Shhhh, this is a secret.

This is a great idea for Judge Hoeveler.  But he doesn't know about it, so please don't tell him.  Here's the email that's been going around the legal community:

Dear Colleague:

A number of us have been sharing recollections of our appearances before Judge Hoeveler and our encounters with him over the years. It became clear to us that such stories from the members of our legal community "could fill a book," and so, with the cooperation of Judge Hoeveler's staff, that is precisely what we would like to do. We are preparing a book of such reminiscences which we hope and expect the Judge will enjoy, and we invite you to submit a story for inclusion in this book.
At some time in early 2015, St. Thomas University School of Law will be hosting an event to honor Judge Hoeveler and to announce that its Law Library has been selected as the repository for his trial notebooks, correspondence, and other judicial memorabilia. We are pleased to announce that St. Thomas has agreed to publish this book and to present it to Judge Hoeveler at that ceremony.  (It is intended to be a surprise to the Judge.)  After that, copies will be made available to the public. As you may know, The Florida Bar annually awards the William M. Hoeveler Judicial Professionalism Award to an outstanding jurist in Florida, and copies of this book will be presented to the Hoeveler Award recipients in future years.
We hope to include in this book stories about Judge Hoeveler, both from the time when he was practicing as a lawyer and during his 37 years of service on the bench. We are not looking for tributes or general praise, but rather anecdotes and "war stories" which by their narratives, and not by their adjectives, will say something about the kind of lawyer, jurist and person he is. These stories may be serious or funny, they may relate to personal encounters or things which took place in the courtroom during routine or more significant matters. Whether submissions emphasize his grace, patience, diligence, kindness or sense of humor, we believe that the collection as a whole will say something important about him and we hope that it will be a fitting tribute to his legendary career as a lawyer and trial judge.
Your submission should be double-spaced in Word, in Courier New, 12 point, and preferably no longer than a single page. Please identify yourself by name and affiliation, and give context for your submission.Please send it to HOEVELERSTORIES@gmail.com. Professor Gary Kravitz at St. Thomas and Barbara Junge, Judge Hoeveler's former law clerk, will collect the stories and prepare them for publication. Also, in your email message please identify the specific character trait(s) your story highlights, e.g., grace, patience, diligence, kindness, sense of humor, integrity, faith, hard-working, or others, as this will help us assemble the stories in the collection.

Please send your submission no later than January 20, 2015. Unlike Judge Hoeveler, we will not be liberal in granting extensions, although for a good excuse and a good submission exceptions will be made.

Please forward this solicitation to friends and colleagues who may not have received it directly.
  

In support of Judge Rakoff

Judge John L. Kane has now joined Judge Rakoff in calling for reform in the criminal justice system because too many innocent people are pleading guilty.  From the conclusion to Kane's essay in the Marshall Project:

Sentencing should never be easy. It should never be cryptic and it should never be mechanistic, the product of senselessly following a matrix. A judge’s job is to synthesize and harmonize the competing narratives of the persons involved in the events of the crime with the specific intent of inclusiveness. That job stands in stark contrast to the mentality of the Sentencing Guidelines when they are mandatory. If, indeed, a judge now is again required by Supreme Court precedent never to impose a sentence he or she does not believe in, the chances of an innocent person pleading guilty and sentenced accordingly will be drastically diminished.
In this way the Supreme Court, through its recent rulings inUnited States v. Booker and Gall v. United States, has restored over the past decade a meaningful and responsible role to judges at sentencing. It is no longer acceptable for them to be wooden bureaucrats and they must craft sentences appropriate to the circumstances of the case. The searching inquiry required should enable the judge to vacate a coerced plea or one that is made as the lesser of evils. My question then is this: am I and my fellow jurists doing enough each day to implement this mandate, to replace the mindless practice of assembly-line plea bargaining with a process that is based on integrity and that aspires to justice rather than succumbs to the cynicism of convenience?
It is perhaps helpful to think of sentencing in terms of the classical Greek word for “injustice.” The literal translation is “out of balance.” Doing justice is an act of restoring balance. Human nature discourages venturing into this area without a template that allows one to fill in the blanks — and so to follow the rote responses of bureaucracy. But putting the thumb of convenience on the scales of justice is precisely what causes the innocent to plead guilty. It is the inevitable result of a laconic adherence to a thoughtless and passionless process. And we all can do something more about it.

Happy FESTIVUS for the rest of us

An early Christmas present for Pizzi

Wow, the Supreme Court ruled for Michael Pizzi saying that the Governor should revoke his suspension.  But it's not altogether clear whether that means he is going to be mayor again.  From the Miami Herald:

“This is huge, man. This is huge. I won,” Pizzi said in a telephone interview from his car after learning of the court’s decision. “This is the best Christmas present the Pizzi family and the people of Miami Lakes and everyone who cares about the rule of law could ever get.”

The developments don’t guarantee Pizzi’s return to office and only promise more fireworks at Miami Lakes Town Hall, which has seen more than its share of excitement since Pizzi was removed by Scott in August 2013.

Town Attorney Raul Gastesi maintained Monday before Scott revoked the suspension that Miami Lakes has a mayor — Slaton — and stressed that the court had not ordered returning Pizzi to office.

In another only-in-Miami story, one of the Cuban spies that was sent back to Cuba returned to find his wife very pregnant -- BY HIM!  Apparently he was permitted to send his sperm to Cuba months ago as part of the ongoing negotiations.  I kid you not:

 The mystery of that pregnancy emerged Monday, and it will go down in history books as one of the most bizarre subplots in the annals of U.S. diplomacy.

Turns out that Hernández already knew that his 44-year-old wife, Adriana Pérez, was pregnant, and that he is the father, even though he was never physically close to her during his incarceration.

The pregnancy came through artificial insemination, and it was a side deal that paved the way for the much larger and sweeping agreement Wednesday in which Cuba and the United States announced the renewal of diplomatic relations, broken more than half a century ago. Hernández and two other convicted Cuban spies went free as part of the deal.

Call it diplomacy via paternity.

It came about through the office of Sen. Patrick Leahy, a Vermont Democrat, who has campaigned for years to restore relations with Cuba. In 2010, Leahy began efforts to persuade Cuba to ease up on the harsh conditions imposed on a jailed American in Havana, Alan Gross, a subcontractor for the U.S. Agency for International Development.

In seeking better conditions for Gross, Leahy’s office discovered that Hernández’s wife back in Havana, who reportedly also is an intelligence officer, was hearing the ticking of her biological clock ever louder and was desperate to become pregnant. U.S. officials now say they facilitated the transfer of Hernández’s sperm from the U.S. to the Cuban capital to help improve conditions for Gross, who regained his freedom Wednesday as well and is back in the United States.

“We can confirm the United States facilitated Mrs. Hernández’s request to have a baby with her husband,” said Patrick Rodenbush, a spokesman for the Justice Department. “The request was passed along by Sen. Leahy, who was seeking to improve the conditions for Mr. Gross while he was imprisoned in Cuba.”

Your Monday Morning moment of Zen

11th Circuit rules for Cheney Mason

This is a pretty interesting case:

This case involves a law student’s efforts to form a contract by accepting a “million-dollar challenge” that a lawyer extended on national television while representing a client accused of murder. Since we find that the challenge did not give rise to an enforceable unilateral contract, we hold that the district court properly entered summary judgment for the lawyer and his law firm, Defendants-Appellees James Cheney Mason (Mason) and J. Cheney Mason, P.A., with regard to the breach-of-contract claim brought by the law student, Plaintiff-Appellant Dustin S. Kolodziej.
...
The district court granted summary judgment on two grounds: first, Kolodziej was unaware of the unedited Mason interview at the time he attempted to perform the challenge, and thus he could not accept an offer he did not know existed; second, the challenge in the unedited interview was unambiguously directed to the prosecution only, and thus Kolodziej could not accept an offer not open to him. The district court declined to address the arguments that Mason’s challenge was not a serious offer and that, in any event, Kolodziej did not adequately perform the challenge. This appeal ensued.

