If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Sick burn by Justice Scalia. He came out on the completely wrong side of this, but at least his writing is entertaining (and at least he wrote the other opinion that day striking the ACCA residual clause; that's more than you can say for Alito, who is entirely predictable and political, and a boring writer.).

Perhaps you'd like to see you own name in a Scalia insult... well, click here for your Scalia insult.

Meantime, it's the last day of the Term today.  Pretty anticlimactic. Go to SCOTUSblog at 10am to see the final 3 opinions.

In the meantime, here's your Monday morning moment of zen:

Pointing a laser pointer at a plane... (TWO UPDATES)

... got this dude 14 years.  14 YEARS!!

Thankfully, the 9th Circuit vacated one of the convictions, so he'll get resentenced.  From the opinion:

There ought to be a law against shining a laser pointer at
an aircraft. In fact, there is, and it’s punishable by up to five
years in prison, as appellant Sergio Rodriguez discovered for
himself. Rodriguez, his girlfriend, and their kids were fooling
around with a laser pointer one summer evening in the
courtyard of their apartment complex – trying to see just how
far it could go – and they shined it at overflying helicopters.
Rodriguez was convicted of Aiming a Laser Pointer at an
Aircraft, in violation of 18 U.S.C. § 39A, and was sentenced
to the maximum sentence: five years in prison. Rodriguez
does not challenge that conviction.
He also was convicted of another crime stemming from
the same conduct – Attempting to Interfere with the Safe
Operation of an Aircraft, in violation of 18 U.S.C. § 32(a)(5)
and (8). That crime requires proof of a willful attempt to
interfere with the operator of an aircraft, with either the intent
to endanger others or reckless disregard for human life.
Rodriguez was charged with and found guilty of the reckless
variety, and for that offense, was sentenced to fourteen years
in prison.
The evidence clearly shows that Rodriguez was rightfully
convicted of aiming the laser pointer at a helicopter (§ 39A).
However, there is insufficient evidence that he willfully
attempted to interfere with the safe flight of the helicopter
(§ 32(a)(5)). Rather, the evidence showed that he was
attempting to see how far his laser would go at night – a
stupid thing to do, yes, but there is no evidence that he was
trying to interfere with the pilot. Section 39A is designed for
knuckleheads like him. On the other hand, 18 U.S.C.
§ 32(a)(5) is designed for both the Osama bin Ladens of the
world – people trying to bring down a plane, intending to
cause harm – and those who are aware that their actions are
dangerous and could harm others, but just don’t care. The
failure to recognize this distinction is to fail to appreciate that
Congress saw fit to create two different crimes, one more
serious than the other, for two different types of offenders.

Meantime, another Judge Moore sentence is at the center of an 11th Circuit opinion.  The court says there was a procedural error:

Juan Gutierrez (“Defendant”) appeals his 72-month sentence of imprisonment, imposed for violating conditions of his supervised release in three separate cases. Defendant argues that his sentence was procedurally unreasonable because the district court improperly considered alleged criminal conduct by Defendant that had not been proved. Defendant also argues that his sentence was substantively unreasonable because the district court abused its discretion in weighing the factors under 18 U.S.C. §§ 3583(e) and 3553(a).
Upon careful review of the record and the parties’ briefs, we conclude that, in imposing sentence, the district court committed procedural error by largely relying on alleged criminal conduct by Defendant that the latter argued had not been proved by a preponderance of the evidence, and that the court did so after having stated that it would not consider this conduct. We therefore VACATE Defendant’s sentence and REMAND for a new sentencing hearing on Defendant’s revocation proceeding.

 The opinion ends this way:

Because we conclude that the court committed a procedural error, we do not reach the question whether the court’s sentence would have been substantively reasonable had Defendant been properly proved to have engaged in new smuggling activity. We therefore remand for a new sentencing hearing at which the district court shall allow Defendant the opportunity to contest any information that the court is considering as a sentencing factor and at which the court shall consider only such conduct as is proved by a preponderance of reliable evidence.

Hmmmm. Where have I heard that before? Any bets on whether the sentence will be any different on remand?

UPDATE -- Big decisions by SCOTUS today, including healthcare.  Interestingly, Scalia uses "SCOTUS" in his dissent... first time that expression has been used in a Supreme Court opinion.  He says that Obamacare should be called SCOTUScare...  All kinds of funny memes on the internet about the opinion.  Here's one:






SECOND UPDATE -- Another sentencing reversal by the same panel with the same district judge here.

THIRD UPDATE -- And the same lawyer won both cases -- Richard Klugh.  Congrats!

Third Circuit issues incredible order:

This doesn't involve our district or circuit, but I find this order by Third Circuit Judge Theodore McKee absolutely fascinating (h/t How Appealing):

The Court would have granted Petitioners a stay of removal, but was informed that Petitioners were removed earlier today. The government is hereby ordered to use its best efforts to intercept Petitioners when they land tonight in Guatemala City and to return Petitioners to the United States immediately. If the government is unable to intercept Petitioners at the airport, they must locate Petitioners in Guatemala and return them to the United States as quickly as possible. Upon their return, Petitioners are granted a stay of removal pending disposition of their petition for review. If, upon contact, Petitioners inform the government that they do not want to return to the United States, the government shall secure a written memorialization to that effect -- even if that writing is in Spanish.

The only thing that would have made it better is if he would have ordered the return flight to be first class.

