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

That’s the title of my latest piece in the Hill. Please take a look here and tell me what you think. From the introduction:

The late Justice Scalia often joked that he was “the darling” of the criminal defense bar and the “poster child” for the National Association of Criminal Defense Lawyers.  He was right.  More than any other Justice on the Supreme Court with him, he ruled for criminal defendants on important cases dealing with the confrontation clause, sentencing issues, the right to a jury, and probable cause to name a few.   

When Justice Gorsuch replaced Scalia, many feared that he would not be nearly as friendly to criminal defense issues.  But Gorsuch has proved those critics wrong.  Like Scalia, Justice Gorsuch may also get his own poster from NACDL.  Some examples from this Term: 

1. Haymond v. United States.  Justice Gorsuch wrote the 5-4 majority opinion, which is joined by the 4 more liberal Justices, in favor of a defendant who was found guilty of possessing child pornography.  The question for the Court was whether judges had the power to sentence defendants to additional an additional term of imprisonment without a jury finding beyond a reasonable doubt.  Justice Gorsuch said no way: “Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty.”  There’s lots of other really good language in the opinion, explaining that the right to trial by jury, together with the right to vote, is “‘the heart and lungs, the mainspring and the center wheel’ of our liberties, without which ‘the body must die; the watch must run down; the government must become arbitrary.’” (Quoting letter from Clarendon to W. Pam (Jan. 27, 1766), in 1 papers of John Adams 169 (R. Taylor ed. 1977)).  Great stuff.

And the conclusion:

Justice Gorsuch is far from perfect.  He is pro-death penalty.  He dissented in Flowers v. Mississippi, the case where the prosecutor illegally struck black jurors. These decisions have led some to rightfully criticize Gorsuch, like the well-respected Leah Litman in this piece.  But Litman is wrong to minimize what Gorsuch has done, saying he only “sometime departs” from his conservative colleagues. The truth is that he’s been quite good for the rights of criminal defendants, as was his predecessor Justice Scalia.  He doesn’t knee-jerk vote for the government like Justices Alito and Thomas.  And as Litman rightfully points out, he even votes for criminal defendants when his more liberal colleagues (like Breyer) do not. Instead of criticizing Gorsuch for not doing the right thing on every single criminal justice issue, we should be optimistic that he will continue to channel Justice Scalia’s independent streak on these issues.    

Democratic Debates in Miami (UPDATED)

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

Will the topic of judges be brought up?

Criminal Justice?

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

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

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

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

11th Circuit reversed again in a criminal case (UPDATED with Davis opinion)

UPDATE -- The Supreme Court in United States v. Davis also reversed the 11th Circuit's en banc opinion in Ovalles. The Supreme Court, per Justice Gorsuch, held that Section 924(c)(3)(B) is unconstitutionally vague.

This time the issue is what level of proof is needed under 922(g), the illegal gun possession statute.  The Court held that in a prosecution under 18 U.S.C. §922(g) and §924(a)(2), the government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.

Here’s the Supreme Court opinion, written by Justice Breyer, with a dissent by Justice Alito.

And here’s the 11th Circuit opinion.

SCOTUSblog explains the impact of the decision here:

Petitioner Hamid Rehaif will be among those who get a hearing on whether he actually knew he was out of immigration status. He had come to the United States on a student visa to study at a university in Florida, but he was academically dismissed. In informing him about his dismissal, the university’s email notified him that his immigration status would be terminated if he did not transfer to another school or leave the United States, neither of which he did. Instead, he stayed in Florida. During that stay, he went to a firing range, purchased ammunition and fired weapons. Hotel staff tipped off the FBI that Rehaif was engaging in suspicious behavior.

At the ensuing trial, the district court instructed the jury that it need not find that Rehaif knew he was out of immigration status, and the jury convicted. The U.S. Court of Appeals for the 11th Circuit affirmed, noting substantial agreement among its fellow circuits that the term “knowingly” in 18 U.S.C. § 924(a)(2) applies to possession of the weapon, but not to the status category of the possessor.

Breyer’s majority opinion rejected that position. “In determining Congress’ intent, we start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding ‘each of the statutory elements that criminalize otherwise innocent conduct,'” wrote Breyer. “Here we can find no convincing reason to depart from the ordinary presumption in favor of scienter [requirement of guilty mind].”

