the second in a series that went beyond issues of broadcast access to look at ways the court could respond to Information Age demands for greater openness from government. Concerns ranged from the justices’ failure to explain their recusals, to the secrecy that sometime surrounds their public appearances and speeches. Georgia State University College of Law professor Eric Segall objected to the court’s practice of not revealing which justices voted for or against granting review of incoming petitions. “That is an incredibly important vote, and there is simply no reason why we shouldn’t know it,” he said.

3.  P.J. O'Rourke has filed a great and funny brief in the Supremes (access it here).  The NY Times covers it:

That is the point Mr. O’Rourke and the libertarian Cato Institute made in their cheeky, hilarious and quite possibly counterproductive brief. They said they were “unsure how true the allegation is given that the health care law seems to change daily, but it certainly isn’t as truthy as calling a mandate a tax.”

Truthiness, the brief explained, is a characteristic of a statement made “from the gut” or because it “feels right” but “without regard to evidence or logic.” The reference to “calling a mandate a tax” is, of course, a nod to Chief Justice John G. Roberts Jr.’s 2012 opinion upholding a central part of the Affordable Care Act.The guidebook for Supreme Court lawyers does not address whether it is a bad idea to mock the chief justice of the United States as you seek his vote, but that does seem to be the consensus view.The actual legal question before the justices is, as is so often the case at the court, a preliminary one. Here it is whether the anti-abortion group is entitled to sue at all. On the one hand, the Ohio Elections Commission said there was probable cause to think the group had violated the law. On the other, the matter fizzled out after Mr. Driehaus lost the election.

The federal appeals court in Cincinnati dismissed the suit, saying the group no longer had anything to worry about. In earlier decisions, courts have upheld the law.But that was before United States v. Alvarez, a Supreme Court decision issued the same day as the health care ruling. It struck down a federal law that made it a crime to lie about receiving military decorations, and it cast doubt over the constitutionality of the Ohio law and similar ones in 15 other states. Mr. O’Rourke connected the dots on the first page of his brief, assuring the justices that he, his lawyers, his family members and his pets “have all won the Congressional Medal of Honor.”

Hobby Lobby case heard today, during Spring Break

While most of Miami is skiing in Colorado, the High Court is hearing an important case. From the LA Times:

 A challenge to part of President Obama's healthcare law that hits the Supreme Court on Tuesday could lead to one of the most significant religious freedom rulings in the high court's history.Four years ago, in their controversial Citizens United decision, the justices ruled that corporations had full free-speech rights in election campaigns. Now, they're being asked to decide whether for-profit companies are entitled to religious liberties.At issue in Tuesday's oral argument before the court is a regulation under the Affordable Care Act that requires employers to provide workers a health plan that covers the full range of contraceptives, including morning-after pills and intrauterine devices, or IUDs.The evangelical Christian family that controls Hobby Lobby Stores Inc., a chain of more than 500 arts and crafts outlets with 13,000 workers, says the requirement violates its religious beliefs.Some contraceptives can "end human life after conception," the Green family says. Forcing the owners to pay for such devices would make them "complicit in abortion," their lawyers say.A ruling in their favor could have an effect on tens of thousands of women whose employers share the Greens' objections to some or all contraceptives.But the case could also sweep far beyond just this one provision of Obamacare. The justices have been wary of accepting claims that religious beliefs can exempt people — or companies — from following laws that apply to everyone. The court's previous religious freedom cases usually involved narrowly focused claims from religious minorities, such as the Amish or Seventh-day Adventists.But the current court, led by Chief Justice John G. Roberts Jr., has shown a greater interest in religious freedom claims. And because the objections to the contraceptive mandate come from Catholic bishops and evangelical Christians, not small or obscure sects, the potential effect has been magnified. The Obama administration argues that if the justices allow Hobby Lobby to refuse to pay for contraceptives because of its owners' religious beliefs, the way would open for religious objections to a broad array of laws. Companies potentially could shape the benefits they offer, and perhaps even their hiring, based on their religious convictions.

