"You are (as the author’s mother used to say) cruisin’ for a bruisin’. Don’t apologize—do better."

That was 11th Circuit Judge Newsom in United States v. Munksgard, affirming a criminal conviction "reluctantly" and over Judge Tojflat's dissent. Here's Judge Newsom's entertaining opening:

This criminal appeal presents both a surprisingly close question of evidentiary sufficiency—so close, in fact, that it has prompted a dissent—and an interesting statutory-interpretation issue. As to the former, federal law criminalizes the act of knowingly making a false statement in order to obtain a loan from a bank that is insured by the FDIC. 18 U.S.C. § 1014. Matthew Munksgard admits to knowingly making false statements in order to obtain bank loans—indeed, four times over. Even so, he contends, the government failed to show beyond a reasonable doubt, as it had to, that the institution he swindled was FDIC-insured. This case presents the (irritatingly familiar) question whether the government presented sufficient evidence to prove that pesky jurisdictional prerequisite. The proof of FDIC insurance here—as in other cases in which we have rapped the government’s knuckles—was hardly overwhelming. And given the ease with which insurance coverage could have been demonstrated—certificate, contract, cancelled check, etc.—inexplicably so. Having said that, “overwhelming” isn’t the standard, and when we view the evidence in the light most favorable to the government, as we must, see United States v. Frank, 599 F.3d 1221, 1233 (11th Cir. 2010), we conclude—albeit reluctantly—that the proof was adequate to demonstrate Munksgard’s guilt beyond a reasonable doubt. But let this be a warning to federal prosecutors: You are (as the author’s mother used to say) cruisin’ for a bruisin’. Don’t apologize—do better.

I appreciate the wonderful writing, but here's the thing -- prosecutors won't do better until there are consequences, like a reversal. There are so many appellate doctrines meant to make sure that convictions are affirmed (harmless error, abuse of discretion, and so on) that prosecutors and trial judges have learned to do whatever it takes to get the conviction. They know that there won't be any bruisin'. Judge Tjoflat has it right when he concludes:

The majority goes to great lengths to bail the government out. Nothing in our precedent compels this, and the Constitution doesn’t allow it. Because I would vacate the conviction, I respectfully dissent.

It's time to stop bailing the government out.

Federal Bar Reception tomorrow (Thursday) night

Local Federal Bar Association President David Weinstein sends the following email about this Thursday's event. It's always a good one

There might be a big game of Roman Numeral proportion coming up on Sunday, but this Thursday evening is an even bigger event. The South Florida Chapter of the Federal Bar Association will be hosting its 38th Annual Federal Judicial Reception to honor our federal judges.

Taking place at the Historic Alfred I. Dupont Building in the heart of the 305, there will be no speeches or a sit-down dinner. It’s an opportunity to mingle, network and socialize with the judiciary and your peers.

For more details, click here: https://fba-sdfla.org/event/fbas-38th-annual-federal-judicial-reception/

BOP refuses to give defendants their good-time credit under First Step Act

For many years, there was a debate in the criminal justice community about how much time prisoners should be receiving as good time credit.  Even though they were supposed to be getting 15%, which calculates to 54 days a year, BOP determined that they were only entitled to 47 days a year.  It doesn’t sound like a lot, but when you’re inside, every day matters.

The First Step Act fixed this problem and said that good time credit was actually 54 days a year.  And it even applied it retroactively, so many defendants believed that they would be getting out immediately.  But BOP is refusing to award the 54 days, citing to an error in the way that the statute was drafted.  From Reuters:

“You have thousands of families who thought the day this bill passed, their loved ones’ sentence was going to be recalculated and they were going to walk out of their halfway house, their home confinement ... or leave prison,” said Kevin Ring, president of Families Against Mandatory Minimums (FAMM).

“It’s a frustrating mistake,” Ring said.

Wyn Hornbuckle, a Justice Department spokesman, said the department is analyzing changes for the law and plans to “carry out all necessary steps.”

