RIP Murray Greenberg

Good riddance to 2016.  Murray Greenberg, all around good guy and father to Ben and Jerry, passed away on Saturday.  Here's the Miami Herald obituary about the mensch:

Both of Greenberg’s sons grew up to be lawyers, although 42-year-old Gerald stressed that they were never pressured.
“Ben and I would both aspire to be half the lawyer he was,” Gerald said.
He never missed a baseball game or school event, Gerald said. Baseball stayed a passion for the Greenberg men. They attended a final baseball game together this summer, when the Miami Marlins played the Cincinnati Reds. They sat behind the plate and cheered when the Marlins won.
“If you live your life like he did,” Gerald Greenberg said, “you’re going to be happy.”

R

eadmore here: \

I am one with the Force. The Force is one with me.

Very very sad.

She "drowned in moonlight, strangled by her own bra."

Looking forward to 2017.

It's a quiet week... so unless something earth-shattering happens, we'll see you next year.

Happy Festivus....

...for the rest of us!

Names being floated for U.S. Attorney

According to the Miami Herald, there are 4 potential candidates:

▪[Roy] Altman, a lawyer with Podhurst Orseck, is a former federal prosecutor in Miami who obtained convictions in several major cases, including the trial of an international sex trafficker and the murder trial of a U.S. postal worker. He also served as deputy chief of the office’s special prosecutions section and played a lead role in its violence reduction partnerships in the communities of Overtown, Liberty City and Miami Gardens. A Yale Law School alumnus, Altman graduated from Columbia University and played on its football and baseball teams.
▪[John] Couriel prosecuted economic and major criminal cases at the U.S. attorney’s office before joining the law firm Kobre Kim, specializing in Latin America with a focus on allegations of foreign corruption violations, money laundering and tax evasion. He has also run twice unsuccessfully for the Florida Legislature. A native Spanish speaker, Couriel graduated from Harvard College and Harvard Law School.
▪ [Dan] Fridman, a former assistant U.S. attorney in Miami, prosecuted economic, financial and corruption cases before serving as senior counsel to the Deputy Attorney General of the United States and as special counsel for healthcare fraud at the Department of Justice. Now a partner at White & Case, Fridman is a native speaker of Spanish and Portuguese who helps multinational companies operating in the U.S. and Latin America investigate allegations of fraud, kickbacks and bribery of government officials. He is a graduate of the University of Florida and Harvard Law School.
▪ [Jon] Sale is co-chair of Broad and Cassel’s white-collar defense and compliance practice, representing corporations and individuals in grand jury investigations and complex criminal cases. He is also a member of the Federal Judicial Nominating Commission that reviews and recommends prospective judges to Florida’s two U.S. senators and the president. Sale previously served as the second-in-command of the U.S. attorney’s office in South Florida, after prosecuting federal cases in New York and Connecticut. A graduate of the University of Pennsylvania and NYU Law School, Sale was also an assistant special prosecutor for the Justice Department in the Watergate case that led to the resignation of President Richard Nixon.

Read more here: http://www.miamiherald.com/news/local/article122285379.html#storylink=cpy

John Schlesinger on Jury Service

State Circuit Judge John Schlesinger (and former AUSA in the SDFLA) wrote an op-ed in the Miami Herald about jury service.  The conclusion:

Jury service means sacrifice. Miami’s civil courthouse, built nearly 100 years ago, is in deplorable condition. Jurors arrive having steeled themselves for a day of waiting patiently in the jury assembly room before enduring the tedious process of questioning at the hands of the judge and lawyers, and then, at last, hearing the facts of a case and rendering a decision. For their trouble they get inadequate seating, inadequate parking, inadequate bathrooms and outdated and undersized courtrooms. Plus, they’ll have to go elsewhere to find a decent cup of coffee.

But the rewards of serving on a jury and ensuring that justice prevails in a courtroom are immeasurable. Jurors represent protection, a bulwark against powerful societal interests and a sometimes rapacious government, none of whom has a monopoly on the truth. And with today’s all-volunteer military, it is the only significant sacrifice, other than taxation, that our country still asks of us as citizens.

The next time that notice comes in the mail, don’t think of it as an imposition. Don’t call or text me to ask how to get out of it. Consider it an opportunity to be soldier in the cause of justice.

And, for God’s sake, bring your own coffee.

Merry Christmas from the White House

President Obama pardoned 78 people yesterday and commuted another 153 sentences (via the AP).  It's the big push before the end of the year.  Good for the President!  It will be interesting to see how the drug laws are enforced under the new administration and whether all of this work will be undone.