The phrase “otherwise innocent conduct” strongly echoed concerns voiced by Justices Neil Gorsuch and Brett Kavanaugh at oral argument. They had noted that possession of a gun alone is not blameworthy and therefore that one’s membership in a prohibited status category is all that stands between innocent and criminal conduct under Section 922(g). If the status divides innocent from criminal conduct, then the defendant should have to know of that status in order to be convicted, they suggested. Along those lines, the majority opinion acknowledged that the statute’s “harsh” maximum punishment of 10 years played a role in its decision.

Now that the court has decided that knowledge of status is required for a conviction under Section 922(g), prosecutors must think about what kinds of tangible evidence can be used to show that state of mind, and those looking to challenge their convictions must scour their records to find some evidence casting doubt on the existence of such knowledge. These tasks are complicated greatly by the fact that there are nine different status categories. While reminding prosecutors that they may prove state of mind through circumstantial evidence, the majority refused to get too specific, saying, “We express no view … about what precisely the Government must prove to establish a defendant’s knowledge of status in respect to other Section 922(g) provisions not at issue here.”

However, the majority opinion did mention two hypothetical fact scenarios in which there could be reasonable doubt that the defendant knew his status. Echoing a remark by Justice Sonia Sotomayor at argument, the majority pointed out that a failure to require knowledge would criminalize firearm possession by “an alien who was brought to the United States unlawfully as a small child and was therefore unaware of his unlawful status.” The court made the same observation about “a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is ‘punishable by imprisonment for a term exceeding one year.'” This would seem a particularly important scenario, given that the vast majority of convictions occur by plea bargain, where the lawyer, not the defendant, does the negotiating. Moreover, the average defendant’s curiosity only extends to the prosecutor’s actual offer, not to the theoretical maximum punishment that the prosecutor could have sought under the statute.

Breyer noted that the mens rea requirement for each element is important, especially in a case where there was such a severe maximum sentence of 10 years. 10 years. Of course he’s right, but I wonder whether the Justices are really aware that sentences over 10 years are handed out every day for non-violent first time offenders. It’s really insane. Rehaif is another message to judges in this Circuit to consider novel arguments, instructions, and so on that criminal defense lawyers raise. The only way to combat our overcriminalization and overincarceration problem is to grant some defense motions so that prosecutors are not so quick to charge, object, ask for such high sentences, and so on.

**Full disclosure — I was part of a team that filed an amicus brief for NACDL in support of the defendant.

Who makes up Senator Rubio's "JNC"?

Unlike the former and fairly transparent process that used to be in place with a public JNC, public interviews, and public list of candidates, there is quite a bit of secrecy surrounding how the Fort Pierce district court seat is being picked. 

Here's what I've been able to put together.  As reported on the blog a few days ago, Senator Rubio has put together his own group to interview a slate of six candidates.  Those candidates are:

Aileen Cannon (AUSA, Fort Pierce)
John Couriel (former AUSA, partner at Kobre Kim)
David Leibowitz (former AUSA, general counsel Braman)
Migna Sanchez-Llorens (former AFPD, state judge, Miami)
Meenu Sasser (state judge, West Palm Beach)
Michael Sherwin (AUSA, Miami)

Thanks to a bunch of great tipsters, I now have the list of Rubio's interviewers:

Co-Chairs:

Carlos Lopez-Cantera and Manny Kadre

Other members:

Georgina Angones
Kendall Coffey
Renier Diaz de la Portilla
Albert Dotson
Robert Fernandez
Jillian Hasner
Eduardo Lacasa
Jon Sale
Steve Waserstein

Breaking: six candidates to be interviewed for Fort Pierce slot

There has been a lot of speculation over the fifth and final open district court seat in this District,* which is slated for Fort Pierce.  I have multiple sources confirming that there will be no JNC for this opening.  Instead, Sen. Rubio has put together a group to interview six candidates.  Rubio's group will then recommend someone for that position, and it will be up to Rubio and Scott to see if they can agree on that person to recommend to the White House.

The six candidates are:

Aileen Cannon (AUSA, Fort Pierce)
John Couriel (former AUSA, partner at Kobre Kim)
David Leibowitz (former AUSA, general counsel Braman)
Migna Sanchez-Llorens (former AFPD, state judge, Miami)
Meenu Sasser (state judge, West Palm Beach)
Michael Sherwin (AUSA, Miami)

*Raag Singhal is being vetted for the open 4th slot.

Rodney Smith was sworn in and Lisette Reid had her investiture

Congrats to them both!

