Friday news & notes

1.  Welcome guest blogger turned more-regular-contributor Brian Toth.  Here's a post of his from yesterday.  You'll be seeing more of this about once a week.

2. Is this the most ridiculous federal indictment ever?  A guy can't pull out his own money now?  Oy.

3.  I've said it a bunch on this blog -- Judge Gleeson is a shining star on the district bench.  Check out his most recent order expunging a federal conviction.  This is justice.  This is what our district judges were meant to do.  We need more Judge Gleesons, who recognize the power that a lifetime appointment affords to do justice and to be a check on the executive branch.  For too long judges have thought that ruling for the prosecutors is the way to go.  This is an example of a former prosecutor doing right where the government took an unjust position.  How many other judges would have just said -- I don't have the power to do this; I have to defer to the feds or the marshals or BOP or whatever.

Big ups to Judge Gleeson.  Here are a few excerpts from the order:

Jane Doe filed an application on October 30, 2014, asking me to expunge her thirteen-year old fraud conviction because of the undue hardship it has created for her in getting — and especially keeping — jobs.  Doe gets hired to fill home health aide and similar positions only to be fired when her employers learn through subsequent background checks about her conviction.  Since the conviction was for health care fraud, it’s hard to blame those employers for using the conviction as a proxy for Doe’s unsuitability.
However, even if one believes, as I do, that employers are generally entitled to know about the past convictions of job applicants, and that their decisions based on those convictions are entitled to deference, there will nevertheless be cases in which all reasonable employers would conclude that the conviction is no longer a meaningful consideration in determining suitability for employment if only they had the time and the resources to conduct a thorough investigation of the applicant or employee.
I have conducted such an investigation, and this is one of those cases.  In addition to presiding over the trial in Doe’s case and her subsequent sentencing, I have reviewed every page of the extensive file that was created during her five years under probation supervision.  I conclude that the public’s interest in Doe being an employed, contributing member of society so far outweighs its interest in her conviction being a matter of public record that the motion is granted and her conviction is expunged....
Doe is one of 65 million Americans who have a criminal record and suffer the adverse consequences that result from such a record. Her case highlights the need to take a fresh look at policies that shut people out from the social, economic, and educational opportunities they desperately need in order to reenter society successfully.
The seemingly automatic refusals by judges to expunge convictions when the inability to find employment is the “only” ground for the application have undervalued the critical role employment plays in re-entry. They are also increasingly out of step with public opinion. The so-called “ban the box” practice, in which job applications no longer ask the applicant whether he or she has been convicted of a crime, is becoming more prevalent. There is an increasing awareness that continuing to marginalize people like Doe does much more harm than good to our communities.
Accordingly, Doe’s application for an order expunging her conviction is granted. It is hereby ordered that the government’s arrest and conviction records, and any other documents relating to this case, be placed in a separate storage facility, and that any electronic copies of these records or documents and references to them be deleted from the government’s databases, electronic filing systems, and public record. Doe’s real name is to be removed from any official index or public record. It is further ordered that the records are not to be opened other than in the course of a bona fide criminal investigation by law enforcement authorities and only when necessary for such an investigation. The government and any of its agents may not use these records for any other purpose, nor may their contents be disseminated to anyone, public or private, for any other purpose.
Finally with respect to the relief granted here, I welcome the input of the parties. My intention is clear: no inquiry of the federal or state government by a prospective employer should result in the disclosure of Doe’s conviction. Effectuating that intent without unduly burdening those governments or impairing their legitimate law enforcement interests is not so clear, at least not to me. Thus I welcome any proposed modifications to the relief set forth above, and of course any such proposals by the government would not be regarded as a waiver of its opposition to my decision to expunge the conviction.

An apt observation on word choice by the Eleventh Circuit

Today, the Eleventh Circuit issued an unpublished opinion in Fuentes-Rangel v. Woodman, which affirmed an order granting a petition asking that a child be returned to Mexico under the Hague Convention on the Civil Aspects of International Child Abduction and its implementing legislation, the International Child Abduction Remedies Act of 1988, or ICARA. The treaty and its implementing legislation command courts to return children to their countries of habitual residence if the children were wrongfully removed from their country or wrongfully retained in the United States. But there are narrow exceptions to this command, and lawyers who practice in this area most often describe these exceptions as "affirmative defenses." The lawyers in the Fuentes-Rangel case did so as well, which prompted the second footnote in the opinion. Here it is, in its entirety:

The parties describe Article 12 of the Hague Convention as an "affirmative defense." In ICARA, Congress described Article 12 as an "exception." See 22 U.S.C. § 9001(a)(4) ("Children who are wrongfully removed or retained within the meaning of the Convention are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies."); id. § 9003(e)(2)(B) ("[A] respondent who opposes the return of the child has the burden of establishing ... by a preponderance of the evidence that any other exception set forth in article 12 ... applies."). We do not decide whether Article 12 is properly categorized as an "affirmative defense" or if instead it is an "exception." We accept the parties' characterization.

