The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Get ready for the new documentary from Billy Corben and Alfred Spellman: Cocaine Cowboys: The Kings of Miami. It's the only-in-Miami story of Willy & Sal, coming out next week on Netflix.
Dave Ovalle and Rumpole have been covering the state court jury trial problems with COVID. It's not good over there right now. Here is Ovalle's article:
For Miami, the civil trial was relatively routine: an insurance dispute over building damage caused by Hurricane Irma. It was also one of the first lengthy jury trials to be held in person as Miami-Dade courts began opening up after a long pandemic closure.
The trial ended in early July. But then, several lawyers and the judges who had taken part in the two-and-a-half week trial tested positive for COVID-19.
One of the attorneys, Brittany Quintana MartÃ, who is pregnant, fell ill enough that she spent five days in the hospital. “She had shortness of breath and fatigue. Really horrible fatigue. Her oxygen levels dropped,” said her husband, fellow Miami lawyer Jose MartÃ.
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Last week alone, the Miami-Dade State Attorney’s Office disclosed, seven employees were diagnosed with COVID-19. On Monday, the office announced three more employees had tested positive; that’s 17 total since courts reopened fully to the public on June 28.
Since that date, at least 19 Miami-Dade jail inmates have tested positive, according to county statistics; it’s unknown how many of those have physically been to court, although at least two were confirmed in the Richard E. Gerstein Justice Building during the first week back.
That includes one Miami jail inmate who tested positive on the third day of trial for a case involving a drunk-driving car crash. The trial was delayed three weeks, and is expected to resume in the coming days.
Federal jury trials in this district have restarted without any horror stories just yet. But it seems like it is only a matter of time before there is an outbreak in court.CNN has this piece, which tries to peg how "Trump's appointees are turning the Supreme Court to the right with different tactics." The beginning of the article seemed really silly to me:
The three appointees of former President Donald Trump have together sealed the Supreme Court's conservatism for a generation, but they have revealed strikingly different methods. They diverge in their regard for practical consequences, their desire to lay down markers for future disputes and their show of internal rivalries.
Neil Gorsuch takes no prisoners. Brett Kavanaugh tries to appear conciliatory, even as he provokes internal conflict. And Amy Coney Barrett is holding her fire, for the moment.
Whether their differences intensify or fade will determine the Trump effect on the high court and how fast the law moves rightward regarding abortion rights, gun control, religion and LGBTQ clashes.
What does that even mean?
Here's the conclusion:
Overall, the three Trump appointees voted together with fellow conservatives (Roberts, Clarence Thomas and Samuel Alito) in the most consequential cases of the 2020-21 session.
They curtailed the reach of the Voting Rights Act, threatened the ability of states to impose disclosure requirements on political donors and strengthened property rights in the face of government regulation. That last dispute, from California, arose from union organizers' efforts to temporarily enter agricultural property to talk to migrant farmworkers.
But as the three went their individual ways, Gorsuch agreed more with far-right conservatives Thomas and Alito, while Kavanagh and Barrett aligned more with Roberts at the center-right of this nine-member bench.
Overall in the recently completed session, Gorsuch agreed most with Thomas, 73% in full and 87% in part, according to SCOTUSblog annual statistics. Meanwhile, Kavanaugh and Barrett had one of the highest rates of agreement in cases: 75% in full and 91% in part.
Trump has touted his influence on the federal judiciary as one of his greatest achievements in office. That impact will swell as his appointees across the judiciary -- especially on the high court -- gain seniority and further shape the law with their opinions.
Well, that bolded part is interesting.
For Judge, they recommend David Leibowitz and Detra Shaw-Wilder
For US Attorney, Jackie Arango, Markenzie Lapointe, and Andres Rivero
For Marshal, Gadyaces Serralta
... is a NOT GUILTY.
It was a carjacking and firearm case before Judge Middlebrooks. Vic Rocha for the defense.
It will be interesting to hear the details about jury selection, masks, and so on about the case.
More to follow.
He will be opening this morning. I like the move as a matter of strategy.
