Friday, August 18, 2017

Congratulations to Judge Robert Scola for being named to the Defender Services Committee.

Congratulations to Judge Robert Scola for being named to the Defender Services Committee.



Defender Services Committee
Chief Justice John G. Roberts, Jr. appointed the following new members to the Defender Services Committee.  Their terms begin October 1, 2017.

New Members:
Hon. Micaela Alvarez (5th Circuit representative - TX-S)
Hon. Judith Ellen Levy (6th Circuit representative - MI-E)
Hon. Robert N. Scola, Jr. (11th Circuit representative - FL-S)
Hon. Ketanji Brown Jackson (DC Circuit representative - DC)
There is another Miami connection to the committee -- Judge Brown Jackson is a Miami native and went to Palmetto High.

Thursday, August 17, 2017

11th Circuit vs. then-Judge Gorsuch

The 11th Circuit, per Judge Dubina, issued an opinion today disagreeing with then-Judge Gorsuch in United States v. Games-Perez. 667 F.3d 1136, 1142 (10th Cir. 2012) (Gorsuch, J., concurring in judgment). The Gorsuch opinion was defendant friendly on the issue of mens rea. Unsurprisingly, the 11th Circuit opinion is not:
As Rehaif points out, the strongest argument in favor of requiring proof of mens rea with respect to the status element is laid out in then-Judge, now Justice Gorsuch’s concurrence in United States v. Games-Perez. 667 F.3d 1136, 1142 (10th Cir. 2012) (Gorsuch, J., concurring in judgment). Acknowledging that prior precedent dictated that the mens rea requirement does not apply to the status element, then-Judge Gorsuch concluded that the plain language of the statute compelled the opposite conclusion. Id. (“[Prior precedent] reads the word “knowingly” as leapfrogging over the very first § 922(g) element and touching down only at the second. This interpretation defies linguistic sense—and not a little grammatical gravity.”). In drawing such a conclusion, then-Judge Gorsuch noted that, “Congress gave us three elements in a particular order. And it makes no sense to read the word “knowingly” as so modest that it might blush in the face of the very first element only to regain its composure and reappear at the second.” Id. at 1144. He also pointed out that “[t]he Supreme Court has long held that courts should presum[e] a mens rea requirement attaches to each of the statutory elements that criminalize otherwise innocent conduct.” Id. at 1145 (quotations omitted) (alteration in original).
While then-Judge Gorsuch opined that § 922(g) “is a perfectly clear law as it is written, plain in its terms, straightforward in its application,” id., there is evidence to suggest otherwise. The fact that § 924(a)(2) only punishes defendants who “knowingly violate” § 922(g) begs the question “what does it mean to knowingly violate the statute?” Does the statute proscribe merely conduct, or both conduct and the surrounding circumstances that make the conduct a federal crime? See United States v. Langley, 62 F.3d 602, 613 (4th Cir. 1995) (en banc) (Phillips, J., concurring in part and dissenting in part) cert. denied, 516 U.S. 1083, 116 S. Ct. 797 (1996). While the defendant’s status might be inextricably tied to the violation, the actual violation occurs when the defendant knowingly possesses a firearm.

Tuesday, August 15, 2017

Interesting amicus briefs on cell site case (Carpenter) before SCOTUS

The Supreme Court will hear the cell site case (Carpenter) sometime this winter.  Amicus briefs in support of Carpenter were filed yesterday.  Here is one by EFF and NACDL,* among others.  The Cato Institute brief is also worth a read.

Perhaps the most interesting brief is this one filed by "tech companies."  Although they don't take a position on this specific case, which argues that the third party doctrine is no longer workable in this modern era
The Internet and Internet-connected devices have revolutionized nearly every facet of our lives. Ameri-cans rely daily on services made possible by networked technologies—from email, smartphones, and web-based social media the Court has already encountered to new and evolving products and applications in the “Internet of Things,” such as smart-home devices that can be used to control room temperature and lighting, order groceries, and perform a multitude of other tasks. These devices and services not only confer immense value on users and society, but in many instances are considered practical necessities of modern life.

