Judge Kidd rightly criticizes criminal discovery

By David Oscar Markus

The Eleventh Circuit affirmed a life sentence and a no-hearing suppression denial this week in United States v. Spearman, No. 24-10300, a dark-web child-exploitation case out of West Palm Beach (Judge Cannon below). The panel was Rosenbaum, Branch, and Kidd. Judge Branch wrote for the court. 

The court affirmed Judge Cannon's decision not to hold a suppression hearing.   

You gotta read Judge Kidd's dissent, which opens like this: "A two-hour suppression hearing. That is all Spearman requested." 

Judge Kidd then criticized criminal discovery and explained that in a civil case you can serve interrogatories, requests for admission, and take depositions. "Not so in the criminal context." He continues: "if a government agent's knowledge is not reduced to writing, then a hearing often is the only mechanism a criminal defendant can use to probe that person's knowledge."

The district court faulted Spearman for not offering declarations or affidavits from people with knowledge of a joint venture. Kidd's response is the question that answers itself: who, exactly, would those witnesses be? "The only 'witnesses or persons with knowledge' of a joint venture between the U.S. government and the foreign law enforcement agency would be the very people Spearman sought to examine at a hearing: the government agents who worked on the case." The court could have compelled those agents to say more. It did not. And Spearman, in Kidd's words, was "powerless under our criminal justice system" to do it himself.

"It places those defendants in a classic catch-22 situation: To establish entitlement to a hearing, a defendant must present evidence that only a hearing would uncover." And the close of that paragraph is the line I would put on the board: "If Spearman had the information that he sought to uncover, then he would not need a hearing.... But Spearman did not have this information that only a hearing could uncover. So he gets no hearing." 

Judge Kidd concludes: "A suppression hearing is one of the few tools available to criminal defendants to probe the extent of the government's intrusion upon their 'persons, houses, papers, and effects.'" 

Good for Judge Kidd.

SCOTUS Takes a Florida Six-Person Jury Case

 By David Oscar Markus

In Florida state court, you try your non-capital felonies to six jurors. The Supreme Court blessed that setup in Williams v. Florida, 399 U.S. 78 (1970), and for fifty-six years that was the end of the conversation.

Maybe not anymore.

Yesterday the Court granted cert in Kian v. Florida, No. 25-6623, to decide whether the Sixth Amendment entitles a defendant charged with a serious felony to a jury of twelve. 

The defendant is Hamed Kian, a chiropractor out of Jupiter. A six-person jury convicted him on five counts of practicing with a suspended license, and he drew a year and a day. The Fourth DCA affirmed with a PCA. Kian v. State, 421 So. 3d 439 (Fla. 4th DCA 2025). 

The argument is one that has been kicking around lately, including an order from Judge Milton Hirsch* in 2022 saying that the Constitution demanded 12 jurors. Justice Gorsuch also said as much three years ago, dissenting from the denial of cert in Khorrami v. Arizona. 

The cert petition came out of the Public Defender's office in West Palm Beach. Paul Petillo and the PD15 appellate shop got the Supreme Court to grant review in a case the Fourth DCA did not bother to write an opinion on. We really should get rid of PCAs.

Argument is set for the fall. If Williams falls, a whole lot of Florida verdicts get interesting in a hurry. 

*Speaking on Judge Hirsch, the New York Times covered an fascinating only-in-Miami story and Order that he wrote here. Plus, the story was written by Dave Ovalle who is back covering Miami court stories, now for the Times.  

Talk of the town

By David Oscar Markus

For sure the talk of the town right now is in state court, not fed land.  It's the George Pino trial, who is being represented by Howard Srebnick. The State is represented by Laura Adams. It's such a tragedy all the way around.  Unlike federal court where cameras are not permitted, Florida permits cameras in the courtroom so there is wall to wall coverage of the trial.  Because the case has affected so many members of the community, the whole town is watching and discussing.  

All eyes have been on Pino and there have been lots of comments about his demeanor.  On day one, minutes into the defense opening, Pino broke down. He cried, he shook, he could not catch his breath. Judge Marisa Tinkler Mendez stopped the trial, sent the jury out, and called paramedics. She told him to "get a hold of yourself." She also warned the defense not to let him hug his family and friends in the courtroom. "Even gestures are inappropriate," she said. "This is a court of law. We're not at a sporting event."

True, trials are not sporting events.  But I'm not so sure that defendants should not be permitted to show emotion during trial.  Imagine if Pino was stone cold and showed no emotion.  The jurors would certainly pick up on that and discuss it in the jury room.  Justice Kennedy discussed this in Riggins v. Nevada, 504 U.S. 127 (1992), where he wrote that at every stage of trial the defendant's "behavior, manner, facial expressions, and emotional responses, or their absence," combine to shape the jury's overall impression, and that impression "can have a powerful influence on the outcome of the trial." Id. at 142 (Kennedy, J., concurring in the judgment). A drug that flattens a man into looking bored and unfeeling, he warned, is its own kind of prejudice. Id. at 142-43. 

