Yikes

From the yikes department, here's the introductory paragraph from Chief Judge Carnes in Winn-Dixie v. Dolgencorp:

After we have remanded a case with specific instructions, attorneys rarely attempt to have the district court defy our mandate. And even if they try it, a district court is seldom misled into that kind of error by them. This is one of those rare cases where the attorneys representing one side successfully urged the district court to act contrary to our mandate. Of course, we reverse that part of its judgment.

More:

Needless to say (or maybe not), a district court cannot amend, alter, or refuse to apply an appellate court’s mandate simply because an attorney persuades the court that the decision giving rise to the mandate is wrong, misguided, or unjust. A district court can, of course, wax eloquent about how wrong the appellate court is, but after the waxing wanes the mandate must be followed.

***

There is no imprecision in those instructions, no room for evasive interpretation, in short, there is no legitimate basis for applying what we said only to a subset of the 41 Florida stores. We don’t know what else we could have said other than, perhaps, “and we really mean it.” Well, we really did mean it. And we still do.

The district court did not do what we instructed it to do because it was led astray by the defendants’ attorneys.

Rant: Bond pending appeal

Rant: Bond pending appeal

Everyone knows the dirty little secret in federal criminal cases -- everything is stacked against the criminal defendant.  That's why so many defendants plead.  Even innocent defendants.  It takes a ton of courage to fight the government because the stakes are impossibly high.

One tactic the government uses against criminal defendants is opposing reasonable bail.  In many cases, the government tries to keep defendants behind bars during pretrial litigation.  But lately, judges have been much better about releasing white collar defendants on bond during pretrial litigation.  This trend has not reached appellate bonds though.

If a defendant is convicted at trial, it is nearly impossible to get an appellate bond -- even for white collar defendants who are not a risk of flight or danger to the community.  This is maddening because defendants who end up prevailing in the court of appeals end up serving time unnecessarily.  And it's not because the law is bad... it's just because there is a culture of denying such motions. 

Yesterday, our firm had a sweet appellate win in the 5th Circuit (we were not the trial lawyers) for a 68-year old doctor who was improperly and unjustly convicted of medicare fraud (here's the opinion).  The conservative court of appeals found that the evidence against her was insufficient.  But her motion for bond pending appeal was denied, so the doctor sat in prison for almost 10 months waiting for the appeal to be decided.  Even though that is relatively quick, she will never get those 10 months back.  In a recent 11th Circuit case, the poor client had to spend 3 years in prison before being vindicated in a published order saying that she was actually innocent. Now, that woman is seeking to be compensated for her time in prison.

There is nothing more sacred than our liberty.  If a person has the courage to stand up to the government and fight the charges, and if they are not a danger to the community or a risk of flight, then courts should be willing to say that they have "close" issues on appeal (which is a pretty low standard) and grant them bond pending appeal.  I'm sure that there are a handful of cases over time where someone has fled on an appellate bond, but I have never seen such a case. The harm in denying such a bond is irreversible if the defendant wins on appeal.  If she loses, then the government has lost nothing.

I'm happy to debate any prosecutor or judge on this issue.  Let me know and we will set up a back and forth on the blog.

Thank you Florida Supreme Court!

Thank you Florida Supreme Court!

That's what two different 11th Circuit panels said last week. Pruco Life Ins. Co v. Wells Fargo Bank, N.A. and Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co. are per curiam decisions returning to the Eleventh Circuit after the Florida Supreme Court answered the certified questions in each case. In both per curiam decisions, the panel explicitly thanked the Florida Supreme Court.

From Pruco: We thank the Florida Supreme Court for its guidance. In light of its response, we AFFIRM the entry of judgment for U.S. Bank as to the Guild policy, Appeal No. 13-15859, District Court No. 1:12-cv-24441-FAM.

From Altman: Given the benefit of this answer to our certified question, we reverse the grant of summary judgment in favor of C&F, vacate the final judgment, and remand this case to the district court for further proceedings. We thank the Florida Supreme Court for accepting, and answering, the certified question.

Thanks to the tipster for this interesting find.  According to him, this is a pretty rare occurrence, but it happened twice in one week before in our appellate court.

CNN covers Key West sting

UPDATE--And in other news, here's some shameless promotion for my daughter who is performing in a professional show, Ride, tonight (Thursday) at 7:30 (and Saturday at 7:30) at Area Stage on US1 in South Miami (the old Riviera movie theatre). Come check it out!



***

CNN covers the Key West sting to "bring down an ISIS-supporting weightlifter" here. The pepper eating seems weird:

Harlem Suarez grabbed a jalapeno pepper from his plate and took a big bite. The heavily tattooed Cuban-American crepe-maker was eating dinner with two new friends, Shariff and Mohammed, at a Denny's in Key West on a warm June night. Suarez wanted to impress them but they laughed instead, joking in Arabic that he seemed suicidal.
"You've got nothing to prove, man," said Mohammed, as Suarez's eyes welled up with tears from the heat of the pepper.
Suarez did have something to prove. He wanted to convince Mohammed and Shariff that he was a devout jihadist with a grand plan to rain hell on Key West.
Never mind that Suarez had tried and failed repeatedly to make contact with ISIS recruiters abroad, according to court documents. He spent most of his downtime lifting weights at the gym and partying at kitschy bars on Duval Street.

Before long he'd be one of only two Americans sentenced to life in prison by the US government for plotting terror attacks on behalf of ISIS.
***
One Facebook user accepted Suarez's friend request because he saw they had a mutual friend. He was alarmed by the images and rhetoric on Suarez's page, so he notified the Palm Beach County Sheriff's Office and gave screen grabs to the FBI. Within weeks of the initial tip from the Facebook friend, the FBI had a surveillance team following Suarez around the clock. At least 20 agents surveilled Suarez each day and sometimes 10 to 20 extra FBI employees were brought in to help keep tabs on him, according to court testimony. Mohammed, one of Suarez's dining companions at Denny's, was a paid FBI informant who specialized in terror cases. Shariff was an undercover agent posing as an ISIS supporter who knew a bomb-maker. They were both wired for sound and video as they joked about spicy peppers at the chain restaurant that calls itself "America's diner," famed for its big breakfasts and epic menu.
Mohammed said, "Eating those jalapenos is a struggle, it's a jihad."
As the three laughed, Shariff praised Suarez, "He said he didn't know any Arabic (but) he knows 'jihad.' "
Suarez didn't know Arabic. Nor did he recognize the name of ISIS' leader, Abu Bakr al-Baghdadi. Mohammed taught him about al-Baghdadi and introduced him to the terror group's handbook, "How to Survive in the West." Mohammed told Suarez he had camera gear and said they should make a recruiting video. The two wrote the script at Burger King and filmed it in a roach-laden room at a Knights Inn in Florida City.

SDFLA is #1!!

We’re #1! The Southern District of Florida is #1 ...

... in health care fraud. According to a just-released report by the Sentencing Commission, our District had 131 health care fraud defendants in 2016. The next closest district, the Eastern District of Michigan, had 40 defendants.


The Top Five Districts Health Care Fraud Offenders FY 2016
Southern District of Florida (N=131)
Eastern District of Michigan (N=40)
Central District of California (N=27)
District of Puerto Rico (N=23)
Southern District of Texas (N=20)

News & Notes

News & Notes

1. The Supreme Court is still open for business, and it was issuing opinions and cert grants this morning.

2. Is Chief Justice Roberts moving towards the center? This BuzzFeed article suggests that he is.

3. The 11th Circuit tossed this lawsuit by a Dolphins' coach against the NFL and Ted Wells.

4. Justice Ginsburg says #MeToo.

Justice Alex Acosta?

Justice Alex Acosta?

Politico has an interesting article this morning that Labor Secretary Alex Acosta may be in line for a federal judgeship. The questions is whether it would be on the 11th Circuit or the Supreme Court:

Business representatives now see these ambitions as possibly driving Acosta’s risk-averse approach to the DOL, even as several of his executive branch counterparts are moving to aggressively disrupt other agencies. A stalled Senate confirmation process for department leadership posts below Acosta has also contributed to the pace.

Whether the White House actually has Acosta on its radar to fill a potential Supreme Court or appellate vacancy is unclear. But Bloomberg Law interviews with those who know the secretary and a review of his public comments dating back to the 1990s demonstrate Acosta’s undeniable passion for the judicial system. What’s more, he is close friends with Leonard Leo, the Federalist Society vice president credited for orchestrating the selections of the last three Republican-appointed Supreme Court justices.

Acosta is “certainly somebody who has a lot of credentials that you would look for in appointing judges,” Ronald Cass, a past chair of two Federalist Society practice groups and former member of the American Bar Association committee that screens judicial appointments, told Bloomberg Law. “He’s got a broad academic background, a broad legal background, he’s somebody who is clearly bright and thoughtful.”

Acosta would make an excellent Judge. I hope this story has legs.

News & Notes

News & Notes

1. Marc Caputo is saying that its Judge Ariana Fajardo's job to lose for U.S. Attorney in the Southern District of Florida:

A Miami family-law judge has taken a major step closer to being the next U.S. Attorney in South Florida now that her leading rival for the post has taken a job with a top Florida lobbying firm with close ties to President Donald Trump.

The behind-the-scenes contest for the job as top prosecutor in the district that encompasses Trump’s so-called “Winter White House” of Mar-a-Lago has raged for about a year and appeared to come down to Miami-Dade Judge Ariana Fajardo Orshan and former state Rep. José Félix Díaz, a former contestant on Trump’s show, “The Apprentice.”
***
Fajardo, backed by both Sen. Marco Rubio and Gov. Rick Scott, was considered for the post after the Trump administration, Rubio and the Justice Department deadlocked on other choices for the post. Soon after her name surfaced, insiders considered her the front-runner for the job.

“With Díaz out, it unclogs the drain,” said one source familiar with the White House’s decision-making over the U.S. attorney post.

Said another: “As long as Judge Fajardo passes her background checks, she should be the next U.S. attorney in South Florida.”

2. Mickey Munday was convicted today. And immediately remanded. No more Cocaine Cowboy interviews... (prior coverage here).

Judge Altonaga orders plaintiff to “certif[y] the pleading has been reviewed and approved by a teacher of the English language — such certification is to be included in the notice of filing the second amended complaint.”

Judge Altonaga orders plaintiff to “certif[y] the pleading has been reviewed and approved by a teacher of the English language — such certification is to be included in the notice of filing the second amended complaint.” (See order here).

OOOOF!

From Judge Altonaga's order:

The Court notes Plaintiff’s proposed Second Amended Complaint is replete with grammatical errors, including improper punctuation, misspelling of words, incorrect conjugation of verbs, and lack of apostrophes when required for possessive adjectives; sentence fragments; and nonsensical sentences. The proposed Second Amended Complaint is also an eyesore, with its formatting errors and spaces.

This caught the eye of Above The Law, which first reported on Judge Altonaga's order here.

That blog reports that the case was voluntarily dismissed shortly thereafter.

“This ruling sentences this highly intelligent, deeply lonely, and distressed ____ to a lifetime of physical and psychological harm, confined to a tiny concrete cell without family, friends, or freedom,”

“This ruling sentences this highly intelligent, deeply lonely, and distressed ____ to a lifetime of physical and psychological harm, confined to a tiny concrete cell without family, friends, or freedom.”

That was not a quote about some criminal defense lawyer's client.  The missing word was orca and the quote was by Jared Goodman, director of animal law at the PETA Foundation, after the 11th Circuit ruled against PETA in its quest to release Lolita.

From Reuters:

By a 3-0 vote, the 11th U.S. Circuit Court of Appeals in Miami rejected claims by People for the Ethical Treatment of Animals (PETA) and others that keeping Lolita in captivity violated the federal Endangered Species Act.

“The evidence, construed in the light most favorable to PETA, does not support the conclusion that the conditions of her captivity pose a threat of serious harm to Lolita,” the court said.

Friday’s decision upheld a lower court ruling. The lawsuit began in July 2015, two months after the National Marine Fisheries Service recognized whales such as Lolita as an endangered species.

***

The appeals court ruled nine days after Bob Barker, the former host of “The Price Is Right” game show and animal rights advocate, called for Lolita’s release in a video posted on PETA’s Twitter account.

Here's the opinion.

Chief Justice raises Ferris Bueller (incorrectly)

Well, the good news is that the Chief Justice of the United States made a Ferris Bueller reference during oral argument. The bad news is that he got it wrong!

The oral argument was in Collins v. Virginia, addressing the question of whether the Fourth Amendment’s “automobile exception” permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Roberts question was about the mobility of cars:

“I mean, if you have an automobile in the house, which is not, you know, Jay Leno’s house, right, where he’s got dozens of rare cars, or the Porsche in ‘Ferris Bueller,’ he says. “Are you saying that you … can just go in because they got it in there somehow and they can get it out?”

 Awesome stuff!  Except it wasn't a Porsche!! It was a Ferrari...

This shows the power of amicus briefs, which raised the Bueller hypo and even used a picture:

How much should a cop have to pay for illegally spying on you?

How much should a cop have to pay for illegally spying on you?

Yesterday, a jury said $15,000. Here’s Paula McMahon:

A South Florida police officer owes $15,000 in damages to a Broward County couple she illegally snooped on 167 times in two years, jurors decided Tuesday.

Pembroke Pines Police Officer Melodie Carpio admitted she broke the law and used her job to look up information about the couple — her boyfriend’s ex-wife and her new husband — on confidential law enforcement databases.

Carpio, a 41-year-old patrol officer, is personally liable to pay the civil judgment to Cindy Thibault and Claude Letourneau. She will also owe significantly more in legal fees to the attorneys for the victims and her defense.

The couple smiled and looked relieved when jurors announced their verdict after a one-day trial in federal court in Miami. They declined to comment.

AG Sessions names Ben Greenberg U.S. Attorney (interim)

AG Sessions has named Ben Greenberg interim U.S. Attorney. Greenberg has been serving as acting U.S. Attorney since Willie Ferrer stepped down. The Vacancies Reform Act allowed Greenberg to serve as Acting USA for a period of 300 days, which ended on December 28. Once that period ended, the AG had the statutory authority to name an interim USA for a period of 120 days (although it’s "interim", unlike the term "acting", that word is not part of the title). After this 120 day period, if there is no nominee, the AG will ask the court to appoint someone, which is usually the same person he appointed as interim USA but doesn't have to be. Greenberg is also up for district judge and if he gets it, there will be a different acting U.S. Attorney.

Here’s the press release from December 28:

Attorney General Jeff Sessions appointed Benjamin G. Greenberg as the United States Attorney for the Southern District of Florida on December 29, 2017. Prior to this appointment, Mr. Greenberg served as the Acting United States Attorney beginning in March 2017 and has been the First Assistant United States Attorney since 2010. He previously held a number of leadership positions in the Office, including serving as the first Chief of the newly created Special Prosecutions Section, where he oversaw the Office’s efforts to combat violent crime, child exploitation, and human trafficking. In 2009, Mr. Greenberg became Chief of the Narcotics Section. In that capacity, he supervised the prosecution of international and domestic narcotics and money laundering cases, as well as violations of the Bank Secrecy Act.

Mr. Greenberg joined the United States Attorney’s Office in 2000 and has handled a wide variety of complex, challenging, and high-profile white collar, violent crime, narcotics, and organized crime cases. He was the lead prosecutor in a series of significant cases against various Israeli organized crime figures extradited to the United States. In recognition of these efforts, Mr. Greenberg received a national award from the Organized Crime Drug Enforcement Task Force. Mr. Greenberg was also part of the trial team that prosecuted the President and Chief Executive Officer of a well-known financial institution for securities and bank fraud arising from a complex international accounting fraud scheme. The Daily Business Review recognized Mr. Greenberg as one of the community’s most effective lawyers for his work on this case.

Mr. Greenberg served as a law clerk to the Honorable Jon Phipps McCalla in Memphis, Tennessee after graduating from the Georgetown University Law Center. Prior to law school, Mr. Greenberg received a fellowship from the Rotary Foundation to study in Jerusalem, Israel after graduating with honors from the University of Pennsylvania.

Judge Scola rules that some of the Mickey Munday 404(b) material will come in (UPDATED — but prosecution not permitted to reference movie Cocaine Cowboys).

UPDATE — NBC6 also covers the ruling here:

A federal judge Friday gave prosecutors an opportunity to use some of a former cocaine smuggler’s words against him in a new mail fraud conspiracy case – but they must avoid using at least one phrase in front of the jury: cocaine cowboy.
In a series of pretrial rulings, US District Judge Robert N. Scola Jr. said the government could try to introduce some of the comments Michael “Mickey” Munday made after his 1999 release from prison about his long-ago days as a pilot and smuggler during South Florida’s cocaine cowboy era – but “without bringing out ‘cocaine cowboys.’”
***“The judge allowed, for example, a 28-second clip from Rakontur Films’2006 documentary “Cocaine Cowboys,” in which Munday talks about using tow trucks as a cover to avoid law enforcement – but, the judge added, the government “does not have to tell the jury this is from the movie ‘Cocaine Cowboys.’ …. We can sanitize out ‘Cocaine Cowboys.’””

Sorry Billy & Alfred.

Original post — Judge Scola has ruled that some of the Mickey Munday 404(b) material will come in (background here). From the Herald (which picked up the story after the blog broke it):

If they’re picked for the jury in a new federal case against Munday, they can see some of that in trial, too — but prosecutors won’t get to shine a spotlight on the Cocaine Cowboys documentary that turned the ex-pilot from Miami into a media celebrity.
That would be too prejudicial, U.S. Judge Robert Scola ruled on Friday, noting that Munday isn’t facing drug charges this time around. Prosecutors have charged him in connection with an insurance fraud ring involving stolen cars.
“I’m trying to minimize the term Cocaine Cowboy being used,” Scola said, acknowledging later: “He’s in a more unique situation than most defendants with a criminal past.”
But the judge did approve a request from prosecutors to show Munday’s Twitter page, in which he dubs himself the “original Cocaine Cowboy,” and one short clip from the film. The reason: the fraud ring’s leader will testify that he recruited Munday specifically because of his notoriety from the 2006 documentary.

The Herald explains the movie:

But the judge did approve a request from prosecutors to show Munday’s Twitter page, in which he dubs himself the “original Cocaine Cowboy,” and one short clip from the film. The reason: the fraud ring’s leader will testify that he recruited Munday specifically because of his notoriety from the 2006 documentary.

Not sure about the Spellman part... Here’s the Plantain:

The Plantain has confirmed that Disney's Animated Studio has purchased the rights to adapt the 2006 documentary "Cocaine Cowboys" into an animated television show. The show will reportedly be geared at 5-10 year old children and feature such educational lessons as how to convert units of measurements into the metric system and the importance of not being a fucking snitch.

Cocaine Cowboys tells the bloody backstory of Miami's 1980's cocaine trade. The seminal Miami movie was created by local filmmaker Billy Corben and his partner, a fictitious individual created for tax purposes supposedly named "Alfred Spellman."

Mickey Munday Motion

Self-proclaimed Cocaine Cowboy Mickey Munday is going to trial before Judge Scola in a fraud case involving car title.  The Government wants to use all of his old Cocaine Cowboy interviews, including from the Billy Corben/Alfred Spellman movie itself, because his cocaine exploits as well as the current case involve “transportation.”  The feds also want to use his Twitter feed, news interviews, and so on.  The whole motion is below, but here is an excerpt about Cocaine Cowboys:

 In 2006, the Defendant starred in the documentary film “Cocaine Cowboys.”  The documentary focuses on the importation and trade of drugs in Miami in the 1970s and 1980s.  The Defendant brags about his ability to smuggle drugs and his proficient evasion of law enforcement.  For instance, the Defendant discusses his use of code words, such as “coming in the front door” or “children in the water,” to evade law enforcement.  The Defendant also states that he would move contraband through the use of a tow truck, a trailer, and a work order.  Further, there is video of the Defendant loading a car onto a trailer.  At trial, the Government intends to offer the testimony of Messrs. Johnson and Carrington, who will discuss their use of code words with the Defendant as part of the conspiracy.  For instance, if a car were to come up as stolen, the Defendant and his coconspirators would refer to it as a possible “Signal Ten.”  Mr. Johnson will testify that the cars hidden at the Defendant’s house were referred to as “Orphans” and the Defendant’s house was referred to as the “Orphanage.”  Similarly, if a lienholder were attempting to locate a car, the Defendant and his conspirators would refer to the car as a “Problem Child.”   Here, just as in the video, the Defendant used a tow service company to serve as a cover for his illicit activity and allow him to transport contraband while maintaining, at least as to the Defendant, plausible deniability.  

Mickey Munday Motion by David Oscar Markus on Scribd

Mickey Munday Motion by David Oscar Markus on Scribd">

Chief Justice Roberts’ year end report

Happy new year SDFLA readers! 

Chief Justice Roberts issued this year-end report, discussing how the courts dealt with natural disasters and how they will deal with sexual harassment.  Here’s the intro:

In October 1780, while American patriots engaged the British in decisive battles for independence, a storm was brewing in the Caribbean.  The Great Hurricane of 1780—the deadliest Atlantic hurricane on record— tracked a course from the Lesser Antilles to Bermuda, leaving a trail of destruction that touched both Florida and Puerto Rico.  Historians estimate that more than 20,000 people died.  The “Great Hurricane” was just one of several storms that ravaged the Caribbean and Gulf of Mexico that fall.  In all, more than 28,000 perished.   Nearly two and a half centuries later, we remain vulnerable to natural catastrophes. Modern communication has enhanced our ability to learn of impending disasters, take precautions, and respond to those in need.  But today’s news cycle can also divert attention from the continuing consequences of calamities.  The torrent of information we now summon and dispense at the touch of a thumb can sweep past as quickly as the storm itself, causing us to forget the real life after-affects for those left in misfortune’s wake.

***
Court emergency preparedness is not headline news, even on a slow news day. But it is important to assure the public that the courts are doing their part to anticipate and prepare for emergency response to people in need.