Judge Cannon denies FPD's motion to recuse

 Here's the order, which starts this way:

THIS CAUSE comes before the Court upon Defendant Ryan Wesley Routh’s Motion to Recuse the undersigned (the “Motion”), filed on October 17, 2024 [ECF No. 48]. Defendant presumes my impartiality as a judicial officer but argues that recusal is warranted under the catch-all provision of the federal recusal statute, 28 U.S.C. § 455(a), and the Due Process Clause [ECF No. 48]. This is so, Defendant states, because a combination of circumstances creates an “appearance of partiality” due to the “unique facts and circumstances of this case” and my purported “relationship to the alleged victim” [ECF No. 48]. The United States opposes the Motion, maintaining that Defendant has failed to present a sufficient basis in law or fact to warrant recusal [ECF No. 52]. In Reply, Defendant reiterates his previously articulated arguments and advises of an additional matter which he states “could further add to the appearance of partiality”—namely, that I attended high school with one of the prosecutors in this case and attended his wedding nine years ago during my service as an Assistant United States Attorney in this district [ECF No. 62 p. 6].

Upon full review of the Motion, and fully advised in the premises, I see no proper basis for recusal. The Motion [ECF No. 48] is therefore DENIED.

There are a number of interesting lines in the motion:

Second, Defendant argues that recusal is warranted because former President Trump has made various public statements about me [ECF No. 48 pp. 6–8; ECF No. 62 p. 5]. As Defendant acknowledges, I have no control over what private citizens, members of the media, or public officials or candidates elect to say about me or my judicial rulings [see ECF No. 48 p. 7]. Nor am I concerned about the political consequences of my rulings or how those rulings might be viewed by “some in the media” [ECF No. 48 p. 7]. I have never spoken to or met former President Trump except in connection with his required presence at an official judicial proceeding, through counsel. I have no “relationship to the alleged victim” in any reasonable sense of the phrase [ECF No. 48 p. 1]. I follow my oath to administer justice faithfully and impartially, in accordance with the Constitution and the laws of this country. 28 U.S.C. § 453. And Defendant has identified no practice, much less an established practice, warranting a judge’s recusal because a party, witness, or alleged victim in a judicial proceeding makes public statements—positive or negative—about a judge who lacks any control over such statements.

***

This case, like the prior cited cases involving former President Trump, were randomly assigned to me through the Clerk’s random case assignment system. Period. I will not be guided by highly inaccurate, uninformed, or speculative opinions to the contrary.

***

Finally, Defendant identifies as an “additional matter” that I went to high school in the 1990s with one of the prosecutors assigned to this case and attended his wedding nine years ago while serving together as Assistant United States Attorneys in this district [ECF No. 62].2 This factor does not supply a basis from which a reasonable observer—equipped with all of the facts and circumstances—would question my impartiality. I maintained a professional friendship with the stated prosecutor during my time as a prosecutor (2013–2020), as I did with other colleagues within the United States Attorneys’ Office. As part of that professional friendship, I attended his wedding nearly a decade ago. I maintain no ongoing personal relationship with the prosecutor, nor have I communicated with him in years. In short, my personal friendship years ago with the prosecutor has no bearing or influence whatsoever on my impartial handling of this case or any other case in which he may appear as counsel of record. Nor has Defendant cited any authority to support the notion that a judge with former government service should recuse from a matter because, years later, a former colleague with whom the judge maintained a professional friendship appears in a case before her. That broad rule, absent more, would be destabilizing, and in any event, it does not supply a basis on this record to support disqualification.

11th Circuit rules that Trump's co-defendants cannot move their Georgia case to federal court

 The two opinions are here and here.  The Jeffrey Clark per curiam (W. Pryor, Rosenbaum, and Grant) opinion starts like this:

Jeffrey Clark appeals the order remanding his state criminal prosecution for conspiring to interfere in the 2020 presidential election and denying his request to remove the special purpose grand jury proceeding that preceded his criminal indictment. Clark argues that he is entitled to remove his state prosecution based on federal-officer jurisdiction, 28 U.S.C. § 1442(a)(1), and the special purpose grand jury proceeding based on federal-question jurisdiction, id. §§ 1331, 1441(a). We affirm.

