A Place at the Table

By Michael Caruso

Earlier this week, David posted an article that lamented Judge Charles Bryer's status as the sole member of the United States Commission (USSC). But that description is not entirely accurate. Judge Breyer is the sole voting member of the USSC. There are currently two “ex officio” members of the USSC. Both ex officio members are employees of the Department of Justice—a designee of the Attorney General of the United States and the Chairperson of the United States Parole Commission. 

Since the creation of the USSC in 1984, and despite persistent efforts, there never has been an ex officio representative from the Federal Defender community.  Unlike the USSC, the majority of state sentencing commissions have a public defender representative to provide them with advice and input at crucial stages of the decision-making process. Because we represent over 65% of those charged in federal criminal cases, a public defender representative would improve transparency and accountability in sentencing policy and provide the Commission with an internal defense perspective and balance.

Today, Senators Booker and Durbin introduced legislation to repair this long-standing structural issue. The self-described mission of the USSC is “to reduce sentencing disparities and promote transparency and proportionality in sentencing.” These are laudable goals, and this reform undoubtedly will further that mission. Congress hopefully will act expeditiously. 

Can prosecutors get an automatic 6 month extension under the statute of limitations for any reason they want?

 That's the issue in United States v. B.G.G., which I will be arguing in the 11th Circuit in January.  I will be defending Judge Middlebrooks' order, which Jay Weaver covers in this lengthy Herald article.  The Herald is covering the issue again because since B.G.G. was decided, Judges Ruiz and Altman have issued orders coming out the other way.  From the Herald:

When the coronavirus pandemic gripped the nation, the federal court system also largely ground to a halt. Not only did trials get postponed but grand juries could no longer meet to consider indicting criminal defendants. In South Florida, as idle criminal cases ranging from healthcare to financial fraud piled up, prosecutors did what some critics called an end-run around the grand jury process — normally a critical step before charging defendants. They filed a document known as an “information” to avoid missing the five-year deadline to bring charges under the statute of limitations — but without obtaining the constitutionally required consent of defendants to give up their right to be charged by a grand jury indictment. This story is a subscriber exclusive Now, a federal appeals court is going to hear oral arguments in January that will spotlight conflicting decisions on this crucial matter by U.S. district court judges in South Florida: Two found that prosecutors in the U.S. Attorney’s Office acted lawfully, but one concluded they did not when they filed an information as a place keeper to stay within the statute of limitations without the approval of the defendant. Much is riding on the outcome in the 11th U.S. Circuit Court of Appeals — which covers the states of Florida, Georgia and Alabama — because a ruling could decide whether about 10 defendants will still face charges for crimes that both sides acknowledge happened more than five years ago. “Three judges in our district have written thoughtful opinions addressing an issue brought about by the pandemic and caused by the absence of grand juries,” prominent Miami white-collar defense attorney Jon Sale told the Miami Herald. “These decisions are a law professor’s delight,” said Sale, a former federal prosecutor in the Southern Districts of New York and Florida. “They look to the meaning of words going all the way back to the times of our Founding Fathers. It is up to the Eleventh Circuit to resolve the relationship between the plain meaning of a statute and the Fifth Amendment’s guarantee of the right to be charged by a grand jury within the statute of limitations.” 

Back at it

Hope everyone had a nice Thanksgiving break.

I am thankful for judges who work with lawyers on scheduling and grant continuances.

I can't imagine Judge Breyer is thankful about the status of the Sentencing Commission.  From Reuters:

Two Democratic and Republican lawmakers in a letter on Monday urged President Joe Biden to prioritize filling vacancies that have left the U.S. Sentencing Commission without a quorum, saying the situation has stalled criminal justice reform.

U.S. Representatives Kelly Armstrong, Republican of North Dakota, and Jamie Raskin, Democrat of Maryland, said the vacancies have "forestalled the important work of updating and establishing new sentencing guidelines."

A White House spokesperson had no immediate comment.

The commission lost its quorum in January 2019, a month after former Republican President Donald Trump signed into law the First Step Act, bipartisan legislation aimed at easing harsh sentencing for non-violent offenders and at reducing recidivism.

