Roy Black strikes back

Roy Black has written a wonderful letter in the DBR about advocacy and time limits. It's worth a read:

With great sadness I read of the death of advocacy in these pages on Dec. 23rd​ (I’ve Never Seen Anything Like It’: Miami-Dade Attorney Held in Criminal Contempt​).​ Derrick Morales was given 40 minutes for his final argument, including 20 seconds for rebuttal. Apparently he uttered a few words over the critical time limit and was held in criminal contempt for “obstructing the administration of justice…”

Contempt is usually a toxic stain on a lawyer’s reputation, but in this case, it is more the red badge of courage.

The incomparable ​Clarence ​Darrow argued to a judge for 12 hours over three days to save Leopold and Loeb from the hangman. But the modern, efficient, time-pressed judge no longer sees any value in extended lawyer advocacy. The art is slowly fading away, being replaced by technology.

John Paul Stryker wrote a book on trial advocacy which he subtitled, “a plea for the renaissance of the trial lawyer” in 1954. Instead of a new flowering of eloquence, we are suffering the black death of silence. No longer is advocacy welcomed in our trial courts. It is treated as an unnecessary waste of time, or now, a crime worthy of condemnation and punishment.

I have a lot of empathy. I was once granted an entire three minutes by the Eleventh Circuit. And in another case, an undistinguished federal judge in northern Indiana declared a recess in the middle of my final argument, ordering the marshals to quickly shelter the jury from my words. I’m not sure if my argument was too good or too bad. At least I avoided imprisonment.

Why is there a time limit placed on final argument? Too persuasive? Too dramatic? Or too pedestrian? We are trial lawyers; we go to war with words. We have the verbal confidence to stand on our feet, articulate the facts, and marshal our arguments. We are able to speak with passion in a way that inspires people. The final argument is our primary weapon.

I don’t know what Derrick Morales said in those last few minutes of overtime but I picture it as Salman Rushdie did: “Language is courage; the ability to conceive a thought, to speak it, and by doing so, to make it true.”

Never Give Up

By Michael Caruso

For all those like me who receive a Treasury check every two weeks, last Friday's passage of the 2023 spending bill came as a welcome relief. And, because this bill is a "must pass" measure, lawmakers were furiously negotiating to include various items in the last few weeks. For example, the Senate failed to include the EQUAL Act—which eliminates the federal sentencing disparity between drug offenses involving crack cocaine and powder cocaine—in the omnibus appropriations bill.

One of our local representatives, however, successfully led a bipartisan effort to correct a different wrong by awarding a Congressional Gold Medal to Benjamin Ferencz—the last living Nuremberg prosecutor.

Ferencz was born in the Carpathian Mountains of Transylvania in 1920. When he was ten months old, his family moved to New York—a small basement apartment in "Hell's Kitchen." After he graduated from Harvard Law School in 1943, he joined an anti-aircraft artillery battalion preparing for the invasion of France. As an enlisted man under General Patton, he fought in most major European campaigns. As Nazi atrocities were uncovered, he was transferred to a newly created War Crimes Branch of the Army to gather evidence of Nazi brutality and apprehend the criminals.

After his discharge from the Army, he returned to New York and prepared to practice law. Shortly after, he was recruited for the Nuremberg war crimes trials. Ferencz became Chief Prosecutor in The Einsatzgruppen Case, which the Associated Press called "the biggest murder trial in history." Twenty-two defendants were charged with murdering over a million people. He was only twenty-seven years old. It was his first case.

According to Ferencz, "Nuremberg taught me that creating a world of tolerance and compassion would be a long and arduous task. And I also learned that if we did not devote ourselves to developing effective world law, the same cruel mentality that made the Holocaust possible might one day destroy the entire human race."

In 1970, Ferencz decided to withdraw gradually from the private practice of law and dedicate himself to studying and writing about world peace. Earlier this year, right after his 102nd birthday, Ferencz said when he publicly presents his life story, he always tells his audience, "There are three important lessons I wish to transmit: One, never give up, Two, never give up, and three, never give up."

We all should be grateful Mr. Ferencz never did.

What should we do about the Supreme Court?

 Erwin Chemerinsky says because the Court's approval rating is so low, it's time for a change to restore legitimacy for the Court.  He says 18-year term limits are the answer:

The United States is the only democracy that gives members of its highest court life tenure. In fact, few states provide such a guarantee to their justices and judges. Life expectancy is much longer now than it was in 1787, when the Constitution was written. From 1787 through 1970, Supreme Court justices served an average of 15 years; justices appointed since 1970 have served an average of 27 years.

