Sunday, June 23, 2019

11th Circuit reversed again in a criminal case (UPDATED with Davis opinion)

UPDATE -- The Supreme Court in United States v. Davis also reversed the 11th Circuit's en banc opinion in Ovalles. The Supreme Court, per Justice Gorsuch, held that Section 924(c)(3)(B) is unconstitutionally vague.

This time the issue is what level of proof is needed under 922(g), the illegal gun possession statute.  The Court held that in a prosecution under 18 U.S.C. §922(g) and §924(a)(2), the government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.

Here’s the Supreme Court opinion, written by Justice Breyer, with a dissent by Justice Alito.

And here’s the 11th Circuit opinion.

SCOTUSblog explains the impact of the decision here:
Petitioner Hamid Rehaif will be among those who get a hearing on whether he actually knew he was out of immigration status. He had come to the United States on a student visa to study at a university in Florida, but he was academically dismissed. In informing him about his dismissal, the university’s email notified him that his immigration status would be terminated if he did not transfer to another school or leave the United States, neither of which he did. Instead, he stayed in Florida. During that stay, he went to a firing range, purchased ammunition and fired weapons. Hotel staff tipped off the FBI that Rehaif was engaging in suspicious behavior.

At the ensuing trial, the district court instructed the jury that it need not find that Rehaif knew he was out of immigration status, and the jury convicted. The U.S. Court of Appeals for the 11th Circuit affirmed, noting substantial agreement among its fellow circuits that the term “knowingly” in 18 U.S.C. § 924(a)(2) applies to possession of the weapon, but not to the status category of the possessor.

Breyer’s majority opinion rejected that position. “In determining Congress’ intent, we start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding ‘each of the statutory elements that criminalize otherwise innocent conduct,'” wrote Breyer. “Here we can find no convincing reason to depart from the ordinary presumption in favor of scienter [requirement of guilty mind].”

The phrase “otherwise innocent conduct” strongly echoed concerns voiced by Justices Neil Gorsuch and Brett Kavanaugh at oral argument. They had noted that possession of a gun alone is not blameworthy and therefore that one’s membership in a prohibited status category is all that stands between innocent and criminal conduct under Section 922(g). If the status divides innocent from criminal conduct, then the defendant should have to know of that status in order to be convicted, they suggested. Along those lines, the majority opinion acknowledged that the statute’s “harsh” maximum punishment of 10 years played a role in its decision.

Now that the court has decided that knowledge of status is required for a conviction under Section 922(g), prosecutors must think about what kinds of tangible evidence can be used to show that state of mind, and those looking to challenge their convictions must scour their records to find some evidence casting doubt on the existence of such knowledge. These tasks are complicated greatly by the fact that there are nine different status categories. While reminding prosecutors that they may prove state of mind through circumstantial evidence, the majority refused to get too specific, saying, “We express no view … about what precisely the Government must prove to establish a defendant’s knowledge of status in respect to other Section 922(g) provisions not at issue here.”

However, the majority opinion did mention two hypothetical fact scenarios in which there could be reasonable doubt that the defendant knew his status. Echoing a remark by Justice Sonia Sotomayor at argument, the majority pointed out that a failure to require knowledge would criminalize firearm possession by “an alien who was brought to the United States unlawfully as a small child and was therefore unaware of his unlawful status.” The court made the same observation about “a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is ‘punishable by imprisonment for a term exceeding one year.'” This would seem a particularly important scenario, given that the vast majority of convictions occur by plea bargain, where the lawyer, not the defendant, does the negotiating. Moreover, the average defendant’s curiosity only extends to the prosecutor’s actual offer, not to the theoretical maximum punishment that the prosecutor could have sought under the statute.

Breyer noted that the mens rea requirement for each element is important, especially in a case where there was such a severe maximum sentence of 10 years. 10 years. Of course he’s right, but I wonder whether the Justices are really aware that sentences over 10 years are handed out every day for non-violent first time offenders. It’s really insane. Rehaif is another message to judges in this Circuit to consider novel arguments, instructions, and so on that criminal defense lawyers raise. The only way to combat our overcriminalization and overincarceration problem is to grant some defense motions so that prosecutors are not so quick to charge, object, ask for such high sentences, and so on.

**Full disclosure — I was part of a team that filed an amicus brief for NACDL in support of the defendant.

Thursday, June 20, 2019

Who makes up Senator Rubio's "JNC"?

Unlike the former and fairly transparent process that used to be in place with a public JNC, public interviews, and public list of candidates, there is quite a bit of secrecy surrounding how the Fort Pierce district court seat is being picked. 

Here's what I've been able to put together.  As reported on the blog a few days ago, Senator Rubio has put together his own group to interview a slate of six candidates.  Those candidates are:

Aileen Cannon (AUSA, Fort Pierce)
John Couriel (former AUSA, partner at Kobre Kim)
David Leibowitz (former AUSA, general counsel Braman)
Migna Sanchez-Llorens (former AFPD, state judge, Miami)
Meenu Sasser (state judge, West Palm Beach)
Michael Sherwin (AUSA, Miami)

Thanks to a bunch of great tipsters, I now have the list of Rubio's interviewers:

Co-Chairs:

Carlos Lopez-Cantera and Manny Kadre

Other members:

Georgina Angones
Kendall Coffey
Renier Diaz de la Portilla
Albert Dotson
Robert Fernandez
Jillian Hasner
Eduardo Lacasa
Jon Sale
Steve Waserstein

Tuesday, June 18, 2019

Breaking: six candidates to be interviewed for Fort Pierce slot

There has been a lot of speculation over the fifth and final open district court seat in this District,* which is slated for Fort Pierce.  I have multiple sources confirming that there will be no JNC for this opening.  Instead, Sen. Rubio has put together a group to interview six candidates.  Rubio's group will then recommend someone for that position, and it will be up to Rubio and Scott to see if they can agree on that person to recommend to the White House.

The six candidates are:
Aileen Cannon (AUSA, Fort Pierce)
John Couriel (former AUSA, partner at Kobre Kim)
David Leibowitz (former AUSA, general counsel Braman)
Migna Sanchez-Llorens (former AFPD, state judge, Miami)
Meenu Sasser (state judge, West Palm Beach)
Michael Sherwin (AUSA, Miami)

*Raag Singhal is being vetted for the open 4th slot.

Rodney Smith was sworn in and Lisette Reid had her investiture

Congrats to them both!

Judge Graham did the swearing in for Judge Smith.


And it’s Miami, so the judges were in their summer uniforms.


Sunday, June 16, 2019

“I want everyone who looks at this matter to get to the bottom of it to make sure these proceedings are not tainted in any way."

1.  That was Judge Scola after learning that two snitches at FDC hatched a plot to pay a defendant to go to trial so that they would get a longer sentence reduction.  Jay Weaver covers the story here:
The potential payoff for her: From $1 million up to $10 million in bribes, according to her defense attorney, but with the downside that she might spend more time in prison herself if she was convicted.

The strange snitching twist came to light in a massive narcotics distribution case that has already seen nine of the 10 defendants plead guilty. Bravo and Belalcazar are cooperating with the feds after both pleaded guilty to conspiring to transport hundreds of kilos of cocaine into the United States — loads that were confiscated at sea by the U.S. Coast Guard. They now face up to life in prison — though the scheme described in open court and court documents suggests they were angling for far more lenient punishment.

The payoff plan could now backfire on them: the sole defendant, Yina Maria Castaneda Benavidez, who was supposed to face trial alone on Friday, was clueless about their plot to bribe her, according to her lawyer, Erick Cruz. And her intention was to go to trial anyway to fight the trafficking-conspiracy charge, Cruz said.

“She had no idea that this was going on,” he told the Miami Herald after the federal court hearing. “It caught her and everybody else by by surprise.”

Cruz and his client, whose trial has now been postponed until September, said they learned about the alleged bribery plot from federal prosecutors. They recently found out about it from a Drug Enforcement Administration agent, who got a tip from a paralegal, who somehow picked up on the scheme at the Federal Detention Center in downtown Miami. That is where the two Colombian cooperating witnesses, Bravo and Belalcazar, are in custody — along with Castaneda.

The FDC, a towering concrete building that mainly holds defendants who are awaiting trial or have pleaded guilty with cooperation deals, is notorious for inmates swapping dirt on one another to gain some ground against a long sentence.

