Monday, May 22, 2017

You be the judge -- Anthony Weiner

You be the judge -- former Congressman and Huma's husband Anthony Weiner pleaded guilty to a count of transferring obscene material to a minor. It carries a maximum sentence of 10 years. His guidelines are 135 months at the low end. The government has agreed to recommend a sentence of 21-27 months in this plea agreement. What will the judge do? What would you do?

Friday, May 19, 2017

Who could read all of this?

The 11th Circuit issued 284 pages of en banc opinions in the smoking cases, including Tjoflat's 225+ page (!!) dissent. I couldn't bear to read it all, but the Daily Report has this initial summary:

The U.S. Court of Appeals for the Eleventh Circuit issued a 284-page en banc opinion Thursday saying that smokers who won a class action against tobacco companies can also file individual lawsuits.

The judges had some fireworks. Three wrote dissents. One called the process a “chaotic poker game” and said judges should “stick to our day jobs” instead of advocating for plaintiffs.

In the end, the judges upheld the lower court decision in favor of Theresa Graham against R.J. Reynolds Tobacco Co. and its affiliates. Judge William Pryor wrote the majority opinion.

“This appeal presents the questions whether due process forbids giving a jury’s findings of negligence and strict liability in a class action against cigarette manufacturers preclusive effect in a later individual suit by a class member and, if not, whether federal law pre-empts the jury’s findings,” Pryor began.

Thursday, May 18, 2017

Wednesday, May 17, 2017

You have a right to remain silent.

After not speaking for a year, Gerald Petion pleaded guilty to a federal drug case. Paula McMahon has the details:

On Tuesday, after 12 months of politely but pointedly remaining totally silent and unresponsive in court, Petion resumed speaking to judges: He apparently decided it was in his best interest to accept a plea agreement offer from the prosecution.

“Guilty,” Petion said when U.S. District Judge Robin Rosenberg asked him how he wanted to plead to two federal drug-trafficking and weapons charges.

Prosecutors said they will recommend 20 years in federal prison when he is sentenced in August, but the final decision on his punishment lies with the judge. The maximum possible penalty is life in prison.

***
He remained imprisoned the whole time and only succeeded in delaying progress in his case for 12 months.

Earlier this month, Petion finally resumed speaking to his attorney after two in-depth mental health evaluations showed that there was nothing physically or mentally wrong with Petion and that he was legally competent for the case to proceed. The experts said he was faking mental illness.

After he was determined to be mentally competent, prosecutors made a plea offer and said they were considering filing a more serious charge, with a harsher punishment, if he planned to go to trial.

Meantime, we still have no U.S. Attorney. As far as I know, all of the finalists are still being considered. I imagine that we will have our nominee by the end of the month. It will be interesting to see if the nominee will accept the position and work for a Trump/Sessions administration.

Tuesday, May 16, 2017

Dismissed juror in Corrine Brown case was holding out for acquittal

When is it appropriate to dismiss a "holdout" juror? Representative Corrine Brown, who was convicted late last week, will argue that the judge should not have dismissed a juror holding out for innocence:

A juror dismissed from former U.S. Rep. Corrine Brown’s fraud trial told other jurors “the Holy Spirit” said Brown was innocent as the jury deliberated, according to a transcript the trial judge unsealed after a hearing Monday.
U.S. District Judge Timothy Corrigan’s decision to remove that juror will evidently become part of Brown’s effort to challenge her conviction last week on 18 out of 22 fraud and tax charges that could lead to years of imprisonment.
Although he hadn’t requested one Monday, Brown’s attorney, James W. Smith III, told reporters last week he planned to seek a new trial.
Corrigan acknowledged disagreement over the juror’s dismissal during a hearing that touched on a range of subjects involving the now-discharged jury.
“It is obviously a matter of contention in this case as to whether the court acted correctly,” Corrigan said.
“I thought it was the right decision, but I know you have rights and I want you to be able to take advantage of those,” the judge told Smith before denying a pair of oral motions that would have raised the possibility of attorneys talking with some jurors about their verdict.

Sunday, May 14, 2017

"A foolish consistency is the hobgoblin of little minds, adored by little statesmen." --Ralph Waldo Emerson.

AG Sessions is being criticized by both sides of the aisle for his new sentencing guidance, which requires prosecutors to seek much harsher sentences than under the previous administration.  The memorandum says:
Charging and sentencing recommendations are crucial responsibilities for any federal prosecutor.  The directives I am setting forth below are simple but important.  They place great confidence in our prosecutors and supervisors to apply them in a thoughtful and disciplined manner, with the goal of achieving just and consistent results in federal cases.
First, it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense. This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency.  This policy fully utilizes the tools Congress has given us.  By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.
It's hard to believe that we are going backwards and this is the criminal justice system that we will now be operating in.  Which judges will stand up to the executive?  Which judges will write sentencing orders explaining why prosecutors are asking for sentences that don't comport with 3553? Which judges will say enough is enough?

The boat cases in SDFLA seem to be a good opportunity for a judge to say something about the absurdity of these sentences. How much time should a fisherman get for being paid $2,000 to be a crewman on a drug boat that isn't even headed to the United States?  The min/man is 10 years, and our prosecutors are seeking those sentences.  From the Miami Herald:
“All three defendants admitted their involvement in the drug-smuggling conspiracy and that they knew they were transporting drugs on board the vessel,” the complaint says. “All three defendants also admitted that the vessel was going to Mexico and all were paid between $2,000 and $3,500 to transport the drugs.”
...
But Marc David Seitles, Bustos Pereira’s attorney, indicated that his client is a victim of the enforcement system.
“Yet another impoverished fisherman with a second grade education facing a minimum of 10 years in federal prison,” Seitles said in an email message. “This is fighting the war on drugs? Laughable.”
Many Latin American defendants in similar prior cases have told U.S. enforcement officials that they are fishermen or farmers who have been coerced or threatened by drug traffickers into transporting cocaine on boats.