Here's the full list of pardons/commutations via the Washington Post.

What do judges think when a party uses "sic" to point out mistakes in the other lawyer's motion?

Everyone enjoyed making fun of PE Trump's "unpresidented" tweet this weekend.  Lawyers also like to [sic] their opponents (me included), but I wonder what judges and their clerks think of it.

SCOF and SCOTUS happenings

1.  Gov. Scott appointed Alan Lawson to the Florida Supreme Court.  Via The Miami Herald:

Gov. Rick Scott appointed C. Alan Lawson to be Florida’s next justice of the Supreme Court Friday, choosing a conservative appellate judge to leave the governor’s mark on a moderate court that has been responsible for some of sharpest defeats of his political career.Lawson, who currently serves as the chief judge on the 5th District Court of Appeal in Daytona Beach fills the seat on the seven-member court that is being vacated by Justice James E.C. Perry, a liberal jurist who is retiring at the end of the month because he has reached the mandatory retirement age. Perry was the the fourth African-American jurist to serve on Florida’s high court. Lawson is white.
***
Lawson attended high school in Tallahassee, went to Tallahassee Community College and Clemson University and earned his law degree from Florida State University.
Before law school he worked at the Florida Department of Corrections as a legislative liaison and was a candidate for the state House of Representatives from Tallahassee in 1986. After he passed the Bar he worked in private practice before becoming an assistant county attorney in Orange County in 1997. He was appointed to the trial court by former Gov. Jeb Bush in 2002.
He has worked for additional funding for the court system, particularly for technology.
Lawson’s wife, Julie, is a board member and volunteer for Mi Esperanza, a non-profit corporation that provides micro loans to underprivileged women in Honduras. They have two grown children.

2.  And for the Supreme Court of the United States, it's supposedly down to two candidates, including 11th Circuit's William Pryor.  Via CNN:

It will be some time before Donald Trump announces a nominee to fill the vacancy left by Antonin Scalia, according to transition insiders.

But two names continue to emerge to the top of the president elect's list of potential Supreme Court justices. Judges Diane Sykes and William Pryor are among the top contenders, according to multiple sources familiar with the process.

All in the family

Judge Moreno has named a new special master in the Takata Air Bag litigation.  Former law clerk John Delionado has resigned, and Judge Moreno handed the reigns over to another former clerk, Ryan Stumphauzer.  From the DBR:

U.S. District Judge Federico Moreno named Delionado's replacement hours after the Hunton & Williams attorney filed his resignation on Monday.
"My private practice has taken increasingly more of my time in recent months and I believe that I am no longer able to meet the time requirements that this matter demands," wrote the Miami lawyer, a former federal prosecutor who now defends businesses accused of corruption and fraud. "I have discussed this with Judge Moreno and want to extend to him my deepest appreciation for bestowing this honor upon me."
Stumphauzer also served as a federal prosecutor with a focus on health care fraud. His practice now concentrates on government regulatory enforcement, white-collar crime, internal investigations, whistleblower lawsuits and civil fraud, according to his firm's website.
Delionado and Stumphauzer's resumes have another thing in common: Both lawyers once clerked for Moreno.
Attorneys on the Takata case have two weeks to submit objections to Stumphauzer's appointment. He has assured Moreno that the case would present no conflicts for him. The parties will equally split the special master's $550 hourly fee.

Rapper Brisco in trouble with the Feds

From Paula McMahon:

South Florida rapper Brisco, wanted by the U.S. Secret Service since August, was arrested this week when he made a guest appearance with another musician in Broward County, agents said.

Brisco has performed and recorded with Lil' Wayne, Rick Ross and DJ Khaled. Lil' Wayne signed him to Cash Money Records.

Brisco, whose real name is British Mitchell, 34, is accused of selling counterfeit money to an undercover agent and taking part in a fraud ring that operated in South Florida, authorities said. Mitchell is linked to at least $200,000 worth of illegal activity, investigators said.

Agents testified that Mitchell led law enforcement on two high-speed chases when different agencies tried to arrest him in Broward County and in Miami-Dade County on Aug. 23. One of the chases reached speeds of 90 to 100 mph and both agencies abandoned their pursuits because of the potential danger to the public, investigators said.