Meantime, Justice Scalia is answering questions about the NSA (from Business Insider):

Supreme Court Justice Antonin Scalia got an incredibly astute question from a law student Friday night that could have huge implications for the NSA's domestic surveillance programs.The question came during a spirited Q&A curated by Brooklyn Law School's Judge Andrew Napolitano, who asked Scalia about the controversial subject of the NSA's surveillance of Americans.Scalia made it clear the issue would likely come before the high court, and he hinted he would rule that "conversations" (i.e., the conversations the government might listen to) aren't protected by the Fourth Amendment. The Fourth Amendment, Scalia pointed out, prohibits the government from searching your "persons, houses, papers, and effects" without a warrant — not "conversations."However, one student asked the justice whether data in a computer might be considered "effects" under the Fourth Amendment, an interpretation that would prohibit the NSA's capture of communications over the Internet.Scalia, who's remarkably avuncular in person, was visibly pleased by the question but said he "better not answer that.""That is something that may well come up [before the Supreme Court]," Scalia added.

Read more: http://www.businessinsider.com/justice-scalia-talks-fourth-amendment-at-bam-2014-3#ixzz2wt19p7IH

"[T]his case shows every sign of being an overzealous prosecution for a technical violation of a criminal regulatory statute -- the kind of rigid and severe exercise of law-enforcement discretion that would make Inspector Javert proud."

That's from the dissent of a criminal case in the 7th Circuit, which voted to uphold the criminal conviction.  Weird.  Here's the entire opinion.




Lots of people are clamoring for Ruth Bader Ginsburg to retire while Obama is in office.  Slate's Dahlia Lithwick thinks they are nuts:

Arguments about Ginsburg’s political judgment almost by necessity inflect upon her judgment as a whole, and yet nobody has advanced any argument for the proposition that Ginsburg’s judgment is failing. The suggestion that the woman who engineered the ACLU’s litigation strategy in the courts, who wrote the partial dissent in the health care cases, and again in last year’s voting rights case, and in Vance v. Ball and UT Southwestern Medical Center v. Nassar, doesn’t understand real-world politics is actually pretty bizarre. Of all the sitting justices, Ginsburg is probably the least likely to simply forget to retire because it slipped her mind. (One can, on the other hand, plausibly imagine Breyer simply forgetting to step down.)

Over at the Atlantic, professor Garrett Epps has just written in defense of Ginsburg. You should read the whole piece, but two important points he makes are worth repeating: Ginsburg plays a crucially important role in the Roberts Court as the senior justice on the liberal bloc, not just in terms of assigning opinions but in terms of writing them. If anything, Ginsburg has been stronger in recent years than ever and has been a crisper, more urgent voice for women’s rights, minority rights, affirmative action, and the dignity of those who often go unseen at the high court than ever before. She has gone from rarely reading her dissents from the bench to doing so with great frequency, calling out the majority for what she sees as grave injustices and proving that her voice is both fiery and indispensible. Telling her that her work is awesome, but it’s time to move on is tantamount to saying that a liberal is a liberal and that Ginsburg brings nothing to the table that another Obama appointee will not replicate. That analysis suffers from exactly the same realpolitik flaw Ginsburg’s critics ascribe to her: that counting to four, or five, is more important that the justice herself. Ginsburg, like Antonin Scalia, is writing those dissents for law students, for the case books, and for Congress. Not all justices are created equal in that regard.

Epps’ other point is that knowing when you’ve stayed at the court too long is a complex and deeply personal inquiry, and that many of the justices who overstayed their time were blind to their own illnesses and failings. Others left before they should have. But of all the justices now at the court, Ginsburg strikes me as the least isolated, the least self-involved, and the least likely to surround herself with sycophants telling her to stay on. Ginsburg is not a Justice who reads no newspapers, vacations alone, or hides out from the world. Her travel and speaking schedule is punishing. She is as deeply connected to the world around her as she has always been.

OK people, have a wonderful spring break.

Great event for trial lawyers

The local Federal Bar Association has a great event this Monday for trial lawyers.

Kerri Ruttenberg of Jones Day will be speaking on how to create and use demonstratives. It's worth your time. From the FBA website:

Cutting-Edge Trial Techniques: Effective Use of Technology and Design of Visuals- March 24, 2014, 11:45am at Holland and Knight

The Women's Iniative proudly presents "Cutting-Edge Trial Techniques: Effective Use of Technology and Design of Visuals" featuring Kerri Ruttenberg, a Partner at Jones Day in Washington D.C. Based on her 15 years of trial experience, including working with graphic designers and interviewing jurors, Kerri is nartionally renown for her CLE programs on the effective use of graphics and visual presentations in the courtroom. Space is limited!

Justice Kagan says be happy!

From the AP:

Supreme Court Justice Elena Kagan says the happiest lawyers are those who find a way to make a difference in other people's lives.