Armstrong and Raskin said the lack of quorum also meant the commission cannot update the advisory sentencing guidelines needed to help implement the law, resulting potentially in its uneven application by judges across the country. "It is imperative that the vacancies are expeditiously filled so the Commission can continue its work to improve the federal criminal justice system," the lawmakers wrote.

The seven-person panel's lone remaining member, Senior U.S. District Judge Charles Breyer, told Reuters this month he would be "surprised and dismayed" if Biden did not pick nominees by early 2022 and urged him to help restore its quorum. Breyer's own term expired on Oct. 31 but he can remain on the commission for up to a year more unless a replacement is confirmed. Armstrong and Raskin cited his potential departure as another reason to act.

Elizabeth Holmes takes the stand

 Unfortunately we can't watch it (as we did with the Rittenhouse trial).  How absurd.

So, we need to rely on short news stories about the drama in court, which of course, are always skewed toward the government.  Here's NBC News:

Theranos founder and former CEO Elizabeth Holmes returned to the witness stand Tuesday, confirming key aspects of the prosecutor’s allegations behind the 11 counts of fraud she faces, but asserting that there was nothing wrong in what she did.

The prosecution has repeatedly shown jurors lab reports emblazoned with logos of the pharmaceutical companies Pfizer and Schering-Plough. Witnesses from those companies who worked with Theranos testified that the use of the logos was unauthorized and they were unaware of it at the time.

Holmes admitted that she was the one who had added the logos to Theranos lab reports and sent them to Walgreens as she pursued a deal to put her blood-testing startup's diagnostic machines in the pharmacy's retail stores.

Holmes acknowledged that in some cases, Theranos used third-party devices, rather than its own equipment.

“This work was done in partnership with those companies and I was trying to convey that,” she said by way of explanation. "I wish I had done it differently,” she added.

Addressing another key point made by the prosecution, Holmes said that when Theranos switched from using on-site analyzers to process samples to a centralized lab approach, it used third-party devices rather than its own equipment as an “invention” because there were too many samples to handle. Witnesses have testified that Theranos' signature blood-testing machine repeatedly failed quality assurance tests and delivered erroneous results. Holmes said the company didn’t tell its business partners about this arrangement because it was a trade secret.

She rebutted the prosecution's arguments about some of the alleged misrepresentations she made to investors, the media and business partners, affirming that she had received specific positive reports from employees and outside experts and believed their statements to be true.

And we can't even see images of the courtroom... we get sketches instead.  

Anyway, I hope all of you have a Happy Thanksgiving... even you Rumpole.

Biden pardons two turkeys...

 ...but we are still waiting on the first human pardon.

Not a good look for a President who said he would be open to criminal justice reform.  

The New York Post covers Biden's response to the question of when to expect some real pardons:

As if there was any doubt — “Peanut Butter” and “Jelly” will not be on the Thanksgiving dinner table this year.

President Biden pardoned turkeys named after the common kids lunch ingredients Friday, continuing a pre-Thanksgiving tradition in the Rose Garden after he laughed off a question about whether he would also pardon human beings — as clemency advocates asked him to honor his pledge to free “everyone” in prison for marijuana offenses.

“Will you be pardoning any people in addition to turkeys?” The Post asked Biden as he returned to the White House after receiving a physical and colonoscopy at Walter Reed Medical Center outside Washington.

Biden, wearing aviator sunglasses, pointed at a reporter and joked, “Are you — you need a pardon?” In response to a follow-up question about whether he would free pot inmates, whom he vowed to release during the 2020 Democratic presidential primary, Biden said, “just turkeys.”

This is why we really need judges to grant more compassionate release motions and issue large variances.  There's no reason why America should lead the world in people imprisoned and lead the world in length of sentences.   

One reason we see these numbers is the "trial tax."  Clark Neily from CATO just wrote an important piece about how rare trials are and how we need to get back to the basics in our criminal justice system -- the right to a trial without fear of an enormous sentence.  The intro:

The most remarkable thing about the Kyle Rittenhouse trial is that there was a trial at all.