The conclusion:

Just as people are free to contract, they are also free from contract, and we find it neither prudent nor permissible to impose contractual liability for offhand remarks or grandstanding. Nor would it be advisable to scrutinize a defense attorney’s hyperbolic commentary for a hidden contractual agenda, particularly when that commentary concerns the substantial protections in place for criminal defendants. Having considered the content of Mason’s statements, the context in which they were made, and the conduct of the parties, we do not find it reasonable to conclude that Mason assented to enter into a contract with anyone for one million dollars. We affirm the district court’s judgment in favor of Mason and J. Cheney Mason, P.A.

Lots of SDFLA news

Acquittals, spies being returned, and all sorts of other fun. One story that was under the radar yesterday was President Obama's stingy list of pardons (only 12!) and commutations. There was one SDFLA case:

-- Bernard Bryan Bulcourf – McIntosh, FL Offense: Counterfeiting Federal Reserve notes (Southern District of Florida) Sentence: 90 days’ confinement in a community treatment center, followed by three years’ probation (Nov. 18, 1988)

Re the spies, our own Richard Klugh was quoted in the N.Y. Times:

Richard C. Klugh, a Miami lawyer who represented the five spies, said that two of his clients, Mr. Hernandez and Mr. Guerrero, were suddenly transferred last week.

“Gerardo was moved from an extremely violent, terrible prison to Butner, N.C., so there was some hope that was something going on,” Mr. Klugh said. “Gerardo is the one for whom this is the most emotional. He and his wife were essentially newlyweds and have been separated for 16 years, and it’s extremely emotional.”

Re the ICE Agent from the Herald:

Juan F. Martinez, a U.S. agent accused of using his badge to extort millions of dollars in Colombia’s underworld of drug trafficking, hugged his lawyers and burst into tears Wednesday when a jury found him not guilty of a dozen criminal charges in Miami federal court.

His wife, Gabriela, sitting a couple of rows behind him, closed her eyes and then cried as the acquittal verdicts were read in court.

Martinez, who was indicted a year ago and suspended as an Immigration and Customs Enforcement agent in 2011, broke down emotionally because of the strain of being on trial, his lawyers said outside the courthouse.

“He stood up to the federal government and made them prove their case,” said defense attorney Silvia Piñera-Vazquez, who rejoiced over Martinez’s acquittals with co-counsel, Jane and Martin Raskin. “They never proved he received any money.”

Jurors, who began deliberations Tuesday morning, were reluctant to talk after their verdicts outside the courthouse, but one suggested there was a “lack of evidence.” Another said, “We applied the law,” without elaboration.

Breaking -- ICE agent found Not Guilty across the board

Congrats to Silvia Piñera-Vazquez and the Raskins for their across the board Not Guilty verdict for Immigration and Customs Enforcement Agent Juan F. Martinez before Judge Altonaga.

"I’m going to treat her like somebody who is what she is — a common criminal.

That was Judge Scola after "North Miami Mayor Lucie Tondreau was found guilty by a federal jury Tuesday of using her 'celebrity' as a Haitian-American community leader to lure 'straw buyers' into an $11 million mortgage fraud scheme during the past real estate boom." (Via the Miami Herald).  More:

The 12-person jury, which deliberated for only two hours, convicted Tondreau of conspiracy and wire-fraud charges after a two-week trial. Tondreau, who was elected as North Miami’s first Haitian-American female mayor in 2013, now faces up to 30 years in prison at her sentencing March 20.
U.S. District Judge Robert Scola refused to grant a request by her defense attorney, Ben Kuehne, to remain free on bond while she awaited sentencing. Scola said she used her “celebrity” and “hoodwinked” buyers into allowing their names to be placed on bogus loan applications in exchange for kickbacks in a “massive” fraud against various banks.
The judge, noting the fraud was committed before Tondreau was elected as mayor, said she was no different than any other convicted defendant and ordered her to surrender to U.S. Marshals in the courtroom while about 50 supporters watched in silence.
“I’m going to treat her like somebody who is what she is — a common criminal,” Scola said.
Kuehne, who represented Tondreau along with attorney Michael Davis, said the jury’s verdict “is as disappointing as it is unexpected.”
Tondreau, who was suspended from office after her arrest in May, stood trial in Miami federal court since early December on charges of conspiring to commit wire fraud with her ex-business partner and fiancé, Karl Oreste, and two other defendants, who are fugitives. She was accused of plotting with Oreste to bamboozle banks into loaning them a total of $11million between 2005 and 2008.
The prosecution decided not to call the trial’s potential star witness, Oreste, 57, who pleaded guilty in July and was expected to detail the 20 crooked real estate loan deals that he and Tondreau were accused of putting together.
Prosecutors Lois Foster-Steers and Gera Peoples did not say why. But they may have had concerns about Oreste’s potential vulnerability on cross-examination. Tondreau’s defense team had planned to portray him as the consummate con man who duped her into playing an unwitting supporting role to fleece the banks.

Calling all Judge Davis clerks

Judge Davis' family is going to be having a gathering to remember Judge and Mrs. Davis on January 3 from 2-6pm.  If you are an old Judge Davis clerk or are a close friend interested in attending, please email Judge Davis' son, Ned at ned.davis@rochester.rr.com

Ned asked me to post this to get the word out as there is no old roster of Judge Davis clerks. 

"I don't know what article of the Constitution that would contravene."

That was Justice Scalia discussing torture in order to find out where the ticking nuclear bomb was. From the AP:

"Listen, I think it's very facile for people to say, `Oh, torture is terrible.' You posit the situation where a person that you know for sure knows the location of a nuclear bomb that has been planted in Los Angeles and will kill millions of people. You think it's an easy question? You think it's clear that you cannot use extreme measures to get that information out of that person?" Scalia said.

Scalia also said that while there are U.S. laws against torture, nothing in the Constitution appears to prohibit harsh treatment of suspected terrorists. "I don't know what article of the Constitution that would contravene," he said. Scalia spent a college semester in Switzerland at the University of Fribourg.

The 30-minute interview touched on a range of topics, including the financing of political campaigns, the death penalty and gay marriage, about which Scalia said he should not comment because it is likely the court soon will have the issue before it. Asked about money and U.S. elections, Scalia scoffed that "women may pay more each year to buy cosmetics" than is spent on local, state and federal elections combined.

His comments about interrogation techniques echoed remarks he also has made to foreign audiences. In 2008, he used the example of the hidden bomb. "It seems to me you have to say, as unlikely as that is, it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn't do that," he said.

A year earlier, Canada's Globe and Mail newspaper reported that Scalia invoked fictional TV counterterrorism agent Jack Bauer using torture to get terrorism suspects to reveal information that could help authorities foil an imminent attack.

"Is any jury going to convict Jack Bauer? I don't think so," he said. "So the question is really whether we believe in these absolutes. And ought we believe in these absolutes."

In January, Scalia seemed less concerned about the safety of residents of Los Angeles when the court heard arguments about whether anonymous tips could justify a traffic stop. Urging the lawyer for two suspects appealing their conviction to stand firm, Scalia suggested that not even information that a carload of terrorists heading to Los Angeles with an atomic bomb would be enough to justify police stopping the car, if the tip came from an anonymous source.

"I want you to say, `Let the car go. Bye-bye, LA,'" Scalia said.

