RIP Troy Walker

A sad one... Troy was a great guy.  A long-time CRD and clerk.  Always someone who would help and make you feel good about how an argument just went, even if you got beat up by the judge.  I was a young PD when I first met Troy... and he was always willing to point me (and everyone else) in the right direction.  

Here's the email that Clerk Angela Noble sent to the Court family:

It is with great sadness that I announce the passing of retired CRD Troy Walker.  After serving the U.S. Attorney’s Office, Troy joined the Clerk’s Office as Records Supervisor in 1983.  Over the years Troy served many departments, including Procurement and Docketing, before transitioning to Courtroom Deputy.  Troy was assigned as CRD to Judge Atkins (1987) and Judge Ferguson (1998).  He later returned to Miami and served as Relief CRD (2001-2004).  After a short time in the private sector, Troy returned to the Clerk’s Office, supporting Magistrate Judge White, as Pro Se Writ Clerk (2006).  Troy later transferred to Ft. Lauderdale to serve as CRD to Magistrate Judge Hunt (2017).  After a long and dedicated career, Troy reluctantly retired in October 2023.  Troy was a loyal friend and an incredible presence around the Courthouse.  He will be deeply missed.

He also worked for Judge Moreno, I believe.

RIP Troy.  You were a good dude.

Embry Kidd confirmed to the 11th Circuit

 Pretty big news regarding the 11th Circuit today. Congratulations are in order for Judge Embry Kidd, confirmed today. He takes Judge Wilson's seat. 

Federalist Society meeting goes off the rails (UPDATED)

UPDATE -- Here's Steve Vladeck's detailed take on the whole thing.

Fifth Circuit Judge Edith Jones went off on Professor Steve Vladeck at a Federalist Society meeting this weekend. But her attack, ironically, was extremely personal. She was upset that Professor Vladeck has been critical of the Shadow Docket and judge-shopping in one-judge venues and equates those critiques with judges needing protection.  

This Law & Crime article has some of the details, although it's hard to summarize just how personal and aggressive Judge Jones appeared.  Here's the video if you'd like to watch.  There's lots to see here, but start at 1:15 some of her most aggressive attacks.  

Judge Jones may not like discussion about areas of the law that seem wrong, but the truth is -- we need law professors to be writing about the courts and exposing these issues so that they can be discussed.  I thought the whole point of the Federalist Society was to have open discussions, not to personally go after those on the other side.  Perhaps that why the Federalist Society had to apologize later that day.  Kudos to Vladeck for standing up to and holding his own against a very hostile judge and panel in an unfriendly environment.

Here's some snippets from the Law & Crime article:

In September, Vladeck, responding to another judge on a popular law blog, argued why he believes this behavior is “problematic.” The law professor highlighted 47 incidents in which Texas Attorney General Ken Paxton sued to stop Biden administration policies.

“Of those 47, zero have been filed where the Texas government is actually located (i.e., Austin),” Vladeck wrote. “[Twenty-four of those lawsuits], including yesterday’s, have been filed in single-judge divisions; another six were filed in divisions where Texas had a 95% chance of drawing a specific judge. And when asked why it keeps filing in these geographically obscure (and unrelated) parts of the state, Texas has publicly conceded that it has nothing to do with that particular forum’s connection to the litigation, but rather is entirely because it wants those judges to hear those cases.”

Jones described this behavior as nothing nefarious — insisting litigants have aimed to choose one judge over another since the period described in the Bible’s book of Genesis.

“Something’s going on here, and it’s very unsavory,” the judge said. “Attacks on the judiciary, I fully agree with the others, are ultimately attacks on the rule of law.”

After that, the panel discussed other matters for a while — but Vladeck steered the conversation back to judge-shopping.

Attempting to inject some levity, the law professor suggested he and the judge should “just go get a beer and have a chat” before stressing that he “never used the term ‘close to unethical’ in describing anyone’s behavior.”

***

Jones, for her part, was unmoved by the argument — or the alcohol-themed entreaty.

“I have studied Professor Vladeck,” the judge said in response — and then theatrically raised a manilla folder with documents askew and poking out. “And this is a file of his articles, amicus briefs, and tweets regarding the process of judge-picking that he criticizes so heavily.”

