#winning

Gene Stearns is at it again, this time winning the Bank Atlantic case on appeal in the 11th Circuit. The court ordered a new trial after a 6-week trial. It's a significant win (but an unpublished opinion) and one that Gene predicted from the beginning.  The conclusion:

Accordingly, we reverse the district court’s grant of summary judgment with respect to the falsity finding of Levan’s Earnings Call statements and the affirmative defense of reliance-on-professional-advice. We affirm the district court’s rejection of judgment as a matter of law with respect to the accounting fraud and its pre-trial evidentiary rulings regarding the testimony of the SEC’s expert, Lynn Turner, and PwC’s 2012 look back report. Because the reversal of partial summary judgment creates genuine issues of material fact that require resolution, we decline to enter judgment in favor of Defendants.

Another Johnson case leads to 3 opinions

This time it's United States v. Vail-Baron. Judge Rosenbaum writes the majority. Judge Jordan concurred. And visiting judge Eugene Siler (from the 6th) dissents. Judge Rosenbaum starts off her opinion this way:

When I was growing up, my parents told me not to judge a book by its cover. The Supreme Court has expressed an analogous concern about concluding that a crime qualifies as a violent crime under the Armed Career Criminal Act (“ACCA”), based solely on the name of the crime. See Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551, 2560 (2015) (discussing whether Connecticut’s offense of “rioting at a correctional institution,” a crime that the Supreme Court characterized as “certainly sound[ing] like a violent felony,” qualifies as a violent felony under the residual clause of the ACCA).1
This case raises the question of whether the Florida crime of felony battery—a crime that, from its name, may sound like a crime of violence—actually satisfies the definition of “crime of violence” under §2L1.2 of the Sentencing Guidelines when it is committed by mere touching. Heeding the Supreme Court’s warning, we have carefully compared the elements of felony battery under Florida law to the “elements clause” of § 2L1.2’s definition of “crime of violence.” Based on our review, we now hold that felony battery under Fla. Stat. § 784.041 does not qualify as a “crime of violence” under § 2L1.2 when it is committed by mere touching. For this reason, we vacate Vail-Bailon’s sentence and remand for resentencing.

"A very against police judge."

That was The Donald last night during the debate when discussing stop & frisk:



We didn't get any questions on the Supreme Court though...

Instead we got quite a bit of sniffles. I would have felt bad for him had he not been attacking Hillary's health for the past 3 weeks:



OK, OK... enough of that. The highlight of the night was Dee Gordon. I could watch this over and over again:

Will tonight's debate feature UFOs?

What was that percentage?!?!

I like this moment when Bill defends Hillary.




Should be fun tonight.

Justice Federico Moreno?

Former Chief Judge of the SDFLA, Federico Moreno, has made Donald Trump's short-list for Supreme Court Justices.  I love it.  Judge Moreno, who has been a district judge since 1990, would make a fantastic Justice.  He's smart, witty, engaging, and an all around good guy. 

He would be the first Supreme Court Justice to be a:

• Floridian
• Venezuelan
• former practicing criminal defense lawyer
• former assistant federal defender
• UM law grad

He's also been a state court judge and a practicing lawyer.  He currently serves on the Executive Committee of the Courts. 

 Other notables on the list include Charles Canady, a current Florida Supreme Court Justice.

Is flight from the police = reasonable suspicion or consciousness of guilt?

Many courts have said yes over the years. See Illinois v. Wardlow, 528 U.S. 119 (2000).


But the Supreme Court of Massachusetts has rightfully come out the other way in light of recent encounters between black men and the police:

Second, as set out by one of the dissenting Justices in the
Appeals court opinion, where the suspect is a black male stopped
by the police on the streets of Boston, the analysis of flight
as a factor in the reasonable suspicion calculus cannot be
divorced from the findings in a recent Boston Police Department
(department) report documenting a pattern of racial profiling of
black males in the city of Boston. Warren, 87 Mass. App. Ct. at
495 n.18 (Agnes. J., dissenting), citing Boston Police
Commissioner Announces Field Interrogation and Observation (FIO)
Study Results, http://bpdnews.com/news/2014/10/8/boston-policecommissioner-
announces-field-interrogation-and-observation-fiostudy-
results [https://perma.cc/H9RJ-RHNB].13 According to the
study, based on FIO data collected by the department,14 black men
in the city of Boston were more likely to be targeted for
police-civilian encounters such as stops, frisks, searches,
observations, and interrogations.15 Black men were also
disproportionally targeted for repeat police encounters.16 We do
not eliminate flight as a factor in the reasonable suspicion
analysis whenever a black male is the subject of an
investigatory stop. However, in such circumstances, flight is
not necessarily probative of a suspect's state of mind or
consciousness of guilt. Rather, the finding that black males in
Boston are disproportionately and repeatedly targeted for FIO
encounters suggests a reason for flight totally unrelated to
consciousness of guilt. Such an individual, when approached by
the police, might just as easily be motivated by the desire to
avoid the recurring indignity of being racially profiled as by
the desire to hide criminal activity. Given this reality for
black males in the city of Boston, a judge should, in
appropriate cases, consider the report's findings in weighing
flight as a factor in the reasonable suspicion calculus.
Here, we conclude that the police had far too little
information to support an individualized suspicion that the
defendant had committed the breaking and entering. As noted,
the police were handicapped from the start with only a vague
description of the perpetrators. Until the point when Carr
seized the defendant, the investigation failed to transform the
defendant from a random black male in dark clothing traveling
the streets of Roxbury on a cold December night into a suspect
in the crime of breaking and entering. Viewing the relevant
factors in totality, we cannot say that the whole is greater
than the sum of its parts.

"Any possibility of unfair prejudice was ameliorated when the district court explicitly instructed the Rhode Island jury not to hold Alcantara's wearing of a Yankees hat against him."

That was the First Circuit explaining why a New England jury could be fair in deciding whether a Yankee fan was guilty:

Alcantara's second claim of evidentiary error runs along
similar  lines.    He  argues  that  a  handful  of  references  to  his 
wearing a New York Yankees baseball cap prejudiced the jury (which
he assumes to have been composed of Boston Red Sox fans) against
him.  As an initial matter, all but two of the cited references
occurred  during  defense  counsel's  cross-examination.    In  any 
event,  this  testimony,  like  the  references  to  luxury  vehicles 
discussed  above,  was  relevant  to  the  witnesses'  knowledge  of 
Alcantara and his appearance.  Any possibility of unfair prejudice
was ameliorated when the district court explicitly instructed the
Rhode Island jury not to hold Alcantara's wearing of a Yankees hat
against him.

Should prosecutors experience one day in prison before taking the job?

These Maryland legislators did just that. They should be praised. They wanted to see what prison life was like so that they were more informed about the criminal justice laws they were proposing and voting on. Prosecutors routinely throw out numbers like 5 years, 10 years, or more, without even knowing what one day is like in prison.  Perhaps they should.

From the WP:

The conditions inside the facility were reminiscent of a prison movie: stale air, dim hallways, only the bare necessities. The prisoners described getting about an hour and a half of physical recreation per day, but, depending on where you fell in the lineup for the yard, that could be cut to 45 minutes. Prisoners are allowed outside recreation only four months of the year: June through September. The rest of the year, they are told, is too cold to go outside. Because of lengthy construction projects, some inmates had not been outside for recreation time in more than a year.

On a day when outside temperatures reached 100 degrees, we quickly realized that cellblocks in most state correctional facilities are not air conditioned. It’s so hot that inmates sleep on the floor with their feet in toilet water. Rats infested the food and gnawed through walls.

Jeb exclamation point!

Funny video of Jeb from the Emmys here.

Meantime, all the actors playing lawyers in OJ won.  And Marcia Clark actually attended.

Should William Pryor and Julie Carnes have recused from Matchett?

Judge Pryor, joined by Carnes, starts his order respecting the denial of rehearing this way (background here):

A majority of the Court has voted not to rehear en banc our decision in this appeal, United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), which held that the advisory sentencing guidelines cannot be challenged as void for vagueness. As members of the panel (and coincidentally the only members of this Court to have served on the United States Sentencing Commission), we write to explain why we agree with that decision.
We divide our discussion in two parts. First, we explain that Matchett is correct because the vagueness doctrine applies only to laws that regulate the primary conduct of private citizens. Advisory sentencing guidelines regulate judges, not private individuals; they guide judicial discretion within a statutory range. Advisory sentencing guidelines do not define crimes or fix punishments. Second, we explain that Matchett is not worthy of en banc rehearing.

 But as members of the U.S. Sentencing Commission, should they have recused? Andrew Hessick argues in this post that they should have:

Judge Pryor does not have a personal interest at stake in the case, but he does have an interest in his capacity as a member of the Commission. Holding that the vagueness doctrine does not apply to sentencing guidelines protects his work on the Commission from future challenges of that sort.
His participation in the decision also raises separation of powers concerns. The sentencing guidelines are legislative in nature. A judge who both sits on the Commission and rules on the Commission’s guidelines acts as both judge and legislator. Of course, judges sit on committees that create all sorts of rules―evidence, civil procedure, etc. But those committees prescribe rules for the administration of the courts. Sentencing guidelines are different. They prescribe terms of imprisonment. Anxiety about deprivations of liberty at the hands of the government is a major reason the Constitution separates powers.

