It’s closing time.

At 8:30am tomorrow morning in Judge Scola’s courtroom, the Esformes trial heads to closing arguments. It’s been a long and emotional trial.

It took all day to do the charge conference.

And the defense just filed this doozy of a motion of a dismiss, saying that because DOJ took the position that the entire ACA was unconstitutional. This would include, according to the defense, the provisions that criminalized health care fraud and kickbacks. Judge Scola is giving the government a chance to respond, but after closings.

***

In other (sad) news, Miami Beach legend Seymour Gelber passed away at 99. What an incredible life. The entire Herald obit is worth a read. Here’s the intro:

Former prosecutor, juvenile judge and Miami Beach Mayor Seymour Gelber was a local luminary. But by his own account, he was simply a streetwise kid from Brooklyn who used enough smarts and a little bit of luck to get ahead in life.

Gelber cut a self-effacing figure, disguising a shrewd legal mind that made him a heavyweight in jurisprudence who took his work seriously — but never himself.

“I never liked it,” he quipped about law school. “Never thought I would like to be a lawyer.”

His doubts faded as he ascended the ranks to become a respected jurist who shaped Miami-Dade’s juvenile justice system. He later served as mayor of Miami Beach while the city emerged from a tumultuous period rocked by corruption in the early 1990s. In the coda to his life of public service, Gelber provided a steady hand to guide City Hall.

Gelber died Thursday at age 99, his family said. He leaves behind a legacy that looms large in courtrooms and local government.

Can the President block Twitter users?

It seems like only this President would argue yes...

The Second Circuit seemed skeptical:

He had blocked many critics from his account, which prevents them from directly responding to his tweets.

U.S. District Judge Naomi Reice Buchwald ruled last May that this violated the users’ First Amendment rights, prompting Trump to unblock at least some of these accounts. The decision came in a lawsuit brought by the Knight First Amendment Institute at Columbia University and several Twitter users.

A lawyer for the U.S. Department of Justice, arguing for the president on Tuesday, urged three judges of the 2nd U.S. Court of Appeals in Manhattan to overturn Buchwald’s decision.

While Trump does use his Twitter account for government business, it was not a public forum, the attorney, Jennifer Utrecht, told the judges.

When Judge Barrington Parker asked why blocking users for their political views did not violate the First Amendment, Utrecht said blocking was akin to Trump walking away from a person trying to talk to him on the street.

The judges had fewer questions for Jameel Jaffer, the lawyer for the plaintiffs.

Jaffer said that although Twitter is a private platform, Trump was effectively inviting the public to participate in an open forum by using it for government purposes.

“The whole point of Twitter is to facilitate interactions between users,” Jaffer said.

“Barr and Rosenstein likely made correct legal decision on obstruction”

That’s the title of my piece in The Hill, examining the obstruction of justice statute and recent Supreme Court cases restricting prosecutors from attempting to broadly use it. The intro:

Mueller March Madness! No new indictments, no collusion, no obstruction charges, but no obstruction exoneration either. Upsets, favorites, and Cinderellas … all depending on your political point of view.
The 4-page summary letter of the Mueller report already has been subject to copious punditry, but very little has been said about the law regarding obstruction of justice. Many will criticize the attorney general as being politically motivated for not proceeding on obstruction charges, but his letter tracked the Supreme Court’s limitations on obstruction of justice prosecutions.

In light of a long line of Supreme Court precedent that has limited various obstruction statutes, even reversing convictions, the decision has legal support. To successfully bring obstruction charges, a prosecutor would have to prove that a defendant did more than lie, get others to lie, or even destroy documents.
The special counsel “did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction.” While the report “does not conclude that the president committed a crime, it also does not exonerate him.” Instead it left “any legal conclusions … to the Attorney General to determine whether the conduct described in the report constitutes a crime.”
Attorney General William Barr, along with Deputy Attorney General Rod Rosenstein, then “concluded that the evidence developed … is not sufficient to establish that the President committed an obstruction-of-justice offense.” The reasons cited in the short letter include:

• “the President was [not] involved in an underlying crime related to Russian election interference”;

• he did not act “with corrupt intent”; and

• there was no “nexus” with the president’s conduct “to a pending or contemplated proceeding.”