Reuters has seen a letter sent to inmates at the Federal Correctional Institution Coleman, a federal prison in Florida, in which officials acknowledged the new good-behavior credits would not take effect yet.

“The law will allow BOP in the future to apply 54 days of credit for every year a sentence was imposed, which is a change to the prior law,” the letter says.

“While this change may result in additional credit for inmates in the future, it is not effective immediately nor is it applicable to all inmates,” it says.

Apparently the White House is working on a fix to the probematic language in the statute, but this is just absurd. Judges may want to take this into account when sentencing defendants.

"Special Counsel’s Office wrong to arrest Roger Stone instead of letting him self-surrender"

That's the title to my piece in The Hill about the arrest vs. surrender of Roger Stone.  The arrest of non-cooperators has bothered me for a long time, even for guys like Stone.  Here's the intro:

A swarm of armed federal agents wearing bullet proof vests and equipped with battering rams and other riot gear arrested Roger Stone before sunrise Friday morning. Video cameras from CNN were present to capture the show of force.
There was absolutely no good reason to arrest Stone instead of letting him self-surrender like others who have cooperated with the investigation such as Michael Flynn.

And the conclusion:

Allowing Stone to self-surrender — like others who have cooperated with the government — would show that the Special Counsel is not going to retaliate or unnecessarily embarrass those who do not cooperate with his office.
There’s a long and controversial history of the perp walk.
Of course, sometimes arresting a defendant is necessary. For example, if there is a fear that the person will flee or destroy evidence, then an arrest might be appropriate. But here, where Stone knew of the investigation and was not a flight risk, there was no reason to arrest him before the sun came up with guns blazing.
He would have self-surrendered like others who were permitted to do so in this case.
Instead of instilling confidence in the Special Counsel’s office as neutral and detached, this arrest will give critics of that office a reason to say that it is acting inappropriately and with no real law enforcement purpose.

 Please click through to the article and let me know your thoughts.

Roger Stone arrested in Broward (UPDATED)

He will make his first appearance today at 11am in magistrate court in Ft. Lauderdale. Here’s the indictment which charges obstruction and false statements.

And here is the CNN story for more info.

Questions —  why not let him surrender? Was it a good use of resources to send all of those armed FBI agents to his house in the morning?  Why arrest him on a Friday?  Will the government be asking to hold him no bond over the weekend as they are entitled to do until the bond hearing next week?

UPDATE — The Special Counsel agreed to release Stone on a personal surety bond.

"In olden days a number of methods were used to ensure that juries reached a unanimous verdict. From the fourteenth through the eighteenth centuries, one “method of accelerating unanimity” was to prohibit jurors from eating or drinking until they all agreed on a verdict."

That's how Chief Judge Carnes starts out this entertaining opinion about deadlocked juries.  The entire introduction:

In olden days a number of methods were used to ensure that juries reached a unanimous verdict. From the fourteenth through the eighteenth centuries, one“method of accelerating unanimity” was to prohibit jurors from eating or drinking until they all agreed on a verdict. 3 William Blackstone, Commentaries *375. And if jurors did not unanimously agree on one before the judges left town, Blackstone recounted, “the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart.” Id. at *376. They were hauled around in the cart “until a judgment ‘bounced out.’” Renico v. Lett, 559 U.S. 766, 780, 130 S. Ct. 1855, 1866 (2010) (Stevens, J., dissenting). Which is to say until the resolve bounced out of the holdout jurors.
In one seventeenth-century sedition trial (involving William Penn and a co-defendant), the jury deadlocked on the most serious charge. George C. Thomas III & Mark Greenbaum, Justice Story Cuts the Gordian Knot of Hung Jury Instructions, 15 Wm. & Mary Bill Rights J. 893, 898–99 (2007). The judge responded by threatening to have a juror named Bushel branded unless the jury agreed that the defendants were guilty as charged. Id. at 899. When no verdict was forthcoming, the judge did not send for a branding iron, but he did have all the jurors “locked in the jury room without meat, drink, fire, and tobacco” until they could agree. Id. (quotation marks omitted). After nicotine withdrawal and the prospect of starvation failed to work, “the judge threatened to cut Bushel’s throat” if there were no verdict. Id. (Thus posing the prospect of a dead juror to unlock a deadlocked jury.) When even that threat did not bring forth a unanimous verdict, the judge gave up. Id. Bushel escaped the experience unbranded and with his throat intact, while the jury as a whole escaped with its disagreement intact. But the judge was angry enough at the jurors’ failure to agree that he fined each of them forty marks for their intransigence. Id. Fortunately, when the case made it to the Court of Common Pleas the fines were set aside. Id. at 899–900. History does not record if Bushel or any of the eleven other brave souls ever served on another jury.
Since those days, we have come a long way and now accept that some jury deliberations will end in deadlock. United States v. Rey, 811 F.2d 1453, 1460 (11th Cir. 1987) (“The jury trial system has not malfunctioned when the jury cannot reach a verdict. One of the safeguards against the conviction of innocent persons built into our criminal justice system is that a jury may not be able to reach a unanimous verdict.”). We no longer try to coerce holdout jurors to reach a verdict that they cannot abide. Or at least most of the time we don’t.

The opinion goes on to grant a habeas petition for ineffective assistance of counsel:

The jury that convicted our appellant, Sumnar Brewster, might feel some affinity with juries of yesteryear. Over the period of two days of deliberations the jurors repeatedly told the judges –– there was one judge on the first day of deliberations and a different one on the second day –– that they could not reach a unanimous verdict. And the judges repeatedly ordered them to keep trying. All told, the jurors sent six notes to the two judges stating that they could not reach a verdict.
Three times the jurors disclosed how they were divided: first reporting that they were deadlocked 9 to 3 for conviction, later that they were still deadlocked but now 11 to 1 in favor of conviction, and still later that the one holdout juror was continuing to hold out. Throughout the deadlocking, the judges gave a formal Allen charge, later two additional admonitions that the jurors must continue deliberating, and finally, another long charge that included instructions to keep on deliberating. That lengthy charge emphasized that the jurors had taken an oath to follow the law, which meant they must deliberate more. The judge ended his instructions with the challenge that he had taken his oath seriously and hoped they would do the same.
Shortly thereafter, when told that the one juror who wouldn’t vote to convict was doing crossword puzzles, the judge ordered all the reading materials taken out of the jury room. That tactic turned out to be even more effective than threatening to kill the hapless Bushel had been in William Penn’s case three hundred years before. Just 18 minutes after all reading materials were removed, Brewster’s jury dutifully –– and we do mean dutifully –– returned a guilty verdict. Through it all Brewster’s two attorneys neither objected nor moved for a mistrial. Not once.
This is Brewster’s appeal from the denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. He claims that his trial counsel rendered ineffective assistance by failing to object, or move for a mistrial, at any point during the deadlocked deliberations.

Trump formally renominates 3 SDFLA judges

Good news for nominees Roy Altman, Rudy Ruiz, and Rodney Smith as Trump has renominated them for judgeships here in the Southern District of Florida.  It is unclear how long it will take for them to get their final hearings. 

In other news, thanks to Raychel Lean at the DBR for picking up the TB story here.

FDC Shutdown continues (UPDATED -- FDC BACK UP)

FDC-Miami is still shutdown due to a supposed TB scare.  That means no legal or social visits.  It also means that no defendants are being brought over to court.  At least one trial was cancelled today because of it.  There have been many TB outbreaks at FDC over the years, but that has never stopped visits and court for any lengthy period of time before.  This is definitely a first.

