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
Congrats to blogger John Byrne, who was part of the team who heard those two magic words -- not guilty -- before Judge Williams last week. It was an interesting case involving monkeys... yes, monkeys:
A Cambodian official accused of illegally importing wild, long-tailed macaque monkeys into the United States that were destined for Miami was acquitted Friday of conspiracy and smuggling charges after a two-week federal trial. Masphal Kry, 47, the deputy director of the Department of Wildlife and Biodiversity for the Cambodian Forestry Administration, had been under home confinement in Virginia since his arrest in November 2022 at John F. Kennedy International Airport in New York.
Now, Kry is back at home with his family in Cambodia. “He should never have been charged, and we are grateful to the jury and the court for seeing that justice was done in this case,” said lead counsel, Mark MacDougall, of Washington, D.C., who worked on Kry’s defense with Coral Gables attorney John Byrne.
Kry was the only defendant named in an indictment to face trial in Miami. Seven other defendants from Phnom Penh, Cambodia’s capital, and Hong Kong, including Kry’s boss, the general director of the Cambodian Forestry Administration, are at large.
Disney and the State of Florida appear to have buried their respective hatchets. As we noted in a post a few months ago, Florida prevailed over Disney in a federal lawsuit arising out of the Northern District of Florida that had accused the State of retaliating against Disney for speaking out against Gov. DeSantis and certain legislation passed by the State. Disney has pressed pause on its appeal of that ruling. And now, in a settlement announced yesterday, Disney and Florida have resolved state court litigation between the parties. The Herald covers it here.
The media is characterizing the settlement as victory for the State. At the Central Florida Tourism Oversight District Board Meeting, Miami-based attorney Paul Huck outlined the settlement details for the board. The YouTube clip summarizing the settlement begins at 39:30. But, big picture, the restrictive covenants that the old Reedy Creek Improvement District Board passed at the eleventh hour to saddle the new Governor-appointed board are now null and void.
Sounds like a normalizing of relations. Here's a quote from Vice Chair of the Central Tourism Oversight Board, Charbel Barakat: “With this settlement, which is complete and significant, we are eager to work with Disney.”
Well, the court is soliciting applicants for the two open spots. A bulk email went out this morning:
The Judicial Conference of the United States has
authorized the appointment of two full-time United States Magistrate Judges for
the Southern District of Florida at Miami, Florida.These appointments will succeed incumbents
who were confirmed as United States District Judges.The term of office is eight years.
Interested persons may contact the Clerk of the District
Court for additional information and application form.The application form is also available on the
Court's websitehttps://www.flsd.uscourts.gov/.Applications must be submitted only by
applicants personally to; FLSD_magistratejudgerecruitment@flsd.uscourts.gov
no later than 11:59 p.m. on Sunday, March 31, 2024.
For many years, the culture in this District was that magistrate judges had little chance at becoming a district judge. But that has changed. Two of last three judges came from the magistrate bench. It will be interesting to see if that continues.
Federal agents raided the Miami area home of rap mogul Sean Combs, better known as Diddy, reports say. Diddy owns a residence at 1 Star Island, which was previously owned by Gloria and Emilio Estefan and Diddy purchased for $35 million in 2021. The raid came weeks after a lawsuit alleged that Diddy was the leader of a criminal enterprise that could qualify as a “widespread and dangerous criminal sex trafficking organization.”
That's the title of Justice Breyer's new book, and he's making the rounds promoting it. This morning he was on Meet The Press. Here's the NBC report:
Former Justice Stephen Breyer described the 2022 leak of the Supreme Court’s decision to overturn Roe v. Wade as “unfortunate” and sidestepped questions about whether justices had been working on a compromise ruling behind the scenes.
In
an interview with NBC News' "Meet the Press," Breyer didn't say he was
upset about the leak while noting that in general he tried to "avoid
getting angry" when he was on the bench.
"You
try to avoid getting angry or that — you try in the job — you try to
remain as calm, reasonable and serious as possible. I think it was
unfortunate," he said of the publication of the draft decision in the
Dobbs v. Jackson Women’s Health Organization case.
Asked
directly whether the justices had discussed a potential compromise to
limit access to abortion at 15 weeks, Breyer told "Meet the Press"
moderator Kristen Welker, "Well, you know as much about that as I do."