In a court filing, Cruz said the two Colombian witnesses in the drug-trafficking case discussed their planned testimony about his client with other FDC inmates, and that they agreed to deposit money in her commissary account for the rest of her incarceration if she went to trial, was convicted and they received a sentence reduction.

Cruz has asked U.S. District Judge Robert Scola to disallow their appearances as government witnesses because “their desperation” to obtain a sentence reduction by testifying against Castaneda “impairs” her due process rights.

“The court should sanction [Bravo] and [Belalcazar] by not permitting them to testify at [Castaneda’s] trial,” Cruz wrote in the court filing. “Their conspiracy to devise a scheme in which they would bribe [Castaneda] to go to trial so that they could testify against her and receive a sentence reduction is novel, even by South Florida standards.”

Initially, prosecutors Joseph Schuster and Brian Shack said they still wanted to use the two Colombians as cooperating witnesses against her, but Judge Scola warned them that it may not be possible under the circumstances.

“I don’t know how you can come to that conclusion,” the judge said, raising the obvious problem of the two witnesses’ credibility and integrity.
2.  In other news, Rumpole covers Judge Altman's announcement that it is his policy to remand defendants at sentencing.  Rumpole rightfully says that the better practice is to allow self-surrender. 

One thing Rumpole didn't touch on was the enormous cost to the system and the defendant by requiring surrender at sentencing instead of to the prison where the sentence will be served.  A remand means that the defendant will go to FDC (if he's lucky; since Altman is in Broward, his defendants may go to the county jail before being moved to FDC) and then will wait there for 4-6 weeks until he is moved to another holding facility.  After spending time there, the defendant will then be moved to the ultimate prison at thousands of dollars of cost to the system for no reason.  And that doesn't account for the terrible conditions to the defendant during the transfer.  Talk to most defendants and they will tell you that the worst time they did was the movement from FDC to the holding prison to the final prison.  It's much worse than diesel therapy.  It's countless nights in the Special Housing Unit or sleeping on the floor of a county jail, all the while being cut off from being able to speak to your family.  Many times defendants are transported to Oklahoma or Atlanta even if their designated prison is somewhere in Florida.  It's just absurd. 

Most judges give defendants time after sentencing to self-surrender to their designated prison.  This way, the defendant bears the cost of the travel.  Marshals are able to focus on their jobs instead of transporting defendants.  And defendants can humanely go to the prison instead of being treated in ways which we wouldn't wish on our enemies. 

So I hope Judge Altman reconsiders a policy that greatly burdens the system, taxpayers, and defendants with no countervailing benefit. 

Wednesday, June 12, 2019

BREAKING -- Rodney Smith confirmed

CONGRATS to our newest judge -- Rodney Smith.  He was confirmed 78-18 to fill Robin Rosenbaum's slot. 

Tuesday, June 11, 2019

Judge Ungaro rules for FDA in fight with stem cell clinic

Interesting case.  The NY Times covers it here:
A judicial ruling this month that will stop questionable stem-cell treatments at a clinic in Florida is widely seen as a warning to a flourishing industry that has attracted huge numbers of patients, who pay thousands of dollars for unproven, risky procedures.

But with little regulatory oversight for the hundreds of clinics operating these lucrative businesses across the country, it’s too soon to tell how far the impact might reach.

The decision, by a federal court on June 3, empowered the Food and Drug Administration to stop U.S. Stem Cell, a private clinic in Sunrise, Fla., from injecting patients with an extract made from their own liposuctioned belly fat.

The clinic had claimed that the extract contained stem cells with healing and regenerative powers that could treat a range of illness and injuries, from back problems to Parkinson’s disease, arthritis, and heart and lung diseases.

But medical experts say there is no proof that these treatments work, and three patients, who each paid $5,000 to be treated at U.S. Stem Cell in 2015, went blind after the fat extracts were injected into their eyes to treat macular degeneration.

In granting the F.D.A.’s request for an injunction against the clinic, Judge Ursula Ungaro agreed with the agency that extracting stem cells from fat requires so much processing that it essentially transforms them into a drug. That alteration firmly places such treatments under the jurisdiction of the F.D.A., which has the authority to regulate drugs.

“There is a reasonable likelihood that the defendants will continue to violate the Food, Drug, and Cosmetic Act,” the federal law that gives the F.D.A. its regulatory authority, Judge Ungaro wrote. She also noted that when the agency warned U.S. Stem Cell about unsafe practices at the clinic, the company responded not by correcting the problems, but by arguing that it was exempt from F.D.A. regulation.

Here's the order.

Sunday, June 09, 2019

“Given the number of most-watched cases still unannounced, I cannot predict that the relatively low sharp divisions ratio will hold.”

That was RBG speaking at the Second Circuit last week on how the Court so far this Term has been relatively cordial and not split 5-4 (only 11 cases so far). But the gerrymandering case and the census case are still out there with the Term coming to a close.

Lots of other tidbits in this Washington Post article, including Kavanaugh's hiring of all women law clerks, tipping the balance of female law clerks over male for the first time in Court history.

She also said that the retirement of Justice Kennedy was “the event of greatest consequence for the current term, and perhaps for many terms ahead.”

Friday, June 07, 2019

11th Circuit takes grand jury secrecy case en banc

Really interesting issue.  The panel summarized the issue as follows:
In 1946, a crowd of people in Walton County, Georgia gathered as two
African American couples were dragged from a car and shot multiple times.1
Many consider this event, known as the Moore’s Ford Lynching, to be the last
mass lynching in American history. Racial tensions in Georgia were high. African
American citizens were allowed to vote in a Georgia Democratic Party primary for
the first time that year.2 The murders occurred shortly after the primary and
immediately garnered national media attention. National outrage, including
condemnation from then Special Counsel to the NAACP Thurgood Marshall,
ultimately led President Harry Truman to order an FBI investigation. In late 1946,
a district court judge in Georgia convened a grand jury. But after sixteen days of
witness testimony, no one was ever charged. The case remains unsolved.
Over seven decades later, Anthony Pitch, an author and historian, petitioned
the Middle District of Georgia for an order unsealing the grand jury transcripts.
The district court granted his request. The government now appeals, arguing the
district court abused its discretion in unsealing the transcripts. After careful review
and with the benefit of oral argument, we affirm. 
 Politico covers the en banc grant:
A federal appeals court announced Tuesday that its full, 12-judge bench plans to revisit whether judges have the authority to disclose usually secret grand jury information in exceptional cases.
The Atlanta-based 11th Circuit Court of Appeals said it plans to take up, en banc, a case involving a historian’s request for access to records of a federal grand jury investigation into the 1946 lynching of two African-American couples in Walton County, Ga.
Legal disputes about access to grand jury information are drawing unusual attention at the moment because of a standoff between the House Judiciary Committee and Attorney General Bill Barr over access to various materials related to special counsel Robert Mueller’s Trump-Russia probe.
Part of that fight is a disagreement over whether lawmakers are entitled to see testimony and evidence that is typically kept secret because it was obtained by a grand jury.
The 11th Circuit’s brief order Tuesday wiped out the victory historian Anthony Pitch won in February, when a court panel voted 2-1, to uphold a lower-court order allowing disclosure of the records.
The Justice Department has steadfastly opposed disclosure in such cases, saying that judges can only permit release through six explicit exceptions to the grand jury secrecy rule. However, government lawyers did not seek en banc rehearing of the decision.
The court’s order Tuesday said an unidentified 11th Circuit judge acting on his or her own sought a vote on further review of the case. A majority of the court’s active judges agreed.
It’s unclear precisely what triggered the rehearing, but Pitch’s attorney, Joe Bell, told POLITICO he believes it may be some combination of factors including a heated dissent by a district court judge who sat on the 11th Circuit panel and a conflicting, 2-1 ruling issued in April by the D.C. Circuit on a similar case involving another author, Stuart McKeever. He has asked the full D.C. Circuit to rehear his case, and there was a sign last month that they might do so.
“I know it probably involves the McKeever decision and it might also be that everyone saw what’s going on with Mueller in Washington and they want to come out with some sort of united front,” Bell said.
Whatever the 11th Circuit ultimately does, it won’t iron out disagreements among courts on the issue.
Other appeals courts, including the New York-based 2nd Circuit and the Chicago-based 7th Circuit, have upheld judges’ right to release grand jury material sought by historians or in other circumstances not mentioned in the rule.