Thursday, May 11, 2017

11th Circuit says no to death by firing squad

Anthony Boyd, sentenced to death, asked for his punishment to be carried out by firing squad or hanging.  The 11th Circuit, per Judge Marcus, said no. He will now be executed by lethal injection.  From the AJC:
Boyd had challenged Alabama’s new lethal injection protocol, alleging it violates his Eighth Amendment right to be free from cruel and unusual punishment.

Instead, he noted, legislatures in Utah and Oklahoma have approved the firing squad, which has a good track record of “speed and certainty for the condemned.” In the alternative, hanging is an option that has been approved by lawmakers in Delaware, New Hampshire and Washington. And Alabama is “fully capable” of approving those execution methods as well, the appeal said.

The 11th U.S. Circuit Court of Appeals, in a ruling written by Judge Stanley Marcus, said Alabama gives condemned prisoners the choice between two methods of execution: lethal injection and electrocution.

Also, Marcus wrote, the law is clear. Inmates challenging a method of execution must prove there is an alternative method of execution “that is feasible, readily implemented and in fact significantly reduces the risk of pain posed by the state’s planned method of execution,” he said.
“The Alabama legislature is free to choose any method of execution that it deems appropriate, subject only to the constraints of the United States Constitution,” Marcus wrote.

“But Boyd has not alleged that either lethal injection in all forms or death by electrocution poses and unconstitutional risk of pain,” he noted. “Having authorized two unchallenged methods of execution, Alabama is under no constitutional obligation to experiment with execution by hanging or firing squad.”

Marcus added, “Notably, Boyd did not propose an alternative drug cocktail that the state could use in his execution.”

Judge Wilson concurred in the result only but wrote separately to explain his disagreement with binding law.

In other news, tomorrow is the District's Bench and Bar conference. All of the judges will be forced to mingle with the hoi polloi. Good times, good times...


Monday, May 08, 2017

Victory for BBX, Alan Levan and Gene Stearns

Trial #2 goes to Bank Atlantic, Alan Levan and their lawyer Gene Stearns. A really big win for them over the SEC. From the DBR:
A federal jury on Monday ruled in Fort Lauderdale banker Alan Levan's favor on all claims filed by the Securities and Exchange Commission.

The SEC alleged Levan had misled investors about the health of certain real estate loans in Fort Lauderdale-based BankAtlantic's portfolio leading into the recession. The agency also claimed Levan's company BBX Capital Corp., which sold the bank in 2012, failed to properly account for loans in public disclosures.

It was the second SEC trial for BBX and Levan on the same claims. The first trial in 2014 ended with some jury findings against the defendants, a temporary ban on Levan running a public company and millions of dollars in fines. The appellate court overturned some pretrial rulings and sent the case back for another six-week trial in Miami before U.S. District Judge Darrin Gayles.

Levan and BBX also settled an earlier case brought by shareholders.

"I am pleased this regrettable nine-year ordeal is finally over and has ended in complete exoneration," Levan said in a statement. "This frivolous action by the SEC was clearly motivated either by incompetence or by malicious self-interest so the agency could say it did something to somebody other than watch the banking system collapse under its nose. I am ready to move on and build on the considerable success we have enjoyed at BBX Capital, which has prospered despite the unfair and unwarranted burden imposed on us by this SEC witch hunt."

Monday News & Notes

1. Trump is going to nominate Kevin Newsom to the 11th Circuit this week. Newsom, a law school classmate of mine, is well-qualified (former Alabama SG, former Souter clerk). He is one of nine nominations set to occur this week, via NY Times.

2. Prosecutors have plagiarized a blog post in amicus brief on death penalty case (via Jacksonville Times). Doh!

The Florida Prosecuting Attorneys Association apparently copied a defense attorney’s blog post in a critical brief dealing with whether prosecutors have the right to reject the death penalty.

The brief signed by Buddy Jacobs, an attorney and the longtime lobbyist for the prosecutors association, argued that an Orlando prosecutor deserved to have first-degree murder cases taken away from her after she said she wouldn’t seek the death penalty. The brief was signed by Jacobs and two other attorneys in his Fernandina Beach law firm.

Part of that brief is exactly copied from Richard Hornsby, an Orlando defense attorney. Hornsby posted last month on his blog why he thought Gov. Rick Scott was justified in his decision to re-assign capital murder cases away from State Attorney Aramis Ayala.

3. The Corrine Brown trial is set to go to closing today, via Florida Times-Union. That's up in Jacksonville. Apparently she cried on the witness stand on Friday. Any thoughts on whether she will walk?

Friday, May 05, 2017

Carlos López-Cantera to Chair Statewide Panel Vetting Federal Judicial Candidates

Florida's Federal Judicial Nominating Committee (referred to as the JNC) is going to be reconstituted. That was in question after the Trump election. But Sen. Rubio issued this press release today:

U.S. Senators Marco Rubio (R-FL) and Bill Nelson (D-FL) will once again constitute the Florida Federal Judicial Nominating Commission (JNC) to identify highly qualified individuals as finalists to become U.S. district judges in each of the three judicial districts in Florida. Today, it was announced that Carlos López-Cantera will serve as statewide chair of Florida’s Federal JNC.

“I am extremely pleased to have Carlos López-Cantera serve as statewide chair of Florida’s Federal Judicial Nominating Commission,” said Rubio. “Carlos is well-suited for this position and I am confident he is dedicated to this important process and will successfully lead the commission in identifying exceptional candidates to serve on the federal bench in Florida. I look forward to reviewing the commission’s selections and working with Senator Nelson and the president to ensure that these critical positions are filled.”

“I am honored to be selected to serve as the statewide chair of Florida’s Federal Judicial Nominating Commission,” said López-Cantera. “This is an extremely important process and I am committed to ensuring that the commission identifies for our senators’ consideration the most qualified applicants to serve as U.S. district judges. I am looking forward to working with all of the members of the commission to evaluate candidates based on their qualifications, experience, character, and integrity.”