The vast majority of criminal prosecutions in our system are not resolved by trial but instead by an ad hoc and often extraordinarily coercive process that we refer to euphemistically as “plea bargaining.” Because of the way it unfolded, however, the Rittenhouse case sheds important light on our decision to generally substitute plea bargaining for constitutionally prescribed jury trials, in open defiance of the Founders’ deliberate and very wise decision to make citizen participation integral to the administration of criminal justice. The lesson here is clear: We can be certain that other prosecutions would collapse as spectacularly as Rittenhouse’s if we reined in the government’s ability to spackle over weak cases with coerced pleas.

Former UM professor Bruce Bagley sentenced to 6 months

One of the country's most thoughtful sentencing judges, Jed Rakoff, had the case.  From the NY Times:

Prosecutors had argued for a sentence below guidelines of 46 to 57 months, but did not specify exactly how much lower. In court papers this month, prosecutors said that although Dr. Bagley’s age and health should be taken into consideration, some incarceration was necessary to serve as a deterrent.

In court on Tuesday, Judge Rakoff said that a sentence of up to five years, as recommended by federal guidelines, would be “irrational” and “overly punitive,” according to The A.P. But like prosecutors, the judge said some incarceration was needed. The judge recommended that Dr. Bagley’s sentence be served in a medical facility, according to a Justice Department spokesman.

According to prosecutors, Dr. Bagley opened a bank account in Florida under his company’s name, Bagley Consultants, in 2016. But there was hardly any activity in the account until a year later, when he started receiving large deposits from bank accounts in the United Arab Emirates and in Switzerland.

Those accounts ostensibly belonged to a food company and a wealth management firm but were actually controlled by a Colombian national whose money came from “the proceeds of foreign bribery and embezzlement stolen from the Venezuelan people,” according to an indictment.

Dr. Bagley knew the source of the money and entered into “multiple sham contracts” in order to conceal it, according to the indictment.

After each deposit, Dr. Bagley would go to his bank and get a cashier’s check for about 90 percent of the money, which he would then give to another individual, and wire the rest to his personal bank account, the indictment said.

In October 2018, the bank closed the company’s account because of suspicious activity, according to the indictment. But Dr. Bagley opened another account in his name that December and continued the scheme until April 2019, receiving at least 14 illegal deposits, prosecutors say.

Though Dr. Bagley lives in Florida and the laundered funds were sent to Florida banks, prosecutors said they were prosecuting the case in Manhattan because the money passed through New York City as it came from abroad.

 Law360 also covered the case, and included this awesome statement by Judge Rakoff:

Prosecutors asked for prison time below Bagley's non-binding federal guidelines range of 46–57 months, while the defense had asked for time served, citing the 75-year-old's age, pulmonary nodules, diabetes and hypertension in a heavily redacted sentencing submission.

The judge said prison was warranted to send a message of deterrence, but also acknowledged Bagley's health problems as he quipped that "some might describe" the Federal Bureau of Prisons' repeated assurances that it can handle any medical issue as "a repeated fraud on the court."

Say it ain't so

 The CARES Act is expiring on 11/25/21.  Unless it gets extended again, there will be no more video conferences for criminal proceedings.  That's bad news!  

Zoom hearings for various criminal proceedings has been really efficient and beneficial for criminal defendants and lawyers.  Here's hoping that we find a solution and that Zoom can continue for some of our proceedings.

In other news, Rumpole's blog turns 16 today.  That's an incredible run for a blog.  Head over there and wish him well.

"Why the Supreme Court needs an ethics code"

That's the title of this interesting piece by Nicholas Rostow. The introduction:

President Joe Biden’s Supreme Court reform commission has had a tumultuous past month. A draft report’s warnings about court-packing upset liberals, while two conservatives resigned for reasons that remain unclear.

Ultimately, these issues symbolize the American people’s warped views of the “highest court in the land.” Too many Americans expect justices on their “team” to legislate from the bench, rather than simply interpret the law as the Constitution requires.

The answer to this polarization is not court-packing or confirming more pro-life judges. Instead, Congress should pass an ethics code for the Supreme Court.

A code of conduct for the justices would be fair, practical, and effective. Such a nonpartisan reform would not change the fundamental structure of the court. But it would constrain the justices from conducting partisan or unethical activities that undermine public faith in the court and the law. A code of conduct could have held Chief Justice John Roberts accountable when he did not recuse himself from a 2016 case involving a company in which he owned stock. And ethical guidelines could have penalized Justice Ruth Bader Ginsburg after she told The New York Times in 2016, “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.”

