Thursday, January 23, 2020

Michael Avenatti should not be in solitary confinement

That's the title of my latest piece in The Hill.  Please let me know your thoughts.  From the introduction:

Imagine being held by yourself in a small, freezing cold cell 24 hours a day. Not allowed to go outside. Not allowed to make a phone call. Not allowed to go to the bathroom without being watched. Not allowed to shave. Not allowed to visit with a family member. Shivering and alone, day after day.
This is bad enough for a hardened convicted criminal who cannot safely be housed with others. But imagine being held in these conditions when you have not been convicted of any crime. And when the only crime of which you have been accused is a non-violent financial crime.
This is no crazy, off-the-wall hypothetical. It is a strategy too often used against accused first-time non-violent offenders in an attempt to crush them and coerce them into pleading guilty.
This is what is happening right now to Michael Avenatti.
And it is wrong.

Wednesday, January 22, 2020

Brrrrr!

It's finally winter!

And it's impeachment talk all the time.

But while everyone is talking impeachment, there are two big trials starting up in New York.

The first is Harvey Weinstein, where he won a motion to be able to show the jury in opening the "dozens and dozens" of loving emails from his accusers:
"What we will counter with are their own words, where they describe loving relations, sensual encounters with Mr. Weinstein," defense attorney Damon Cheronis said during oral arguments Tuesday. "Mr. Weinstein is described as someone they care about both before and after the alleged sexual assault."

"Another complaining witness who claims Harvey Weinstein sexually assaulted her sent him an email wanting to introduce him to her mother," Cheronis argued at another point, though he never specified to whom among the six he was referring.
Of course he should be able to do so, and it's weird that it was even a question. 

For the other big NY trial, we move to federal court where Scott Srebnick and Jose Quinon are representing Michael Avenatti.  The big fight right now is trying to get Avenatti out of the SHU, where it is impossible to prepare for trial.  Here's Scott's letter and the Warden's response. It's absurd to keep a first-time accused white collar defendant in solitary conditions like El Chapo.  Let's hope this doesn't break Avenatti into pleading as the government is trying to do.

Tuesday, January 21, 2020

Slow blogging

Sorry for the slow blogging over the long weekend. I’ll be back at it tomorrow (Wednesday). See you then.

Thursday, January 16, 2020

Should we have a "Defender General?"

Daniel Epps and William Ortman make the pitch for a Defender General in this forthcoming piece:
The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients—even when they conflict with the interests of criminal defendants as a whole. The prosecution’s advantages likely distort the law on the margins.
If designed carefully, staffed with the right personnel, and given time to develop institutional credibility, a new Office of the Defender General could level the playing field, making the Court a more effective regulator of criminal justice. In some cases—where the interests of a particular defendant and those of defendants as a class align—the Defender General would appear as counsel for a defendant. In cases where the defendant’s interests diverge from the collective interests of defendants, the Defender General might urge the Court not to grant certiorari, or it might even argue against the defendant’s position on the merits. In all cases, the Defender General would take the broad view, strategically seeking to move the doctrine in defendant-friendly directions and counteracting the government’s structural advantages.
I haven't thought through all the pros and cons of a DG, but if we are going to have one, I nominate Michael Caruso.

Wednesday, January 15, 2020

News & Notes

1.  Fane Lozman, of Supreme Court fame, has settled his case against Riviera Beach to the tune of $875,000.  Good for him!

2.  Michael Munday's case was affirmed by the 11th Circuit.  No issues with playing clips from Cocaine Cowboys at trial.

3.  Should Apple be forced to open an iPhone from accused defendants?  The NY Times covers this recurring debate here.

4. Michael Avenatti was supposed to start trial next week in New York (with Miami criminal defense lawyers), but he was arrested last night in connection with his California case.  The feds allege that he was violating his bond conditions. 

5.  Mike Flynn wants to withdraw his guilty plea.  I've never understood judges who deny these motions.  (There are some judges in this District who always grant them, which seems like the right move.)  If he wants a trial, let him have his trial!

Monday, January 13, 2020

RIP Magistrate Judge Barry L. Garber


A good man, he will be missed.

Garber was a no-nonsense judge on the bench.  Off the bench, he was a tall teddy bear.  He was appointed back in 1991, and died last night at 89.  RIP.

UPDATE -- services will be held on January 15 at 10:30am at Riverside Mount Nebo Kendall (5900 SW 77th Avenue).