Background:

The commission will invite applications for U.S. district judges and after a thorough and careful review of the applicants will select finalists who have the professional qualifications, character, integrity, experience, and temperament to perform the duties of a federal district judge and to uphold the public trust.

The commission will send the names of the finalists to Senators Rubio and Nelson for their individual and independent review and, if neither senator objects, those names will be forwarded to the White House for the president’s consideration.

Both senators reserve their constitutional rights to render advice and consent on any candidate or nominee.

Wednesday, May 03, 2017

Judge Goodman is at it again

How many judges could find a way to fit Frank Ocean and Alicia Keys into the first paragraph of an order about "common interest" and 4 emails?  Only one... Magistrate Judge Goodman:


Don't laugh! (UPDATE)

 UPDATE -- she was convicted.  No joke.

Apparently a woman is on trial for laughing during Jeff Sessions' confirmation hearing.  Are you kidding me?!  Sessions' prosecutors are going after a laugher.  For real (via HuffPost):
    The U.S. Capitol Police officer who decided to arrest an activist because she briefly laughed during Attorney General Jeff Sessions’ confirmation hearing in January is a rookie cop who had never conducted an arrest before nor worked at a congressional hearing. Nevertheless, prosecutors persisted this week in pursuing charges against the 61-year-old woman the rookie had taken into custody.
    Katherine Coronado of the U.S. Capitol Police was in her second week on the job when she was assigned to keep watch over Sessions’ confirmation hearing on Jan. 10. Coronado was involved in the arrest of Desiree Fairooz, an activist affiliated with the group Code Pink, after Fairooz laughed when Sen. Richard Shelby (R-Ala.) said that Sessions’ record of “treating all Americans equally under the law is clear and well-documented.” (Sessions had been rejected as a federal judge in the 1980s because of concerns about his views on race, and back when he was still a Democrat, Shelby himself actually ran an ad suggesting Sessions had called the Ku Klux Klan “good ole boys.”)
    Fairooz was seated in the back of the room, and her laugh did not interrupt Shelby’s introductory speech. But, according to the government, the laugh amounted to willful “disorderly and disruptive conduct” intended to “impede, disrupt, and disturb the orderly conduct” of congressional proceedings. The government also charged her with a separate misdemeanor for allegedly parading, demonstrating or picketing within a Capitol, evidently for her actions after she was being escorted from the room.
    A video shot by a HuffPost reporter that shows Fairooz being arrested was included as evidence in the trial, which will continue at Superior Court in D.C. on Tuesday. The video jurors saw Monday shows Coronado taking Fairooz into custody as she’s assisted by fellow officers.
    Jason Covert, one of the assistant U.S. attorneys trying the case, asked Officer Coronado on Monday whether the laughter was “loud enough to draw your attention” or if she recalled “seeing other people turning around.” Coronado claimed she had seen other people turn around and later said Fairooz had been laughing “very loudly.”
    Samuel Bogash, a lawyer representing Fairooz, showed a video of the audience laughing at another part of the hearing, when Sessions joked about disagreements with his wife. But Covert argued that it was appropriate for the audience to laugh when Sessions made a joke about his marriage but not when Shelby claimed Sessions had a long record of “treating all Americans equally.”


Monday, May 01, 2017

SCOTUS decisions

No decisions this morning on the cell-site data cases.  They will be relisted again.  But we do have a decision in this Miami case.  From SCOTUSBlog:
The Supreme Court handed a partial but significant victory to cities today, holding that the Fair Housing Act allows the city of Miami to bring a lawsuit alleging that two banks, Bank of America and Wells Fargo, violated the law when they issued riskier but more costly mortgages to minority customers than they had offered to white borrowers. But it was hardly a complete win for the city, as the court also ruled that the lower court should have applied a tougher test to determine whether the city can recover compensation for its losses. This means that the case will now return to the lower court for it to decide whether there is enough of a connection between the banks’ lending practices and the city’s economic injuries to hold the banks liable.
 That means that Judge D will get the case back. Fun times.

Friday, April 28, 2017

News and Notes (UPDATED)

1.  Congrats to the new Labor Secretary, Alex Acosta.  Great news.  Acosta got 60 votes, including Sen. Nelson.

2.  The Melgen jury is still out.  Today marks day 3 of deliberations.  Strong likelihood of a verdict today before the weekend.  After 7 weeks, they won't want to come back next week.

UPDATE -- Friday afternoon verdict -- GUILTY on all counts.

3. Federal agent acquitted of road rage, via the Sun-Sentinel.

4.  "The lipstick gang"?  Paula McMahon has the details:
Call them the gang that couldn’t put on lipstick straight.
When three men, wearing bright red lipstick, heavy makeup and women’s clothing, walked into a jewelry store and said they were shopping for an engagement ring earlier this month, workers quickly realized they were dealing with an unusual band of gun-toting robbers.
So far, authorities said they have identified two of the wanted men. Jerome Simmons, 29, of Fort Lauderdale, was arrested as he crawled out of a nearby bush sporting only his boxer shorts, socks, makeup and carrying a walkie-talkie in his hand. A pink sweatshirt, pink sweat pants, a wig and a pair of shoes were found under a nearby vehicle, police said.

Thursday, April 27, 2017

Your government at oral argument

Have you ever had a judge (or Justice) respond to an argument by saying, "Oh, come on." (via the NY Times):
Chief Justice John G. Roberts Jr. tried to test the limits of the government’s position at a Supreme Court argument on Wednesday by confessing to a criminal offense.
“Some time ago, outside the statute of limitations, I drove 60 miles an hour in a 55-mile-an-hour zone,” the chief justice said, adding that he had not been caught.
The form that people seeking American citizenship must complete, he added, asks whether the applicant had ever committed a criminal offense, however minor, even if there was no arrest.
“If I answer that question no, 20 years after I was naturalized as a citizen, you can knock on my door and say, ‘Guess what, you’re not an American citizen after all’?” Chief Justice Roberts asked.
Robert A. Parker, a Justice Department lawyer, said the offense had to be disclosed. Chief Justice Roberts seemed shocked. “Oh, come on,” he said.
Ouch.