Judge Rosenbaum concurs:

I agree with the Majority Opinion that Jeffrey Clark cannot remove his Georgia criminal prosecution to federal court under 28 U.S.C. § 1442(a)(1) (the “federal-officer removal statute”) because he is a former federal officer, and we have held that § 1442(a)(1) does not apply to former federal officers. But even if § 1442(a)(1) covered former federal officers, Clark still could not remove his Georgia prosecution to federal court under that statute. The federal-officer removal statute is not a get-out-of-statecourt-free card for federal officers. It allows a federal officer to remove his criminal prosecution from state court to federal court only if the action is “for or relating to any act under color of [their] office.” 28 U.S.C. § 1442(a)(1). But none of Clark’s charged conduct falls within the job description of his former positions as a federal officer. So Clark can’t satisfy the removal statute. 

Government responds (barely) to FPD's recusal motion

Is it me or is this a pretty bare-bones response from the government?  It's 1.5 pages and ends this way: "In summary, the Defendant’s motion does not present a sufficient legal or factual basis to support a determination that the Court should exercise its discretion to disqualify itself or otherwise recuse."

The FPD's office slammed the "conclusory response" in its 7-page reply.  It ends this way:

In short, the government does not accurately set forth the controlling legal standards governing Mr. Routh’s motion. It does not dispute any of the objective (and unique) facts upon which his motion is based. And its conclusory response, consisting of three inapt citations, otherwise fails to explain why the undisputed facts of this case might reasonably create an appearance of partiality in the mind of the public.

3. Finally, there is one new, additional matter that Mr. Routh must raise. 

After Mr. Routh filed his motion, the government advised defense counsel for the first time that one member of the prosecution’s team—Christopher Browne of the Justice Department’s National Security Section in Miami—attended high school with Your Honor, and Your Honor attended Mr. Browne’s wedding nine years ago. It is unclear why the government believed that this information was important enough to share with defense counsel but not important enough to include in its response. And it is unclear why, despite hundreds of able prosecutors in this District and around the country, the government elected to staff its team in this high-profile case with a prosecutor who enjoys a longstanding, personal relationship with the presiding judge. In the mind of the public, this fact could further add to the appearance of partiality.

The original post, discussing the PD's motion to recuse, is here.

Eleventh Circuit Rules on Havana Docks Case. Will it be the last time?

By John R. Byrne

A win for the cruise lines (at least for now) at the Eleventh Circuit in the Havana Docks case, a case that involves application of the Helms Burton Act. 

To set the stage, under the act, a US national who owns a claim to confiscated property has a private right of action against any person who traffics in that property. Havana Docks corporation brought a claim against various cruise lines, alleging that the Cuban government had confiscated property that it had the right to operate (e.g., docks and piers) and that the cruise lines "trafficked" in that property when using the docks and piers to bring tourists to Cuba between 2015 and 2019. 

We blogged many months ago about the win for Havana Docks at the district court level, which resulted in a $400m judgment against the cruise lines. But on appeal, two out of the three judges (Judges Pryor and Jordan) saw things differently.  The gist of their holding was that Havana Docks's right to operate the docks/piers (which flowed from a 99 year "concession" granted to it by the Cuban government) had expired in 2004, before the cruise lines' trafficking took place. 

But this case could be heading for en banc review. The majority conceded that the issue before them was "one of first impression" and "not easy." And Judge Brasher (who clerked for Judge Pryor, incidentally) dissented. Relying on the text on the statute, Judge Brasher reasoned (among other things) that the trafficking by the cruise lines didn't need to occur during the original concessionary period for Havana Docks to have a claim. 

If this goes en banc, it'll be hard to predict how this one will shake out...

Havana Docks 202310151 by John Byrne on Scribd

Fed PD moves to recuse Judge Cannon in Trump assassination case

 I've always respected and admired the Federal Public Defender's Office here in Miami.  Of course I'm biased because I'm an alum.  But alum or not, everyone must surely agree that they are courageous and fight.  Check out this motion to recuse Judge Cannon (file by AFPDs Kristy Militello and Renee Sihvola.  You may not agree with it, but it took chutzpah to file it.

It starts this way:

Mr. Routh stands accused of attempting to assassinate Donald J. Trump. He faces up to life in prison. This case has already attracted significant media attention. It will continue to do so, and this Court’s rulings are likely to face intense public scrutiny. This motion presumes that this Court would preside over this case impartially. However, given the heightened stakes and the public scrutiny, there should not be any doubts about even the appearance of impartiality of the presiding judge. 

Although Mr. Trump is the alleged victim here, he previously served as President of the United States. While in office, he nominated Your Honor to her current position as a U.S. District Judge on the Southern District of Florida. Your Honor thus owes her lifetime appointment to the alleged victim in this criminal case.