Meghann Cuniff has some great coverage on Twitter about how it went down yesterday and in this Law.com article:
Michael Avenatti will represent himself in his California client theft trial, wrestling the spot from his taxpayer-funded lawyer minutes before a jury was empaneled Tuesday in an Orange County federal courtroom. In an extraordinary move in a high-stakes white-collar criminal case, Avenatti stood as U.S. District Judge James V. Selna’s clerk was about to swear in 12 jurors and said he had a “Faretta issue,” referring to the 1975 U.S. Supreme Court case Faretta v. California, which established defendant’s right to self represent. “No, no. Sit down. Sit down. Sit down, Michael,” his attorney, solo practitioner H. Dean Steward, told him. It didn’t work. With jurors gone for lunch, Avenatti conferenced with Steward for a few minutes then told Selna he wanted to “participate in my defense.” Avenatti told the judge jurors don’t seem to differentiate between civil and criminal defense attorneys, and he was “critically concerned that if I do not play a role in my defense that that will be held against me.” Avenatti told Selna he’s “still a member of the [California State] Bar. I’m under temporary suspension, just to be clear.” Selna warned him: “You can’t appear in this court in a capacity as an attorney with that suspension.”
Avenatti is very forceful and clear in his questioning. Not easy to describe, but that's what I keep going to. He's looking at the juror while standing at the podium, nodding and listening. Guy is talking about his panic attacks.
— Meghann Cuniff (@meghanncuniff) July 20, 2021
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I mean, is the Court really going to deny CLE credit for organizations (including the Florida Bar and ABA!) who require diverse CLE panels? Apparently so. From Law.com:
Attorneys, professional organizations and legal experts are lashing out at the Florida Supreme Court for a rule that is shaking up lawyers’ ability to receive credit for continuing-education courses required to keep practicing.
The controversial rule, issued by the court in April, prohibits The Florida Bar from approving continuing-education courses offered by any sponsor “that uses quotas based on race, ethnicity, gender, religion, national origin, disability or sexual orientation in the selection of faculty or participants.”
The court’s decision came in response to a move by The Florida Bar’s Business Law Section, which had adopted a policy regulating composition of faculty at section-sponsored continuing legal education programs.
The Bar section’s policy “imposes quotas” requiring a minimum number of “diverse” faculty, defining diversity in terms of membership in “groups based upon race, ethnicity, gender, sexual orientation, gender identity, disability, and multiculturalism,” the court’s April 15 order said.
The section’s diversity requirement was similar to one endorsed by the American Bar Association in 2016, which means the Supreme Court’s order has also jeopardized Florida lawyers’ participation in ABA continuing-education courses.
The ABA struck back with this brief, authored by appellate gurus Elliot H. Scherker and Brigid F. Cech Samole. It also issued this press release.
There has been lots of criticism of the Court's opinion, including articles like this one from Above the Law, which concludes like this: "Please tell me what century the Florida Supreme Court is in, because it sure doesn’t look like mine or does it?"
Joe Exotic's conviction was affirmed. But he got a new sentencing based on a grouping violation under the Sentencing Guidelines.
The opinion is here.
A federal appeals court ruled Wednesday that “Tiger King” Joe Exotic should get a shorter prison sentence for his role in a murder-for-hire plot and violating federal wildlife laws.
Joe Exotic, whose real name is Joseph Maldonado-Passage, was sentenced in January 2020 to 22 years in federal prison after being convicted of trying to hire two different men to kill animal rights activist Carole Baskin. A three-judge panel for the U.S. Court of Appeals for the 10th Circuit in Denver found that the trial court wrongly treated those two convictions separately in calculating his prison term under sentencing guidelines.
The blond mullet-wearing zookeeper, known for his expletive-laden rants on YouTube and a failed 2018 Oklahoma gubernatorial campaign, was prominently featured in the popular Netflix documentary “Tiger King: Murder, Mayhem and Madness.”
The panel agreed with Maldonado-Passage that the court should have treated them as one conviction at sentencing because they both involved the same goal of killing Baskin, who runs a rescue sanctuary for big cats in Florida. According to the ruling, the court should have calculated his advisory sentencing range to be between 17 1/2 years and just under 22 years in prison, rather than between just under 22 years and 27 years in prison. The court ordered the trial court to re-sentence Maldonado-Passage.
You can access it on Apple, Spotify, or any other platform from our website here.
Judge Rosenbaum currently serves on the court of appeals, but she also has been a district judge, a magistrate judge, a federal prosecutor, and a law clerk. So she has a really interesting perspective on the criminal justice system and the courts in general. I think you'll really enjoy hearing from her.