"But just to reassure my colleague, I note that I do not now nor have I ever lived in fear that the Sentencing Commission might issue a “nonsensical guideline about ‘cheese.’”

That was Judge Rosenbaum, referring to Judge Pryor's opinion respecting the denial of en banc review in the big Matchett case. (She says this footnote referring to that sentence: "Now, that is a sentence I never imagined I would write in an opinion.")

Lots to digest in the 88 pages of opinions, but Rosenbaum vs. Pryor is fun to read.  And, of course, Martin's dissent is full of good stuff too.  But back to Rosenbaum.  Here's her footnote 3:

In fact, I would be surprised if the Sentencing Commission had reason to issue a
guideline about cheese at all. After all, the moon does not fall within the Sentencing
Commission’s jurisdiction. See Robert Nemiroff & Jerry Bonnell, Hubble Resolves Expiration Date for Green Cheese Moon, ASTRONOMY PICTURE OF THE DAY (Apr. 1, 2002), http://www.phys.ncku.edu.tw/~astrolab/mirrors/apod_e/ap020401.html (“The popular ‘Moon is made of Green Cheese’ myth can be traced back almost 500 years. It has been used historically in context to indicate a claim so clearly false that no one . . . will believe it.”); see also Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies art. I, Jan. 27, 1967, 18 U.S.T. 2410 (“The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.”).

More to follow.

Is "young and vivacious" the way you should be describing a law school dean?

Well, the UF Dean was not too happy about the description by the UF Law Review, but now is going to apologize for her objections:

The dean of the University of Florida's Levin College of Law, who like other lawyers is trained to weigh words with care, has created a stir with her objection to being called "young and vivacious."
An expert in feminist legal theory, Laura Rosenbury wrote a 4,000-word article for the New England Law Review that ended by recounting a banquet last fall when the male president of UF's Florida Law Review introduced Rosenbury with that description. In the article published this summer, Rosenbury said when she discussed her concern — whether a male dean of the college would be described as "vivacious" — the law review adviser responded, "But you look so much younger."

Now Rosenbury is being criticized by others connected to the Levin College of Law for such public criticism of her colleagues, who though not specifically named can be identified by their positions.
“The UF Levin College of Law and the University of Florida should be embarrassed that the Dean of their law school publicly calls out and identifies one of her own students and faculty members with the borderline slanderous accusation of sexism, against two of the most well-respected, tolerant and unprejudiced people at the school,” Michael Balducci, an alumnus and former Florida Law Review executive editor, wrote in a Facebook post.
Rosenbury said she has heard similar pushback from others.

***
Rosenbury said the last part of the article was to say she still encountered implicit gender bias as a dean, and while overt bias Frug had faced during her life has lessened with time, bias based on one’s identity still exists. In hindsight, she said she could have made the point in a way that avoided any embarrassment to the student.
“I think it’s good that people are talking about implicit bias in the legal profession,” she said. “I hope, though, that we can find more productive ways of talking about it.”
She’s been traveling the past week, but she plans to apologize to the student and faculty adviser once she’s back at UF.
“I will certainly apologize if they think I was calling them sexist,” she said. “Certainly that was not my intent, and I want to apologize for that.”

UM's Law Review Edition on the 11th Circuit is out (UPDATE with Fed Bar news for tonight)

UPDATE -- I forgot to mention that tonight is the Federal Bar Association's big Awards Dinner at the JW Marriott Marquis.  I am so proud and happy to say that Judge Robert L. Dube is being award the "NED" award (Judge Edward B. Davis Award).  Judge Davis would have been so happy with this choice as he and Judge Dube were close friends when they served on the bench together.

Here.

Below are the articles, including one by yours truly and the forward by Judge Darrin Gayles.  Also of note is that Professor Frohock's article is extremely timely as the 11th Circuit just granted en banc review of the case she covers, Patterson v. DOC.