Tuesday, June 04, 2019

Justice Thomas says he has no stress

Must be nice.

The rest of the lawyers out there are pure bundles of stress. 

Seems like such a weird thing to say, even though it's true.

From SCOTUSblog:

Justice Clarence Thomas told an audience at the U.S. Supreme Court this afternoon that he doesn’t know where rumors of his potential retirement at the end of this term originated.
“My wife gets alerts,” Thomas said, apparently referring to news or web alerts that his spouse, Virginia Thomas, receives. When she showed one such alert to him earlier this term, his response was, “Wow. I didn’t know that.”
“I have no idea where that stuff comes from,” Thomas added during an hourlong conversation with the financier and philanthropist David Rubenstein in the courtroom, before an audience of several hundred members of the Supreme Court Historical Society. “People can say things about you and for you that have nothing to do with you.”

Rubenstein, a trustee of the Historical Society who frequently interviews the mighty and powerful on his show on Bloomberg Television and elsewhere, didn’t specifically ask Thomas to repeat the firm denial of any impending retirement that the justice offered earlier this spring.
Asked about potential retirement at an event at Pepperdine University law school, Thomas said, “I’m not retiring,” and that he had no plans to retire in 20 years or 30 years.
Thomas turns 71 on June 23.
With the court entering the final month of its term, Rubenstein asked Thomas how he relaxes during the term.
“I really don’t have a lot of stress. I cause stress,” Thomas said with a laugh. He goes to Roman Catholic mass, reads and follows the sports exploits of his adopted favorite college, the University of Nebraska. (His wife and mother-in-law attended there.)
 Meantime, check out this weird alignment of Justices, where Ginsburg joins Thomas on a supervised release issue and Gorsuch joins the libs.

Monday, June 03, 2019

What’s left for SCOTUS before their summer break?

Teachers and Supreme Court Justices get the summer off. The Justices have a few more opinions to get out before they hit the beach. CNN covers what’s left, including the census case.  But I’m waiting for this one:
Double Jeopardy (Gamble v. United States)
The Double Jeopardy clause to the Fifth Amendment prohibits more than one prosecution for the same offense. There is an exception, however, that is called the "separate sovereigns exception."
Under the exception, prosecutions are allowed to bring charges for the same offense if the charges are brought by state and federal government. The Supreme Court is being asked to get rid separate sovereigns exception.
Critics contend that in the modern day it leads to harassment of defendants -- especially the poor -- who can't afford to fight on two fronts.
The case could impact President Donald Trump's pardon power as it applies to the Robert Mueller probe. The thinking goes that if he pardoned someone like Paul Manafort, then state officials could not bring the same charge against him. Others say that it would have no impact because state prosecutors would be savvy enough to bring charges for a different offense.The Trump administration argued that the exception should remain on the books.
Why it matters:
On one hand, the federal government and others say this exception is meant to protect the independent power of state and federal governments. It has been a part of the court's fabric for more than 150 years.

Wednesday, May 29, 2019

Does a college prank really deserve a federal prosecution, conviction, and probation?

So a college freshman snuck into Mar-a-Lago as a joke.

In the old days, he would have been arrested and scared into never doing something like that again.

But not today... now, the feds decided to prosecute him and a judge placed him on probation for a year.

Seems like over-kill.

From the Palm Beach Post:

An apologetic Mark Lindblom on Tuesday told a federal magistrate that he had no evil intentions when he decided to try and enter the club on the day after Thanksgiving while President Donald Trump and his family were visiting. The Washington, D.C. teenager said he just wanted to see if he could do it.

And, according to accounts from his attorney and a federal prosecutor, it was pretty easy.

Visiting his grandparents, who are members of the nearby Palm Beach Bath & Tennis Club, Lindblom simply walked down the beach the two clubs share.

Once at a tunnel under State Road A1A that gives Mar-a-Lago members exclusive access to the beach, Lindblom stood in line with club members who were waiting to pass through a metal detector manned by Secret Service agents, said his attorney Marcos Beaton.

“Mr. Lindblom was wanded by Secret Service agents and he walked on through,” Beaton said.
***
Saying Lindblom made “an exceptionally foolish decision,” he said agents meticulously combed through Lindblom’s background after arresting him wandering on the grass near the club pool. They only thing Lindblom took was pictures on his cell phone, he said.

“We have no reason to believe he had a political, criminal or terroristic purpose,” McMillan said. “It was a foolish decision he did on a lark.”

***
He pleaded guilty to a charge of entering or remaining in a restricted building or grounds - one of two charges Zhang faces. While Matthewman could have sent Lindblom to jail for six months, he opted instead to place him on probation for a year.

Both McMillan and Fridella said they supported the lenient sentence.

Lenient, huh?

Tuesday, May 28, 2019

Alcee Hastings' trial

The Palm Beach Post just ran a 3-part series about Alcee Hastings.  Part 2 covered his federal trial and acquittal in which he was accused of taking bribes as a federal judge.  Despite his acquittal, he was later impeached (and then became a successful and longtime Representative).  I didn't realize that after the acquittal, two of Hastings' colleagues (William Terrell Hodges and Anthony Alaimo) secretly referred him for investigation by the 11th Circuit, which ended up getting him impeached.

The case against Hastings energized his black supporters, who saw it as yet another example of the white power structure attacking a black man who had risen too high.

Hastings girded himself for the fight, hiring a team of lawyers, including one named Patricia G. Williams, who would see him through this and other difficulties.

The judge ripped the government, saying he was being targeted because of his race and because of his opposition to the Reagan administration.
Three decades later, Hastings maintains that his criticism of the administration, his rulings and his unwillingness to shed friends and associates once he became a judge made him a target.

“I should have been more monastic, but that’s not my style,” he said.

Even before Rico’s indictment, there were holes in the government’s case against Hastings. Big ones.

Investigators could not prove that any of the first $25,000 given to Borders made its way to Hastings. They had not waited to see if Borders would take the remaining $125,000 and give some to Hastings.

That allowed Hastings to argue that Borders was carrying out the scheme on his own, trading on his associate’s position as a judge.

With Borders refusing to testify, Hastings disputed the notion that the two were good friends, saying Borders was merely a political ally with a funny way of speaking, a reference to the taped conversation that played such a big role in the case.

After a two-week trial in federal court in Miami, a jury acquitted Hastings of the charges against him.

Hastings and his supporters were euphoric.

“His victory has more or less opened the door of hope for so many of us who, through innumerable injustice, had come to feel that justice sits atop a mountain out of reach of the poor, the oppressed and the blacks of this nation,” Athalie Range, a black funeral home owner, told The Miami News after the verdict.

In a series of lectures he had published as “The Battles of Hastings” in 1996, one of Hastings’ attorneys, Terence Anderson, said the government knew Borders made false claims about his influence over judges.

“Before the investigation had been authorized, the FBI’s files contained information indicating that Borders had falsely held himself out as having the power to fix cases before other judges, judges whose integrity the government had never questioned.”

Anderson did not elaborate on what that information was, and efforts to reach him were unsuccessful.

For Hastings, the not guilty verdict was the only one a just system could deliver.

“Indeed, they found me not guilty of crimes I never committed,” Hastings would say. “I have not received a bribe. I have not obstructed justice. And I have not betrayed the high office I hold under Article III of the United States Constitution. I am not guilty.”

Hastings had taken the feds’ best shot — and won.

A few weeks after the verdict, 500 people showed up for a victory celebration and fundraiser.

Hastings was in the clear. Or so it seemed.

Judicial colleagues file secret complaint

William Terrell Hodges and Anthony Alaimo weren’t convinced.

Hastings had won his case and was back on the federal bench.

But Hodges and Alaimo, two of Hastings’ fellow judges on the 11th Judicial Circuit, wondered, if Borders were guilty, how could Hastings be innocent?

Under a new set of rules, the two judges, both white, took the extraordinary step of filing a secret complaint requesting an investigation into whether Hastings had lied and falsified evidence during his criminal trial.

The judges’ complaints sparked a three-year investigation led by John Doar, a legendary figure who had worked in the Civil Rights Division of the U.S. Justice Department for seven tumultuous years under Presidents John F. Kennedy and Lyndon Johnson.