Meantime, friends of the Blog, Billy Corben and Alfred Spellman have come out with their new movie -- The U Part 2.  Gotta love it:

Zacarias Moussaoui asks Judge King to send him to Guantanamo

From Curt Anderson:

An imprisoned man known as the "20th hijacker" in the 9/11 terror attacks asked a South Florida federal judge Wednesday for a transfer to the military prison at Guantanamo Bay, Cuba, where several alleged senior terror plotters are awaiting trial.
The request is part of two rambling, handwritten letters filed in Miami federal court by Zacarias Moussaoui. He is serving a life prison sentence after pleading guilty in 2005 to conspiring with the 19 hijackers in the Sept. 11, 2001, attacks.
Moussaoui signed one letter as the "so-call 20th hijacker" and a "Slave to Allah."
Moussaoui, 46, has been writing letters to courts around the country from his maximum-security prison cell in Florence, Colorado, claiming inside knowledge about al-Qaida and the Sept. 11 plot, and seeking a chance to testify in lawsuits filed by terrorism victims.
The letters filed in Miami repeat some of those claims. Moussaoui wants the transfer to Guantanamo, he says, because he has been assaulted and harassed by other inmates and guards at the Florence "Supermax" prison — including Ramzi Yousef, mastermind of the 1993 World Trade Center bombing.
He even contends there was a prison plot to kill him and "claim that I committed suicide," but that failed.
"So no suicide, Victory by Allah," Moussaoui wrote.
U.S. Bureau of Prisons spokesman Chris Burke said the agency could not comment on the allegations.
Five detainees at Guantanamo are awaiting trial before a military commission in the 9/11 attacks, including alleged mastermind Khalid Sheikh Mohammed, as well as the alleged orchestrator of the 2000 attack on the USS Cole, Abd al Rahim al-Nashiri.
Moussaoui also makes other demands, asking Senior U.S. District Judge James Lawrence King to order prison doctors to perform a long-delayed hernia operation and that he appoint civil rights attorneys Benjamin Crump and Anthony Gray to represent him. Crump and Gray recently represented the family of Michael Brown in the Ferguson police shooting.
"I am currently on a hunger strike in order to have a lawyer since 11/09/14," Moussaoui wrote.

RIP Dollree Mapp

From the NY Times:

On May 23, 1957, three police officers arrived at a house in Cleveland and demanded to enter. They wanted to question a man about a recent bombing and believed he was hiding inside. A woman who lived there, Dollree Mapp, refused to admit them.

It was a small gesture of defiance that led to a landmark United States Supreme Court ruling on the limits of police power.

Ms. Mapp told the officers that she wanted to see a search warrant. They did not produce one. A few hours later, more officers arrived and forced their way into the house. Ms. Mapp called her lawyer and again asked to see a warrant. When one officer held up a piece of paper that he said was a warrant, Ms. Mapp snatched it and stuffed it into her blouse. The officer reached inside her clothing and snatched it back.

The officers handcuffed Ms. Mapp — they called her “belligerent” — and then searched her bedroom, where they paged through a photo album and personal papers. They also searched her young daughter’s room, the kitchen, a dining area and the basement.

They did not find the man they were looking for, but they did find what they said were sexually explicit materials — books and drawings that Ms. Mapp said had belonged to a previous boarder — and they arrested Ms. Mapp.

Four years later, after Ms. Mapp had been sentenced to prison on obscenity charges and after her conviction had been upheld on appeal, the Supreme Court took up the case, ostensibly because of questions it raised about obscenity and the First Amendment.

But when the justices ruled, in June 1961, their decision dwelled, with far more significant consequences, on the role of the Fourth Amendment, which protects against unlawful search and seizure. Prosecutors had never produced the supposed warrant brandished by the Cleveland police or proved that it had existed.

The court ruled, 6 to 3, that Ms. Mapp’s conviction should be thrown out, and that all state courts must suppress evidence gathered through police misconduct in certain kinds of cases.

"He’d have had a fairer shake in a tribunal run by marsupials."

Ouch.  That was Judge Kozinski dissenting in Alvarez v. Tracy:

When we take the judicial oath of office, we swear to
“administer justice without respect to persons, and do equal
right to the poor and to the rich . . . .” 28 U.S.C. § 453. I
understand this to mean that we must not merely be impartial,
but must appear to be impartial to a disinterested observer.
Today we do not live up to this solemn responsibility.
Relying on a ground not raised by either party here or in the
district court, we refuse to consider petitioner’s serious and,
in my opinion, meritorious claims. This is only the latest
indignity inflicted on a criminal defendant who, despite
having a seventh-grade education, was forced to defend
himself at trial; although having the right to a jury, was never
told that he had to ask for one; and who was therefore
convicted and sentenced to eight years in prison in a bench
trial where neither the prosecution nor the judge lifted a
finger to bring the accusing witness into court. He’d have
had a fairer shake in a tribunal run by marsupials.
I am troubled by the disparate way we treat the parties.
Alvarez and the Community both failed to raise legal issues
at the proper time and in the proper manner. Alvarez failed
to raise his jury trial and confrontation claims by way of a
direct appeal within the tribal court; the Community failed to
raise an exhaustion defense in district court. The Community
committed an additional default by also failing to raise this
issue on appeal—something we’ve repeatedly held is an
independently sufficient basis for declining to address it.

I also like this passage:

I have read the opinion many times and disagree with
pretty much everything in it, including the numerals and
punctuation. I explain why in the pages that follow, but first
I pose a more basic question: How can a court committed to
justice, as our court surely is, reach a result in which the
litigant who can afford a lawyer is forgiven its multiple
defaults while the poor, uneducated, un-counseled petitioner
has his feet held to the fire? I attribute no ill will or improper
motive to my excellent colleagues. They are fair, honorable
and dedicated jurists who are doing what they earnestly
believe is right. But we see the world very differently. See,
e.g., United States v. Pineda-Moreno, 617 F.3d 1120, 1123
(9th Cir. 2010) (Kozinski, C.J., dissenting from denial of
rehearing en banc). I can find no justification for showing
such solicitude for the overdog while giving the underdog the
back of the hand.

“What about the language at pages 54 to 55 of the Petitioner’s brief? You know, ‘Dada make a nice bed for mommy at the bottom of the lake’”

That was Chief Judge Roberts last week during the oral argument on the Facebook case....

Snitching ain't easy

The Herald covers this Medicare case this morning.  The dirty little secret in this District is that Medicare cases are mostly just snitch cases.  This one may lead to a brother testifying against family:

Because the FBI has been unable to locate Jorge Perez, the younger brother’s former defense attorney suggested in federal court that he was being indicted solely to lure the accused fugitive ringleader to the United States.

Eduardo Perez’s original attorney, Douglas Williams, called the case “a zealous indictment of a younger brother that may to some extent be part of a calculation ... to suggest to his older brother that ... he’s going to be creating problems for baby brother. ... That’s what this case is all about.”

Now the baby brother, with his plea agreement to cooperate with U.S. Attorney’s Office, could turn on his older brother. Eduardo Perez’s deal holds him responsible for laundering only between $1 million and $2.5 million, a range that would limit his prison time to a maximum six years. He had faced up to 20 years in prison on the single money-laundering conspiracy plea.

But as part of the deal, Eduardo Perez has agreed to testify before a grand jury or at trial, if the prosecutor asks. That means that if his older brother, Jorge Perez, is ever captured and brought to court in Miami, the younger brother could be a key witness against him.

Eduardo Perez’s current defense attorney, Gustavo Lage, said his testimony is a possibility, but noted that the deal does not specifically require his taking the witness stand against the older brother.