“The normal situation is before something is written in the
conference, people in some form or other will discuss what they’re
thinking of writing, not always and not identical. But there’s usually
some discussion,” Breyer said of the process leading up to court
decisions.
Can’t
Touch This: SCOTUS Unanimously Decides That Inconsistent Acquittals Bar Retrial.
First, thank you to David Oscar
Markus and John R. Bryne for allowing me to submit this guest post. This post
will cover the Supreme Court’s recent opinion in McElrath v. Georgia, the Court’s latest decision regarding the Double Jeopardy
Clause and inconsistent verdicts. This issue was the subject of the 2024
Gibbons National Criminal Procedure Moot Court Competition, where my partner
Kaitlin Prece and I represented the University of Miami School of Law. I would
also like to thank our dedicated coaches, Adam Stolz and Luis Reyes, for their
guidance and support throughout the competition.
UPDATE -- David Lat's original post has a number of updates and he has written "an epic" follow-up post about Cannon and her clerks here.
The legal community is abuzz with this David Lat report that two of Judge Cannon's law clerks have resigned:
Judge Cannon has had at least two law clerks quit on her, according to
multiple sources—including individuals who serve in the U.S. District
Court for the Southern District of Florida, where she sits.
***
What does Judge Cannon have to say about clerks quitting on her? Over
the past few days, I have sent multiple emails to the Public
Information Office for the Southern District of Florida and to Judge
Cannon’s chambers, requesting comment on reports that at least two of
her clerks have departed before the scheduled end of their clerkships. I
have received read receipts, but no responses (even though, in my
experience, subjects are eager to warn me off bad information—for which
I’m always grateful). If I do hear back, I will immediately update this
post, of course.
I should be clear about what I don’t
know. My sources have been circumspect so far, and despite my best
efforts, I have been unable to determine precisely why these clerks
quit, when they departed, and if they have already been replaced or the
Cannon chambers is operating short-staffed.3
But
based on my experience, I believe that once the fact of the clerks’
quitting becomes public, the floodgates will open. Details about the
Cannon clerk departures will become more widely known, whether reported
by me or others. Additional information about other personnel issues in
her chambers—possibly involving employees other than clerks, such as
judicial assistants or courtroom deputies—could emerge. So one reason
I’ve decided to publish this post, despite lacking certain key details,
is to prime the pump—to encourage sources to come forward with more
information, and to encourage other journalists to follow up on my
reporting.
Detra Shaw-Wilder has been an attorney in private practice at Kozyak Tropin & Throckmorton in Coral Gables, Florida since 1994, rising from associate to partner. From 2015 to 2017, Ms. Shaw-Wilder was managing partner of the firm and has served as general counsel for the firm since 2017. She received her J.D. from the University of Miami School of Law in 1994 and her B.S. from the University of Florida in 1990.
You may remember the case of Irfan Khan. He was indicted back in 2011 to a lot of publicity about terrorism charges (mostly as a result of numerous press conferences that the U.S. Attorney's office held). His lawyers, the great Michael Caruso and wonderful Sowmya Bharathi, repeatedly said he was innocent. And yet he was detained because the prosecutors beat the terrorism drum.
Turns out, his lawyers were right -- Khan was innocent. Before trial, the government dropped all charges.
Khan sued, saying there was no probable cause and that the prosecution was malicious. He's been fighting for many many years, and the case was recently tried to the bench before Chief Judge Altonaga. She ruled for Khan, that it was malicious prosecution.
Good for him. And good for our Chief Judge, who isn't afraid to do the right thing.
Today, MLFA received an historic court
ruling in the case of Khan v. United States as to government liability
for malicious prosecution of an American Muslim. Irfan Khan was
arrested and indicted for Material Support of Terrorism in May of 2011.
He spent more than 317 days in solitary confinement while his wife and
children were sleeping on floors as they were forced out of their
apartment due to the false allegations of terrorism against Mr. Khan.
After almost 11 months in custody, the government released Mr. Khan and
dropped the charges – with no explanation or apology.
In
2015, MLFA partnered with Morgan & Morgan, the largest plaintiff’s
law firm in the country, which had brought a civil action against the
United States on Mr. Khan’s behalf to hold the government accountable
for their actions against Mr. Khan. After a twelve-year fight over
classified discovery and continuous obstruction by the government, in
February of 2024, this case finally went to trial before Chief Judge
Altonaga in Miami, Florida (1:13-cv-24366-CMA, FLSD). Over a four-week
trial, MLFA supported and participated with Morgan & Morgan’s trial
lawyers to demonstrate the government’s liability. Today, in an
historic court ruling, Chief Judge Altonaga found that the government
lacked probable cause in all stages of the prosecution of Mr. Khan, and
that the actions of the F.B.I. agents constituted legal malice. This is
the first time in more than 20 years since 9/11 that the government has
been held civilly liable for their actions in prosecuting American
Muslims. A hearing to determine the amount of financial damages awarded
to Mr. Khan will be set for late summer, 2024.
And this wouldn't be a Khan post, if I couldn't post this all-time great clip:
The Complaint is available at this link. The case has been assigned to Chief Judge Altonaga. Lisa Willis, from the DBR, covers the lawsuit here:
Former President Donald Trump sued ABC and network host George Stephanopoulos on Monday in Miami federal court after Stephanopoulos said on the air the former U.S. president had been found liable for rape.
Trump’s Miami legal team plans to prove the statements were defamatory.
“President Trump was never found liable for rape,” said Alejandro “Alex” Brito, of Brito PLLC.
Brito’s firm filed the defamation lawsuit in the Southern District of Florida against ABC, ABC News, and Stephanopoulos on behalf of Trump.
“[Trump] was accused [on the program] of engaging in rape, and that is, from our estimation, a clear defamatory statement that would meet the requirements of serving as a basis for a defamation per se claim,” Brito said. The two counts in the complaint are defamation per se and defamation per quod.
During last Sunday’s show, Stephanopoulos questioned Rep. Nancy Mace on her stance as a rape victim supporting the Republican party presidential candidate and former president in light of the May jury verdict in his recent civil trial brought by E. Jean Carroll. “Why are you supporting someone who has been found liable for rape?” Stephanopoulos asked Mace, who said she was “offended” that the host was trying to “shame me as a rape victim.”
Mace previously revealed she was raped at 16.
“We reached out to ABC and ABC News on Sunday immediately following the news reporting and asked for an apology and a retraction,” Brito said. “And rather than acknowledge that Stephanopoulos crossed the line and made a mistake and provide us with such a retraction, all ABC did was change the headline of a print of this story.”
The Supreme Court case is Pulsifer and it demonstrates that today's Court is one of the most prosecution friendly in a long long time. I'm sure Scalia would have ruled for the defendant here and I bet he would have carried a majority. Instead, Justice Kagan takes the government's position that and means or, which is pretty devastating to thousands of prisoners who would have received relief under the First Step Act.
Justice Gorsuch, who is trying to take over the Scalia mantle as willing to rule for a criminal defendant if that's what the text says, wrote an incredible dissent. It's worth a read.
Justice Elena Kagan’s opinion for a sharply divided court in Pulsifer v. United States resolves an ambiguity in the provisions added to federal sentencing law in the First Step Act of 2018, coming down firmly on the side of the government. The problem involves how to read a “safety valve” in federal criminal sentencing laws, which allows defendants to avoid the often lengthy mandatory minimum sentences scattered throughout the federal criminal code. The safety valve requires the defendant to satisfy a laundry list of each of five separate rules.
This case involves the first of those rules, which assesses the defendant’s criminal history. Generally speaking, the point of the provision is that defendants with a serious criminal history are not eligible for the safety valve, and thus must serve the normal mandatory minimum sentence. Before the First Step Act, the criminal history provision excluded all defendants with more than one criminal history point; the First Step Act relaxed that provision, adopting the view that it made the safety valve unreasonably narrow. What the 2018 law substituted was a rule that involves three separate tests, which Kagan describes as testing for “more than 4 criminal history points,” a “3-point offense,” and a “2-point violent offense.” Treating those three tests as A, B, and C, Kagan quotes the statute’s limitation of the safety valve to a defendant who “does not have” A, B, “and” C.