Feds indict woman who threatened Sandy Hook parent

From the AP:

A Florida woman has been charged with making death threats against the parent of a child who died in the Sandy Hook school shooting massacre because she thought the attack was a hoax, federal authorities announced Wednesday.
Lucy Richards, 57, of Tampa was arrested Monday after a grand jury indictment on four felony counts of transmitting threats, the U.S. Justice Department said in a statement.
The threats were made Jan. 10, according to authorities, and included messages that said, "you gonna die, death is coming to you real soon," and "LOOK BEHIND YOU IT IS DEATH."
Another threat said, "there's nothing you can do about it," according to court documents.
The indictment said the threats were made in Palm Beach County to a person identified only by the initials "L.P." Justice Department spokeswoman Sarah Schall wouldn't say how the threats were delivered or provide more details, nor would she provide further details about why federal authorities said Richards thought the attack was a hoax.

Judge William Pryor rules in favor of "Gay-Straight Alliance" club at middle school

Interesting in light of his consideration for the Supreme Court.  The opinion, written by Judge Pryor, and joined by Judge Marcus and a visiting judge, is here.  The intro:

This appeal requires us to decide whether a complaint that a school board
violated the Equal Access Act when it denied the application of the Carver Gay-
Straight Alliance to form a student club is ripe and not moot and whether the Act
applies to a public middle school in Florida. After a teacher at Carver Middle
School submitted an application for the approval of the Carver Gay-Straight
Alliance, the superintendent denied the application on the ground that the
application failed to identify an allowed purpose for the club. Instead of submitting
a new application, the Alliance and a student, H.F., filed a complaint that the Board
had violated the First and Fourteenth Amendments to the Constitution and the
Equal Access Act. Under the Act, if a public school “provides secondary education
as determined by State law,” the school must give extracurricular clubs equal
access to school resources. 20 U.S.C. §§ 4071–72. Following a bench trial, the
district court entered a judgment against the constitutional claims, dismissed the
claim under the Act as both not ripe and moot, and ruled, in the alternative, that the
Act does not apply to Carver Middle School. The Alliance and H.F. appeal only
the dismissal of their complaint that the Board violated the Act. Because we conclude that the complaint of the Alliance and H.F. is ripe and not moot and that the Act applies to Carver Middle School, we vacate and remand for further proceedings.

The ACLU issued a press release, stating: “We are of course pleased that the court agreed with our legal position on all of the issues in the appeal,” stated Daniel Tilley, Staff Attorney for LGBTS Rights for the ACLU of Florida. “But the greater victory is for the middle school students across Florida who are protected by the Equal Access Act and must be allowed to create a gay-straight alliance if their school allows student clubs.”

11th Circuit approves posting oral arguments on its website

Finally!

The only other Circuit that hasn't joined us in the 21st century is the 10th.

Congrats to the Free Law Project for making this happen.

Summary of Trump's SCOTUS picks

There's a nice website summarizing all 21 potential nominees here.  It's got lots of interesting tidbits, including significant rulings and writings.

In other news, big ups to Ashley Litwin, Lisa Lauck, and Marc Seitles for their appellate win in Uri Ammar's case.  It was a speedy trial violation.  The awesome Paula McMahon covers it here:

"To this day, Uri absolutely maintains that he is innocent," Ammar's appellate lawyers, Marc Seitles and Ashley Litwin, said Wednesday.
They said they have not yet spoken to Ammar, who is in Coleman federal prison in Central Florida, but Ammar's family was very excited when they heard he had won his appeal.
"They were in tears, they were screaming with joy. We are all very happy with the court's decision," Seitles said.
Seitles said he hopes Senior U.S. District Judge Lawrence King will agree to release Ammar, a U.S. Marine Corps veteran who was a security worker at the casino. The lawyer said he also hopes the judge will not allow prosecutors to seek a new indictment and trial against Ammar.

Judge Ungaro sentences Matt Greer to 3 years

The other defendants received 18 months to probation. A fair and thoughtful sentencing determination with excellent lawyers all around. Here's the Miami Herald article.

In other news, you gotta check out this disaster from the FBI and GSA.  From Politico:

The hulking wooden sculpture titled “Cedrus” weighed more than 15,000 pounds and stood 17 feet tall, stretching from the lobby to the second floor of the FBI’s field office in Miami.
Made of Western red cedar imported from Vancouver, the massive artwork was actually 30 individual wooden pieces built to resemble a tornado. It was designed by Ursula von Rydingsvard, an artist known for making sculptures from wood beams.
The General Services Administration, an independent agency of the U.S. government that, among other things, leases office space to federal agencies, contracted with von Rydingsvard to create the site-specific sculpture for the Miami office, which the FBI leases.
The sculpture, installed early last year, didn’t last long.
Shortly after "Cedrus" arrived, FBI workers began getting sick, including at least a dozen who were hospitalized, according to hundreds of documents reviewed by POLITICO Florida. Most suffered allergic reactions to cedar dust coming off the sculpture. Among those who became sick was the office’s only nurse, who had to be relocated to another office.
“The health and safety issues surrounding the sculpture were real,” read a January letter written by Richard Haley, the FBI’s assistant director of finance overseeing department property. “One employee required an 11-day hospital stay and none have been able to return to work at the new field office.”
After months of navigating bureaucratic hurdles, as well as interagency fighting, the sculpture was removed in October 2015. The whole ordeal cost taxpayers nearly $1.2 million, including $750,000 paid to von Rydingsvard to design the statute. In documents reviewed by POLITICO Florida, GSA officials said they believed the sculpture was a good deal because it was “likely worth more than the $750,000 the government paid.”