Next week, we will conclude the mini-season with Chief Judge William Pryor, the Chief of the 11th Circuit, who resides in Alabama. A great and fascinating guest!
Congrats to Judge Altonaga -- our first woman Chief -- on the new position. And a big thank you to Judge Moore for leading the Court over the past 7 years and through the pandemic.
Not only is Judge Altonaga the first woman Chief Judge of the Southern District of Florida, I believe this is the first time in this District that a Chief Judge was a law clerk to the former Chief Judge (in this case, Edward B. Davis). Judge Altonaga is Judge Davis' second favorite law clerk.
I asked Judge Altonaga what her goals were as the new Chief and she said: "My initial goal is to learn to juggle all the new administrative responsibilities with those attendant to being a district court judge. The next goal is to steer the Court to a safe resumption of jury trials and in-person proceedings. Beyond that, I simply hope to be a careful listener and wise administrator, in keeping with the Court's fine tradition and reputation."
In one of her first Administrate Orders, Altonaga extended the speedy clock till Labor Day in this order. Interestingly, the order references 703 cases currently awaiting trial.
Congrats again and good luck! It can't be easy to try and navigate a bunch of federal judges....
His guidelines were 9 years at the low end.
This is a good example for judges around the country about how the guidelines make no sense. Many judges would have given him the high end of the guidelines after a trial for a lawyer who, the judge found, abused the trust of his client.
But the guidelines made no sense. Even for someone who went to trial. Even for a lawyer. Even for someone who had other cases pending. Even for someone who had a number of the piling-on enhancements (like sophisticated means, abuse of trust, and so on).
The fraud guidelines make absolutely no sense, and the judge in N.Y. (and it wasn't even Judge Rakoff) said so. Good.
Miami's very own Scott Srebnick handled the sentencing.
Here's an article about it:
Michael Avenatti was sentenced to two and a half years in prison Thursday after being found guilty of an extortion scheme against Nike, just one of the criminal cases against Stormy Daniels's former lawyer and the onetime left-wing media darling.
The Justice Department’s indictment against Avenatti charged him with extortion and wire fraud, saying he tried to extort at least $22.5 million from the sporting apparel company. His three-week trial began in late January 2020, and he was found guilty the next month.
Judge Paul Gardephe of the Southern District of New York, the presiding judge during Avenatti’s 2020 trial, sentenced him to an aggregate sentence of 30 months. The judge said in the New York City courtroom on Thursday, “Mr. Avenatti’s conduct was outrageous. He hijacked his client’s claims, and he used those claims to further his own agenda — which was to extort millions of dollars from Nike to enrich himself.” The George W. Bush appointee added: “Mr. Avenatti had become drunk on the power of his platform, or what he perceived the power of his platform to be. He had become someone who operated as if the laws and rules that apply to everyone else didn’t apply to him.”
UPDATE -- three factors that helped sway the judge to give a below-guidelines sentence were (1) Avenatti's remorse, (2) the failure to charge co-conspirator Mark Geragos (which caused a disparity), and (3) the conditions of his pretrial confinement (during COVID at MCC). From NBC:
Gardephe said that in the Nike scheme, “Mr. Avenatti’s conduct was outrageous.” "He hijacked his client’s claims, and he used him to further his own agenda, which was to extort Nike millions of dollars for himself,” said the judge, who also sentenced Avenatti to three years of supervised release for the case, in which Avenatti was convicted at trial last year. “He outright betrayed his client,” Gardephe said....
But Gardephe added that Avenatti deserved a lighter sentence than the range recommended by federal guidelines — from nine years to 11-years and three months — because, the judge said that for the first time in the case, “Mr. Avenatti has expressed what I believe to be severe remorse today.”
The judge also cited the brutal conditions in which Avenatti was kept for several months in a Manhattan federal prison after his 2019 arrest. And Gardephe sharply noted, in justifying the lower-than-recommended sentence, how federal prosecutors did not criminally charge Geragos in spite of what they have said was his active participation with Avenatti in the shakedown.
The judge ordered Avenatti, who remains free on bond, to surrender on Sept. 15 to begin his sentence, which Gardephe recommended be served in at the federal prison camp in Sheridan, Oregon.
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