Clarence Thomas was 43 years old when he was confirmed, in 1991. If he remains on the court until he is 90, the age at which Justice John Paul Stevens retired, he will have been a justice for 47 years. This is too much power in one person’s hands for too long. Also, too much now depends on accidents of history, namely when court vacancies happen to occur. President Richard Nixon appointed four justices in his first two years in office; President Jimmy Carter picked no justices in his four years. President Donald Trump picked three justices in four years, while the previous three Democratic presidents served a combined 20 years in the White House but selected only four. Staggered, 18-year, non-renewable terms would mean that each president would make at least one nomination every two years. My sense is that there is bipartisan support for this reform, which would require a constitutional amendment. Rick Perry, the Republican former Texas governor, argued for it when he ran for president in 2016. Liberals support it as well. Term limits should be applied to current justices. Otherwise, they wouldn’t be implemented for decades. Amy Coney Barrett was 48 years old when she was confirmed, in 2020. If she remains on the court until she is 87, the age Ruth Bader Ginsburg was when she died, she will be a justice until 2059. The question is whether any constituency cares enough about this issue to do the hard work of getting the Constitution amended. That would mean lobbying Congress to propose the amendment and then mounting a campaign for its adoption by state legislatures.

Happy Festivus

 

 

 It's time to air some grievances: 

1. Prosecutors who still don't turn over all 302s. 

2. Prosecutors who still don't agree to turn over exhibit and witness lists. 

3. Judges who don't force prosecutors to do so. 

4. Corporate surety bonds (instead of signature bonds). 

5. The Sentencing Guidelines. 

6. The Trial Tax. 

7. Harmless error. 

8. Lawyers who claim to be defense lawyers who won't tell you what their client will say at trial. 

9. Judges who deny motions for continuances. 

10. 801(d)(2)(e).

Be careful who you sue....

 By John R. Byrne

This holiday season, a Girl Scout troop took a trip to New York to see the Rockettes perform at Radio City Music Hall. Security instantly descended on one of the moms in the group because Madison Square Garden Entertainment's facial recognition software had "picked [her] up." No, she isn't a terrorist. She's a lawyer. And she's an associate at a law firm that has sued a restaurant owned by MSG Entertainment (no, she's not working on the case). MSG kicked her out of the venue, leaving her to wait outside while her daughter and the rest of the troop watched the show. Nothing to see here, according to MSG:

“MSG instituted a straightforward policy that precludes attorneys pursuing active litigation against the Company from attending events at our venues until that litigation has been resolved. While we understand this policy is disappointing to some, we cannot ignore the fact that litigation creates an inherently adverse environment. All impacted attorneys were notified of the policy, including [the law firm at issue], which was notified twice."

Silly. You can read more about it here.

An oldie, but goodie. Happy Holidays!

 Hat tip: Frank Ramos from Linkedin.  If you don't follow him, you should.

What is fraud?

 This is THE debate in white collar circles over the past few years.  Takhalov (the B-girls case) got the discussion going again in the 11th Circuit.  Interestingly, the Supreme Court keeps reversing convictions based on strange new theories that district judges and appellate courts allow.  The latest question hails from the Third Circuit -- is it federal wire fraud for a college dean to lie in order to increase U.S. News Rankings?  From Law360:

The former dean of the Fox School of Business at Temple University has asked the Third Circuit to throw out his conviction on charges that he falsely inflated the school's stats to boost its ranking in U.S. News & World Report, arguing that students still got a good education in exchange for their tuition.

In an appellate brief filed Friday, Moshe Porat — who was sentenced to 14 months in prison and a $250,000 fine after being convicted on mail and wire fraud charges last year — said the government failed to show how falsely inflating the school's numbers constituted a deprivation of students' "property," as required by federal fraud statutes.

"Imagine that an excellent but unheralded lawyer procures false nominations to be named a 'Super Lawyer.' A client hires the lawyer based on the honor, and the lawyer provides top-notch counsel," Porat's brief said. "The lawyer's conduct is dishonest and morally questionable, but has the lawyer committed federal property fraud? The answer is plainly no—even if the client later learns the truth about the fake honor, and even if the client feels duped and would have hired a different lawyer had he known the truth."