Judge Graham did the swearing in for Judge Smith.

And it’s Miami, so the judges were in their summer uniforms.

“I want everyone who looks at this matter to get to the bottom of it to make sure these proceedings are not tainted in any way."

1.  That was Judge Scola after learning that two snitches at FDC hatched a plot to pay a defendant to go to trial so that they would get a longer sentence reduction.  Jay Weaver covers the story here:

The potential payoff for her: From $1 million up to $10 million in bribes, according to her defense attorney, but with the downside that she might spend more time in prison herself if she was convicted.

The strange snitching twist came to light in a massive narcotics distribution case that has already seen nine of the 10 defendants plead guilty. Bravo and Belalcazar are cooperating with the feds after both pleaded guilty to conspiring to transport hundreds of kilos of cocaine into the United States — loads that were confiscated at sea by the U.S. Coast Guard. They now face up to life in prison — though the scheme described in open court and court documents suggests they were angling for far more lenient punishment.

The payoff plan could now backfire on them: the sole defendant, Yina Maria Castaneda Benavidez, who was supposed to face trial alone on Friday, was clueless about their plot to bribe her, according to her lawyer, Erick Cruz. And her intention was to go to trial anyway to fight the trafficking-conspiracy charge, Cruz said.

“She had no idea that this was going on,” he told the Miami Herald after the federal court hearing. “It caught her and everybody else by by surprise.”

Cruz and his client, whose trial has now been postponed until September, said they learned about the alleged bribery plot from federal prosecutors. They recently found out about it from a Drug Enforcement Administration agent, who got a tip from a paralegal, who somehow picked up on the scheme at the Federal Detention Center in downtown Miami. That is where the two Colombian cooperating witnesses, Bravo and Belalcazar, are in custody — along with Castaneda.

The FDC, a towering concrete building that mainly holds defendants who are awaiting trial or have pleaded guilty with cooperation deals, is notorious for inmates swapping dirt on one another to gain some ground against a long sentence.

In a court filing, Cruz said the two Colombian witnesses in the drug-trafficking case discussed their planned testimony about his client with other FDC inmates, and that they agreed to deposit money in her commissary account for the rest of her incarceration if she went to trial, was convicted and they received a sentence reduction.

Cruz has asked U.S. District Judge Robert Scola to disallow their appearances as government witnesses because “their desperation” to obtain a sentence reduction by testifying against Castaneda “impairs” her due process rights.

“The court should sanction [Bravo] and [Belalcazar] by not permitting them to testify at [Castaneda’s] trial,” Cruz wrote in the court filing. “Their conspiracy to devise a scheme in which they would bribe [Castaneda] to go to trial so that they could testify against her and receive a sentence reduction is novel, even by South Florida standards.”

Initially, prosecutors Joseph Schuster and Brian Shack said they still wanted to use the two Colombians as cooperating witnesses against her, but Judge Scola warned them that it may not be possible under the circumstances.

“I don’t know how you can come to that conclusion,” the judge said, raising the obvious problem of the two witnesses’ credibility and integrity.

2.  In other news, Rumpole covers Judge Altman's announcement that it is his policy to remand defendants at sentencing.  Rumpole rightfully says that the better practice is to allow self-surrender. 

One thing Rumpole didn't touch on was the enormous cost to the system and the defendant by requiring surrender at sentencing instead of to the prison where the sentence will be served.  A remand means that the defendant will go to FDC (if he's lucky; since Altman is in Broward, his defendants may go to the county jail before being moved to FDC) and then will wait there for 4-6 weeks until he is moved to another holding facility.  After spending time there, the defendant will then be moved to the ultimate prison at thousands of dollars of cost to the system for no reason.  And that doesn't account for the terrible conditions to the defendant during the transfer.  Talk to most defendants and they will tell you that the worst time they did was the movement from FDC to the holding prison to the final prison.  It's much worse than diesel therapy.  It's countless nights in the Special Housing Unit or sleeping on the floor of a county jail, all the while being cut off from being able to speak to your family.  Many times defendants are transported to Oklahoma or Atlanta even if their designated prison is somewhere in Florida.  It's just absurd. 

Most judges give defendants time after sentencing to self-surrender to their designated prison.  This way, the defendant bears the cost of the travel.  Marshals are able to focus on their jobs instead of transporting defendants.  And defendants can humanely go to the prison instead of being treated in ways which we wouldn't wish on our enemies. 

