Happy New Year!

 I hope everyone has a great new year!

To celebrate, here are some of the best moments this year at SCOTUS, from Bloomberg:

Justice Amy Coney Barrett gave an unexpected hypothetical in a free speech fight over a “Trump too small” trademark that could have been seen as a dig at the former president who appointed her to the bench. 

Concerned about how the case could impact copyright law, Barrett asked what would happen if someone “wants to write a book called ‘Trump Too Small’ that details Trump’s pettiness over the years and just argues that he’s not a fit public official.” 

Barrett wanted to know what analysis the court would apply in reviewing whether a copyright restriction was permissible. Deputy Solicitor General Malcolm Stewart, who argued the government didn’t violate anyone’s constitutional rights in refusing to trademark the phrase, explained that copyright, unlike trademark law, has been used to foster free expression.

Judge Tjoflat keeps the judges working

 I’ve never seen an opinion start like this. Have you?

Let's Just Cut to the Chase, Please

Let's Just Cut to the Chase, Please 

GUEST POST BY MICHAEL CARUSO

Yesterday, the 11th Circuit decided U.S. v. Sotis (Mizelle (M.D. Fla.) with William Pryor and Marcus joining) and affirmed the defendant’s convictions for illegally exporting scuba diving equipment to Libya.

At trial, government agent Wagner testified to his interactions with Sotis. On cross-examination, the co-defendant's counsel asked Wagner whether civil penalties were an option he could have pursued instead of criminal penalties. On re-direct, the government asked whether Wagner had seen a case with “this level of willfulness.” Sotis objected, but only to Wagner’s comparison to previous cases.

On appeal, the Court concluded that Wagner’s opinion was improper but that allowing it was not plain error. Rule 701 restricts a lay witness to testimony rationally based on the witness’s perception, which is helpful to determining a fact in issue and that is not based on specialized knowledge.  Wagner’s testimony that he had never seen so much willfulness was improper because it purported to tell the jury about Sotis’s state of mind—something to which neither he nor any other witness could testify based on his rationally based perception. Permitting his testimony was error. But "harmless." In other words, mess around prosecutors, and you WON'T find out.

The evidence ruling seems clear. Interestingly, DOJ lawyers argued on appeal that Wagner's "opinion was a rational inference based on his personal participation and observations as a special agent for the Commerce Department and therefore did not exceed the permissible bounds of witness testimony." I wonder what the lesson is here. Don't ask this type of question, or ask, and even if found to be an error, the conviction will be saved by the harmless error rule.

What also should be clear but often is not is what may happen after a party "opens the door." The prosecutors argued, and the trial judge found that Sotis had opened the door. I've always believed, however, that a lawyer cannot open the door to the introduction of inadmissible evidence. The Court didn't address this point. Perhaps the Court felt that something that should be understood didn't have to be said.

Happy Holidays all.

The blog will be very slow over the next two weeks.  

Judges, check out this order.  We hope you agree!

I'm not sure I can say it any better than the excellent Federal Magistrate Judge Andrew Edison.

I too do not want anyone to work the next two weeks, and hope that you can spend as much time as you can with family and friends. pic.twitter.com/LoS4uU3SAL

— Raffi Melkonian (@RMFifthCircuit) December 19, 2023

Alex Saab returned to Venezuela

Well this will be a Merry Christmas for Alex Saab.

He was indicted before Judge Scola in a sprawling indictment alleging FCPA and other violations.  He was sitting at FDC.  But Venezuela struck a deal with the U.S. to return up to 10 Americans in custody in exchange for Saab.  From the AP:

The Biden administration has released a close ally of Venezuelan President Nicolás Maduro in a swap for jailed Americans, The Associated Press has learned.

Alex Saab, who was arrested on a U.S. warrant for money laundering in 2020, was released from custody Wednesday. In exchange, Maduro will free some, if not all, of the at least 10 U.S. citizens who remain imprisoned in Venezuela, according to a person familiar with the situation who was not authorized to discuss the matter publicly and spoke on condition of anonymity.

The White House declined to comment.

On Friday and again on Monday, two docket entries were filed under seal in the long-dormant criminal case out of federal court in Miami, an indication that a behind-the-scenes deal was in the works.

The U.S. has long accused Saab of being a bag man for Maduro. Saab’s release would be seen as a major concession to Maduro, an authoritarian leader who is himself the target of a $15 million U.S. reward for anyone bringing him to New York to face drug trafficking charges.

The deal is also likely to anger the Venezuelan opposition, who have of late criticized the White House for standing by as the leader of the OPEC nation has repeatedly outmaneuvered the U.S. government after the Trump administration’s maximum pressure campaign failed to topple him.