The reality is that the American people are losing faith in the Supreme Court as a neutral arbiter. In October, the court’s approval rating sunk to 40 percent, the lowest since Gallup began tracking this statistic in 2000. Over half of Americans disapprove of the court’s job performance. But an ethics code could rebuild public faith in the judiciary at this critical time.

Our friend Fletcher Peacock

By Michael Caruso 

Our friend and colleague Fletcher Peacock has passed away. Sadly, we all have far too many reminders that life is fragile and fleeting. But this is a real gut punch. The lesson we should take and rarely do, but that Fletcher exemplified, is not to waste a moment and embrace life completely. And to Fletcher, that meant treasuring each other, whether family, friends, or colleagues.

I first met Fletcher while clerking and had the privilege to see him in action defending his clients that came before Judge Zloch. His commitment to his clients and his zealous advocacy stood out and cemented my desire to join the office.

When I first started at the FPD, I tried my first case as "lead counsel" with Fletcher by my side. Before trial, we had decided that Fletcher would direct our client. But, that morning, a critical defense witness who lived in Delray Beach--and who was going to testify after our client--had no way to get to court. Fletcher said he would get her, and I would put our client on the stand. Fletcher surely saw the look of terror that overcame me at this suggestion. But, he explained that this was best for our client and the case, and I was ready. Of course, he was half-right. I always will remember his willingness to do--without hesitation--what was best for the client and his confidence in me. 

For most of his time in Miami, Fletcher had the office next to our boss--now Judge Kathleen Williams. It was a testament to Fletcher's personality and friendship (and not the box of Goldfish he always had at the read) that his office routinely overflowed with colleagues for brainstorming or other less lawyerly exchanges. In most offices, the person who occupies the office next to the boss is quite lonely. Not Fletcher.

After Fletcher left to become the FPD in the Middle District, running into him at a conference or seminar was a highlight. He always was a welcome face, whether we would talk family, trade war stories, or celebrate/lament the Gators. Sitting next to Fletcher at these events was a prime spot because you not only obtained his insight as a seasoned lawyer and manager, but you also laughed yourself silly at his dry wit.

We were very, very fortunate to have Fletcher come back to our office. Although older, he was still the same committed and zealous advocate, but more importantly, the same friend. Rest in peace, Fletcher. 

News and notes

1. The Rittenhouse trial.  Lots of talk about the defendant taking the stand and the tongue lashing that the state is getting throughout the trial.  But how about the judge not understanding how zooming works on an ipad.  Oh boy: 

The man responsible for overseeing the Kyle Rittenhouse murder trial has some questions about how iPad's pinch-to-zoom feature works, and he’d really like an expert witness to explain it to him. On Wednesday, Judge Bruce Schroeder disallowed Kenosha County prosecutor Thomas Binger from showing evidence on an iPad that would require the use of the built-in zoom feature. The reason? Well, as Judge Schroeder tried and failed to articulate, maybe pinching and zooming, you know, does stuff to change the image?

"What [the defense is] saying, I think, and I know less than anyone in the room, I'm sure, about all of this stuff, but I'm hearing him to say that they are actually artificially inserting pixels into there, which is altering the object which is being portrayed," observed the judge.

This, as anyone who uses a modern smartphone knows, is not how pinch-to-zoom works. But, in the hopes of explaining it to the judge, we reached out to Apple for its thoughts on this technical dilemma.

We received no immediate response. Which is too bad, as Judge Schroeder really wanted someone to explain it to him.

"You're the proponent," he told the prosecutor, "and you need to assure me before I let the jury speculate on it that [pinch-to-zoom] is a reliable method that does not distort what is depicted."

The judge's dumbfounding technical obliviousness kicked off when Rittenhouse’s defense attorney, Mark Richards, also admitted he didn’t understand what he was talking about. You can watch the jaw-dropping exchange, starting around the the 5 hour, 2 minute and 26 second mark, in the below video uploaded by the Washington Post.

 

"iPads, which are made by Apple, have artificial intelligence in them that allow things to be viewed through three dimensions and logarithms," he told the judge. 