After Mr. Trump left office, he was charged in this District with 40 felony counts relating to his retention of classified documents. Your Honor recently presided over that criminal case, and ultimately dismissed the case against Mr. Trump. 

Mr. Trump is the current Republican candidate for President in next month’s election. On the campaign trail, he has repeatedly praised Your Honor for her rulings in his case. As the alleged victim here, he has a significant stake in the outcome of this case too. Were he to become President in the future, he would have authority to nominate Your Honor to a federal judgeship on a higher court were a vacancy to arise.

Taken together, these unprecedented facts and circumstances might create an appearance of partiality in the mind of the public. Accordingly, the Constitution and the federal recusal statute require Your Honor to recuse herself from this case.

Congratulations to Judge Damian!

 

The Funk Shop

 

Uncle Luke wins his federal case and gives a nice shout out to Judge Gayles, his lawyers, and the jury:

View this post on Instagram

A post shared by LUTHER CAMPBELL (@unclelukereal1)

Face Down

 There's a pretty incredible trial going on that isn't getting much press -- Two Live Crew is in court before Judge Gayles.  And Uncle Luke is on the stand.  From Law 360:

Rapper and producer Luther Campbell, also known as Uncle Luke, told jurors Monday that the checks they'd been shown for payments to members of hip-hop group 2 Live Crew were for per diem expenses, not paychecks, and insisted that the group members were not employees of his record label and can therefore claw back their rights to their old hit recordings.

Campbell, who owns record label Luke Records, said he and the other three members of 2 Live Crew were paid advances and received shares of the profits from the group's albums, their live performances and merchandise. None of Luke Records' employees received that kind of compensation, he said.

He pushed back against the assertion by plaintiff Lil' Joe Records — which says it bought the rights to the songs in 1996 through a bankruptcy of Luke Records' assets — that the recordings were works for hire made while under employment by Luke Records.

"This wasn't work for hire," he said. "If someone comes in and plays guitar, that's work for hire. Or someone plays piano on a song, that's work for hire."

Lil' Joe Records, which is owned by former Luke Records general counsel and chief financial officer Joseph Weinberger, is suing Campbell and late 2 Live Crew members Christopher Wong Won and Mark Ross, whose heirs are defending their interests. The music label is trying to stop them from terminating the label's exclusive licenses of their material under Section 203 of the Copyright Act, which allows copyright owners to terminate licenses during a five-year window beginning 35 years after the publication of a work.

Jurors have been tasked with determining whether the 2 Live Crew members were employees of Luke Records when the songs in the five albums at issue in the suit were created. They also will have to find which of three operative agreements — one oral agreement and two written agreements in 1990 and 1991 — granted the transfer of ownership of the subject copyrights.

"Prosecutors erode our rights with show-and-tell indictments like Eric Adams’s"

That's the title of this op-ed in the Washington Post by Abbe Lowell.

Amen!

Here's the introduction:

Recently we witnessed what has become a familiar scene, so familiar that no one apparently stopped to consider how wrong it was: U.S. Attorney Damian Williams standing at a lectern, holding a news conference to announce the indictment of New York Mayor Eric Adams on charges of bribery and campaign finance offenses.

In a 20-minute publicity event, framed on one side by the agents who worked the case and on the other by a color photo of the Turkish consulate building the mayor is alleged to have helped get approved, Williams detailed the charges using phrases such as “luxury travel,” “foreign influence,” “corrupt relationships” and “grave breach of public trust.” He made sure to describe every dollar exchanged as charged in the indictment. Then he invited an FBI supervisor and a New York City commissioner to jump in and add their claims of Adams’s “perver[sion] of greed, and dishonesty” and breach of “integrity, transparency and dedication.”

All this occurred on the day the charges were unsealed, not the day a guilty verdict was issued. You might be forgiven for being confused.

This sort of trial by lectern or show-and-tell indictment is a lamentable phenomenon that needs to be eliminated — now. It erodes the presumption of innocence and subverts the requirement for a fair trial. By the time a trial starts, would-be jurors have been tainted by hearing the worst allegations against a defendant with no rebuttal, and judges can easily form initial opinions that could carry over to their rulings.

 

Judge Darrin Gayles celebrates 10 years on the federal bench (and 20 as a judge)

20 years as a judge, wow.

Seems like yesterday we were brand new lawyers appearing before Judge Graham not knowing what we were doing.

Here's a cool picture of Judge Gayles with some of his law clerks and staff.