The high court's youngest justice says the feeling of making a difference in the world is what makes people enjoy going to work every day.

Kagan spoke Monday to graduating students at Georgetown University Law Center.

Kagan said she was inspired by working as a law clerk for Justice Thurgood Marshall, who convinced her that a meaningful career for lawyers meant making a difference "in something bigger than themselves." She said she loved being a lawyer because of the intellectual puzzles it presents and the fact that people can use the law to help others.

According to the feds, maybe the former Hialeah Mayor took this a bit too far (via the Herald):

Former Hialeah Mayor Julio Robaina had a reason he wanted to be paid in cash secretly on a high-interest loan to a convicted Ponzi schemer: He was spending the money on his mistress and needed to keep it secret from his wife, according to federal prosecutors.

Prosecutors claim that Robaina was paid more than $300,000 in cash by his close friend, Luis Felipe Perez, now in prison after pleading guilty to running a $45 million jewelry-investment scam. But in court papers, the prosecutors don’t identify the alleged mistress on whom Robaina spent the cash payments.

The new evidence — hidden from public view since last month because of a federal court order —surfaced in the criminal tax-evasion case against Robaina and his wife, Raiza, on Monday, after a magistrate judge granted the Miami Herald’s request to unseal certain documents.

“The government expects its evidence to show that the cash interest payments were delivered to defendant Julio Robaina, rather than defendant Raiza Robaina,” prosecutors wrote in a previously sealed February filing.

Federal Clerk charged in Dewey & LeBoeuf scandal

The New York Times has this very interesting (and sad) article here:

How did a 29-year-old with an impeccable record, someone who had never even taken an accounting course, end up as an accused mastermind of what the Manhattan district attorney, Cyrus Vance Jr., called “a massive effort to cook the books” of the once-giant law firm? And how did he get there without realizing he should hire a lawyer?

According to several criminal defense lawyers I spoke to this week, Mr. Warren became caught up in an increasingly common prosecutorial tactic. Mr. Warren may have been naïve, but he thought he was being questioned as part of a civil Securities and Exchange Commission investigation. He thought he might be a witness, and thus did not need a lawyer. Only too late did it dawn on him that he might be a target of a criminal investigation. The defense lawyers said prosecutors were increasingly using so-called parallel investigations to insert criminal investigators into what their targets thought were civil proceedings.

“It’s a serious threat to civil liberties, and people should know about it,” said Thomas J. Curran, a criminal defense lawyer in New York and a former prosecutor under the former Manhattan district attorney Robert Morgenthau. “Now, this is going on all over the country.” While this isn’t illegal or technically improper, “It’s dangerous,” Mr. Curran said. “They’re using civil proceedings to advance their criminal investigations. It’s a real threat to the cherished right to counsel.”

Judge Carnes wrote this money laundering guideline opinion, which has the following intro:

An application note to the guideline that governs the calculation of the offense level for money laundering instructs courts to consider only the money laundering offense itself and not the underlying crime that generated the money that was laundered. See United States Sentencing Guidelines § 2S1.1 cmt. n.2(C) (2013).1 In this case the district court in calculating the guidelines range mistakenly considered the defendant’s role in the drug conspiracy that generated the dirty money. As a result, the defendant received a higher adjusted offense level and guidelines range than he might have received if the application note to § 2S1.1 had been followed. That mistake and the resulting miscalculation must be laundered out of the sentence in a resentence proceeding.

Oh, and Happy St. Patrick's day:

Happy Pi Day!

Judge Posner is cranky.  From Alison Frankels' blog:

The acerbic judge was at his worst – or best, depending on your perspective – in an opinion Wednesday that’s already become an instant classic. Posner mocked the brief filed by a car crash victim and her lawyer, who were found in civil contempt for failing to deposit $180,000 in a trust account while they fight over the money with a union healthcare fund, as “a gaunt, pathetic document” with a grand total of 118 words of argument (including citations). He said the conduct of the crash victim and her lawyer was “egregious” and “outrageous,” and directed the trial judge presiding over their dispute with the union fund to consider throwing them in jail for contempt until they’ve come up with the $180,000. Posner suggested that the Justice Department might also be interested in the case, and then, to boot, scolded the trial judge, U.S. District Judge Joan Lefkow of Chicago, for permitting the case to drag on as “the stench rose.”

