A Tale of Two Voting Rights Act Cases

By John R. Byrne

Three-judge panels aren't just reserved for the courts of appeal. You can sometimes get them at the district court level. One common example is when plaintiffs challenge the constitutionality of congressional or statewide legislative maps as racial gerrymandered under the Equal Protection Clause. In such a case, the chief judge of the federal appellate court appoints two judges to sit on a panel with the district judge who originally drew the case (one of the two "added" judges must be a circuit court judge).

That’s how a three-judge panel consisting of Judge Becerra, Judge Ruiz, and Circuit Judge Britt Grant ended up deciding whether there was enough evidence to send a racial-gerrymandering challenge to trial in Cubanos Pa’lante v. Florida House of Representatives. Judge Becerra had the case first, and Chief Judge Pryor designated Judges Ruiz and Grant to join her. Ultimately, the panel held there was sufficient evidence for a factfinder to conclude that “race played a predominant role in the drawing of” four of the eight challenged district (seven state-house districts and one congressional district). Decision here.

So, those three judges were on the same page. Now let me introduce you to another recent Voting Rights Act. This one's from Texas, LULAC v. Abbott, and also dealt with racial gerrymandering claims. No such harmony here. The circuit judge appointed to sit on that panel, Judge Jerry E. Smith, issued a blistering dissent from the panel's issuing of a preliminary injunction. That decision here. 

Hard to really describe the intensity of this dissent. Here are a few quotes:

"In my 37 years on the federal bench, this is the most outrageous conduct by a judge that I have ever encountered in a case in which I have been involved."

"The main winners from Judge Brown’s opinion are George Soros and Gavin Newsom. The obvious losers are the People of Texas and the Rule of Law."

"When I was a newer on the bench, a friend asked me, 'Now that you’ve been a judge for a few years, do you have any particular advice?' I replied, 'Always sit with your back to the wall.'"

Whoa. 

Curious whether the Chief Judge of the Fifth Circuit should have foreseen that combustible panel mix coming. 

More Megan Thee Stallion

Meghann Cuniff has everything Megan Thee Stallion, the defamation trial before Judge Altonaga.  Closing arguments will be tomorrow (Monday).

Here's the latest -- Megan is on the stand and Miami's Jeremy McLymont is crossing (John O'Sullivan from Quinn put her on):

Jeremy McLymont, an attorney in Miami, Florida, focused on Megan’s testimony that she was not drunk and that she had nerve damage in her left foot, despite a doctor’s report that said there was no “nerve involvement” in her left foot.

He also emphasized eyewitness Sean Kelly’s testimony about two women fighting as he implies Megan lied when she testified Lanez shot her and implies that the gunfire came from her now-former friend Kelsey Harris as Milagro has contended.

McLymont also implied Megan is wrongly accusing Milagro when Megan says Lanez told Milagro to say Megan is an alcoholic.

“That’s your opinion?” McLymont asked.

“Yes,” Megan answered.

“It’s not a proven fact, right?” McLymont asked.

“It can’t be proven because we can’t see the messages,” Megan said, referring to the thousands of texts deleted by Milagro in violation of a legal notice.

“It’s not a proven fact, but you’re stating it as though it’s a fact?” McLymont asked.

“Just like Milagro stated that it’s a fact that I lied about Tory shooting me,” Megan answered.

“So are you defaming Tory Lanez and Milagro Cooper when you say that it’s your opinion that Milagro Cooper is getting information from Tory Lanez?” McLymont asked.

“No, I’m not defaming her or him,” Megan answered.

“Alright. But Ms. Cooper is defaming you when she gives her opinion?” McLymont asked.

“Yes, and presents it as facts,” Megan answered.

Megan’s lawyers from Quinn Emanuel Urquhart & Sullivan, LLP didn’t object to her being asked to give a legal conclusion.

McLymont, a licensed attorney in Florida since 2018, took a slow and conversational approach to his cross-examination of Megan. At one point, he implied Megan is suing Milagro out of jealousy, emphasizing that Milagro “has some sort of relationship with Tory Lanez.”

“You do not like that?” McLymont asked.

“I don’t care about whatever you’re trying to ask me. What I care about is Tory giving this woman information to say about me, to lie about me, about the trial. That’s what I care about,” Megan answered.

