Thursday, August 22, 2019


That's a sentence from this introductory paragraph by Judge Newsom:
You can’t make this stuff up. We have hair-pulling, wrist-scratching, facepunching, and rock-throwing—all the makings of a good old-fashioned schoolyard scrap. But alas, the combatants in the fracas underlying this Fourth Amendment case were grown-ups—sisters, in fact. Sheesh. Sister No. 1, Lori Huebner, was arrested for simple battery following an altercation with Sister No. 2, Kathleen Dobin. Huebner later sued Deputy Peter McDonough, alleging that he violated her Fourth Amendment rights (1) by arresting her without probable cause—in particular, by relying on what she claims
was untrustworthy information and by failing to conduct an adequate investigation—and (2) by using excessive force in the course of effectuating the arrest. The district court granted summary judgment to McDonough, and Huebner now appeals. We hold that McDonough had ample probable cause to arrest Huebner—the underlying information indicating that she had battered her sister was credible and his investigation was  sufficient—and that McDonough didn’t use excessive force in making the arrest.
 Enjoy the rest of the opinion.

Tuesday, August 20, 2019

Prosecutor’s use of an agent as an expert witness is plain error

We’ve all been in trials where the government tries to use a case agent as an expert witness to testify as to why what the defendant was doing is criminal.  The 11th Circuit decided an important case (U.S. v. Hawkins) today putting an end to this practice.
That brings us to the matter of Agent Russell’s trial testimony. Hawkins and McCree argue that Agent Russell “went far beyond permissible testimony” when he repeatedly provided “speculative interpretive commentary” on the meanings of phone calls and text messages and gave his opinions about what was occurring during and in between those communications. We agree.
Agent Russell—a lieutenant with the Montgomery Police Department assigned to the DEA’s High Intensity Drug Trafficking Area task force from 2011 through 2015—was both the lead case agent in the investigation and the Government’s principal witness at trial. He provided extensive testimony about the drug trade, the investigation, and the intercepted phone calls, and—contrary to the Government’s puzzling contention otherwise—he was presented as an expert to the jury.
Hawkins and McCree acknowledge that experienced narcotics agents may testify as experts to help juries understand the drug business, codes, and jargon; indeed, this Court has repeatedly so held. See, e.g., Holt, 777 F.3d at 1265 (“‘The operations of narcotics dealers are a proper subject for expert testimony under [Federal Rule of Evidence] 702,’ and ‘an experienced narcotics agent may testify as an expert to help a jury understand the significance of certain conduct or methods of operation unique to the drug distribution business.’” (quoting United States v. Cesar Garcia,14 447 F.3d 1327, 1335 (11th Cir. 2006))). But that is not the problem here.
Much of Agent Russell’s trial testimony “was not specific to his interpretation of drug codes and jargon” and “went beyond interpreting code words to interpret conversations as a whole.” United States v. Emmanuel, 565 F.3d 1324, 1336 (11th Cir. 2009). During his extensive time on the witness stand, Agent Russell “interpreted” unambiguous language, mixed expert opinion with fact testimony, and synthesized the trial evidence for the jury. His testimony strayed into speculation and unfettered, wholesale interpretation of the evidence. Allowance of this testimony constituted plain error.

Sunday, August 18, 2019

Judges hit "reply all" too

The DC district court had a bit of a dust-up this week when an email war between judges went public.  From the Washington Post:
A clash between judges on two federal courts in Washington has created an early, unusual test of new rules intended to make sure courthouses across the country are civil, harassment-free workplaces.

And it has exposed the perils of the reply-all email, even among judges for life.

A U.S. District Court judge forwarded an email to about 45 judges and their staffs to flag an upcoming climate-change seminar co-sponsored by the research and education agency of the judiciary branch. His note said, “just FYI.”

Within an hour a judicial colleague responded sharply to the group, questioning the first judge’s ethics and urging him to get “back into the business of judging, which are what you are being paid to do.” He also said, “The jurisdiction assigned to you does not include saving the planet.”

The correspondence, which sparked a lively exchange involving other judges, amounted to an unusual exposure of private conversations on the federal bench. It also poses the question of how the judiciary now will police itself in such instances.


The controversy began the evening of July 3, when Sullivan forwarded the invitation.

Soon after, Randolph, who serves on the U.S. Court of Appeals for the District of Columbia Circuit, replied all. He chided Sullivan for “subjecting our colleagues to this nonsense” and suggested he had crossed an ethical line. He asked: “Should I report you? I don’t know.”

“The jurisdiction assigned to you does not include saving the planet. A little hubris [sic] would be welcomed in many of your latest public displays,” Randolph wrote.

“The supposedly science and stuff you are now sponsoring is nothing of the sort,” his email continued. “Get out of this business and back into the business of judging, which are what you are being paid to do.”