Reminder -- don't take a GoPro into Court

This CNN intern learned the hard way yesterday at the Supreme Court:

The Supreme Court of the United States briefly removed media interns from its press room on Monday after a CNN intern was caught recording video footage with a GoPro camera that he had strapped to his chest, the On Media blog has learned.
The episode led to an impromptu meeting among top CNN executives and editors in Washington, a call to the company's legal department, and a profuse apology to the Supreme Court's public affairs team. Recording devices are prohibited from both the Supreme Court Press Room and the adjacent Public Information Office, as well as from the court room generally.
In a statement, CNN said that the intern "misunderstood the rules about recording inside the Supreme Court's Public Information Office and acted inappropriately. We've taken the necessary action to remedy this situation. We profusely apologize to the Court."
The intern, Walbert Castillo, had been assigned to serve as "a runner," relaying the court's opinions from the building to CNN correspondent Ariane de Vogue, who was waiting in the Supreme Court plaza. The process has become known as "the running of the interns," given the speed and intensity of the running-shoe clad youth.
In addition to his runner duties, Castillo had been asked to wear a GoPro camera to record the event for an episode of CNN's digital video series, "Being Moody," hosted by reporter Chris Moody. Castillo kept the GoPro recording while he was in the press room, which was prohibited -- the Supreme Court fears that a recording device may pick up audio of a court decision -- and was forced to turn it off. Castillo and other interns were then briefly removed from the room.

Three published criminal opinions yesterday  -- 1) United States v. Cavallo, per Julie Carnes, a reversal for not allowing the defendant to confer with his lawyer during his testimony; 2) United States v. Williams, per visiting Judge Coogler, an affirmance in a fake check case; and 3) United States v. Frediana, per Judge William Pryor, which addresses the following interesting issue:

This appeal requires us to decide whether hostilities related to the use of military force against terrorists and Iraq, as authorized by Congress, have“terminat[ed]” under the Wartime Suspension of Limitations Act, 18 U.S.C. § 3287. Seven years after Steven Frediani committed the crimes, a federal grand jury indicted him on one count of conspiracy to commit aircraft parts fraud, id. §§ 38(a)(1)(C), (a)(3), and two substantive counts of aircraft parts fraud, id. § 38(a)(1)(C). Frediani moved to dismiss the substantive counts of the indictment as untimely, id. § 3282(a). The district court denied his motion because, when Congress authorized the “use of the Armed Forces,” the Act tolled the statute of limitations for frauds against the United States until the “termination of hostilities as proclaimed by a Presidential Proclamation, with notice to Congress, or by a concurrent resolution of Congress,” id. § 3287. On appeal, Frediani argues that the “hostilities” related to the “use of the Armed Forces” “terminat[ed]” over a decade ago, id., so the Act does not toll the statute of limitations for his crimes. Frediani also argues that the district court abused its discretion when it admitted “other act” evidence under Federal Rule of Evidence 404(b). Because the plain language of the Act requires a Presidential proclamation or a concurrent resolution of Congress to end the tolling of the limitations period and the district court did not abuse its discretion when it admitted the “other act” evidence, we affirm Frediani’s convictions.

No real fireworks from these opinions, unlike the Rosales-Bruno case, which Brian Toth blogged about.  It's really worth a read to see the bubbling hostility between the two factions of the court.  It's insane to me that an 87-month sentence can be reasonable after the court determined that the sentence was incorrectly decided the first time around because of an illegal 60-month enhancement. 

The Supreme Court is dishing out opinions at the end of the Term.  You gotta love Justice Kagan, quoting from comic books in the Spiderman case:

What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider-Man,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”). Finding many reasons for staying the stare decisis course and no “special justification” for departing from it, we decline Kimble’s invitation to overrule Brulotte.

I don't agree though -- if something is wrong, you have a great responsibility to fix it, not to stick to stare decisis.  We have the Supreme Court to improve upon the law when it's messed up.  In that case, everyone agrees that Brulotte makes no sense.  Fix it!

When reviewing sentences, Chief Judge Carnes and Judge Wilson agree on standards, but not always on results

After being convicted for illegally reentering the United States, Jesus Rosales-Bruno appealed against his top-of-the-guidelines-range sentence of 87 months’ imprisonment, urging that his sentence had been based on an improper enhancement. The Eleventh Circuit agreed, vacated the sentence, and remanded for a do-over. “We express no opinion,” the court cautioned, “what sentence would now be appropriate.” Despite that disclaimer, Rosales-Bruno had reason to be optimistic about receiving a lower sentence; without the improper enhancement, a top-of-the-guidelines-range sentence was (only) 27 months’ imprisonment. The resentencing, however, did not go as Rosales-Bruno would’ve hoped. Citing Rosales-Bruno’s criminal history, the district court imposed a major upward variance and sentenced Rosales-Bruno to 87 months’ imprisonment. In short, Rosales-Bruno’s sentence remained the same, even though the way that the district court arrived at that sentence the second time about was different.

These unique facts led to a fascinating set of sharply worded opinions issued Friday by the Eleventh Circuit on how the court goes about reviewing sentences for reasonableness. Chief Judge Carnes, in a 51-page majority opinion, said the sentence wasn’t substantively unreasonable; Judge Wilson, in a 32-page dissent, said it was substantively unreasonable. These opinions touch on or tussle over many important topics—from the weight the guidelines should be given in sentencing, to how deferential appellate courts ought to be in reviewing an out-of-the-guidelines-range sentence for reasonableness, to whether judges who dissent from unpublished decisions can publish their dissents, to which of the judges best uses Mark Twain to support his position. But most notable about United States v. Rosales-Bruno is that both Chief Judge Carnes and Judge Wilson go beyond just the particulars of the case. Each writes at length about the Eleventh Circuit’s sentencing law in general, and the impressions that certain of its current and former judges, and others, have of that law.