 

Again, this was in service of Richards' effort to prevent the use of pinch-to-zoom.

2. Blogs matter.  Congress is investigating a law clerk's "a history of nakedly racist and hateful conduct."  Jerry Nadler and Hank Johnson have sent the following letter to Chief Justice Roberts.  Footnote 1 of the letter cites to posts at Above the Law about the clerk.

3. Finally, defense lawyers are trying to keep Al Sharpton out of the Ahmaud Arbery trial gallery.  Another oh boy:  

An attorney representing one of three men on trial in the deadly shooting of Ahmaud Arbery made a bizarre request Thursday afternoon when he called for the judge in the case to ban Black pastors from the courtroom gallery.

“We don’t want any more Black pastors coming in here,” Kevin Gough, who represents William “Roddie” Bryan, told the judge before the jury returned from their lunch break.

The Brunswick attorney for the man who recorded the cellphone video of Arbery’s death has repeatedly taken issue with the ongoing demonstrations on courthouse grounds during the widely publicized, racially charged trial.

Gough was referring to an appearance by the Rev. Al Sharpton, who sat in on some of Wednesday’s court proceedings and held a lunchtime prayer vigil outside the courthouse. During his remarks on the courthouse steps, Sharpton criticized the racial composition of the nearly all-white jury overhearing the case, calling it “an insult to the intelligence of the American people.”

 

What can stop the death penalty at the Supreme Court?

 Not much as we have seen in recent years.  But now the ultra-conservative Court has a religious liberty challenge that has the Justices all twisted.  From SCOTUSblog:

The Supreme Court on Tuesday appeared divided over a Texas inmate’s plea to have his pastor touch him and pray out loud while he is being executed. The justices have wrestled with the question of spiritual advisers at executions for two and a half years, but Tuesday’s oral argument in Ramirez v. Collier was the first time that they heard argument on the right of inmates to receive religious comfort and guidance in their final moments. The justices weighed the inmates’ religious rights against the state’s concerns about security and its desire to have the execution proceed smoothly, as well as their own worries about the prospect of endless last-minute litigation by inmates facing execution.

Arguing on behalf of inmate John Ramirez, lawyer Seth Kretzer told the justices that, before changing its policy in 2019, Texas had carried out hundreds of executions in which spiritual advisers were allowed to touch the condemned inmate and pray out loud.

Chief Justice John Roberts pressed Kretzer on the limits of his rule. Is it enough, Roberts asked, that Ramirez’ pastor, Dana Moore, touch him anywhere on his body, or does he have to touch him somewhere specific? When Kretzer responded that anywhere on the inmate’s body would be fine, Roberts inquired whether his answer would be different if an inmate’s religion required the spiritual adviser to touch the inmate on the forehead, for example, or the heart? Kretzer indicated that it would be a closer case, but that both of those body parts were still not located near the place where an IV would be inserted.

Justice Brett Kavanaugh suggested that any form of touching could pose a problem because the lethal injection process is delicate and complex. Kavanaugh pushed back against Kretzer’s contention that Texas had repeatedly carried out executions with spiritual advisers touching inmates, telling him that such examples “don’t move me at all” because those chaplains had been state employees. Kavanaugh was more worried, he said, about “someone from the outside,” like Moore, “coming in.” Kavanaugh returned over and over again to the idea that the state was trying to reduce the risk of having something go wrong in the execution. Allowing a spiritual adviser to touch the inmate during the execution, Kavanaugh contended, will increase that risk.

Kavanaugh voiced a related concern when Kretzer told Roberts that courts should analyze a state’s failure to provide the religious accommodations that an inmate requests on a case-by-case basis. A ruling in favor of Ramirez, Kavanaugh complained, would mean that similar claims would be “a heavy part of our docket for years to come.”

Justice Samuel Alito echoed Kavanaugh’s alarm at the prospect of “an unending stream of” litigation, coming to the Supreme Court at the last minute to delay executions.

Justice Clarence Thomas suggested that Ramirez might have been “gaming the system” because he had “changed his request a number of times.” If that is the case, Thomas asked Kretzer, how should courts determine whether his religious beliefs are sincere?