 

 

Chief Justice Roberts on Justice Sandra Day O'Connor

 

Chief Justice John Roberts begins his tribute to Justice O'Connor: "It has been said that the Supreme Court is like a family, a family composed entirely of in-laws." #SCOTUS pic.twitter.com/q4E01hJjdI

— CSPAN (@cspan) December 19, 2023

Mark Meadows' Removal Claim heard in the 11th Circuit (UPDATED with opinion)

Well, I wrote this post about the oral argument, and then the Court decided the case.  That was quick!  Here's the opinion by Chief Judge Pryor, denying Meadows removal claim.  The intro ends this way: "Because federal-officer removal under section 1442(a)(1) does not apply to former federal officers, and even it it did, the events giving rise to this criminal action were not related to Meadows's official duties, we affirm."

Judge Rosenbaum concurs and describes a "nightmare scenario" (not protecting former federal officers from state prosecutions) that "keeps [her] up at night."

Both opinions are worth your read -- two of our best writers on display.  And both were podcast guests, if you want to hear more about their writing styles! :) 

***

The original post about oral argument:

 Politico covered the argument here:

A federal appeals court panel took a skeptical stance Friday toward an effort by former White House chief of staff Mark Meadows to have a federal court take and potentially dismiss the state charges pending against him for allegedly trying to tamper with the 2020 presidential election results in Georgia.

All three members of the 11th Circuit Court of Appeals panel raised sharp questions about Meadows’ argument that his role as Donald Trump’s chief of staff requires federal courts — rather than the courts in Fulton County, Ga. — to oversee the case in which he, Trump and 17 others were charged in an alleged racketeering conspiracy.

During a 50-minute oral argument session in Atlanta, the appeals judges expressed particular skepticism about Meadows’ effort to claim that his work to help Trump secure a second term even after states had certified his defeat — conduct at the heart of the charges against him in Georgia — were part of his official chief-of-staff duties.

“That just cannot be right,” said Judge Robin Rosenbaum, an appointee of President Barack Obama. She specifically cited “electioneering on behalf of a specific political candidate” and “an alleged effort to unlawfully change the outcome of the election” as examples of what would fall outside a government official’s duties.

 

Peter Park(er?) passes California bar at age...

 ...17.

 Woweee.   

He's now your friendly neighborhood D.A.

More from the ABA:

Park’s father brought up the idea of attending law school when Park was only age 13, the younger Park told the Washington Post. Park’s father had discovered that his son could apply to law school in California without an undergraduate degree if he passed the College Level Examination Program tests.

Park began studying, He passed the CLEP exams while he was still in eighth grade and began applying to law schools.

Park enrolled in the four-year online program at the Northwestern California University School of Law at the same time that he was beginning high school. Park was able to graduate high school in 2021, at the end of 10th grade, by taking the California High School Proficiency Exam. Then he was able to devote full time to his law studies.

After Park passed the bar, his father self-published a book called Fast-Track Attorney: Passing the Bar at Age 17.

Park’s sisters are 16 and 13, and they are enrolled at the Northwestern California University School of Law. Park says the older sister plans to take the bar exam in July, and if she passes, she will surpass his age record.

Park told the San Francisco Chronicle that others could also follow in his footsteps.

City of Miami Loses Again in Ball & Chain Case

By John R. Byrne 

A while back, the blog covered the 60 million dollar verdict entered against City of Miami commissioner Joe Carollo based on his actions related to the Ball & Chain restaurant/bar. But there's also a lawsuit against the City itself for the same conduct. In an order entered Tuesday, the City lost its motion to dismiss. 

Thorough discussion in Judge Altman's opinion on constitutional claims, including Substantive Due Process and Equal Protection. Will be interesting to see if the City continues to fight the case.

City of Miami Order by John Byrne on Scribd

Michael Dreeban joins special counsel in SCOTUS and other moves

 The NY Times has the interesting story here about how the Special Counsel, now led by Michael Dreeban in the Supreme Court, has asked SCOTUS to take Trump's appeal directly and bypass the court of appeals.

In other SCOTUS news, the High Court has turned away the Esformes cert petition, setting up the potential retrial before Judge Scola.

One of the main trial lawyers for DOJ, Allan Medina (son of beloved court reporter Barbara Medina), has left the government and joined Goodwin.

New magistrate judge named

Back in October, the blog broke the news that the judges had voted Randy Katz as our newest magistrate judge.  However, Randy has withdrawn his name from consideration.  My understanding is that the newest nominee is Marty Fulgiera Elfenbein, a current AUSA.  

Marty was an associate at Kirk Caldwell and clerked for Judge Bloom.  

Congratulations!

Potential Lawsuits over FSU Snub

 

By John R. Byrne

If you're a college football fan, you know about the recent travesty of FSU being snubbed by the College Football Selection Committee. Did we really need to see Alabama in another college football playoff? Although there's no fixing it now, there may be a lawsuit coming. Governor DeSantis set aside $1 million in the state's upcoming budget for a lawsuit against the College Football Committee. And Senator Scott has already issued a letter to Boo Corrigan, the Chairman of the Committee, demanding emails, text messages, and the like regarding the selection process. Even a judge in our own district, Judge Singhal, made a lighthearted reference to the snub in a recent order.

Hopefully, the Seminoles can beat Georgia and the AP can name FSU national champ. 