Relying heavily on data from the U.S. Sentencing Commission and set forth in three appendixes to his opinion, Chief Judge Carnes begins part V this way:

Part II of the dissenting opinion criticizes this Court as a whole for the message the dissenting judge believes we have sent to district courts about how we review sentences for reasonableness. The dissent’s criticism is not about the legal standards that we have announced or the holdings of our decisions. We made clear in our en banc decision in Irey that the principles we announced in that decision applied equally to sentences above and below the guidelines range. 

The dissent acknowledges that our decisions, particularly Irey, have correctly stated the law. So, we have gotten the law right. 

The dissent’s criticism of this Court is that even though we have gotten the law right, it believes that the results of our substantive reasonableness decisions have sent a message to district courts that we will not vacate unreasonably long sentences, only unreasonable short ones. We are not told whether the accusation is that the Court has done this deliberately or just negligently. In any event, if we have been sending a message that contrary to the neutral principles we have announced we will favor upward variances more than downward ones, either we are not good at sending messages or the district courts of this circuit are not good at receiving them. The irrefutable fact is that district courts in our circuit impose far more downward variance sentences than upward variance ones. And the disparity in the rate at which downward and upward variance sentences are being imposed is increasingly favoring downward variances.

Majority Op. 39–40 (citations omitted).

Part II of Judge Wilson’s opinion takes this view:

We have never vacated a sentence because it was too high, imposing a sentencing ceiling on remand. By contrast, on numerous occasions, we have vacated sentences because they were too low and imposed a sentencing floor. This forces me to believe that we are grading harshness and lenience on different scales. By failing to adhere to Irey and Pugh in this upward variance case, the Majority opinion reinforces this unstated double standard. It is true that we say all sentences are meaningfully reviewed for reasonableness, but in practice, it seems that only lenient sentences are subject to vacatur on purely substantive grounds. The message that we are sending to the district courts by this precedent is that they enjoy virtually unfettered sentencing discretion, so long as they sentence harshly. In other words, while we say otherwise, we are in reality reading a “severity principle” into sentencing that should not be there.”

Dissenting Op. 74–75 (citations omitted).

The third judge of the panel was District Judge Corrigan, who sat by designation. Judge Corrigan stated—wisely—that it was “unwise for [him], as a visitor, to join in the important debate between Chief Judge Carnes and Judge Wilson regarding Eleventh Circuit sentencing precedent.” He concurred only “in the result.”

And for Rosales-Bruno, it is only the result that matters.

Good Graphics?

In recent months, the White House and DoJ have been using graphics and slides on social media and at press conferences to make their points.  The White House has been doing a very good job with this, making clear easy to read graphics.  DoJ, not so much.  Here is a good example of an awful slide that DoJ used yesterday with the big medicare fraud takedown :

Ooof.  This may be one of the worst slides I have ever seen.  Just for starters, it's got way too much information, graphics that don't mean anything, shorthand that is unintelligible, facts that aren't important, and on and on.

Here's how to do a slide, by the White House:

Ahhhh, much better.

These slides were taken from the Twitter pages for the White House and DoJ.

Bueller? Bueller?

Should be an interesting few days in mag court... About 80 people were arrested for Medicare fraud over the last few days, and the PDs and CJA lawyers are having their annual conference in Naples. The PD's office always leaves behind an emergency lawyer, who is going to be very very busy. I wonder who drew the short straw this time. 

"Sometimes running a district court can be like a high-wire balancing act. But when it comes to ensuring the competence of defendants when they go to trial or plead guilty, the court takes on the role of a safety net."

That was Judge Rosenbaum today for a unanimous 11th Circuit in United States v. Wingo.  The rest of the intro is also really well done:

Sometimes running a district court can be like a high-wire balancing act. But when it comes to ensuring the competence of defendants when they go to trial or plead guilty, the court takes on the role of a safety net.
Our criminal-justice system depends on the exercise of, or knowing and intelligent waivers of, constitutional rights. But to engage in these activities, a defendant must first and necessarily have the abilities to understand the proceedings and to assist counsel. Because competence is the base upon which other constitutional rights balance, due process and Section 4241(a) of Title 18 of the United States Code demand that a hearing on a defendant’s competence be held whenever reasonable cause exists to believe that a defendant may not be competent to proceed to trial or to enter a guilty plea.
Here, no hearing occurred, despite evidence creating reasonable cause to believe that Appellant Andrew Wingo might not have been competent to proceed. We therefore hold that the district court did not satisfy its duty under 18 U.S.C. § 4241(a). We remand this case to the district court so that it can determine whether Wingo’s competency at the time of his guilty plea can be evaluated nunc pro tunc, and if so, for an assessment of his competency at the time of his guilty plea and sentencing. If Wingo is determined to have been incompetent, or if a nunc pro tunc evaluation cannot be made, Wingo’s conviction and sentence must be vacated, subject to the government’s right to try him should he become competent. On the other hand, if Wingo is determined to have been competent, his conviction and sentence must be affirmed.

Meantime, Justice Scalia referred to Justice Ginsburg as Justice Goldberg.  WHOOPS.

While delivering the decision in the immigration case Kerry v. Din on Monday, Scalia listed the justices who dissented from the opinion and, instead of saying “Ginsburg,” said “Goldberg.”

Chief Justice John Roberts leaned over and whispered in his ear, to presumably notify him of the error.

“What did I say?” he asked Roberts, drawing laughter from spectators and members of the press in the courtroom.

After his colleagues told him what he said, Scalia shook his head and apologized to Ginsburg.

“Sorry about that Ruth,” he said.

Scalia was of course quick to joke when Joe Klock famously messed up a bunch of names before the Supreme Court:

Arguing a case before the Supreme Court is a dream for many lawyers, a chance to shine before the nation’s highest court. But it seems attorney Joseph Klock could use a little more polish.