Congrats Judge Gayles.

School Board Gets a Lesson on Free Speech from the Eleventh

By John R. Byrne

Who knew school board meetings could get this intense? The Eleventh Circuit just issued an opinion holding that the Brevard County School Board's policies governing speech at school board meetings violated the First Amendment. The board had policies prohibiting "abusive," "personally directed," and "obsence" speech. The court said that while "abusive" and "obscene" speech could be restricted in principle, the school board had offered fuzzy definitions of the terms that would reach protected speech. According to the Court, "giving offense is a viewpoint" and "a restriction barring that viewpoint effectively requires 'happy talk,' permitting a speaker to give positive or benign comments, but not negative or even challenging one."

Judge Wilson dissented, in part. For much of his dissent, he offered examples of speech that the board actually allowed, his point being that it's not as though the board was out to muzzle any particular agenda. He also disagreed with the majority's ruling striking down the ban on "personally directed" speech. His point seems well taken here. It appears that the majority was overreading that restriction (Wilson pointed out that it only required a speaker to address their comments to specific board members/the board as a whole/the presiding officer, not that it banned a speaker from naming names). 

Anyway, on the off chance that you're speaking before the Brevard School Board anytime soon (or crafting speech policies for a limited public forum), a must read....

Happy Friday.

Moms for Liberty by John Byrne on Scribd

Eleventh Circuit Blesses Florida Riot Statute

By John R. Byrne

Hope everyone is staying dry and safe. Another win for the State of Florida at the Eleventh Circuit. After a series of protests opposing police violence, the Florida legislature amended Florida’s criminal riot statute. That led to challenges by various civil rights organizations. The challenges? Vagueness and overbreadth. Here is the statutory language:

A person commits a riot if he or she willfully participates in a violent public disturbance involving an assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct, resulting in:

(a) Injury to another person;

(b) Damage to property; or

(c) Imminent danger of injury to another person

or damage to property.

Fla. Stat. § 870.01(2).

Judge Walker in the Northern District agreed with the challengers, enjoining enforcement of the statute. Though the Eleventh Circuit expressed its own misgivings about the statute’s meaning and reach, it certified a series of questions about it to the Florida Supreme Court. And the Eleventh Circuit was satisfied with that court’s “definitive” interpretation, writing: "The touchstone of liability under the riot statute is violence. This violence may not be incidental; it must be intentional."

Seems right to me, given the statutory language. Opinion excerpted below.

Dream Defenders by John Byrne on Scribd

Hurricane Milton court update (UPDATED)

 From the SDFLA website (as of Tuesday afternoon):

In anticipation of Hurricane Milton, the below courthouses will be closed as follows:
• Ft. Pierce (Alto Lee Adams, Sr. U.S. Courthouse) will be closed Tuesday through Thursday
• Palm Beach (Paul G. Rogers Federal Building and U.S. Courthouse) will be closed Wednesday and Thursday
• Ft. Lauderdale (U.S. Federal Building and Courthouse) will be closed Wednesday and Thursday
• Miami (Wilkie D. Ferguson, Jr., C. Clyde Atkins, and James Lawrence King Courthouses) will be closed Wednesday and Thursday
• Key West (Sidney M. Aronovitz U.S. Courthouse) will be closed Wednesday

President Biden, it’s time to use your pardon power.

President Biden, it’s time to use your pardon power.

By David Oscar Markus

The federal criminal justice system is littered with terribly unjust convictions and sentences. The President of the United States has the power, granted to him by our Constitution, to fix these injustices – either by pardoning a person convicted of a federal crime or by commuting a sentence.  Unfortunately, President Biden has barely used that power to date.  Putting aside pardons for possession of marijuana, he has granted only 25 pardons and 131 commutations (which is less than 1.5 percent of all the petitions submitted to the pardon office to date).  And almost none of these are white collar offenses, which get very little attention for this sort of review.  