Judge Huck visits the 9th Circuit

The Recorder covers the story here (ht Vanessa Blum):

A San Diego lawyer's claim that virtual auctioneer eBay breaches its contract with millions of sellers ran into a marble wall Wednesday in a Ninth Circuit courtroom.
Roy Katriel is trying to bring a class action against eBay Inc. on the ground that the company helps bidders obtain the lowest sale price possible, despite promising in its user agreement to remain neutral in all transactions.
"What they put in the agreement is very specific. They said, 'We are not involved in the actual transaction,'" Katriel told the court Wednesday. "Now it turns out they are."
Under eBay's process, bidders enter the maximum they're prepared to bid. The company's software then discloses only so much as necessary to beat the previous high bid. So if a user authorizes a $50 bid, and the previous high bid is only $40, the user gets the item for $41. That shortchanges sellers, Katriel alleges in Block v. eBay.
There's one glaring problem with his argument. "Doesn't everybody who enters a bid on eBay understand what the system is?" Judge Stephen Reinhardt asked.
***
The third member of the panel, visiting U.S. District Judge Paul Huck of Florida, sounded even more skeptical than Reinhardt and Farris. He compared eBay to a mediation neutral that simply shuttles offers back and forth between parties, with "no dog in the fight."
But, Katriel argued, if a party told the mediator, "I'll pay up to $80, but try to get it for me for less ... he'd be working on your behalf."
Cooley partner John Dwyer, representing eBay, had a far easier time. In fact, he faced zero questions during his 10-minute argument. He said eBay's user agreement "strongly recommends" that users also read about the automatic bidding process, which can be accessed via a drop-down menu. "He never alleges they were misled about how the automatic bidding system works," Dwyer said.
The statement about staying out of the bidding process is only a limitation of liability that makes clear eBay isn't acting as a fiduciary like some traditional auction houses, he said. "What it's saying is, 'Hey, if you think you're with Christie's or Sotheby's, you're not.'"

Law school rankings are out

Here's the latest from U.S. News:

FSU #45 (up from 48)
UF #49 (down from 46)
UM #61 (up from 76)
Stetson #93 (up from 109)
FIU #100 (up from 105)

Not Ranked in the top 150: Nova, St. Thomas, Ave Maria, Barry, Florida A&M and Florida Coastal

Too good not to post

Between Two Ferns with Zach Galifianakis: President Barack Obama from President Barack Obama

11th Circuit decides to hear habeas case en banc

The issue in Spencer v. United States isn't one of great significance -- it deals with whether a defendant who raised the issue at sentencing and on direct review can raise it on a 2255 when there has an intervening change in law.  But it keeps the streak alive in the 11th Circuit for granting en banc review *only* when the defendant wins.  I cannot remember the last time the 11th Circuit granted review when the government won.  And because two of the judges who participated in the panel decision -- District Judge Brock Hornby and Senior Judge Kravitch -- won't be reviewing the case en banc, the case is almost certainly going to be reversed. 

Here's the panel's holding:

We hold that a defendant who unsuccessfully raised a career offender issue at both sentencing and on direct appeal can use a timely-filed first motion under 28 U.S.C. § 2255 to pursue the same issue when an intervening case from the Supreme Court validates his argument and applies retroactively. Under that intervening case, this defendant’s third degree Florida felony child abuse conviction no longer qualifies as a predicate crime of violence. He therefore is not properly treated as a career offender. We vacate the district court’s denial of his section 2255 motion and remand for resentencing.

Seems rather straight forward.  But I think this case raises two important issues --

1)  If the 11th Circuit is going to allow as many visiting judges as it allows, then if the case is heard en banc, the judges who sat on the panel should be permitted to hear the case en banc.  Here, Judge Kravitz was permitted to sit en banc but decided not to.  But the author of the opinion, Judge Hornby, cannot.

2)  The 11th Circuit should hear more cases en banc where the government is successful, especially because there are so many important decisions being made where there is only one active judge on the panel.

Judge Robin Rosenbaum vote today (UPDATED with vote)

The Senate Judiciary Committee will vote today on Judge Rosenbaum's nomination to the 11th Circuit.  She is expected to have no issues and fly through.  Watch here at 10am. 

UPDATE -- by voice vote, Judge Rosenbaum got unanimous approval.  Now to the full Senate.  Should go quickly.

ABA's White Collar Conference

So the ABA's big White Collar Conference is back at the Eden Roc this Wednesday through Friday.  Over 1000 lawyers come to schmooze, get CLEs, and to go to the parties at night all along Miami Beach. 