We often characterize concepts embodied in statutes different from how the statutes actually characterize them. For example, most of our district judges adopt reports and recommendations. But the governing statute doesn't give them that option; instead, "[a] judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) (emphasis added). We also eagerly await the results of en banc decisions of the Eleventh Circuit, rather than in banc decisions of the Eleventh Circuit. See 28 U.S.C. § 46(c) ("A court in banc shall consist of all circuit judges in regular active service ...."). Common usage often carries the day.

So the Eleventh Circuit's observation on the lawyers' choice of words in Fuentes-Rangel was an interesting one. But -- for those of us who are into this kind of thing -- it was disappointing that the panel didn't ultimately weigh in. (I'm partial to exception. Not only does this have the benefit of tracking the language of the statute, but it seems to work better with how the Hague Convention and ICARA are designed to work.) Correcting usage isn't normally a reason to publish a decision. But there are always exceptions. See, e.g., In re UNR Indus. Inc., 20 F.3d 766, 769 (7th Cir. 1994) (Easterbrook, J.) ("There is a big difference between inability to alter the outcome (real mootness) and unwillingess to alter the outcome ('equitable mootness'). Using one word for two different concepts breeds confusion. Accordingly, we banish 'equitable mootness' from the (local) lexicon.").

Facebook comments calling judges "dumbasses" cost JNC appointment

Whoops.  The Tampa Tribune has the story about "Republican kingmaker Sam Rashid":

Valrico businessman and Republican kingmaker Sam Rashid has never been known to pull his punches.

But the outspoken Rashid managed to go a rant too far in a Facebook posting last week, referring to three unnamed Hillsborough County Circuit Judges as “dumbasses.”

Though he later edited the statement - replacing the word with “dumb mothers” - the posting cost Rashid a U.S. senatorial appointment to the Florida Federal Judicial Nominating Commission. The commission nominates candidates for federal judgeships, U.S. Attorneys and U.S. Marshals.

The posting also could prove an embarrassment to the presidential campaign of U.S. Sen. Marco Rubio, a longtime friend of Rashid who appointed him to the commission.

After accepting Rubio’s appointment on Friday, Rashid had to formally decline it a day later. In a Saturday letter to the senator’s general counsel, Gregg T. Nunziata, Rashid said he was clearly not the appropriate person to fill the commission post.

“I appreciate the Senator’s confidence,” Rashid wrote, “but I actually pre-judged some un-named Circuit Judges in Hillsborough County.”

Rashid credited Chris Ingram, a Republican consultant and columnist for The Tampa Tribune’s editorial page, for calling him out on the potential bias in his comments about the judges. Those same judges Rashid disparaged could someday come before him to seek an appointment to the federal bench, Ingram said.

“What Chris said made a lot of sense to me,” Rashid said. “I sent an e-mail to the senators saying, ‘You know what guys, I am biased. When it comes to these judges in Hillsborough County, I have a really strong bias.’”

HT Glenn Sugameli

FIFA = Racketeering Enterprise?

That's what the Eastern District of NY is alleging in this sweeping indictment against nine FIFA executives. The NY Times has this front page coverage:

Swiss authorities conducted an extraordinary early-morning operation here Wednesday to arrest several top soccer officials and extradite them to the United States on federal corruption charges.

As leaders of FIFA, soccer’s global governing body, gathered for their annual meeting, more than a dozen plainclothes Swiss law enforcement officials arrived unannounced at the Baur au Lac hotel, an elegant five-star property with views of the Alps and Lake Zurich. They went to the front desk to get room numbers and then proceeded upstairs.

The arrests were carried out peacefully. One FIFA official, Eduardo Li of Costa Rica, was led by the authorities from his room to a side-door exit of the hotel. He was allowed to bring his luggage, which was adorned with FIFA logos.

The charges, backed by an F.B.I. investigation, allege widespread corruption in FIFA over the past two decades, involving bids for World Cups as well as marketing and broadcast deals.

Several hours after the soccer officials were apprehended at the hotel, Swiss authorities said they had opened criminal cases related to the bids for the 2018 and 2022 World Cups — incidents that, more than any others, encapsulated FIFA’s unusual power dynamic. “In the course of said proceedings,” the Swiss officials said, “electronic data and documents were seized today at FIFA’s head office in Zurich.”

School's out!

Summer is here and we've hit the home stretch on the school year, but these students have much bigger concerns.  From the Miami Herald:

Caleb Fadet, who grew up in a working-class family in North Miami, seemed to be making all the right moves to get ahead in life.

He graduated with a criminal justice degree from Florida A&M, volunteered as a tutor in the federal AmeriCorps program and earned a scholarship to pursue a vocational degree in funeral sciences at Miami Dade College in 2012.

But Fadet did something really stupid along the way: For a lousy $550 kickback, he let a boyhood friend use his student bank account at MDC to deposit $18,000 in illegally obtained tax refunds from the Internal Revenue Service. Federal agents arrested Fadet two years later while he was working at the U.S. Postal Service and applying to join the Army.

On Tuesday, Fadet, 27, will learn his punishment — at best, probation; at worst, up to one year in prison — in Miami federal court. Either way, he will still have a felony record.