An 11th Circuit panel, reviewing Doar’s findings, concluded that Hastings committed perjury, tampered with evidence and conspired to gain financially by accepting bribes.

Sunday, May 26, 2019

Miami lawyers Scott Srebnick and Jose Quinon to represent Michael Avenatti...

...in one of his three federal criminal cases, the Nike indictment.  He’s lucky to have them.  From the client himself:


Friday, May 24, 2019

“Timing is everything.”

That’s Judge Rosenbaum in this case involving Club Madonna, a strip club on Miami Beach.  More:
People often say that timing is everything. Hitting a home run? Timing.1 Comedy? Timing.2 Winemaking? Timing.3 Relationships? Timing.4 Politics? Timing.5
And of course, timing is also important when it comes to Article III justiciability. File before the facts underpinning the claim have been sufficiently developed, and a court must dismiss the claim because it is not ripe for the court’s review. But wait until the claim has been resolved and the court can offer no further relief, and a court must dismiss the claim because it is moot. Yet if a well-pleaded claim falls in the sweet spot between ripeness and mootness and is otherwise justiciable, it states a “case or controversy” that the court must entertain.
Here, Appellant Club Madonna, Inc. (the “Club”), a fully-nude strip club in the City of Miami Beach (the “City”), filed several claims against the City, challenging administrative action it had taken against the Club, the laws authorizing that action, and ordinances the City later enacted that regulate the fully nude strip- club business. The district court dismissed all sixteen of the Club’s claims, six because they did not state a claim and ten because they were not yet ripe for the court’s review.
The Club appealed the district court’s dismissal as it pertains to all but Counts I, II, and part of Count VI. We agree that Counts III through VI failed to state claims. We also agree that one of the remaining claims was not ripe. And we affirm the district court’s dismissal of one more of those claims because the Club lacks standing to pursue it. But we conclude that the eight remaining appealed claims were ripe for the district court’s review and therefore reverse and remand to the district court for further proceedings.
All those footnotes at the beginning of the opinion make for fun reading:
1 Babe Ruth said that a great hitter didn’t “swing any harder” or “with any longer arc than the poorer hitters” but had “perfect timing sense.” George Herman Ruth, Babe Ruth’s Own Book of Baseball 178 (University of Nebraska Press, 1992) (1928); see also Nate Scott, “The 50 Greatest Yogi Berra Quotes,” USA Today Sept. 23, 2015, available at https://ftw.usatoday.com/2015/09/the-50-greatest-yogi-berra-quotes (last visited May 24, 2019).
2 According to Bob Hope, timing is “the essence of life and definitely of comedy.” William Robert Faith, Bob Hope: A Life in Comedy (Da Capo Press, Inc. 2009). Asked to comment further, he reportedly paused and said, “We don’t have time for that.” Dena Kleiman, “Bob Hope Gives a Lesson in Comedy,” New York Times, April 30, 1986, available at https://nyti.ms/2HLa4Mi.
3 Timing’s importance in winemaking was central to the Paul Masson advertising campaign from the late 1970s, which featured Orson Welles informing the viewer that the company would “sell no wine before its time.” See Orson Welles for Paul Masson Wine (April 2, 1979), YouTube (May 14, 2009), https://youtu.be/oSs6DcA6dFI, (last visited May 24, 2019).
4 Just ask Mila Kunis and Ashton Kutcher. They married in 2015, over a decade and a half after their first kiss—as actors in the pilot episode of That ‘70s Show. Stephanie Petit, “#TBT: Mila Kunis and Ashton Kutcher First Kissed on That 70’s Show,” People (July 21, 2016), https://people.com/tv/mila-kunis-and-ashton-kutcher-recall-first-kiss-on-that-70s-show/ (last visited May 24, 2019).
5 Pierre Trudeau is credited as saying that timing was the “essential ingredient” of politics. See The Wordsworth Dictionary of Quotations 439 (Connie Robertson, ed.,Wordsworth 1997).



Summer court closures

Have a great Memorial Day on Monday.  Courts are closed.

Federal court is also closed on July 5 per this Order from Chief Judge Moore.

While I'm on the Administrative Orders page, I saw these new magistrate judge pairings for the new district judges:

ORDERED that effective May 6, 2019, when Judge Ruiz begins receiving case transfers
from other District Judges, he will be paired with Magistrate Judge Barry S. Seltzer for all Fort
Lauderdale cases; Magistrate Judge Jacqueline Becerra for all Miami cases; and Magistrate Judge
Bruce E. Reinhart for all West Palm Beach cases.

AND

ORDERED that effective April 11, 2019, when Judge Altman begins receiving case transfers from other District Judges, he will be paired with Magistrate Judge Patrick M. Hunt for all Fort Lauderdale and Miami cases; and Magistrate Judge Dave Lee Brannon for all West Palm Beach cases.

Tuesday, May 21, 2019

“It has taken all of us many years to learn the rules of procedure and you’re going to have to study that and learn that yourself.”

That was Judge Roy Altman telling Yujing Zhang, the accused Chinese spy, that she shouldn't represent herself. Her response:
“If necessary, I might do some study in terms of this,” Zhang acknowledged.

“A trained lawyer would defend you much better than you could represent yourself,” Altman replied. “I strongly urge you not to represent yourself. ... I’ve been a lawyer for a very long time and I think this is a very bad decision.”

The Herald has more here.

One interesting issue that is happening more and more is a reporter reporting on overhearing a conversation between lawyer and client in the court. The Herald reported on such a conversation here calling it an "intense heart-to-heart."

Monday, May 20, 2019

Gorsuch joins "liberal" wing of Supreme Court on Tribal issue

This is the second time he has done so.  The holding:  Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Justice Sotomayor wrote the opinion, which can be accessed here.

Wednesday, May 15, 2019

Roy Black gives commencement address at the University of Miami School of Law

It was very powerful.  An excerpt:

We lawyers can not change the world

that is the province of politicians

we have a higher calling --

we change the lives of people.

Judaism has a saying:

If you save one life,

it’s as if you’ve saved the world.

today on the cusp of your career

I issue a challenge to each one of you:

WHO among you will rescue the children

being held in steel cages at our southern border --

children our government has classified as collateral damage.

WHO among you will seek DNA from death row inmates.

WHO among you will prosecute or defend

war criminals at The Hague.

WHO among you will to take on

the existential threat to our environment --

to treat the climate crisis as the biggest threat in human history.

WHO will continue the campaign

to ensure every American,

regardless of ability to pay,

has the basic human right to healthcare.

it is not a coincidence that this mission

began with a president who taught constitutional law.

WHO will attend 8am bail hearings for indigent prisoners

WHO will fight for each one of the 68 million refugees,

men, women and children

desperately fleeing

the monsters who make war on them,

whether they be:

the drug gangs of Central America,

Assad bombing and gassing the cities of Syria,

or the brutal warlords on the plains of Africa.

WHO among you will demand they be treated humanely,

and not turn a blind eye to their torture.

WHO will stand up against the bigotry directed at

African Americans, Native Americans, other people of color,

the jews, Muslims, Hindus, Sikhs, immigrants

and every other despised minority under attack today.

WHO among you will seek the closure

of our concentration camp at Guantanamo

and have the audacity to demand fair trials for terrorists.

WHO would step forward to defend

Julian Assange, or Bill Cosby

or the Stoneman Douglas high school assassin

Or would you rather join your peers at Harvard

who are protesting a law professor

daring to represent Harvey Weinstein.

I urge you not to fear the displeasure of the crowd

or the distaste of the trolls.

Our constitution and laws are toothless if they only protect those

who enjoy popular approval.

Tuesday, May 14, 2019

Kavanaugh v. Gorsuch

An interesting antitrust opinion with a 5-4 split involving Apple pitted the two newest Justices against each other yesterday.  From the New York Times:
The Supreme Court on Monday allowed an enormous antitrust class action against Apple to move forward, saying consumers should be allowed to try to prove that the technology giant had used monopoly power to raise the prices of iPhone apps.

The lawsuit is in its early stages, and it must overcome other legal hurdles. But the case brings the most direct legal challenge in the United States to the clout that Apple has built up through its App Store. And it raises questions about how the company has wielded that power, amid a wave of anti-tech sentiment that has also prompted concerns about the dominance of other tech behemoths such as Facebook and Amazon.

