End of Year Post

I hope everyone had a wonderful 2015.  Looking back at the over 200 posts, here are some noteworthy ones:

John Pacenti left the DBR

Jose Gonzalez, 50 years on the bench

Mary Barzee-Flores nominated

Mark Fuller

Cell-Site data

Docs v. Glocks again again and again

Khan!

Go Dore Go!

10th b-day for blog

Ed Carnes concurred with himself

Judge & Mrs. Davis remembered

RIP Judge Peter Palermo, Judge Shelby Highsmith

And the most popular post of the year was this because of the search terms in the title.

See you next year.  All the best!
--David Oscar Markus

RIP Meadowlark Lemon

"The Clown Prince of Basketball."  Via ESPN:

  Lemon thrilled audiences with his long hook shots, ballhandling skills and ability to make fans laugh with the Globetrotters' bag of tricks -- including throwing buckets of confetti on unsuspecting fans as Lemon chased the referee with what was thought to be water.Lemon left the Globetrotters in 1978 over a contract dispute and thereafter formed his own traveling teams -- the Meadowlark Lemon's Bucketeers, the Shooting Stars and Meadowlark Lemon's Harlem All-Stars -- as he continued to play well into his 70s.
Aside from Lemon's No. 36, other Globetrotters to have their numbers retired are Wilt Chamberlain (13), Fred "Curly" Neal (22), Haynes (20) and Reece "Goose" Tatum (50). Washington Generals founder Red Klotz also had his number retired.

In law news, the Feds have taken the position that Puerto Rico is NOT a state and therefore not a separate sovereign for double jeopardy purposes.  Puerto Rico has taken the opposite position.  Pretty interesting showdown in the Supreme Court.  SCOTUSblog has more.

Anything going on in the District this week?  Or all quiet?

The one thing I did see was the Herald coverage of the Lewis Tein victory in the 11th Circuit: 

The ruling was another victory for prominent Miami lawyers Guy Lewis, Michael Tein and Dexter Lehtinen, who have long been mired in legal battles over their former representation of the West Miami-Dade Indian tribe.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article51735585.html#storylink=cpy

***

“The terrible shame is that the Tribe and its lawyers were able to prosecute these lies for years, leaving a wake of destructive litigation that cost millions of dollars to defend,” said Paul Calli, Lewis and Tein’s lawyer. “Thankfully, the courts have put a stop to it.”

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article51735585.html#storylink=cpy

Enjoy the Break!

-- Here's Dave Barry's year in review if you are looking for some fun reading today.

-- DOJ suspends forfeiture program that gives lots of $$ to locals.

-- The 4th DCA reverses judge who tried to keep newspaper from publishing public records.

-- Jeb really likes this sweater.

Enjoy your summer day!

Happy Festivus for the rest of us

It's a great day!

My favorite is Rand Paul's annual airing of grievances.  Here are some good ones:

to my absentee friend @marcorubio, I didn't put your $170k+ salary in my waste report today. But I could have #Festivus

— Dr. Rand Paul (@RandPaul) December 23, 2015

I have no grievances against my fellow doc @RealBenCarson because I have not heard a word he has said in any debate. #Festivus

— Dr. Rand Paul (@RandPaul) December 23, 2015

Where to start but @realDonaldTrump. If u bring the Yiddish, know what it means. Guess that's more of a kvetch than a grievance #Festivus

— Dr. Rand Paul (@RandPaul) December 23, 2015

37 years on the lam, but incompetent

Paula McMahon has this lengthy article about the interesting twists and turns of this old case:

In his heyday, Robert Woodring was a con man who lived a life of intrigue and adventure, then successfully went on the lam for 37 years to avoid going to prison.
Law enforcement finally tracked him down a year ago in Guadalajara, Mexico, and he was sent back to South Florida to serve his time for the original offenses and to pay the price for eluding justice.
But by Monday, when the 82-year-old Woodring was to be sentenced for jumping bond in 1977, the ravages of time had created another twist: He was recently diagnosed with Alzheimer's disease and dementia and was found legally incompetent to be sentenced.
His medical diagnosis does not mean he will get a free pass from the legal system.