“Caleb is a good kid who made a terrible mistake,” his defense attorney, Adam Schwartz, told the Miami Herald. “He had a lapse in judgment, and it’s something that he will have to live with the rest of his life.”

Fadet, who pleaded guilty for his minor role in the fraud scheme, has plenty of classmates from MDC who got caught for committing the same crime, theft of government funds. He was among 18 students charged in November with allowing their Higher One bank accounts to be used for depositing ill-gotten IRS tax refunds.

Collectively, the 18 college students — along with three Target store employees named in one case — were accused of using Higher One bank accounts to receive about $500,000 in fraudulent income-tax refunds between 2011 and 2013. The online accounts are managed by traditional banks, such as Chase, Wells Fargo and Bank of America. In total, the defendants used the stolen IDs of 644 victims while trying to collect $1.9 million in IRS refunds, according to the U.S. attorney’s office.

Almost all of them have pleaded guilty and received relatively short sentences, from probation up to two years in prison — including a few punished for stealing other people’s names, dates of birth and Social Security numbers to commit tax fraud.

It's also the home stretch for the Supreme Court:

The Supreme Court is heading into the final month of its annual term.

In a potentially historic ruling, the court will decide whether same-sex couples have a right to marry nationwide, culminating a two-decade legal and political fight for marriage equality.

Another much-anticipated decision will be whether the Obama administration may continue to subsidize health insurance for low- and middle-income people who buy coverage in the 36 states that failed to establish an official insurance exchange of their own and instead use a federally run version.

If the court rules against the Obama administration, about 8.6 million people could lose their subsidies under the Affordable Care Act.
Ireland is first country to legalize same-sex marriage in popular vote
Ireland is first country to legalize same-sex marriage in popular vote

Between now and late June, the court will hand down more than two dozen decisions on matters such as politics, civil rights, free speech and air pollution. Several of these cases have been pending for months, suggesting the justices have been sharply split.

"A rose by any other name may smell as sweet. See William Shakespeare, 'Romeo and Juliet,' act 2, sc. 2. People, not so much."

Lots of awesomeness there by Judge Bloom in this order, which starts this way:

A rose by any other name may smell as sweet. See William Shakespeare, “Romeo and Juliet,” act 2, sc. 2. People, not so much. The Plaintiff in this matter, who originally filed his action under the name of “Raul Aguilar,” stood before the Court and stated his name to be “Manuel Antonio Aguilar.” Two hours and several iterations later, he identified himself as “Manuel Antonio Aguilar Salazar.” This encapsulates the misinformation and confabulation to which Plaintiff has subjected these proceedings. Now, ten months into the case, after two full length depositions, days before the close of discovery, and only a few months before trial, the Defendants, the Court and Plaintiff’s own counsel are still left wondering if the real plaintiff has stood up. “A trial is not a masquerade party nor is it a game of judicial hide-n-seek where the plaintiff may offer the defendant the added challenge of uncovering his real name. We sometimes speak of litigation as a search for the truth, but the parties ought not have to search for each other’s true identity.” Zocaras v. Castro, 465 F.3d 479, 484 (11th Cir. 2006). Under the standard articulated and for the reasons set forth below, this case is dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b).

Have a nice weekend everyone.

H/T SFLawyers.

11th Circuit rejects Don Siegelman again

Here's the opinion by visiting Judge Ebel, a senior 10th Circuit judge.  The Montgomery Advertiser has this report on the former Alabama Governor:

A federal appeals court Wednesday denied former Gov. Don Siegelman's bid for a new trial, saying he relied on arguments that judges rejected in an appeal from his co-defendant in their 2006 trial on bribery and corruption charges.
Siegelman argued that the district court should have considered whether then-U.S. Attorney Leura Canary, who recused herself from Siegelman's investigation in 2002, had honored the recusal. Former HealthSouth CEO
Richard Scrushy made the same arguments in his motion for a new trial, citing emails from a whistleblowers in which Canary suggested a gag order be placed on Siegelman during the trial; forwarded an email on its coverage and approved a staffing decision.
The three-judge panel rejected Scrushy's argument in 2013, writing "there is no evidence that Canary's emails influenced any decisions made by the U.S. Attorney's office in prosecuting Scrushy." In the former governor's case, the court wrote that it had to follow its decision on Scrushy.
"Regardless of whether Canary possessed a stronger conflict of interest with respect to Siegelman, our determination in Scrushy that there was no evidence that Canary influenced the prosecution team , , , binds Siegelman on this appeal," the opinion said.
The three-judge panel also rejected Siegelman's arguments that his sentence had been miscalculated, saying the district court made no error in sentencing him to 78 months in prison.