 Really?  A good deal?  Sheesh. 

Judge Ungaro hears sentencing arguments in Matthew Greer's case

It's Michael Sherwin and Michael Berger for the government.  And for Greer, it's Roy Black, Hy Shapiro, and Jackie Perczek.  Really great lawyering all around.  Jay Weaver from the Herald is covering the sentencing:

The 38-year-old former CEO of Carlisle Development Group apologized on Wednesday to a federal judge for his wrongdoing and for “casting a cloud” over an affordable-housing industry whose mission is to build homes for society’s most needy.

“It pains me very deeply,” Greer, 38, said, choking up during his statement to the judge.

Yet his high-profile defense attorney, Roy Black, argued that Greer deserved no prison time because he pleaded guilty, cooperated with authorities, paid back the stolen money and has devoted his life to charity — including his latest effort to help a nonprofit group develop an Overtown housing complex for homeless mothers and their children.

Black touted the South Florida housing projects built by Carlisle with tax credits issued by the U.S. government, while downplaying that Greer and others involved in his partnerships inflated the constructions costs so they could split millions in illegal profits.

“I think the public got what they paid for,” Black told U.S. District Judge Ursula Ungaro. “They were not cheated.”

***

Prosecutor Michael Sherwin hammered that point, saying Greer was driven by “greed,” not charity, and that he “lost his way.”

“This was a lie for money,” Sherwin said.

The federal sentencing guidelines for Greer’s offense range from eight to ten years in the $34 million housing fraud probe that disgraced the one-time CEO and his Miami-based company, Carlisle, which was started by his father, lawyer Bruce Greer, two decades ago. Bruce Greer and his wife, Evelyn, a lawyer who once served as mayor of Pinecrest and on the Miami-Dade school board, attended the hearing.

On Wednesday, the prosecutor recommended that the judge start at eight years and then reduce it by 40 percent for Greer’s assistance in the long-running FBI and IRS investigation — for a total sentence of about five years.

Ungaro said she would issue her decision on Greer’s sentence along with punishment for five other co-defendants on Monday, after hearing arguments from defense attorneys and prosecutors.

Argument transcript in Beckles...

...is here.

And the Supreme Court decided a double jeopardy case this morning, Bravo-Fernandez:

The issue-preclusion component of the Double Jeopardy Clause does not bar the Government from retrying defendants, like petitioners, after a jury has returned irreconcilably inconsistent verdicts of conviction and acquittal and the convictions are later vacated for legal error unrelated to the inconsistency.

Welcome back

The Supreme Court is back in full swing, and AFPD Janice Bergman has a big argument this morning in Beckles v. United States.  From SCOTUSblog:

Issue: (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.

Argument preview: Court to tackle constitutionality of residual clause in sentencing guidelines

This will be interesting for 11th Circuit watchers because this issue has deeply divided the court.  Good luck Janice!

Have a great Thanksgiving!

If felony-battery in Florida a crime of violence under 2L1.2 of the Sentencing Guidelines?

That's the question the en banc 11th Circuit will take up in U.S. v. Vail-Bailon.  Here's the panel decision by Judge Rosenbaum saying it is not a crime of violence:

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.

Judge Jordan concurred, and visiting Judge Siler dissented.

The en banc order is here.

Will it be Justice Pryor?

It was the big Federalist Society meeting this weekend in which Justice Scalia was remembered and celebrated.  One of the takeaways is that 11th Circuit Judge William Pyror is quietly the favorite to get Scalia's seat. (Here's a short interview with him from the weekend.) He would be the first 11th Circuit judge to get the nod... 

It's hard to know exactly what PE Trump is thinking here though as he was busy this weekend tweeting about Hamilton.