Of course none of us knows yet what facts the special counsel found. And it sure sounds like there is quite a bit of evidence “on both sides.” But even assuming some really bad facts for the president, the attorney general made the cautious — and most likely the right — legal decision not to go forward based on recent Supreme Court cases on obstruction.

Please click through and read the whole thing, and give me your thoughts.

A judge, an Olympic gold medalist, and a sports agent

Those were three of the defense witnesses in the Esformes trial on Friday before Judge Scola.  The trial is winding down now and the defense will likely rest this week.  The government will put on a short rebuttal and then closing arguments are expected as early as next Monday.  The gold medalist was Maurice Greene.

In other District news, the Southern District of Florida's Black History Month program was postponed due to the federal government shutdown. It has been rescheduled for Friday, March 29th, at 11:30 am.

Panelists include Dr. Keneshia Grant, Political Science Professor at Howard University, and Karen Andre, an Attorney and political strategist. The panel will be moderated by Magistrate Judge Lisette Reid.

RSVP by today to: FLSD_Program@flsd.uscourts.gov

Legal writing on display in latest en banc back and forth

This time it's a civil case and it's Judge Newsom for the majority, in which ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, JORDAN, BRANCH, and GRANT, Circuit Judges, joined.

Judge Rosenbaum filed an opinion concurring in part and dissenting in part, in which MARTIN and JILL PRYOR, Circuit Judges, joined.

Newsom frames the issue:

Faced with a defendant’s motion for summary judgment, a plaintiff asserting an intentional-discrimination claim under Title VII of the Civil Rights Act of 1964, the Equal Protection Clause, or 42 U.S.C. § 1981 must make a sufficient factual showing to permit a reasonable jury to rule in her favor. She can do so in a variety of ways, one of which is by navigating the now-familiar three-part burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by proving, among other things, that she was treated differently from another “similarly situated” individual―in court-speak, a “comparator.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258–59 (1981) (citing McDonnell Douglas, 411 U.S. at 804). The obvious question: Just how “similarly situated” must a plaintiff and her comparator(s) be?
To date, our attempts to answer that question have only sown confusion. In some cases, we have required a proper comparator to be “nearly identical” to the plaintiff. See, e.g., Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1185 (11th Cir. 1984) (citations omitted). In others, we have expressly rejected a nearly-identical standard. See, e.g., Alexander v. Fulton Cty., 207 F.3d 1303, 1333–34 (11th Cir. 2000). In still others, without even mentioning the nearly-identical benchmark, we have deemed it sufficient that the plaintiff and the comparator engaged in the “same or similar” conduct. See, e.g., Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam). And to make matters worse, in still others we have applied both the nearly-identical and same-or-similar standards simultaneously. See, e.g., Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). It’s a mess.
In an effort to clean up, and to clarify once and for all the proper standard for comparator evidence in intentional-discrimination cases, we took this case en banc and instructed the parties to address the following issue:

The Supreme Court has held that in order to make out a prima facie case of discrimination under Title VII of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, or 42 U.S.C. § 1981, a plaintiff must prove, among other things, that she was treated differently from another “similarly situated” individual. What standard does the phrase “similarly situated” impose on the plaintiff: (1) “same or similar,” (2) “nearly identical,” or (3) some other standard?

 More:

So, we are left to try to find the sweet spot between Lewis’s squishy not-useless standard and the City’s preferred nearly-identical standard. For reasons explained below, we hold that a plaintiff proceeding under McDonnell Douglas must show that she and her comparators are “similarly situated in all material respects.”