“The cooperation agreement is standard boilerplate language, so that may or may not come to pass depending on what happens between now and even after his sentencing [in January],” Lage said Friday. “So far, no request has been made.”

Yesterday was ACLU day at the 11th Circuit

Two big wins for the ACLU yesterday on drug testing and gay marriage, which means 1) no more unlimited drug testing on those applying for temporary assistance and 2) gay marriage to start in Florida on January 5.

1.  Lebron v. DCF, per Judge Marcus:

A Florida statute mandates suspicionless drug testing of all applicants seeking Temporary Assistance for Needy Families (“TANF”) benefits. See Fla. Stat. § 414.0652. Luis Lebron sued the Secretary of the Florida Department of Children and Families (the “State”), claiming that the statute violates the Fourth Amendment’s prohibition against unreasonable searches and seizures, applied against the states through the Fourteenth Amendment. After we affirmed the entry of a preliminary injunction barring the application of the statute against Lebron, the State halted the drug-testing program. See Lebron v. Sec’y, Fla. Dep’t of Children & Families (Lebron I), 710 F.3d 1202 (11th Cir. 2013). Since then, the district court granted final summary judgment to Lebron, declared § 414.0652 unconstitutional, and permanently enjoined its enforcement.
We affirm. On this record, the State has failed to meet its burden of establishing a substantial special need to drug test all TANF applicants without any suspicion. Even viewing the facts in the light most favorable to the nonmoving party, the State has not demonstrated a more prevalent, unique, or different drug problem among TANF applicants than in the general population. The ordinary government interests claimed in this case are nothing like the narrow category of special needs that justify blanket drug testing of railroad workers, certain federal Customs employees involved in drug interdiction or who carry firearms, or students who participate in extracurricular activities because those programs involve “surpassing safety interests,” Skinner v. Railway Labor Execs. Ass’n, 489 U.S. 602, 634 (1989), or “close supervision of school children,” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995) (quoting New Jersey v. T.L.O., 469 U.S. 325, 339 (1985)).
Moreover, as we held in Lebron I, the State cannot circumvent constitutional concerns by requiring that applicants consent to a drug test to receive TANF payments. When a government benefit is conditioned on suspicionless drug testing, the voluntariness of the program is properly viewed as a factor baked into the special needs reasonableness analysis, not as an exception to it.

2.  Brennan v. Armstrong, per curiam (Hull Wilson, Jordan): 

In November 18, 2014, the Appellants in the above appeals, the Secretary of the Florida Department of Health, the Secretary of the Florida Department of Management Services, and the Clerk of Court of Washington County (collectively, Appellants), jointly filed a Motion to Extend Stay of Preliminary Injunctions Pending Appeal and for Expedited Treatment of This Motion (the Motion). Appellees James Domer Brenner, et al., and Appellees Sloan Grimsley, et al., filed separate responses in opposition to the Motion. Appellants’ request for expedited review of the Motion is granted. Having reviewed and fully considered the Motion, the parties’ briefs, and the orders issued  by the District Court in the proceedings below, the Court hereby denies Appellants’ Motion. The stay of preliminary injunctions entered by the District Court expires at the end of the day on January 5, 2015.

What's going on with the 11th Circuit's Fuller investigation?

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers (D-Mich.) sent a letter to Chief Judge Ed Carnes and Judge Tjoflat regarding Judge Mark Fuller in Atlanta, Georgia.  Here's the text of the letter:

Dear Chief Judge Carnes and Judge Tjoflat:
We write regarding the arrest and ongoing prosecution of Middle District of Alabama Judge Mark E. Fuller in Atlanta, Georgia, which is pending before the State Court of Fulton County, Georgia. The allegations against Judge Fuller raise serious, substantial and troubling questions that have been the focus of constant attention and close monitoring by the Committee on the Judiciary since August 2014 when reports first appeared of his arrest for a violation of state criminal law.
In writing, we note the following undisputed facts:
·         Judge Fuller has reportedly entered into a pretrial diversion program that requires him to, inter alia, successfully complete domestic violence counseling;
·         James P. Gerstenlauer, the Circuit Executive of the Eleventh Judicial Circuit, published an announcement on August 12, 2014 that stated “all legal matters” then assigned to Judge Fuller, would be reassigned to other judges;
·         The Acting Chief Judge of the Eleventh Circuit subsequently appointed a Special Committee to investigate Judge Fuller’s actions in connection with the filing of state misdemeanor battery charges in August 2014;
·         The Special Committee’s statutory authority and obligations derive from section 353 of title 28, United States Code, which includes a requirement that the Special Committee, “expeditiously file a comprehensive written report … with the judicial council of the circuit” after completion of “an investigation as extensive as it considers necessary;” and
·         Judge Gerald Tjoflat has reportedly been appointed Acting Chief Judge for purposes of coordinating the Special Committee’s investigation and providing recommendations to the judicial council of the circuit in this matter.
Article I, Section 2 of the Constitution provides the House of Representatives with the “sole Power of Impeachment.” That power is initiated by and overseen by the Committee on the Judiciary. The public has a strong and abiding interest in the proper resolution of credible allegations of misconduct involving a federal judge as expeditiously as possible and in accordance with principles of due process. In furtherance of these interests, the Congress has prescribed statutory procedures that anticipate the initial investigation by the judiciary of credible allegations of serious judicial misconduct. These statutes supplement but do not supplant congressional autonomy and authority.
In recognition of the explicit statutory requirement that a Special Committee, once appointed, “expeditiously file a comprehensive written report” after the completion of its “investigation,” we write to request that you provide us with an update on the status of the ongoing investigation and the anticipated timeline for completion of the required comprehensive written report to the circuit’s judicial council.

Tuesday news and notes

• Although the Supreme Court didn't grant cert on this S.D. Fla. case, it's a pretty big attack of the 11th Circuit's waiver rule. Justices Kennedy and Sotomayor would have granted cert and Justice Kagan, joined by Ginsburg and Breyer, had this to say about the 11th Circuit's rule -- that issues not raised in the initial brief are waived, even if the defendant tries to file a supplemental brief based on a new Supreme Court case decided before the government even response:

And as the above citations show, the circuit courts—once again, bar the Eleventh—have routinely followed that practice in the wake of Descamps.
There is good reason for this near-unanimity. When a new claim is based on an intervening Supreme Court decision—as Joseph’s is on Descamps—the failure to raise the claim in an opening brief reflects not a lack of diligence, but merely a want of clairvoyance. Relying on that misprediction alone to deny relief to an appellant like Joseph while granting it to the defendant in Descamps ill fits with the principle, animating our criminal retroactivity law, of “treating similarly situated defendants the same.” Griffith v. Kentucky, 479 U. S. 314, 323, 328 (1987) (holding that new rules “appl[y] retroactively to all cases . . . pending on direct review”). And indeed, insisting on preservation of claims in this context forces every appellant to raise “claims that are squarely foreclosed by circuitand [even] Supreme Court precedent on the off chance that [a new] decision will make them suddenly viable.” Vanorden, 414 F. 3d, at 1324 (Tjoflat, J., specially concurring). That is an odd result for a procedural rule designed in part to promote judicial economy.
Perhaps for such reasons, even the Eleventh Circuitdoes not apply its default rule consistently when this Court hands down a new decision. Sometimes, as here, the court views its rule as pertaining “uniformly and equally to all cases,” so that a panel becomes simply “un-able to entertain” any claim not raised in an initial brief. United States v. Bordon, 421 F. 3d 1202, 1206, n. 1 (2005). But other times, the court abandons the rule without explanation—including, at least twice, for Descamps claims. See, e.g., United States v. Ramirez-Flores, 743 F. 3d 816, 820 (2014) (addressing a Descamps claim raised “for the first time at oral argument”); United States v. Estrella, 758 F. 3d 1239 (2014) (addressing a Descampsclaim raised first in a Rule 28(j) letter after all briefs were filed); United States v. Levy, 379 F. 3d 1241, 1244–1245 (2004) (per curiam) (acknowledging “a few decisions wherethis Court apparently considered a new issue raised in a supplemental brief ”). Thus, criminal defendants with unpreserved new claims may be treated differently within the Eleventh Circuit, just as they are as between theEleventh Circuit and every other court of appeals.
I nonetheless agree with the Court’s decision today to deny certiorari. We do not often review the circuit courts’ procedural rules. And we usually allow the courts of appeals to clean up intra-circuit divisions on their own, in part because their doing so may eliminate any conflict with other courts of appeals. For those combined reasons, I favor deferring, for now, to the Eleventh Circuit, in the hope that it will reconsider whether its current practice amounts to a “reasoned exercise[ ]” of its authority. Ortega-Rodriguez, 507 U. S., at 244.

