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
It's hard to keep up with all of the Trump goings-on.
Cannon rules for Trump.
Cannon gets reversed by CA11.
Cannon appoints Special Master per Trump's request.
Special Master rules against Trump.
Cannon overrules Special Master.
Read the latest order here, where Judge Cannon says that the Special Master was wrong to force Trump to verify certain items and also tells the Special Master that he's moving too fast.
...and it's the long conference in the Supreme Court.
Today at SCOTUS: The justices meet privately for their annual "long conference" to review cert petitions that have rolled in over the summer. They'll also likely discuss the status of the Dobbs leak investigation and whether to continue live audio of oral arguments this term.
— SCOTUSblog (@SCOTUSblog) September 28, 2022
The Dolphins are 3-0 and play tomorrow night.
What else is cooking?
Stay safe out there.
11:45am update- All courthouse locations in the district will be closed tomorrow (Wednesday). Miami and Fort Pierce will also be closed on Thursday.
Tough loss for the Canes on Saturday but it may not hurt recruiting that much if the Name, Image, and Likeness money keeps flowing. Last Thursday Judge Singhal, who played baseball at Rice, moderated a panel at UM law school exploring the legal dynamics of this NIL era. In short: it's complicated. Some states have NIL laws, others don't, and at least one state (Alabama) passed a law and then repealed it. Meanwhile, SCOTUS--with Justice Kavanaugh leading the charge--seems ready to endorse a pay-for-play model. It's the wild west right now (a QB recruit is allegedly getting 8 million to play for Tennessee). Will be interesting to see how this shakes out over the next few years.
The "Jefes" were out in force yesterday at the SDFL's Hispanic Heritage event. Judge Ruiz led a panel discussion with Chief Judge Altonaga, Chief Magistrate Judge Torres, Florida Supreme Court Chief Justice Carlos Muniz, and Chief Judge Ivan Fernandez of the Third District Court of Appeal. There was also a cool intro video where other Hispanic chief judges from other districts talked about their heritage and offered advice.
At the reception, the district put up poster boards of all the district's Hispanic judges. Was impressive to see how many we have (and have had). Didn't know Judge Nesbitt had a Hispanic background. Going to be hard to top this one. Maybe Justice Sotomayor, who has some Miami connections, next year?
Here's the per curiam opinion, which reverses Judge Cannon and grants the requested stay.
The panel was Rosembaum, Grant, Brasher.
It starts this way:
Following the execution of a search warrant at the residence of Plaintiff-Appellee, former President Donald J.Trump, Plaintiff moved for the appointment of a special master to review the documents that Defendant-Appellant United States of America seized. The district court granted that motion in substantial part. Now, the United States moves for a partial stay of the district court's order as it relates to the roughly one-hundred documents bearing classification markings. We decide only the narrow question presented: whether the United States has established that it is entitled to a stay of the district court's order, to the extent that it(l)requires the government to submit for the special master's review the documents with classification markings and (2) enjoins the United States from using that subset of documents in a criminal investigation. We conclude that it has.
We stress the limited nature of our review: this matter comes to us on a motion for a partial stay pending appeal. We can not (and do not) decide the merits of this case. We decide only the traditional equitable considerations, including whether the United States has shown a substantial likelihood of prevailing on the mer its, the harm each party might suffer from a stay, and where the public interest lies.
For the reasons we explain below, we grant the United States's motion for a partial stay pending appeal.
Our current U.S. Attorney, Tony Gonzalez, appeared before the special master in New York, along with a number of other DOJ lawyers. When is the last time a U.S. Attorney appeared in a different district? Interesting.
In any event, the special master appeared pretty skeptical about Trump's claims... saying at one point you can't have your cake and eat it. Here's some coverage from the Hill:
In a Tuesday conference, Dearie appeared unsatisfied with the response, indicating that further explanation would be necessary only if criminal charges were filed.