So I hope Judge Altman reconsiders a policy that greatly burdens the system, taxpayers, and defendants with no countervailing benefit. 

BREAKING -- Rodney Smith confirmed

CONGRATS to our newest judge -- Rodney Smith.  He was confirmed 78-18 to fill Robin Rosenbaum's slot. 

Judge Ungaro rules for FDA in fight with stem cell clinic

Interesting case.  The NY Times covers it here:

A judicial ruling this month that will stop questionable stem-cell treatments at a clinic in Florida is widely seen as a warning to a flourishing industry that has attracted huge numbers of patients, who pay thousands of dollars for unproven, risky procedures.

But with little regulatory oversight for the hundreds of clinics operating these lucrative businesses across the country, it’s too soon to tell how far the impact might reach.

The decision, by a federal court on June 3, empowered the Food and Drug Administration to stop U.S. Stem Cell, a private clinic in Sunrise, Fla., from injecting patients with an extract made from their own liposuctioned belly fat.

The clinic had claimed that the extract contained stem cells with healing and regenerative powers that could treat a range of illness and injuries, from back problems to Parkinson’s disease, arthritis, and heart and lung diseases.

But medical experts say there is no proof that these treatments work, and three patients, who each paid $5,000 to be treated at U.S. Stem Cell in 2015, went blind after the fat extracts were injected into their eyes to treat macular degeneration.

In granting the F.D.A.’s request for an injunction against the clinic, Judge Ursula Ungaro agreed with the agency that extracting stem cells from fat requires so much processing that it essentially transforms them into a drug. That alteration firmly places such treatments under the jurisdiction of the F.D.A., which has the authority to regulate drugs.

“There is a reasonable likelihood that the defendants will continue to violate the Food, Drug, and Cosmetic Act,” the federal law that gives the F.D.A. its regulatory authority, Judge Ungaro wrote. She also noted that when the agency warned U.S. Stem Cell about unsafe practices at the clinic, the company responded not by correcting the problems, but by arguing that it was exempt from F.D.A. regulation.

Here's the order.

“Given the number of most-watched cases still unannounced, I cannot predict that the relatively low sharp divisions ratio will hold.”

That was RBG speaking at the Second Circuit last week on how the Court so far this Term has been relatively cordial and not split 5-4 (only 11 cases so far). But the gerrymandering case and the census case are still out there with the Term coming to a close.

Lots of other tidbits in this Washington Post article, including Kavanaugh's hiring of all women law clerks, tipping the balance of female law clerks over male for the first time in Court history.

She also said that the retirement of Justice Kennedy was “the event of greatest consequence for the current term, and perhaps for many terms ahead.”

11th Circuit takes grand jury secrecy case en banc

Really interesting issue.  The panel summarized the issue as follows:

In 1946, a crowd of people in Walton County, Georgia gathered as two
African American couples were dragged from a car and shot multiple times.1
Many consider this event, known as the Moore’s Ford Lynching, to be the last
mass lynching in American history. Racial tensions in Georgia were high. African
American citizens were allowed to vote in a Georgia Democratic Party primary for
the first time that year.2 The murders occurred shortly after the primary and
immediately garnered national media attention. National outrage, including
condemnation from then Special Counsel to the NAACP Thurgood Marshall,
ultimately led President Harry Truman to order an FBI investigation. In late 1946,
a district court judge in Georgia convened a grand jury. But after sixteen days of
witness testimony, no one was ever charged. The case remains unsolved.
Over seven decades later, Anthony Pitch, an author and historian, petitioned
the Middle District of Georgia for an order unsealing the grand jury transcripts.
The district court granted his request. The government now appeals, arguing the
district court abused its discretion in unsealing the transcripts. After careful review
and with the benefit of oral argument, we affirm. 