The court’s 5-to-4 vote featured an unusual alignment of justices, with President Trump’s two appointees on opposite sides. Justice Brett M. Kavanaugh, who joined the court in October, wrote the majority opinion, which was also signed by the court’s four more liberal justices. Justice Neil M. Gorsuch, who joined the court in 2017, wrote the dissent.

The class-action lawsuit focuses on the fees that Apple takes on sales in its App Store, which millions of people use every day to download games, messaging apps and other programs. The company charges up to a 30 percent commission to developers who sell their products through its store, bars them from selling their apps elsewhere and plays a role in setting prices. App makers have long complained that the fee and other practices are unfair.
Scotus has more here.

Sunday, May 12, 2019

"Kim Kardashian is the hero that criminal justice reform needs"

That's the title of my latest piece in The Hill, which you can read here.  The introduction:
A lot of people talk the talk about criminal justice reform, even though their records on reform are ... shall we say ... not sparkling. There are very few people who walk the criminal justice reform walk. Kim Kardashian is one of those actually working to make change. It shouldn’t be a big surprise that Kardashian has a deep-rooted passion for criminal defense as her dad, Robert, was also a well-known lawyer. 
She’s successfully working with President Trump on commutations and pardons. Kardashian saw a story on Twitter about Alice Marie Johnson and didn’t just retweet it. She did something and made it her mission to help the first-time nonviolent drug offender who was sentenced to life. She met with Johnson and then met with Trump. After 21 years in prison, Johnson was released. Kardashian literally saved her life and was quoted after hearing that Johnson was going to be released: "We cried, maybe, on the phone for, like, three minutes straight. Everyone was just crying." 
She’s funding lawyers who are working on freeing other inmates. There is so much work to be done with our over-incarceration problem because of the old War on Drugs policies, which resulted in thousands of people convicted of low-level drug offenses doing monster prison sentences, including life.  Kardashian is funding lawyers who are working on The Decarceration Collective and other initiatives (like #cut50 with Van Jones), including putting to work the First Step Act, the recent law meant to reform our criminal justice issues. In just the last 90 days, she has helped to free 17 prisoners. It’s truly remarkable work.

Tuesday, May 07, 2019

BREAKING -- RAAG SINGHAL BEING VETTED FOR OPEN DISTRICT SLOT

Great news -- Judge Raag Singhal is being vetted for an open district court seat in Ft. Lauderdale.  He currently sits on the Broward state bench (he was appointed by Rick Scott back in 2011 and was re-elected in 2014) and has wide support on both sides of the aisle.  He's a former state prosecutor and private defense lawyer.  Plus, he's a really good guy.  Here's hoping that he gets nominated and confirmed quickly.  After that, there will still be one opening left.  It's unclear whether the JNC will be reconstituted or whether Senators Rubio and Scott will just select someone.

CONGRATULATIONS TO JUDGE SINGHAL!

Monday, May 06, 2019

Judge Ruiz sworn in

There was a really nice informal swearing-in of Judge Ruiz at lunchtime today in Judge Moore's courtroom.  Judge Moreno -- who Judge Ruiz clerked for -- did the honors for a packed courtroom.  Here are some shots:




Thursday, May 02, 2019

Wednesday, May 01, 2019

Rudy Ruiz will be confirmed shortly

The motion to invoke cloture on Rodolfo Armando Ruiz II was agreed on 89-10.  He will be confirmed by the end of the week.

Judges, get your new set of transfer orders ready.

"Immoral and barbaric"

That was Judge Bob Scola in his recusal order discussing United Health's decision not to cover proton radiation treatment. More:
In early 2017, the Court was diagnosed with prostate cancer. In
determining the best course of treatment, the Court consulted with top medical
experts throughout the country. All the experts opined that if I opted for
radiation treatment, proton radiation was by far the wiser course of action.
Although the Court opted for surgery, rather than radiation, those opinions
still resonant.
Further, a very close friend of the Court was diagnosed with cancer in
2015. He opted to have proton radiation treatment at M.D. Anderson in
Houston. His health care provider, United Healthcare, refused to pay for the
treatment. Fortunately, he had the resources to pay $150,000 for the treatment
and only upon threat of litigation did United Healthcare agree to reimburse
him.
It is undisputed among legitimate medical experts that proton radiation
therapy is not experimental and causes much less collateral damage than
traditional radiation. To deny a patient this treatment, if it is available, is
immoral and barbaric.
The Court’s opinions in this matter prevent it from deciding this case
fairly and impartially.

Thankfully Judge Scola is healthy again. And what an amazing order.

Monday, April 29, 2019

"Hmm."

That's a paragraph in Judge Rosenbaum's dissent from the denial of en banc review in another fight about Johnson. Judge William Pryor wrote a lengthy opinion respecting the denial. Judges Martin and Rosenbaum each wrote responses.

Here's the Hmm language:

Perhaps for this reason, the Pryor Statement takes a second tack to argue prisoners incorrectly sentenced as career offenders pre-Booker have no cognizable
§ 2255 claim. In an unusual move, the Pryor Statement denies the reality that these prisoners were actually sentenced under a mandatory regime. It reasons that since the Supreme Court in Booker found that themandatory Guidelines violated the Sixth Amendment, they “were never really mandatory,” even though courts applied them that way for two decades. Pryor Statement at 22 (emphasis in original).

Hmm.

I doubt the perhaps 1,000-plus inmates3 who sit in prison right now because a court sentenced them using a mandatory version of the Guidelines with an indisputably unconstitutionally vague career-offender clause would agree.

Pryor and Rosenbaum also get into it on a metaphysical level:

Here's Pryor:

The second part of Judge Rosenbaum’s statement identifies the heart of my argument, but it offers no meaningful response. I have said that statements like “Booker made the Guidelines advisory” are ubiquitous but not precisely accurate. Judge Rosenbaum’s statement responds only by confirming that they are ubiquitous but makes no effort to refute my point that they are imprecise. See id. at 58–60. I have said that courts used to treat the Guidelines as mandatory but that, as Booker held, they committed legal error by doing so. Judge Rosenbaum’s statement responds only by insisting that courts used to treat the Guidelines as mandatory. See id. at 60. Her statement’s flotilla of quotations from the United States Reports, see id. at 58–59, ignores, first, that Booker held that the literal sense of those statements is false and, second, that courts routinely describe the terms and intended effects of statutes as if they were valid even as they hold the opposite. See, e.g., Murphy, 138 S. Ct. at 1483 (stating that the unconstitutional Professional and Amateur Sports Protection Act “banned the authorization of sports gambling in casinos” and “prohibited the spread of state-run lotteries”); Marbury, 5 U.S. at 176 (“The authority . . . given to the supreme court . . . appears not to be warranted by the [C]onstitution . . . .” (emphasis added)). The second part’s only direct response to my argument—that “the Booker Court did not make the Guidelines advisory because they were always advisory, since the Sixth Amendment never allowed them to be mandatory”—is that it “is certainly interesting on a metaphysical level.” Statement of Rosenbaum, J., at 60. I appreciate the compliment.


And Rosenbaum's response:

Today, though, the Pryor Statement chalks these remarks up to a failure of linguistic precision and seeks to rewrite history. See Pryor Statement at 17. According to the Pryor Statement, the Booker Court did not make the Guidelines advisory because they were always advisory, since the Sixth Amendment never allowed them to be mandatory. Id. at 19. That is certainly interesting on a metaphysical level.
But it ignores reality. Back here on Earth, the laws of physics still apply. And the Supreme Court’s invalidation of a law does not alter the space-time continuum. Indeed, there can be no dispute that from when the Guidelines were adopted in 1984 to when the Supreme Court handed down Booker in 2005, courts mandatorily applied them, as § 3553(b) required, to scores of criminal defendants—including many who still sit in prison because of them.
It’s also a particularly mindboggling bit of judicial fiction to, in one breath, conclude that the Guidelines were always advisory, and in the next, withhold relief from individuals in Lester’s circumstances by noting the advisory Guidelines do not apply retroactively because Booker is a procedural rule, even though, according to the Pryor Statement, the Guidelines always were advisory. Under the Pryor Statement’s reasoning, the Guidelines were never mandatory, but to inmates like Lester, they will always be mandatory, since these prisoners remain subject to their punishment. This heads-I-win-tails-you-lose logic cannot withstand scrutiny. Either the Guidelines were never mandatory, in which case, Lester and inmates like Lester would not have been sentenced under the mandatory regime or at least would not remain in prison because of the mandatory regime (a circumstance that is clearly not the case), or they were mandatory until Booker ruled they weren’t, and inmates like Lester can mount Johnson challenges.