News & Notes

1.  Follow up on the "intactivist" post from yesterday.  The lawyer decided to voluntarily dismiss the lawsuit.  From the Sun-Sentinel:

A federal lawsuit concerning a circumcision fight between two South Florida parents suddenly ended Wednesday when the attorney for the 4 1/2-year-old boy and his still-jailed mom decided the case appeared hopeless.
Thomas Hunker, who represents mother Heather Hironimus, notified U.S. District Judge Kenneth Marra that the month-old case has been voluntarily dismissed, and the notice prevents the case from ever being filed again in the court.
In a message posted on a Facebook page dedicated to the boy and his mom and directed at circumcision opponents, Hunker wrote they decided to quit because, "Unfortunately, Judge Marra was not only not sympathetic, he seemed quite hostile toward our position."
Hunker added that proceeding with the federal lawsuit would surely result in "an unfavorable order which could potentially hurt the cause and future efforts to establish a child's right to object to circumcision. I hope you understand and agree that under the circumstances, this was our only available option."
Finally, the attorney said the focus must be to "conserve resources to help Heather get out of jail and preserve her custody rights. That is my mission now."

2.  District Judges like asking other district judges for help.  From the NY Times:

 Federal district judges are often described as the quintessential deciders, whether from the bench or in written opinions. But what happens when a difficult question arises, the parties are in sharp disagreement, and the answer is not obvious?

Turns out they often rely on a rarely discussed resource: the jurist-to-jurist lifeline.

Interviews with more than a dozen judges in Manhattan’s Federal District Court show that almost all have telephoned colleagues when they were puzzled by legal questions or other issues, or have been on the receiving end of the game-show-like call for help.

“I can tell you that everyone calls colleagues for advice, particularly when we get gnarly jury notes,” said Chief Judge Loretta A. Preska, a member of the bench for more than two decades.

The practice is longstanding: Judge Pierre N. Leval, a district judge for 16 years before he was elevated to the federal appeals court in 1993, said that shortly after he became a trial judge, he asked a colleague, “What do you do when you’re stumped?”

The colleague scribbled four digits on a scrap of paper and handed it to him — it was the phone extension for Judge Edward Weinfeld, a legal legend on the court.

“Put it on your desk in the robing room and call him when you’re stuck. We all do it,” Judge Leval remembers his colleague saying.

In a recent trial in Manhattan, Judge Katherine B. Forrest ruled against the government on the admissibility of a particular document, but after a break, she said she had changed her view.

“I spoke to three colleagues — judges here,” she explained.

The defense lawyer objected, but Judge Forrest indicated that it was important that she get it right, and drawing on the expertise and experience of fellow federal judges was sometimes useful “when one is pressed for time in dealing with these kinds of issues.”

“Indeed, a lot of us call each other,” she said. “People call me a lot, including more senior judges.”

Shocker -- her colleagues said to rule for the government!  Oy!

3.  Judge Altonaga did not need to call her colleagues on this one where the government isn't complying with its discovery obligations in the civil terrorism case.  From the AP:

A federal judge sternly blamed the U.S. government Tuesday for lengthy delays in a lawsuit filed by a Pakistani-American man accusing the U.S. of malicious prosecution in a terror financing case.
U.S. District Judge Cecilia M. Altonaga agreed with Irfan Khan's lawyer that the Justice Department's tactics have caused months of unnecessary delays. Altonaga said much FBI evidence released about its investigation into Khan's alleged ties to the Pakistani Taliban is heavily redacted and useless.
"It's virtually like providing nothing," Altonaga said at a hearing. "It's sort of like shooting in the dark."
...Altonaga decided Tuesday to suspend various deadlines until the classified material is sorted out, likely scrapping the current October trial date as well.
"This is a very old case, gentlemen. I fault the government," she said. "You let me know when you're good and ready."

Intactivists!

Ah, Florida (via the Sun-Sentinel):

A federal judge will get 10 days advance notice before a 4 1/2-year-old boy at the center of a circumcision battle is set to have the procedure, the father's attorney promised Monday.
U.S. District Judge Kenneth Marra — hearing an emergency request from an attorney for the boy and his now-jailed mom, Heather Hironimus, to block the surgery already cleared by two state courts — had inquired about the child's whereabouts and the status of the circumcision.
"The child is healthy and well," said Ira Marcus, attorney for father, Dennis Nebus. He told the court the boy is staying with his dad in a "safe and secure" location, has not yet been circumcised, and would not be operated on before telling Marra first.

"Mr. Nebus is entitled to some finality," Marcus said, arguing the boy's parents' legal fight has gone on long enough. "And you know what? The child is entitled to some finality."
But Thomas Hunker, hired by Hironimus to represent the child, urged Judge Marra to step in and protect the boy from "physical harm," brain damage or worse from an elective procedure that is not medically necessary for him and violates his Constitutional rights.
"This is a potentially life and death situation," Hunker said, contending that the child doesn't respond well to general anesthesia and is prone to scarring that could further harm his genitals if he survives. He further argued the procedure to remove the foreskin from the boy's penis is not "reversible" and violates his right to bodily "integrity."
Marra concluded a 75-minute hearing without ruling on the bid for a temporary restraining order against the circumcision — or Nebus' motion to throw the case out of federal court.
Several times, Marra peppered Hunker with questions about why he should hear a case that had already been decided in the father's favor by state circuit and appellate courts. "So you want me to take a fresh look at what was already done by the state court?" Marra asked.
***
On Friday, the attorney filed for the restraining order until the resolution of a federal lawsuit that was filed on the boy's behalf on April 13. The lawsuit states the boy's rights were violated because he hasn't had a psychological examination or an independent guardian to speak on his behalf in court as the mother requested, along with other claims.
The lawsuit lists as defendants his father, Judge Gillen, and Palm Beach County Sheriff Ric Bradshaw. Attorneys for Gillen and Bradshaw urged Marra to remove them from the case.
Meanwhile, Hunker also filed in state court Friday an emergency motion on behalf of Hironimus to freeze all state judicial orders and court proceedings in the long-running custody battle while the matter is pending in federal court.
In March, Gillen ruled Hironimus had committed a "direct, contemptuous violation" of court orders by continuing work with circumcision opposition groups — called "intactivists" — that have "plastered" the child's photos and name "all over the Internet."
During Monday's hearing, a small group of the mother's supporters stood outside the courthouse in West Palm Beach.
"I've been an advocate for all human beings to have bodily autonomy," said Rebecca Boni, a mother of two young children from Boca Raton. "To me it's so obvious it blows my mind the [state] judge decided to side with the father."