Judge Rosenbaum has this to say about the Majority:

The Majority Opinion tries to hide the “not onerous” elephant in the McDonnell Douglas framework by wishing it away as a mere “descriptor that doesn’t pertain to the substantive standard that governs the prima facie analysis.” Id. In the Majority Opinion’s view, then, the plaintiff’s burden to establish a prima facie case is “not onerous” with respect to something other than her burden to establish a prima facie case under the substance of the standards governing the prima facie case.
Wait . . . what?
Of course, whether standards are onerous or not governs whether the plaintiff’s burden on the prima facie case is onerous or not. It makes no sense to speak of the plaintiff’s prima facie burden as “not onerous” if the plaintiff must, in fact, satisfy an onerous substantive standard to meet her prima facie burden.

En banc fight

The issue is whether published panels orders should be binding on all subsequent panels.  The 11th Circuit denied en banc review.  But Judges Martin, Jill Pryor, and Wilson all wrote dissents from the denial of en banc review.  Judge Rosenbaum joined the dissent as well.

Judge Tjoflat wrote an opinion concurring in the denial of rehearing en banc, joined by Ed Carnes, William Pryor, Newsom and Branch.  Judge William Pryor wrote an opinion respecting the denial of rehearing en banc.  Judge Jordan wrote an opinion concurring in the denial of rehearing en banc.   Judge Marcus did not join any opinion but appears to have voted against en banc review.  In all, 90 pages of opinions.

Judge Tjoflat starts his off in a very aggressive tone:

Two dissents—those by Judges Wilson and Martin—have seized upon this direct appeal case as an opportunity to criticize our Court’s processing and publishing of orders on federal prisoners’ applications to file successive motions under 28 U.S.C. § 2255(h). Those dissents not only distort the factual context but also contain unfounded attacks on the integrity of the Court as an institution. So, regrettably, a response is required to set the record straight.
These two dissents focus on only prisoners’ post-conviction applications to file successive § 2255 motions. To place the subject matter of the dissents in context, it is necessary to describe first (1) the nature of the instant direct-appeal case and (2) how, after a direct appeal, a federal prisoner has yet another post-conviction opportunity to challenge his sentence through an initial 28 U.S.C. § 2255 motion. Second, I explain how Congress has strictly limited prisoners’ applications to file successive § 2255 motions that seek to challenge yet again a federal conviction and sentence that has long since become final.
Third, to correct the record about our Court’s published orders ruling on such applications, I provide the statistics that show how our Court has published only 1 to 2% of its orders on post-conviction applications to file successive § 2255 motions, even in 2016, the year on which the dissenters focus. Lastly, contrary to what the dissents claim, I discuss how all published orders of this Court are always subject to further review, such as the en banc poll in this very case. As explained below, there simply isn’t (nor has there ever been) any crisis about our Court’s published orders.

Judge Wilson responds in his conclusion:

Judge Tjoflat takes offense to my dissent, which sheds light on what I believe is an unfair process.5 Thoughtful and respectful disagreement is essential to our constitutional directive—“[t]he premise of our adversarial system is that appellate courts . . . [are] arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.). There is sometimes impassioned but collegial disagreement about the answers to those questions. But to turn substantive disagreement into a sweeping charge that contrary views are “attacks on the integrity of the court as an institution” is another thing entirely. It is the great respect for both this Court as an institution and the judicial role that leads members of this Court to dissent. And if anyone has the duty to raise concerns about the fairness of this Court’s process for resolving a category of appeals, it is a member of this Court. Consistent with that duty, I will continue to express disagreement when important issues are at stake. In another case, when Judge Tjoflat is in the minority, he will be entitled to do the same.