Klock, representing Florida Secretary of State Katherine Harris, stumbled responding to questions during the Bush vs. Gore case Monday morning, twice referring to justices by the wrong name.

First, Klock surprised everyone in the courtroom by referring to Justice John Paul Stevens as “Justice Brennan,” apparently referring to Justice William Brennan, who retired from the Supreme Court in 1990 and died in 1997.

“I was so tired that I was happy I didn’t call one of them Justice Gore,” Klock told Good Morning America today. “And I’m not really very good with names.”

And after his first mix-up Monday, Klock referred to David Souter as “Justice Breyer,” referring to another of the court’s justices, Stephen Breyer.

“I’m Justice Souter,” came the reply from the bench. “You’d better give that up.”

Then Justice Antonin Scalia got into the act, drawing a roar of laughter from the gallery by beginning his next question, “Mr. Klock, I’m Scalia.”

Enjoy:

Judge Huck's Federal Court Observer Program

It's become a big hit -- a capacity crowd on Friday for interns, law clerks, and young associates.  Here's a picture from the panel of judges (Huck, Jordan,Scola & Valle):

You should get on over to SCOTUSBlog for new opinions this morning.  The Term is just about over....

After that, you should grab a drink at lunch today.  That's what Justice Stevens (age 95) says to do!  From the Chicago Sun-Times:

Over the next 35 years, Stevens rendered more than 1,400 opinions in a career that defies summation, at least here.  He was liberal and, as such, his beliefs could actually mature and change. Williams highlighted the evolution of Stevens’ thought regarding death penalty, from finding it constitutional in Gregg V. Georgia in 1976, to  deeming it “cruel and unusual” — and thus banned by the Constitution — for people with mental handicaps in Atkins v. Virginia in 2002, to finding it morally wrong altogether in Baze v. Rees in 2008.

“The penalty really does not fit in our society anymore,’ Stevens said.

His advice to young lawyers ranged from the value of studying poetry — which he found “extremely valuable” on the bench because “it helped me in my work as a judge” — to the best way to counteract a bad day: “drink at lunch” (advice he couldn’t have taken too often, or he wouldn’t have made it to 95).

I'll certainly need one after that Game of Thrones last night.  

So you wanna be a judge?

Well, there are three openings -- two in the Middle District and one in the Northern District.  This notice went up today on the court's website, seeking applications for judge (due August 3). 

There is also a new slate of JNC members (see here).

And new JNC rules.

Melgen still being held

Apparently he can't get a letter from the Dominican Republic that they will extradite him to the U.S.  This all seems over the top to me.  A judge in New Jersey let him bond out without such a letter.  He knew about the investigation for many years and traveled back and for to the DR and always came back. What are we doing here?

In other news, a few judges had a smooth hearing with the judiciary committee yesterday.  It's very slow going... Hopefully Mary Barzee Flores will be up soon.

Still waiting on the Supreme Court to finish up the Term.  Linda Greenhouse talks about it.

American Pharoah’s stretch run in the Belmont Stakes was a beauty to behold. The Supreme Court’s stretch run in the closing weeks of its term? Not so much.

I can’t remember a second week in June during which the justices delivered only one opinion. This was Monday’s decision upholding the president’s prerogative in the Jerusalem passport case, Zivotofsky v. Kerry, issued more than seven months after the argument. At that pace, it would be Thanksgiving before the court issued its decision in the same-sex marriage cases that it heard at the end of April. But that won’t happen; one way or another, with 20 cases left to decide, the court will wrap up its term before the Fourth of July.

The justices’ silence doesn’t mean indolence, of course; a great deal is happening below the surface and behind closed doors. For example, it’s obvious that there is a struggle going on over whether the court should revisit Fisher v. University of Texas, which affirmative-action opponents have dragged back onto the court’s docket for another try at using this thoroughly moot case as a battering ram against considering race as a factor in college admissions. On Thursday the case goes to the justices’ closed-door conference for a fourth week. If the justices eventually deny the appeal, or even if they decide to hear it, we may never know what arguments were on the table during those weeks.

So we can thank Justice Clarence Thomas for pulling back the curtain a bit this week when he issued a public dissent from the court’s refusal to hear a challenge to a San Francisco gun control ordinance. This case, Jackson v. City and County of San Francisco, went to conference six times before the court issued an order on Monday denying review. Even without Justice Thomas’s dissenting opinion, which only Justice Antonin Scalia joined, it would have been obvious that something was afoot, but we wouldn’t have known exactly what.

And the 11th Circuit just granted a state habeas for a potential Miranda violation.  Enjoy the read.

Tuesday news and notes

1.  More on House Srebnick and the cert grant, from the DBR:

The U.S. Supreme Court agreed Monday to decide in a Miami case whether federal prosecutors can freeze untainted assets a criminal defendant needs to retain an attorney.
Miami attorneys and brothers Scott and Howard Srebnick filed a petition for writ of certiorari in the case of Sila Luis. Senior U.S. District Judge Paul Huck in Miami froze Luis' assets after she was indicted in a Medicare fraud scheme.
The defense attorneys believe the government violated Luis' Fifth and Sixth Amendment rights to due process and to counsel of her choice.
"Our view is that she's not yet been convicted, she's not yet had a trial, and under our Constitution she has the right to use her own legitimate assets to pay for defense," said Howard Srebnick of Black, Srebnick, Kornspan & Stumpf.