And the response:

Philadelphia federal prosecutors urged the Third Circuit on Friday to reject a bid by the former dean of Temple University's business school to toss his conviction for falsely inflating the school's stats to boost its U.S. News & World Report ranking, slamming his argument that the conduct didn't amount to property fraud.

In its response brief, the government called Moshe Porat's appeal "an exercise in straw man advocacy," rejecting his argument that the falsely inflated stats given to U.S. News didn't deprive students at Temple's Fox School of Business of a good education.

"Porat was charged with and convicted of defrauding business school applicants, students, and donors out of money," the government's brief said. "He accomplished this, in part, by giving false information to U.S. News, knowing that this information would result in false rankings that students and donors valued, and knowing that Fox would then broadcast these rankings far and wide in order to gather tuition money and donations from the people who were the targets of the fraud."

The Definition of Suicide

 By John R. Byrne

More textual interpretation from the Eleventh Circuit and Judge Pryor, this time tackling the meaning of "suicide" in a life insurance policy. The policy at issue, like all life insurance policies, excluded coverage if the policyholder committed suicide. But did "suicide by cop" count? The Eleventh Circuit said "yes." 

No American court had decided the question, so the Court took some time laying out its reasoning. Citing Justice Scalia and Bryan Garner, the Court wrote "The ordinary-meaning rule is the most fundamental semantic rule of interpretation." It then walked through a series of definitions from dictionaries and court opinions. The Court's conclusion--as ordinarily understood, "suicide" is not limited to instances where the decedent delivered the fatal blow himself. In other words, a person can commit suicide "indirectly." Comparing the case of a man throwing himself in front of a train and "suicide by cop," Judge Pryor wrote there was "no material distinction." He explained:

"Police officers are trained to, and have little choice but to, use deadly force to stop a civilian who threatens them, their fellow officers, and the public at large. See FLA. STAT. § 782.02 (2022). A civilian, aware of this fact, threatens the officers to provoke this predictable and lethal response in the same way that the man who throws himself before a train anticipates the predictable, lethal outcome of being run over. In both cases, a person intentionally causes his own death, even if an external force delivers the fatal blow. In other words, he commits “suicide.”

Seems right to me, especially when you think of Jack Kevorkian and physician-assisted suicide which, if you took the other side of the debate, wouldn't qualify as "suicide" either. Anyway...Happy Friday!

Caldwell Opinion by John Byrne on Scribd

Slate interviews Chief Judge William Pryor

Remember when Judge Pryor joked about Slate journalist Mark Joseph Stern at a recent Federalist Society convention?

Well, after that speech, Stern called up Judge Pryor and asked to interview him.

To Judge Pryor's credit, he agreed.  

Here's the interesting interview.  

Some of the back and forth:

In the last couple of years, justices of the Supreme Court who are affiliated with the Federalist Society have made appearances at Federalist Society conventions and delivered speeches that are often received rapturously, with standing ovations. And on the left, the view is often: Well, these people are just applauding a fellow member of their club who is going to help them achieve all their goals; they’re celebrating the elevation of this person to power because they think it’ll help them with their own personal causes. What do you make of the impression created by justices attending these conferences and getting this rapturous reception?

Any group is going to have role models, individuals who a lot of members admire. My guess is that if you went to an American Constitution Society meeting and Justice Breyer or Justice Ginsburg had been introduced, there would be rapturous applause there as well. I think that’s OK. Justice Kennedy would frequently speak at the summer meeting of the American Bar Association following a Supreme Court term and would get that kind of reception there, as well. In our legal culture, there are a lot of organizations of lawyers and law professors and judges where a lot of the leadership and members have role models within the legal culture. What’s different is that a lot of legal conservatives didn’t have that kind of organization and didn’t have those kinds of role models until recently.

One difference is that six justices of the Supreme Court today have some affiliation with the Federalist Society. And especially if you’re a casual observer of the news, and you turn on the TV and see four of them at this convention getting celebrated, you might think: Well, this is just a pack of partisans who are going on the road to receive their due.

When the six justices get a lot of applause and admiration and appreciation from an audience of the Federalist Society because the members admire them, and in a very broad sense, share a philosophy about the judicial role with them—I don’t think that’s unusual at all when you compare it to the ABA or the American Law Institute. I really think the only difference is that it’s now a conservative legal organization that’s a new entrant.