 And Judge Martin responds in her introduction:

Federal judges who decide cases in groups are bound to have differences of opinions about how those cases are decided. I’ve always understood that it is the discussion of those differing views that furthers the development and evolution of the laws and precedent that govern us all. My understanding does not appear to be unique, because if there is any member of this court who has not written a dissenting opinion, they have not been on this court for very long. As for this dissent, it is certainly not an attack on the institution of the federal courts, to which I have devoted the last eighteen years of my professional life. Rather, this dissent is intended to honor the role I have been given on this court. I understand my oath to require me to point out procedures or interpretations of the law that I view as hampering our ability to administer justice to the people who come before us. If I have distorted any fact in this opinion, I request that someone tell me what that fact is so that I can correct my mistake.
As my colleagues have pointed out, this case is the direct appeal of Michael St. Hubert, who was sentenced to serve a 32-year prison sentence in 2016. Although this is Mr. St. Hubert’s first opportunity to challenge his conviction and sentence in this court, his opportunity is limited by rulings this court has made in our habeas jurisprudence. So while Mr. St. Hubert is sitting in prison, his case has generated what I view as a healthy discussion of how it came to pass that he will be required to serve the entirety of a sentence that could not be legally imposed upon him if he were sentenced today. Six of the twelve of the active judges on this court have written opinions about Mr. Hubert’s case, so it seems to have merited a valuable exchange of viewpoints.
Michael St. Hubert was 37-years-old when he pled guilty to two firearms charges brought against him under 18 U.S.C. § 924(c). At that 2016 hearing, the District Judge explained that Mr. St. Hubert would not be a free man until after his 69th birthday. Then, in a sprawling opinion reviewing Mr. St. Hubert’s direct appeal, a panel of this Court affirmed Mr. St. Hubert’s convictions and 32-year sentence, holding that the offenses underlying his convictions—Hobbs Act robbery and attempted Hobbs Act robbery—qualify as crimes of violence under § 924(c)’s residual and use-of-force clauses. See United States v. St. Hubert (“St. Hubert II”)6, 909 F.3d 335 (11th Cir. 2018).
There are several problems with the panel opinion that I believe deserve the attention of the en banc Court. Judge Wilson and Judge Jill Pryor each cogently address some of those problems, and I am privileged to join their dissents in full.
See Wilson, J., dissenting op. at 50–57 (discussing the St. Hubert II panel’s troubling reaffirmation of its ruling that published panel orders from the second or successive context bind all panels of this Court); Jill Pryor, J., dissenting op. at 85–90 (arguing the panel erroneously held attempting a crime of violence itself equates to a crime of violence).
In writing separately, I echo some of my colleagues’ concerns. But beyond that, Mr. St. Hubert’s case offers a valuable illustration of why I’ve been concerned about how this Circuit has parlayed the limited authority given it under 28 U.S.C. § 2244(b) (statute governing second or successive habeas petitions) to stop thorough consideration of the issues presented by people like Mr. St. Hubert, even on his direct appeal. It is an aberration that a statute meant to govern the treatment of inmates who seek to file a second or successive § 2255 motion now serves as a tool for this Court to limit the review of prison sentences on direct appeal. I am convinced this aberration results from our Court failing to follow the plain mandate of 28 U.S.C. § 2244(b)(3)(C). Since this is his case, I will begin with Mr. St. Hubert.

When there is so much disagreement and it takes 90 pages to discuss whether there should be en banc review, why not have it?  The 11th Circuit has a long history of only granting en banc review when there is a defense-favorable issue.  This looks like another example of the most-government friendly appellate court in the country bending over backwards to just rule for the government.  Sigh.

Will Amy Comey Barrett be the next Supreme Court Justice?

If there is an opening during Trump's tenure, my money is on her.  The 46-year old judge on the 7th Circuit just wrote this dissent, arguing that felon-in-possession laws are unconstitutional as applied to non-dangerous felons.  It starts this way:

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun. In 1791—and for well more than a century afterward—legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.
18 U.S.C. § 922(g)(1) and Wisconsin Statute § 941.29(1m) would stand on solid footing if their categorical bans were tailored to serve the governments’ undeniably compelling interest in protecting the public from gun violence. But their dispossession of all felons—both violent and nonviolent—is unconstitutional as applied to Kanter, who was convicted of mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and billing Medicare accordingly. Neither Wisconsin nor the United States has introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe. Nor have they otherwise demonstrated that Kanter himself shows a proclivity for violence. Absent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment.