Here's an update from one of the Miami marshals:

This email is intended to provide an update regarding the current PRECAUTIONARY QUARANTINE status within the FDC-Miami facility. As you may be aware, last Thursday evening the USMS was informed by FDC leadership & medical managers of an inmate with a potentially active case of Tuberculosis. Given a number of concerns regarding this notification, to include: the inmate’s transport into S/FL, recent court appearances within the District, potential impact within his actual designated facility (FCI Yazoo – Mississippi), and work there as a facility cook, USMS management (in consultation with FDC medical managers) recommended to the Judiciary a cancelation of the scheduled Miami Division in-custody court matters for last Friday (1/18/2019).

At this time FDC medical managers still have not received the final test results which they are certain will provide a definitive Negative/Positive confirmation in this specific case, and are uncertain as to when they will receive those results (we’re hopeful that they are returned sometime tomorrow afternoon). As a result of the delay in receiving the test results and in an abundance of caution, it is very likely that FDC will need an additional day of inmate quarantine (Tuesday – 1/22/2019) to work through this matter. The USMS is well aware of the disruption(s) this causes all affected parties, however, given the involvement of the Florida Department of Health, CDC, & U.S. Public Health Service, the USMS & FDC (BOP) would be negligent in attempting to move forward without all of the proper clearances and authorizations to do so.

We are in direct contact with the Judiciary/Court, and will continue to provide any/all information received, in hopes of resuming District operations within the Miami Division as quickly as possible. Should you have any questions or concerns, please do not hesitate to contact me at any time. Thank you.

UPDATE -- BOP has determined that the TB is "not infectious" and is reopening.  Normal operations begin tomorrow.  From the Marshals office:

 Chief Cooper will be sending out a notice indicating that we got the “all clear” from FDC about 30 minutes ago.  The TB was determined “not infectious” so we will return to normal operating procedures as of tomorrow morning.

Shutdown at FDC-Miami

While TSA workers are calling in sick, the Bureau of Prison guards are cancelling visits, including attorney visits. They are saying that there “may be” a “recent inmate” who was “possibly” diagnosed with tuberculosis.

You can't really blame them for making up the TB scare.  The shutdown is absurd. 

Stokeling is decided 5-4 for the Government

The Supreme Court affirmed the 11th Circuit in an odd 5-4 lineup in which Chief Justice Roberts (along withe Kagan and Ginsburg) joined Justice Sotomayor in dissent.  Justice Thomas held for the majority: The Armed Career Criminal Act’s elements clause encompasses a robbery offense that, like Florida’s law, requires the criminal to overcome the victim’s resistance.

It used to be mildly surprising when Justice Breyer voted against criminal defendants, but that is the norm now.  He is among the worst justices on criminal justice issues.  In this case, one friend put it this way:  Breyer literally snatched victory from Stokeling's hands, violently.

This case is a pretty good example of how Scalia's death really affected the Court on criminal justice issues.  Scalia wrote the Johnson decision on which Stokeling's argument was based.  He likely would have sided with the defense here, where his replacement sided with the government.

Congrats to Robert Luck (updated with pictures)

This morning Gov. DeSantis will appoint Robert Luck to the Florida Supreme Court.  Luck currently serves on the 3rd DCA and was an AUSA in this District before that.  He will serve with another former AUSA and former 3rd DCA judge, Barbara Lagoa.

Luck is 39 and after graduating from UF law school, clerked for Ed Carnes on the 11th Circuit.

Congrats to Robert Luck!

UPDATE — here are some pictures from the swearing in, where newly appointed Florida Supreme Court Justice Barbara Lagoa swore in Robert Luck:

Congrats to Robert Watson

Former AUSA and Kobre Kim partner Robert Watson will be joining the county bench on Monday. His appointment was one of Gov. Scott's last actions on Monday. Robert is a friend of the blog and we wish him well.  

Barbara Lagoa named to Florida Supreme Court

Really cool news ... former SDFLA AUSA, current 3rd DCA judge, and local Miamian Barbara Lagoa has been named to the Florida Supreme Court.  She’s a really good person and I know her family (including her husband Paul Huck, Jr., her three girls, and her father-in-law Paul Huck, Sr.) is very proud.

