"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.