A group called DonorsTrust, which provides lots of dark money to conservative causes, recently gave the Federalist Society $3.7 million. I’m curious what you would say to someone who’s skeptical of the Federalist Society, who sees these figures and says: Well, this is just another way to launder conservative policies through the judiciary. This is another way of building a base of power in the courts that will allow Republicans to impose their ideas from the bench. When the same dark money group that’s giving funds to the Federalist Society is also giving a ton of money to Republicans, it might raise some eyebrows. 

My understanding is the kind of donors you’re talking about tend to be foundations. And I would say if you have a concern about it, you ought to look at what the Federalist Society actually does with the money. And what it does is it sponsors programs that can only fairly be termed as educational. It’s focused on debates and discussions about contemporary legal issues on many topics. And Federalist Society programs have a wide variety of speakers. The panel discussions are very balanced to have a diversity of viewpoints. I’ve had many panel discussion events where I participated and had my biggest disagreement with a so-called conservative on the panel. If the idea is that this money is being used to promote a single agenda, a single idea, it seems to me it’s phenomenally unsuccessful because the programs are just not designed that way.

If you enjoyed that article, you should check out my podcast interview of Judge Pryor from last year, which was a lot of fun.

What's Justice Alito thinking?

 David Lat's excellent newsletter, Original Jurisdiction, pointed out these two exchanges in the website designed case, which are completely bizarre.

JUSTICE ALITO: Justice Jackson [offered an] example of the Santa in the mall who doesn't want his picture taken with black children. So, if there's a black Santa at the other end of the mall and he doesn't want to have his picture taken with a child who's dressed up in a Ku Klux Klan outfit, that black Santa has to do that?

[Colorado Solicitor General ERIC] OLSON: No, because Ku Klux Klan outfits are not protected characteristics under public accommodation laws.

JUSTICE KAGAN: And, presumably, that would be the same Ku Klux Klan outfit regardless whether the child was black or white or any other characteristic.

JUSTICE ALITO: You do see a lot of black children in Ku Klux Klan outfits, right? All the time….

YIKES!

Here's another doozy:

    JUSTICE ALITO: Okay. An unmarried Jewish person asks a Jewish photographer to take a photograph     for his Jdate dating profile. It's a dating service, I gather, for Jewish people.

JUSTICE KAGAN: It is.

(Laughter.)

    JUSTICE ALITO: All right. Maybe Justice Kagan will also be familiar with the next website I'm going     to mention. So, next, a Jewish person asks a Jewish photographer to take a photograph for his                ashleymadison.com dating profile.

(Laughter.)

JUSTICE ALITO: I'm not suggesting that. I mean, she knows a lot of things….

Double yikes.

Stone Walls and Steel Bars

By Michael Caruso

Yesterday, David mentioned a new report which describes a “federal jailing crisis” that disproportionately impacts poor people of color. The report was authored and researched by Prof. Alison Siegler and a team of her clinic students at the University of Chicago Law School. The report, Freedom Denied: How the Culture of Detention Created a Federal Jailing Crisis, drew upon two years of court-watching and interviews. Prof. Siegler included our district in her study.

Here are a few of Prof. Siegler's key findings:

"Federal judges regularly disregard the law that protects against a person being jailed due to their inability to pay bail, directly impacting people of color and people from low-income backgrounds."

"Federal judges regularly disregard the legal requirement to ensure that anyone who cannot afford a lawyer is represented by court-appointed counsel during their initial appearance hearing."

"Federal judges often overlook legal requirements at initial bail hearings, leading to unlawful detention."

"Federal judges routinely misapply the “presumption of detention” statute that applies in drug cases, improperly treating it as a mandate for jailing and fueling racial disparities."

Prof. Siegler's findings demand that we address and correct these systemic issues in our criminal legal system. Addressing these issues becomes more pressing when coupled with research that suggests pretrial detention leads to worse outcomes for the people in jail—both in their court cases and in their lives—compared with similarly situated people who are able to secure pretrial release.  

The Vera Institute, for example, has noted research dating back to the 1950s and 1960s has established a connection between pretrial detention and the likelihood of being convicted and sentenced to incarceration. This research suggests that pretrial detention, even for a relatively small number of days, may have negative implications for court appearances, conviction, sentencing, and future involvement with the criminal legal system.