•  The University of Miami Law Review will be hosting Justice Stevens and Miami State Attorney Kathy Rundle.  Here's the summary: The University of Miami Law Review Symposium, entitled “Criminalized Justice: Consequences of Punitive Policy,” will take a critical look at how our nation’s laws have been increasingly criminalized over the past 30 years, the negative consequences of this criminalization, and recent positive developments. We will explore this topic through a variety of subjects, including immigration, homelessness, sentencing policy, and race and social class. The Symposium will feature Keynote Speakers Supreme Court Justice John Paul Stevens and Miami-Dade State Attorney Katherine Fernandez Rundle. The Symposium is scheduled for Friday, February 6, 2015 and Saturday, February 7, 2015 on the University of Miami campus in Coral Gables, Florida.

"There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts."

That was Anthony Elonis on Facebook talking about his wife.  He got convicted for making threats over the internet and was sentenced to 3 years in federal prison.  This morning, the Supreme Court will hear his case.  From the AP:

The case has drawn widespread attention from free-speech advocates who say comments on Facebook, Twitter and other social media can be hasty, impulsive and easily misinterpreted. They point out that a message on Facebook intended for a small group could be taken out of context when viewed by a wider audience.
"A statute that proscribes speech without regard to the speaker's intended meaning runs the risk of punishing protected First Amendment expression simply because it is crudely or zealously expressed," said a brief from the American Civil Liberties Union and other groups.
But so far, most lower courts have rejected that view, ruling that a "true threat" depends on how an objective person perceives the message.
For more than four decades, the Supreme Court has said that "true threats" to harm another person are not protected speech under the First Amendment. But the court has been careful to distinguish threats from protected speech such as "political hyperbole" or "unpleasantly sharp attacks."
Elonis claims he was depressed and that his online posts under the pseudonym "Tone Dougie" were a way to vent his frustration after his wife left him and he lost his job working at an amusement park. His lawyers say the posts were heavily influenced by rap star Eminem, who has also fantasized in songs about killing his ex-wife.
But Elonis' wife testified that the comments made her fear for her life.
After she obtained a protective order against him, Elonis wrote a lengthy post mocking court proceedings: "Did you know that it's illegal for me to say I want to kill my wife?"
A female FBI agent later visited Elonis at home to ask him about the postings. Elonis took to Facebook again: "Little agent lady stood so close, took all the strength I had not to turn the bitch ghost. Pull my knife, flick my wrist and slit her throat."
Elonis was convicted of making threats of violence and sentenced to nearly four years in federal prison. A federal appeals court rejected his claim that his comments were protected by the First Amendment.
The Obama administration says requiring proof that a speaker intended to be threatening would undermine the law's protective purpose. In its brief to the court, the Justice Department argued that no matter what someone believes about his comments, it does not lessen the fear and anxiety they might cause for other people.
"The First Amendment does not require that a person be permitted to inflict those harms based on an unreasonable subjective belief that his words do not mean what they say," government lawyers said.
The National Center for Victims of Crime, which submitted a brief supporting the government, said judging threats based on the speaker's intent would make stalking crimes even more difficult to prosecute.
"Victims of stalking are financially, emotionally and socially burdened by the crime regardless of the subjective intent of the speaker," the organization said.

I posted earlier about Judge Rakoff's article about innocent people pleading guilty.  There's an interesting exchange between Judge Baylson and Judge Rakoff in the New York Review of Books.  Baylson concludes:

No judge wants to see an innocent person prosecuted, convicted, or sent to prison. A criminal justice system must ensure that fundamental principle. Pretending that plea bargains or sentencing guidelines have led to the imprisonment of the innocent is not just incorrect, but impugns the honesty of prosecutors and the diligence of judges.

 And Rakoff's intro from his reply:

Barely a month goes by without someone who pled guilty being exonerated and released from prison. For example, the National Registry of Exonerations recently established by the University of Michigan Law School currently lists 162 such persons, or nearly 11 percent of the 1,476 post-conviction exonerations that have been publicly reported since 1989. If Judge Baylson’s views of the current system were correct, these figures would be zero. Instead, they are just the tip of the iceberg.

To say, as Judge Baylson does, that “most” defendants who plead guilty are in fact guilty simply dodges the issue of how many innocent people are being coerced into pleading guilty by the potential for draconian sentences effectively controlled by the prosecutor. And it is ironic that Judge Baylson should seek to justify federal prosecutors’ prior policy of charging the most serious provable crime as “truth in charging” when, as the Aaron Swartz case mentioned by his father and described below illustrates, the policy often has served not as a reflection of what everyone understood was the true nature of the alleged crime, but as a device to help extract a guilty plea to a lesser offense. Indeed, it was partly this effect that led the current attorney general to abandon the policy, stating that in many cases such a policy was not “appropriate.”

This is an important point:

Judge Baylson suggests both that the defendant has a strong weapon in the form of the presumption of innocence and that the prosecutor has a high burden of proof. But this suggestion really only comes into play if the defendant is willing to take the risk of going to trial and likely suffering a huge sentence if he loses. At the plea bargain stage, moreover, the prosecutor not only credits the un-cross-examined evidence received from his police force but also knows that, since 97 percent of the cases will be resolved by pleas, the prosecutor’s own risk of losing is minimal.

Happy Turkey Day

Hope everyone has a wonderful Thanksgiving.

If you are working today and need a break, check out Judge Martin's 20-page dissent from an en banc denial (another example of no rehearing where the government won).

Or if you want a more fun read, the Miami Herald covered Judge Cooke's book club:

Marcia Cooke, a U.S. district court judge, recalls a Sunday Book Brunch Bunch meeting in which the members met for brunch and stayed past dinnertime.
“We ended up ordering brunch and dinner that time,” she said.
The group of women, which includes an editor, an Urban League of Broward director and an acquisitions manager, meets once a month at different brunch spots to have a book discussion and girl talk.
“These are nice, intelligent, accomplished women who know a lot about literature, education and the community,” said Khamisi Grace, director of programs at the Urban League. “It’s a powerful thing.”
Grace doesn’t always finish the books and doesn’t feel pressured to. She likes having the freedom to admit when she didn’t like a book and debate with other members.
“The best conversations are on books people are in disagreement about,” she said.
When Grace would choose a book for herself, she never used to go with books that had heavy themes. No longer.
“To me, reading is supposed to be a relaxing thing, like watching TV,’’ she said. “I think the books you pick for a book club are different from the books you would pick for yourself because they launch a discussion in a different kind of way.’’
Sandra Seals, an acquisitions manager, said she would have never picked up Fever by Mary Beth Keane, a novel about the first healthy carrier of Typhoid Fever in America.
The group reads anything and everything, but tries to avoid books that depict harm to animals and children. Last month was the exception. They read We Need to Talk About Kevin by Lionel Shriver, about a fictional school massacre and a mother’s attempt to come to terms with the murders her teenage son committed.
“The book was intense,” Cooke said.