Problem is that the seminar was approved by the Federal Judicial Center (where Chief Justice Roberts sits) forcing Randolph to back down.  He issued a half-apology:
More than two weeks after his initial note, Randolph again addressed the email list. After learning more about the Environmental Law Institute’s program and the judiciary’s co-sponsorship, he wrote: “While I continue to disagree with their conclusion about the propriety of the program, I think their position is fairly held.”

Given that, he wrote, “I do not believe that Judge Sullivan acted improperly in circulating the invitation to ELI’s program.”
Oh, how nice of you. I know the judges in our district would not give you acceptance points for that.

In addition to judges behaving badly, the executive branch is under more fire. This time in Kansas City. This is pretty remarkable:
A federal judge in a scathing order this week held the U.S. Attorney’s Office in Kansas in contempt of court for its pattern of misrepresentations, obfuscation and lack of cooperation during an investigation into a growing scandal.

A ruling by U.S. District Court of Kansas Judge Julie Robinson late Tuesday capped a three-year probe that examined the extent to which federal prosecutors in Kansas had accessed recordings of confidential phone calls and meetings between defense attorneys and their clients at a private prison in Leavenworth.

Conversations between clients and their attorneys are confidential in nearly all aspects. Robinson found that federal prosecutors in Kansas determined on their own that they could access recordings of these discussions, tainting several criminal cases along the way.

At least three criminal defendants in Kansas have had their sentences vacated or their indictments dismissed as a result of the scandal. More than a hundred others have filed petitions for similar relief.

“The Government’s wholesale strategy to delay, diffuse, and deflect succeeded in denying the individual litigants their day in court for almost three years,” Robinson wrote as part of a 188-page ruling.

Thursday, August 15, 2019

Judge Rudy Ruiz investiture

It was a really nice event to a packed house (including two overflow rooms) with heartfelt speeches from Justice Robert Luck, Judge Federico Moreno, and from Judge Ruiz himself.

Meantime, in the 11th Circuit, Judge Newsom wrote an opinion with a shoutout to teenage readers:
The puffery “doctrine” presumes a relatively (but realistically) savvy consumer—the general idea being that some statements are just too boosterish to justify reasonable reliance. In general parlance, “puffing” is “seller’s or dealer’s talk in praise of the virtues of something offered for sale.” Webster’s Third New International 1838 (2002). Perhaps closer to home for our purposes, it refers to an “expression of an exaggerated opinion—as opposed to a factual misrepresentation—with the intent to sell a good or service.” Black’s Law Dictionary 1428 (10th ed. 2014). As Judge Learned Hand once put it, “[t]here are some kinds of talk which no sensible man takes seriously, and if he does he suffers from his credulity.” Vulcan Metals Co. v. Simmons Mfg. Co., 248 F. 853, 856 (2d Cir. 1918). Think, for example, Disneyland’s claim to be “The Happiest Place on Earth.” Or Avis’s boast, “We Just Try Harder.” Or Dunkin Donuts’s assertion that “America runs on Dunkin.” Or (for our teenage readers) Sony’s statement that its PlayStation 3 “Only Does Everything.” These boasts and others like them are widely regarded as “puff”— big claims with little substance.

Wednesday, August 14, 2019

Raag Singhal officially nominated to the District Court

Back in May, the blog reported that state court judge Raag Singhal was being vetted for an open district court seat in the Southern District of Florida.  Today, President Trump made his nomination official.  Congrats to Judge Singhal.  He's going to be great.  From the press release:

Anuraag “Raag” Singhal of Florida, to serve as Judge on the United States District Court for the Southern District of Florida.
Raag Singhal serves as a Circuit Court Judge for the 17th Judicial Circuit in Broward County, Florida, having been appointed to the bench by then-Governor Rick Scott in 2011. Before his appointment, Judge Singhal was in private practice in Fort Lauderdale where his practice focused on criminal defense in both the trial courts and courts of appeals. Early in his career, Judge Singhal served as a prosecutor in the Office of the State Attorney. Judge Singhal earned his B.A. from Rice University and his J.D. from Wake Forest University School of Law.

Tuesday, August 13, 2019

Gerald Tjoflat to take senior status

Big news out of the 11th Circuit today, as Judge Tjoflat is taking senior status upon the confirmation of his successor.  Tjoflat turns 90 in December and was a member of the 5th Circuit before the court split.  He is the longest serving judge in active service.

Monday, August 12, 2019

Was this cross examination “scandalous”? (TWO UPDATES)


There was a little dust-up on the FACDL Listserv this weekend over a cross examination conducted by an assistant public defender named Carl Vizzi back in the mid-80s.  I had never heard of Vizzi or this cross, but the AP covered it back in the day.  The cross won Vizzi’s client an acquittal and also landed him in jail.
During cross-examination of the alleged victim on Wednesday, Vizzi called her an exhibitionist and her husband a voyeur, adding, ″You turn tricks, don’t you?″

At one point, Vizzi slammed two quarters on the witness stand and said, ″You’ll dance nude for 50 cents. What would you do for a dollar?″

The woman charged that the defendant kidnapped and raped her, but the man claimed he had paid the woman for sex.