Monday morning Endgame and Battle of Winterfell edition

No spoilers here, but if you're like most, you watched a lot of on-screen battling this weekend. 

We have our own Game of Thrones with Dems and Republicans battling it out.  Who are the White Walkers?  The latest battle... the census.  Here's former AG Eric Holder saying that the other side is trying to "weaponize" the census question:

Following oral arguments earlier this week, I’m deeply concerned that the Supreme Court appears willing to allow the Trump administration to weaponize the 2020 Census to determine where political and economic power in the United States should reside. Allowing the administration to demand citizenship information from every household as part of the decennial census for the first time in more than half a century would dramatically depress the count in areas with significant Latino and immigrant populations and would reposition political representation toward areas more likely to elect Republicans. Yet a 5-to-4 opinion along ideological lines in this case would further erode the public’s trust in the Supreme Court as an apolitical body.

Litigation over the inclusion of a citizenship question has raised significant constitutional concerns. It has also clearly shown that the Commerce Department violated the Administrative Procedure Act in failing to appropriately test its proposed change to the census questionnaire. Part of the purpose of the APA is to ensure that federal agencies do not inject ideological considerations into what are supposed to be fact-based determinations, precisely what Commerce Secretary Wilbur Ross has done.

Ross falsely claimed that he added the citizenship question “solely” at the request of the Justice Department so that it could more effectively enforce the Voting Rights Act. Given the total lack of VRA enforcement by the Trump administration, this is both untrue and rank hypocrisy. And the litigation process revealed that in 2017, Ross planned the addition of a citizenship question with his staff, as well as former White House official Stephen K. Bannon and then-Kansas Secretary of State Kris Kobach, two of President Trump’s radical, anti-immigrant political advisers, before broaching the subject with Justice Department leadership.

Wednesday, April 24, 2019

News & Notes

1. Is "chalking" your car a violation of the 4th Amendment? Yup, according to the 6th Circuit in this case. Orin Kerr discusses here:

From a practical perspective, this is a really important decision. It concludes that a routine practice that wasn't thought to be illegal (if it was thought of at all) is actually unconstitutional. I'm not sure if the decision is correct. And as I'll explain below, there are several plausible but debatable moves in the opinion. But this decision is now binding in the Sixth Circuit and may also be followed elsewhere: Traffic enforcement officers around the country should be paying attention to this.
2. What's going to happen with the census question in SCOTUS. Most are predicting a conservative 5-4 ruling. Mark Joseph Stern explains why the conservatives are being hypocritical:
To uphold the citizenship question, the court’s conservatives will have to feign respect for the Voting Rights Act, international law, and agency deference—three of their greatest enemies in any other context. In the process, they’ll have to pretend that Ross’ absurd pretexts, his many lies and obfuscations, are believable, even reasonable. And they appear willing to do exactly that to let Ross and Trump have their way. Such a decision would be an embarrassment to the judiciary, evidence that a majority of the justices place the goals of the Republican Party above the truth. A partisan ruling in this case would diminish the court’s legitimacy and fuel support for the addition of more justices. If SCOTUS abandons any pretense of neutrality and throws its weight behind the Trump administration, court packing may come to look like the only sensible option to save democracy from its wayward guardians.
3.  Meantime in our District, the word is the newly-minted Judge Roy Altman has a stable of cases now and has brought the parties in for status conferences.  He will be having a busy summer.  The big question -- will he get to send cases to the two new judges who will be coming shortly.

Monday, April 22, 2019

Michael Avenatti case has Miami connection

The L.A. Times has the story about Avenatti being accused of stealing $1.5 million from Hassan Whiteside and his girlfriend here:

When Hassan Whiteside of the Miami Heat wired $2.75 million to Michael Avenatti in January 2017, the pro basketball player intended most of the money to go to his former girlfriend, Alexis Gardner.

Avenatti was Gardner’s attorney. An actress and barista, she’d hired him just a few weeks before to negotiate a settlement of a potential lawsuit against Whiteside. It’s unclear what she would have alleged. Avenatti quickly struck a $3-million deal, and the $2.75 million was Whiteside’s first payment.

Avenatti, prosecutors say, was entitled to take just over $1 million in legal fees, leaving the rest for Gardner.

Instead, they allege, Avenatti hid Whiteside’s payment from her and immediately took $2.5 million to buy a share of a private jet.

Thursday, April 18, 2019

Federal prosecutors are trying to bully 'Aunt Becky' into pleading guilty

That’s the title of my piece this week in The Hill. From the intro:

Let’s put aside whether we really want cheating on a test or lying on a resume to become a federal crime. And let’s also put aside whether we really want cheating on a test to result in federal prison time.  A larger problem with the criminal justice system is being exposed with the college admissions scandal — federal prosecutors are bullies. As we are seeing in the college admissions case, they bully defendants to plead guilty in at least 5 ways:

And one of the ways:

Threatening charges against family members. In other words, “Plead guilty or your family will pay!” Criminal defense lawyers across the country can empathize with this threat because it’s frequently made by federal prosecutors. And in this case, prosecutors have sent target letters to some of the adult children of people charged. The message is clear — if you plead guilty and fall on the sword, we will not go after your kids. Shame on prosecutors for using those kinds of threats to force guilty pleas.



Let me know your thoughts on the rest of the piece before you turn your attention to the Mueller report.

Tuesday, April 16, 2019

Big en banc 4th Amendment opinion comes down 7-5

It's the usual battle lines in United States v. Paul Johnson, Jr.

William Pryor for the majority, which includes Ed Carnes, Tjoflat, Marcus, Newsom, Branch and Grant. Newsom concurs, Branch concurs (joined by Grant), Jordan dissents, Rosenbaum dissents, and Jill Pryor dissents (joined by Wilson, Martin, and Jordan).

Lots of interesting writing and fighting here.

Pryor starts off this way:
This appeal requires us to decide whether a police officer violated the Fourth Amendment when he removed a round of live ammunition and a holster from the pocket of a suspect during a protective frisk, see Terry v. Ohio, 392 U.S. 1 (1968). At 4:00 a.m., the officer responded to a call about a burglary in progress in a high-crime area. When the officer arrived at the scene, he saw Paul Johnson, who matched the burglar’s description, standing in a dark alley. After detaining Johnson, the officer frisked him and immediately recognized that he had a round of ammunition in his pocket. The officer removed the ammunition and an empty holster covering it. He then canvassed the area and found two pistols less than a foot from where he first saw Johnson. After a grand jury indicted Johnson for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1), he moved to suppress the pistols, ammunition, and holster, but the district court denied his motion. A panel of this Court reversed. United States v. Johnson, 885 F.3d 1313 (11th Cir.), reh’g en banc granted, op. vacated, 892 F.3d 1155 (11th Cir. 2018). We then vacated that decision and ordered rehearing en banc. We now affirm the denial of Johnson’s motion to suppress because the officer was entitled to seize the ammunition to protect himself and others.

Newsom writes a concurrence saying that both sides have nice totality of the circumstances arguments and that on balance he's with the majority, but he favors bright lines and would end up saying that cops can always seize a bullet:
So in the next “bullet case,” rather than asking—or worse, requiring the responding officer to ask—whether the neighborhood is sufficiently scary, the hour sufficiently late, the light sufficiently dim, and the suspect and scene sufficiently secure, I would simply hold that the Fourth Amendment permits the protective seizure.

Branch agrees (Grant joins) with Newsom but writes separately without all of the nice stuff about the dissents:
Because I conclude that a bullet falls in to the category of “guns, knives, clubs, or other hidden instruments for the assault of the police officer,” id. at 29, and cannot logically be separated from a gun for Terry purposes, I would find that anytime an officer conducts a lawful Terry frisk, the officer may seize any bullet located during the frisk.