Read more here: http://www.miamiherald.com/entertainment/books/miami-book-fair-international/article4060227.html#storylink=cpy

"I'm kind of just fading away."

That's current 11th Circuit Clerk of Court John Ley on his retirement. 

If you are interested in becoming the new 11th Circuit Clerk, check out the announcement here.  Salary is in around $165k.  Alyson Palmer covers the story in this article.

Or if you are interested in becoming the court's Chief Mediator, click here.

More en banc new from the 11th Circuit

This time it's from Judge Rosenbaum's barbershop case, which the blog covered here.  The order granting hearing en banc is just a one-liner vacating the panel decision.




The panel decision started this way:

It was a scene right out of a Hollywood movie.  On August 21, 2010, after more than a month of planning, teams from the Orange County Sheriff’s Office descended on multiple target locations.  They blocked the entrances and exits to the parking lots so no one could leave and no one could enter.  With some team members dressed in ballistic vests and masks, and with guns drawn, the deputies rushed into their target destinations, handcuffed the stunned occupants—and demanded to see their barbers’ licenses.  The Orange County Sheriff’s Office was providing muscle for the Florida Department of Business and Professional Regulation’s administrative inspection of barbershops to discover licensing violations.   We first held nineteen years ago that conducting a run-of-the-mill administrative inspection as though it is a criminal raid, when no indication exists that safety will be threatened by the inspection, violates clearly established Fourth Amendment rights.  See Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995). We reaffirmed that principle in 2007 when we held that other deputies of the very same Orange County Sheriff’s Office who participated in a similar warrantless criminal raid under the guise of executing an administrative inspection were not entitled to qualified immunity.  See Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007).  Today, we repeat that same message once again.  We hope that the third time will be the charm.

This continues the 11th Circuit's en banc history of only granting rehearing when the government loses.  

Sorry for the slow blogging

It's been a crazy week, but we've had some great guest posts.  Thanks for those!

We'll end the week with a post about judges starting to question these fake stings.  From the NY Times:

“Stash-house stings” like this one in 2013 have sent more than 1,000 of the country’s most “violent, hardened criminals” to prison, sometimes for terms of decades, according to the bureau, which has made a specialty of the ruses. The agency says it has conducted about 365 of these stings over the last decade, removing from the streets career criminals who are “willing to kill and be killed,” with less risk to agents and neighbors than raids on real stash houses.

But this year, the judge in this Los Angeles case dismissed the charges against two of the defendants on the rarely invoked grounds of “outrageous government conduct.” Judge Otis D. Wright II of Federal District Court described the bureau in his March decision as “trawling for crooks in seedy, poverty-ridden areas — all without an iota of suspicion that any particular person has committed similar conduct in the past.”

Similar prosecutions have nearly always held up in court, and the agency strongly defends its methods and choice of targets. But over the last year, a growing number of federal judges have questioned the tactic.

A second judge in Los Angeles dismissed similar charges in May. The federal appeals court in Chicago last week mandated a new trial to allow evidence of possible entrapment. Other judges have demanded data from the bureau to help them explore whether the stings, which nearly always land black or Hispanic defendants, involve illegal racial targeting.

The stash-house stings are a prime example of thespreading federal use of undercover agents in many fields, a trend that law enforcement officials say is efficient and safe but that raises unease among civil liberties advocates.

On Thursday, a federal appeals court in California heard the government’s motion to reinstate criminal charges in the case that Judge Wright criticized, and itscall that the judge be removed from the case for bias.

“The conspiracy was real; the guns were real; the defendants’ intent to use them to violently rob a cocaine stash house was real; and the defendants’ criminal histories were real,” the federal prosecutors argued in their brief. The supposed stock of cocaine had to be set high, they said, to make the proposal credible.

Continue reading the main story

In May, also in Los Angeles, Judge Manuel L. Real of Federal District Court dismissed charges against three other men, saying the government “steers too close to tyranny.” He said that the agents initially knew little about the defendants except that “they were from a poor neighborhood and minorities.” The government has appealed.

And last week, in another setback for federal agents, the United States Court of Appeals for the Seventh Circuitmandated a new trial for a defendant in a Chicago suburb who said he had been pressured into planning the robbery for which he was sentenced to nearly 27 years. The trial judge had erred, the circuit court ruled, by not allowing an entrapment defense.

In a separate line of attack on the drug stings, defendants in Chicago and elsewhere have filed motions to require the bureau to provide data on the racial makeup of sting targets, and information on how the agency selects its targets.

In one case, the agency asked the court to dismiss charges rather than be required to comply. In several others, after judges found at least suggestive evidence of racial targeting and approved the data request, the agency has complied, though the information remains under seal.

Judge Robin Rosenberg Invested as District Court Judge by ADAM RABIN

Adam Rabin, the author of this post, is a partner at McCabe Rabin.  Photo credit to Daniel Portnoy Photography.

On November 14, Southern District of Florida Chief Judge Michael Moore swore in Judge Robin Rosenberg as a District Court Judge before many federal and state court judges, bar leaders, family and friends.   The ceremony was moving and captured the personal side of Judge Rosenberg.

The investiture led off with Jonathan Paine, the son of the late U.S. District Judge James C. Paine, whom Judge Rosenberg clerked for after graduating from Duke Law School.  Jonathan spoke of how life comes full circle sometimes with Judge Rosenberg’s getting sworn in the same court room as Judge Paine had presided back when Rosenberg was clerking for him.

Past President of The Florida Bar, Scott Hawkins, presented the Bible and spoke of the nearly 75 hearings that he had before Judge Rosenberg in a hotly contested state court case over the last few years and how she never raised her voice once or lost her composure during the proceedings.

Fourth DCA Judge Robert Gross, with whom Judge Rosenberg occasionally sat as an associate judge, spoke of her work ethic and legal acumen.  Judge Gross also told a story on how his clerk performed an appellate review of a case that Judge Rosenberg handled as a trial court judge and had to enter a separate order on 70 different motions.  One by one, she did not just enter granted or denied.  Instead, she engaged in a separate, individualized legal analysis on each motion with findings and conclusions. The law clerk commented to Judge Gross that he had never seen anything like it.

Judge Rosenberg’s husband, former Palm Beach County State Attorney, Michael McAuliffe, also spoke on Judge Rosenberg’s accomplishments. In talking about the Senatorial judiciary confirmation process, McAuliffe analogized a common expression when mountaineering (a hobby for McAuliffe who re-climbed Kilimanjaro this summer) that “It’s always further than it looks.  It’s always taller than it looks.  And it’s always harder than it looks.”

The show was stolen, however, when Judge Rosenberg and McAuliffe’s elder daughter, Sydney Rosenberg McAuliffe, a freshman at Duke, took the podium.  She spoke of the accomplishments and role-modeling that her mother had provided for her and her younger brother and sister as a professional.  More significantly though, Sydney spoke of their close, best-friend relationship and that while her “mom accomplishes more than most by dawn,” it is her love for and unyielding investment in her children that was her most laudable accomplishment.  Most of the audience had to brush off the tears.

Judge Rosenberg closed with thanking her parents, children, family, friends, state-court judicial colleagues, the federal judges who have welcomed her, President Obama, and Senators Nelson and Rubio.

If you have never been to a federal-court (or state-court) judicial investiture, you should attend one.  They always remind me of how fortunate we are to practice law, re-instill the importance of professionalism and civility in our profession, and reinforce how family and friends contribute greatly to one’s success.