The dispute in the case turns on the meaning of the “and” between subparagraphs B and C. For its part, Kagan explains, “the Government contends that the phrase … creates a checklist with three distinct conditions. [Thus], a person fails to meet the requirement … if he has any one of the three.” In contrast, the defendant contends that the phrase ‘does not have A, B, and C’ sets out a single, amalgamated condition for relief, [which] a defendant … fails … only when he has all three of A, B, and C.” Kagan ultimately agrees with the government’s harsher view: Defendants lose the safety valve if they have A, they lose if they have B, and they lose if they have C.
Looks like it’s an amazing trip. The Jerusalem Post covers it here:
A delegation of 14 US federal judges arrived in Israel on Sunday for a week-long educational tour on the impact of the October 7 massacre and its challenges to the Israeli legal system and the laws of war.
The delegation, facilitated with the help of the World Jewish Congress, also saw the judges visit the Supreme Court of Justice and meet with Justice Ofer Grosskopf.
"We came to learn about how the Israeli legal system works," said Florida Southern District Court Judge Roy Altman, one of the organizers of the trip.
The Jewish Venezuelan-born judge—the youngest federal judge appointed in the US—wanted to know how the legal system managed to address terrorism in general and post-October 7. He noted that the United States saw a lot of new security legislation introduced since the September 11 terrorist attacks, and the discourse centered around the balance of individual rights against safety concerns.
Altman said he was interested in learning "How is Israel managing that balance?"
***
Florida Southern District Court Senior Judge Rober Scola said that he and the entire world were hoping for peace in the Middle East and hoped that Israelis and Palestinians would one day cease fighting over the land and achieve harmony.
On Monday, the delegation spoke to a Palestinian activist, who Scola said impressed upon him the needs required to achieve peace. He hoped that the activist was not a lone voice in the Palestinian community but represented a broader consensus.
Altman said that the judges were there to learn from all sides; in addition to hearing from the Palestinian activist, they also "heard from the acting American ambassador at the time of October 7, so we also heard the American perspective."
While he hoped to see advancement toward peace, Scola said that trust and the quest for peace were going to require the return of hostages, and it had to be appreciated that it was going to take a while for Israelis to process the trauma of October 7.
"One thing that is palpable is how devastating this attack has been to the people here," said Scola.
1. FACDL-Miami calls for reform at the Miami SAO. Their statement is here.
2. There's a new federal rule to prevent forum shopping. The NYT story:
When
anti-abortion activists sued the Food and Drug Administration in 2022
seeking to overturn the approval of the abortion drug mifepristone, they
filed their suit in the federal court in Amarillo, Texas, where it was
all but assured that the case would be heard by Judge Matthew J.
Kacsmaryk, an outspoken opponent of abortion.
Judge Kacsmaryk, the sole federal judge in Amarillo, wound up agreeing with the plaintiffs that the drug was “unsafe.” In his ruling,
he invalidated the F.D.A.’s 23-year-old approval of the drug and opened
a new front in the post-Dobbs reckoning over abortion rights.
The suit — and the role of Judge Kacsmaryk, who handles 95 percent
of the Amarillo civil caseload — was one of the most striking recent
examples of “forum shopping,” where plaintiffs to try to cherry-pick
sympathetic judges.
Now, forum shopping is about to get harder.
The panel of federal judges who set policy for the rest of federal judiciary on Tuesday announced a new rule intended to curb the practice in civil cases with nationwide implications, like the mifepristone suit.
In
such cases, where plaintiffs are seeking a sweeping remedy, like a
nationwide injunction, the judge will be assigned at random from across
the district instead of defaulting to the judge or judges in a
particular courthouse.
A week after
Justice Amy Coney Barrett chastised Justice Sonia Sotomayor for choosing
“to amplify disagreement with stridency” in a Supreme Court decision
on former President Donald J. Trump’s eligibility to hold office, the
two women appeared together on Tuesday to discuss civics and civility.
They
gave, for the most part, a familiar account of a collegial court whose
members know how to disagree without being disagreeable.
“We
don’t speak in a hot way at our conferences,” Justice Barrett said,
referring to the private meetings at which the justices discuss cases.
“We don’t raise our voices no matter how hot-button the case is.”
Justice Sotomayor, who usually gives a sunny description of relations between the justices, registered a partial dissent.
“Occasionally someone might come close to
something that could be viewed as hurtful,” Justice Sotomayor said.
When that happens, she said, a senior colleague will sometimes call the
offending justice, suggesting an apology or other way of patching things
up.
Similar interactions can happen
if a draft opinion is too sharp, she said. “There is dialogue around
that, an attempt to find a different expression,” she said.
4. The U.S. Marshals want more $$ to protect the Justices. Via Bloomberg:
The US Marshals Service is seeking $28 million to staff permanent
protective details for the Supreme Court justices’ homes, a task it says
is straining agency resources nationwide, according to a Justice
Department fiscal 2025 budget proposal.
The Marshals Service—which
provides protection for members of the federal judiciary—has been
temporarily deploying deputy US marshals from each of the country’s 94
judicial districts to handle the 24/7 security for the justices’ nine
main residences, plus one vacation home, according to budget documents published Monday.
In
fiscal 2023, 23% of deputy US marshals supported at least one
residential protection rotation at a justice’s home lasting two to three
weeks, according to the budget document. The request says that the
service currently sends each new graduating class of deputy US marshals
“immediately” to the justices’ homes, where they work for 75 days.
The
around-the-clock protection began at the request of Attorney General
Merrick Garland in May 2022, after the leak of a draft opinion ahead of
the court’s overturning of the constitutional right to abortion, the
Marshals said.
The Marshal Service said that, as it deals with
other security requests tied to “high-visibility” cases, it needs
permanent staff to secure the homes. The service said that full-time
personnel is preferred, especially those with specific training who can
work toward “the best outcome if an attack or other threat event should
occur.” It also cites “the extreme level of impact to the government and
the nation if the Justices are not properly safeguarded” in making the
request.
The blog has addressed this question a bunch of times and it's time to ask it again in light of what happened before Judge Wolfson in state court. Here's the AP coverage, and Rumpole covers it here.
Although it is an epidemic in both systems, my sense is that prosecutorial misconduct happens less frequently in Florida state court than in federal court, mostly because Florida has depositions and more open discovery. Do you agree?
Also, when it does happen, judges are more likely to call it out in state court and there are more immediate consequences. In this case, the prosecutor resigned. And Kathy Rundle issued a statement. When does that happen in fed-land?
Much more needs to be done in both systems if there's going to be a real deterrent.
Judges are always proud of their law clerks. But imagine the pride when you hear that your two former clerks are arguing against each other in the 11th Circuit. Here's Ariel Lett and Zach Vosseler, who both clerked for Judge Gayles, after their argument before the appellate court.
That's her with her children and Chief Judge Altonaga.
That means all three new judges are in and working. Congratulations again to all three!
Cases will now start getting transferred.
Let the fun begin.
Update with a picture of the swearing in of David Leibowitz, with his wife and son, by Judge Marcus. Judges Altonaga, Moreno, and Jordan were also present
UPDATE -- check out Robert Kuntz' comment in the comment section, theorizing that the metadata debacle wasn't incompetence but was intentional. I doubt it because it would not surprise me for a second that SCOTUS just does not understand basic tech issues. Your thoughts?
It's really hard to believe, but the Supreme Court forgot to wipe the metadata from the Trump opinion that came out yesterday. Internet sleuths found that the three liberal Justices' "concurrence" actually started out as a partial dissent by Justice Sotomayor. Slate tells the story here:
The Supreme Court’s decision on Monday to keep Donald Trump on Colorado’s ballot was styled as a unanimous one without any dissents. But the metadata tells a different story. On the page, a separate opinion by the liberal justices is styled as a concurrence in the judgment, authored jointly by the trio. In the metadata of the link to the opinion posted by the court, however, this opinion is styled as an opinion concurring in part and dissenting in part, authored not by all three justices but by Sonia Sotomayor alone. Even a techphobic reader can discern this incongruity through careful copying and pasting, piercing the facade of unanimity that the conservative justices sought to present.
What happened? Most obviously, the Supreme Court rushed out this opinion and forgot to check the metadata. The court, after all, scheduled the opinion’s release only one day earlier, on Sunday afternoon, evidently to hand it down before Tuesday’s Colorado primary. Moreover, the justices did not take the bench to announce the opinion, as they usually do—probably because they had not all planned to be in D.C.—further proving that it was a last-minute release. The deeper question remains, of course: Why was an opinion originally authored by a lone justice as a partial dissent transformed into a concurrence authored by all three liberals together?