Supreme Court reverses 11th Circuit in Henderson v. United States

9-0.

SCOTUSblog has the details:

After oral argument, the outcome in Henderson v. United States wasn’t really in doubt. The entire Court had expressed skepticism of the idea that a firearm owner convicted of a felony couldn’t lawfully sell his weapons on the open market, or transfer them to an independent third party. Today, in a crisp eight-pager by Justice Elena Kagan, the Court unanimously ruled in favor of the firearm owner. Along the way, the Court ironed out some significant legal wrinkles. Of special note, the Court clarified that felons can be entitled to the benefits of equity in federal court.
When an individual surrenders his firearms to police and is later convicted of a felony, what happens to the firearms? The weapons can’t go back to the felon, because federal law prohibits felons from possessing firearms. Yet the felon still owns the weapons, which could have considerable financial, sentimental, or historical value. Understandably enough, many felons in this situation would like to sell or transfer their firearms, rather than let Uncle Sam indefinitely possess them. The question before the Court in this case was whether federal law gave felons that right to transfer.
In the decision under review, the U.S. Court of Appeals for the Eleventh Circuit had ruled against transfer based on a broad view of “constructive possession” – roughly, the idea that someone can lack physical possession of an object but still exert enough control over it to count as possession for purposes of law. The court of appeals had also seemed to say that a convicted felon lacked “clean hands” and so could not take advantage of any form of equitable relief, including equitable transfers of property.
Today, however, the Supreme Court unanimously ruled in favor of the firearm owners by allowing them to transfer their weapons to independent third parties, including to have the weapons sold on the open market. As Justice Kagan succinctly explained, this is a pragmatic solution that accords with the statute’s text and purpose, and also has the benefit of fitting snugly with common sense.

zzzzzzzzzzzzzzzzzz

In the 11th Circuit, you can find out your oral argument panel two weeks before the argument.  But it's not like that in every circuit.  Zoe Tillman covers the interesting differences here:

Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit prefers the element of surprise. At least for oral arguments.
The Seventh Circuit, based in Chicago, doesn't reveal the identities of the judges assigned to a case until the morning of oral arguments. Lawyers, Easterbrook said, should "prepare to face the circuit as a whole."
"Even with this policy, many lawyers try to make judge-specific arguments ('You wrote the opinion that said…') and have to be reminded that opinions speak for the court, not for their authors," the judge said in an email to The National Law Journal. "Ad hominem arguments are out of place."
The Seventh Circuit is in the minority. Of the 13 federal appeals courts, only three — the Fourth, Seventh and Federal circuits — wait to disclose the three judges assigned to a case on the day it is argued. The other circuits reveal their panels days or weeks in advance.
In the First Circuit in Boston, lawyers get a week's notice. In the Eighth Circuit in St. Louis, one month. The D.C. Circuit, until recently, had the most generous policy: The court announced the panel when it set a date for arguments — several months ahead of the hearing. Last year, the court switched to notifying counsel 30 days out. It formalized the change this month in its handbook.

OK, OK, it's a slow news day.  But not as slow as the Herald, which is covering how bad traffic is on the front page.  

If you are looking for something to watch, check out the new movie by Billy Corben and Alfred Spellman, Dawg Fight, which is now on Netflix.  The Hollywood Reporter covers it:

Dawg Fight, director Billy Corben’s new film about the backyard bare-knuckle fight scene, debuts on Netflix this weekend. But for Corben and his producing partner Alfred Spellman, best known for their 2006 doc Cocaine Cowboys, an online bow proved the right fit for their particular brand of street-smart filmmaking.
“As we started looking at how we wanted to release it, theatrical was just not a very appealing option,” says Spellman, who along with Corben founded their Rakontur banner in 2000. Explains Corben, “The whole purpose of this subculture is these guys uploading this footage to the Internet. So the audience for this type of content is already on line — the gamer crowd, the fight fan crowd. So it seemed just kind of obvious to go where they were.”
Since first meeting up in high school more than 15 years ago, Corben and Spellman have forged a unique career by focusing on what Carben admits is often “more pulpy, pop-culture-oriented subject matter” and then riding the successive waves through which such movies have been delivered to eager audiences. “We’ve watched the business shift now through four incarnations,” says Spellman. “We started out going to Sundance. At Sundance, we realized your audience is the seven or eight people who are the acquisition execs. And then we went through the DVD boom, catching the last wave with Cocaine Cowboys. After the recession and the technological upheaval, we did a lot of TV commissions — we’ve done now three 30 for 30s for ESPN and a four-hour miniseries for VH1.” And with Dawg Fight, they’ve moved on to streaming-on-demand. “We’ve kind of been early adopters in figuring out new media trends, some that work out and some that don’t,” adds Corben.

