"Hmm."

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

Here's the Hmm language:

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

Hmm.

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

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

Here's Pryor:

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

And Rosenbaum's response:

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

Monday morning Endgame and Battle of Winterfell edition

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

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

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

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

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

News & Notes

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

From a practical perspective, this is a really important decision. It concludes that a routine practice that wasn't thought to be illegal (if it was thought of at all) is actually unconstitutional. I'm not sure if the decision is correct. And as I'll explain below, there are several plausible but debatable moves in the opinion. But this decision is now binding in the Sixth Circuit and may also be followed elsewhere: Traffic enforcement officers around the country should be paying attention to this.

2. What's going to happen with the census question in SCOTUS. Most are predicting a conservative 5-4 ruling. Mark Joseph Stern explains why the conservatives are being hypocritical:

To uphold the citizenship question, the court’s conservatives will have to feign respect for the Voting Rights Act, international law, and agency deference—three of their greatest enemies in any other context. In the process, they’ll have to pretend that Ross’ absurd pretexts, his many lies and obfuscations, are believable, even reasonable. And they appear willing to do exactly that to let Ross and Trump have their way. Such a decision would be an embarrassment to the judiciary, evidence that a majority of the justices place the goals of the Republican Party above the truth. A partisan ruling in this case would diminish the court’s legitimacy and fuel support for the addition of more justices. If SCOTUS abandons any pretense of neutrality and throws its weight behind the Trump administration, court packing may come to look like the only sensible option to save democracy from its wayward guardians.

3.  Meantime in our District, the word is the newly-minted Judge Roy Altman has a stable of cases now and has brought the parties in for status conferences.  He will be having a busy summer.  The big question -- will he get to send cases to the two new judges who will be coming shortly.

Michael Avenatti case has Miami connection

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

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

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

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

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

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

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

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

And one of the ways:

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



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

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

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

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

Lots of interesting writing and fighting here.

Pryor starts off this way:

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

Newsom writes a concurrence saying that both sides have nice totality of the circumstances arguments and that on balance he's with the majority, but he favors bright lines and would end up saying that cops can always seize a bullet:

So in the next “bullet case,” rather than asking—or worse, requiring the responding officer to ask—whether the neighborhood is sufficiently scary, the hour sufficiently late, the light sufficiently dim, and the suspect and scene sufficiently secure, I would simply hold that the Fourth Amendment permits the protective seizure.

Branch agrees (Grant joins) with Newsom but writes separately without all of the nice stuff about the dissents:

Because I conclude that a bullet falls in to the category of “guns, knives, clubs, or other hidden instruments for the assault of the police officer,” id. at 29, and cannot logically be separated from a gun for Terry purposes, I would find that anytime an officer conducts a lawful Terry frisk, the officer may seize any bullet located during the frisk.

Jordan dissents and says, what about originalism? Originalism would not have allowed this to go forward and all of those in the majority who are generally champions of originalism are awfully quiet now:

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

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

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

Judge Rosenbaum is the Kagan of our Circuit. A glimpse here from the conclusion:

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

Jill Pryor's dissent (joined by Wilson, Martin, and Jordan) defends the panel decision:

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

The Supreme Court addresses whether FUCT can be trademarked

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

Some background from SCOTUSblog:

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

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

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

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

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

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

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

No one grabbed Nimmer that day, of course.

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

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

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

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

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

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

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

Senate takes Spring Break

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

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

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

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

Here's a nice picture of the event:

Esformes forfeiture verdict

The Esformes trial is finally over ...

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

Next up is sentencing.

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

Um, whoops?

Yujing Zhang, the woman who was arrested at Mar-a-Lago, with her thumb-drive had her bond hearing today in West Palm Beach.  She was represented by the Federal Public Defender's office.  This gem came out during the agent's testimony (via the Miami Herald):

On Monday, wearing a short-sleeved, navy-blue detainee uniform and chewing her lower lip, Zhang glanced repeatedly at the crowd of journalists who had gathered for the hearing. Her hands were clenched in fists so tight they began to turn red. She appeared to speak in English with one of the attorneys representing her, although a court-appointed Mandarin interpreter was also present. When the hearing started, she began taking notes on a yellow legal pad.

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

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

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

“That’s good to know,” Adler said.

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

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

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

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

Insys case to jury

In addition to Esformes, there is another huge health care trial that just went to the jury after 43 days of testimony.  It’s known as the Insys case and it involves John Kapoor, the CEO of Insys, in Boston federal court.  From NPR:

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

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

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

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

***

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

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

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

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

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

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

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

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

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

Congrats to Judge Roy Altman

He was just confirmed, 66-33.

Senate goes nuclear over Roy Altman

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

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

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

Interestingly, because Altman will be confirmed first, he will have seniority over Ruiz and Smith.

In Defense of Joe Biden

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

It’s official: The pendulum of #MeToo claims has now swung too far. When a friendly gesture with no sexual intent is labeled a reprehensible act that should be subject to public shaming and even disqualification from public office, it is time that we all recognize that we are starting to lose perspective.

Let’s be clear before I continue: I am not talking about the crass comments by the current President that it’s okay to “grab [women] by the pussy” or inappropriate sexual relations between then-President Clinton and an intern. Those are clearly beyond the pale. But the “allegations” against Joe Biden — that he touched Linda Flores’ shoulders and kissed the back of her head — are very different.

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

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

Please read the whole thing and lemme know your thoughts...

"I'm saving her for Ginsburg."

That was your President, Donald Trump, when telling confidants his plans for Amy Coney Barrett.  I guess we should not be surprised by the crass comment.

From Axios:

As he was deliberating last year over replacing Supreme Court Justice Anthony Kennedy, President Trump told confidants he had big plans for Judge Amy Coney Barrett.

"I'm saving her for Ginsburg," Trump said of Barrett, according to three sources familiar with the president's private comments. Trump used that exact line with a number of people, including in a private conversation with an adviser two days before announcing Brett Kavanaugh's nomination.

***

Yes, but: There's no guarantee Trump will get another Supreme Court pick. It's very unlikely Ginsburg will retire while he’s in office. And though she's 86 and has had 3 bouts with cancer, she's on the bench now and appears healthy.

Barrett isn't a lock even if Trump does get to make another appointment, the people familiar with his thinking said.
Barrett has the inside track "in a very specific sense," said a source who's discussed Barrett with Trump. "She is the most known quantity right now amongst the women on the list. ... And she also has the inside track in the sense that she was kind of battle-tested for having gone through a confirmation already."
Between the lines: Trump changes his mind all the time, and Barrett would need to undergo a fresh round of vetting to review the rulings and public comments she's made since confirmed to the 7th Circuit Court of Appeals in 2017.

"The Supreme Court judicial selection process with the president is a very fluid one," said a source familiar with Trump's thinking on the subject. "He floats in and out of these discussions over a period of time."
Barrett's education didn't appeal to Trump, according to sources familiar with his thinking. She went to law school at Notre Dame, and Trump prefers candidates with Harvard and Yale on their resumes.

Why it matters: Trump has already pulled the court well to the right. If he gets to replace Ginsburg, especially with Barrett, he would cement a young, reliably conservative majority that could last for decades.