Meantime, Alex Acosta will soon by in Trump's Cabinet.  Hopefully he won't be forced to make such silly arguments.

Wednesday, April 26, 2017

En banc 11th Circuit decides U.S. v. Roy

At long last, the en banc 11th Circuit today decided United States v. Roy.  The opinions span 287 pages.  Judge Carnes wrote the majority opinion, finding harmless error in conducting trial without counsel present during a portion of the trial.  From the conclusion:
We end, as we began, by acknowledging that although Alexander Roy received a fair trial he did not receive a perfect one. Whatever the circumstances surrounding it, and regardless of who knew what and when they knew it, we do not condone the taking of any inculpatory testimony in the absence of defense counsel. It is constitutional error, which should be avoided. But neither would we condone, much less participate in, scuttling the harmless error rule. As we have explained, the rule plays an important role in, and serves vital interests of, our judicial system. To reverse Roy’s conviction based on his counsel’s brief absence during initial presentation of only a small part of the overwhelming evidence against his client would require us to enlarge exceptions to the harmless error rule to the point where they would be large enough to consume much of the rule. Doing that would run counter to decisions of the Supreme Court, this Court, and the better reasoned decisions of other circuits.
The dissent expresses the view that “we must vigilantly ensure we are adhering to our obligation” and “commitment to the Constitution” where the defendant has committed “disturbing” crimes. Dissenting Op. at 257. And it espouses the view that the more disturbing the crimes the defendant committed the greater our obligation to adhere to the law because “the constitutional processes that the Framers put into place are there to protect everyone, including people accused of the gravest and most serious crimes.” Id. We disagree with any suggestion, if it be such, that someone charged with sexual crimes against minors is entitled to more constitutional protections than someone charged with kiting checks. The constitutional protections are the same for all regardless of their crimes.
We do agree, of course, that “[t]he Sixth Amendment guarantee of the right to counsel does not apply on a sliding scale based on the gravity of the defendant’s offense.” Id. at 258. But neither does the application of the harmless error rule vary inversely with the seriousness of the crime. Countless other convicted defendants whose trials were less than perfect have been denied automatic reversal and a presumption of prejudice. This defendant, although he is entitled to the full protections of the law, is not entitled to special treatment. Because the Sixth Amendment violation that occurred during his trial was harmless beyond a reasonable doubt, his conviction is due to be affirmed.
The judgment of the district court is AFFIRMED.
 Judges Tjoflat, Pryor, Jordan, and Rosenbaum each filed concurring opinions.

Judges Wilson, Martin, and Pryor each filed dissenting opinions.

More to follow...

Mistakes or Fraud?

The issue has been framed as "mistakes vs. fraud" in the Melgen trial, which is now with the jury.  From the PBP:
Acknowledging Dr. Salomon Melgen made some mistakes as he struggled to treat more than 100 patients a day at clinics from Delray Beach to Port St. Lucie, his attorney spent more than three hours Tuesday trying to overcome what federal prosecutors called “staggering” evidence that the ophthalmologist bilked Medicare out of as much as $105 million.
The 62-year-old Harvard-educated retinal specialist should not be found guilty of 76 charges of health care fraud for sloppy record-keeping, attorney Matthew Menchel told a federal jury in closing arguments. Further, he said, the doctor shouldn’t be sent to prison for trying innovative measures to help patients who were told their vision loss was hopeless.
While nationally renowned ophthalmologists testified during the nearly two-month trial that they were appalled by Melgen’s methods, Menchel insisted they had “agendas.” The people the jury should listen to are the patients, he said.
“It’s the patients who are experts in blindness,” Menchel said “It’s the patients, not the doctors, who are experts.”
Patients who testified — both for and against the wealthy physician who faces corruption charges in New Jersey with Democratic U.S. Sen. Robert Menendez — didn’t hold any animosity toward Melgen, he said. “Patients smiled warmly at him for a reason,” he said.
The reason, Assistant U.S. Attorney Roger Stefin countered, was that they that they had no idea he was using them as “props” to rake in millions from the federal insurer.
“He wasn’t just aggressive,” Stefin said, using Menchel’s word for Melgen’s tactics. “He was abusive. He took advantage of patients in many cases — people who were elderly, people who were sick, people who were trusting.”
Melgen subjected patients — some who had prosthetic, blind or shrunken eyes — to dozens of unnecessary and sometimes painful tests to “line his pockets with millions and millions of dollars,” agreed fellow Assistant U.S. Attorney Alexandra Chase.

Tuesday, April 25, 2017

Gotta love this story

Justice Breyer's cell phone went off in Court today. Of course it's no big deal and things happen.  But can you imagine if that happened to a lawyer instead of a judge.  Woah, the sky would fall.  Here's the WP on the incident:
Some questions about today’s incident remain unanswered. Breyer’s ringtone was not the usual sounding one, but reporters couldn’t make out exactly what it was. And it is unclear whether a justice’s black robe has pockets.

In local courts, the Melgan trial is wrapping up with closings today. 

Federalists and privacy

The Federalist Society will be discussing cell tower data and privacy this Friday.  I will be debating the Florida Solicitor General, Amit Agarwal, who was my opponent in the en banc cell tower case of U.S. v. Quartavious Davis.  It's being moderated by Judge Raag Singhal.  Should be fun:



Monday, April 24, 2017

How many innocent people are in federal prison?

Ninth Circuit Judge Alex Kozinski told 60 Minutes that about 1% or over 20,000 innocent people are in federal prison.  "That's a lot of people!" The number is almost definitely higher and yet many federal judges aren't doing as much as Kozinski to check the executive.  And boy do we need a strong judiciary right now with AG Sessions.

We should have our U.S. Attorney nominee this week.  It will be interesting to see if that person is willing to stand up to Trump/Sessions or whether they will go back to the old ways where there is limited discovery, no exhibit lists, etc. etc.