Kretzer pushed back against the premise of Thomas’ question, telling the justices that Ramirez has “always asked as quickly as possible” for relief and that his religious beliefs are both sincere and “consistently stated.”

Justice Amy Coney Barrett, who in February 2021 provided a key vote to block the execution of an Alabama inmate who wanted to have his spiritual adviser in the execution chamber with him, was more sympathetic to Ramirez. Responding to Kavanaugh’s characterization of the state’s interest in barring touch and prayer by spiritual advisers as one that reduces the risk of something going wrong, she pushed Kretzer to disagree – and in so doing, appeared to signal her own disagreement. The real compelling interest, she suggested, is prison security or “carrying out the execution in a humane and safe way.”

Cert grant in another outlier 11th Circuit case

 The 11th Circuit is way out there on criminal cases -- it is, by far, the most conservative court in the country.  It's no surprise that the Supreme Court has granted cert again to fix what the 11th has done in this doctor case, Ruan v. United States.

In that case, the doctor wanted to raise a good faith defense to his pain medication prescriptions.  The district court refused to give him a subjective (or even an objective) good faith instruction.  The court of appeals said that if the doctor was acting outside of appropriate medical care, that was all the government needed to prove, regardless of whether he was acting in good faith or not.  Every other circuit disagrees with this approach and requires a good faith instruction (some circuits say subjective good faith and some say reasonable good faith).  The Supreme Court granted cert on this question:

Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

I give our 11th Circuit judges the benefit of the doubt (I'm sure they are acting in good faith!) but it's disheartening that they rule against defendants more than any other court out there.  The Supreme Court will certainly reverse this case... in the meantime, how many well-intentioned doctors have gone to prison because of outlier appellate court? 

Linda Lopez has her Senate Judiciary hearing

Linda Lopez took the next step in becoming a district judge today with her judiciary hearing.  Hopefully she will get her floor vote by the end of the year.  We are all rooting for her!

Another person with Miami roots was nominated today: 

Judge Cristina D. Silva: Nominee for the United States District Court for the District of Nevada
Judge Cristina D. Silva has served as a judge on the Eighth Judicial District Court, Department IX, in Las Vegas, Nevada since 2019. From 2011 to 2019, Judge Silva served as an Assistant United States Attorney in the United States Attorney’s Office for the District of Nevada. Judge Silva held numerous leadership positions in the office, including Chief of the Criminal Division from 2018 to 2019 and Deputy Chief of the Criminal Division from 2013 to 2018. From 2007 until 2010, she worked as an Assistant State Attorney in the Miami-Dade State Attorney’s Office, serving as Assistant Chief of Litigation for the Domestic Violence Unit in 2010. Judge Silva received her J.D. from American University Washington College of Law in 2007 and her B.A. from Wellesley College in 2001.

And finally, Magistrate Judges in Miami are dumping Zoom for duty calendars (not other hearings). Starting on Monday, all future duty hearings will be in person. This is too bad as I thought that the quick status hearings were great by Zoom.

"Justice Department wrong to encourage prosecutions it's fearful of losing"

That's the title of my latest piece in The Hill.  Below is the introduction.  Would love your feedback.

The American Bar Association held a big shindig down in Miami last week, with hundreds of white-collar criminal defense lawyers gathering to get up to speed on developments in the law. Because of COVID, it’s been a while since everyone was able to get together in person. The event is known for panels that include top government officials explaining the future of white-collar prosecutions and what is to be expected in the coming years. This conference was no different — in fact, Deputy Attorney General Lisa Monaco gave the keynote address on corporate crime.

Her speech included a comment that jumped out to me and should be a serious cause of concern for white-collar criminal defense lawyers. While recognizing that “cases against corporate executives are among some of the most difficult that the department brings, and that means the government may lose some of those cases,” she explained that “the fear of losing should not deter [prosecutors].”

But the fear of losing is exactly what should deter prosecutors from bringing the weight of the criminal justice system against an individual.

The mere filing of a criminal case against a corporate executive will likely lead to that person’s firing, financial ruin, inability to work, reputational harm, emotional scarring, and the like — even if the individual is eventually exonerated. Filing a criminal case should be no small matter.