He said if Trump’s lawyers will not actually assert that the records have been declassified and the Justice Department instead makes an acceptable case that they remain classified, then “as far as I’m concerned, that’s the end of it.”
James Trusty, a lawyer for Trump, said the legal team was “not in a position” to say whether the documents were declassified without first reviewing them, to which Dearie responded, “You did bring a lawsuit.”
Trump’s lawyers have failed to assert in court that Trump declassified the documents even as they seek to cast doubt on whether the documents are still classified.
“You can’t have your cake and eat it,” Dearie said.
Dearie also seemed to cast doubt on whether Trump’s legal team would be able to review all the classified documents, noting that some of the records are restricted to those with a need to know.
Trump also filed his brief in the 11th Circuit. Here ya go.
What a game! It just shows that you're never out of it and to keep fighting.
On that note, DOJ is in the 11th Circuit fighting to get a stay of Judge Cannon's order. Its brief is here. Trump has to respond by Wednesday.
And Philip Esformes is still fighting, also now in the 11th Circuit. His oral argument was Friday. Although the panel expressed dismay at the prosecutor's handling of the case, it also expressed doubt about doing anything about it. Unfortunately, it cited my old case -- United States v. Shaygan. From Law360:
During oral arguments in Miami, Esformes' counsel, James C. Martin of Reed Smith LLP, insisted that reversal is warranted because the trial court should have disqualified the prosecution team for misconduct, including invading attorney-client and work product privilege in a raid on one of Esformes' facilities and in secret recordings of his conversations.
But U.S. Circuit Judge William H. Pryor Jr. said the argument "seems to be foreclosed by a long line of precedent."
The Eleventh Circuit's chief judge said the appeals court has held that disqualification is not required for intrusion into attorney-client privilege absent a showing of actual prejudice, but in his initial brief, Esformes presented an argument of "structural error," based on prosecutors allegedly injecting their self-interests into the proceedings over his pretrial motion for dismissal or disqualification.
"You haven't really made a case for actual prejudice. You have to make the argument for the first time in the blue brief," Judge Pryor added, referring to the required color for the cover sheet of an appellant's initial brief.
Martin argued that the threat of prejudice has also been held to be sufficient grounds for dismissal. He pointed to a friend of the court brief that several former U.S. attorneys general, including Edwin Meese, John Ashcroft and Alberto Gonzalez, filed in support of Esformes, which Martin said stated that such a threat "sticks to the case" and "taints the entire prosecution."
U.S. Circuit Judge Jill Pryor said that argument would seem to undermine the need to show actual prejudice in any case involving a privilege intrusion.
What's different here, Martin responded, is the level of intrusion.
"It's unprecedented," he said.
Judge William Pryor expressed agreement about that but noted the district court made a finding there was no prejudice and repeated that he did not see where Esformes' side had made an argument about that.
The chief judge also expressed doubts about Martin's argument that prosecutors improperly injected their personal interests by being represented individually by outside counsel and raising arguments about their career prospects during the disqualification motion proceedings.
"Of course they have a right to counsel, don't they?" he asked.
The judge cited the Eleventh Circuit's 2011 decision in USA v. Shaygan , in which the court found a district court violated two prosecutors' constitutional due process rights by sanctioning them without providing notice of charges of misconduct and an opportunity to be heard.
1. She appointed District Judge Raymond Dearie to be the Special Master.
2. She denied DOJ's motion for partial stay.
DOJ will now head to the 11th Circuit.
Politico covers the orders here:
While Cannon’s timeline appears to extend Dearie’s review well past the November midterm elections, she did instruct him “to prioritize review of the approximately 100 documents marked as classified (and papers physically attached thereto),” meaning it’s possible prosecutors could regain access to some or all of those materials before they get another look at the other records seized in the FBI’s Aug. 8 search of the Trump’s Florida estate.
Last week, the Justice Department appealed Cannon’s order to appoint a special master and indicated it would seek relief from the 11th U.S. Circuit Court of Appeals if she did not agree to delay aspects of her ruling by Thursday night. .