2.    Justice Scalia gives a funny graduation speech on platitudes.  From the Washington Post:

Supreme Court Justice Antonin Scalia delivered an off-the-bench opinion on graduation addresses Thursday, drawing laughter and applause as he criticized cliches that don’t work during a commencement speech at an all-girls Catholic school.
“My problem with these platitudes is not that they are old and hackneyed, but that a lot of them are wrong,” Scalia said, standing before 79 graduates and hundreds of relatives and friends in the main gymnasium at Bethesda’s Stone Ridge School of the Sacred Heart.
***
As they and others listened, Scalia parsed a litany of stock phrases, melding them with his own advice. He first took issue with the oft-expressed sentiment that “we face unprecedented challenges.”
“Class of 2015, you should not leave Stone Ridge High School thinking that you face challenges that are at all, in any important sense, unprecedented,” he said. “Humanity has been around for at least some 5,000 years or so, and I doubt that the basic challenges as confronted are any worse now, or alas even much different, from what they ever were.”
Scalia — dressed in a suit and tie — took on other bits of advice, too, including, “To thine own self be true.”
“Now this can be very good or very bad advice, depending on who you think you are,” he said, as laughter rippled through the crowd.
He also turned some age-old sayings on their head.
“Never compromise your principles,” Scalia said, “unless of course your principles are Adolf Hitler’s, in which case you would be well advised to compromise them as much as you can.”

 3.  When does counsel need to raise suspicions about jurors?  The Second Circuit issued an interesting opinion about juror misconduct but didn't address the question head on.  Here's Alison Frankel:

The 2nd U.S Circuit Court of Appeals undid an injustice Monday when it ordered a new trial for David Parse, a one-time Deutsche Bank broker who was convicted in 2011 for his alleged participation in a tax shelter scheme supposedly masterminded by the now-defunct law firm Jenkens & Gilchrist. In an opinion by Judge Amalya Kearse, the appeals court said Parse’s conviction was tainted by a biased juror who admitted after trial that she had told a series of breathtaking lies during voir dire. Even though Parse’s former lawyers at Brune & Richard had turned up Internet evidence before and during trial that raised suspicions about the juror, the 2nd Circuit said, Parse had not waived his right to an impartial jury.

But the appeals panel refused to define exactly when lawyers are obliged to inform judges that prospective jurors might be lying in order to preserve their clients’ constitutional rights. Parse’s counsel, Alexandra Shapiro of Shapiro Arato, and the New York Council of Defense Lawyers, in an amicus brief, had asked the 2nd Circuit to establish a bright-line rule that defense counsel need not report concerns unless they are sure of jurors have done something wrong. Judge Kearse and the other members of the 2nd Circuit panel, Judges Richard Wesley and Chester Straub, said they doubted “that such a sweeping and absolute rule is appropriate,” and that, in any event, they didn’t need to devise a broad rule to resolve Parse’s appeal.

That’s a missed opportunity to clarify the implications of juror research that has become commonplace in white-collar cases. The Parse opinion seems to imply that judges should not construe defense counsel’s failure to alert the court of their suspicions as a waiver of their client’s Sixth Amendment right to an unbiased jury. I doubt, however, that any lawyers want their clients to go through Parse’s ordeal of four years of post-trial and appellate proceedings before securing a new trial. Defense lawyers in the 2nd Circuit will probably have to err on the side of disclosure if their investigation of prospective jurors turns up anything untoward: Tattling to judges may invade jurors’ privacy and annoy the court, but that’s preferable to risking a defendant’s constitutional rights.

Salomon Melgen granted bail on appeal by Judge Marra (and breaking news re a cert grant from the SDFLA)

New judge, new lawyers, new bond hearing.  Judge Marra did the right thing here and reversed the detention order by the magistrate judge.  From the Palm Beach Post:

North Palm Beach ophthalmologist Salomon Melgen will be allowed to post bond and leave jail pending his trial on charges that he bilked Medicare out of $105 million, a federal judge decided Friday.
But the wealthy 61-year-old physician won’t be released before a hearing Monday for U.S. Magistrate James Hopkins to set the size of the bond. U.S. prosecutors are asking that he be required to pay $20 million to secure his release from the federal detention center in Miami.
While leaving that task up to Hopkins, U.S. District Judge Kenneth Marra said Friday he was putting conditions in place to help reduce prosecutors’ fears that Melgen would flee to his native Dominican Republic or seek refuge elsewhere on the globe.
Melgen, who has been held in custody without bond since his April arrest on charges that he falsely diagnosed and treated hundreds of patients for macular degeneration to illegally inflate his Medicare billings, will be held on house arrest with electronic monitoring once he has posted bond, Marra ruled. But, he said, Melgen won’t be staying at his $2.3 million waterfront home in Captain’s Key near Juno Beach.
“Defendant shall not reside at a location adjacent to or with access to a waterway,” he said in the four-page ruling. Melgen will also will be stripped of any ability to use his boat or private jet.
Marra also ordered the doctor to provide a written declaration from Dominican government leaders, pledging that they won’t block his extradition should he seek safe harbor in his homeland.
...“The court concludes that nature and notoriety of the charges (Melgen) is facing in New Jersey, and the fact that he is a co-defendant with a United States Senator, makes it unlikely that any attempt to flee would be successful,” he wrote. “Great diplomatic and political pressure would be brought to bear on any country that might consider shielding (Melgen) from extradition.”
In addition, he said, Melgen’s wife, son and daughter will be required to pledge their assets to guarantee his return. The possibility that he would leave his family “financially devastated” should curb any desire to escape prosecution, Marra wrote.
Melgen, he said, has had months, if not years, to flee. For at least two years, he has been under investigation for health-care fraud and for his relationship with Menendez. Weeks before he was alerted by prosecutors in New Jersey that his indictment there was imminent, he traveled to the Dominican Republic for a wedding and returned, Menchel said.
“Certainly,” Marra wrote, “if (Melgen) intended to flee, he had his chances.”