Sunday, January 12, 2020

What sentence should Michael Flynn get?

Once upon a time, the government said something other than prison.

But now it is asking for 6 months in this memo. From the Washington Post:

The government revoked its request for leniency weeks after Flynn’s sentencing judge categorically rejected Flynn’s claims of prosecutorial misconduct and that he had been duped into pleading guilty to lying to FBI agents about his Russian contacts after the 2016 U.S. election. “In light of the complete record . . . the government no longer deems the defendant’s assistance ‘substantial,’ ” prosecutor Brandon Van Grack wrote in a 33-page court filing. He added, “It is clear that the defendant has not learned his lesson. He has behaved as though the law does not apply to him, and as if there are no consequences for his actions.”

Flynn faces sentencing Jan. 28 before U.S. District Judge Emmet G. Sullivan in Washington. Flynn defense attorney Sidney Powell is scheduled to file his sentencing request Jan. 22.

The request marked the latest twist in the legal saga of the former Army lieutenant general and adviser to President Trump, whose rocky path after his candidate won the White House included serving the shortest tenure of a national security adviser on record — just 24 days — before resigning in February 2017. He then became a key witness in a probe into the administration, before breaking with the prosecutors who had credited him with helping them.

Flynn’s change of heart came after the end of special counsel Robert S. Mueller III’s probe of Russian election interference. Some Trump allies at that time pushed the president to pardon figures in the probe, particularly Flynn. A potential prison term could renew such calls.

Flynn, 61, pleaded guilty Dec. 1, 2017, to lying about his communications with then-Russian Ambassador Sergey Kislyak during the presidential transition, becoming the highest-ranking Trump official charged and one of the first to cooperate with Mueller’s office.

***

This year Flynn switched defense lawyers, and his new team asked Sullivan to find prosecutors in contempt, alleging Flynn had been entrapped into pleading guilty and prosecutors wrongfully withheld evidence. Flynn also broke with prosecutors in the July federal trial of his former business partner Bijan Rafiekian, on charges of illegally lobbying for Turkey. Flynn was set to be the star witness against Rafiekian. He told a grand jury he and Rafiekian campaigned “on behalf of elements within the Turkish government,” a project that included an op-ed under Flynn’s name on Election Day in 2016. But just before the trial, Flynn claimed prosecutors wanted him to lie. A jury convicted Rafiekian without Flynn’s testimony, but a judge threw out those convictions in part because he found “insufficient” evidence of a conspiracy between the two men or of the Turkish government’s role....

In withdrawing their request for leniency, Flynn’s prosecutors highlighted his hindrance of Rafiekian’s prosecution, the only cooperation they had initially deemed “substantial.” The government recommended zero to six months of incarceration for Flynn, citing “the serious nature of the defendant’s offense, his apparent failure to accept responsibility, his failure to complete his cooperation in — and his affirmative efforts to undermine — the prosecution of Bijan Rafiekian.”

Prosecutors backed their claim Tuesday by filing dozens of pages detailing Flynn and his lobbying firm’s misconduct, including grand-jury transcripts and FBI interview reports. Overall, prosecutors said Flynn participated in 19 interviews with federal prosecutors and turned over documents and communications. The substance of his cooperation was initially hidden, but most has come out in Mueller’s final report, subsequent trials or public records released as a result of lawsuits filed by news organizations.

Thursday, January 09, 2020

Fascinating debate in the 11th Circuit about juror deliberations and divine intervention

Can a juror base his decision to vote not guilty because that's what "the Holy Spirit" told him to do?  This is a really interesting one because Judge Rosenbaum writes the majority opinion in which she says that the district court was justified in excusing the juror:

If the right to a jury trial means anything, it means a right to a verdict based on the evidence. Indeed, the entirety of our procedural mechanisms is geared to achieve this result: we have trials so we can ensure all jurors consider the same universe of evidence; we have an entire body of rules—the Federal Rules of Evidence—devoted to controlling the information on which jurors can rely in reaching their decision; and we expressly instruct the jurors that they must determine their verdict based on the evidence. Then, if a defendant loses at trial, on appeal, we review the record to be certain that sufficient evidence supports the verdict.
We do these things to try to ensure that only those proven guilty based on admissible evidence will be convicted and to try to prevent convictions that arise from prejudice or even ostensibly noble reasons—such as a juror’s belief that God has told him to convict, irrespective of the evidence. The consistent application of these practices underpins the public’s faith in the jury system and delivers due process of law, an ideal in which our system of justice is grounded.
So we must steadfastly insist that a deliberating juror who is incapable of reaching a verdict based on the evidence be dismissed, regardless of whether that juror intends to convict or acquit a defendant. If we do not, we guarantee that, under at least some circumstances, a juror who is unable to arrive at a verdict rooted in the evidence will nonetheless be allowed to convict a defendant. That is unacceptable.
Here, the district court became aware that during deliberations, Juror 13 in Defendant-Appellant Corrine Brown’s trial made remarks suggesting he might not base his verdict on the evidence adduced at trial. Specifically, Juror 13 informed the other jurors at the outset of deliberations that “[t]he Holy Spirit told [him]” that Brown was not guilty on all counts.
The district court questioned Juror 13 for a while, in the presence of the parties, to ascertain whether Juror 13 meant that he had prayed to the Holy Spirit for guidance and wisdom in reaching a verdict based on the evidence—which would not run afoul of the court’s instructions to return a verdict based on the evidence—or whether he meant instead that he believed the Holy Spirit had “told” him to return a certain verdict irrespective of what the evidence showed—which would violate the court’s instructions. Based on Juror 13’s responses and demeanor, the district court concluded that Juror 13 was not capable of rendering a verdict rooted in the evidence presented at trial but that, despite his best intentions, Juror 13 would instead arrive at a verdict based on his perceived divine revelation, uninformed by the actual evidence. For this reason, the district court dismissed Juror 13 from the jury.
We find no clear error in the district court’s factual findings. And for that reason, the district court certainly did not abuse its discretion in dismissing Juror 13 from the jury. To hold otherwise would undermine our system of justice by allowing jurors to return verdicts based not on the evidence or law, but instead on a juror’s perceived divine revelation, irrespective of the evidence. Though here, the juror’s perceived divine revelation might have worked in the criminal defendant’s favor had the district court not learned of it mid-deliberations, a contrary holding would allow criminal defendants to be convicted based on a divine revelation divorced from the evidence, rather than the evidence presented at trial—a troubling result, to say the least. And regardless of whether it works in favor of or against the defendant, a rule that would allow a juror to base his verdict on something other than the evidence would be antithetical to the rule of law and is contradicted by decades of precedent.
Brown also raises a challenge to the forfeiture order the district court entered. We find no error there, either. We therefore affirm Brown’s convictions.

Judge William Pryor dissents and says the conviction should be reversed:

Do each of you solemnly swear that you will well and truly try the case now before this court and render a true verdict, according to the law, evidence, and instructions of this court, so help you God?
Every juror who was empaneled in Corrine Brown’s criminal trial swore this oath. One of them was dismissed because he apparently meant it. By approving his dismissal, the majority erodes the “tough legal standard” governing the removal of deliberating jurors and imperils the sanctity of the right to trial by jury. United States v. Abbell, 271 F.3d 1286, 1302 (11th Cir. 2001) (requiring that juror misconduct be proven “beyond reasonable doubt” before dismissing a deliberating juror). And it does so in an especially troubling manner: after admitting that “one reasonable construction” of the record supports the view that this juror rendered proper service, it holds that the district court’s adverse reaction to the way this juror talked about God nevertheless proved “beyond a reasonable doubt” that the juror engaged in misconduct. Majority Op. at 29–31 (emphasis added).
Over an hour and a half on the third day of jury deliberations, the district court investigated a concern about a juror who, on the first day, reportedly twice used religious language to express his position. During that hour and a half, the suspect juror repeatedly affirmed that he was basing his decision on the evidence. He even explained that he considered it his religious duty to do so. The district court thought he meant what he was saying; in the district court’s words, the suspect juror was “very earnest” and “very sincere.” The other juror who had raised the concern agreed that the suspect juror was deliberating, and she implied that he had not said anything worrisome during the second day of deliberations. Indeed, she never even accused him of misconduct.
But none of these encouraging signs mattered once the suspect juror confirmed that, near the start of deliberations, he had said something to the effect of “the Holy Spirit told me that Corrine Brown was not guilty on all charges.” With next to no context—and no other evidence of misconduct—the district court deemed this statement “an expression that’s a bridge too far, consistent with jury service as we know it,” and conclusive proof that the juror was “using external forces to bring to bear on his decision-making in a way . . . inconsistent with his jury service and his oath.”
To be sure, the risk of juror misconduct in deliberations is one of the most sensitive problems that can arise in a criminal trial, and the district court took its responsibilities seriously. Alas, to err is human, to forgive divine, but forgiveness is not a comfort afforded to a court of appeals. And the district court’s error in this appeal is clear. If this devout juror’s religious language alone proved his misconduct “beyond reasonable doubt,” Abbell, 271 F.3d at 1302, then the phrase “reasonable doubt” has changed its meaning.
The majority opinion suffers from several flaws. Foremost, it fails to adhere to our precedents governing the dismissal of a juror. Our precedents impose a “tough” standard of proof—indeed, the highest standard of proof known to law, “beyond a reasonable doubt”—before a district court can purge a deliberating juror. After paying lip service to this standard, the majority ordains district courts with broad discretion to dismiss any juror who confesses receiving guidance from God. But the majority fails to view that discretion through the lens of the tough standard imposed by our precedents, and so it fails to appreciate why the limited record below does not satisfy our standard. The majority then compounds these errors by misconstruing the import of the juror’s religious statements—which were spoken in the vernacular of a substantial segment of our citizenry—and by failing to understand why these statements were not conclusively disqualifying. The upshot of these errors is that the majority’s decision makes it far more difficult for the citizens of our Circuit to be judged by juries that represent a cross-section of their communities. Indeed, it even provides discriminating lawyers with a tool to target and eliminate certain demographics from jury service. For example, African American and evangelical Christians are more likely than others to believe that God speaks to them, and the majority’s decision now requires that these eligible jurors be stricken for cause if a discriminating lawyer elicits during voir dire that God communicates with them. For these reasons, I must dissent.