It appears that in the Ft. Lauderdale shooting case that the prosecution is handing over all of the evidence.  From Paula McMahon:
 Prosecutors handling the case against a man accused of fatally shooting five people and wounding six others at Fort Lauderdale’s international airport are still turning over massive amounts of evidence to the defense, they said in court on Friday.
In the coming weeks, they plan to hand over electronic evidence from computers and phones used by Esteban Santiago before the Jan. 6 mass shooting.
Both sides said they are still interviewing numerous potential witnesses who may have information about the shooting and Santiago’s state of mind.
The defense team, from the Federal Public Defender’s office, said Santiago, 27, is continuing to take medication for schizophrenia and schizoaffective disorder. They said his condition appears to have stabilized and he remains legally competent to stand trial.
It also appears that Haitian coup leader Guy Philippe will plead guilty today.

Thursday, April 20, 2017

Dave Barry to speak at the District's Bench & Bar conference

It looks like a good conference, with lots of our judges speaking and participating. It's Friday May 12 and there are interesting panels. It should be revealing to hear what the judges have to say about topics like criminal sentencing and legal writing. And Dave Barry is always great.


Wednesday, April 19, 2017

Melgen trial winding down

Dr. Salomon Melgen's trial is winding down... It's in week 7 and closing arguments are expected next week. From the AP:

The Medicare fraud trial of a prominent Florida eye doctor tied to corruption charges against New Jersey Democratic Sen. Bob Menendez wound toward its conclusion Tuesday with his lawyers portraying him as an innovative physician who didn't give up on his hard-to-treat patients.

Dr. Salomon Melgen is charged with 76 counts for allegedly stealing up to $105 million from Medicare between 2008 and 2013 by performing useless tests and procedures on elderly and disabled patients.

But Dr. Dana Deupree, testifying Tuesday for the defense, disagreed with the prosecution's contention. Going through numerous patient records, he testified that Melgen's treatments may have been the only hope many patients had for saving their sight. The Clearwater, Florida, ophthalmologist said that although some of the tests performed by Melgen and his staff could have been done better and that he might have performed different procedures, Melgen's work was medically sound.

Deupree, who is expected to be the final defense witness, testified that Melgen's attorneys have paid him $135,000 over several years to consult on this case and prior civil lawsuits.

Monday, April 17, 2017

What's next for Trump and the Judiciary?

Justice Gorsuch takes his seat today on the Supreme Court.  But there are still a ton of vacancies around the country at the District and Circuit levels (as well as U.S. Attorney positions).  David Lat at Above the Law takes a look at what's going to be happening:

The main potential stumbling block to progress on lower-court nominees: “blue slips.” As explained by prominent conservative commentator Hugh Hewitt in the Washington Post:
The blue slip is simply the piece of paper that is sent to the senators from the home state of every judicial nominee. If a senator has no objection to the nominee, the blue slip (so named for the color of the paper) is sent back to the Judiciary Committee chairman with an indication of approval. If the senator objects, the paper is either sent back indicating disapproval or not returned at all.
Under current Senate practice, if the blue slip isn’t returned, the nominee doesn’t move forward. Hugh Hewitt isn’t a fan of this de facto veto power enjoyed by home-state senators; he condemns it as “simply and obviously deeply anti-democratic,” and wants Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) to, well, give blue slips the nuclear treatment.

Senator Grassley recently told Roll Call that his Committee remains “committed to” current blue-slip practice, but noted that blue slips aren’t sacrosanct. This strikes me as totally reasonable: blue slips can be honored for now, and used by senators to stop truly unqualified nominees. But if the Democrats abuse blue slips by using them to stop qualified nominees whose ideology they just don’t like — basically what Republicans did to the eminently qualified Merrick Garland, and what Democrats tried to do to the eminently qualified Neil Gorsuch — then it might be time to shred the blue slip.

Friday, April 14, 2017

So who is going to be the next U.S. Attorney

This Politico article by Marc Caputo says the favorites are John Couriel and Jose Felix "Pepi" Diaz, with Jon Sale very much still in the mix.  The article does not mention that Sale has Rudy Guliani's support as well as strong national political support:
Two young Cuban-American Republicans from Miami are leading contenders to be South Florida’s top federal prosecutor in what, sources tell POLITICO, is one of the most important federal jurisdictions to Donald Trump because it covers his home away from the White House, Mar-a-Lago.
Both state Rep. Jose Felix "Pepi" Diaz, 37, and John Couriel, 39, have interviewed with the Justice Department and were recommended, along with longtime attorney Jon Sale, for the Southern District of Florida U.S. Attorney post by Florida Sen. Marco Rubio, said sources familiar with the process. They say Trump, who has allowed too many federal vacancies to remain open, wants to make a choice soon.
Diaz is seen by some as a slight favorite because he has had a personal relationship with the president since 2006 when he was a contestant on Trump’s TV show, “The Apprentice.”
But others point out that Couriel has a strong backer in Arkansas Sen. Tom Cotton, Couriel’s longtime friend and old Harvard classmate who was an ally of U.S. Attorney General Jeff Sessions when he served as Alabama senator. He has Federalist Society and top administration lawyers advocating for him.
Roy Altman also emerged as a leading candidate -- he was interviewed today in DC.

This is a pretty important post for Trump considering how much time he and his colleagues spend down here.  Many have said that he has taken a personal interest in who is going to get the gig. Good luck to all.

Thursday, April 13, 2017

Willy Falcon's brother arrested in Orlando after 26 years

Jim Defede broke the story yesterday about one of the original Cocaine Cowboys being caught after 26 years on the lam.  The Willy and Sal saga is one of the best Miami stories around. Defede covered it 26 years ago and has some great pictures and memories in his story.

The story is so good that filmmakers Billy Corben and Alfred Spellman are currently making the next installment of Cocaine Cowboys to tell the Willy Falcon and Sal Magluta story called Los Muchachos.