Using these technologies often involves transmit-ting highly personal information through the networks and applications of digital service providers. That in-cludes transmission of metadata—
i.e., data about da-ta—generated by automated processes that are part of the background operation of digital devices and applica-tions. Such transmissions are inherent features of how the Internet and networked devices work. Short of forgoing all use of digital technologies, they are una-voidable. And this transmission of data will only grow as digital technologies continue to develop and become more integrated into our lives. Because the data that is transmitted can reveal a wealth of detail about people’s personal lives, however, users of digital technologies reasonably expect to retain significant privacy in that data, notwithstanding that technology companies may use or share the data in various ways to provide and improve their services for their customers. Fourth Amendment doctrine must adapt to this new reality. Although amici do not take a position on the outcome of this case, they believe the Court should refine the application of certain Fourth Amendment doctrines to ensure that the law realistically engages with Internet-based technologies and with people’s ex-pectations of privacy in their digital data. Doing so would reflect this Court’s consistent recognition that Fourth Amendment protections, governed as they are by reasonable expectations of privacy, must respond to changes in technology that implicate privacy. Indeed, in declining to extend the search-incident-to-arrest ex-ception to searches of cell phones in Riley v. California, 134 S. Ct. 2473 (2014), this Court has already signaled that digital information deserves special consideration, largely because Internet-connected devices such as smartphones “are not just another technological con-venience,” but are necessary to participate in the mod-ern world, and “hold for many Americans ‘the privacies of life.’”
Id.at 2494-2495.

In the digital context, inflexible doctrines that cat-egorically foreclose any protection for data automatical-ly generated by ordinary digital activity—or that will be generated by the yet-to-be-conceived technologies of tomorrow—are not sustainable. In particular, the analog-era notion that transmission of data to a third party is necessarily “voluntary” conduct that precludes Fourth Amendment protection should not apply in a world where devices and applications constantly transmit data to third parties by dint of their mere op-eration. No constitutional doctrine should presume that consumers assume the risk of warrantless government surveillance simply by using technologies that are beneficial and increasingly integrated into modern life. Similarly, the fact that certain digitally transmitted information might have been traditionally classified as “non-content” should not unconditionally bar Fourth Amendment protection, as this data can of-ten be highly revealing of the intimate details of a us-er’s life. Rather than adhere to rigid Fourth Amendment “on/off” switches developed in the analog context, courts should take a more flexible approach that realis-tically reflects the privacy people expect in today’s dig-ital environment. Consistent with the general reasona-ble-expectation-of-privacy inquiry, courts should focus on the sensitivity of the data at issue and the circumstances of its transmission to third parties. That approach would better reflect the realities of today’s digital technologies and accommodate the technologies of the future.

*Full disclosure -- I am counsel for NACDL in this brief.

Monday, August 14, 2017

SDFLA seeks two Magistrate Judges

The Southern District of Florida is seeking two Magistrate Judges -- one for West Palm Beach and one for Miami.  Here's the court announcement:

The U.S. District Court for the Southern District of Florida anticipates appointing two full-time Magistrate Judges in the coming months, one for the Miami Division and one for the West Palm Beach Division.  A full public notice for the Miami position is posted on the Courts Internet website at: www.flsd.uscourts.gov.  Application forms are also available on the website. The application deadline for the Miami position is September 11, 2017 at 5:00 p.m.  Final approval to fill the West Palm Beach position is pending at this time.  Once approval is received, a full public notice will be posted on the website and the application deadline for that position will be set.  Those interested in the West Palm Beach position should continue to check the Court's website for updates.    
In addition, the Court is seeking comment on the reappointment of Magistrate Judge Lurana S. Snow in Fort Lauderdale and Magistrate Judge Jonathan Goodman in Miami.  Information regarding the reappointment process and how to submit comments may found on the Court's website:  www.flsd.uscourts.gov.  The deadline for submitting comments is September 11, 2017 at 5:00 p.m.
Interested persons should consult the Court's website for further details.  The Clerk of Court may also be contacted for additional information or forms at (305) 523-5001 or Court-Admin_flsd@flsd.uscourts.gov.

Friday, August 11, 2017

11th Circuit, per Judge Jordan, quotes Carly Rae Jepsen

The 11th Circuit, in an opinion by Judge Jordan, quoted Carly Rae Jepsen's "Call Me Maybe":
According to the district court, no reasonable jury could find that Ms.Schweitzer partially revoked her consent to receive automated calls on October 13 because she did not specify what “the morning” and “during the work day” meant. A jury could certainly find that Ms. Schweitzer—like the protagonist of a recent hit song—was too equivocal, cf. Carly Rae Jepsen, Call Me Maybe, on Curiosity (Universal Music Canada 2012), but we do not think that the lack of specificity is fatal to her claim of partial revocation.
Judge Rosenbaum's recent GoT's reference might be a little hipper, but I love that Judge Jordan listens to Call Me Maybe!

hat tip:  E.S.