As she opened the file to rifle through its contents in front of the audience, Jones went on to read several tweets of Vladeck’s, along with the title of one legal article, which she said evidence a series of “attacks” on “the character” of various Republican-appointed judges.

***

“The consequence of all this is that Judge [Mattthew] Kacsmaryk is under 24-hour per day protection,” Jones said — referring to a Trump-appointed judge who hears every case filed in the Northern District of Texas’ Amarillo division. “And he has five kids.”

The implication was clear enough. And the panel grew increasingly tense as the barbs flowed from one to another.

At one point, during the back-and-forth, Vladeck sarcastically thanked the judge for proving his point “about how we’re shouting past each other and not engaging on substance.”

At another point, Jones angrily slammed her hand down on the table to keep the law professor from interjecting.

“I think it’s rather unfortunate what’s happened this afternoon,” Vladeck said in response to Jones’ criticisms. “And I wish that it weren’t so. But I also think that it says a lot about where we are that instead of having a conversation about whether this is a good thing or not, we decide to turn this into a ‘Can I put words into your mouth that make you look bad?’ And it seems like that’s not the kind of debates that I thought the Federalist Society was interested in sponsoring, and I’m disappointed it’s the conversation we’ve had today.”

Jones stuck to her guns.

“The point of attacking these judges is to diminish their reputations, to suggest that the state of Texas and other state attorneys general who filed in these jurisdictions are doing something improper,” she said.

 

Judge Altman to remain Judge for now (UPDATED WITH RESULTS)

Update -- as of 5pm on Thursday, the results are heavily skewed in favor of judge.  88 say judge, 10 say U.S. Attorney, and 3 voted about the same.  Sorry about the results not popping up after you vote.  I tried a new poll and it's not really that good.  

 President Trump decided to go with the likes of Huckabee and Gaetz.

I've also heard talk that he's being considered for U.S. Attorney. Unlike Ambassador and A.G., I'm not sure a district judge would take that slot. But maybe I'm wrong. What do you think:

Who will fill Marco Rubio's Senate seat?

Lots of buzz around town that Judge Roy Altman is being considered for the open Senate seat once Marco Rubio is confirmed as Secretary of State.  There is also talk about Altman being named Ambassador to Israel and also U.S. Attorney. Each of these positions would be truly fantastic for Judge Altman.

The last district judge who held a number of different positions was Tom Scott -- a district judge, the U.S. Attorney, and state judge. 

SCOTUS and Death penalty

 How will Trump's win affect the Supreme Court and death penalty jurisprudence?  Thomas and Alito are likely to retire during the next four years, so Trump will get to replace them.  That will keep the Court at 6-3 for a long long time.  

The big question is what happens with Sotomayor.  Some say she should immediately retire to allow Biden to replace her now (and not have another RBG situation).  Others say it's too late:

Second, the calendar: The Senate is out of session right now, and will not reconvene until Tuesday. They’ll recess for the week of Thanksgiving, return to Washington to speed-run the confirmations of Biden’s lower court nominees, and then adjourn for good on December 20. When the new Congress begins on January 3, Democrats will be out of power, and one of several Republican senators named John will hold the Senate gavel instead. So, if you are doing the math at home, even if Sotomayor were to retire today, and even if the White House had a nominee ready to announce tonight, that leaves Democrats five weeks—41 days total, and 24 days excluding holidays, recesses, and weekends—to get it done.

Another topic to watch is the death penalty:

Throughout his campaign, President-elect Donald Trump signaled he would resume federal executions if he won and make more people eligible for capital punishment, including child rapists, migrants who kill U.S. citizens and law enforcement officers, and those convicted of drug and human trafficking.

“These are terrible, terrible, horrible people who are responsible for death, carnage and crime all over the country,” Trump said of traffickers when he announced his 2024 candidacy. “We’re going to be asking everyone who sells drugs, gets caught, to receive the death penalty for their heinous acts,” he added.


While it remains unclear how Trump would act to expand the death penalty, anti-death penalty groups and criminal justice reform advocates say they are taking his claims seriously, noting the spree of federal executions that occurred during his first term.