Hopefully, Prof. Siegler's work, and the work of others,  will kickstart a national and local conversation about these issues. I hope the Court, the U.S. Attorney's Office, the Pretrial Services Office, the FPD, the criminal defense bar, and the impacted community can collaborate and move forward. No one group is responsible or blameless for this crisis.

News & Notes

 1. Judge Milton Hirsch wrote this incredible order about the right to a 12-person jury in state court.  Worth a read.  From the conclusion:

Had this order been filed six weeks earlier, it would have ended here. I would have concluded that Florida v. Williams is no longer the law, and that Defendant is entitled to a jury of 12. In the interim, however, an appellate court of this state has concluded the contrary. Ramos v. Louisiana was decided two years ago. While the vaunted Miami criminal defense bar, public and private, temporized and dawdled, a lawyer in St. Lucie County, Florida, appears to have raised the issue at bar. In the ordinary course, the matter then wound its way to the Fourth District Court of Appeal which, less than six weeks ago, decided Guzman v. State, ___ So. 3d ___ (Fla. 4th DCA Oct. 26, 2022).In Guzman, the Fourth District found that the issue of a 12-person jury was likely not properly before it, Guzman, ___So. 3d at ___; but that if it was, the Supreme Court in Ramos “ha[d] not revisited its express holding in Williams,” Guzman at ___, and the Supreme Court “does not normally overturn . . . earlier authority sub silentio.” Id . (quoting Shalala v. Illinois Council on Long Term Care, 529 U.S. 1, 18 (2000)). Noting how terse is the Guzman majority’s discussion of this issue, Defendant asks me to pass over it as meredictum. It is terse. But it is notdictum.11By operation of Florida’s well-settled “ Pardo rule,” see Pardo v. State, 596 So. 2d 665,666 (Fla. 1992), I am, in the absence of a binding decision from the Third District, bound by a decision from the Fourth District. As a judge of a lower court, I must follow controlling appellate case law. But judges of lower courts “may state their reasons for advocating change” while they follow controlling appellate case law. Hoffman v. Jones, 280 So. 2d 431, 434 (Fla.1973). I have done so. See supra at 7-11; see also Guzman, ___ So. 3d at ___ (Gross, J., concurring) (“The Ramos majority . . . contains references to the common law requirement of a12-person jury and suggests that the Sixth Amendment affords a right to the essential elements of a trial by jury as understood and applied at common law”).We will be ignoring, not effectuating, the intent of the Supreme Court, not to say the intent of our Constitution’s Framers, by trying this defendant before a jury of fewer than 12 good men and women and true. We will be ignoring a constitutional right. But like every lower-court judge I must obey the decisions of higher courts, “agreeing with some, disagreeing with some, following all, because our bondage to the law is the price of our freedom.” Johnson v. Johnson, 284 So. 2d 231, 231 (Fla. 2d DCA 1973).Guzman has considered Ramos and found Williams still to be the law. I sincerely hope and confidently believe that the Third District will find otherwise. Until it does, however, Defendant’s motion for a 12-person jury must be respectfully denied.

2. USA Today did a nice piece about how prosecutors federal judges are messing up bail and detaining too many folks.  Check it out here. 

Congratulations to newly confirmed U.S. Attorney, Mark Lapointe

Fantastic news.

Mark is a great guy and will be a wonderful U.S. Attorney.

Lots of speculation and chatter in the bar about how he will shake up the office and what measures he will take to change the culture over there.  

The Herald covers the confirmation here:

Markenzy Lapointe was confirmed by the United States Senate Tuesday night as the U.S. attorney for South Florida, making him the first Haitian-American lawyer to serve in the region’s most powerful federal law enforcement position. Lapointe, a former U.S. Marine and ex-federal prosecutor who was raised in Haiti and Miami, was nominated in September by President Joe Biden to fill the position, which is responsible for directing about 250 prosecutors in a district extending from Key West to Fort Pierce. It is considered one of the busiest districts in the country because of the region’s steady stream of financial fraud, drug trafficking and internet crimes.