The conclusion:

If the Second Amendment were subject to a virtue limitation, there would be no need for the government to produce—or for the court to assess—evidence that nonviolent felons have a propensity for dangerous behavior. But Heller forecloses the “civic right” argument on which a virtue limitation depends. And while both Wisconsin and the United States have an unquestionably strong interest in protecting the public from gun violence, they have failed to show, by either logic or data, cf. Skoien, 614 F.3d at 642, that disarming Kanter substantially advances that interest. On this record, holding that the ban is constitutional as applied to Kanter does not “put[] the government through its paces,” see Williams, 616 F.3d at 692, but instead treats the Second Amendment as a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality opinion). I therefore dissent.

Meantime, in local news, Riverside House is trying to help recently released defendants reintergrate into the community.  In that vein, it is holding its 1st Annual Recognition Ceremony where AFPD Helaine Batoff and AUSA J.D. Smith are being honored for their work in Care Court.  Very cool!  Get your tickets here.

Review of Confessions of a Cocaine Cowboy

Friend of the blog Billy Corben is known for his uniquely Miami documentaries: The Cocaine Cowboys series, The U series, Dawg Fight, Screwball, and on and on.  They are all must-watch.  So too with his new venture — a play at the Colony Theatre in Miami Beach called Confessions of a Cocaine Cowboy.

The play tells the story of 80's Cocaine Traffickers Rivi (Jorge Ayala) and Griselda Blanco through the eyes of Rivi (played by Yancey Arias).  You’ll also get some of the story told by Detectives Singleton  (Stephen Anthony) and Diaz (Nicholas Richberg), as well as Blanco and Kathy Rundle (both played by Zilah Mendoza). All of the actors were really great, and Mendoza seamlessly goes back and forth between two leading parts.  Billy makes clear that he views both her characters as the villains in the story.  

Billy’s fast-paced persona jumps off the script: the play is funny, smart, and history lesson all at the same time. 

And in an only-in-Miami opening night, the audience included the actual detectives Singleton and Diaz, Blanco’s son (named Michael Corleone), Blanco’s lawyer, a former U.S. Attorney, a federal judge, and the mayor of Miami Beach.  The detectives and Corleone were recognized towards the end of the show to the crowd’s delight.  

Billy loves telling Miami stories and is at his best when he’s doing so.  When he and partner Alfred Spellman were first researching for Cocaine Cowboys and came across the Rivi depo, they joked about turning it into a play. You couldn’t make up some of the stories that Rivi tells, including the insane sex-phone scandal with some of the secretaries at the State Attorney’s office.  

Government rests in Esformes trial

I’m trying to stay away from blogging about this case, but it’s the biggest case going on in the District so here’s a little news. Five weeks in, the government rested. Judge Scola kicked some of the counts, but most will be going to the jury. But not just yet. The defense listed 150 witnesses.

So you wanna be a Magistrate Judge?

Well, step right up.  Judge Barry S. Seltzer is retiring on January 3, 2020, opening up a slot in Ft. Lauderdale.

Chief Judge K. Michael Moore has selected Jon Sale to lead the Magistrate Selection Committee.  That Committee will recommend 5 applicants to the District Court for the final selection.

Although this has not been made public yet, in the near future, the application will be available on the court website and then forward it to FLSD_MagistrateJudgeRecruitment@flsd.uscourts.gov

Good luck all.

Tony Gonzalez named First Assistant at U.S. Attorney's Office

Ariana Fajardo Orshan shook up the office last week, making lots of changes, including naming Tony Gonzalez as her First Assistant. 

Ben Greenberg, who had that role under Willie Ferrer, and then again under Orshan (while serving as Acting U.S. Attorney in between), is moving to Ft. Lauderdale as senior litigation counsel. 