Jeff Sessions is pushing for "Hang 'Um High" Henry Hudson to be on Sentencing Commission

Attorney General Jeff Sessions is pushing for "Hang 'Um High" Henry Hudson to be on the Sentencing Commission. I kid you not. Professor Berman has more at his blog here. And this, from the WSJ article:

Attorney General Jeff Sessions is urging the White House to nominate a federal judge and tough-on-crime ex-prosecutor once nicknamed “Hang ’Um High” Henry Hudson to an independent, bipartisan panel that issues sentencing guidelines. Mr. Sessions’ recommendation for one of three openings on the U.S. Sentencing Commission, confirmed by people familiar with the process, reflects the Justice Department’s broader crackdown on violent crime, including the reversal of several Obama -era policies.

The department is urging the commission to toughen sentences for certain violent criminals, drug offenders, illegal immigrant smugglers and so-called career offenders. In its annual report to the commission, the department asked it to preserve the long, mandatory-minimum sentences that supporters say help fight crime but critics say inflate prison costs and disproportionately hurt minority communities without improving public safety.

President Donald Trump, who campaigned on a promise to “restore law and order,” has the authority but is under no requirement to fill two Republican vacancies and one Democratic spot on the seven-seat commission.

Judge Hudson, who has acknowledged his colorful nickname, was a candidate for FBI director earlier this year. He is best known for sending pro-football quarterback Michael Vick to prison in 2007 for running a dogfighting ring and for finding unconstitutional a key provision of the Affordable Care Act in 2010.

“I’m excited about the opportunity to serve on the commission,” Judge Hudson, who serves in the U.S. District Court in Richmond, Va., said in a telephone interview Thursday. “I’d like to make sure the guidelines are fair and consider every possible factor in a case.”

Mr. Hudson would be the first new commission member tapped by Mr. Trump, who has reappointed two members previously nominated by former President Barack Obama. A White House official declined to discuss Mr. Hudson’s prospects, but said the administration is committed to filling all federal vacancies....

Mr. Hudson would be expected to shake up the low-profile but powerful panel, which has produced research on the prison population, recidivism and sentencing that advocates have cited in pressing for an overhaul of the criminal justice system.

In its most consequential decision in recent years, the commission in 2014 rolled back penalties for most federal drug offenses, allowing more than 30,000 inmates to seek reduced sentences and helping to trim the federal prison population for the first time in decades. That trend is expected to reverse under Mr. Sessions, a former U.S. attorney and senator from Alabama. After a string of major overhauls of Obama administration policies that sought to curb potential abuses by police and prosecutors Mr. Sessions is now seeking to make his mark on the sentencing commission.

“That is the place where the biggest sentencing reforms have been made in Washington, in that nothing the White House or Congress has done comes close,” said Kevin Ring, president of Families Against Mandatory Minimums, which favors lighter sentencing. “This little agency is a big deal and Sessions wants to exercise his influence, which is shaping up into a fight.”

Among Mr. Sessions’ recommendations is a proposal that the Sentencing Commission reduce the quantity of fentanyl, an opioid, that triggers a sentence of 10 to 16 months for possession with intent to sell. Stiffer penalties weren’t one of a slate of recent proposals made by the president’s task force on opioids, which included expanding treatment through the Medicaid program....

Mr. Hudson declined to comment on his own sentencing of some defendants to decadeslong mandatory-minimum sentences. “I’m anxious to hear the debate and hear everyone’s viewpoint,” he said. “I won’t come to the sentencing commission with any preconceived notions.”

In a 2007 memoir titled “Quest for Justice,” Mr. Hudson recalled that police in Arlington, Va., wore campaign buttons that said “I voted for “Hang ’Em High Henry” during his re-election campaign as a state prosecutor in the early 1980s. “I didn’t reject that nickname, nor did I solicit it,” he said Thursday. “My record as a judge speaks for itself.”