I'm not sure I understand sending it back for a determination by the magistrate judge to set the actual bond amount, but I am sure that the new defense team is thrilled that their client is getting out.

Meantime, check out this article in the Washington Post about sentencing.  What has happened to our system?

And in breaking news, the Supreme Court this morning granted cert in Sila Luis v. United States, Howard Srebnick's follow up case to Kaley. This time he paired up with brother Scott Srebnick.  Here is the 11th Circuit unpublished opinion, which affirmed Judge Huck.  The question will address whether the pretrial restraint of forfeitable substitute assets needed to retain counsel of choice violates the Fifth or Sixth Amendment. 

Early coverage from the AP:

The Supreme Court agreed Monday to decide whether the government can put a hold on untainted money and property that a criminal defendant needs to hire a lawyer.

The justices said that they will review the case of Sila Luis of Miami-Dade County, Florida, who has been indicted on fraud charges involving $45 million in allegedly improper Medicare payments. On the same day Luis was indicted in 2012, federal prosecutors froze her assets.

Luis said the freeze includes money with no ties to the charges against her and that she has a constitutional right to use the funds to hire a lawyer to mount a defense. Lower courts ruled against her.

...The new case goes to whether untainted money can be frozen when the defendant needs it to hire a lawyer. The Justice Department said the assets can be frozen even if they are untainted. In this case, the government said it sought to freeze substitute assets that would be forfeited after a conviction because Luis already has spent the ill-gotten gains on luxury items and travel.

Did the Eleventh Circuit Just Make It Harder to Attain Summary Judgment in Diversity Cases?

Last week, the Eleventh Circuit handed a major victory to Florida FedEx drivers who brought claims for back pay against FedEx. The claims of these and of other FedEx drivers around the country were consolidated as an MDL, and the MDL court certified a Florida-driver class. But the court then granted FedEx’s motion for summary judgment, concluding that the drivers were independent contractors and not -- as the Florida drivers alleged -- employees. After a few of the Florida drivers lost their individual claims, the Florida drivers appealed from the grant of summary judgment, and the Eleventh Circuit reversed, concluding that the question whether the drivers were employees or independent contractors under Florida law was for the jury to decide.

Judge Jordan’s comprehensive opinion for the court in Carlson will surely serve as the go-to source for employee–independent contractor questions under Florida law. But -- even outside the employment context -- it may also serve as a principal source for how close summary-judgment questions are resolved in cases by district courts sitting in diversity. Not only did the court apply Florida substantive law on determining when somebody’s an employee, but the court also appeared to defer quite heavily to how Florida courts would make that determination on summary judgment -- an apparently procedural inquiry.

Here’s the first full paragraph on page 7 of the opinion:

The claims of the Florida drivers stand or fall on the common question of whether FedEx properly classified them as independent contractors. In Florida, “[i]t is well-established that the question of an employer/employee relationship is generally a question of fact, and therefore a question for the trier of fact.” Pate v. Gilmore, 647 So. 2d 235, 236 (Fla. 1st DCA 1994). Accord Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 853 (Fla. 2003) (“The existence of an agency relationship is normally one for the trier of fact to decide.”). Nevertheless, the general default rule does not always apply, and Florida courts have not hesitated to grant summary judgment on the employee/independent contractor question when the circumstances warrant. See, e.g., Miami Herald Pub. Co. v. Kendall, 88 So. 2d 276, 279 (Fla. 1956).

The court then reviewed Florida case law, the facts before it, and concluded that although the material facts were “largely undisputed,” the “inferences that can be drawn from those facts are not.” Summary judgment, the court held, was inappropriate.

The court -- relying squarely on established circuit precedent that all inferences are drawn in the non-movant’s favor -- could’ve stopped the opinion there and reversed. But it went on:

After all, employee/independent contractor cases are necessarily fact-intensive, and the general rule in Florida is that whether a worker is an employee is usually a question of fact. Factually speaking, Del Pilar [where an appellate court reversed a grant of summary judgment] is the closest Florida opinion we have, and we cannot say that the Florida Supreme Court would have decided that case different…. Although we recognize that Del Pilar is not binding in the Rule 56/summary judgment sense -- because federal law determines whether the evidence suffices to entitle a party to summary judgment -- it is nevertheless highly informative given that it involves the same package delivery industry and that Florida’s summary judgment standard is very similar to that of Rule 56.

Erie and its progeny have opted for vertical uniformity in diversity cases, so that with respect to substantive law a case filed in federal court will be handled in the same way as it would be in the courts of the state where the federal court sits. By ruling consistently with Del Pilar, we ensure that this case is decided in a Florida federal court as it would be in a Florida state court, and thereby discourage forum shopping as between federal and state courts in Florida and prevent the inequitable administration of the law.

Federal courts exercising diversity jurisdiction must “apply state substantive law and federal procedural law.” Hanna v. Plumer, 380 U.S. 460, 465 (1965). And in Carlson the court certainly did that -- it applied Florida substantive law to whether the drivers were employees and it applied federal procedural law to whether summary judgment was properly granted. But the court appeared to apply that federal procedural law with a healthy dose of Florida procedural law, too.