In the meantime, I repost Judge Milton Hirsch's Constitutional Calendar today, which is really interesting:

On Nov. 21, 1864, in response to a request from Massachusetts Governor John A. Andrew asking him to express his condolences, President Lincoln wrote to Mrs. Lydia Bixby, a widow who was believed to have lost five sons during the Civil War.  Lincoln's letter was later printed in the Boston Evening Transcript.  Later still, it was revealed that two, not all five, of Mrs. Bixby's sons died in battle; one deserted, one was honorably discharged, and another either deserted or died a prisoner of war.

 

The authorship of the letter has been debated by scholars, some of whom believe it was written by John Hay, one of Lincoln's secretaries.  The original of the letter was destroyed by Mrs. Bixby, who was a Confederate sympathizer and disliked Lincoln.  Copies of an early forgery circulated for years, causing many people to believe that they had the original letter.

 

None of which matters.  The letter is the finest piece of epistolary prose ever written on this continent, and if Lincoln didn't write it, he meant to.  It serves to remind us that the highest function of political leadership in America's democracy is to inspire us with a regard for those principles that set this country apart.

 

As I do every year on the anniversary of its writing, I take pleasure in sharing this remarkable letter with my friends:

 

"Dear Madam,

 

"I have been shown in the files of the War Department a statement of the Adjutant General of Massachusetts that you are the mother of five sons who have died gloriously on the field of battle.  I feel how weak and fruitless must be any word of mine which should attempt to beguile you from the grief of a loss so overwhelming.  But I cannot refrain from tendering you the consolation that may be found in the thanks of the republic they died to save.  I pray that our Heavenly Father may assuage the anguish of your bereavement, and leave you only the cherished memory of the loved and lost, and the solemn pride that must be yours to have laid so costly a sacrifice upon the altar of freedom.

 

"Yours very sincerely and respectfully,

 

"A. Lincoln"

Bad cheese!

Yikes, this dude was selling cheese that had lysteria.  Judge Scola gave him 15 months:

Officials in Virginia took a sample of Oasis’ “Lacteos Santa Martha Quesito Casero Fresh Curd” in 2014 and found that it was contaminated with listeria.
The U.S. Food and Drug Administration conducted an inspection of Oasis’ Miami facility and reported finding more products contaminated with listeria and numerous unsanitary conditions, court documents said.
Inspectors reported finding black mold on the ceiling and a door frame and condensation dripping onto raw cheese-making materials, cheese in production and the finished product.
Rivas agreed to recall the cheese and stop production until the sanitary issues were fixed, court documents said.
He also told FDA inspectors that Oasis would not ship out any finished product that it had in its inventory, officials said.
During a follow-up inspection six weeks later, FDA officials found that Rivas had shipped 133 cases of contaminated cheese which they believe sickened several people, investigators said.
Rivas pleaded guilty to charges stemming from the case.

 

RIP Minnette Massey

She was the fierce civil procedure professor who taught scores of Florida lawyers to "READ THE RULE!"  In many ways though, she was a rule-breaker, shattering old restrictions for women lawyers. She passed away at the age of 89 (via UM Law):

M. Minnette Massey, an original glass ceiling shatterer and leading advocate for diversity, decades before the word entered the popular vernacular, died Sunday at the age of 89. 

M. Minnette Massey

The fair-haired, green-eyed spitfire was one of the “First Wave,” of fourteen woman pioneers who elbowed their way into the male-dominated world of American law school professors. (Miami Law supplied two others – Soia Mentschikoff and Jeanette Ozanne Smith.) Massey began teaching legal research as an assistant law librarian but rapidly asserted her dominance in the machinations of Florida civil procedure.
Massey would catch the attention of U.S. Supreme Court Justices Hugo Black and William O. Douglas, who admired her dazzling intellect and skills as a raconteur. Think Shirley MacLaine, only loads smarter. She ascended to assistant dean, then first woman dean, all the while imprinting armies of young lawyers as masters of the intricacies of litigation and the rightful leaders of their profession. She was a force to behold and used her powers to lead the law school into the integration of both the faculty and student body.
"The University of Miami Law School has lost perhaps its greatest champion," said Charlton Copeland, holder of the first M. Minnette Massey Chair in Law. "She believed in the excellence of this law school. She believed in the excellence of her students. She believed that together they might build a more excellent future.
"But she was not taken with nostalgia or bygone days. Her commitment was a commitment to a more inclusive, more relevant excellence. If that is not the mark of a great institutional and, and civic, champion, I don't know what is. I mourn Minnette's passing, but I also mourn something of the passing of Minnette's vision for Miami Law, for our law students, and for our collective civic lives," Copeland said

How much time is appropriate for a lawyer who laundered money for criminals?