Holding Vizzi in contempt, Donner said, ″Any rape victim who had the misfortune to observe your conduct would have never continued with a rape prosecution.

″The cross-examination was scandalous, to say the least.″

Vizzi told Donner that he did not mean to violate her orders.

″I defended this man vigorously because I honestly believed he was falsely accused,″ he said.
How would this cross have gone over in today’s climate where the ABA in considering a resolution that would shift the burden to defendants to show affirmative consent. After numerous organizations opposed the resolution, it appears to be dead.

UPDATE — A helpful commenter points out the 3rd DCA case on the contempt order, which was upheld. Some additional cross, which formed the basis of the contempt order:
"Q. Isn't this place a front for prostitution?
MR. BAGLEY: Objection; this is irrelevant, Judge.
THE COURT: Sustained.
. . . .
Q. Isn't it true that girls that work at Live Peeps will often take coffee breaks to do things with the customers who liked how they danced and liked their body —
MR. BAGLEY: Objection.
Q. — and wanted to do a little bit more with them that could be done in those rooms where you work?
Isn't it true that that happens all the time?
MR. BAGLEY: Objection; improper question. It's a compound question and furthermore its irrelevant.
THE COURT: Sustained."
Later, he engaged in the following cross examination of the complainant which led to his contempt conviction:

"Q. Isn't it true that your 19-year-old now-husband doesn't like you to work after hours doing extra things other than work at Live Peeps?
MR. BAGLEY: Objection, your Honor; that's irrelevant.
THE COURT: Sustained. Move on, Mr. Vizzi.
Q. Isn't it true that your husband is a voyeur and you're an exhibitionist and he doesn't like it to get any further than that. He gets sexual gratification when you take your clothes off, but he gets very angry when you perform tricks with customers?
MR. BAGLEY: Objection.
THE COURT: Come to side-bar, Mr. Vizzi.
SECOND UPDATE -- in the comment section, Judge Amy Steele Donner makes the following comments.  Thank you for commenting for the blog Judge Donner:

He actually was a pretty bad lawyer and that was the only case he won in front of me. He also came to my house with his baby begging not to be put in jail. Coming to my house uninvited was also a violation of his oath and the order he violated was the rape-shield law, not that I personally enacted it. The prosecutor was the esteemed former circuit judge, Gerald Bagley who would definitely agree with my analysis of his trial behavior. Amy Steele Donner

Thursday, August 08, 2019

One *billion* dollars in fraud

Pleading to a billion dollar fraud case is tough because the guidelines are so high. So sometimes it may be better to take your chances at trial (unless the defendant is permitted to plead to a 371 conspiracy with a 5-year cap). Here’s a Miami Herald article about a plea in the Woodbridge case for Robert Shapiro:

The founder of a South Florida real estate company pleaded guilty Wednesday to orchestrating a $1.3 billion Ponzi scheme that bilked thousands of mostly elderly investors.

Robert H. Shapiro, the former CEO of the Woodbridge Group of Companies, admitted in Miami federal court that he “misappropriated” between $25 million and $95 million of the investors’ money to himself and his family to pay for an estate in the Los Angeles area, chartered planes, global travel, jewelry, diamonds and vintage wines. Shapiro also collected artworks by Pablo Picasso, Marc Chagall, Pierre-August Renoir and Alberto Giacometti. He also owned a Mercury convertible.

Now, all those luxury items belong to the feds.

Shapiro, 61, who was arrested in April, faces up to 20 years for wire and mail fraud conspiracy and an additional 5 years for tax evasion at his sentencing on Oct. 15 before U.S. District Judge Cecilia Altonaga. In pleading guilty, Shapiro avoids going to trial but still is looking at a total of 25 years in prison.

Tuesday, August 06, 2019

Should we give this op-ed to all jurors?

It’s a very powerful piece about how important jury service is.

Plus, it will combat the idea that jury service is to rubber stamp prosecutors.  There are so many signals around courthouses about law enforcement (the posters in jury rooms saying that if you see something, you should say something; the “law-enforcement cafe;” and so on), that this op-ed might be a good way to temper it.

The conclusion:
We are told that there is a great divide in our country, and at the voting booth that is apparent. But in the jury room, we were just 12 random people pulled out of our daily lives and asked to administer the final decision in a case. It felt like our justice system at work.

I’ll vote in November, and it will be important. But I don’t think I’ll ever feel as significant as a citizen as I did in that jury room.
Meantime, let me be a proud dad for a moment and post the op-ed of my daughter in today’s Miami Herald:
And though I identify as an activist, I wish I did not have to. There is a large part of me that resents the fact that fellow teens and I have to wake up and focus on whether the government will pass the simplest background checks bill, or if there will be a shooting near me that kills someone I know.