For example, the court accepted -- if not outright adopted -- Florida courts’ characterizations that the employee–independent contractor issue is “generally a question of fact” “for the trier of fact,” and referred to this as a “general default rule” and a “general rule.” Whether it should have done so is unclear. On the one hand, a recent decision of the Ninth Circuit seems to support this approach. See EncompassIns. Co. v. Coast Nat’l Ins. Co., 764 F.3d 981, 984 (9th Cir. 2014) (“Whether an issue is a question of law or a question of fact is a substantive question, to which state law applies. Once we determine whether an issue is a question of law or a question of fact, however, the proper standard of review is a question of federal procedure and is governed by federal law.” (citation omitted) (internal quotation marks omitted)). But a treatise leans in the other direction: “[c]haracterization as fact or law is governed by federal law, because it implicates the relationship between judge and jury.” 19 Charles Alan Wright et al., Federal Practice and Procedure § 4511 (2d ed. Apr. 2015). The Seventh Circuit, too, has stated that “the fixing of the boundary between questions of law and questions of fact[] is a matter of federal procedural law and therefore governed by federal rather than state law in diversity as in other federal suits.” Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 1996). In the light of the Carlson court’s statements, a judge who might otherwise conclude that no genuine dispute exists about whether a plaintiff is an employee might instead leave that question to the jury.

Further, although the panel in Carlson stated it wasn’t bound by a Florida court’s decision in the “Rule 56/summary judgment sense,” it nonetheless found desirable ruling consistently with it (that is, against summary judgment) to discourage forum shopping. But other authorities suggest -- at least in broad language -- that similar cases might indeed be decided differently on summary judgment depending on the forum in which the case was brought. See McEwen v. Delta Air Lines, Inc., 919 F.2d 58, 60 (7th Cir. 1990) (“Erie does not require a federal court to employ the state’s rules on the allocation of issues between judge and jury.... Federal courts may grant summary judgment under Rule 56 on concluding that no reasonable jury could return a verdict for the party opposing the motion, even if the state would require the judge to submit an identical case to the jury.”).

Carlson is an important employment-law decision. But it might be an even more important summary-judgment decision, and it could influence -- it arguably requires -- lower courts sitting in diversity in the Eleventh Circuit to consider how state courts would handle motions for summary judgment. Most of the time, to be sure, the result will unquestionably be the same. But given how many issues Florida courts regard as questions of fact for the jury to decide (according to a quick Westlaw search in the Florida state database, courts have characterized as fact issues intent, causation, whether touching is “offensive” so as to make it a tort, the value of property, and the existence of a partnership, to name a few), summary judgment in some diversity cases may now be harder to attain.

Thursday News & Notes

1.  N.D.Fla Judge John Richard Smoak Jr. has reassigned all of his cases.  Anyone know what's going on?

2.  Should DOJ be prosecuting Hastert and FIFA?  Here's an editorial from the Washington Post:

Not every bad act is a crime. Not every bad act that can technically be categorized as a crime should be pursued by prosecutors. And not every bad act that clearly amounts to a crime should be pursued by prosecutors in the United States.
Those thoughts are sparked by the recent indictments of international soccer officials on bribery and corruption charges and of former House speaker Dennis Hastert on charges of structuring hush money payments to avoid bank reporting laws and then lying to the FBI about his conduct.

Ruth Marcus is a columnist and editorial writer for The Post, specializing in American politics and domestic policy. 

For different reasons, I find both indictments unsettling — not necessarily wrong, but worth thinking through whether they ought to have been brought.
The indictment of FIFA officials raises questions about the exercise of U.S. authority to pursue international corruption whose chief harm does not seem to be to U.S. interests or citizens.
The Hastert indictment raises questions even more gut-wrenching: about the proper use of the criminal law; the degree to which technical statutes should be employed to punish alleged conduct that is offensive but uncharged; and the role that celebrity and prominence should play in making prosecutorial decisions.

3.  The 11th Circuit sides with jail officials in a lawsuit involving a suicide of an inmate.  From the Ocala Star Banner:

A federal appeals court on Wednesday found that seven Marion County jail officers cannot be held liable in the 2007 suicide of an inmate who hanged himself with a bed sheet.

Vivian Jackson, the mother of inmate Darius Johnell James, filed a lawsuit alleging that 10 officers violated James’ constitutional due process rights by failing to prevent his death. A U.S. district judge said three of the officers were shielded by what is known as “qualified immunity” but allowed the lawsuit to proceed against the other seven.
James, 22, was arrested in 2007 on robbery and home-invasion robbery charges and was initially assigned to a suicide-prevention section before being moved to another area of the jail, according to Wednesday’s ruling by the 11th U.S. Circuit Court of Appeals.
The 24-page ruling detailed a series of incidents involving James at the jail but found that the lawsuit failed to prove that the seven remaining officers showed “deliberate indifference” to the risk that he would commit suicide.
“This case is troubling,” said the ruling, written by appeals court Judge Beverly Martin and joined by judges Robin Rosenbaum and L. Scott Coogler.
“The Marion County Jail tragically failed to keep Mr. James safe while he was incarcerated. Under our precedent, however, an officer is liable … for the suicide of an inmate only if he had subjective knowledge of a serious risk that the inmate would commit suicide and he disregarded that known risk.”

4.  And we have this piece by Paula McMahon about a swallower.  I like the intro:

A spoonful of sugar makes the medicine go down, but it takes honey to swallow 54 pellets filled with nearly 1.5 pounds of cocaine, according to a Broward County drug mule suspect.
Regis Walker, 28, of Pembroke Pines, spent five days in a hospital "passing" the drug pellets after she was arrested last week at Fort Lauderdale-Hollywood International Airport.

containing nearly 1.5 pounds of cocaine before she boarded a flight to Fort Lauderdale from Jamaica.
(Sun Sentinel / Broward Sheriff's Office Handout)

"Walker said she used honey to swallow the pellets, an idea she learned by watching the movie 'The Mule' on Netflix," Homeland Security Investigations Special Agent Jeanne Neill wrote in court records.
Walker, a U.S. citizen, arrived last Thursday on a flight from Montego Bay, Jamaica. U.S. Customs and Border Protection officials took her aside for a baggage search and interview.
She told them she had spent four days in Jamaica visiting her husband. She was taken to Broward Health Medical Center in Fort Lauderdale after agreeing to be X-rayed.