McLymont at one point told Megan, “So I’m asking questions. All I need is just simple answers” when Megan asked what he was getting at, but he mostly didn’t push back when Megan responded with her own questions. He said rappers Meek Mill and Drake support Lanez and Megan asked, “Are you saying that make it OK” for Milagro to harass her.

“No, I just want to make sure that we’re actually pinpointing the cause of any emotional distress” and not blaming it on Milagro, McLymont told Megan.

McLymont described Milagro as someone who “has the least amount of influence,” and Megan asked why he thinks that.

“Is it because she’s a woman and the rest of everybody is a man?” Megan asked.

“Well, she’s not famous, right?” McLymont answered.

Megan said Milagro is famous “for talking crap about me online.”

McLymont and Megan were discussing Milagro’s level of fame when U.S. District Judge Cecilia M. Altonaga said, “Mr. McLymont, you’re an attorney” and told him to stop speaking when the witness speaks.

“I’ve never heard of that, judge,” McLymont said.

The judge chuckled and said, “I’m telling you that.”

 

Keep Off the Beach

 By John R. Byrne

To me, the COVID-19 Pandemic feels like ages ago. But lawsuits arising from the pandemic are still making their way through the legal system. Just a few days ago, the Eleventh Circuit held that a county ordinance closing all public and private beaches during the early COVID-19 pandemic was a per se physical taking of beachfront owners’ property under the Fifth Amendment. Judge Lagoa's opinion is a refresher on takings law, including the differences between regulatory takings and physical takings (the line can be blurry). In short, there's "no COVID exception to the Takings Clause."

The opinion also has colorful details, including this sequence. A man is walking on his private beachfront property during the early days of the pandemic along with a family friend and their respective children. A lifeguard radios the Walton County Sheriff's Office to report them. Deputies arrive "almost immediately" and one tells the man and his party that, if they don't leave the beach, the deputies will arrest them. The man tells him he owns the property but the deputy says that doesn't matter. When the man and his friend turned to leave, the deputy asked for their names and told them that if police did "catch" them on his beach again, the police would take them "downtown."

"Downtown" doesn't get used enough as a stand-in for a police station. But as it turns out, the Walton County Sheriff's Office's main operations and jail are located at 10 Sheriff Circle in DeFuniak Springs, Florida, which is not a classic downtown business district. 

Full opinion here. 

Judge Fulton

By John R. Byrne

Below is the portrait of Judge Charles B. Fulton. He served as Chief Judge in our district for 11 years (from 1966-1977)! A 1982 statutory amendment limited Chief Judge terms to seven years. Sharing that in case the question comes up in your local pub trivia contest. FBA write up below.

Hon. Charles B. Fulton was nominated by President Kennedy and served on the district court from 1963-1996. In Lee v. Ridgdill, 444 F. Supp. 44 (S.D. Fla. 1977), Judge Fulton held that dismissing a police chief for consulting an attorney about a polygraph test request violated due process and ordered his reinstatement with back pay.

Megan Thee Stallion is here in the SDFLA

The Megan Thee Stallion case started before Judge Altonaga with opening statements yesterday. Some coverage by Meghann Cuniff here:

 

The jury of five men and four women saw the obscene video during Megan’s lawyer Marie Hayrapetian’s 20-minute opening statement.

Before she played it, Hayrapetian said she wanted “to acknowledge how disturbing this is.”

“Imagine having to sit in court and watch this play for a room full of strangers. That’s what we’re asking Megan to do today, but you need to see it to understand what Milagro Cooper promoted,” said Hayrapetian, an associate in Quinn Emanuel Urquhart & Sullivan, LLP’s Los Angeles office.

The approximately 45-second video included commentary from Milagro as she played it for viewers on her live stream. “Watch how this post jump … I just liked it and I tweeted ‘go to my likes.’”

“I apologize to everyone in this courtroom for having to see that, especially to Megan,” Hayrapetian said. “But Milagro Cooper made the choice to promote it.”

Hayrapetian began her opening by playing audio of the gunshots that Daystar “Tory Lanez” Peterson fired at Megan on July 12, 2020. She told jurors he was convicted in December 2022, and the California Court of Appeal affirmed his convictions last week. She played an excerpt of Milagro discussing Megan that begins, “At the end of the day, a bitch lying on somebody is low down. So believe what the fuck you want to believe.” Milagro goes on to say she wants to “slap” Megan.