En banc Berry v. Leslie case settles before opinion

This is a weird one -- the case involving the SWAT team storming the barbershop for licensing violations was settled after oral argument but before the opinion issued.  Here's the en banc order dismissing the case.

The panel decision by Judge Rosenbaum (her first published opinion) was a good one, which 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.

Judge William Pryor concurred and dissented from the opinion, with this intro:

I agree with the majority opinion that the search of the barbershop exceeded the scope of a reasonable administrative inspection and that the barbers presented evidence that Corporal Keith Vidler, as the supervisor, violated their clearly established constitutional rights. I also agree that Brian Berry presented evidence that Deputy Travis Leslie, who handcuffed Berry and patted him down, violated his clearly established constitutional rights. But Edwyn Durant, Reginald Trammon, and Jermario Anderson presented no evidence that Deputy Travis Leslie violated their constitutional rights. Even though the inspection of the barbershop appeared to be “a scene right out of a Hollywood movie” (Majority Op. at 1), we cannot bend the law to resolve this appeal with a feel-good ending from a boxoffice hit. The law entitles Leslie to qualified immunity against any barber who failed to present evidence that Leslie personally deprived him of a clearly established constitutional right. Durant, Trammon, and Anderson failed to prove an affirmative causal connection between their specific injuries and Leslie’s conduct. For that reason, I respectfully concur in part and dissent in part. 

News & Notes

1.  Gang members arrested in Broward, via Paula McMahon.

2.  @_FloridaMan is the subject of this fun NY Times article by Lizette Alvarez.  A bunch of other Florida men are quoted -- Billy Corben, Roy Black, Dave Berry, and Carl Hiaasen:

California’s kumbaya vibe is absent here, and so is Texas’ ideological fervor. With so many transplants, allegiances lie elsewhere. New arrivals are often shocked to find that South Florida is segregated, cliquish, brazenly rude and typically indifferent to most annoyances, including its maniacal drivers.

“That’s the most common misconception about Florida — that we are a melting pot,” said Billy Corben, who has made several Florida-esque documentaries, including “Cocaine Cowboys,” about the rise of cocaine violence and capitalism here in the 1970s and 1980s. “We are more akin to a TV dinner, where sometimes the peas spill over into the mashed potatoes.”

“As long as the Champagne is flowing and the checks are clearing,” he added, “nobody asks a lot of questions here about anything.”

Drugs and the weather are also culprits. The steaminess adds to the seaminess. And outdoor living makes for easy viewing and recording. As Mr. Barry put it, people do drugs and act erratically elsewhere. “But it’s not warm outside all the time everywhere,” he said. “In Ohio, they stay indoors.”

Here, reinvention remains the national pastime, which is why hucksters and criminals do quite nicely.

“As they say,” Mr. Corben remarked, “Los Angeles is where you go when you want to be somebody. New York is where you go when you are somebody. Miami is where you go when you want to be somebody else.”

3.  The Steve Chaykin ethics seminar is this Friday at U.M.  Looks to be a good conference in spite of the fact that yours truly will be speaking on social media.  

4.  Bernie Roman is out as the Miccosukee's lawyer.  Via the DBR:

"We have been notified this morning … that we no longer represent the Miccosukee tribe and that I am no longer their tribal attorney," Roman said, according to a transcript of Thursday's hearing.

Salomon Melgen denied bail

 From the Palm Beach Post:

Despite claims by Melgen’s attorneys that he had no intention of fleeing to his native Dominican Republic, U.S. Magistrate James Hopkins denied their request to allow the 60-year-old doctor to post a sizable bond, secured by property worth millions, so he can help them prepare for his trial, now scheduled for Feb. 22.
“There are no combination of conditions that will reasonably assure the appearance of the defendant,” Hopkins ruled. “I will order that he be detained as a risk of flight.”
Not only does Melgen face a possible life sentence if convicted of 76 charges of health-care fraud but he, along with his longtime friend Sen. Robert Menendez, D-N.J., is charged in New Jersey with operating a bribery scheme, Hopkins noted.
Further, he said, an extradition treaty between the U.S. and the Dominican may not cover health-care fraud. If Melgen decides to flee to his island homeland — where he has luxury homes, bank accounts and links to top government officials — prosecutors may never be able to bring him back to stand trial, he said.
Melgen, who federal prosecutors said earned $1 million a month treating patients at clinics in West Palm Beach, Wellington, Delray Beach and Port St. Lucie, smiled weakly at his wife, son and daughter as he was led from the courtroom in shackles. His wife, Flor, collapsed against the couple’s daughter Melissa in tears.

Seems hard to imagine that Melgen should be detained.  He's a 60-year old doctor with no criminal history.  I would expect that he gets bail from the district judge, especially since he already got bond in New Jersey where the judge found that he was not a risk of flight. 

Lindsay MacDonald selected for Stuart A. Markus award

Friends and readers of the blog know that my family set up an award in my Dad's name at the University of Miami School of Law.  The Stuart A. Markus Award recognizes an individual student each year for outstanding work in one of the School of Law’s in-house clinics. The winner is selected by vote of the in-house, live-client clinic directors.  The first award went to Bethany Bandstra.

This year the Markus Award went to Lindsay MacDonald, a student in Rebecca Sharpless’ immigration clinic. Highlights of her clinical work include: litigating a habeas petition in U.S. District Court for a transgender Haitian woman that challenged the legality of her prolonged immigration detention; writing the Eleventh Circuit briefs in the same woman’s asylum case; working on a motion to suppress in immigration court in a case where immigration agents profiled our client in violation of the Fourth Amendment; preparing two cancellation of removal cases in immigration court and litigating one to an adversarial merits hearing; litigating a legally and factually complex dependency case in Broward for an unaccompanied border child that required a deposition of her father as well as numerous court appearances over the course of many months; and authoring the Eleventh Circuit brief in a multi-issue case that is the most complex the Clinic has handled to date. Lindsay was scheduled this April to do the Eleventh Circuit oral argument in the transgender client’s case, but the court rescheduled the case until June. Lindsay has earned no fewer than 10 Dean’s Certificates/CALI awards or their equivalents in her classes and is third in her class of 412.

 

Stuart A. Markus (BED ’54, J.D. ‘57) practiced law in Miami for over 50 years.  Throughout his career, Stuart fought hard for his clients in every area of the law.  He never turned away a person in need, and helped countless people with practical, hands-on advice and representation that went far above and beyond the norm.  The Markus Award is given annually to a student who shares that caring spirit, and who has made a meaningful difference in someone’s life – which is something Stuart did every day.

Congratulations to Lindsay!

Appellate happenings

So everyone is talking about the Second Circuit opinion today which held that the Patriot Act did not authorize NSA to snoop on all of our phone call records.

In the meantime, everyone missed this D.C. Circuit case, which starts out with a Friends reference:

In an episode of the iconic 1990s television show Friends, Joey Tribbiani tries to dissuade Rachel Green from moving to Paris. Joey asks Rachel to flip a coin. If he wins the coin flip, she must agree to stay. Rachel flips the coin; Joey loses. When later recounting the story to Ross Gellar, a befuddled Joey says, “[w]ho loses fifty-seven coin tosses in a row?” Friends: The One with Rachel’s Going Away Party (NBC television broadcast Apr. 29, 2004). Before Ross can answer, Joey explains Rachel’s rules: “Heads, she wins; tails, I lose.” Id.

"There is no support for the assertion that Watkins had a First Amendment right to sing any sort of song in the post office lobby while standing in the service line."

That's the conclusion in this 11th Circuit unpublished decision, which starts out:

This case ensued after plaintiff-appellant Eric Watkins was asked to leave a post office and was denied service because he refused to stop singing. Watkins brought suit against defendant-appellee Jackie White, the postal employee who asked Watkins to leave and did not allow Watkins to purchase a post office box after he disregarded her instruction to stop singing. Proceeding pro se, Watkins appeals the district court’s order granting White’s motion to dismiss for failure to state a claim, averring that White violated his right to free speech under the First Amendment to the United States Constitution.
On appeal, Watkins argues that he established a cognizable First Amendment claim because White retaliated against him for his exercise of free speech by ordering him to leave the post office and not permitting him to buy a mailbox while singing. Watkins contends that the lyrics to the song he was singing were “antigay” and that White restricted his speech based on its content. He further avers that White did not have the authority to restrict his speech. However, upon review of the record and consideration of the parties’ briefs, we find that the restriction on Watkins’s speech was reasonable and that White is entitled to qualified immunity. Thus, we affirm the district court’s dismissal of the case.

GUEST POST BY BRIAN TOTH ON USA v. QUARTAVIOUS DAVIS

Brian Toth wrote the following Guest Post on the en banc Davis case:

The Eleventh Circuit Decides United States v. Davis En Banc

In a decision that didn’t much matter for the individual defendant but mattered greatly for how law enforcement goes about its business in today’s technological age, the U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, held today that the government didn’t violate Quartavious Davis’s Fourth Amendment rights by obtaining in accordance with a federal statute historical cell-tower information from the business records of a service provider without a search warrant and without a showing of probable cause. An earlier panel—authored by a judge sitting by designation and joined by Judges Martin and Dubina—concluded otherwise, but nonetheless affirmed Mr. Davis’s convictions because law enforcement had acted in good faith (an exception to the exclusionary rule). The Government sought rehearing en banc of the portion of the panel opinion holding that a Fourth Amendment violation occurred. Expectedly (sorry, David), the Government’s position carried the day.