Volume 70, Issue 4

Eleventh Circuit Issue

Masthead and Table of Contents

Foreword
by Hon. Darrin P. Gayles

Articles

ISIS’s Get Rich Quick Scheme: Sell the World’s Cultural Heritage on the Black Market—Purchasers of ISIS-Looted Syrian Artifacts Are Not Criminally Liable Under the NSPA and the McClain Doctrine in the Eleventh Circuit
by Lindsey Lazopoulos Friedman

Sentence Structure: Prohibiting “Second or Successive” Habeas Petitions After Patterson v. Secretary
by Christina M. Frohock

Hurst v. Florida’s Ha’p’orth of Tar: The Need to Revisit Caldwell, Clemons, and Proffitt
by Craig Trocino and Chance Meyer

That ‘70s Show: Why the 11th Circuit was Wrong to Rely on Cases from the 1970s to Decide a Cell- Phone Tracking Case
by David Oscar Markus and Nathan Freed Wessler

Notes

Neither Strict Nor Nuanced: The Balanced Standard For False Claims Act Pleading In The Eleventh Circuit
by C. Caitlin Giles

Cellphones, Stingrays, and Searches! An Inquiry into the Legality of Cellular Location Information
by Jeremy H. D’Amico

One of These Interns Is Not like the Others: How the Eleventh Circuit Misapplied the “Tweaked Primary Beneficiary” Test to Required Clinical Internships
by Samuel C. Goodman

Privacy rights and Justice Scalia

Although I've argued many times in the past that Justice Scalia was the best Supreme Court Justice for criminal defendants on the Court in which he sat, he was not a big 4th Amendment guy and certainly not a big privacy rights advocate.  Nevertheless, his family asked that his burial site be kept secret from the public.  The internet didn't let that happen for long.  From the AP:

Supreme Court Justice Antonin Scalia's funeral was attended by thousands and carried on live television, but when the hearse pulled away from the church and headed to his burial site, his family asked for privacy and Supreme Court officials declined to say where Scalia was being laid to rest.

But few things stay private in the internet age, and Scalia's grave has become public with the help of a website.

Within months of his death in February, the location of Scalia's grave - at Fairfax Memorial Park in Virginia - was recorded on the cemetery website Findagrave.com with precision: Garden of the Crucifixion, Lot 870, Site A. A contributor to the site added photos, too. Recently Wikipedia added the location and a photo to Scalia's page.

Citing privacy, cemetery President Michael H. Doherty declined to discuss the late justice or say how frequently visitors ask for help finding Scalia's gravesite in the cemetery that is dotted with brightly colored artificial flowers and in-ground memorial markers rather than headstones. But the cemetery will direct anyone who asks, its standard practice for any gravesite, though with the information posted online, visitors don't necessarily need help. When an Associated Press reporter visited recently, a bronze vase that's part of the justice's gravesite was empty; Find A Grave's pictures from May showed fresh flowers.

Scalia is the first Supreme Court justice to be buried at the cemetery. Some are buried at Rock Creek Cemetery and Oak Hill Cemetery in Washington and Cedar Hill Cemetery in Suitland, Maryland.

Should Obama be doing even more with his commutation power?

The WP says yes.  From the intro:

PRESIDENT OBAMA began August by commuting the sentences of 214 federal inmates, and he ended the month by commuting 111 more. Generally the pardon and commutation power is used sparingly and gets attention only when presidents use it to help cronies or former staffers. Now it is being used to commute the sentences of people who could not spare a dime to donate to a political campaign. This is a historic milestone — but it is also not nearly enough.

Mr. Obama’s August tally is the highest one-month presidential commutation total ever — even including those last-minute flurries of commutations and pardons presidents typically unleash during their final days in office. In a single month, Mr. Obama doubled the number of sentences he has shortened since taking office — to 673. His accelerating pace reflects an initiative to use the commutation power with more ambition than any modern president. His cumulative total is higher than that of the past 10 presidents combined.
The president has the power to shorten sentences in order to compensate for inequities in the justice system, an authority and responsibility that most neglect. Two years ago, the Obama Justice Department announced a program to encourage certain types of federal prisoners to petition for clemency. Mr. Obama chose to target inmates who are serving long sentences for nonviolent crimes, mostly drug-related, and who would be sentenced more leniently under current rules. The White House points out that more than a third of those the president has commuted were serving life sentences, even though they were relatively low-level offenders.

You have the right to confront an actor against you.

Another "terror" trial and another set of witnesses allowed to testify in disguise.  From the Herald:

The federal government’s secret informant and undercover agents who helped catch a suspected Key West terrorist last summer may testify at trial using fake names and even disguises, a judge has ruled.
***
Two FBI agents and one confidential informant “may testify under their undercover pseudonyms at trial without disclosing their true identities,” Magistrate Judge Lurana Snow wrote in an Aug. 17 ruling. “The defense shall be prohibited from asking any questions seeking personal identifying information from or about [them].”
Also, the witnesses may enter and leave the courthouse from a non-public doorway and their voices and pictures may not be publicly disclosed through any recordings or images, Snow ordered.