"The X-ray revealed that Walker appeared to be a drug mule carrying drug pellets within her body," investigators wrote.

 

"One of the wonderful things about graduating the eighth grade is that you have a chance — the best chance that you will ever have in life — to become what you want to become."

That was Justice Sotomayor at Pompano Beach Middle School yesterday.  The Sun-Sentinel has the details:

Supreme Court Justice Sonia Sotomayor was greeted by a standing ovation and thunderous applause from students and parents as she took the stage at the Pompano Beach Middle School end-of-year award ceremony Monday evening.
Sotomayor spoke for about five minutes to an auditorium of about 1,000 students and families during the event at Pompano High.
Sotomayor briefly spoke of her childhood in the Bronx and of the decisions ahead for the Supreme Court this session. She closed her remarks by congratulating her niece, Michelle Zuniga, and wishing her and her fellow students "the happiest in life in reaching what you want to reach."
Principal Sonja Braziel said that Zuniga "told me that her aunt would be attending and asked if we would like her to say a few words. When she told me who it was, we thought of course. She was just coming to share in her niece's recognition. We are just so excited to have her."
Students did not know beforehand that Sotomayor would be attending the event.
"This was a big surprise for everyone," said Francesca Mundy, 62, whose granddaughter is a graduating eighth-grader. "This was something that I expect to be done in college, not at middle school.

Pretty cool.

11th Circuit report says Judge Fuller's actions...

..."might constitute one of more grounds for impeachment."  Aly Palmer at the Daily Report has more:

When U.S. District Judge Mark Fuller of Alabama tendered his resignation on Friday, his fellow judges apparently were preparing to send his case to a national judicial body for consideration of possible impeachment by Congress.
On Monday the Judicial Council of the U.S. Court of Appeals for the Eleventh Circuit issued an order saying the conduct of Fuller, who was arrested on domestic abuse allegations in Atlanta last summer, "might constitute one or more grounds for impeachment." The order referred the matter to the Judicial Conference of the United States, which has the ability to send a judicial discipline matter to the House of Representatives for impeachment.
Friday's letter from Fuller to President Barack Obama, saying the judge would resign effective Aug. 1, would appear to moot the question of impeachment as a practical matter. But Monday's order signifies that judicial leaders within the Eleventh Circuit were willing to hand down the most significant disciplinary consequence within their arsenal.
The Judicial Council consists of all of the Eleventh Circuit's active members, minus its most junior member and Chief Judge Ed Carnes, who hasn't been participating in the Fuller matter, as well as the nine chief judges of the district courts within the Eleventh Circuit. The opinion noted that the chief judge of the Middle District of Alabama, where Fuller sits, did not participate either. Judge Gerald Tjoflat of the Eleventh Circuit acted as chief judge on the matter in Carnes' stead, and Tjoflat's signature appears on Monday's order.
An August police report said Fuller's then-wife accused him of assaulting her at the Ritz-Carlton hotel in downtown Atlanta. He later agreed to a domestic violence intervention program and alcohol and substance abuse assessment to resolve the resulting misdemeanor battery case against him. Fuller's Atlanta criminal defense lawyer has said that Fuller made no admission of guilt and that, upon completion of the program, the case against him would be dismissed and his arrest record expunged.

Why would the 11th tip Fuller off so he could resign on Friday?

Here's the one page order:

"It was, quite frankly, somewhat ingenious how he got the drugs into the jail"

That was AUSA Catherine Koontz to Judge Dimitrouleas about a man who mailed drugs into the prison.  Paula McMahon has more:

A onetime Broward County chemical engineer was sentenced to just over a year in prison Friday for mailing postcards laced with a hallucinogenic drug to inmates in the Broward CountyJail.

William Hahne, 57, pleaded guilty last month to two federal conspiracy charges for sending the synthetic hallucinogen NBOMe, which has a similar effect to LSD, to his pals in the Joseph V. Conte Jail in Pompano Beach.


Two men who received the extra special jail mail, disguised as artwork and tattoo designs, admitted they ran a popular drug-dealing business in the lockup. They tore the postcards into tiny squares they sold for $10 a "hit" or exchanged for treats from the commissary.

Hahne's lawyer, Glenn Kritzer, said his client has a long history of mental illness, including psychosis, that contributed to his track record of drug-related arrests. He asked the judge to consider sentencing Hahne to less than 15 months.

Assistant U.S. Attorney Catherine Koontz suggested Hahne receive the highest recommended penalty of one year and 11 months.

"It was, quite frankly, somewhat ingenious how he got the drugs into the jail," Koontz told the judge.

Hahne, handcuffed, shackled and wearing beige jail scrubs, apologized to U.S. District Judge William Dimitrouleas.

"I hope you'll believe me when I tell you I will never do this again," Hahne said.

The judge skeptically asked if Hahne said the same thing to another federal judge when he was sentenced to four years in prison for manufacturing the drug Euphoria in 2004 at a sophisticated drug lab in his home near Fort Lauderdale High School. That arrest got him fired from his county job.

"Yes, your honor. I mean, no, your honor," Hahne replied, clearly flustered by the blunt question.

"So maybe you figured you'd do it again so you didn't say that to Judge Hurley?" Dimitrouleas said.

"No, your honor, it just didn't enter my mind," Hahne said.

The judge said he weighed Hahne's history of mental illness and his criminal history and sentenced him to one year and three months in federal prison.

 Paula M. also had this interesting story about a fugitive over the weekend.  Good stuff.

And in your moment of Zen, indicted defendant Jack Warner cited to the Onion to support his claim that the U.S. is picking on him.  Too good: