Thursday, July 19, 2018

Nominations of Judges Ruiz, Altman, and Grant moving forward

Each one had a different vote out of the judiciary committee. Justice Grant (nominated to the 11th Circuit) moved forward with a vote of 11-10 on party lines. Rudy Ruiz (SDFLA) moved forward with a unanimous yes vote. And Roy Altman (SDFLA) had a 17-4 vote to go ahead. From Courthouse News:

Roy Altman, a partner at the Miami firm Podhurst Orseck who is up for a seat on the U.S. District Court for the Southern District of Florida, was the only federal district court nominee to receive any opposition from senators on Thursday.

In questions submitted in writing after his nomination hearing, Altman faced questions about public statements he made and articles he published regarding hot-button political and legal issues from the Fourth Amendment to the Iran nuclear deal.

In one article, Altman argued a cell phone should not be treated differently than a briefcase when a court considers whether a search was appropriate, “simply as a result of the amount of information they are capable of storing.” When Feinstein asked him about the article, Altman said a recent Supreme Court decisions showed him he was wrong.

“After the Supreme court’s decision in Riley [v. California], it is now clear that the amount of information stored by a cellphone is relevant to a determination of how much protection is afforded by the Fourth Amendment,” Altman wrote. “If I were fortunate enough to be confirmed, I would fairly and faithfully apply this precedent.”

Altman cleared the committee 17-4 on Thursday.

The committee also unanimously approved Jude Rodolfo Ruiz, who is nominated to a seat on the U.S. District Court for the Southern District of Florida, and Raul Arias-Marxuach, who is up for a seat on the U.S. District Court for the District of Puerto Rico.

All of the judges the committee approved on Thursday must still be voted on by the full Senate before they are confirmed.

News & Notes.

1. 11th Circuit Judge Robin Rosenbaum, known for her fun writing style, starts an opinion this way:

To say that the 1980 United States Men’s Olympic Hockey Team had the odds stacked against it would be an understatement. With a roster of amateur players whose age averaged 22, the U.S. team had been routed 10-3 by the Soviet team less than two weeks before the Olympics began.1 And that was not surprising since the Soviet team was filled with seasoned professionals, had won the past four Olympic gold medals, and had not even lost an Olympic game since 1968.2 Beating the Soviet team seemed impossible. Yet on February 22, 1980, the U.S. team—led by Coach Herb Brooks—did exactly that, scoring a 4-3 “Miracle” win.3
Our history contains many such stories of triumphs over long odds. This, however, is not one of those.
Plaintiffs-Appellants—a lawyer, his law firm, and associated parties—urge creative arguments to avoid their bank’s compliance with Internal Revenue Service (“IRS”) summonses for their account records. But forget about tough odds the U.S. hockey team faced, Plaintiffs face-off with something even more formidable: the Supreme Court’s holdings long ago in United States v. Miller, 425 U.S. 435 (1976), and United States v. Powell, 379 U.S. 48 (1964). Those cases completely foreclose Plaintiffs’ arguments. For this reason, neither Plaintiffs nor their law-firm clients whose interests Plaintiffs attempt to invoke have a viable Fourth Amendment objection to the IRS’s collection of Plaintiffs’ bank records from Plaintiffs’ bank. We therefore affirm the district court’s order denying the quashing of the IRS’s summonses.

2. Trump is getting appellate judges confirmed at an incredibly fast clip. From the Hill:

Senate Republicans broke a record on Wednesday for the number of appeals court judges confirmed during a president's first two years.

Senators voted 50-49 on Andrew Oldham's nomination to be a judge on the 5th Circuit, making him Trump's 23rd circuit court judge confirmed since he took office last year.

That breaks the previous record set by President George H.W. Bush, who got 22 appeals court judges confirmed during his administration's first two years.

These are young, smart, and conservative judges who will make a real change in our judiciary.

Wednesday, July 18, 2018

An only in Miami story covered by an only in Miami reporter

Dave Ovalle has the only-in-Miami story about men being promised anonymous sex with a bored housewife only to end up appearing on a porn site for cross-dressing men.  The Feds have arrested Bryan Deneumostier, 32, also known by the screen name “susanleon33326," on charges that he surreptitiously produced pornographic audio and video recordings of himself engaging in sexual activity with multiple men and then caused the videos to be posted on one or more subscription-based pornography websites without their knowledge or consent.

I'll let Ovalle tell you the story:
The men thought they were going to a South Miami-Dade house for a casual and clandestine tryst with a bored housewife.

Once there, the men agreed to be blindfolded, and for sex acts to be performed on them. What the victims did not know, federal agents say, is that the supposed housewife was a cross-dressing man named Bryan Deneumostier — and he was uploading the videos to a porn website and charging users to view them.

Federal agents late Tuesday arrested Deneumostier, 33, of Homestead and charged him with five charges related to the operation of “StraightBoyz,” which promised gay men videos of real straight men being conned into accepting sex acts, all while blindfolded or wearing blacked-out goggles.

Investigators believe Deneumostier ran the site for at least four years. It featured at least 600 videos. Although the website is no longer in operation, many of the videos are still viewable on other adult websites. Agents are still trying to figure out how many of the people depicted on the site may be victims, never knowing their rendezvous were being recorded and uploaded to the web.

From the USAO press release:

The indictment, which was unsealed July 18, references three victims whose identities are being withheld to protect their privacy. Without two of the referenced victims’ knowledge or consent, Deneumostier allegedly recorded his sexual encounters with them, and then caused these videos to be posted on one or more websites. These two allegedly nonconsensual recordings form the basis of the surreptitious-recording charges. The indictment further alleges that Deneumostier was a producer of pornography, used performers portrayed in a visual depiction of sexually explicit conduct, and did not ascertain the performers’ identification or age, as required by federal law.

Sasha Baron Cohen is back

The new show is Who is America?

It reminded me of Ali G talking to Judge Pickles about the 5th Amendment and also to Dick Thornburgh.








If you came here looking for some real law, here's a 6th Circuit opinion, affirming a conviction where the prosecution used a selfie of a defendant with a gun (via Courthouse News):

The Sixth Circuit ruled Tuesday that a Tennessee man is not entitled to a new trial for being a felon in possession of a firearm because Facebook photos apparently showing him with guns were properly admitted into evidence.
In a 40-page ruling penned by U.S. Circuit Judge Karen Nelson Moore, the Cincinnati-based appeals court rejected Malik Farrad’s challenge to his conviction and 15-year sentence as an armed career criminal.
Tuesday’s ruling upheld a federal jury’s verdict finding him guilty of being a felon in possession of a Springfield Model XD .25 caliber semiautomatic pistol based on Facebook photo evidence and expert analysis.
According to court records, Farrad was released from prison in January 2013 for a previous felony and within months, local law enforcement was notified by confidential informants and concerned citizens that Farrad possessed one or more firearms while living in Johnson City, Tennessee.
A Johnson City police officer used an undercover account to send a friend request to a Facebook account purportedly created by Farrad, where he came across a photo uploaded by the account in October 2013 that showed what appeared to be three handguns “sitting on a closed toilet lid in a bathroom.”
The officer used the photo to get a search warrant of Facebook records associated with the account. The search revealed other photos that showed “a person who looks like Farrad holding what appears to be a gun” and others depicting “a closer-up version of a hand holding what appears to be a gun,” according to the Sixth Circuit’s ruling.
“While none of the photos shows a calendar, date, or one-of-a-kind distinguishing feature, the person in the photos has relatively distinctive tattoos, and some of the photos show, as backdrop, the d├ęcor of the room in which they were taken,” the opinion states.

Monday, July 16, 2018

Summer

It's pretty quiet in the District right now.  Anyone interested in guest-blogging?  If so, email me directly.

In the meantime, here's a crazy story about a judge ordering a newspaper to delete the publication of a plea agreement:

A federal judge ordered The Los Angeles Times to remove information from a published article on Saturday, a step that legal experts said was extremely unusual and conflicted with the First Amendment. The newspaper said it was appealing the order.
The article, published Saturday morning, described a plea agreement between prosecutors and a police narcotics detective in Glendale, Calif., who was accused of colluding with a Mexican crime syndicate.
The detective, John Saro Balian, 45, pleaded guilty on Thursday to federal charges that he had accepted a bribe, obstructed justice and lied to federal investigators about his involvement with organized crime. Judge John F. Walter of United States District Court for the Central District of California ordered the plea agreement sealed, but a reporter found it posted online on Friday in a public database of federal court documents.
Before the article was published, a lawyer for Mr. Balian told editors at the newspaper that doing so would put his family at risk. The newspaper decided to publish, and a few hours later, it received the court’s order. By 5 p.m. Saturday, it had complied by removing any references from the sealed document, although the article still made clear there had been a plea agreement with federal prosecutors.
The order will get reversed and the paper will be permitted to publish the papers.  But it does say something that a judge really thought he could do such a thing. 

Thursday, July 12, 2018

News & Notes

1.  Sen. Flake is going to drop his judicial holds.  This means that Judge Britt Grant will move forward with her nomination to the 11th Circuit.  Expect that to happen quickly.

2.  NACDL has released a fascinating report about the trial penalty and recommendations on how to breath life back into the 6th Amendment.  From the intro:

The ‘trial penalty’ refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial.  To avoid the penalty, accused persons must surrender many other fundamental rights which are essential to a fair justice system
This report is the product of more than two years of careful research and deliberation. In it, NACDL examines sentencing and other data underlying the fact that, after a 50 year decline, fewer than 3% of federal criminal cases result in a trial. With more than 97% of criminal cases being resolved by plea in a constitutional system predicated upon the Sixth Amendment right to a trial, the fact of imbalance and injustice in the system is self-evident.  The report identifies and exposes the underlying causes of the decline of the federal criminal trial and puts forth meaningful, achievable principles and recommendations to address this crisis. With its release, NACDL intends to launch a sustained effort to rein in the abuse of the trial penalty throughout federal and state criminal justice systems.  The Trial Penalty report, and the principles and recommendations it puts forward, seeks to save the right to a trial from extinction.
Really, we need trial judges to step up and not crush people for going to trial.  It's just not right.  Judges publicly complain that there aren't enough trials.  But if they wouldn't punish people for exercising their trial rights, you'd see a big uptick in people challenging the government.

Tuesday, July 10, 2018

A look into some of Judge Kavanaugh's criminal justice opinions

There's a lot out there about Judge Kavanaugh's jurisprudence, but not much has been written about his views on criminal justice. Where will he fall on the spectrum of conservative Justices? A rule-for-the-government-Justice, like Alito? A more moderate approach, like Roberts? Or a more criminal defense friendly conservative, like Scalia? Here's a look:

1. Acquitted Conduct. Many people, lawyers and non-lawyers alike, are shocked that sentencing judges are permitted to use acquitted conduct in fashioning a federal sentence. Kavanaugh wrote about the practice here in a thoughtful concurrence (in denying en banc review) shortly after Blakely and Booker. He said that although the law currently permits it, district judges have the discretion NOT to use acquitted conduct and his advice is that they should NOT use it at sentencing.

Here's a portion:
Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial. If you have a right to have a jury find beyond a reasonable doubt the facts that make you guilty, and if you otherwise would receive, for example, a five-year sentence, why don’t you have a right to have a jury find beyond a reasonable doubt the facts that increase that five-year sentence to, say, a 20-year sentence?

2. Jury Instructions. Here, Kavanaugh writes a concurrence in a case that overturns a murder conviction because of faulty jury instructions. He explains that even though the crime is "heinous," the "vote to reverse Williams' murder conviction is not a hard call" because the jury was not instructed properly on mens rea:
In a criminal appeal where a mens rea-related jury instruction issue may have made a difference to the conviction and sentence, it is critically important to ensure that the jury had a correct understanding of the relevant law. See United States v. Burwell, 690 F.3d 500, 527 (D.C. Cir. 2012) (Kavanaugh, J., dissenting). That did not happen in this case, in my view. For that reason, I vote to reverse the murder conviction, and I fully join the majority opinion.

3. Sentencing. Here's a dissent in which Kavanaugh sides with the Government, calling the majoirty opinion "confounding." The majority opinion explains that the district judge did not adequately explain the upward variance. Kavanaugh disagrees: "Seizing on the Guidelines range as if it were talismanic (which it is not post-Booker), the majority opinion concludes that the District Court committed procedural error by failing to adequately explain Matthews’ above-Guidelines sentence. I disagree."


4. Terrorism and the 4th Amendment. Here's where some criminal defense lawyers may get anxious. Kavanaugh approvingly wrote about the NSA's collection of metadata in a concurrence to a denial of en banc review, citing the third party doctrine. (From this case, it looks like Kavanaugh would have sided with the dissenters in Carpenter.)

The Government’s collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment, at least under the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979). That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis.
***
The Government’s program for bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States. See THE 9/11 COMMISSION REPORT (2004). In my view, that critical national security need outweighs the impact on privacy occasioned by this program. The Government’s program does not capture the content of communications, but rather the time and duration of calls, and the numbers called. In short, the Government’s program fits comfortably within the Supreme Court precedents applying the special needs doctrine.
To be sure, sincere and passionate concerns have been raised about the Government’s program. Those policy arguments may be addressed by Congress and the Executive. Those institutions possess authority to scale back or put more checks on this program, as they have done to some extent by enacting the USA Freedom Act.

5. Basketball. The judge coaches his daughters' basketball teams, which is very cool. And he played basketball growing up. Sheldon Gilbert, a great follow on Twitter, covers the only opinion Kavanaugh wrote dealing where he cites basketball here. The defendant in that case stole almost 20,000 pieces of computer equipment, and Kavanaugh reversed the restitution payment, which included an internal investigation:
The statute authorizes restitution for “necessary . . . expenses incurred during participation in the investigation or prosecution of the offense.” We do not read that text to authorize restitution for the costs of an organization’s internal investigation, at least when (as here) the internal investigation was neither required nor requested by the criminal investigators or prosecutors. In our view, an internal investigation that is neither required nor requested by criminal investigators or prosecutors does not entail the organization’s “participation in the investigation or prosecution of the offense.” Id. (emphasis added). Our conclusion is supported by the existence of other restitution statutes – not applicable here – in which Congress provided for restitution in terms that plainly cover the costs of an internal investigation. Our conclusion is further buttressed by the statutory term “necessary”: The costs of an internal investigation cannot be said to be necessary if the investigation was neither required nor requested by criminal investigators or prosecutors.

Here's the (fun) basketball stuff:

We disagree with the Government’s effort to equate the terms “assistance” and “participation.” In common parlance, the two terms are not equivalent. The company that provides electricity to power the sound system at our oral arguments assists the proceedings, but its employees are not ordinarily said to have participated in the oral argument. Engineers who design soldiers’ weapons aid the war effort, but the engineers are not thought to participate in the war; rather, they are said to provide support. Fans at a basketball game might help the home team win the game (and earn the title “sixth man”), but even the fans who wear jerseys and are given the choke sign by the opposing team’s star player do not participate in the game. See http://www.youtube.com/watch?v=UrtVZftjbhk. A health insurance company may pay for a patient’s operation, but the insurer does not participate in the operation at the hospital. The hardy Bostonians who hold cups of water on the side of the road help runners in the marathon, but they do not themselves participate in the race. The officers who provide security at a Taylor Swift show certainly assist, but no one would say that they participate in the performance.
It's worth noting (as a helpful reader pointed out) that Kavanaugh's limited-statutory-language take on the restitution statute was vindicated this Term in Lagos v. United States in a unanimous opinion by Justice Breyer.

***

So after reading these opinions, my take is that Kavanaugh appears to be more in line with Roberts. He won't be a Scalia and he won't be an Alito. But he'll probably be more sympathetic to criminal justice issues than Kennedy was.

Monday, July 09, 2018

Andddddd it’s Kavanaugh

I’m surprised more wasn’t made of the fact (in all the prediction stories) that he’s a former Kennedy clerk. Many did report early on that Trump promised Kennedy that he would appoint another one of his clerks (first was Gorsuch). So Kavanaugh (with Kethledge second) should have been the favorite.

Kavanaugh will get confirmed and he will be very conservative. The one area that he hasn’t written a lot on is criminal justice. Will he be another Alito (just rule for the government every time no matter what) or will he more of a moderate like Roberts. No one expects him to be as good as Scalia was on criminal justice.

Big SCOTUS reveal tonight at 9pm

I'm looking forward to some new, fresh, and smart blood on the Supreme Court.  Justice Kennedy was no friend of 4th, 5th, 6th Amendment rights.  Hopefully that will change.

Here's a quick snapshot of the 4 finalists (Kavanaugh, Kethledge, Hardiman, and Barrett) by the AP.  There are great, more in depth reports at Above the Law and SCOTUSblog.

Meantime, Trump already has reshaped the 11th Circuit.  The AJC has a lengthy piece on this transformation:

President Donald Trump’s plan to quickly reshape the nation’s federal appeals courts has taken hold in Atlanta, with the infusion of two conservative jurists and another one on the way.

Trump’s imprint on the 11th U.S. Circuit Court of Appeals all but guarantees it will remain one of the nation’s more conservative courts for years to come. The 11th Circuit, which presides over Georgia, Alabama and Florida, often takes on some of the most hotly contested issues of the day: abortion, police brutality, gun control, immigration, the death penalty, gay rights, and discrimination and harassment in the workplace. ***
Of the 13 federal appeals courts, the 11th Circuit is the second or third most conservative in the country, said Tobias, the Richmond law professor who tracks judicial nominees. “And now, Trump is replacing conservative judges on the 11th Circuit with even more conservative judges,” he said.

Thursday, July 05, 2018

When SCOTUS shortlister Amul Thapar visited CA11

Sixth Circuit judge Amal Thapar visited the 11th Circuit a number of times when he was a district judge in EDKY.  Back in 2016, he wrote a notable opinion in a criminal case, U.S. v. Takhalov.  A quick recap of that case here since Thapar is being considered for the Supreme Court.

In Takhalov, the 11th Circuit reversed criminal convictions in an only in Miami case, known locally as the "B-girls" trial. B-girls are bar girls who were tasked with getting guys drunk and running up their tabs at bars.  The B-girls and bar owners were charged with various counts of fraud and money laundering.

The 11th Circuit, per Thapar, reversed and held that the court should have instructed the jury as follows: that they must acquit if they found that the defendants had tricked the victims into entering a transaction but nevertheless gave the victims exactly what they asked for and charged them exactly what they agreed to pay.

The opinion is such a fun read and includes all sorts of fun references (to the Bible, Star Trek, Whiskey, Holmes and more).  Here's the intro:

The wire-fraud statute, 18 U.S.C. § 1343 does not enact as federal law the Ninth Commandment given to Moses on Sinai.* For § 1343 forbids only schemes to defraud, not schemes to do other wicked things, e.g., schemes to lie, trick, or otherwise deceive. The difference, of course, is that deceiving does not always involve harming another person; defrauding does. That a defendant merely “induce[d] [the victim] to enter into [a] transaction” that he otherwise would have avoided is therefore “insufficient” to show wire fraud. See United States v. Starr, 816 F.2d 94, 98 (2d Cir. 1987).
Here, the defendants feared that the jury might convict them of wire fraud based on “fraudulent inducements” alone. Hence they asked the district court to give the jurors the following instruction: that they must acquit if they found that the defendants had tricked the victims into entering a transaction but nevertheless gave the victims exactly what they asked for and charged them exactly what they agreed to pay. The district court refused to give that instruction, and the jury ultimately convicted the defendants of wire fraud and other crimes, most of which were predicated on the wire-fraud convictions. The question presented in this appeal is whether the district court abused its discretion when it refused to give the requested instruction.
*See Exodus 20:16 (“Thou shalt not bear false witness against thy neighbor.”) (KJV).
Some other good stuff:
  • The question before us, however, is not whether the proposed instruction was “logically entailed” by the given instruction, but whether it was “substantially covered”; and those are meaningfully different concepts. After all, the average juror is not Mr. Spock. If he were, then a trial-court judge’s job would be much easier. He could instruct the jury in broad strokes—instructing only as to the bare elements of the crime, perhaps—and be confident that the jury would deduce all of the finer-grained implications that must logically follow. As it stands, however, the vast majority of American juries are composed exclusively of humans. And humans, unlike Vulcans, sometimes need a bit more guidance as to exactly what the court’s instructions logically entail.
  • Now imagine another, more common scenario: a young woman asks a rich businessman to buy her a drink at Bob’s Bar. The businessman buys the drink, and afterwards the young woman decides to leave. Did the man get what he bargained for? Yes. He received his drink, and he had the opportunity to buy a young woman a drink. Does it change things if the woman is Bob’s sister and he paid her to recruit customers? No; regardless of Bob’s relationship with the woman, the businessman got exactly what he bargained for. If, on the other hand, Bob promised to pour the man a glass of Pappy Van Winkle** but gave him a slug of Old Crow*** instead, well, that would be fraud. Why? Because the misrepresentation goes to the value of the bargain.  

    ** “Pappy’s,” as it is often called, is a particularly rare bourbon varietal: nearly impossible to find, and nearly impossible to afford when one finds it.

    ***Although Old Crow has a venerable pedigree—reportedly the go-to drink of Mark Twain, Ulysses S. Grant, Hunter Thompson, and Henry Clay—it is not Kentucky’s most-expensive liquor. Its “deluxe” version, “Old Crow Reserve,” retails for approximately $15 per bottle.

    Thus, a “scheme to defraud,” as that phrase is used in the wire-fraud statute, refers only to those schemes in which a defendant lies about the nature of the bargain itself. That lie can take two primary forms: the defendant might lie about the price (e.g., if he promises that a good costs $10 when it in fact costs $20) or he might lie about the characteristics of the good (e.g., if he promises that a gemstone is a diamond when it is in fact a cubic zirconium). In each case, the defendant has lied about the nature of the bargain and thus in both cases the defendant has committed wire fraud. But if a defendant lies about something else—e.g., if he says that he is the long-lost cousin of a prospective buyer—then he has not lied about the nature of the bargain, has not “schemed to defraud,” and cannot be convicted of wire fraud on the basis of that lie alone.
  • Similarly, in Hill, the court instructed the jury that the defendant was guilty of credit-application fraud only if he made false statements to the bank knowingly and willfully. The defendant asked the court to instruct the jury that he was not guilty if he believed the statements were true. United States v. Hill, 643 F.3d 807, 852–54 (11th Cir. 2011). Thus, to get from the given instruction to the requested one, the jury needed to infer only one thing: that a person cannot lie “knowingly and willfully” if he speaks what is in his view the truth. That inference, too, hardly requires Holmesian feats of deduction.****
  • ****Sherlock or Oliver Wendell: either Holmes will do here.

Monday, July 02, 2018

Happy 13th Birthday to the Southern District of Florida Blog

This blog's first post was July 2, 2005, and we've been going strong ever since -- thanks to you!  Thank you for stopping by and reading.  When the blog first started, there were only a handful of legal blogs (How Appealing, SCOTUSblog, and Underneath the Robes were the main ones).  Since then, many have come and gone.  This blog has had 3,778,606 page views since then.  Pretty cool.

Still, many blogs have moved over to Twitter, and I am thinking about doing the same thing.  I'm interested in your comments.  Would you rather have the blog as a set place to come see posts, or is Twitter more convenient.

Thanks again for reading.

--David