One party of note is at the Blues Bar at the National Hotel at 9:30pm where there will be the annual Steve Chaykin toast.  This year, the name will be changed to the Chaykin/Sharpstein toast....

In substantive news, both AG Holder and the Republicans are trying to get serious about sentencing reform.  From the NY Times:

Shortly after Senator Rand Paul filed suit last month against the Obama administration to stop its electronic dragnet of American phone records, he sat down for lunch with Attorney General Eric H. Holder Jr. in his private dining room at the Justice Department.

Mr. Paul, a Kentucky Republican, is one of the Obama administration’s most vocal critics. But their discussion focused on an issue on which they have found common cause: eliminating mandatory minimum sentences for nonviolent drug offenders.

The two men are unlikely allies. Their partnership unites the nation’s first African-American attorney general, who sees his legacy in a renewed focus on civil rights, and some of Congress’s most prominent libertarians, who have accused the Obama administration of trampling on personal freedom with drones, wiretaps, tracking devices and too much government.

While a range of judges, prosecutors and public defenders have for years raised concerns about disparities in punishment, it is this alliance that may make politically possible the most significant liberalization of sentencing laws since President Richard M. Nixon declared war on drugs.

I wanted the name to be Neiman Marcus...

...but my vote doesn't count I guess.

Friends of the blog and excellent lawyers Jeff Marcus, Jeff Neiman, and Dan Rashbaum joined forces to start Marcus, Neiman and Rashbaum.

Law360 covers it here:

Three former federal prosecutors with experience in tax, securities and health care have joined forces to create Marcus Neiman & Rashbaum LLP, a South Florida white collar litigation boutique firm with offices in Miami and Fort Lauderdale, the firm announced Monday.
Jeffrey Marcus, Jeffrey Neiman and Daniel Rashbaum, who met while working several years ago at the U.S. Attorney's Office in the Southern District of Florida, opened the doors of their new firm last week. Collectively, they say they have tried more than 75 cases to verdict.
“For me, personally, being able to partner with two very talented white collar lawyers with the experience we all have was a tremendous opportunity,” Marcus, who most recently headed the white collar group at Kenny Nachwalter PA, told Law360.

Meantime, things must be going well at the new firm as Neiman is eating lots of sushi.  Via the DBR:

When Fort Lauderdale attorney Jeff Neiman had a craving for sushi, he jumped in his car and drove to Sushi Rock Cafe a mile up Las Olas Boulevard.
Now, Neiman can just walk to Sky Thai Sushi, the first and only sushi restaurant within walking distance of Fort Lauderdale's power lunch crowd.
"It fills a void for what we need in walking steps of our downtown—good quality sushi," said Neiman, who just formed a litigation boutique with two other former federal prosecutors, Jeffrey Marcus and Daniel Rashbaum. "Given its location, it's going to be hard for Sky Thai Sushi not to attract attorneys and other professionals."

In other news, the Sun-Sentinel covers the sentencing of psychic Rose Marks:

Convicted psychic swindler Rose Marks was sentenced to just over 10 years in federal prison Monday for defrauding clients of her family's fortune-telling businesses out of more than $17.8 million.
Looking frail and downtrodden, Marks, 62, of Fort Lauderdale, sobbed as she apologized to her victims, her family and everyone she hurt, saying her former clients had been some of her best and closest friends.
"At the time, I didn't realize what I was doing was wrong," she said, begging the judge for mercy. "Now, I realize that I caused a lot of hurt and disappointment."
Handcuffed, dressed in dark blue jail scrubs and with her hair pulled back in a ponytail, Marks began to cry even before the judge got on the bench. At times, she looked like she was having a difficult time breathing.
Marks has been locked up since September when a jury found her guilty of 14 charges after a bizarre monthlong trial.

Finally, the Tampa Bay Times is covering the pressing of Florida Senators for confirmation of judges:

The liberal group Progress Florida has organized letter campaigns to Sens. Marco Rubio and Bill Nelson urging them to help speed along five judicial nominees.
"Any observer of lawmaking in Florida has learned by now that no matter what happens in our Legislature, the final decision when it comes to laws that affect our day-to-day lives is more often than not made by a judge. That’s why our courts matter," said Mark Ferrulo, the group's executive director.