For what it's worth, I think both opinions get it wrong. I think an acquittal can be based on anything, including one's conscience. Convictions, on the other hand, cannot be based on anything except the evidence beyond a reasonable doubt. So if God tells a juror to acquit, fine. It would be disqualifying, however, for a juror to convict based on some intuition and not the evidence. Jury nullification is permissible to acquit, but not to convict.

Wednesday, January 08, 2020

Spy vs. Spy

There seems to be quite a bit of spying going on in South Florida.

There are the Mar-a-Lago spies.
Palm Beach police say they are conducting an “open and active criminal investigation” at the club, also President Donald Trump’s South Florida home, following an unspecified incident.

The Secret Service is leading the investigation and no arrest has been made, according to the Palm Beach Police Department.
***
While law enforcement officials would not discuss the nature of the investigation, Mar-a-Lago security has been breached repeatedly since Trump became president. The private club and mansion has witnessed several high-profile trespassing incidents.
And there are the Key West spies:
Since the fall of 2018, a total of four Chinese nationals have been arrested on charges of shooting pictures of military facilities in Key West, drawing the sharp interest of U.S. counterintelligence investigators who have been probing suspected Beijing-led spying activities in South Florida, including visitors to President Donald Trump’s private club, Mar-a-Lago, in Palm Beach.

On Saturday, Yuhao Wang and Jielun Zhang, both 24, were arrested after they approached the guard station at Sigsbee Annex in the Naval Air Station, were told to turn around and instead drove onto the restricted property at 8:30 a.m. After a half hour, U.S. Navy Security Forces located the students in their blue Hyundai car and found they were carrying cellphones and a Nikon camera.

“U.S. Navy Security Forces obtained consent to look at the devices and observed photographs taken on the Sigsbee Annex property, including U.S. military structures on Fleming Key,” according to an FBI complaint affidavit.

After they were stopped, both acknowledged they were told by a guard at the Sigsbee Annex gate to make a U-turn and leave the area. Instead, Wang admitted that they drove onto the U.S. Naval property and parked their car. Wang voluntarily showed the agents photos that he took with his cellphone, the affidavit says.

Zhang gave a similar statement, indicating that he provided his Michigan driver’s license to the guard. He also voluntarily showed the agents photos that he took with his camera and videos with his cellphone, according to the affidavit.

Monday, January 06, 2020

Raag Singhal sworn in.

Some pictures from the really nice ceremony in Ft. Lauderdale.

The official investiture has not yet been set. But in the meantime, Judge Singhal will be hearing cases.  Congrats!

Sunday, January 05, 2020

Will Trump pardon Latin music mogul Rich Mendez?