The ruling is another setback for federal prosecutors, who have expressed alarm at the extraordinarily sensitive records they found in boxes intermingled with Trump’s personal items in his Mar-a-Lago storage room, as well as some recovered from his office. The Justice Department has warned that Cannon’s Sept. 5 order — which enjoined the department from furthering its criminal review of the documents seized by FBI agents — had also disrupted a parallel risk assessment of those documents by the intelligence community. Though Cannon allowed that review to continue, the Justice Department emphasized that her order had sown confusion within the executive branch.
In one nod to the Justice Department, Cannon ordered Trump to shoulder the full cost of Dearie’s review, as well as that for any staff or associates he hires.
President Biden just nominated him to be the U.S. Attorney in the Southern District of Florida.
He's a really good guy and well liked by just about everyone.
Folks will discuss the timing because of the on-going litigation regarding the Mar-a-Lago search. Currently all of the pleadings are being signed by Tony Gonzalez, who was the first assistant prosecutor under Ariana Fajardo Orshan, the previous U.S. Attorney who was selected by Trump. Once Lapointe is confirmed, he will be the local prosecutor in charge of the case. But, of course, the case is being overseen by the DOJ folks in D.C.
In any event, Lapointe isn't a political guy. He's right down the middle and is going to do what's right.
That's how Marc Mukasay started his opening in the SDNY's Nikola trial. Nikola's founder Trevor Milton is on trial and accused of defrauding investors. I love following good lawyers in trial and Mukasey lights it up in opening. Check out this twitter feed of what he did:
Mukasey: The truck rolled down the hill? It was a promotional video before Nikola went public. Special effects are not a Federal crime, as far as I know. Let me tell you: Peter Hicks is a man who wants money. He sold the ranch, and wanted more
— Inner City Press (@innercitypress) September 13, 2022
That's the title of a column that my middle daughter, Kate Markus, and I wrote in the Daily Business Review. Here's the intro:
As a high school student, I deal with seemingly arbitrary scheduling decisions from teachers all the time. Especially in this age of technology, teachers can add assignments randomly throughout the day and night by sending a message to our phones, and they love to add assignments with crazy short deadlines on the day after a big event like Halloween, only to take weeks to grade them.
The same thing happens to lawyers with electronic notices. In the old days, most judges worked with the litigants to find a time that worked with everyone’s schedule for a hearing or a trial. But now, there are instances when lawyers are summarily notified by email that something has been scheduled, sometimes with only a day’s notice. And then the waiting game starts for the order.
As challenging as the scheduling may be for us high school students, the stakes are significantly higher for litigants subject to the dictates of judges who are not always sympathetic to personal family situations including the birth of children.
This happened just recently, when a lawyer asked for an upcoming civil trial to be continued due to the pending birth of his long-awaited daughter, who had been conceived after fertility treatments following a series of difficulties. A Miami-Dade judge refused to continue the case, even though it had not previously been continued and all the lawyers agreed to the continuance. The judge told the lawyer he would be sanctioned if he asked again for a continuance. Only after the story of his ruling broke in the news did the judge relent and grant the continuance.
My own birth story is another example. My dad (and co-author) was scheduled for a complicated and lengthy multi-defendant trial in Savannah, Georgia. The judge set the trial for— you guessed it—the very day my mom was scheduled to deliver me. When my dad asked the judge to push the start date back just a few days so that he could be there for my birth, the judge refused, actually telling my dad he could fly down for “half a day” to attend the birth and then fly back for court the following day. My parents solved this problem by moving up the date of my delivery so that my dad could be there for my birth before leaving town for six weeks.
Government’s Proposed Candidates
The Honorable Barbara S. Jones (ret.) – retired judge of the United States District Court for the Southern District of New York, partner in Bracewell LLP, and special master in In re: in the Matter of Search Warrants Executed on April 28, 2021 and In the Matter of Search Warrants Executed on April 9, 2018
The Honorable Thomas B. Griffith (ret.) – retired Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit, special counsel in Hunton Andrews Kurth LLP, and Lecturer on Law at Harvard Law School.
Plaintiff’s Proposed Candidates
The Honorable Raymond J. Dearie (ret.) – former Chief Judge of the United States
District Court for the Eastern District of New York, served on the Foreign Intelligence Surveillance Court, formerly the United States Attorney for the Eastern District of New York.
Paul Huck, Jr.—founder, The Huck Law Firm, former Jones Day partner, former
General Counsel to the Governor, former Deputy Attorney General for the State of Florida
1. DOJ has filed a notice of appeal regarding Judge Cannon's appointment of a special master. It also asked Cannon to stay parts of her order.
2. A man has been charged with vandalizing the Broward Federal Courthouse. The pictures don't look as bad as when the rain flooded the place:
After being pardoned, the State of New York went after Bannon with its own investigation. He is due to surrender tomorrow. From the NY Times:
Stephen K. Bannon, the onetime political adviser to former President Donald J. Trump, is expected to surrender on Thursday to New York authorities to face state charges in an indictment that remains sealed, according to a person familiar with the case.
The nature of the charges was unclear early Wednesday. But Mr. Bannon called them “phony” in a statement. “They are coming after all of us,” he said. “I have not yet begun to fight.”
Danielle Filson, a spokeswoman for Alvin Bragg, the Manhattan district attorney, declined to comment.
The charges would not be Mr. Bannon’s first indictment. Mr. Trump pardoned Mr. Bannon in January 2021 before he could be brought to trial on federal fraud charges stemming from his work with We Build the Wall Inc., a fund-raising operation set up to help fulfill the former president’s promise to create a physical barrier between the United States and Mexico.
You can read the whole order here.
Random thoughts:
She asks the parties for recommendations on who the special master should be. That will be an interesting list.
DOJ will surely appeal and ask for a stay. Will they get it?
Are we now going to see a slew of folks filing lawsuits asking for special masters?
A true mensch and a great judge. The New York Times has a wonderful piece about Judge Michael Hanzman's handling of the Surfside case:
Each day, before the unusual hearings unfolded inside Judge Michael A. Hanzman’s Miami courtroom this summer, the judge’s aides would stock the judge’s bench, the lawyers’ tables and the witness stand with boxes of tissues. At some point, they knew, almost everyone would cry, and each excruciating presentation would end with Judge Hanzman offering people hugs.
The hearings in the civil case over the deadly collapse last year of a beachfront condominium tower in Surfside, Fla., gave survivors and victims’ families a chance to seek financial compensation for their enormous losses. But those involved in the proceedings also describe them as far more meaningful — something akin to catharsis — which they credit to the extraordinary handling of a case born out of calamity.
After five weeks of lengthy and emotional hearings, the court issued letters in late August, informing survivors and victims’ families of how much they would receive in damages from a settlement of more than $1 billion with insurance companies, the developers of an adjacent building and other defendants. Individual awards ranged from $50,000 for some post-traumatic stress disorder claims to more than $30 million for some wrongful death claims, Judge Hanzman said in an interview this week.
“I don’t think I have shed as many tears in my 61 years as much as I have throughout the last five weeks,” he said.
***
His first unorthodox move was to persuade the surviving members of the Champlain Towers South condo association board to appoint Michael I. Goldberg, a lawyer, as an independent party known as a receiver to handle residents’ lawsuits. That allowed the judge to corral all of the complaints and eventually have them combined into one big lawsuit. Otherwise, there would probably have been dozens of separate legal actions.
Judge Hanzman chose well-known law firms to represent the plaintiffs, though the firms knew up front that there might not be enough money recovered to pay them. Some firms turned him down, the judge said.
The legal process was not without some friction. Even before all of the victims’ remains had been found in the rubble, the judge decided that the land where Champlain Towers South had stood would be sold, to ensure the biggest possible payout. Some families wanted a memorial built there instead of selling the land for redevelopment, but the judge concluded that a fund made up of insurance proceeds alone would fall far short of adequate compensation for the victims. The nearly two-acre property was sold to a Dubai-based developer in August for $120 million.
Next, Judge Hanzman dealt with conflicts between victims’ families, who had lost loved ones, and survivors, who had lost property. He persuaded Bruce W. Greer, a renowned mediator, to try to resolve their conflicts over how much money each group deserved to receive. In February, the condo unit owners agreed to split $83 million from the land sale and from Champlain Towers South’s insurers, a total that later went up to $96 million and paid them for the appraised value of their units.
Then Mr. Greer negotiated a second settlement: more than $1 billion to be shared among families who lost loved ones in the condo collapse. That sum came from the developers, engineering consultants and security companies whom the law firms had identified as possibly at fault for the disaster, as well as their insurers. Federal investigators have still not determined the cause of the collapse.
Finally, Judge Hanzman and a retired judge, Jonathan T. Colby, a friend of 30 years, became the arbiters of how much each victim’s lost earnings — and their family’s pain and suffering — were worth.
We need more judges like Judge Hanzman in both state and federal court. Here's hoping we can steal him over to the feds...
To the dismay of many, it was reported that Judge Cannon had the wifi turned off in the courthouse and prohibited reporters from tweeting or otherwise reporting on the hearing from court. There was also no call-in number so members of the public and press could listen in on the hearing. So all of the reporting came after court was concluded. What is this, the dark ages?
UPDATE -- I've been told that the wifi was not turned off and instead it was just overloaded with the number of users; I've also been told that it was not Judge Cannon's new rule to prohibit reporting from inside the courtroom -- she just reminded everyone of the local rule 77.1.
Anyway, here is the NY Times coverage of the hearing:
A federal judge signaled on Thursday that she remained open to granting former President Donald J. Trump’s request to appoint an independent arbiter to go through documents the F.B.I. seized from him last month, but stopped short of making a final decision.
After a nearly two-hour hearing, the judge, Aileen M. Cannon of the Federal District Court for the Southern District of Florida, reserved judgment on the question of whether to appoint a so-called special master in the case, saying she would issue a written order “in due course.”
Notably, Judge Cannon did not direct the F.B.I. to stop working with the files, which the Justice Department has said have already undergone a preliminary review by law enforcement officials.
Judge Cannon, who was appointed by Mr. Trump in 2020, also indicated that she would unseal a more detailed list of the documents the F.B.I. took during its Aug. 8 search of Mar-a-Lago, Mr. Trump’s private club and residence in Florida. She had earlier ordered the Justice Department to provide the list to Mr. Trump’s legal team at its request. It was not clear when it would become public.
During the hearing, Judge Cannon pressed the government to explain what harm could come from appointing a special master.
Jay I. Bratt, the head of the Justice Department’s counterintelligence section, told her that a special master could slow down an assessment of the risk and damage to national security being conducted by the Office of the Director of National Intelligence — as well as an assessment of whether the seized documents contain the sort of national security secrets whose unauthorized retention is a crime under the Espionage Act.
“We are dealing with over 300 records here” that had classification markings on them, Mr. Bratt said. “That process has begun. That process needs to continue.”
But Judge Cannon appeared to suggest that if she did appoint a special master, she would do so in a way that would not hinder the security risk assessment.
The judge also left unclear whether she would limit the scope of any special master’s work to setting aside a small number of documents that may be subject to attorney-client privilege.
You can read it here.
Thank goodness the lawyers start with explaining to the reader in the first line that references to "President Trump" mean "President Donald J. Trump."
Sorry, it's a pet peeve of mine.
Anyway, Judge Cannon will be holding a hearing this afternoon in West Palm Beach. It will be interesting to see if she sticks to her guns and appoints a special master. And if so, who will the judge appoint.
More to follow.