Four years is the right sentence for Manafort

That’s the title for my piece this morning in The Hill. Here’s the intro:

“Too light.”  “Lenient.”  “A slap on the wrist.” “Perverted.” There’s quite a bit of hand-wringing about the 4 year sentence that Judge T.J. Ellis handed down Thursday to Paul Manafort.But Judge Ellis should be commended for doing the right — and hard — thing despite the enormous amount of pressure by the Special Counsel’s Office, the media, and the public to sentence Manafort to 20 years in prison. Judges are meant to be a check on the executive and not just a rubber stamp for oppressive government requests.
Twenty years would have been absurd for a 69-year-old, first time, non-violent offender.  The sentencing guidelines, which came out to 19.5-24.5 years in this case, are deliberately draconian to induce pleas and discourage trials. They are so over-the-top that when a judge issues a fair sentence as Judge Ellis did, it is viewed as too low even though it isn’t. The system is skewed on purpose, to burden the right to trial.
No one will complain when Rick Gates, who pleaded guilty and is cooperating in the same case, is sentenced to far less than 4 years (and very possibly no jail).  And no one will complain when Michael Flynn receives little to no jail.  
Judge Ellis had to balance many competing issues in issuing a fair sentence.  But one factor that thankfully did not come into play was jacking up Manafort’s sentence simply for proceeding to trial.  Those out there calling for 20 years can’t articulate any good reason for giving Manafort such a lengthy sentence while no one else from the Special Counsel’s investigation has received anything even remotely close.  
Four years in prison for a 69-year old unhealthy defendant is not going to be easy by any stretch.  That’s real time.  

U.S. Attorney’s Office recuses from Epstein case

Interesting move.  It’s now assigned to the Atlanta U.S. Attorney’s Office.  The Herald has more:

Just days before a Friday deadline, the Justice Department has reassigned the Jeffrey Epstein victims’ rights case to the U.S. Attorney’s Office in Atlanta, the attorneys representing Epstein’s victims said Tuesday.

Miami federal prosecutors, in a letter to attorneys for the victims on Monday, said they had recused themselves from the case, according to Bradley Edwards and Jack Scarola, representing Epstein’s victims.

The reassignment means that the U.S. attorney for the Northern District of Georgia, Byung J. “BJay” Pak, will oversee the case for the government. Pak, a former Georgia lawmaker, was appointed Atlanta’s chief federal prosecutor by President Donald Trump in October 2017.

The Justice Department is still under a Friday deadline for prosecutors to confer with the victims’ attorneys in an effort to settle the case. On Feb. 22, U.S. District Judge Kenneth A. Marra in Palm Beach County ruled that federal prosecutors, under former Miami U.S. Attorney Alexander Acosta, broke the law when they concealed a plea agreement from more than 30 underage girls in Palm Beach who had been sexually abused by Epstein, a multimillionaire New York hedge fund manager.

News & Notes

1.  Interested in an en banc from the 11th on Twombly and the Sherman Act.  Look no further!  Here ya go.

2.  This is the kind of stuff that our former guest blogger Brian Toth likes to write about.  But he's busy making partner at his new gig with Gelber Schachter & Greenberg.

3.  It would be fun to practice in California.  Here's a white collar case that was Rule 29ed yesterday:

A federal judge in San Francisco took the rare step Monday of dismissing a market manipulation case against a Barclays trader before the jury rendered its verdict, a decision that will prevent federal prosecutors from filing an appeal.

The judge, Charles R. Breyer, found that prosecutors had not proved their case against Robert Bogucki after several days of testimony.

Defense lawyers routinely ask a judge to dismiss charges after the prosecution presents its case, but judges usually rule on the request, called a Rule 29 motion, only after the jury reaches a verdict. Doing so permits prosecutors to appeal in the event the judge does dismiss the case.