As a state prosecutor in liberal-leaning northern Virginia, Mr. Hudson shut down adult bookstores and massage parlors. That led to his chairmanship of former President Ronald Reagan’s national commission on pornography, which linked porn to violence. He was director of the U.S. Marshals Service during the 1992 deadly siege at Ruby Ridge, Idaho.

He also stirred controversy for prosecuting a mentally disabled man for the murder of a woman in 1984. David Vasquez served five years in prison before DNA and other evidence exonerated him. “I certainly wish him the best and regret what happened,” Mr. Hudson wrote in his memoir, saying he remained convinced of his involvement in the murder. “However, I offer no apologies.”

Tuesday, August 08, 2017

“In defending this nation against the threat of terrorism it is neither necessary nor proper for our government to abandon the bedrock principles upon which this nation was founded. All that is sacred in our national life is secured by the promise that this is a nation of laws and not of men,” the defense wrote. “Through its illegal conduct, the government has forfeited its right to prosecute Mr. Hubbard … [and he] respectfully requests that this court dismiss the indictment against him for the government’s outrageous conduct.”

That was AFPDs Vanessa Chen and Anthony Natale in their motion to dismiss terrorism charges for outrageous government conduct. Paula McMahon is on it here:

Though many of the details have been shielded from public view at the request of prosecutors, several sources told the Sun Sentinel that the informant in question is Mohammed Agbareia, 51, of Palm Beach County. Agbareia is a convicted fraudster who was arrested in June on new federal fraud charges.
***
Agbareia was convicted of operating a “stranded traveler” fraud in 2006 for repeatedly tricking people into sending him money after claiming he lost his wallet or tickets. He pleaded guilty, got a break on his punishment and was released early from federal prison in late 2006 after serving about half of a two-year term.

Prosecutors told a judge earlier this year that they believe Agbareia went back to committing fraud very soon after he was released from prison — and while he was providing undercover help to the FBI on the Hubbard case.

Agbareia, a Palestinian citizen from Israel who has no legal immigration status in the U.S., admitted to FBI agents on several occasions that he was still committing crimes and continued doing so “despite numerous warnings to cease,” prosecutors said in court in June.

The FBI called him a “national security asset” and praised his “usefulness as a provider of intelligence to the FBI” and work as an “informer” in court records filed in 2009.

The most recent criminal charges against Agbareia allege that he resumed his “stranded traveler” fraud in 2007 and continued it until the day before he was arrested on June 21, prosecutors told a judge after his arrest.

Agbareia is jailed and has pleaded not guilty to six wire fraud charges spanning the period from 2007 to 2017. Investigators said he preyed on and defrauded Muslim people, mosques and Islamic groups on at least 200 occasions — involving about $300,000 since 2011. The fraud charges carry a maximum penalty of 20 years in federal prison.

Monday, August 07, 2017

Does this news about the SDNY's potential U.S. Attorney say anything about SDFLA?

Does this news about the SDNY's potential U.S. Attorney say anything about SDFLA?

According to Buzzfeed, Rudy Giuliani's law partner is being considered for U.S. Attorney for the Southern District of New York:

The White House is considering Geoffrey Berman, a New Jersey attorney and one of Rudolph Giuliani’s law partners, to lead the US attorney’s office in Manhattan — one of the most high-profile federal law enforcement jobs in the country.
Berman’s name was included as part of a package of proposed candidates for New York judicial and US attorney vacancies sent by the White House in mid-July to New York’s Democratic senators, according to a source familiar with the process. The list offers an early glimpse at the Trump administration’s strategy for filling vacancies in states with two Democratic senators.
Berman, who did not immediately return a request for comment, was the only name that the White House proposed for US attorney in the Southern District of New York. In contrast, the administration sent multiple names for other positions, including for federal judgeships and US attorney for the Eastern District of New York. A second source familiar with the process said that the list was intended to spur a dialogue with New York’s senators — Senate Minority Leader Chuck Schumer and Sen. Kirsten Gillibrand — about a compromise package of nominees.
The White House historically defers to home state senators to recommend US attorney candidates, but there can be more tension when there’s a difference in party. Senators can hold up judicial and US attorney nominees they don’t approve of via a system known as the “blue slip process,” although it’s rarely used for US attorneys. The majority of US attorney nominees announced by the Trump administration so far are from states with two Republican senators.
Negotiating a package of New York nominees would spare the White House a fight with Schumer, who as minority leader has repeatedly sparred with President Trump and was critical of his decision to fire former FBI director James Comey.
***
Berman, who co-leads the New Jersey office of the law firm Greenberg Traurig, would bring Justice Department experience to the job, having served as an assistant US attorney in the Southern District of New York from 1990 to 1994, according to his law firm bio online. In May, multiple news outlets reported that he was under consideration for the New Jersey US attorney position. The Philadelphia Inquirer reported at the time that New Jersey Gov. Chris Christie, who previously served as US attorney, was backing a different lawyer, Craig Carpenito, for the position; no nominee has been announced yet.