New Podcast episode!

 

pictured: Randall Jackson (left), Tom Barrack, and Michael Schachter (right) FOR THE DEFENSE, HOLIDAY BONUS EPISODE: MICHAEL SCHACHTER AND RANDALL JACKSON FOR TOM BARRACK I hope everyone is doing great! For our 40th episode (!!), we have a really great one for you: Michael Schachter and Randall Jackson for Tom Barrack. This was a wild trial in New York, where Barrack was charged with FARA violations (being an unregistered agent of the UAE).  You can guess the result from the picture above, which was taken after the verdict.  I love how you can see the joy on their faces! Schachter and Jackson are real trial lawyers, and we discuss trial strategy from picking a jury to whether and how much to use PowerPoint to calling your client in a white collar case to the use of stories in opening and closing, and so on. I think you'll enjoy it. As always, you can catch this and other episodes on every podcast platform including Apple, Spotify and YouTube,  All other platforms can be accessed on this website.  Don't forget that last season qualified for Florida CLE and was listed at the end of the season finale (the Andrew Gillum episode). Hosted by David Oscar Markus and produced by rakontur   CONTACT: info@rakontur.com, dmarkus@markuslaw.com null

Miami Spy Game

By John R. Byrne

Pretty crazy story broken by Joshua Goodman, a reporter from the AP, about a former American diplomat who was allegedly a spy for Cuba. For two decades the man, Manuel Rocha, held top diplomatic posts on behalf of the United States in Bolivia, Argentina, and the U.S. Interests Section in Havana. All the while, he was living a double life, allegedly bringing intelligence back to Cuba. Part of his cover, apparently, was posing as an ardent "right-wing person," including as a major fan of former President Trump.

And it probably continued into his time at the private sector. In his post-government career, he served as a special advisor to the commander of the U.S. Southern Command. 

The U.S. Attorney's office in Miami charged him in a criminal complaint, posted here. He's being defended by Jackie Arango.

Criminal Complaint by John Byrne on Scribd

And means And, part 2. (UPDATED with Judge Jordan's memories of Justice O'Connor)

 We know from United States v. Garcon that in the 11th Circuit "and" means "and" for purposes of the safety valve provision of the Sentencing Guidelines.  (Another case involving the same issue was argued earlier this Term in the Supreme Court.)

Despite the en banc 11th Circuit already saying "and" means "and" for purposes of the Sentencing Guidelines, federal prosecutors and probation officers are taking the position that the word "and" means "or" in the new "Zero Point Offender" sentencing guideline provision, which provides that if you have no criminal history, you receive an additional two level reduction so long as certain other conditions are met.  One of the conditions is that:

"(10) the defendant did not receive an adjustment under §3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848." (emphasis added).

Seems pretty clear as a matter of statutory construction and binding precedent that to be disqualified, you'd have to receive an aggravating role enhancement AND be in engaged in a CCE.  If you don't have both, you would still qualify for the two level reduction.

And at least two district judges in our district have so held, overruling objections from local AUSAs and probation officers, who are urging judges to disregard Garcon.  It's wild to me that there are some prosecutors so invested in increasing a first time offender's sentence by two levels that they are willing to ask a judge to ignore a binding 11th Circuit case and a pretty basic, straightforward reading of the statute.  It's one thing if these prosecutors were arguing -- listen, we know the 11th Circuit has ruled the other way, but the case is pending in the Supreme Court and we'd like to preserve this issue.  And don't get me started on the probation officers... why do they have a say in this at all?  They are not lawyers and should not be arguing the guidelines.  It's maddening.

In any event, Justice O'Connor would have really enjoyed the statutory construction issue in Garcon. She was a true inspiration to so many.  Here are the statements of the Justices about her passing.  

Here's the Chief:

Statement of Chief Justice John G. Roberts, Jr.:

A daughter of the American Southwest, Sandra Day O’Connor blazed an historic trail as our Nation’s first female Justice. She met that challenge with undaunted determination, indisputable ability, and engaging candor. We at the Supreme Court mourn the loss of a beloved colleague, a fiercely independent defender of the rule of law, and an eloquent advocate for civics education. And we celebrate her enduring legacy as a true public servant and patriot.

R.I.P.

UPDATED -- Thanks to a commenter for pointing me to this AJC article, which quotes Judge Jordan extensively about Justice O'Connor (he clerked for her back in the late 80s):

He fondly remembered being invited to her Chevy Chase home in Maryland most Saturdays, when O’Connor would cook while discussing the following week’s cases with her clerks.

Tex-Mex was usually on the menu, Jordan said.

“The stuff that she made for us was very, very good,” he told The Atlanta Journal-Constitution. “Tacos, burritos, nachos. Things like that. It wasn’t all exclusively Tex-Mex, but that was, I think, the majority of her repertoire.”

...

On the occasional Saturday spent working in O’Connor’s chambers, Jordan said she would bring food from home. He said the weekend conferences were a special time for the clerks as O’Connor shared her detailed thoughts on cases.