***

On Monday, U.S. District Judge Marcia Cooke met privately with probation officials and then held a lengthy sidebar discussion with Salnick and Assistant U.S. Attorney Robert T. Watson.
The judge decided the most practical course of action was to send Woodring to a federal prison hospital, where he can receive appropriate treatment. She recommended sending him to Butner Federal Medical Center in North Carolina.
For technical legal reasons, she gave him a provisional sentence of one year in federal prison for the bond-jumping offense and recommended the prior 7.5-year term, imposed by judges who are long dead, also be converted to a provisional sentence because it is unlikely Woodring would ever be restored to legal competency.
Woodring, dressed in khaki prison scrubs and using a wheelchair, joked affably with the deputy marshals who escorted him to the Miami courtroom from the neighboring Federal Detention Center.
He did not speak during the hearing but was overheard talking with his lawyer, saying at one point: "Life is short."
Salnick said Judge Cooke's sentencing was "the very kind and very humane thing to do."

Your Monday Moment of Zen

People make mistakes... This guy jumped ship for 37 years after his (via the AP):

A Florida man is facing additional prison time after spending 37 years on the lam until his capture late last year in Mexico.

Prosecutors are seeking an additional year in prison for 82-year-old Robert Anton Woodring for jumping bail in 1977. Woodring's sentencing has been delayed several times for medical evaluations.

A hearing is set Monday before U.S. District Judge Marcia Cooke.

Prosecutors say Woodring failed to surrender in 1977 to begin serving a seven-year prison sentence for fraud and for a related conviction involving an attempt to flee in his 60-foot yacht so officials couldn't seize it.

U.S. Marshals caught Woodring in Guadalajara, Mexico, in December 2014 after getting a tip while searching for another fugitive. Mexican officials sent him back to the U.S.

Happy Holidays from President Obama ...

... to 95 people who got pardons or commutations.

Today, President Obama is commuting the federal prison sentences of 95 men and women, most of whom committed nonviolent offenses. With this step, the President has now granted 184 commutations total -- more than the last five presidents combined. Take a look:

Not such a great holiday for former bank vice president Frank Spinosa, who was sentenced to 30 months by Judge Bloom.

Who's excited?!

It's here -- Star Wars day!

In that vein, I thought you'd be interested in a story about Star Wars and the First Amendment from the Volokh Conspiracy. 

Joe Southern says his [7th-grader] son, Colton, wore a shirt depicting the “Star Wars – The Force Awakens” logo, along with a Storm Trooper holding a weapon, to class Thursday at George Junior High School….
On Thursday, though, school officials told Colton the shirt was banned because it has a gun, or at least a picture of what in the movie is weapon….
A spokesperson for Lamar Consolidated Independent School District says the LCISD secondary school handbook spells out potential violations of dress code. The list includes “symbols oriented toward violence.”
Administrators say they did not reprimand the student, though they could have required him to change or assigned him in-school suspension. They say they only required him to zip up his jacket….

Volokh analyzes some First Amendment cases and then concludes: "...nothing about this T-shirt can reasonably be understood as promoting illegal blaster use. A pretty clear First Amendment violation, then, on the school district’s part."

Docs vs. Glocks part 3

This is the third (!!) opinion in the case.  I like Judge Wilson's dissent:

Numerous voices have weighed in on this appeal, which requires us to assess the constitutionality of Florida’s Firearm Owners Privacy Act. Thirty amici curiae filed briefs, and the Majority has now filed its third iteration of an opinion seeking to uphold the Act. See Wollschlaeger v. Governor of Fla. (Wollschlaeger I), 760 F.3d 1195 (11th Cir. 2014), opinion vacated and superseded on reh’g, Wollschlaeger v. Governor of Fla. (Wollschlaeger II), 797 F.3d 859 (11th Cir. 2015). Having considered all these arguments for and against the constitutionality of this state law, I continue to believe that it does not survive First Amendment scrutiny. However, I have already written two dissents to this effect, and the plaintiffs have sought en banc review. Accordingly, I decline to pen another dissent responding to the Majority’s evolving rationale. I rest on my previous dissents.

Supreme Court News

1.  Trump vs. Scalia:

Republican presidential hopeful Donald Trump thinks that Justice Antonin Scalia went a little too far when he suggested last week that black students may benefit from taking a slower educational route.
Scalia said during oral arguments in an affirmative action case last week that black students may benefit from attending a "slower-track school." Scalia said that "most of the black scientists in this country don't come from schools like the University of Texas."
Trump, in an interview with Jake Tapper that aired on CNN on Sunday, indicated he disagreed with Scalia's remarks.
"I thought it was very tough to the African-American community," Trump said. "I don't like what he said." 