Monday news and notes

1.  The Supreme Court this morning will hear the death penalty case of Freddi Lee Hall:

The US Supreme Court is turning its attention to capital punishment this week, with the justices taking up a case examining whether Florida is engaging in cruel and unusual punishment by seeking to execute a condemned prisoner who may be mentally retarded.
The high court declared in 2002 that the Eighth Amendment barred use of the death penalty for anyone with mental retardation. But the court left it to each state to decide how best to determine which defendants qualify as “mentally retarded” for purposes of the death penalty.
On Monday, lawyers for death row inmate Freddie Lee Hall are set to argue that Florida uses an unacceptable method to decide who is – and who isn’t – mentally retarded. The argument will be presented by former US Solicitor General Seth Waxman.
The case is a potential landmark because it could establish a national standard for executions involving individuals with mental retardation. Or it could reaffirm that states retain discretion to decide for themselves who to execute.
If a majority of justices set a national standard it would open new avenues for lawyers seeking to halt executions in a variety of cases in Florida and other states.

2. Chief Judge Federico Moreno had two big rulings on Friday -- one involving JP Morgan and one involving the homeless.  Here's a little about the homeless ruling:

U.S. Judge Federico Moreno on Friday approved changes that will strip the homeless of some of the life-sustaining rights they were granted through a historic settlement reached in Miami almost two decades ago.
Police will now be able to stop homeless people from building fires in parks to cook, or from building makeshift tents to sleep in. The homeless can still sleep on sidewalks, but not if they block the path of pedestrians.
If homeless people are within a quarter-mile of a public restroom, they can no longer expose themselves to urinate or to clean. And convicted sex offenders who are homeless will no longer receive the same life-sustaining benefits as other homeless people.
Moreno’s approval followed a vote in January by Miami city commissioners to go along with the agreement worked out between the city and the American Civil Liberties Union.

Read more here: http://www.miamiherald.com/2014/02/28/3965387/miamis-homeless-stripped-of-some.html#storylink=cpy

 3.  Justices Ginsburg and Scalia celebrate Verdi:

When Supreme Court Justice Antonin Scalia is waiting patiently for his spoonful of rigatoni and scallops, too, you know you’re in for a real Italian party. But what else would you expect at a dinner in honor of a 200-year-old Italian rock star?
On Thursday, the Washington Chorus’s “The Essential Verdi” gala held at the Italian Embassy was dedicated to il Tricolore. Scalia, along with fellow Supreme Court Justice and opera aficionado Ruth Bader Ginsburg and a hundred other music lovers, celebrated another famous Italian, composer Giuseppe Verdi, described to this novice as “The Bruce Springsteen [who's, you guessed it, Italian] of Italy,” while sipping on Italian wine and dining on Italian food. The five-course meal was peppered heavily with performances as part of the chorus’s annual “essential week,” this year dedicated to Verdi, which culminated in a performance at the Kennedy Center on Sunday.
The national pride then was hardly a surprise, although the night held many. The first came as the crowd settled into their seats. As the few non-Italians at Table 32 took a first bite of gnocchi, without warning the chorus members embedded throughout the grand atrium shot up from their seats and commenced to harmonizing. “This is their version of a flash mob,” one guest joked.

4.  The dangers of Facebook can be seen in this state case.  I feel bad for the dad and daughter here:

 Call it the biggest Facebook mistake ever. A daughter’s snarky status update has cost her father the $80,000 settlement he won in an age-discrimination lawsuit.

According to the Miami Herald, Patrick Snay, 69, was the headmaster at Gulliver Preparatory School in Miami for several years, but in 2010, the school didn’t renew his contract. Snay sued his former employer for age discrimination and won a settlement of $80,000 in November 2011. The agreement contained a standard confidentiality clause, prohibiting Snay or the school from talking about the case.

However, Snay’s daughter, Dana, now at Boston College and a part-time Starbucks barista, couldn’t resist bragging about the case on Facebook. “Mama and Papa Snay won the case against Gulliver,” she wrote. “Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

5.  John Pacenti covers the Kaley decision here.  The Justices got this one wrong, but Chief Justice's Roberts' dissent is strong:

Federal prosecutors, when they [*22] rise in court, represent the people of the United States. But so do defense lawyers — one at a time. In my view, the Court's opinion pays insufficient respect to the importance of an independent bar as a check on prosecutorial abuse and government overreaching. Granting the Government the power to take away a defendant's chosen advocate strikes at the heart of that significant role. I would not do it, and so respectfully dissent.