“This case is about someone who wasn’t there that night, the defendant, Milagro Cooper. She didn’t see the fear or the blood or the gun, but she saw something else: Her shot had the spotlight,” Hayrapetian said. “This case is about what Milagro Cooper did with her shot at the spotlight.”

Hayrapetian said jurors will learn “how she turned attacking Megan into her brand, how she coordinated with Tory Lanez and his team, how she built her platform by tearing Megan down.”

She said the case “is not about whether Tory shot Megan. That has already been decided: He did. This case is about Milagro Cooper’s continued effort to undo what’s already been done, to free Tory.”

The first thing Milagro’s lawyer Nathacha Bien-Aime told jurors in her opening was, “Yes. Megan Pete was shot.” But she said “whether he did or not, that case, that tragedy, that happened in California.”

“The plaintiff desperately wants to drive a California criminal trial across the country, to replay it for you here in Miami, Florida,” Bien-Aime said.

 

Defendants' convictions in the Ahmaud Arbery murder case upheld

 Here's the 2-1 opinion.  Judge Branch wrote the majority (with Grant joining).  District Judge Calvert dissented on an interesting interstate commerce issue related to the kidnapping counts.

 Courthouse news summarizes it here:

The 11th Circuit on Friday upheld the convictions of the three white men who murdered Ahmaud Arbery five years ago after chasing the 25-year-old Black man down the streets of a Georgia subdivision.

In a split opinion, the circuit judges ruled that sufficient evidence supported their convictions.

Travis McMichael, his father Greg McMichael, and neighbor William “Roddie” Bryan were convicted in February 2022 of a federal hate crime and attempted kidnapping in Ahmaud Arbery’s killing and sentenced to life in prison. On appeal, they argued prosecutors failed to prove they acted with racist intent.

A three-judge panel rejected that claim, finding ample evidence of racial animus in the men’s private conversations and social media posts, which showed longstanding prejudice toward Black people and support for vigilante justice.

***

The men also asked the court to toss the attempted kidnapping charges, claiming the streets of the neighborhood were not a public road.

“Copious evidence supports the jury’s underlying finding that Glynn County ‘provided or administered’ the streets of Satilla Shores,” U.S. Circuit Judge Elizabeth Branch wrote in the opinion.

Branch and U.S. Circuit Judge Britt Grant, both Trump appointees, rejected the men’s arguments and found sufficient circumstantial evidence for jurors to conclude they intended to block Arbery’s access to a public road by chasing him with guns and boxing him in with their pickup trucks.

The panel noted the streets were central to the crime, as the entire pursuit and shooting unfolded along the roads of Satilla Shores. Branch wrote it was reasonable to infer that, without Arbery’s use of those streets, the specific crime would not have occurred.

“The jury had ample evidence that defendants attempted to kidnap Arbery for a benefit,” Branch wrote.

“Based on their posts supporting vigilantism and associating black people with criminality, the jury could have reasonably inferred that the defendants acted to boost their reputation as neighborhood crime-stoppers, to remove suspected criminals from their streets, or to promote their sense of vigilante justice. Or, based on their racist and often violent language, the jury could have reasonably inferred that they acted to gain some personal satisfaction by inflicting violence on a black man,” she added.

The three-judge circuit panel was rounded out by U.S. District Judge Victoria Calvert, a Joe Biden appointee sitting in from the Northern District Court of Georgia, who disagreed with one aspect of the majority’s ruling.

In a dissenting opinion, Calvert said she would have reversed the men’s kidnapping convictions. She disagreed with the majority’s conclusion that the pickup trucks used by Travis and Greg McMichael qualify as instrumentalities of interstate commerce for attempted kidnapping.

When a victim is not transported across state lines, evidence must show the offender either traveled in interstate or foreign commerce or used the mail or another instrumentality of interstate or foreign commerce to commit or further the crime.

“Here, the evidence showed that the defendants used Travis’s truck to drive on the streets of a residential community to pursue Arbery and then parked Travis’s truck to block Arbery from fleeing,” Calvert wrote.