2.  Rubio vs. Gay Marriage:

CHUCK TODD: Are you going to work to overturn the same sex marriage?
MARCO RUBIO: I disagree with it on constitutional grounds. As I have said–
CHUCK TODD: But are you going to work to overturn this?
MARCO RUBIO: I think it’s bad law. And for the following reason. If you want to change the definition of marriage, then you need to go to state legislatures and get them to change it. Because states have always defined marriage. And that’s why some people get married in Las Vegas by an Elvis impersonator. And in Florida, you have to wait a couple days when you get your permit. Every state has different marriage laws. But I do not believe that the court system was the right way to do it because I don’t believe–
CHUCK TODD: But it’s done now. Are you going to work to overturn it?
MARCO RUBIO: You can’t work to overturn it. What you–
CHUCK TODD: Sure. You can do a constitutional amendment.
MARCO RUBIO: As I’ve said, that would be conceding that the current Constitution is somehow wrong and needs to be fixed. I don’t think the current Constitution gives the federal government the power to regulate marriage. That belongs at the state and local level. And that’s why if you want to change the definition of marriage, which is what this argument is about.
It’s not about discrimination. It is about the definition of a very specific, traditional, and age-old institution. If you want to change it, you have a right to petition your state legislature and your elected representatives to do it. What is wrong is that the Supreme Court has found this hidden constitutional right that 200 years of jurisprudence had not discovered and basically overturn the will of voters in Florida where over 60% passed a constitutional amendment that defined marriage in the state constitution as the union of one man and one woman.
CHUCK TODD: So are you accepting the idea of same sex marriage in perpetuity?
MARCO RUBIO: It is the current law. I don’t believe any case law is settled law. Any future Supreme Court can change it. And ultimately, I will appoint Supreme Court justices that will interpret the Constitution as originally constructed.

 3.   Supreme Court to hear another DUI case.

The Supreme Court agreed on Friday to decide whether states can make it a crime for motorists suspected of drunken driving to refuse breath, blood or urine tests. Thirteen states have such laws.

The court took up the question in three cases: one from Minnesota and two from North Dakota, which were consolidated for a single argument.

In 2013, in Missouri v. McNeely, the Supreme Court ruled that the police investigating a drunken-driving incident must generally obtain warrants before drawing blood without consent.

The state laws get around that ruling by making refusal to consent to testing a separate crime. State officials justify those laws in part on the ground that drivers have given their consent to be tested as a condition of being permitted to drive.

The defendants in the new cases say the laws violate the Fourth Amendment’s ban on unreasonable searches and seizures.

 4.  And in non-Supreme Court news, the numbers of low-level medicare fraudster prosecutions is way up.  So are immigration offenders.  But where are the prosecutions of these cases -- horrific abuse in our prisons.  You gotta read the Miami Herald's investigation on Lowell correctional institution.  How is it that we can have places like this?





4.

Judge Palermo's service today at noon

At the Gesu Church
118 N.E. Second Street
Miami, Florida 33132

Why we need cameras in the Supreme Court!

Everyone should be able to see how Justice Scalia questioned and commented about affirmative action:

Near the end of oral argument in a high-profile affirmative-action case Wednesday, conservative U.S. Supreme Court Justice Antonin Scalia suggested that black students benefit from a “slower track” at less prestigious schools and are thus harmed by affirmative action. The comments come during a time of racial turmoil on campuses across the country, from Yale to the University of Missouri.

“There are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do not do well — as opposed to having them go to a less advanced school, a slower-track school where they do well,” Scalia said from the bench. “One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”

Scalia went on to say that it could be bad if the “really competent blacks” do not go to these “lesser” schools because they might then not become scientists. “I don’t think it stands to reason for the University of Texas to admit as many blacks as possible,” he concluded. 

Or what about Chief Justice Roberts?

Some of the Supreme Court justices on Wednesday seemed to question the utility of considering race in admissions at all, suggesting they may be backing away from their compromise on Fisher two years ago.

“What unique perspective does a minority student bring to a physics class?” Chief Justice John Roberts asked at one point, challenging UT’s contention that one of its goals was to attain classroom diversity. (In 2002, UT found that 90 percent of its classes had only one or zero black students in them.)