 Judge Dimitrouleas sentenced Alan Koslow to a year and a day in federal prison, taking into account his cooperation and other good works.  Seems like the appropriate result.  Hopefully other judges will see that lengthy sentences for first-time non-violent offenders isn't the solution.  From Paula McMahon:

Koslow admitted in August that he accepted $8,500 from undercover agents as payment for laundering cash, which he thought was linked to drug dealing and illegal gambling, through his friend Susan Mohr's bank account in 2012 and 2013.

Mohr, 57, of Delray Beach, pleaded guilty to a related charge and is scheduled for sentencing next month.

Prosecutor Neil Karadbil told the judge that Koslow had two personas — one was the high-powered successful attorney who raised money for charities and advised clients on legal matters.

"But the other Alan Koslow is the one who got him here," Karadbil said. "The other Alan Koslow is the one who likes to take short-cuts, likes to party, is kind of hedonistic."

Karadbil said Koslow discussed laundering $50,000 per month for two years in exchange for a 5 percent commission. Koslow said the money "was peanuts" but he wanted extra spending money to party with his friends, agents said.

Agents said he told them: "I do favors for clients" and he "liked to be cool."

Breathe.

So, how about some happiness for your blog pleasure this week...

Judge Scola is celebrating five years on the federal district court bench. To honor the occasion, the Judge and his wife, Judge Jacki Hogan Scola, gathered with over a dozen of his former and current law clerks and staff during the weekend of October 29-30. That Saturday evening, his law clerks held a dinner in his honor at a former clerk's home in Coconut Grove, and on Sunday the Judge hosted a lunch for everyone in Coral Gables.

In 2011, President Obama nominated Judge Scola to fill the seat on the Southern District of Florida made available when Judge Paul C. Huck took senior status.  Judge Scola had previously served for over a decade on the state court bench.  He was confirmed as a federal district judge on October 19, 2011 and received his commission the following day.

Happy fifth anniversary, Judge Scola! Let's hope President Trump gives us more like him!

Here are some pictures from the event.  Check out this cake!

How will a Trump presidency affect the SDFLA and the Supreme Court

• Trump will select between 2-4 Justices.  William Pryor stands a good chance of being Justice Pryor. Federico Moreno also made Trump's short list.
• Who will be Attorney General?  Rudy Guliani? (I think it's less likely it will be Christie after the Bridgegate convictions, but who knows).
• If HRC had won, there was talk that U.S. Attorney Ferrer would stay on (or that Joan Silverstein would become U.S. Attorney), but that won't happen now. Any thoughts on who Trump names?  Jon Sale? (he would be great).
• There are going to be a bunch of open district court seats in the District.  Who gets those slots?

Happy Election Day!

Here's your moment of Zen:

RIP Janet Reno, Guest Post by John Kozyak

RIP Janet Reno, Guest Post by John Kozyak

Janet Reno passed away this morning after living with Parkinson’s Disease for more twenty years.  I had the privilege of being Janet’s friend and I am so grateful that I had a chance to say good-bye several times over the weekend.  Some said that she was enjoying all the love in her house, which had been built by her Mother. Others said she was waiting until Hilary was elected the first woman President and others acknowledged that this brave woman had never given in easily to anything in her 78 years.

The NY Times  already has an obituary online, which provides a glimpse into the public part of Janet’s life.  I particularly like “Ms. Reno was never a natural fit in Washington’s backslapping, backstabbing culture.”  In this ugly election, this might be one of the best compliments for a strong, brave woman, who approached each day of her life wanting to do the right thing. She did  so much better  than the rest of us and  that is why she is legend to me and many.

I had no familiarity to Parkinson’s Disease when I first met Janet 40 years ago or when she was diagnosed in 1995, but I sure did after my Mother found out she had it about 14 years ago and my Father received the same news 3 years later. I will never forget telling Janet and having her comfort me. She gave her phone number for my Mother to call her. My Mother loved the photograph that Janet signed and loved her visits with her. Janet lived gracefully with Parkinson’s until fairly recently. She continued as the Attorney General and tried to beat Jeb Bush as Governor. She set an example for people living with Parkinson’s and she set an example for so many more to live life to the fullest , to be humble and to do the “right thing”.

She certainly set an example for women. After graduating from Harvard Law, she had difficulty even obtaining a legal job because of her gender and she went on to become the longest serving Attorney General in the United States. When she came to the Minority Mentoring Picnic, young women law students and everyone else loved being with her. She spoke often with encouragement and sincerity. I never heard her complain about the gender discrimination or her Parkinson’s.  