The Herald has more about the arrest:
“He is the last of the Cocaine Cowboys,” Barry Golden, a spokesman for the U.S. Marshals Service in Miami, said late Wednesday.
Deputy marshals nabbed Gustavo Falcon and his wife, Amelia, at an intersection in Kissimmee after they had taken a 40-mile bike ride.
Gustavo Falcon had obtained fake driver’s licenses for himself, his wife and their two grown children, using Miami addresses, Golden said. The parents went by the name of Luis Reiss and Maria Reiss, he added.
The marshals caught a break in 2013 when Gustavo Falcon got into a car accident in the Orlando area and used his fake ID with the Miami address. That led the marshals to trace him to his South Florida history.
Gustavo Falcon and his family had been renting a Kissimmee home, which the marshals had under surveillance. They had been living in the Orlando area since 1999, which Golden said surprised the marshals because they had believed Gustavo Falcon was hiding in Mexico or Colombia all these years.
I wonder if some of the younger lawyers in the District know about the case and all of the craziness fro the 90s.  Some background from the Herald:
“Willie” Falcon and his partner, Salvador “Sal” Magluta, were recognized as kingpins among the legendary Cocaine Cowboys who turned South Florida into a violent hub of drug trafficking in the 1980s. The pair used their speedboats not only for ocean racing, but also to haul loads of cocaine smuggled from Colombian through the Caribbean to the shores of Miami.

In 1991, a federal indictment charged the two Falcon brothers and Magluta, a Miami High classmate of Willie Falcon, and several others with smuggling 75 tons of cocaine into the United States between 1978 and 1991. The partners, known as “The Boys,” grew up in Miami as part of the Cuban American community.

In 1996, Willie Falcon and Magluta were acquitted of the charges, thought it was later discovered they bought off witnesses and at least one jury member.

Magluta was retried and convicted of drug-related money laundering charges in 2002. He was sentenced to 205 years in prison, which was reduced to 195 years in 2006.

After his partner’s retrial, Willie Falcon struck a plea deal in 2003 with Miami federal prosecutors Pat Sullivan and Michael Davis on similar money laundering charges. Falcon, sentenced to 20 years in prison, is scheduled to be released in June. 

Monday, April 10, 2017

News & Notes

1. Go Heat!

2. Dave Ovalle used an emoji in the lede to this article about the Instagram trial before Judge Seitz, which resulted in a guilty verdict: "Jurors did not  Cuban Harry’s Instagram defense." You'll only see it in the online version as the paper can't print it. Hilarious.

3. “Tom Davis is morally corrupt. He’s a womanizer, a bad husband, and he stole money from a charity he ran.” That was prosecutor Dan Goldman in his closing argument about his star witness, who testified against William Walters in this fascinating insider trading case. From the NYT:

In the end, though, it was the power of the insider trading narrative, which is so appealing to jurors, that helped convict Mr. Walters, known as Billy, on multiple counts of securities and wire fraud. His trades resulted in gains and losses avoided of about $43 million, making it one of the largest prosecutions ever.

Among those whose names came up at trial was Phil Mickelson, a World Golf Hall of Fame member who repaid a little over $1 million to the Securities and Exchange Commission for trading on information he received from Mr. Walters about Dean Foods. Mr. Mickelson was not charged with any wrongdoing, although it came out during trial that he would avoid testifying by asserting his Fifth Amendment privilege against self-incrimination.

Another name that surfaced briefly was Carl C. Icahn, the activist investor who is an unpaid adviser to President Trump. Prosecutors sought permission during the trial to introduce evidence that Mr. Walters traded on information he received about Mr. Icahn’s investments to show a general proclivity to use confidential information, but that never came to pass.

The key witness in the case was Thomas C. Davis, a former chairman of the board of Dean Foods who also worked as a consultant in an activist campaign involving Darden Restaurants. He admitted giving inside information about both companies to Mr. Walters, but this was far from a simple case of an insider making a mistake by tipping a friend.

Mr. Walters helped arrange loans of nearly $1 million to Mr. Davis, who had financial problems and never repaid the full amount he owed. Mr. Davis said that he innocently gave Mr. Walters information at first, but over time became a “virtual conduit” about corporate developments.

Their relationship developed to the point, Mr. Davis testified, that Mr. Walters gave him a prepaid cellphone that was nicknamed the “Bat Phone” over which they communicated in code about companies, such as referring to Dean Foods as the Dallas Cowboys.

4. How Appealing has now been around for 15 years. It was the legal blog that really started it all. Howard Bashman reflects on it here:

Let me begin with the favorable ­developments that I have observed over the past 15 years in the ability to access and cover appellate court rulings and developments. Today it is very easy to visit the websites of each of the U.S. courts of appeals and access freely and in a timely manner the published and unpublished decisions that those courts have issued. Ten of those 12 federal appellate courts provide free access online to oral ­argument ­recordings, and soon that number will increase to 11, with the U.S. Court of Appeals for the Tenth Circuit remaining as the lone holdout. The Ninth Circuit live streams video of its oral arguments on YouTube, and our local federal appellate court, the Third Circuit, has recently begun posting the video of certain oral arguments online.
Fifteen years ago, none of the federal appellate courts was providing oral argument audio or video online. Advances in technology, including improvement in the speed with which one can access large files over the internet and a vast decrease in the cost of electronic storage capacity, have made it feasible to allow for the widespread availability of oral argument audio online. In fact, earlier this year, many thousands listened live online, over the radio, and via cable news channels to the Ninth Circuit's oral argument of Washington state's ­challenge to President Donald Trump's first executive order imposing travel restrictions on those seeking to enter the United States from various countries.
Similarly, now in 2017 we can access online from the U.S. Supreme Court's own website that court's opinions and orders only moments after they are released to the news media physically present at the court's building in Washington, D.C. Transcripts of U.S. Supreme Court oral arguments are available free of charge from that court's website the same day that the arguments occurred. And on Friday afternoons of oral argument weeks, the U.S. Supreme Court posts online the audio files of the cases orally argued that week.