I resent it because it should be adults and elected government officials focusing on these issues.

I would much rather spend my time dancing around the house, modeling clothes and makeup for my friends, and going to the beach. You know, typical things that those in government think teenagers do when they call us incompetent and assert that we do not know anything about politics, all the while allowing the gun violence epidemic to continue in an endless cycle. But I can’t.

Monday, August 05, 2019

Cool story about a jailhouse lawyer

Check out this NY Times story about Calvin Duncan, a jailhouse lawyer, who convinced the Supreme Court to hear a case about whether juries could convict without a unanimous verdict:
“For 23 years, I was a jailhouse lawyer,” said Calvin Duncan, a former inmate at the Louisiana State Penitentiary in Angola. “That was my assigned job.”
He had a 10th-grade education, and he was serving a life sentence for murder. The prison paid him 20 cents an hour to help his fellow prisoners with their cases.
He got good at it, and he used his increasingly formidable legal skills to help free several inmates. He knew how to spot a promising legal issue, and he was relentless. Seasoned lawyers sought his advice.
One issue in particular consumed Mr. Duncan. He could not understand how a Louisiana law that allowed non-unanimous juries in criminal cases could be constitutional. He would not let it go, working on about two dozen failed attempts to persuade the Supreme Court to address the issue.
The justices finally agreed in March to decide the question. They will hear arguments in the case, Ramos v. Louisiana, No. 18-5924, on the first day of their new term, on Oct. 7.
 This is so true:
Mr. Duncan visited Professor Mattes’s law school clinic not long after he was released. The students were in their third year, tired of studying and perhaps a little jaded.
Mr. Duncan asked to see the law library, and he marveled at the vast and pristine collections of cases, codes and treatises.
“All of a sudden, he stops and he turns to the students,” Professor Mattes said. “He gets very serious and he says: ‘You guys need to know how incredibly lucky you are. Because what you have here is power.’”

Thursday, August 01, 2019

Defending Dersh

Here’s my latest piece, this time in Newsmax, about Alan Dershowitz. Here’s the intro:

Our criminal justice system is built on the notion that the burden is on the prosecution to prove a case beyond a reasonable doubt before one’s liberty, our most valuable asset, can be taken away. And for good reason. We don’t want innocent people in jail.
We are willing to live with some guilty folks going free so that we don’t have the horror of an innocent person behind bars. Our system, with all of its flaws (including the concept that prosecutors who charge people with baseless claims cannot be charged), has clung to this bedrock principle of presumed innocence.
The system still affords defendants due process of law.
But what about a private individual falsely accusing someone of a heinous crime?
Today it seems that anyone can accuse another without any real fear of repercussions.
Such allegations are protected by the “litigation privilege” and are not subject to defamation suits.
When someone says something accusatory in public, he can be sued. But a person who makes up an allegation in a court document can’t be. And if such an accuser is found to have lied, they likely will never be prosecuted.
This is where famed Harvard law professor Alan Dershowitz finds himself: accused of a heinous crime without any real recourse or due process protection. As the accusations pop up on screens across the globe, they are assumed to be true even though Dershowitz has not been charged or convicted.

Wednesday, July 31, 2019

“Of course, I concur in every word of the Court’s opinion.”

That’s Chief Judge Ed Carnes concurring with his own majority opinion in this case involving Royal Caribbean:
Of course, I concur in every word of the Court’s opinion. See United States v. Hough, 803 F.3d 1181, 1197 (11th Cir. 2015) (Carnes, C.J., concurring) (“Not surprisingly, as the author of the Court’s opinion I concur in all of it.”). Usually, there is nothing else for the author of a majority opinion to say, but here there is.
There’s been a lot of this lately. Judge William Pryor has done it twice in the last couple of days, here and here. In fact, in the latter case the whole panel concurred, per Judge Pryor, with the majority opinion, written by Judge Pryor. But unlike Carnes’ concurrence, which was written to make some additional points, Pryor takes on prior precedent in the 11th Circuit in both of his concurrences.  I wonder how conservative judges would have viewed the Pryor concurrences (saying the 11th Circuit had gotten it wrong in the past) had they been written by the more liberal wing of the 11th Circuit.

Tuesday, July 30, 2019

Who should investigate police officers when they commit crimes?

This interesting NY Times op-ed says that it should be public defenders, not prosecutors. It’s pretty convincing:

After a police officer in South Bend, Ind., shot and killed Eric Jack Logan last month, contentious meetings between the public and Mayor Pete Buttigieg showed that there is often a serious lack of faith that allegations of police misconduct will be fairly investigated. We can fix this: Public defenders, not law enforcement officials, should be responsible for determining whether police misconduct occurred.

The skepticism about the way investigations are currently conducted makes sense: Police departments’ internal investigations are reliably lenient. The New York Police Department, for example, took nearly 2,500 reports of biased policing from residents since 2015 and found not a single one credible. Prosecutors and state police, the two other entities most likely to carry out an investigation of police misconduct, often decline to press charges even when video evidence seems to leave little doubt that an officer’s conduct has violated departmental policy.


Not surprisingly, communities of color, who are disproportionately exposed to police violence and misconduct, have a much less favorable view of the police than the population overall, and little belief that misdeeds will be revealed or punished. In a 2017 Pew Research poll, 64 percent of Americans said they had generally warm feelings toward the police. But for black Americans it was just 30 percent. If mayors, police chiefs and legislatures are serious about instilling real faith in these communities, they should hand over full control of investigations to the one group of lawyers used to treating the police in an adversarial fashion, all of them experts in police rules and procedures: public defenders.

Unlike prosecutors, who often work hand-in-hand with the police to make a case for conviction, defenders are used to questioning the stories police officers tell. For example, in a case of mine many years ago, the prosecutor and his police witness seemed confident that their evidence was unassailable: Two officers had walked up to the car my client was sitting in, looked in the windows, and seen what looked like cocaine. What never occurred to them, although it was easy enough for me to find out, was that their walk from the police car to my client’s car took them from one city to another. When they arrived, they were out of their jurisdiction and had no authority to make an arrest. It seems minor, but it exemplifies the different approach that defenders must take to protect our clients’ interests — and the rigor we are accustomed to bringing to our investigation of everything the police say and do.

A good-thought provoking article. I wonder how the juvenile prison guard case would have turned out if the Federal Public Defender’s office was prosecuting instead of defending.

Thursday, July 25, 2019

Breaking — White House sets interviews for Fort Pierce slot (UPDATED)

Rubio’s JNC interviewed six candidates.

And now it’s down to three (UPDATED):

Michael Sherwin;
Aileen Cannon; and
David Leibowitz

Sherwin (Miami) and Cannon (Fort Pierce) are AUSAs, and Leibowitz is a former AUSA (SDNY). Leibowitz is currently working as General Counsel for Braman.

All are very impressive.

Good luck!

Tuesday, July 23, 2019

Not guilty verdict in Miami Detention Guard case

The guard, Antwan Lenard Johnson, was accused of putting up a bunch of juveniles to attack a 17-year old (Elord Revolte) that led to his death. The attack was captured on video. The trial took place before Judge Altonaga over the past two weeks. Johnson was represented by AFPDs Hector Dopico and Helaine Batoff, both excellent lawyers, who prevailed in a very difficult case.

The Miami Herald has the background on the case here.
Elord had been in the Miami-Dade Regional Juvenile Detention Center for only three days when he and Johnson confronted each other in the lockup’s cafeteria, records show. Elord rose from his seat without asking Johnson for permission. Johnson told the teen to return to his seat. Elord cursed at the officer, telling him to “f--- off,” prosecutors say.

Prosecutors say Johnson, unwilling or unable to dispense discipline himself, did the next best thing: He ordered the other detainees in Module 9 to beat him up, instead.

Elord died at Jackson Memorial Hospital at 11:17 p.m. on Aug. 31. An autopsy concluded he died from a tear to a vein under his left shoulder, which slowly oozed blood until he stopped breathing.

Federal agents arrested Johnson last April, after a grand jury indicted him. The indictment was handed down a year after state prosecutors concluded they lacked sufficient evidence to charge Johnson with either homicide or official misconduct, and after an internal investigation by the state Department of Juvenile Justice failed to confirm allegations that Elord was the victim of a “honey bunning,” or a beating orchestrated by officers.

In October of 2017, the Miami Herald published a series of stories, called “Fight Club,” that detailed a host of abuses within facilities operated by DJJ, or by private providers under contract with the state. The improprieties included rampant unnecessary and excessive force, sexual misconduct and an unspoken disciplinary tool called “honey bunning,” in which officers deputized detainees to act as enforcers against other youths who got out of line, often rewarding them with a honey bun from the employee vending machine.

The Herald also covered the opening statements:

Johnson “unleashed a commonly used, illegal bounty scheme on Elord,” McLaughlin said in opening remarks to the jury. He emphasized that detention officers are not allowed to hit or discipline the juveniles in their charge, so when Elord began violating rules and mouthing off, Johnson decided “to take matters into his own hands and discipline Elord for disrespect.”

“You will hear testimony from these Mod 9 kids, especially those in the know, that they knew, as they put it, ‘exactly what time it was,’ ” McLaughlin said.

Prior to Monday’s hearing, U.S. District Judge Cecilia M. Altonaga denied a series of motions filed by prosecutors, including a motion to exclude references to Johnson’s good character from his DJJ employment records.

Altonaga’s decisions could make it more difficult for prosecutors to get a conviction. In one such decision, Altonaga forbade prosecutors to show video footage to jurors of other fights and what prosecutors claim are officer-directed beatdowns — which prosecutors claim could help them build the case for the conspiracy charge.

Johnson’s defense counsel argued that the “honey bunning” bribery system that is the crux of the federal conspiracy charge simply does not exist.

“The idea that these kids could be incentivized by a 75-cent doughnut is ridiculous,” said Hector Dopico, Johnson’s lawyer.

Dopico described the juvenile offenders in custody as “carjackers, some of which carry guns to school, some of which are rapists” who are “filled with piss and vinegar.” Dopico accused the federal government of conspiring with the witnesses to cover up the true motive behind the attack that killed Elord.

“The government knows the name of every one of those kids,” the defense counsel said. “Not one of them has been charged with a single crime. The government made a deal with them and Antwan is the scapegoat.”

Monday, July 22, 2019

WSJ takes on Miami Herald re Epstein Reporting

Check out "Bad Reporting Took Down Alex Acosta" here

The intro:

Trying to inoculate journalists against hindsight bias is like trying to teach your cat algebra—it’s an uphill slog.Happily, the Washington Post last Sunday gave us a history of the decade-old Jeffrey Epstein sex-crimes prosecution that didn’t rely on the anachronistic innuendo that filled a Miami Herald series entitled “Perversion of Justice.” The furor caused by that series led last week to the resignation of Labor Secretary Alexander Acosta, who had the misfortune of being the U.S. attorney whose office prosecuted the long-ago case. 

The Post investigation, with a non-tabloidal realism the Herald couldn’t muster, found “not a crisp portrait of white hats tilting against black hats, but rather a mottled mural of prosecutors who were eager to stop Epstein from preying on girls, but also sensitive to the young women’s desire not to have their names made public.” It adds that Mr. Epstein’s high-priced defense team “took advantage of the fact that many victims felt a bond with their accused abuser.”

To put it more bluntly than even the Post wants to, prosecutors seem to have feared losing in court because their witnesses were unreliable. If so, this echoes the apparent experience of a state prosecutor in Palm Beach County in the same matter, who ended up going before a grand jury with a single witness, who wasn’t even underage. It also echoes a declaration, in the Herald’s own words, by the Manhattan district attorney in a subsequent matter that the “underage victims failed to cooperate” in the Florida prosecution.

There was also a shout-out to Jeff Sloman's op-ed:

Most cogent about the paper’s own role was an op-ed published in February in the Herald itself by Jeffrey H. Sloman, another member of Mr. Acosta’s team. He points out that though the Herald’s decade-after-the-fact revelations “made a strong case that [Epstein] should have gone to jail for much longer,” the paper “never explained or substantiated its accusation that we schemed with Epstein’s lawyers to avoid that result.”

Bingo. However disappointing, inadequate or even weak-kneed the punishment may look in retrospect, nothing in the record even slightly suggests prosecutors were anything but hostile to Mr. Epstein and eager to extract the strongest realistic sanction. The Herald itself only began metronomically referring to the outcome as a corrupt “sweetheart deal” in 2017 when Mr. Acosta became associated with the Trump administration.

Notice something else: Between 2005 and 2009, when the case was unfolding and making news in South Florida and around world, the Herald produced a single item about Mr. Epstein’s travails, according to the Factiva database. It was buried in a news roundup and portrayed the matter as a simple prostitution case. It didn’t mention underage girls or Mr. Epstein’s status as a crony of Bill Clinton.

I guess this was some kind of sweetheart treatment.

Saturday, July 20, 2019

Judge Robin Rosenberg’s important NY Times piece

Judge Robin Rosenberg wrote a really nice piece in the New York Times about the First Step Act.  The intro:
In January 1999, Robert Clarence Potts III was sentenced to life in prison. He was 28, and had been convicted of drug and weapons charges. The federal judge sentencing him seemed to express some regret at the gravity of the penalty. But under the law at the time, Mr. Potts faced a mandatory sentence of life imprisonment without release because of the type of offenses and his two previous convictions for drug and other offenses.

“You are facing a very tough sentence here, and it is very regrettable that you are,” the judge, James C. Paine of the United States District Court of the Southern District of Florida, told him. The judge added that “we are governed by the law and the guidelines and we are going to have to go by those.” And the law and sentencing guidelines meant “a term of life imprisonment,” he explained.

To that, Mr. Potts responded, “Sir, there is not much I can say.” But it was what he did afterward that ultimately made the difference.

On Friday, Mr. Potts, now 49, is scheduled to be released from prison after more than 20 years — a turn of events made possible by the First Step Act, passed by Congress and signed by President Trump last year. Among other things, the law expanded early-release programs, modified sentencing laws and allowed defendants like Mr. Potts to seek a reduction in their sentence, a step toward correcting the country’s history of disproportionate sentences.
Rosenberg was Judge Paine’s law clerk! She goes on to explain her decision:
Mr. Potts had served over 20 years in a high-security federal penitentiary when the First Step Act became law last December. The First Step Act made the Fair Sentencing Act — signed by President Barack Obama in 2010 to reduce the disparity in sentencing for powder cocaine and crack cocaine offenses — applicable to past cases. The First Step Act also allows a defendant like Mr. Potts to seek a sentence reduction even when the original sentence was for life. The law provides wide discretion to the court to determine whether to reduce a sentence and by how much.

At his sentence reduction hearing, Mr. Potts had much more to say than he did back in 1999. Before me, he was remorseful, dignified and hopeful. He was proud of all that he had accomplished in over two decades in prison — proud of the courses he took in personal growth, responsible thinking, legal research and software, proud of his participation in nearly every health, nutrition and fitness class available. Perhaps he derived his greatest pride from conquering a debilitating addiction and maintaining his sobriety. As his lawyer explained to me, sobriety is not a foregone conclusion in prison, where drugs are widely available.

I wanted to know how Mr. Potts had managed his life in prison. He told me, “A lot of times I felt like giving up, but I didn’t want to let my mom down, my family.”

He continued: “I kept myself away from a lot of people in prison. I wasn’t around the average people in prison. Prison is an awful place. You have all these different types of organizations and gangs and foolishness. That is not me, ma’am. I’m not like that.

“I made some bad decisions in my life," he added, “but I am not a bad person.”

The true marker of a person’s character is what he does when he thinks no one is watching. Because Mr. Potts was sentenced to life, no one had really been looking at what he had been doing. But his unwavering dedication to improve himself over the last two decades, despite his circumstances, convinced me that his hope in his own future wasn’t misplaced.

After a long hearing, I concluded that 20 years was more than sufficient as punishment for his past — and serious — crimes, and ordered his release. To help his transition, he will spend six months in a residential re-entry center .

I believe Mr. Potts’s story is one of redemption through self-improvement. His case speaks to the importance of criminal justice reforms such as the First Step and Fair Sentencing Acts. His story illuminates the human impact of such reforms and a person’s capacity for hope and redemption.

Thursday, July 18, 2019

Jackie Becerra investiture

Although she’s been presiding for quite some time now, Jackie Becerra has her formal investiture tomorrow (Friday). Congratulations!

Tuesday, July 16, 2019

RIP Justice John Paul Stevens

He was 99.

And one of the greats.

He served for 35 years.

Appointed by a Republican, but never ideological in his rulings. We need more like him.

Although there’s never been a Justice from Florida, he retired down here so we will count him!


"Your honor this is the Southern District of New York."

That was the SDNY AUSA during the Epstein bail hearing yesterday. I wonder how SDFLA AUSAs think of the way that New York prosecutors look down on this (and every other) office.

Monday, July 15, 2019

Will Jeff Epstein get bail today?

Here is the Government’s bail memo and the defense’s.

Some of the arguments for bail:

—complied with previous conditions of house arrest and probation

—enormous bail package including house arrest and guard

—waiver of extradition

—easily recognizable

—old offense with legal defenses

Some of the arguments against:

—enormous wealth with means to travel

—potential witness tampering

—potential new offenses re images found in safe

—nature and strength of the case

Thursday, July 11, 2019

"Dear Florida Supreme Court: We need your help."

That's how Judge Newsom starts off this opinion, which certifies a question to the Florida Supreme Court. 
Dear Florida Supreme Court: We need your help. Among other much simpler issues, this case presents a knotty and important state-law contract question that is more appropriately answered by you than by us. Accordingly, after clearing away some underbrush, we will respectfully certify to you the following question:
Is a contractual “exculpatory clause” that purports to insulate one of the signatories from “any … damages regardless of kind or type … whether in contract, tort (including negligence), or otherwise” enforceable? Or, alternatively, does the clause confer such sweeping immunity that it renders the entire contract in which it appears illusory? Or, finally, might the clause plausibly be construed so as to bar some but not all claims and thus save the contract from invalidation?
Each possibility finds at least some support in Florida law, each comes with its own equitable pros and cons, and each has dramatically different implications for the case before us.

Alex Acosta press conference

Watch here:

It's strange to me that people are just as angry with Acosta (the prosecutor) as they are with Epstein (the sex offender).  As I've written about here in the Miami Herald, Acosta ensured Epstein had to plead, register, and go to jail. Ten years later, the deal looks too lenient, but to say that he cut the deal for some nefarious reason is not fair.  Anyone who worked with or against Acosta knows that he would not have done that.  Some of the details in the piece are now dated because it was written back in December, but the main point is still the same.  I also wrote this piece for The Hill about Acosta, differentiating a bad deal from real prosecutorial misconduct.

This morning, the WSJ has a similar take here.

Monday, July 08, 2019

RIP Meenu Sasser

Very sad. Sasser was only 48. She had esophageal cancer. 

She was the first Asian American judge in Palm Beach. 

She was also a short lister for the district seat in Fort Pierce. 

The Palm Beach Post has the obituary here

Sunday, July 07, 2019

Questions after Jeff Epstein charges

1. How does this affect the SDFLA civil litigation?

2. Will he get bond?

3. How will the SDNY get around Epstein’s previous non-prosecution agreement?  Is alleging different girls enough?

4. Will the case go to trial?

5. Will Epstein put the same defense team back together?

6. How will these charges affect other defendants considering pleading guilty if they might later be charged for the same conduct in a different district if that other district considers the sentence too lenient?

7. Why is the public corruption unit handling the case?

Monday, July 01, 2019

Happy blog birthday!

It’s 14 years of blogging... 14!

Thank you again for reading and for the tips. It’s been a fun run.

A lot has changed for the District in 14 years. For starters, the district and magistrate benches are a lot younger and more diverse.

Parties for the new judges are now hosted on the 13th floor of the Ferguson courthouse. When I was clerking 22 years ago, parties were hosted in the Dyer courtyard and were catered by Christy’s. Old school. If you were lucky, Judge Davis would invite you to the after party for scotch in his chambers.

More reminiscing later... for now, I’m going to take the week off from posting unless something really important happens. I’ll see you all next week.

Thursday, June 27, 2019

“Justice Gorsuch channels his inner-Scalia, which is good news for criminal defendants”

That’s the title of my latest piece in the Hill. Please take a look here and tell me what you think. From the introduction:
The late Justice Scalia often joked that he was “the darling” of the criminal defense bar and the “poster child” for the National Association of Criminal Defense Lawyers.  He was right.  More than any other Justice on the Supreme Court with him, he ruled for criminal defendants on important cases dealing with the confrontation clause, sentencing issues, the right to a jury, and probable cause to name a few.   
When Justice Gorsuch replaced Scalia, many feared that he would not be nearly as friendly to criminal defense issues.  But Gorsuch has proved those critics wrong.  Like Scalia, Justice Gorsuch may also get his own poster from NACDL.  Some examples from this Term: 
1. Haymond v. United States.  Justice Gorsuch wrote the 5-4 majority opinion, which is joined by the 4 more liberal Justices, in favor of a defendant who was found guilty of possessing child pornography.  The question for the Court was whether judges had the power to sentence defendants to additional an additional term of imprisonment without a jury finding beyond a reasonable doubt.  Justice Gorsuch said no way: “Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty.”  There’s lots of other really good language in the opinion, explaining that the right to trial by jury, together with the right to vote, is “‘the heart and lungs, the mainspring and the center wheel’ of our liberties, without which ‘the body must die; the watch must run down; the government must become arbitrary.’” (Quoting letter from Clarendon to W. Pam (Jan. 27, 1766), in 1 papers of John Adams 169 (R. Taylor ed. 1977)).  Great stuff.
And the conclusion:
Justice Gorsuch is far from perfect.  He is pro-death penalty.  He dissented in Flowers v. Mississippi, the case where the prosecutor illegally struck black jurors. These decisions have led some to rightfully criticize Gorsuch, like the well-respected Leah Litman in this piece.  But Litman is wrong to minimize what Gorsuch has done, saying he only “sometime departs” from his conservative colleagues. The truth is that he’s been quite good for the rights of criminal defendants, as was his predecessor Justice Scalia.  He doesn’t knee-jerk vote for the government like Justices Alito and Thomas.  And as Litman rightfully points out, he even votes for criminal defendants when his more liberal colleagues (like Breyer) do not. Instead of criticizing Gorsuch for not doing the right thing on every single criminal justice issue, we should be optimistic that he will continue to channel Justice Scalia’s independent streak on these issues.    

Wednesday, June 26, 2019

Democratic Debates in Miami (UPDATED)

They start tonight with 10 candidates and another 10 tomorrow night. Seems like way too many to have any meaningful discussion.

Will the topic of judges be brought up?

Criminal Justice?

Meantime, the final decisions from the Supreme Court are coming out in a few minutes, and any stragglers will be tomorrow. Check SCOTUSblog for updates.

Finally, I haven’t heard anything about the Rubio JNC interviews on Monday. If you have any tips or intel, please let me know and I will post it anonymously.

UPDATE — Justice Gorsuch again rules with the 4 liberal Justices on a criminal justice issue, this time in a sex-offender case. Here’s the opinion. He’s channeling his inner-Scalia. Here’s how the opinion starts:

Only a jury, acting on proof beyond a reasonable doubt,may take a person’s liberty. That promise stands as one ofthe Constitution’s most vital protections against arbitrary government. Yet in this case a congressional statute compelled a federal judge to send a man to prison for aminimum of five years without empaneling a jury of hispeers or requiring the government to prove his guilt be-yond a reasonable doubt. As applied here, we do not hesitate to hold that the statute violates the Fifth and Sixth Amendments

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:


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.