That's the question posed by David Ovalle in this article. If anyone can get it done, it's Mendez's lawyer Phil Reizenstein:

Federal prosecutors said that between early 2009 and late 2010, Mendez’s co-defendants made “unsolicited calls to owners of resort time-share properties,” convincing them to pay fees for the “bogus sales of their property.” The owners, thinking the sales were legit, would shell out thousands in alleged “closing costs.”

Mendez says he fired his sales staff when he discovered they were using “scripts” to lure people into paying money. He reopened, but when the shady conduct continued, Mendez closed shop.

“He shut down his business before the police were ever involved,” Reizenstein said.

His legal team says local state and federal prosecutors both passed on taking the case. But in 2015, a grand jury in Dallas indicted the case because one of the credit-card processing companies was based in Texas. At least eight people wound up indicted on allegations they stole millions.

Mendez pleaded guilty to one count of conspiracy to commit wire fraud and cooperated with investigators, paying over $300,000 in restitution. Still, Dallas Assistant U.S. Attorney Candida Heath insisted on up to 9 years in prison, and possibly even more.

“You can’t buy your way out of a sentence of incarceration based on the amount of restitution you pay,” Heath said at his July 8, 2019, sentencing hearing.

His other defense lawyer, former Dallas U.S. Attorney James Jacks, shot back: “I don’t really understand the aggressiveness — maybe is the word — of the government’s efforts to put him in prison for what I think would be an incredibly long period of time.”

U.S. Judge Sam Lindsay praised Mendez’s work employing people through his rising music business, but still imposed the five years because he wanted to avoid “unwarranted sentencing disparities” between him and the co-defendants who got similar sentences.

A U.S. Attorney’s spokeswoman, Erin Dooley, noted that Mendez pleaded guilty because he was faced with “overwhelming evidence” In a statement Friday, she added: “Sentencing was at the discretion of a U.S. District Judge. “

Mendez has been free on bond since July.

His defense attorneys won’t say what, if any, behind-the-scenes efforts have been made to grab the White House’s attention about Mendez’s case.

Trump, who has long raged against criminal investigations into his own conduct, hasn’t shied away from granting clemency.

Famously, Trump pardoned former Arizona sheriff Joe Arpaio, who earned a criminal contempt charge while leading a high-profile and divisive crackdown on undocumented immigrants. In November, critics blasted Trump for issuing clemency to three military men convicted of war crimes.

Less controversially, Trump last year pardoned Ronen Nahmani, an Israeli-born ultra-Orthodox Jewish man who was convicted in South Florida in 2015 of selling synthetic marijuana. A federal judge had sentenced him to 20 years, and Nahmani got out after serving four years.

At the urging of celebrity Kim Kardashian West, the president also pardoned Alice Marie Johnson, a 63-year-old grandmother who’d been locked up for life for cocaine trafficking.

Mendez’s plight has also been taken up by Bernie Kerik, the New York police commissioner who served more than three years in prison for federal tax fraud, and now serves as conservative commentator and advocate for justice reform.

“His case is a demonstration of why we need real criminal justice reform within the Department of Justice today,” Kerik said. “We take a guy like Rich Mendez out of the work force, destroy his life, destroy his family. It’s complete insanity.”

Ironically, Rich Music blossomed during the years the legal case was hanging over his head.

***

Sitting back in the studio, Mendez is unruffled by what’s to come. When he gets out, Mendez wants to work in the area of criminal-justice reform.

For now, he’ll report Tuesday to Miami’s Federal Correctional Institution, a low-security facility. He’s already been briefed on how to survive in prison, and make the most of rehabilitation programs.

“I want to get this part over with already,” he said.

Thursday, January 02, 2020

Chief Justice Roberts' New Year's Card

It's here.

Okay, fine... it's his year end report. And it's a doozy with lots of people saying that it's a pointed message to the executive and legislative branches. It's short, so click through and read the whole thing. Here's the conclusion:
I ask my judicial colleagues to continue their efforts to promote public confidence in the judiciary, both through their rulings and through civic outreach. We should celebrate our strong and independent judiciary, a key source of national unity and stability. But we should also remember that justice is not inevi-table. We should reflect on our duty to judge without fear or favor, deciding each matter with humility, integrity, and dispatch. As the New Year begins, and we turn to the tasks be-fore us, we should each resolve to do our best to maintain the public’s trust that we are faith-fully discharging our solemn obligation to equal justice under law.