"And" Means "And" (Or does it mean or?) -- UPDATE

 By John R. Byrne

"And" means "and," it turns out. That's the holding of the Eleventh Circuit after en banc review in United States v. Garcon, Case No. 19-14650. Judge Pryor wrote the majority opinion, framing the question presented as such:

• The question presented in this appeal of a grant of safety valve relief is whether, in the First Step Act, the word “and” means “and.” The Act empowers a court to grant a criminal    defendant relief from a mandatory minimum sentence, but that relief is available only if “the defendant does not have” “more than 4 criminal history points,” “a prior 3-point offense[,] . . . and . . . a prior 2-point violent offense.” 18 U.S.C. § 3553(f )(1)             

The Court answered that question "yes," holding that a defendant has to check every box to lose eligibility. Because Garcon did not (he had a prior 3-point offense but did not have a prior 2-point violent offense or more than 4 criminal history points) he was eligible, as Judge Cohn had held at the district court level. 

The Court's reasoning for its ruling? "And" is "conjunctive." Seems straightforward, right? Not to dissenting Judges Jordan, Branch, Grant, and Brasher. All endorsed a disjunctive reading of "and." It's hard to do justice to the reasoning of both sides, so the opinion is worth a read, if anything to re-familiarize yourself with the various canons of statutory construction, which get a lot of attention (even the "absurdity canon")! Very interesting lineup of dissenters and this is Judge Pryor's second opinion for the en banc Court in favor of a criminal defendant (he penned the Corrine Brown opinion).

The practical takeaway? A lot more defendants will now be eligible for safety valve relief. Opinion below.

UPDATE by DOM: Thanks for the great post, John. I had to jump in and congratulate the Federal Defender's Office for this big win. It's not every day that you get an en banc ruling for a criminal defendant.  The case was handled by AFPDs Tracy Dreispul and Brenda Bryn.  Wonderful.

Opinion by John Byrne on Scribd

News & Notes

 1. Judge Graham declares a mistrial because of a late disclosure of discovery.  Law360 covers it:

On day 13 of the trial against Jason Todd Faley, Joseph Anthony Cavallo and Benjamin Clark Heath, Senior U.S. District Judge Donald L. Graham declared a mistrial, but refrained from dismissing the indictment with prejudice as the defense had requested.

The mistrial came after the government revealed a terabyte of data, including more than 400,000 emails, that was seized via a search warrant on GoDaddy.com in 2017 for the emails of cooperating defendant Mark Vollaro and others affiliated with Complete Healthcare Concierge, one of the companies through which the defendants allegedly ran a scheme to submit fraudulent prescriptions for compounded medications.

Prosecutors lost track of the documents after the seizure and did not discover the search warrant until just before trial, according to court documents. The data was shared with the court and the defense just after the jury was sworn in, court documents state.

2.  Michael Avanetti was sentenced to 14 consecutive years, making his sentence nearly 20 total years.  Too much? From CNN:

Dean Steward, an attorney for Avenatti, said in a statement to CNN that the sentence “was overly harsh and uncalled for,” adding that his client described it in court as being “off the charts.”

“When compared with similar high-profile cases, the unfairness is glaring,” Steward said.

Monday’s sentence represents the latest episode in an extraordinary years-long legal drama surrounding Avenatti, whose representation of Stormy Daniels, the adult film star who alleged she had an affair with former President Donald Trump years before he ran for office, made the pugnacious attorney a household name.

“Avenatti’s fraud was egregious, and the court plainly meant to send a strong message. But a 14-year sentence is extraordinarily long given all the circumstances,” said CNN senior legal analyst and former federal prosecutor Elie Honig. 

3.  Former Congressman David Rivera has been charged.  His case is assigned to Judge Gayles. From Politico:

Former Florida Rep. David Rivera, who had successfully outflanked a series of investigations during his lengthy political and consulting career, was arrested Monday by federal authorities in connection with an ongoing probe into his work with Venezuela’s authoritarian regime.

Rivera, who represented a Miami-area district from 2011 to 2013, was detained in Georgia on Wednesday in connection with a Miami grand jury indictment issued last month. His arrest was first reported by The Associated Press. According to the indictment unsealed on Monday night, Rivera and his former political consultant, Esther Nuhfer, are facing charges of conspiring against the U.S., failing to register as foreign agents and engaging in illegal financial transactions including money laundering.

“It was the purpose of the conspiracy for the defendants to unlawfully enrich themselves by engaging in political activities in the United States on behalf of the government of Venezuela, and by representing the interests of the government of Venezuela before officials of the of the United States government and in an effort to influence United States foreign policy,” states the 34-page indictment.

“This is the single most important case on American democracy — and for American democracy — in the nation’s history.”

 That's former judge Michael Luttig on Moore v. Harper, which will be heard by the Supreme Court this Wednesday.  The question presented is:

Whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives ... prescribed ... by the Legislature thereof,” and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.