Judges unite!

It's time for the judiciary to stand up because it looks like the executive branch is getting ready to unleash the War on Drugs, Part II.  From the Washington Post:
Sessions has yet to announce specific policy changes, but Cook’s new perch speaks volumes about where the Justice Department is headed.

Law enforcement officials say that Sessions and Cook are preparing a plan to prosecute more drug and gun cases and pursue mandatory minimum sentences. The two men are eager to bring back the national crime strategy of the 1980s and ’90s from the peak of the drug war, an approach that had fallen out of favor in recent years as minority communities grappled with the effects of mass incarceration.

Crime is near historic lows in the United States, but Sessions says that the spike in homicides in several cities, including Chicago, is a harbinger of a “dangerous new trend” in America that requires a tough response.

“Our nation needs to say clearly once again that using drugs is bad,” Sessions said to law enforcement officials in a speech in Richmond last month. “It will destroy your life.”

Advocates of criminal justice reform argue that Sessions and Cook are going in the wrong direction — back to a strategy that tore apart families and sent low-level drug offenders, disproportionately minority citizens, to prison for long sentences.

“They are throwing decades of improved techniques and technologies out the window in favor of a failed approach,” said Kevin Ring, president of Families Against Mandatory Minimums (FAMM).
When the War on Drugs started in the 80s, appellate judges mostly rubber-stamped sentences and convictions, and district courts gave prosecutors free reign. We've seen the opposite trend recently, with judges more likely to go below the guidelines and courts of appeals more likely (slightly) to wade into criminal issues. Some of this, of course, has to do with the changes in the law and the changes in administration. But it's in times like these where the judiciary is sorely needed to fulfill its role as a check on the executive. Let's see what happens.

Meantime, in our District, one fellow asked for the max sentence so he could get medical care in prison. This put Judge Cohn in a tricky situation. From Paula McMahon:
Though the judge and Brown said they did not want to reward Peak by giving him what he wanted, Brown said they were in a bind:

“For him to not get what he wants means he’d get less time in prison and that doesn’t seem right either.”

Judge Cohn said he believed Peak had other options, including Medicaid.

Brown said that would have “required a lot more effort than Mr. Peak is willing to put in.”

The judge made it very clear that he took a dim view of the whole escapade. He paused for several minutes before announcing his compromise decision.

Based on Peak’s long criminal history and his most recent offense, Cohn said he had decided to impose the maximum punishment recommended by sentencing guidelines: Five years and three months in federal prison.

But Peak wasn’t getting everything his way.

Judge Cohn routinely approves requests by prisoners that he recommend a specific prison. But he rejected Peak’s request that he recommend sending him back to the prison medical center in Missouri. The judge said it was up to the Bureau of Prisons to pick an appropriate placement — not Peak.

Thursday, April 06, 2017

News & Notes

1.  Akerman lawyer and Mignonette owner Ryan Roman (along with good guy Danny Serfer) had a lot of fun with Munch Madness, making it to the Finals against Flanigans. Here's the Herald piece:

Co-owners Ryan Roman and chef Danny Serfer decided to visit every Flanigan’s, from Kendall to Stuart, all in one day — a 13 1/2 hour road trip on April 1, and no, it wasn’t an April Fool’s joke. They posted a picture on Instagram and Twitter from each location, eating their way down the east coast of Florida. They chronicled their trip with the hash tags #YourBiggestFlans and #FlanClub.

2.  Here's a nice piece about Bankruptcy Judge Jay Cristol:
The life and career of A. Jay Cristol has been full of ups and downs, but that’s not surprising for a pilot with seven decades of flying experience.
In fact, to speak with Judge Cristol of the U.S. Bankruptcy Court for the Southern District of Florida, it’s clear there were a lot more ups than downs.
He’s not only been a Navy aviator and a jurist, but he’s also a scholar, teacher and philanthropist.

3.  Many of you sent me this piece by Judge Kopf about his observations about criminal defense lawyers (thanks for sending it!).  It's a fun read.  Many Miami CDLs won't like this one:
 If you became a criminal defense lawyer because you like Rolex watches, then you are an asshole.

Wednesday, April 05, 2017

RIP James C. Hill

Eleventh Circuit Judge James Hill passed away last Friday at 93.  Here's the 11th Circuit's memoriam page:
James Clinkscales Hill, a senior judge on the 11th Circuit Court of Appeals, died on March 31, 2017 in Stuart, FL. He was 93. Born in Darlington, SC on Jan. 8, 1924, Hill attended the University of South
Caro lina for three years before joining the Eighth Air Force in England during World War II, serving in the 390th Bomb Group as a cryptographer. After the war, he entered Emory University Law School,
graduating in 1948 and joining the Atlanta firm of Smythe Gambrell. He founded Hurt, Hill andRichardson in 1963 and worked primarily as a defense trial lawyer until he was appointed a federaldistrict judge in 1974 by President Richard Nixon. President Gerald Ford elevated Hill to what was then the Fifth Circuit in 1976. In 1946, he  married Mary Black of Simpsonville, SC, then a chemist with the Food and Drug Administration who went on to a career dancing and teaching ballet in Atlanta. Mary and Jim were active in Atlanta's cultural, legal, political and social scene for the next 45 years. Many weekends were spent in their houseboat on Lake Lanier. Every April meant a trip to the Masters. World travelers, they went far beyond the usual tourist destinations -
climbing up Kilimanjaro, rafting down the Grand Canyon, trekking in the Himalayas, cruising on the Yangtze, sailing along the Nile --visiting everycontinent but Antarctica. For some years, Jim flew his own Beechcraft Bonanza and then learned to scuba dive. A dedicated golfer who played Augusta National and St. Andrews, he recorded three holes
in-one. Two of those came at the Golf Club of Amelia Island, FL where Jim and Mary moved in 1991 after he took senior status on the court, maintaining chambers in Jacksonville and living on the ocean. Jim,
who celebrated his 80th birthday with a parachute jump, heard cases until after his 90th. Among his many honors was membership in the American College of Trial Lawyers. In Atlanta, Jim and Mary were
members of Wieuca Road and Northside Drive Baptist Churches, joining the Amelia Plantation Chapelwhen they moved there. Services will be held there on Saturday, April 8 at 11 a.m. Jim's ashes will be
placed in the Chapel's columbarium next to those of Mary who died in 2010. He is survived by his sister Jean Ballentine of Mt. Pleasant, SC; his sons, James C. Hill, Jr. (Dorothy) of Stuart, FL, and A. Michael Hill
(Patty Dann) of Baltimore, MD; seven grandchildren and six great -grandchildren. Memorial contributions may be made to the Judge James C. Hill scholarship at Emory University Law School.