If Rudy is promoting his law partner Berman, perhaps he will also be pushing his good friend Jon Sale (one of the finalists) for this District. Sale would be an excellent choice. He's smart, well-liked, and has worked on both sides of the v.

Friday, August 04, 2017

Judge William Pryor on Justice Thomas

Judge William Pryor, a Supreme Court shortlister, recently wrote an essay In the Yale Law Journal on Justice Clarence Thomas and originalism. Here's the conclusion paragraph:

By leading, joining, and occasionally challenging Justice Scalia, Justice Thomas, over the last quarter of a century, has accomplished what no original- ist by himself could: through principled adjudication, proving that the legiti- macy of originalism can be an objective methodology for adjudication. His con- tributions have increased respect for originalism exponentially and made its vocabulary a staple of constitutional adjudication. And for those contributions, all originalists owe him a debt of gratitude.

---

Also, a reminder for those who knew Richard Strafer, his service will be this Sunday, August 6, 10am at Mt. Nebo Kendall, 5900 SW 77th Avenue, Miami, FL 33143

Wednesday, August 02, 2017

Kevin Newsom confirmed to 11th Circuit

Congrats to my law school classmate Kevin Newsom on being confirmed to the 11th Circuit. The vote was 66-31, which is pretty incredible in this environment. He's very smart and well-qualified.

Tuesday, August 01, 2017

19 Justices?

19 Justices?  That's what Judge Posner is calling for:

"Mediocre and highly politicized," was the opinion the 78-year-old jurist gave of the justices who sit in D.C. during a recent talk at the University of Chicago.

"We have a very crappy judicial system."

Posner — the most highly cited legal scholar of the 20th century, according to the Journal of Legal Studies — repeated his complaint that politicians are more concerned with appointing "tokens" such as women or Hispanic justices, and with would-be justices' politics than they are with merit.

"If you had 19 members you would inevitably have more diversity," he told Prof. Luigi Zingales during the talk. Posner, who was appointed by President Ronald Reagan, said no president since Herbert Hoover has appointed a Supreme Court justice who "was not in either his personal or his political interest."

"The modern presidents don't think that way, but if the Supreme Court was much larger, they might say, 'Well, OK ... we have 19 justices, 12 of them are highly politicized, but we have these extra 7 seats, so we'll appoint them on the basis of quality,' and that would make a big difference."

Meantime, President Trump may be losing at a bunch of things, but he is winning on judges:
The White House has announced more than two dozen lower court nominees to date, and the Senate Judiciary Committee has been holding hearings and sending nominees to the full Senate for a vote at a regular clip.

Just Monday, after the news broke that White House communications director Anthony Scaramucci was ousted on the 11th day of his tenure, the Senate took a key procedural vote on a federal appeals court nominee out of Alabama, Kevin Newsom. On July 20 — as the White House dealt with fallout from an interview published the night before in which President Trump criticized Attorney General Jeff Sessions — the Senate confirmed Kentucky lawyer John Bush to the US Court of Appeals for the Sixth Circuit, notwithstanding a coordinated, well-funded opposition campaign by groups on the left.

“It’s just been a win on all fronts,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, which supports conservative court nominees.

The administration’s success with judges is about more than the fact that Republicans control the Senate. Lower courts remain mostly of regional interest, despite the fact that federal judges have lifetime tenure and issue rulings that can affect the entire country. Senators defer to their colleagues’ preferred local picks. There is little incentive to interfere, even if, as was true with John Bush, Republicans have concerns about a nominee’s record.

There’s also the fact that Republicans historically have been more organized on judges than Democrats, said David Fontana, a professor at George Washington University Law School who follows judicial nominations. There are numerous interest groups and political factions around issues like health care, he said, but there is a tight-knit community of conservative lawyers who foster and promote court nominees during Republican administrations.