More prosecutorial misconduct...

...and yet again, another court finds no consequences.

The numerous instances of prosecutorial misconduct have been well-documented in this district (and around the country). Again and again, there have been no consequences for the prosecutors who have engaged in the misconduct or in the cases in which the misconduct occurred.

Another example is found in this unpublished opinion from the 11th Circuit, United States v. Foster.

In Foster, the district court found that there was insufficient evidence to support the jury’s verdict and granted a post-trial Rule 29 motion because the defendant withdrew from the conspiracy. The 11th Circuit reversed and reinstated the jury’s verdict. In Foster’s second appeal, decided today, the 11th Circuit found quite a bit of prosecutorial misconduct (without naming the prosecutor) in how it cross-examined a defense witness that was central to the withdrawal defense. Nevertheless, the court found that the misconduct was harmless:

On balance, we conclude that the prosecutor’s improper comments did not prejudicially affect Ms. Foster’s substantial right to a withdrawal defense. There is no doubt that Mr. Danzig supported Ms. Foster’s withdrawal defense; he testified that she refused to cooperate with his internal investigation of Hollywood Pavilion when he called her in 2008.

But hold on, the case was close enough that the district judge found that — without a finding of misconduct — that the evidence was insufficient.  So more misconduct and nothing happens.  No consequences for the prosecutor.  And the conviction remains intact.  I understand that people make mistakes and that generally we should give others the benefit of the doubt.  But I wonder how a defense attorney would be treated if he or she did the same thing.  Or better yet, how do judges treat defendants who ask for second chances?  If we want the misconduct to stop, courts need to start taking some action — dismiss cases, exclude evidence, and so on.  Otherwise, it will just keep happening over and over again.

Welcome Back!

It’s been a quiet two weeks in the District, but now it’s back to work. I hope everyone had a happy holiday break.

Let’s start off with the new state prosecutors who have been elected around the country. They haven’t gotten a ton of press but they are making lots of important changes. Here’s a story from St. Louis:

On his second day in office, St. Louis County Prosecutor Wesley Bell fired the veteran assistant prosecutor Kathi Alizadeh, who was primarily responsible for presenting evidence to the grand jury that declined to indict a Ferguson police officer in the 2014 shooting death of Michael Brown.

Bell also issued new policies, such as no longer prosecuting marijuana possession and failure to pay child support cases.

***

The policy changes issued Wednesday included:

• No longer prosecuting marijuana possession cases of fewer than 100 grams. Prosecution of more than 100 grams will be pursued only if evidence suggests the sale or distribution of marijuana. (St. Louis Circuit Attorney Kim Gardner announced in June that possession of fewer than 100 grams would not be prosecuted unless there are aggravating circumstances.)

• Not prosecuting people who fail to pay child support. Current cases will not be dropped, however; they will be on hold. Not seeking to revoke probation solely on the basis of failure to pay child support.

• Not seeking charges against those who fail to pay restitution without a court order establishing someone’s “willful nonpayment” of child support.

• Not requesting cash bail on misdemeanor cases; issuing summonses instead of warrants on class D and E felony cases.

• Not seeking to “overcharge” defendants “to pressure the accused to admit guilt.” Prosecutors are barred from adding more counts to increase the range of punishment or threatening to route cases back to a grand jury if a defendant has exercised his or her pretrial constitutional rights.

• Evaluating a defendant’s “prior conditions of release when there has been a failure to appear on an open case” and not asking for cash bail if there is no evidence someone has tried to elude police or used an alias “in a police encounter.”

• Requiring prosecutors to share “the entire contents” of a criminal case file to the defense except for work product to fulfill Supreme Court rules for disclosing evidence.

• Barring prosecutors from threatening witnesses “in an effort to force them to participate in prosecutions.”

Some really important and positive changes here. Kudos to Bell and the other new District Attorneys around the country implementing change. Here’s to 2019.