Tuesday, April 04, 2017

Instagram trial

Oh, this is too fun. David Ovalle covers the Judge Seitz trial with lots of funny Instagram pictures and arguments:
"The heater would be a reference to the AK47 on the seat there,” U.S. Homeland Security Agent Kevin Selent testified.

Garcia’s trial began Tuesday with digital era evidence: prosecutors pored over his Instagram account, which they argue confirms he was a big-time doper, selling weed, Xanax and the potent cough syrup drink known as “lean,” “sizzurp” or “drank.”

Jurors will have to decide whether Garcia was doing real business or just image-building on social media – his lawyers insist the 26-year-old supposed music producer was more addict than kingpin, a wannabe hanging with celebrities.

“On Instagram, Harrison was a baller, if you will, taking photos with Chris Brown and Lil’ Wayne,” lawyer Percy Martinez told jurors in opening statements. “In real life, he was a big kid with kids of his own.”

Should Dems oppose Gorsuch

Judge Nancy Gertner says he's extreme.  But of all the picks that Trump could make, he's seems pretty moderate to me.  Here's Gertner:
He sounds so judicial. He talks about neutrality, raising plain vanilla issues about deference to the expertise of administrative agencies. It is boring, hardly likely to engender indignation. He says his decisions are required by the law — not affected by his own background. He is Judge Neil Gorsuch and he may soon be on the Supreme Court. Don’t be fooled. His approach is not neutral, not required by the law, and far out of the mainstream. Quite apart from social issues like abortion or gay rights, his approach could gut health and safety and antidiscrimination laws.

Monday, April 03, 2017

Back to Blogging

Sorry the blogging has been slow for the past 3 weeks.  My partner, Margot Moss, and I were in Frankfort, KY trying a 3-week federal fraud case.  But we're back, just in time for the Gorsuch vote.  But strangely, the ABA will have no role going forward in vetting judges. 

Meantime, closer to home, I checked the 11th Circuit for any new criminal opinions and we have just one published opinion from that time.  We did get an order granting en banc oral argument in U.S. v. Stein.  That was the case that Judge Jordan concurred (with Judge Pryor) and asked for en banc argument:
We are bound by our decision in Mays v. United States, 763 F.2d 1295, 1297 (11th Cir. 1985), a summary judgment case holding that self-serving statements in a taxpayer’s affidavit, without more, are insufficient to genuinely dispute the presumption that the government’s tax assessment is correct. I therefore reluctantly agree that we must affirm the district court’s grant of summary judgment.
I write separately, however, because the cases upon which Mays relies arise in the post-trial context, where the standard of review is much more deferential than at the summary judgment stage. The principle articulated in Mays has no place in a summary judgment posture. And I believe that the single precedent supporting Mays’ analytical leap, Heyman v. United States, 497 F.2d 121 (5th Cir. 1974), was itself wrongly decided.

Thursday, March 30, 2017

Pleading of the year before Judge Ungaro

Oh this Webzilla pleading "Six Ways Buzzfeed has misled the Court (Number Two will amaze you) ... And a picture of a Kitten" is good.  Very good:
"In a somewhat remarkable Motion to Dismiss, Plaintiffs Buzzfeed, Inc. (“Buzzfeed”) and Ben Smith (“Mr. Smith”) intimate that their ties to Florida are so sparse that, collectively, they can barely find Florida on a map and that, as a result, the present case should be dismissed for lack of jurisdiction or transferred to the Southern District of New York," Gubarev's lawyers wrote. 

Tuesday, March 28, 2017

News & Notes

1. The Miami Herald covers Willy Ferrer's move to H&K here.

2. It's a busy criminal justice week in the Supreme Court.  SCOTUSBlog summarizes them this way:
Lee v. United States, No. 16-327, to be argued March 28, 2017
Issue: Whether it is always irrational for a noncitizen defendant with longtime legal resident status and extended familial and business ties to the United States to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation.

Turner v. United States, No. 15-1503 to be argued March 29, 2017
Issue: Whether the petitioners' convictions must be set aside under Brady v. Maryland.

Honeycutt v. United States, No. 16-142 to be argued March 29, 2017
Issue: Whether 21 U.S.C. § 853(a)(1) mandates joint and several liability among co-conspirators for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy.
3.  Amy Howe covered the Lee argument here.  From the intro:
This morning the Supreme Court heard oral argument in the case of Jae Lee, a Korean immigrant who was charged with possession of ecstasy with intent to distribute it. Lee accepted a plea bargain after his attorney told him that he would not be deported. That advice turned out to be, as Justice Elena Kagan put it today, “supremely deficient”: In addition to the year and a day in prison to which he was sentenced, Lee’s conviction also carried with it the penalty of mandatory deportation. Lee asked a federal court to vacate his conviction, but the U.S. Court of Appeals for the 6th Circuit declined to do so. It reasoned that the evidence against Lee was so overwhelming that, even if he had received bad advice from his attorney that prompted him to plead guilty, Lee could not have suffered the kind of harm from that bad advice that would render his conviction unconstitutional. The justices today seemed more sympathetic to Lee than did the 6th Circuit, although it is not clear whether he can get the five votes needed to reverse the lower court’s ruling.