“It’s over, and there cannot be a retrial,” said Daniel Silver, a partner with Clifford Chance in New York who was previously a federal prosecutor in Brooklyn. “Very unusual result.”

4.  Boston, not so much.  There, a judge let in some pretty salacious testimony in the big Insys trial:

It’s an old marketing adage: Sex sells. So, Insys Therapeutics Inc. turned to a former exotic dancer, who once ran an escort service, to push sales of its highly addictive opioid painkiller.
Insys’s former vice president of sales and marketing Alec Burlakoff told a Boston jury Friday that he hired Sunrise Lee as a regional sales manager after meeting her at a strip club in Florida, even though she had no relevant experience.
“She met the criteria,” Burlakoff testified. “She was a PHD -- Poor. Hungry. Driven.”
Burlakoff, 45, is among the government’s star witnesses against Insys founder John Kapoor, 75, and other executives, including Lee, who are accused of conspiring to bribe doctors with phony speakers’ fees and duping insurers into covering prescriptions for the company’s Subsys opioid painkiller.
After Burlakoff hired Lee, she didn’t disappoint, he said. The jury had heard earlier she used her sex appeal, including performing a lap dance for a doctor, to persuade physicians to prescribe Subsys more often. The drug was approved only for cancer patients with “breakthrough” pain, but the jury has heard doctors prescribed it to people with arthritis, depression and back pain.
***
An anonymous tip claiming Lee had run an escort service and had posted topless photos of herself online, didn’t deter Insys’s executives. Kapoor’s response was “everybody has a right to make a living and put themselves through school,” Burlakoff said. Lee was asked to delete the photos and did so “swift and fast,” he added.
The salacious testimony also brought swift objections from Lee’s lawyer Peter Horstmann. He was on his feet objecting for most of the testimony. In a request for a mistrial Monday, Horstmann complained that Burlakoff wrongly characterized Lee as a “person with a proclivity to engage in morally questionable activity for financial gain.”
‘The highly prejudicial impact of this salacious propensity evidence cannot now be undone,” Horstmann wrote.
U.S. District Judge Allison Burrough instructed jurors that they were not to accept the claim about Lee’s escort service as true, only that the company investigated it.
The information was presented “in as unprejudicial a way as possible,” the judge said.

White Collar bar to descend on New Orleans this week

It's the big ABA White Collar conference in New Orleans, starting on Wednesday this week (right after Mardi Gras). To get you in the mood, here's the case of Huge Ass Beer fighting Giant Ass Beer in New Orleans:

Beer is big on Bourbon Street, and never bigger than now, as Mardi Gras' climactic weekend kicks into high gear.

The distinction between “Huge Ass Beers” and “Giant Ass Beer" may not matter to many thirsty revelers on their way to the bars, but it has sparked a federal lawsuit.

Huge Ass Beers is the trademarked name for a plus-sized pour of draft beer sold at a trio of related Bourbon Street businesses. With the term printed on their plastic cups and containers, on employees' T-shirts, doormats and huge signs brandished by street barkers, Bourbon Street is plastered with Huge Ass Beers marketing.
giantbeer

An image of Giant Ass Beer was included in court filings for a lawsuit alleging trademark infringement from the creator of Huge Ass Beers.

The three outposts for Huge Ass Beers — the Steak Pit, Prohibition and Cornet — are all owned by Nicholas S. Karno #1 Inc., a company run by Billie Karno, the operator and landlord for a number of businesses along Bourbon Street.

On Tuesday, that company filed a lawsuit in federal court against another string of Bourbon Street bars and clubs for marketing a rival extra-large draft beer as Giant Ass Beer.

Those businesses include the bars Beerfest, Voodoo Vibe and Sing Sing and the strip club Stiletto’s, which are all run by Pamela Olano and Guy Olano Jr.

In the suit, the Huge Ass Beers creator alleges trademark infringement and seeks a restraining order barring the sale of Giant Ass Beer, as well as damages.