The AP covers the case here: 

The Supreme Court is about to confront a new elections case, a Republican-led challenge asking the justices for a novel ruling that could significantly increase the power of state lawmakers over elections for Congress and the presidency.

The court is set to hear arguments Wednesday in a case from North Carolina, where Republican efforts to draw congressional districts heavily in their favor were blocked by a Democratic majority on the state Supreme Court because the GOP map violated the state constitution.

A court-drawn map produced seven seats for each party in last month’s midterm elections in highly competitive North Carolina.

The question for the justices is whether the U.S. Constitution’s provision giving state legislatures the power to make the rules about the “times, places and manner” of congressional elections cuts state courts out of the process.

***

Luttig, who advised former Vice President Mike Pence that he had no authority to reject electoral votes following the 2020 election, is among several prominent conservatives and Republicans who have lined up against the broad assertion that legislatures can’t be challenged in state courts when they make decisions about federal elections, including congressional redistricting.

That group includes former California Gov. Arnold Schwarzenegger, law professor Steven Calabresi, a founder of the conservative Federalist Society and Benjamin Ginsberg, a longtime lawyer for Republican candidates and the party.

“Unfortunately, because of ongoing and widespread efforts to sow distrust and spread disinformation, confidence in our elections is at a low ebb,” Ginsberg wrote in a Supreme Court filing. “The version of the independent state legislature theory advanced by Petitioners in this case threatens to make a bad situation much worse, exacerbating the current moment of political polarization and further undermining confidence in our elections.” 

That's just one blockbuster being heard this week.  Up Monday is the web-designer case, a follow up to the cake designer case.  From SCOTUSblog:

The Supreme Court on Monday will revisit a long-simmering tension between legal protections for LGBTQ people and the rights of business owners who oppose same-sex marriage. The case, 303 Creative v. Elenis, is a challenge by a Colorado website designer to a state law that bars businesses that are open to the public from discriminating against gay people or announcing their intent to do so. The designer, Lorie Smith, argues that subjecting her to the law would violate her right to free speech. Colorado counters that exempting Smith from the law would open a Pandora’s box that would “upend antidiscrimination law – and other laws too.”

The justices have already grappled with this question once. In 2018, the court handed a narrow victory to Jack Phillips, a Colorado baker who refused to make a custom cake for a same-sex couple because he believed that doing so would violate his religious beliefs. Justice Anthony Kennedy’s opinion rested largely on the majority’s conclusion that the Colorado administrative agency that ruled against Phillips treated him unfairly by being too hostile to his sincere religious beliefs. The opinion seemed to leave open the possibility that, in a future case, a service provider’s sincere religious beliefs might have to yield to the state’s interest in protecting the rights of same-sex couples, and the majority did not rule on one of the central arguments in the case – whether compelling Phillips to bake a cake for a same-sex couple would violate his right to freedom of speech.

Enter Lorie Smith, the owner of 303 Creative LLC, a designer of websites and graphics based in Littleton, Colorado. Smith is a devout Christian who believes that marriage “is only between one man and one woman.” So although Smith wants to expand her business to include wedding websites, she does not want to design websites for same-sex weddings, and she wants to post a message on her own website to make that clear.

In 2016, Smith went to federal court in Colorado, seeking a ruling that Colorado could not enforce its public-accommodations law, known as the Colorado Anti-Discrimination Act, against her because it would violate her First Amendment rights to free speech and free exercise of religion. When the U.S. Court of Appeals for the 10th Circuit rejected her arguments, Smith came to the Supreme Court. The justices agreed in February to take up her case – but only on the free speech question, not on the free exercise issue.

 

 

CA11 says no to Cannon's Special Master in Mar-a-Lago case

 That was fast... and furious.  The 11th Circuit quickly vacated Judge Cannon's order appointing a Special Master in the Trump/Mar-a-Lago search case.  The per curiam opinion (CJ Pryor, Grant, Brasher) didn't hold back: 

The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.

The district court improperly exercised equitable jurisdiction in this case. For that reason, we VACATE the September 5 order on appeal and REMAND with instructions for the district court to DISMISS the underlying civil action.

Judge Branch speaks about cancel culture at Yale

 She joined Judge Ho and spoke at Yale.  Per Reuters:

Branch, a member of the Atlanta-based 11th U.S. Circuit Court of Appeals who is the only judge to publicly join Ho's boycott, said that while universities have been hesitant to punish disruptive students, "fatigue is growing for disruptive protests."