Jordan dissents and says, what about originalism? Originalism would not have allowed this to go forward and all of those in the majority who are generally champions of originalism are awfully quiet now:
Relying on Justice Scalia’s originalist position, Mr. Johnson argues that we should construe Terry narrowly, and not extend it to allow the seizure and removal of items that are neither weapons nor contraband. See Mr. Johnson’s En Banc Br. at 18-23. But the majority barely acknowledges this argument, and declines to address its merits. According to the majority, we are bound by Terry, and must therefore ignore the original understanding of the Fourth Amendment.2
The majority is correct that Terry constitutes binding precedent, and that no one on this court can wish it away. But accepting Terry does not require extending its reach on an issue of first impression. Terry permitted pat-downs for weapons, and only weapons. See Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979) (“Nothing in Terry can be understood to allow . . . any search whatever for anything but weapons.”). By allowing officers to seize a stand-alone bullet from an unarmed suspect who is in handcuffs and being held at gunpoint by several officers, the majority expands Terry beyond its “narrow scope.” Dunaway v. New York, 442 U.S. 200, 210 (1979).

Rosenbaum dissents, arguing that the majority is answering a question that was never briefed or argued:

Today we hold that any ammunition may always be seized during a frisk when the searching officer immediately identifies it as ammunition, regardless of any surrounding circumstances. This is a new rule that we did not ask the parties to address, that neither party briefed, and that the government expressly declined to adopt at oral argument.
Indeed, during oral argument, the Court asked the government, “Once you feel the bullet, the officer can seize the bullet. Is that the government’s position?” Recording of Oral Argument dated Oct. 24, 2018, at 38:58. And the government responded without equivocation, “No, Your Honor.” Id. Then the government explicitly stated, “We are not asking the Court to rule that a bullet in isolation in all circumstances would be sufficient to reach in [to the pocket and seize]; we are asking the Court to apply the facts-specific Fourth Amendment tests that this Court has applied and other courts have applied . . . under the totality of the circumstances.” Id. at 51:34.1
Because we operate only “as arbiters of legal questions presented and argued by the parties,” Nat’l Aeronautics & Space Admin. v. Nelson, 562 U.S. 134, 148 n.10 (2011) (citations and internal quotation marks omitted), once the government disclaimed the per se rule at oral argument, we were left with only two permissible options: apply a true totality-of-the-circumstances test or rehear the case, ask the per se question to the parties and, if necessary, appointed counsel, and analyze the arguments presented. Instead, the Majority Opinion takes a third route and adopts the new per se rule on its own. That new rule may well be correct. Or it may not. But if we wanted to consider such a rule, we should have asked the parties to brief and argue it in this en banc proceeding, instead of asking them to brief and argue a more discrete question.

Judge Rosenbaum is the Kagan of our Circuit. A glimpse here from the conclusion:
Charades may be fun at parties, but not in judicial opinions where officer safety and privacy rights hang in the balance. I therefore respectfully decline to engage in that activity.12
IV.
Today we issue a new rule we did not ask the parties to brief, they did not brief, and the government expressly disavowed. And we do this even though we could have obtained the parties’ input on the question we decide today. I respectfully decline to participate in that activity. The parties’ testing of the issues we decide is and should be the engine that drives our adversarial system.

Jill Pryor's dissent (joined by Wilson, Martin, and Jordan) defends the panel decision:
The panel correctly held that the seizure of a bullet and holster from the pocket of Mr. Johnson—who was compliant with officers’ commands, on the ground, handcuffed behind his back, and held at gunpoint by several officers—constituted an unreasonable seizure under Terry and its progeny. See United States v. Johnson, 885 F.3d 1313, 1323-24 (11th Cir. 2018). With respect, I dissent from the majority opinion’s contrary holding.


The Supreme Court addresses whether FUCT can be trademarked

The issue at yesterday’s oral argument was whether Section 2(a) of the Lanham Act’s prohibition on the federal registration of “immoral” or “scandalous” marks is facially invalid under the free speech clause of the First Amendment.

Some background from SCOTUSblog:
This case arose when Erik Brunetti applied to register his trademark FUCT for use as a brand for clothing. Brunetti started a streetwear company in 1990 with professional skateboarder Natas Kaupas, and later applied to register the trademark with the USPTO. The examining attorney rejected Brunetti’s trademark application on the basis that the mark is a phonetic equivalent of a vulgar word. The Trademark Trial and Appeal Board affirmed the refusal, finding that the examiner had provided sufficient evidence that a substantial composite of the general public would find the mark vulgar. The TTAB stressed that consideration of the constitutionality of Section 2(a) was beyond the scope of jurisdiction of the TTAB.

On appeal, the U.S. Court of Appeals for the Federal Circuit agreed that substantial evidence supported the board’s findings that the FUCT mark is vulgar and was therefore unregistrable under Section 2(a). However, it ultimately reversed the board’s holding. The Federal Circuit found that the bar on registering scandalous and immoral trademarks is a content-based restriction on free speech in violation of the First Amendment.

This case arises in the aftermath of, and perhaps as a natural consequence of, Matal v. Tam, which struck down the registration bar for the other type of offensive trademarks — those deemed disparaging. In Tam, the Supreme Court held that trademarks are private, not government, speech, and an examiner may not refuse to register trademarks based on the particular viewpoint the trademarks express. Because the disparagement provision in Section 2(a) denied registration to any trademark that was deemed disparaging by a substantial composite of the referenced group, it discriminated based on viewpoint: “Giving offense is a viewpoint.” The court found that whether strict scrutiny or a more lenient standard used to evaluate the constitutionality of restrictions on commercial speech under Central Hudson Gas & Electric Corp. v. Public Service Commission of New York applied, the provision could not withstand either level of review because it was not narrowly tailored to serve a substantial government interest. Justice Anthony Kennedy explained in his concurrence that “the central purpose of trademark registration is to facilitate source identification… Whether a mark is disparaging bears no plausible relation to that goal.”

There were legal gymnastics at oral argument not to say the word FUCT. More from SCOTUSBlog:

Sommer has pre-empted the warning that has typically come from the court about not using profane or vulgar language during arguments in past cases involving Paul Cohen’s “F**k the Draft” message on the jacket he wore in a courthouse, George Carlin’s “Filthy Words” routine (or the “seven words you can’t say on the public airwaves”), and the “isolated utterances” of obscene words on television.

An amicus brief on Brunetti’s side from the Cato Institute, besides offering its own thoughtful take on the importance of vulgar language in society, directs readers to a fascinating article in a 2012 issue of the William & Mary Bill of Rights Journal by Thomas Krattenmaker, who was a law clerk to Justice John Marshall Harlan. In Cohen v. California, Harlan (and mostly Krattenmaker, by his account) wrote the opinion for the court that said the anti-draft message on the jacket was protected from criminal prosecution by the First Amendment.

Krattenmaker relates the well-known fact that before oral argument in Cohen in the fall of 1970, then-Chief Justice Warren Burger sought to head off the use of the offending word by telling Cohen’s lawyer that the justices were familiar with the facts of the case. But the lawyer, Melville Nimmer, used the word in response to the first question he received. Krattenmaker further relates that Nimmer worried that court security personnel might jump up and say, “He said F*** in the Supreme Court, grab him!”

No one grabbed Nimmer that day, of course.

***
One thing the justices seem to agree on this morning is that the Trademark Office has been thoroughly inconsistent in its treatment of trademark applications involving the “seven dirty words” and their variations.

Justice Neil Gorsuch refers to the appendix at the end of Brunetti’s merits brief, which provides a four-page guide to those inconsistencies with examples that would make any sailor blush.

“There are shocking numbers of ones granted and ones refused that do look remarkably similar,” Gorsuch says.

(The appendix is part of the printed “red brief,” but is a separate document in the court’s docket for the case. Parental Guidance suggested. And by that, we mean that some parents may need to consult their 20-something children for explanations.)

We weren’t surprised to learn that the motto on the wallet of Samuel L. Jackson’s character (Jules) in “Pulp Fiction” was rejected for federal trademark protection. (As Jules puts it in the classic 1994 Quentin Tarantino film, “It’s the one that says ‘Bad Mother F*****.’”)

When Stewart starts to discuss an example by spelling out a phonetic equivalent for the profane past participle form of the word at issue, Gorsuch cuts him off.

“I don’t want to go through the examples. I really don’t want to do that,” he says to laughter from the courtroom.