In other news, the 11th Circuit bench-slapped DeSantis and Florida for passing a law called the Stop W.O.K.E. Act that prohibited woke mandatory workplace training. It obviously violated the First Amendment. Per Judge Grant, joined by Wilson and Brasher:
This is not the first era in which Americans have held widely
divergent views on important areas of morality, ethics, law, and
public policy. And it is not the first time that these disagreements
have seemed so important, and their airing so dangerous, that
something had to be done. But now, as before, the First
Amendment keeps the government from putting its thumb on the
scale.
The State of Florida seeks to bar employers from holding
mandatory meetings for their employees if those meetings endorse
viewpoints the state finds offensive. But meetings on those same
topics are allowed if speakers endorse viewpoints the state agrees
with, or at least does not object to. This law, as Florida concedes,
draws its distinctions based on viewpoint—the most pernicious of
dividing lines under the First Amendment. But the state insists that
ordinary First Amendment review does not apply because the law
restricts conduct, not speech.
We cannot agree, and we reject this latest attempt to control
speech by recharacterizing it as conduct. Florida may be exactly
right about the nature of the ideas it targets. Or it may not. Either
way, the merits of these views will be decided in the clanging
marketplace of ideas rather than a codebook or a courtroom.
For you First Amendment scholars out there, the Eleventh Circuit just granted re hearing en banc in McDonough v. Garcia, 90 F.4th 1080, 1086 (11th Cir. 2024). The case involved a community gadfly-type who was barred from attending Homestead city council meetings.
In the opinion, Judge Grant surveyed Supreme Court and Eleventh Circuit cases discussing the four types of forums--traditional public forums, designated public forums, limited public forums, and non-public forums. The panel, seemingly begrudgingly, ruled that city council meetings fell into the more speech friendly "designated public forum" category, reversing the district court's grant of summary judgment to Homestead. But it seems like the Eleventh Circuit may be interested in moving those meetings into the less speech friendly "limited public forum" bucket (meaning the city can restrict speech so long as those restrictions are viewpoint neutral and reasonable).
Attached is the panel opinion, which is a must read if you're a law student about to take the final in your First Amendment class.
First, a big congrats to our three new judges. Jackie Becerra, David Leibowitz, and Melissa Damian were all confirmed this week. And Judge Becerra was sworn in yesterday, which means she will take the Miami seat. The next judge who is sworn in will spend a short amount of time in Ft. Lauderdale and then to Miami. The third judge to be sworn in will be in Ft. Lauderdale for a while. Current judges: get your transfer orders ready!
In case-related news, Manuel Rocha, the Cuban spy, announced yesterday that he would be pleading guilty. That was FAST. From the AP's Joshua Goodman:
A former career U.S. diplomat told a federal judge Thursday he will plead guilty to charges of working for decades as a secret agent for communist Cuba, an unexpectedly swift resolution to a case prosecutors called one of the most brazen betrayals in the history of the U.S. foreign service.
Manuel Rocha’s stunning fall from grace could culminate in a lengthy prison term after the 73-year-old said he would admit to federal counts of conspiring to act as an agent of a foreign government.
Prosecutors and Rocha’s attorney indicated the plea deal includes an agreed-upon sentence but they did not disclose details at a hearing Thursday. He is due back in court April 12, when he is scheduled to formalize his guilty plea and be sentenced.
The brief hearing shed no new light on the question that has proved elusive since Rocha’s arrest in December: What exactly did he do to help Cuba while working at the State Department for two decades? That included stints as ambassador to Bolivia and top posts in Argentina, Mexico, the White House and the U.S. Interests Section in Havana.
“Ambassador Rocha,” as he preferred to be called, was well known among Miami’s elite for his aristocratic, almost regal, bearing befitting his Ivy League background. His post-government career included time as a special adviser to the commander of the U.S. Southern Command and more recently as a tough-talking Donald Trump supporter and Cuba hardliner, a persona friends and prosecutors say Rocha adopted to hide his true allegiances.