 Here's the actual exchange with Scalia:

JUSTICE SCALIA: There are there are
those who contend that it does not benefit
African Americans to to get them into the University
of Texas where they do not do well, as opposed to having
them go to a less advanced school, a less a
slower track school where they do well. One of one
of the briefs pointed out that that most of the
most of the black scientists in this country don't come
from schools like the University of Texas.
MR. GARRE: So this Court
JUSTICE SCALIA: They come from lesser
schools where they do not feel that they're that
they're being pushed ahead in in classes that are
too too fast for them.
MR. GARRE: This Court
JUSTICE SCALIA: I'm just not impressed by
the fact that that the University of Texas may have
fewer. Maybe it ought to have fewer. And maybe some
you know, when you take more, the number of blacks,
really competent blacks admitted to lesser schools,
turns out to be less. And and I I don't think
it it it stands to reason that it's a good thing
for the University of Texas to admit as many blacks as
possible. I just don't think
MR. GARRE: This Court heard and rejected
that argument, with respect, Justice Scalia, in the
Grutter case, a case that our opponents have and asked
this Court to overrule. If you look at the academic
performance of holistic minority admits versus the top
10 percent admits, over time, they they fare better.
And, frankly, I don't think the solution to
the problems with student body diversity can be to set
up a system in which not only are minorities going to
separate schools, they're going to inferior schools. I
think what experience shows, at Texas, California, and
Michigan, is that now is not the time and this is not
the case to roll back student body diversity in America.
Thank you, Your Honors.

Defendants in "Virtual Concierge" trial convicted

From the Sun-Sentinel:

Before jurors even took their seats — verdict in hand — Joseph Signore clenched shut his eyes.

The 51-year-old Palm Beach Gardens resident and former CEO then held on to his attorney, Michael Salnick, as a court official read each count: guilty, guilty, guilty.

Signore, his business partner and his soon-to-be ex-wife, Laura Grande-Signore, were found guilty by a jury Monday on charges that they bilked investors of $80 million through a virtual concierge business.

Signore was found guilty on 34 counts and his partner, Paul Schumack, of Coconut Creek, on 23 counts.

Grande-Signore, also of Palm Beach Gardens, was found guilty on seven counts for her involvement in the scheme. She was found not guilty of one count of fraud.

Jurors deliberated over the 34-count indictment for three days after listening during the trial, which went just longer than six weeks.

"Is Gollum good or evil?"

That's the headline of this nerdy fan-boy NY Times piece.

A Turkish man’s freedom may hang on a question put to a panel of “Lord of the Rings” experts: Is Gollum evil?

More significantly, was it an insult to compare Turkey’s president to the slimy, bug-eyed creature from the films based on J.R.R. Tolkien’s trilogy?

A physician, Dr. Bilgin Ciftci, is accused of sharing a meme that juxtaposes Gollum, as played by Andy Serkis (and advanced digital effects), with Recep Tayyip Erdogan in several situations: while laughing, while surprised, while eating. Insulting the president is a crime under Turkish law.

The punishments were swift. Dr. Ciftci lost his job with the Public Health Institution of Turkey after sharing the meme, and he faces a two-year prison sentence, the Turkish newspaper Today’s Zaman reported. After a judge said he did not know enough about the Tolkien creature to make an appropriate decision, five experts were ordered to conduct an investigation into Gollum’s moral character before the next phase of the trial begins in February.

Michael D. C. Drout, an English professor at Wheaton College who edits an annual review of Tolkien’s works, is observing the situation from America. He said that those experts will be assessing the most complicated character in the English writer’s already complex world.

“I don’t think there’s any consensus that Gollum is evil,” Mr. Drout said in an interview. “He is the most tragic character in ‘The Lord of the Rings.’ ”

Middle Earth, the place where Gollum began his life as a creature named Sméagol, is full of complex characters and allegiances. But a single gold ring, forged with a dark lord’s evil powers, has the power to rule them all. Sméagol catches a glimpse of the ring, murders for it, and possesses it for centuries until it is mislaid and found by another hobbit. Sméagol struggles to redeem himself, but his obsessive bloodthirst for the ring wins out. He accidentally destroys himself and the ring, but also saves Middle Earth in the process. (It is the hobbit hero Frodo who gets most of the credit.)

“The context is this: Gollum accidentally, not intentionally, saves the entire world,” Mr. Drout said.

RIP Shelby Highsmith

Senior United States District Judge Shelby Highsmith passed away yesterday.   Judge Highsmith served in the United States Army from 1949-1955 before graduating from the University of Missouri Kansas City School of Law with an LL.B. in 1958.  Judge Highsmith was in private practice in Missouri before relocating to Florida and entering private practice.  Prior to his appointment to the federal bench, Judge Highsmith served as chief legal advisor to the Governor's War on Crime Program, Florida, special counsel for the Florida Racing Commission, and served as a circuit judge for the 11th Judicial Circuit (Dade County) from 1970 to 1975.  Judge Highsmith joined the federal bench in 1991 where he served with distinction until his retirement on December 31, 2008.     


On a personal note, I was assigned to his courtroom as a young AFPD and learned a great deal from him. He had a big heart and took great interest in teaching the young lawyers before him how to practice law with dignity. 

"Virtual Concierge" case to jury

It's before Judge Hurley in West Palm Beach.  From the PBPost:

After a nearly two-month trial and two days of closing arguments, a federal jury on Wednesday finally began deciding whether a Palm Beach County couple and their business partner set out to bilk thousands of investors out of $80 million in a Virtual Concierge scheme operated out of plush offices west of Jupiter.
After less than two hours of deliberation, the jury of 10 women and two men signaled they are in for the long haul.

Virtual concierge kiosks in Jupiter last year. (Bruce R. Bennett / The Palm Beach Post)

With dozens of charges of conspiracy, wire fraud and money laundering to weigh against Joseph Signore, his estranged wife, Laura Grande-Signore, and their business partner, Paul Schumack, the jurors sent out a note, indicating that they don’t expect to reach a verdict Thursday.
Instead, they told U.S. District Judge Daniel Hurley, they will deliberate Thursday, take Friday off and continue their work Monday.
Their scheduling announcement came as attorneys representing the three continued to insist their clients had done nothing wrong. Hurley rejected the attorneys’ pleas to throw out the charges that had already been sent to the jury.
“When you add the constellation of facts together, isn’t that enough to send to the jury for a decision?” Hurley asked Schumack’s attorney rhetorically, rejecting his request for a judgment of acquittal.
The defense attorneys spent most of the day trying to persuade jurors that federal prosecutors had woven together a disparate array of circumstantial evidence in hopes of proving the three never intended to produce the electronic kiosks much less install them in sports arenas, hotels, casinos, hospitals or other venues.

Rosenbaum vs. Martin

And Rosenbaum gets the visiting district judge from Alabama to join her opinion, affirming a denial of a motion to suppress in a child porn case.

It's a fascinating debate between two of our "new" 11th Circuit judges involving whether a lost cellphone has been abandoned. There's all sorts of interplay with the cellphone cases (like Riley) and older 11th Circuit law on standing.

Even though many have claimed that the court has taken a turn to the left with the new judges, this opinion shows pretty definitely that it has not, especially on 4th Amendment issues.

From the majority:

To be clear, we do not suggest a Fourth Amendment jurisprudence of
“finders keepers; losers weepers.” Loss is not the same thing as abandonment.
And loss alone cannot support a finding of abandonment. Nor does the filing of a
claim for a lost item and the replacement of that item with the resulting insurance
money, in and of itself, demonstrate an intent to abandon. Instead, we must view
all of the facts and consider the totality of the circumstances to determine whether
an intent to abandon may objectively be discerned.

And Martin's dissent:

Courts must distinguish between the everyday use of the term
“abandonment” and its use in a context that may result in the loss of Fourth
Amendment protections. Here, Mr. Johnson and Ms. Sparks ended their efforts to
recover their lost cell phone only after several days of active searching. Although
this might colloquially be referred to as “abandonment,” it is not nearly what is
necessary to show abandonment so as to deprive someone of their Fourth
Amendment protections.
***
But a person may not abandon property for Fourth Amendment purposes by
mere loss, carelessness, or accident, where he has made reasonable efforts to
reclaim the property. See, e.g., Ramos, 12 F.3d at 1026 (11th Cir. 1994) (finding
no abandonment where the defendant left a briefcase in a temporarily leased
condominium a few hours after the scheduled checkout and telephoned the
condominium office the next day to seek the briefcase’s return). In light of their
repeated efforts to reclaim it, Mr. Johnson and Ms. Sparks demonstrated no intent
to abandon the cell phone.4
The fact that they could have conceivably done more is simply
not sufficient, in my view, to constitute abandonment under the Fourth
Amendment.