Mr. Davis, a “prolific cell phone user,” made 86 phone calls a day from his cell phone during the course of a two-month period in which he and several others committed seven armed robberies in South Florida. As permitted by, and in compliance with, the Stored Communications Act, the Government sought and obtained a court order requiring MetroPCS to produce telephone records from that two-month period, which contained certain information about Mr. Davis’s telephone calls and about the cell towers that connected those calls. Before trial, Mr. Davis moved to suppress those records, asserting that their production was a search that required probable cause and a warrant. That motion was denied, and the Government used that information at trial to show that Mr. Davis was physically near the robberies when they occurred.

Writing the majority opinion for the en banc court, Judge Hull relied chiefly on the so-called third-party doctrine, which roughly holds that you have no reasonable expectation of privacy in information that you voluntarily hand over to third parties (and thus no “search” of the information occurs within the meaning of the Fourth Amendment). Comparing Mr. Davis’s case to the facts in a pair of Supreme Court decisions concerning the third-party doctrine, Judge Hull explained that Mr. Davis didn’t have a reasonable expectation of privacy in the cell-tower records:

For starters, like the bank customer in Miller and the phone customer in

Smith, Davis can assert neither ownership nor possession of the third-party’s

business records he sought to suppress. Instead, those cell tower records were

created by MetroPCS, stored on its own premises, and subject to its control. Cell

tower location records do not contain private communications of the subscriber.

This type of non-content evidence, lawfully created by a third-party telephone

company for legitimate business purposes, does not belong to Davis, even if it

concerns him. Like the security camera surveillance images introduced into

evidence at his trial, MetroPCS’s cell tower records were not Davis’s to withhold.

Those surveillance camera images show Davis’s location at the precise location of

the robbery, which is far more than MetroPCS’s cell tower location records show.

More importantly, like the bank customer in Miller and the phone customer in Smith, Davis has no subjective or objective reasonable expectation of privacy in MetroPCS’s business records showing the cell tower locations that wirelessly connected his calls at or near the time of six of the seven robberies.

Judge Hull’s opinion also concluded that even if obtaining the cell-tower records had constituted a search under the Fourth Amendment, the search was nonetheless reasonable:

Davis had at most a diminished expectation of privacy in business records made, kept, and owned by MetroPCS; the production of those records did not entail a serious invasion of any such privacy interest, particularly in light of the privacy-protecting provisions of the SCA; the disclosure of such records pursuant to a court order authorized by Congress served substantial governmental interests; and, given the strong presumption of constitutionality applicable here, any residual doubts concerning the reasonableness of any arguable “search” should be resolved in favor of the government. Hence, the § 2703(d) order permitting government access to MetroPCS’s records comports with applicable Fourth Amendment principles and is not constitutionally unreasonable.

There were other opinions.

Concurring in full, Judge William Pryor wrote “to explain that a court order compelling a telephone company to disclose cell tower location information would not violate a cell phone user’s rights under the Fourth Amendment even in the absence of the protections afforded by the Stored Communications Act.”

Concurring in the judgment, Judge Jordan, joined by Judge Wilson, expressed “concerns about the government being able to conduct 24/7 electronic tracking (live or historical) in the years to come without an appropriate judicial order.” Judge Jordan would’ve ruled on narrower grounds—assuming that Mr. Davis had a reasonable expectation of privacy but holding “that the government satisfied the Fourth Amendment’s reasonableness requirement by using the procedures set forth in 18 U.S.C. § 2703(d) to obtain a court order for Mr. Davis’ cell site records.”

Judge Rosenbaum, concurring in the majority opinion, wrote separately because she thought “that the third-party doctrine, as it relates to modern technology, warrants additional consideration and discussion.”

And Judge Martin, joined by Judge Jill Pryor—the newest member of the Court—dissented:

In this case, the government got 67 days of cell site location data disclosing

Quartavious Davis’s location every time he made or received a call on his cell

phone. It got all this without obtaining a warrant. During that time, Mr. Davis

made or received 5,803 phone calls, so the prosecution had 11,606 data points

about Mr. Davis’s location. We are asked to decide whether the government’s

actions violated Mr. Davis’s Fourth Amendment rights. The majority says our

analysis is dictated by the third-party doctrine, a rule the Supreme Court developed almost forty years ago in the context of bank records and telephone numbers. But such an expansive application of the third-party doctrine would allow the government warrantless access not only to where we are at any given time, but also to whom we send e-mails, our search-engine histories, our online dating and shopping records, and by logical extension, our entire online personas.

Decades ago, the Supreme Court observed that “[i]f times have changed, reducing everyman’s scope to do as he pleases in an urban and industrial world, . . . the values served by the Fourth Amendment [are] more, not less, important.” Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S. Ct. 2022, 2032 (1971). This is even truer today. The judiciary must not allow the ubiquity of technology—which threatens to cause greater and greater intrusions into our private lives—to erode our constitutional protections. With that in mind, and given the striking scope of the search in this case, I would hold that the Fourth Amendment requires the government to get a warrant before accessing 67 days of the near-constant cell site location data transmitted from Mr. Davis’s phone. I respectfully dissent.

All told, the five opinions making up this decision span 102 pages. Fortunately, footnote 21 of the majority opinion summarizes the result.