Congratulations to Judge Rosenberg on an investiture that had most attendees smiling through the weekend. 

A 'humble giant' by Bill Cooke

Bill Cooke, the author of this post, is a Miami photojournalist and publisher of the Random Pixels blog.

I first met Judge William Hoeveler sometime around 1990, right after he'd been assigned to preside over the trial of Panamanian dictator Manuel Noriega.

A writer for the Los Angeles Times wrote this after he was picked: 

"He stands 6-feet-3, his hair is silver-gray, he speaks in a rich baritone, and his bearing is nothing less than magisterial....

"If you went to Central Casting and said, 'Give me a judge,' " says top Miami defense attorney Roy Black, "you couldn't get someone better than William Hoeveler.

"But he not only looks like a perfect judge," adds Black. "He is."

Back then, I was a freelance photographer shooting news assignments for the Associated Press.

There were lots of stakeouts at the federal courthouse as the trial date neared. Stuff that usually involved taking pictures of attorneys entering and leaving the courthouse. Not very exciting. 

In 1991, one newspaper reported there were "more than 250 pretrial pleadings, motions, responses, memorandums and court orders" in the months leading up to the trial.

At some point, I decided to approach the major players involved in the case and ask them if I could shoot their portraits in a formal setting: Noriega's defense attorney, the prosecutors, and of course, Judge Hoeveler.

This was, after all, going to be what some would call the Trial of the Century.

Frank Noriega, Myles Malman, Guy Lewis and Pat Sullivan all agreed to give me some time.

And then I called Judge Hoeveler. I'd been introduced to him some weeks before by a mutual friend.

"Would you mind if I shot a portrait of you in your chambers, Judge? You know...for history?"

"Of course," was his response, "When would you like to do it?"

A date was set and I lugged my equipment up to the ninth floor. As I shot pictures in his chambers, I soon became fascinated with this man who treated me - a somewhat disheveled and unrefined news photographer - with genuine respect. The judge didn't judge or criticize. He even laughed at my corny jokes.

I soon learned that I wasn't alone. Judge Hoeveler, I found out, had a reputation for treating everyone the same way. With respect. 

Finally, in September 1991, as the trial was about to get underway, I found myself back at the courthouse. I was assigned to get a picture of the judge when he arrived for the first day's proceedings

I decided to stake out the entrance to the courthouse's underground garage - joined by a few TV cameramen - in the hope of getting a shot or two before he disappeared into the garage.

It wasn't long before the judge drove up to the guard shack.

But instead of driving in, he rolled down the window and chatted with us for a bit. He seemed genuinely bewildered, but nevertheless amused, by all the attention he was getting. As we chatted, the judge's equally bewildered Akita, Nisei, peered at us from the back seat of the car.

Here was a judge arriving for perhaps the most important trial of his career, but he still found the time to talk with some scruffy news photographers. Respect. 

Over the years, I found myself back in his chambers for various reasons. I always looked forward to those visits. And when I couldn't visit, I picked up the phone just to say hello and to chat for a few minutes. His secretary, Janice, never told me that he was too busy to talk.

Almost 25 years later, I still call Judge Hoeveler a friend.

I revere the man.

A few months ago, I read that he was finally going to retire.

I made a mental note to go downtown and see him, but I kept putting it off, afraid perhaps, that I might become too emotional.

A few weeks ago, the judge's daughter, Margaret, posted something on Facebook about a going away party that had been held  in his honor. 

I decided to call her.

"I'd like to visit with your dad. Do you think that's possible?"

"Sure," she said, "why don't you call him?"

Last week, I called him. But because it was 8 p.m., I was sure his wife, Christine, would answer.

Not a chance. A strong, clear, familiar voice answered.

"Hi," I said, "this is Bill Cooke."

"And this is Bill Hoeveler," came the answer.

"I'd like to come see you," I said.

"You're welcome to come anytime," he said.

On Saturday, Michael Putney and I dropped in on the judge and Christine. Shortly after we arrived, Margaret popped in. 

We shared some stories, laughed a lot, and someone - I'm not sure who - may have even shed a tear or two.

After our visit, I posted some pictures on Facebook. I noted that I wasn't proficient enough in the English language to adequately describe Judge Hoeveler. 

In my opinion, the word "great" isn't descriptive enough. 

A few hours after I posted on Facebook, the Miami Herald's federal courts reporter, Jay Weaver, left a comment on my post calling the judge "a humble giant."

Indeed, Jay. Indeed.

Big 5-4 en banc opinion from the 11th Circuit

The blog covered the panel decision in Spencer v. U.S. here in which the panel held:

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 straightforward.  Someone who preserves an issue should be allowed to raise it when the law changes, especially where it means an extra 81 months in prison.

But the 11th Circuit in a 5-4 opinion, per Judge Pryor (joined by Ed Carnes, Hull, Tjoflat & Marcus), said no:

This appeal concerns whether a federal prisoner may relitigate an alleged misapplication of the advisory United States Sentencing Guidelines in a collateral attack on a final sentence. After he pleaded guilty to distributing cocaine and we affirmed the judgment against him, Kevin Spencer moved to vacate his sentence of imprisonment, 28 U.S.C. § 2255, for an alleged error in the application of the advisory guidelines. Spencer argues that an intervening decision of the Supreme Court, Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), makes clear that the district court and this Court erroneously classified him as a “career offender” based on a prior conviction for felony child abuse, which he argues is not a “crime of violence.” United States Sentencing Guidelines Manual § 4B1.1 (Nov. 2006). Spencer maintains that this alleged error represents a “fundamental defect which inherently results in a complete miscarriage of justice,” Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471 (1962), that can be revisited on collateral review. We disagree.

 There were a number of powerful dissents by Martin, Jordan, Wilson & Rosenbaum.

Here's Judge Wilson:

Kevin Spencer has served approximately eight years of the prison sentence he received after pleading guilty to selling two rocks of crack cocaine to an undercover police officer. Had the district court correctly applied the sentencing guidelines, Spencer would likely be a free man today. Instead, because of the district court’s erroneous application of the career offender enhancement, Spencer faces the prospect of spending nearly six more years in prison unnecessarily.
Contrary to the Majority, I do not read Supreme Court precedent to say that a “lawful” sentence forecloses a determination by us that a complete miscarriage of justice has taken place in Spencer’s case. Accordingly, I would reach the merits of Spencer’s claim because I believe that an erroneous guideline determination that is likely to result in a person spending such a considerable amount of additional time in prison—here, six years—constitutes a fundamental error resulting in a complete miscarriage of justice.

 Judge Martin:

I believe the federal courts as an institution would be stronger if we simply acknowledge that we got Mr. Spencer’s sentence wrong from the start, and fix it. The government now concedes that, contrary to its argument to Mr. Spencer’s sentencing court in 2007, he had no prior crime of violence conviction at the time he was sentenced. But the government nevertheless urges this Court to lay the burden of its mistaken 2007 argument upon Mr. Spencer. The majority of this Court has done just that. So Mr. Spencer will continue to serve an extra many years of a mistaken sentence, even though he has been right about how we got his sentence wrong from the start.

Judge Jordan:

Kevin Spencer is serving more than 12 years in prison (151 months to be exact) for selling $20 worth of crack cocaine. The panel found, see Spencer v. United States, 727 F.3d 1076, 1100 (11th Cir. 2013), the government now concedes, see En Banc Brief for the United States at 57-58, and the majority does not dispute, that Mr. Spencer’s mistaken career offender designation more than doubled his advisory sentencing range from 70-87 months to 151-188 months. For those of us familiar with—and sometimes numbed by—the ranges produced by application of the Sentencing Guidelines, it may be easy to overlook the dramatic increase resulting from the error. To put it in perspective, the 81-month increase is roughly the time needed to complete both college and law school.

And Judge Rosenbaum starts off this way:

Today the Court holds that Sentencing Guidelines error that does not cause the imposition of a sentence greater than the statutory maximum can never be cognizable under § 2255 unless a prior conviction on which an enhancement is based is vacated or the petitioner is actually innocent of the crime for which he was sentenced. The reason for this, the Court explains, is that all sentences based on errors under the Sentencing Guidelines but still lower than the statutory maximum are necessarily “lawful,” and “lawful” sentences are not cognizable under § 2255. But the notion that “lawful” sentences cannot be challenged on a § 2255 petition is not supported by United States v. Addonizio, 442 U.S. 178, 99 S. Ct. 2235 (1979), the case on which the Court relies for the proposition, and is undermined by the statute’s own text.

Powerful dissents.  It just seems absolutely wrong to let a man sit in prison for 81 more months when everyone acknowledges that he wasn't a career offender.  Why is finality is worthy goal when justice, fairness, and the law dictate a different result.  If Spencer is sentenced today, he probably gets 2 years instead of 15. 

It is worth noting that the two newest court members, Julie Carnes and Jill Pryor, did not participate. Also, Senior Judge Phyllis Kravitch who was part of the panel elected not to participate.  And the visiting district judge on the panel was not permitted to participate.  So this case may well have turned out differently if the new judges were on the en banc court.  This case looks destined for the Supremes.

Robin Rosenberg's investiture today

Congrats to Judge Robin Rosenberg, who will have her formal investiture today at 3pm in West Palm Beach.  Exciting stuff!

“What the prosecutor said isn’t true.”

That was Marty Raskin doing his best My Cousin Vinny in opening statements for the ICE agent on trial before Judge Altonaga.  The Herald has the details:

Juan F. Martinez was a “corrupt” federal agent who pocketed hundreds of thousands of dollars from informants while extorting a Colombian business and drug traffickers with the power of his badge, a prosecutor told Miami jurors Wednesday.
Martinez, a suspended Immigration and Customs Enforcement agent, knew nothing about the suspicious payoffs that swirled around him and that his informants were the real criminals, a defense attorney countered during opening statements of his client’s federal extortion trial.
“What the prosecutor said isn’t true,” attorney Martin Raskin told the 12 jurors.
Martinez, 48, faces up to 20 years in prison if he is convicted of an extortion conspiracy charge or related offenses in a 12-count indictment filed last December. His trial is expected to last three weeks before U.S. District Judge Cecilia Altonaga.
Martinez, who joined ICE in 2001 before being suspended without pay a decade later, has investigated Colombian cartels, paramilitary groups and other drug traffickers.
The charges allege that Martinez used his official ICE position to extort more than $2 million from a Colombian company, some of its employees and drug traffickers in exchange for purported law-enforcement protection and immigration benefits between 2009 and 2011, according to prosecutors Michael Nadler and Karen Gilbert.
Martinez, a one-time Miami police officer, became the target of a federal criminal investigation after undercover agents spotted him during a March, 29, 2011 meeting with a Colombian drug-trafficking informant at the touristy Bayside Marketplace in downtown Miami.
The informant gave Martinez a bag stuffed with more than $100,000 in alleged cash bribes — courtesy of the Colombian company that they were shaking down, prosecutors said.
Unbeknownst to Martinez, Drug Enforcement Administration agents stumbled onto Martinez that March day because they had been investigating his informant, Jose Miguel Aguirre-Pinzon, whom they saw make the alleged cash delivery at Bayside, according to sources familiar with the probe.
Martinez was later stopped by DEA agents on his way back to ICE’s field office in west Miami-Dade. DEA agents found the alleged payoff stashed inside Martinez’s car.
“That is the day that the house of cards built by the defendant with lies and deceit began to crumble,” Nadler told jurors during opening statements.
But Raskin, the defense attorney, said the payoff was not what it appeared to be. “The money was given to Agent Martinez to hold over night because Miguel [the informant] was afraid to hold the money in his hotel room over night,” he said.

Should the Supreme Court and its Justices be more open?

Well, they couldn't be more secretive according to a new push to open up the Court.  From USA Today:

As in: They don't publicize their schedules. They don't state their conflicts when recusing themselves from cases. They don't put their financial disclosures online. They don't bind themselves to a code of conduct. And they don't let cameras in the courtroom.
"The Supreme Court has taken on a larger role in American life in recent years. With that increased power comes the need for increased accountability," says Gabe Roth, former manager of the Coalition for Court Transparency, which has focused largely on the need for greater video and audio coverage of the court.
The new effort, to be called "Fix the Court," is intended to bring more media and advertising firepower to what has been a diffused effort on the part of liberal, conservative and government watchdog groups concerned about the high court's renowned seclusion.
It opens Wednesday with a six-figure advertising campaign aimed at politically active fans of Fox and MSNBC, as well as online sites. Funding comes from the non-partisan New Venture Fund.
"They told us where we can pray, picked our president, allowed billionaires to buy elections and made choices of life and death," the ad intones. "Nine judges, appointed for life to a court that makes its own rules and has disdain for openness and transparency — the Supreme Court, the most powerful and least accountable branch of government."
The campaign will open with five goals:
•It wants the justices to specify why they recuse themselves from cases, so the public can gauge their potential conflicts of interest.
•It wants annual financial disclosures filed online, with more details about the justices' benefactors.
•It wants them to abide by the same code of conduct that applies to other federal judges.
•It wants advance notice of their public appearances.
•It wants improved media and public access to their courtroom and plaza.
The justices' elusiveness has baffled reporters for years, inspiring outside efforts to track their travels in advance. The latest is a Twitter-based service called "SCOTUS Map" that collates future appearances on a map of the world.
"They're public figures. What they say makes news," Roth says. "They shouldn't be hiding their public appearances."

Meantime, the Court will be deciding whether to hear a case concerning the right to have fish-nibbling pedicures:

A Gilbert spa owner wants the U.S. Supreme Court to rule she has a constitutional right to have fish nibble on her customers’ toes and charge them for that.
Attorney Clint Bolick of the Goldwater Institute said that’s the only path now open to Cindy Vong, owner of La Vie salon, after the Arizona Supreme Court refused last week to consider her plea. That left in place a state Court of Appeal ruling which said the state Board of Cosmetology was legally entitled to stop her from using the fish.
Bolick said the issue is larger than just Vong.
He said it’s one thing for government to impose restrictions designed to protect public health and safety. But Bolick said the lower court ruling, if left undisturbed, allows state officials to ban an entire business practice.
“The issue is really a business’s right to exist,” he said.

My fellow germaphobes, would you put your feet in that water?

He cited a study done by the health protection agency in the United Kingdom.
“There has not been a single documented instance of harm from fish spas in the entire world,” Bolick said. “And that has been confirmed by the U.S. Centers for Disease Control.”
He also said that UK study found the risk to be “miniscule” and can be further reduced by following certain health and safety protocols.
Aune dismissed the UK study, saying that health oversight in Europe is not the same as it is here, with no real place for consumers who had developed infections to complain.
She said Arizona and other states had a problem about a decade ago when contaminated water used for foot baths resulted in ulcers on the legs of customers.
“It was the buildup in the pipes that weren’t getting cleaned out each night and each week,” Aune said.
She said that, questions of whether the fish themselves can transmit disease, the same problems can develop from having the fish in the water. And Aune said there’s really no way to disinfect the water.
“Not without killing the fish,” she said.
“They dirty the water,” Aune continued. “The water could never stay clear.”