“We’re going to fight this tooth and nail, and we’re going to seek to uphold the constitutional principals that do not call for this expansion,” said Yasmin Cader, an ACLU deputy legal director and the director of its Trone Center for Justice and Equality.

At the tail end of Trump’s first term, 13 federal inmates were put to death — even as the pandemic led states to halt executions because of Covid concerns in prisons. The cases included the first woman executed by the federal government in nearly 70 years; the youngest person based on the age when the crime occurred (18 at the time of his arrest); and the only Native American on federal death row.

No president had overseen as many federal executions since Grover Cleveland in the late 1800s, and the U.S. government had not executed anyone for more than 15 years until Trump revived the practice.

Judge Carnes Takes CNN to Task

By John R. Byrne

Yesterday, the Eleventh Circuit reversed the dismissal of a defamation claim against CNN. And Judge Carnes didn't mince words in his concurring opinion. 

To set the stage, the case involved Project Veritas (an investigative journalistic organization) suing CNN because it falsely reported that Twitter had suspended Project Veritas   for “promoting misinformation.” In truth, Twitter had suspended Project Veritas for disclosing a person's home address during a broadcast (Veritas tweeted a video of reporters trying to interview a Facebook VP and you could see a house number in the background).

Part of CNN’s argument to the Eleventh Circuit was that the difference between those two things-- suspension for (accurately) disclosing a home address and suspension for promoting misinformation--was "immaterial."

Judge Carnes's concurrence begins like this: "If you stay on the bench long enough, you see a lot of things. Still, I never thought I’d see a major news organization downplaying the importance of telling the truth in its broadcasts. But that is what CNN has done in this case."

Full opinion excerpted here.

Veritas by John Byrne on Scribd

Watch out for the fake NEFs!

 Your notice from SDFLA:

The Court was notified on November 6, 2024, that attorneys in the Southern District of Florida have received fraudulent Notices of Electronic Filing (NEFs). These notices are not official NEFs and are not sent by the Court. The emails are sent from the following email address: updates2@uscourts.gov.ecf.digital (link sends e-mail)

Please disregard these emails and do not click on any links or attachments. A sample email will be posted on our website under “News & Announcements.” If you doubt the authenticity of any NEF received, please validate the information directly through CM/ECF or contact the Clerk’s Office.

Fraudulent CM/ECF Notifications to Attorneys

Justice Cannon, and May it Please the Court.

Who will be the next U.S. Attorney?

Will Judge Cannon be elevated to the 11th? AG?

Will Alito and Thomas retire?

How long till we get nominees for the open judicial seats?

Will Miami ever go blue again? Florida?

Who will run in 4 years? Vance versus who?

Will Biden issue a bunch of pardons? His son?

What role will Kash Patel have?

What else you got? 

What will Election Day bring for our courts?

Everyone is so stressed out.

More than any other election that I have ever seen.

I'm surprised that very little has been said about the future of the Supreme Court, and of course the lower courts.  That's a top 5 issue for me.  

Speaking about the courts, check out this story about Ed Carnes' confirmation, which has a Sonia Sotomayor twist:

So after the Left launched its ugly, unfounded attack on Eleventh Circuit nominee Ed Carnes, how did Senator Richard Shelby of Alabama (then still a Democrat) strong-arm his fellow Democrats to win confirmation of Carnes’s nomination?

The curious answer is that Shelby threatened to block three other judicial nominations made by President George H.W. Bush.

Why would Shelby’s threat have any force with Democratic senators? Because Bush made those nominations at the behest of individual Democratic senators—and indeed, in the case of a 37-year-old district-court nominee by the name of Sonia Sotomayor, in the face of grave concerns held by White House lawyers.

How will Justice Alito explain this one?

 From Above The Law:

The Intelligencer has a story today that actually happened several years ago but — not unlike Alito’s Upside-Down Flag nonsense — didn’t register with the public at the time. As we noted last week, Alito has been taking expensive gifts — as the conservative Supreme Court justices are wont to do! — from a right-wing German princess, but it turns out he’s been cultivating more ties to the European aristocracy.