Monday, April 15, 2019

Senate takes Spring Break

The Senate is off for the next two weeks, which means that the vote on Rudy Ruiz likely won’t happen until they are back. So judges will have to wait on the next batch of reassignment orders...

Friday, April 12, 2019

Roy Altman has been sworn in (UPDATED with news regarding Rudy Ruiz)

UpdateThe Senate is moving forward with Rudy Ruiz on Monday with the cloture motion ripening.  He should be confirmed early next week.  

Judge Marcus had the honor of swearing in Roy Altman yesterday.  Not minutes later, judges started reassigning cases to Judge Altman!

Here's a nice picture of the event:


Wednesday, April 10, 2019

Esformes forfeiture verdict

The Esformes trial is finally over ...

The forfeiture trial was Monday, and the jury deliberated and reached a verdict yesterday.  But only after some drama in which there were a flurry of notes saying that they were hung and that one jury was holding out for the defense.  But the jury ended up coming back, refusing to forfeit most of the assets the government was asking for. Instead, it decided that the government was entitled to interests in the operating companies for seven facilities.

Next up is sentencing.

Monday, April 08, 2019

The Secret Service plugged Zhang's thumb-drive into its computer

Um, whoops?

Yujing Zhang, the woman who was arrested at Mar-a-Lago, with her thumb-drive had her bond hearing today in West Palm Beach.  She was represented by the Federal Public Defender's office.  This gem came out during the agent's testimony (via the Miami Herald):
On Monday, wearing a short-sleeved, navy-blue detainee uniform and chewing her lower lip, Zhang glanced repeatedly at the crowd of journalists who had gathered for the hearing. Her hands were clenched in fists so tight they began to turn red. She appeared to speak in English with one of the attorneys representing her, although a court-appointed Mandarin interpreter was also present. When the hearing started, she began taking notes on a yellow legal pad.

Adler, Zhang’s attorney, pushed back during the hearing on the idea that she was a spy.

“She did not have the type of devices that can be associated with espionage activities,” he said.

Garcia, the prosecutor, replied that “there is no allegation [in the criminal complaint] she was involved in espionage ... all of this is irrelevant.”

“That’s good to know,” Adler said.

Later, Garcia said he could not rule out more serious charges.

“There are a lot of questions that remain to be answered,” he told the judge.

Investigators are still trying to determine the nature of the malware Zhang allegedly brought into the club, sources told the Herald. It is not clear how much of a threat the malware posed and whether it might have been intended to gather information at the president’s club or possibly to destroy an existing network or program, they said.

Secret Service agent Samuel Ivanovich, who interviewed Zhang on the day of her arrest, testified at the hearing. He stated that when another agent put Zhang’s thumb drive into his computer, it immediately began to install files, a “very out-of-the-ordinary” event that he had never seen happen before during this kind of analysis. The agent had to immediately stop the analysis to halt any further corruption of his computer, Ivanovich testified. The analysis is ongoing but still inconclusive, he said.

Insys case to jury

In addition to Esformes, there is another huge health care trial that just went to the jury after 43 days of testimony.  It’s known as the Insys case and it involves John Kapoor, the CEO of Insys, in Boston federal court.  From NPR:
Kapoor, the founder of Insys Therapeutics, allegedly oversaw a marketing strategy that paid doctors more than $1 million to prescribe Subsys in high doses — often to patients who did not need it. Subsys is a highly addictive opioid painkiller up to 100 times stronger than morphine.

Then, prosecutors claim, Insys set up a call center to ensure the expensive medication was covered by insurers. At the call centers, Insys employees allegedly pretended to be from doctors' offices and fabricated diagnoses and other information necessary to get the medication approved.

"The decisions, the money, the strategy came from the top," Yeager said. The obligation of physicians to "first, do no harm, became: First, do what you're told."

Yeager showed the jury internal company spreadsheets detailing how much money Insys had paid each doctor and the ROI, or return on investment, from those payments. That is, exactly how much money the company was making back via prescriptions from each doctor it had paid. Yeager suggested it should be called ROB — "return on bribe."

***

Kapoor, the founder of Insys Therapeutics, allegedly oversaw a marketing strategy that paid doctors more than $1 million to prescribe Subsys in high doses — often to patients who did not need it. Subsys is a highly addictive opioid painkiller up to 100 times stronger than morphine.

Then, prosecutors claim, Insys set up a call center to ensure the expensive medication was covered by insurers. At the call centers, Insys employees allegedly pretended to be from doctors' offices and fabricated diagnoses and other information necessary to get the medication approved.

"The decisions, the money, the strategy came from the top," Yeager said. The obligation of physicians to "first, do no harm, became: First, do what you're told."

Yeager showed the jury internal company spreadsheets detailing how much money Insys had paid each doctor and the ROI, or return on investment, from those payments. That is, exactly how much money the company was making back via prescriptions from each doctor it had paid. Yeager suggested it should be called ROB — "return on bribe."

Friday, April 05, 2019

Philip Esformes verdict -- Hung on Health Care, convicted of other counts (UPDATED & EDITED)

The Philip Esformes jury came back this morning -- hung jury on the main counts of health care and found guilty of other counts (including the kickback and money laundering counts) after a hard fought trial and lengthy deliberation.

Both sides will claim victory (as is happening in the press). The defense can argue that it won because of a hung jury on the main health care counts after a long trial.  The defense will argue that the case was billed as the largest health care fraud case but it resulted in no health care fraud count convictions.  That may be true for the lawyers, but it will be a tough sell when Esformes is ultimately sentenced. And the government can certainly say that it won with lots of convictions and no acquittals.  It will be interesting to see what sentence is ultimately handed out.  (I’ve edited this paragraph of this post a few times after thinking about the verdicts and what they mean.)

The poor jury thought they were done with the case, but now have to come back on Monday to handle the forfeiture portion of the trial.

Update— actually, the jury knew it would have to come back. Judge Scola informed them that after phase 1, there would be a few more days of evidence.

Wednesday, April 03, 2019

Senate goes nuclear over Roy Altman

There's a lot of political back and forth over Trump's recent judicial nominees.  Miami is always ground zero, and it was here too as Altman was the first judicial selection to test the nuclear option today.  And boom, the Senate did go nuclear, and the bottom line is that the final vote for Altman will be tomorrow (Thursday) at 11:45. He will very likely be our newest district judge.

Here's Roll Call explaining a little more about the process.  And here are some tweets by the Senate Cloakroom with what happened today:

  • Votes Scheduled: At 11:45am TMRW the Senate will proceed to 2 votes: 1.Confirmation of Cal. #32 Altman to be U.S. District Judge for the Southern District of FL
  • Invoked, 66-33: Motion to invoke cloture on Executive Calendar #32 Roy Altman to be U.S. District Judge for the Southern District of Florida 
Interestingly, because Altman will be confirmed first, he will have seniority over Ruiz and Smith.

Tuesday, April 02, 2019

In Defense of Joe Biden

That’s my latest piece in The Hill. The intro:

It’s official: The pendulum of #MeToo claims has now swung too far. When a friendly gesture with no sexual intent is labeled a reprehensible act that should be subject to public shaming and even disqualification from public office, it is time that we all recognize that we are starting to lose perspective.
Let’s be clear before I continue: I am not talking about the crass comments by the current President that it’s okay to “grab [women] by the pussy” or inappropriate sexual relations between then-President Clinton and an intern. Those are clearly beyond the pale. But the “allegations” against Joe Biden — that he touched Linda Flores’ shoulders and kissed the back of her head — are very different.

Biden is an affectionate guy, but in a grandfatherly sort of way. He explained: “In my many years on the campaign trail and in public life, I have offered countless handshakes, hugs, expressions of affection” and never intended to disrespect or cause any harm to Flores or anyone else. But Flores has gone so far as to say that Biden’s intent is irrelevant. Kelly Ann Conway has repeated this argument, saying that it does not matter what Biden intended.

Of course Biden’s intent is relevant. It’s the most important question here. That’s why Stephanie Carter, wife of secretary of Defense at the Pentagon, has had to publicly speak out about the picture of her and Biden that is making the rounds again. As Carter made clear, "The Joe Biden in my picture is a close friend helping someone get through a big day, for which I will always be grateful. So, as the sole owner of my story, it is high time that I reclaim it – from strangers, Twitter, the pundits and the late-night hosts."
Please read the whole thing and lemme know your thoughts...