“There was no interstate travel, no use of the interstate highway system, no exchange of communications via phone or text message, and no use of the internet,” she added.

While the decision aligns with those of other circuit courts, Calvert said it raises constitutional concerns about the balance between state and federal prosecution.

 

Rest in Peace, Judge Dube

By John R. Byrne

Sad news. Judge Dube, who served our Court as a magistrate judge for seventeen years, has passed away. Judge Dube served from 1996 to 2013. He also served our country as a Marine before attending the University of Miami for both his undergraduate and legal education. 

Below is David's 2013 post commemorating Judge Dube's retirement. Rest in peace, Judge Dube. 

********

Judge Dube retires

Magistrate Judge Dube has been part of the court family for a long long time.  Today he retired, and the court had a nice luncheon for him.  In classic Dube fashion, he started off his remarks: "I am a humble man, but I agree with all the nice things you said about me."  Good stuff. 

When I was a clerk back in 1997, Judge Dube made a point of introducing himself to the new clerks and offering any help we needed in figuring out how the court worked.  He also helped us all get involved in the Federal Bar Association, a group he ran for over 25 years.

His longtime clerk Lourdes Fernandez gave some really nice heartfelt remarks about her 10 years with Judge Dube.

He's a good man.  

Judge David William Dyer

By John R. Byrne

This week Judge David William Dyer is in the spotlight. President Kennedy appointed him to our district in 1961 and he served until 1966. Why the short stint? In 1966, President Johnson appointed him to what was then the United States Court of Appeals for the Fifth Circuit (the Fifth Circuit later split to create the Eleventh Circuit). As a district judge, Judge Dyer issued a decision desegregating restaurants that served travelers on Florida's turnpike. 

In 1997, Miami's historic downtown federal courthouse was named after Judge Dyer. A bunch of big trials were held there, including the Noriega trial. It's been closed now for years and it's unclear what they're going to do with it. 

Portrait and FBA post below. 

Hon. David W. Dyer was nominated by President Kennedy and served on the district court from 1961-1966. In Goldberg v. Saf-T-Clean, Inc., 209 F. Supp. 343 (S.D. Fla. 1962), Judge Dyer found Saf-T-Clean, Inc. and its president violated the Fair Labor Standards Act and granted an injunction to prevent further violations.

Judge Martinez Receives Davison Award

By John R Byrne

It's hard to find a bigger fan of the U than Judge Martinez. For a while, he even did the Spanish language broadcast for some of the sports teams. Recently, UM Law awarded him the Davison Award, an award given annually to a distinguished alumnus of the law school. Several of our judges came out to celebrate him (picture below)

From Left to Right: Judge Sanchez, Judge Lopez-Castro, Judge Moreno, Judge Becerra, Judge Martinez, Judge Damian, Judge Altonaga, and Judge Isicoff. 

And a Happy Veteran's today to all the blog readers who've served this country. 

The talk of the town

 Everyone has been talking about the grand jury investigating Trump's "grand conspiracy" theory here in the Southern District of Florida.  Bloomberg covered it last week (including two AUSAs being fired or having to resign --depending on who you ask -- for not participating) and the New York Times has the story this morning. From the Times:

Far-right influencers have been hinting in recent weeks that they have finally found a venue — Miami — and a federal prosecutor — Jason A. Reding Quiñones — to pursue long-promised charges of a “grand conspiracy” against President Trump’s adversaries.

Their theory of the case, still unsupported by the evidence: A cabal of Democrats and “deep-state” operatives, possibly led by former President Barack Obama, has worked to destroy Mr. Trump in a years long plot spanning the inquiry into his 2016 campaign to the charges he faced after leaving office.

But that narrative, which has been promoted in general terms by Mr. Trump and taken root online, has emerged in a nascent but widening federal investigation.

Last week, Mr. Reding Quiñones, the Trump-appointed U.S. attorney for the Southern District of Florida, issued more than two dozen subpoenas, including to officials who took part in the inquiry into ties between Russia and Mr. Trump’s 2016 presidential campaign, according to people with direct knowledge of the matter.

Among them, they said, were James R. Clapper Jr., the former director of national intelligence; Peter Strzok, a former F.B.I. counterintelligence agent who helped run the Russia investigation; and Lisa Page, a former lawyer at the bureau.

 Bloomberg has more details about the politics inside the office:

The national security unit has long been organized as a section within the office’s criminal division, but Reding Quiñones this week informed staff that he stripped the criminal chief’s authority by ordering the national security group to start reporting directly to the US attorney’s executive office, according to a Nov. 3 email obtained by Bloomberg Law.
That announcement came 14 hours after prominent MAGA influencer Jack Posobiec denounced the criminal chief, Peter Forand, on X for donating $2,300 to the 2024 Kamala Harris presidential campaign and other Democratic causes.

Forand will “be in charge of” of the newly empaneled grand juries “to investigate Crossfire Hurricane and the Mar-a-Lago raid conspiracy,” Posobiec posted. “Can Forand be trusted to fairly investigate the Biden regime and Jack Smith if he’s friends with them and donates thousands of dollars to them?”
About two hours after Reding Quiñones emailed out the new leadership structure, Posobiec referenced his earlier Forand criticism in a new post to his 3.2 million followers: “UPDATE: Hearing good things on this.”
Forand, who former colleagues say has operated as a nonpartisan prosecutor willing to implement any administration’s objectives, had previously been removed from an office directly outside of Reding Quiñones’ executive suite to a different part of the building, three people said.
That office space is now occupied by a newly hired chief of staff to the US attorney—an unusual position under any top prosecutor. That chief of staff, Jim Poland, is an FBI agent on detail, who’s overseeing the office’s “non-litigation and administrative functions,” Reding Quiñones wrote to staff Nov. 3.

 

2026 Red Mass

By Jordi C. Martínez-Cid

Yesterday was the Red Mass of the Holy Spirit at Gesù Catholic Church. The Miami Catholic Lawyers Guild organizes the event every year. The Lex Christi, Lex Amoris Award was presented to Chief Judge Altonaga by Judge Ruiz. For those of you whose Latin is rusty, the award translates to Law of Christ, Law of Love. The mass was presided over by Archbishop Wenski, pictured below with the aforementioned judges.

Judge Emett Clay Choate

By John R. Byrne

We're moving into the '50s now with our SDFLA judges, featuring Judge Emett Clay Choate today. Judge Choate presided over some interesting cases in our district, including the case of a man (Richard Paul Pavlick) who tried to assassinate then President-elect John F. Kennedy. FBA write up below. Served in World War I and practiced in Oklahoma and New York before moving to Miami. 

Judge Choate was nominated by President Eisenhower and served on the district court from 1954-1974. In Moorhead v. City of Fort Lauderdale, 152 F. Supp. 131 (S.D. Fla. 1957), aff’d, 248 F.2d 544 (5th Cir. 1957), Judge Choate ordered the Miami City Commission to end segregation on the municipal golf course.

Howe on the Court

By John R. Byrne

One of the best events our local chapter of the FBA puts on every year is the Supreme Court roundup with Amy Howe. The co-founder of SCOTUS blog, Amy's been covering the Supreme Court beat for years and has also argued before the Court. Always a great turnout from our bench at this lunch. 

This year's event will be at Coral Reef Yacht Club in Coconut Grove on Tuesday, November 18. You can buy your tickets here. 

Should CJA lawyers (and PDs) start refusing appointments?

 There's whispers going around that this might happen because they haven't been paid in many months because of the shutdown.  And could you blame them?  

From Reuters:

As the U.S. government shutdown disrupts paychecks for federal workers across the country, it is exacerbating the financial woes of lawyers who defend the poorest members of society when they are accused of federal crimes.
Some of the private attorneys who work as court-appointed lawyers for indigent federal criminal defendants have stopped taking new cases and have argued that their clients are being denied their right to effective counsel, according to court records and defense lawyers.
About 12,000 private lawyers across the U.S. serve on court-managed panels that provide counsel to defendants who cannot afford to hire an attorney. The program that compensates these lawyers under the Criminal Justice Act ran out of money in early July, and the shutdown - now in its 34th day - has resulted in Congress not authorizing any new funding.
Lawyers who serve on these panels represent about 40% of criminal cases against people who cannot afford attorneys, according to the Administrative Office of the U.S. Courts. The remaining 60% of indigent cases are handled by full-time federal public defenders who work for the court system. Since mid-October, they have been working without pay as well.