 Politico covers the en banc grant:

A federal appeals court announced Tuesday that its full, 12-judge bench plans to revisit whether judges have the authority to disclose usually secret grand jury information in exceptional cases.
The Atlanta-based 11^th Circuit Court of Appeals said it plans to take up, en banc, a case involving a historian’s request for access to records of a federal grand jury investigation into the 1946 lynching of two African-American couples in Walton County, Ga.
Legal disputes about access to grand jury information are drawing unusual attention at the moment because of a standoff between the House Judiciary Committee and Attorney General Bill Barr over access to various materials related to special counsel Robert Mueller’s Trump-Russia probe.
Part of that fight is a disagreement over whether lawmakers are entitled to see testimony and evidence that is typically kept secret because it was obtained by a grand jury.
The 11^th Circuit’s brief order Tuesday wiped out the victory historian Anthony Pitch won in February, when a court panel voted 2-1, to uphold a lower-court order allowing disclosure of the records.
The Justice Department has steadfastly opposed disclosure in such cases, saying that judges can only permit release through six explicit exceptions to the grand jury secrecy rule. However, government lawyers did not seek en banc rehearing of the decision.
The court’s order Tuesday said an unidentified 11^th Circuit judge acting on his or her own sought a vote on further review of the case. A majority of the court’s active judges agreed.
It’s unclear precisely what triggered the rehearing, but Pitch’s attorney, Joe Bell, told POLITICO he believes it may be some combination of factors including a heated dissent by a district court judge who sat on the 11^th Circuit panel and a conflicting, 2-1 ruling issued in April by the D.C. Circuit on a similar case involving another author, Stuart McKeever. He has asked the full D.C. Circuit to rehear his case, and there was a sign last month that they might do so.
“I know it probably involves the McKeever decision and it might also be that everyone saw what’s going on with Mueller in Washington and they want to come out with some sort of united front,” Bell said.
Whatever the 11^th Circuit ultimately does, it won’t iron out disagreements among courts on the issue.
Other appeals courts, including the New York-based 2nd Circuit and the Chicago-based 7th Circuit, have upheld judges’ right to release grand jury material sought by historians or in other circumstances not mentioned in the rule.

Justice Thomas says he has no stress

Must be nice.

The rest of the lawyers out there are pure bundles of stress. 

Seems like such a weird thing to say, even though it's true.

From SCOTUSblog:

Justice Clarence Thomas told an audience at the U.S. Supreme Court this afternoon that he doesn’t know where rumors of his potential retirement at the end of this term originated.

“My wife gets alerts,” Thomas said, apparently referring to news or web alerts that his spouse, Virginia Thomas, receives. When she showed one such alert to him earlier this term, his response was, “Wow. I didn’t know that.”

“I have no idea where that stuff comes from,” Thomas added during an hourlong conversation with the financier and philanthropist David Rubenstein in the courtroom, before an audience of several hundred members of the Supreme Court Historical Society. “People can say things about you and for you that have nothing to do with you.”

Rubenstein, a trustee of the Historical Society who frequently interviews the mighty and powerful on his show on Bloomberg Television and elsewhere, didn’t specifically ask Thomas to repeat the firm denial of any impending retirement that the justice offered earlier this spring.

Asked about potential retirement at an event at Pepperdine University law school, Thomas said, “I’m not retiring,” and that he had no plans to retire in 20 years or 30 years.

Thomas turns 71 on June 23.

With the court entering the final month of its term, Rubenstein asked Thomas how he relaxes during the term.

“I really don’t have a lot of stress. I cause stress,” Thomas said with a laugh. He goes to Roman Catholic mass, reads and follows the sports exploits of his adopted favorite college, the University of Nebraska. (His wife and mother-in-law attended there.)

 Meantime, check out this weird alignment of Justices, where Ginsburg joins Thomas on a supervised release issue and Gorsuch joins the libs.

What’s left for SCOTUS before their summer break?

Teachers and Supreme Court Justices get the summer off. The Justices have a few more opinions to get out before they hit the beach. CNN covers what’s left, including the census case.  But I’m waiting for this one:

Double Jeopardy (Gamble v. United States)
The Double Jeopardy clause to the Fifth Amendment prohibits more than one prosecution for the same offense. There is an exception, however, that is called the "separate sovereigns exception."
Under the exception, prosecutions are allowed to bring charges for the same offense if the charges are brought by state and federal government. The Supreme Court is being asked to get rid separate sovereigns exception.
Critics contend that in the modern day it leads to harassment of defendants -- especially the poor -- who can't afford to fight on two fronts.
The case could impact President Donald Trump's pardon power as it applies to the Robert Mueller probe. The thinking goes that if he pardoned someone like Paul Manafort, then state officials could not bring the same charge against him. Others say that it would have no impact because state prosecutors would be savvy enough to bring charges for a different offense.The Trump administration argued that the exception should remain on the books.
Why it matters:
On one hand, the federal government and others say this exception is meant to protect the independent power of state and federal governments. It has been a part of the court's fabric for more than 150 years.