But it is not too late, Mr. President.  Traditionally, most presidents wait until the final few months of their presidency to use the wide power and discretion afforded them.  Here are some cases that cry out for the President's intervention:

The first case, United States v. John Moore and Tanner Mansell, is the ideal candidate for a pardon.  Moore and Mansell were crewmembers on a boat that facilitated shark encounters in South Florida.  During one such trip, they spotted sharks caught on a long fishing line that they mistakenly believed was illegal. They recorded as they retrieved the line and released the sharks, and called Fish & Wildlife to notify law enforcement of what they had found.  It turns out that the lines had been placed lawfully, an unusual circumstance. Despite that this was a good faith mistake, Moore and Mansell were indicted and convicted for theft of property within the special maritime jurisdiction of the United States, in violation of 18 U.S.C. 661.  The appellate court affirmed the conviction, but Judge Lagoa said she did so "with reluctance" because she had never seen "in eighteen years on the bench and three years as a federal prosecutor," facts like these.  She said that the prosecution "def[ied] understanding" and that the prosecutor took "a page out of Inspector Javert's playbook" for prosecuting this case.  She said the facts "plainly suggest[] a good faith mistake" and she could not understand how "this case was worth the public expense of a criminal prosecution, and the lifelong yokes of felony convictions."   

The next two cases are perfect for clemency.  In United States v. Tyson Rhame, James Shaw, and Frank Bell, the defendants were charged with fraud for selling the Iraqi currency, called dinar (an entirely legal product).  It was undisputed that every single customer got exactly what they paid for and that not one of the thousands of customers ever complained.  In fact, the dinar is worth today almost the same amount it was worth when customers purchased it years ago.  In other words, they did not lose anything.  The defendants themselves did not say anything fraudulent to any of the customers and they spent millions of dollars on compliance to make sure that they did not cross any legal lines.  Even the judge at trial said, "Let me put it this way: I don't know where this case is going to end up ... Well for one thing, I'm not prepared to even say, well this case is going to get past directed verdict.  These people can be found completely not guilty."  Unfortunately, the jury found them guilty. Ty Rhame  -- an Iraqi war hero, has donated tens of millions to charity, always paid his taxes, and is a loving father -- was sentenced to 15 years (!!) in federal prison for selling a legal product that is still openly sold today.  

In United States v. Johnny Grobman, Raoul Doekhie, and Sherida Nabi, the defendants bought baby formula from manufacturers saying on the basis that they would sell only in foreign markets, but they actually sold in the United States. The “victims” in this case, primarily very large corporations, made a profit from their sales to the defendants.  Their complaint is that they did not make as much money as they would have had they marked it up to be resold in the U.S. Based on the premise that these corporations may have been able to make more profit from these transactions, Grobman, a father to three young daughters, was sentenced to 18 years in federal prison even though he was a first time non-violent offender.  18 years!  A co-conspirator in Johnny’s case who did not go to trial and cooperated with the prosecution received a sentence of 2 years. 

 I am particularly attuned to the facts of Rhame and Grobman since I represent both of them on appeal (I was not the trial lawyer).  I could go on and on with other cases that President Biden should look after.  Another one of my clients who is currently appealing, Neil Cole, was acquitted of conspiracy to commit securities fraud in the Southern District of New York, which was the top and most serious count.  The jury was unable to reach a verdict on the less serious counts, but the government decided to retry him anyway on the very same theory that the jury rejected for the conspiracy.  It's hard to beat the government once; it's almost impossible to beat the feds twice, especially where the government scares away defense witnesses with threats of perjury and obstruction.  

Many presidents issue a few pardons and commutations at the end of the their term to show at least a little mercy.  But President Biden has the opportunity do something truly special and unique -- clear the board of the many unjust convictions and sentences in our federal system.  Don't be stingy, President Biden.  Don't succumb to fear.  Do the right thing and make our criminal justice system just a little more fair.

False Claims Act Unconstitutional, says Middle District Judge. (Guess who).

If you guessed Judge Mizelle, bingo!

It's a fascinating read.

And she may very well be right.

Here's Reuters.

Over the last 20 years, the U.S. has routinely recovered upward of a billion dollars a year from False Claims Act lawsuits initiated by private whistleblowers who accuse defendants of defrauding the federal government. In 2023 alone, the U.S. took in more than $2.3 billion, opens new tab from hundreds of lawsuits initiated by private whistleblowers.

A federal judge in Tampa, Florida, ruled, opens new tab on Monday that these whistleblowers wield unconstitutional power. U.S. District Judge Kathryn Mizelle concluded that the whistleblower, or qui tam, provisions of the False Claims Act violate the Appointments Clause of Article II of the U.S. Constitution because whistleblowers exercise executive-branch power without accountability to the president.

Mizelle, a former clerk of U.S. Supreme Court Justice Clarence Thomas who was 33 years old when she was appointed by President Donald Trump in 2020, said False Claims Act whistleblowers are effectively acting as officers of the United States when they initiate and prosecute civil fraud lawsuits on behalf of the government.

And here's the (53 page) opinion.