Asked by attendees what it would take for them to end their planned boycott of Yale students, both judges held out the possibility they could abandon it before it takes effect beginning with the class of 2023.

Ho said he understood that Yale appeared to recognize that they "clearly need a massive course correction."

Yale Law School dean Heather Gerken in a letter to alumni on Oct. 12 outlined moves the school has made to "reaffirm our enduring commitment to the free and unfettered exchange of ideas." And she has invited Ho and Branch to speak at another event next year.

"We're watching," Branch said. "We have not only seen some positive developments on campus and campuses, but we've gotten a lot of feedback since we have been here. And I know I'm encouraged by some of the changes that I see that are occurring."

Third Circuit: Loss means actual loss, not intended loss

This is a biggie from the Third Circuit.

In U.S. v. Banks, the court held loss, for sentencing guidelines purposes, means actual, and not intended, loss:

The Guideline does not mention “actual” versus “intended”
loss; that distinction appears only in the commentary. That
absence alone indicates that the Guideline does not include
intended loss.49
The government concedes that “the presumption is that
a word carries its ordinary meaning (and thus may resolve its
ambiguity).”50 We agree. The ordinary meaning of “loss” in
the context of § 2B1.1 is “actual loss.” This result is confirmed
by dictionary definitions of “loss.”51 

***

Our review of common dictionary definitions of “loss” point
to an ordinary meaning of “actual loss.” None of these
definitions suggest an ordinary understanding that “loss”

means “intended loss.” To be sure, in context, “loss” could
mean pecuniary or non-pecuniary loss and could mean actual
or intended loss.55 We need not decide, however, whether one
clear meaning of the word “loss” emerges broadly, covering
every application of the word. Rather, we must decide
whether, in the context of a sentence enhancement for basic
economic offenses, the ordinary meaning of the word “loss” is
the loss the victim actually suffered.56 We conclude it is.
Because the commentary expands the definition of
“loss” by explaining that generally “loss is the greater of actual
loss or intended loss,”57 we accord the commentary no weight.
Banks is thus entitled to be resentenced without the 12-point
intended-loss enhancement in § 2B1.1.58

Timing Is Everything

By Michael Caruso 

I rarely write about pending cases, but this case caught my attention as a former line cook and current lawyer.

Recently, Amanda Ramirez filed a $5 million class action lawsuit against Kraft Heinz Foods Company in Miami—the Hon. Beth Bloom is presiding. The lawsuit doesn't need any embellishment. Here are the allegations (slightly paraphrased but CAPS in original):

1. Kraft sells microwavable single-serve cups of mac and cheese represented as "READY IN 3½ MINUTES" under the Velveeta brand.

2. The statement "ready in 3½ minutes" is false and misleading because the mac and cheese takes longer than 3-and-a-half minutes to prepare for consumption. 

3. There are four steps in preparing the mac and cheese:

      a. Consumers must "REMOVE lid and Cheese Sauce Pouch;

      b. Next, they must "ADD water to fill the line in the cup. STIR."; 

      c. Third, "MICROWAVE, uncovered, on HIGH 3-1/2 min. DO NOT DRAIN."; 

          and

      d. Finally, they should "STIR IN contents of cheese sauce pouch." 

4. Kraft notes that the "CHEESE SAUCE WILL THICKEN UPON STANDING." 

Here's the crux of the suit: "Consumers seeing 'ready in 3½ minutes' will believe it represents the total amount of time it takes to prepare the [mac and cheese], meaning from the moment it is unopened to the moment it is ready for consumption. 

However, the directions outlined above show that 3-and-a-half minutes is just the length of time to complete one of several steps. The label does not state the mac and cheese takes '3½ minutes to cook in the microwave,' which would have been true."

Ms. Ramirez then states the obvious: "To provide consumers with mac and cheese that is actually 'ready in 3½ minutes,' it would need to be cooked in the microwave for less than 3-and-a-half minutes so that all the preparation steps could be completed in the 3-and-a-half minute timeframe. Consumers are misled to expect the mac and cheese will be ready for consumption in a shorter amount of time than it really takes to prepare."

Exactly. 

I understand that Tarantino has acquired the film rights.

 

Ramirez v. Kraft Heinz, 22-cv-23782-BB