For the past 3-4 years, Janet has been the Honorary Chair of the National Parkinson Foundation’s Moving Day in Miami. She and her family joined with mine to form Team Kozyak & Reno, which usually had the most walkers. Moving Day will take place in Miami this Sunday, November 13^th in Museum Park in Miami. Janet’s health did not permit her to attend last year, but I am positive her niece, Hunter and her daughters and other friends will join Janny in spirit.   I’d be honored if you’d walk with Team Kozyak& Reno this coming Sunday morning. This is not  a solicitation for donations, but more of a request for a group hug in honor of a wonderful woman. I am sharing two photos of Janet at Moving Day two years ago. I love the first one with her sister, Maggy.  Sorry that it doesn’t include Hunter’s face, but she is behind Janet.

I could not be more proud that the Reno family has been so supportive and welcoming.  I will never, ever forget sitting in Janet’s bedroom on Friday night while her sister, Maggy, her nephew , Doug, niece , Hunter, and several others recited long poems with such enthusiasm. I had learned that this was a family tradition when Janet’s brother, Mark, passed away 2 years ago. It was amazing. Yesterday, I barely missed a small group holding hands around Janet’s bed and singing “God Bless America”. It was not easy saying good-bye yesterday, but the love in the Reno home helped so much.

I don’t want to tell my Mother that Janet Reno has passed and think it is best to wait until I see her next week in St. Louis.

Love,

John

Your Thursday afternoon moment of zen

"I don't know what's happening at the U.S. Attorney's Office. This is the latest of a series of incidents that is affecting the credibility of this office ... Someone has got to look at this thing … There's a problem here that needs to be rectified in some way."

That was Judge Darrin Gayles in a strong rebuke of his former office.  We wrote about this latest in a string of prosecutorial misconduct cases on the blog here.  Paula McMahon covers the judge's decision, which was delivered orally (there is no written order) in this article:

A bizarre South Florida case involving an indicted fraud suspect who spied on his co-defendants — and their lawyers — after secretly making a plea deal led a federal judge to blast the U.S. Attorney's Office for letting it happen.
After two days of hearings on the allegations against the "mole," his lawyer and the prosecution, U.S. District Judge Darrin Gayles issued a blistering ruling in court in Miami late Tuesday. He barred the man from testifying against his co-defendants when they go to trial in May and strongly criticized federal prosecutors' "extraordinary" handling of the matter.
***
The defense asked the judge to punish the prosecution by throwing out the charges against Pisoni, Pradel and Ramirez. The judge said prosecutors previously had so much evidence that it was impossible for him to rule that Leon's actions affected the case enough to dismiss the charges against the other three.
But the judge expressed shock that the prosecution was still considering letting Leon testify, in some limited way, in trial against the other three men.
"If the government isn't willing to bar him, I will," Judge Gayles said, ruling Leon was prohibited from testifying.
Prosecutors told the judge they regretted not running the decision about how to handle Leon up the chain of command at their office but said they thought what they did was allowed by law. The judge said they should have, at a minimum, consulted their bosses and sought the judge's explicit approval.
A spokeswoman for U.S. Attorney Wifredo Ferrer declined to comment because the case is pending. Officials also declined to say if any disciplinary investigation is underway or anticipated.

Supreme Cubs fan

In other news, this guy is presenting a tough issue for the magistrate judge:

Every criminal suspect has the right to remain silent, but one South Florida man may be taking that advice very literally.
Since federal charges were filed against him in May, Gerald Petion hasn't uttered a single word during any of his eight or so court appearances. He has also declined to speak to his defense lawyer.
Petion, aka Gangsta, won't even say "not guilty" in response to federal drug and weapons charges. He is accused of selling heroin linked to a man's near-fatal overdose in March in Delray Beach.
Petion, 32, of Pompano Beach and Delray Beach, doesn't misbehave in court. He complies when the deputy marshals tell him where to go and what to do. He stands up straight and doesn't look around the courtroom.
But he also doesn't answer questions from any of the judges. He doesn't make eye contact. And he seems totally unfazed by the uncomfortably long silences when people try to communicate with him.
***
The judge told Petion he could detect occasional "flickers" so he knew Petion could hear him.
"This is the United States of America vs. you," the judge told Petion in a polite and friendly tone. "They're not just going to go away. They're not going to fold their tents. … They'll just wait you out."
Brannon told Petion he understood it was possible that Petion's silence may not be a ploy and that perhaps he has just mentally shut down because "the situation is so awful."
But he urged Petion to listen to the doctors who will be evaluating him during the next few months and issuing another report. The judge told him to think hard about his situation before he next returns to court in late January for the next hearing on his competency.
Petion didn't respond.

Former Prosecutors UNITE against the FBI director

Former federal prosecutor Bruce Udolf wrote this op-ed in the Miami Herald this weekend, saying James Comey "screwed up big time."  From the conclusion:

Sad to say, in this regard, whether by design or inadvertence, Comey failed, and he should take immediate steps to correct his blunder. If that means calling all hands on deck to comb through these new documents, he should do so with all dispatch. He has demonstrated in the past that he is a person big enough to admit his error, and I hope he will do what he can to clean up this mess immediately.
To do otherwise, I fear, could result in history calling into question this most critical election of our lifetime.

And a bunch of former prosecutors signed this letter, railing on Comey:

Director Comey's letter is inconsistent with prevailing Department policy, and it breaks with longstanding practices followed by officials of both parties during past elections.  Moreover, setting aside whether Director Comey's original statements in July were warranted, by failing to responsibly supplement the public record with any substantive, explanatory information, his letter begs the question that further commentary was necessary.  For example, the letter provides no details regarding the content, source or recipient of the material; whether the newly-discovered evidence contains any classified or confidential information; whether the information duplicates material previously reviewed by the FBI; or even “whether or not [the] material may be significant.”

Perhaps most troubling to us is the precedent set by this departure from the Department’s widely-respected, non-partisan traditions.  The admonitions that warn officials against making public statements during election periods have helped to maintain the independence and integrity of both the Department’s important work and public confidence in the hardworking men and women who conduct themselves in a nonpartisan manner.

We believe that adherence to longstanding Justice Department guidelines is the best practice when considering public statements on investigative matters.  We do not question Director Comey’s motives. However, the fact remains that the Director’s disclosure has invited considerable, uninformed public speculation about the significance of newly-discovered material just days before a national election.  For this reason, we believe the American people deserve all the facts, and fairness dictates releasing information that provides a full and complete picture regarding the material at issue.

Some of the local guys who signed: Jeff Marcus, Jerry Greenberg, Dan Rashbaum, Curt Miner, David Buckner, Seth Miles.

Hope everyone has a great Halloween.

Read more here: http://www.miamiherald.com/opinion/op-ed/article111398437.html#storylink=cpy

 

 

Third case of spying on the defense alleged

After Monday's post, I received an email tip with the following case of alleged spying, which is the third time it is alleged that the prosecution has invaded the defense camp. This one is from the summer but it is still being litigated.  From the Florida Bulldog:

Miami federal prosecutors stand accused of spying on the defense – this time in the case of an alleged $28-million, international sweepstakes fraud.
As described in court papers, the “invasion of the defense camp” appears to have begun in February when one of four defendants in the case cut a secret plea deal with the U.S. Attorney’s Office and began working undercover.
The informant, John Leon of Wilton Manors, participated in defense team strategy sessions for three months as a government “mole,” obtaining documents and listening to privileged discussions about witnesses and other sensitive defense matters and reporting back to the government, the documents say.
The fallout: defense accusations that the case has been irretrievably “tainted” due to constitutional violations of the attorney-client privilege.
“For a period exceeding two months, Leon, acting as a government informant with the government’s acquiescence, invaded the defense camp where he learned critical defense strategies by actively participating in numerous meetings, after already accepting a government plea and agreeing to cooperate,” say court papers filed by attorneys Marc Nurik of West Palm Beach, J. David Bogenschutz of Fort Lauderdale and Marshall Dore Louis of Miami.
...
The judge ... has sided so far with the defense. On Aug. 3, after an initial hearing, he ordered the government to turn over to the defense all “rough notes” of interviews of Leon by Internal Revenue Service agents who helped build the government’s fraud case. The defense had sought the agents’ notes, contending the government had “carefully sanitized” memos of interviews with Leon produced to the defense.

1 Billion Dollars...

Oh, this is such a South Florida story -- about a billion dollar bond.  Paula McMahon has the details:

When a South Florida man's friend sent him photos of a $1 billion bond earlier this year, investigators said, Michael Ifrah quickly pronounced it was genuine.
Ifrah wrote back to his pal that "the bond was real and it was more real than any other bond in the world," federal prosecutors said.
But that assurance was about as credible as the counterfeit bond, prosecutors told a judge Monday in federal court in Fort Lauderdale.
"This case is about two defendants trying to cash an unbelievable amount of money — a $1 billion bond. Few people have actually seen a billion-dollar bond, and that is because these bonds do not legally exist," prosecutor Daniel Cervantes wrote in court records.