It turns out the last time Donald Trump was president, Supreme Court Justice Samuel Alito, author of the Dobbs decision setting women’s health care back a few centuries, added a knighthood to his own résumé, pledging an oath to the Sacred Military Constantinian Order of Saint George. The knighthood, bestowed in 2017, wasn’t widely reported at the time, but the order’s website was updated in July with Alito’s investiture on the front page.

May we present, Sir Samuel of Blackacre! We don’t know his sigil, but it’s meant to be flown upside-down.

Alito’s “An Appeal to Heaven” flag is a reference to John Locke’s argument in favor of a right to rise up against monarchists. Alito himself accepted a knighthood from an order managed by the House of Bourbon–Two Sicilies. The grand prefect of the order’s son is a pretender to the Imperial Throne of France.

...

Did the Framers have anything to say about the idea of European nobles granting titles to American government officials? You know, since they’d just fought a war of independence from a royal superpower on the strength of Enlightenment philosophy.

Indeed, they did! Article I, Section 9 of the United States Constitution reads, in relevant part:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

That’s why when you hear of some famous politician getting knighted or some other play title, it’s always after they retire.

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.

FBA Installation

By John R. Byrne

The South Florida Chapter of the Federal Bar Association held its Installation on Saturday at The Four Seasons. Nice event. Judge Graham, forty years after being sworn in as president of the Chapter, swore in new president Courtney Cunningham.

Cathy Wade, former Executive Services Administrator for the Court, received the NED Award for her service to the federal bench and bar. Judges Bloom and Williams gave heartfelt (and funny) tributes to Wade, who began working for the Court in 1994.

No cooperating witness should ever be sentenced to more than 2 years again...

SDNY pretty much just set the ceiling on cooperating witnesses. Caroline Ellison was just sentenced to two years in prison and ordered to forfeit $11 billion.  That's billion with a B.  The crazy thing is that most of my NY friends that I spoke with are surprised she got any time as the culture there is for cooperating witnesses to get probation.  They were taken aback that she got two years.  

What's surprising to me is that Sam Bankman-Fried got 25 years.  Way too much time for a first time, non-violent offender where the actual loss was arguably zero.  I'm all for the NY system of cooperating witnesses getting no time (which is starting to catch on in other places).  But 25 years for going to trial needs to be fixed. 

He has a number of really good issues on appeal, including that the judge forced him to testify out of the presence of the jury before taking the stand so that the judge could determine whether his testimony would be admissible.  Pretty insane.

If you were the sentencing judge, what would your sentence be for SBF and Ellison?

Judge Cannon gets Trump assassination case

 Here's the indictment.

It charges 18 U.S.C. 351(c) (attempted assassination of a presidential candidate) and other offenses.

Podcast Season 6 Finale -- Howard & Scott Srebnick for Michael Avenatti

 

FOR THE DEFENSE, SEASON 6, EPISODE 9 (Season Finale): Howard (above) & Scott (below, left) Srebnick for Michael Avenatti   (Nike extortion case) Brothers Srebnick have been representing lawyers since the 90s. And this case -- representing high flying attorney Michael Avenatti, who was charged with extorting Nike -- is a fascinating one, exploring what a lawyer can do during negotiations for a client. Howard and Scott are great lawyers, great friends, and I think you'll really enjoy the episode. As always, you can catch this and other episodes on the web or on every podcast platform, including Apple and Spotify.  I also want to thank all of our guests this season -- Todd Blanche, Kaitlan Collins, Judge Andrew Brasher, Sean Hecker, Judge Phil Hubbart, David Kendall, and former Attorney General Alberto Gonzales. I also want to take special note of the Chris Morvillo episode -- such an awful and sad tragedy.  It's still hard to get my head around what happened.   We will be back for Season 7 -- most likely in early 2025.  In the meantime, I would really appreciate it if you could take a second and leave a review and spread the word about the podcast. Also, this season was approved for Florida CLE credit -- the code is stated at the end of this episode. Finally, If you have a friend that would like to receive these updates, please have them sign up here. Thank you! --David Hosted by David Oscar Markus and produced by rakontur