And of course, the system rightfully lets the victim's side show emotion. Families pack the courtroom and wear buttons with the victim's photo. They weep on the stand. The Supreme Court looked at exactly that in Carey v. Musladin, 549 U.S. 70 (2006), and refused to find any clearly established constitutional problem with a victim's family wearing the dead man's face on their chests through an entire trial. Emotion from that side of the aisle is treated as human and expected. 

Meantime, that hasn't been the only drama in the trial... Pino and Adams had an exchange on Friday that was all over the news.

The Court Begins Summer Program for Interns and Law Clerks

By Jordi C. Martínez-Cid

From personal experience, it seems that everyone who is lucky enough to get a federal clerkship or internship enjoys the experience, or at the very least found it incredibly rewarding. There has been a trend, pushed in significant part by The Legal Accountability Project, to highlight instances where law clerks might have been mistreated or mismanaged. This gives all the more reason to call out our district on going above and beyond for its law clerks and interns.

Under the leadership of Judge Bloom, our district has put together an eight-week orientation and ethics program. The program covers everything from federal practice, substantive areas of law, civics, state court practice, how to prepare a job application, wellness, and everything in between. The presenters include practitioners, professors, representatives from the U.S. Attorney's Office and the Federal Public Defender's Office, and whole host of judges from both within and outside our district.

When I clerked, I recall there being a single day where Judge Huck and a few other judges spoke to us about how to write and practice in federal court. There are things I learned that day that I still think about in my practice, so I cannot imagine how beneficial this would be for a young lawyer.

Trump v. BBC Update

By Jordi C. Martínez-Cid

Various news outlets have been reporting on Judge Altman's Show Cause Order in the Trump v. BBC lawsuit. The Judge, having noted that no response to the motion to dismiss was timely filed, issued the order requiring an explanation why and why he should not issue sanctions.

Trump's lawyers responded yesterday saying that opposing counsel had received a copy of the opposition and exhibits by the deadline, but did not docket a response. Instead, that same day they filed a motion to file under seal. The motion to file under seal made no mention of the deadline. The case number is 1:25-cv-25894 for those of you who wish to follow along on your own.

Life in prison, even if your drugs were stolen

By David Oscar Markus

Yesterday, the 11th Circuit affirmed two concurrent life sentences for Lebarron under the death-results enhancement in 21 U.S.C. 841(b)(1)(C). United States v. Lebarron, No. 21-12157 (11th Cir. June 8, 2026). The panel was Rosenbaum, Abudu, and Tjoflat. The lineup is the interesting part.

Judge Abudu wrote the majority. Then Judge Abudu wrote a concurrence, joined by Judge Rosenbaum, requesting the full court to take the case en banc and undo what the majority just did. Judge Tjoflat dissented, with a persuasive opinion.

Lebarron ran a drug house. J.B. was one of his sellers and an addict. The government's theory was that she went into the bedroom where the drugs were kept, came out with narcotics, shot up in the living room, and died. Lebarron wanted to tell the jury one thing. He didn't give her the drugs. She stole them. The district court said no. Possess with intent, somebody steals them and dies, you're still guilty.

So the jury answered two questions. Did Lebarron possess with intent to distribute? Was that the but-for cause of death? Two yeses, and a man goes away forever. No proximate cause. No intervening cause. No scienter as to the death. 

The majority says:

In short, subsection 841(b)(1)(C) is triggered once there is any substantive violation of subsection 841(a), including the possession of a controlled substance with the intent to distribute, that results in serious bodily harm or death.

The government never had to prove Lebarron handed these drugs to anyone, or even put them into the stream of commerce. The opinion calls that irrelevant.

But Judge Abudu, joined by Rosenbaum, also concurs and says that the result isn't just:

Although the majority opinion, given our precedent, is the correct one today, it is not the just one. While a dissent in this case is not in order, a reconsideration of Webb is more than ripe.

Tjoflat dissents: 

Should a man spend the rest of his life in prison because his drugs were stolen? According to the Majority, Congress would have it no other way, and our hands are tied. I disagree.

He gives the following hypo: John Doe gets hooked on pain pills after knee surgery. He keeps his stash in a safe by the bed. Burglars drill the safe, take the pills, and one of them overdoses and dies. Charge Doe with possession with intent, attach the enhancement, and under today's rule the judge can't even let him tell the jury his safe was robbed. Life sentence. Whether the judge likes it or not.

Watch for an en banc vote.

Priscilla Perez-Lopez sworn in as Marshal

A big congratulations to Marshal Perez-Lopez.  She's really terrific.  I remember when we both started out in the federal family -- she as a new deputy Marshal and me as a law clerk.  It's pretty cool to see someone rise through the ranks who is so well-deserving.  

District Accepting Clerkship Applications

By Jordi C. Martínez-Cid

The court's website reflects more than a handful of recently listed open clerkship spots in our district: https://www.flsd.uscourts.gov/job-listings.

Judges Martinez, Lenard, Sanchez, and Hernandez are all looking for applicants as well as the "U.S. Magistrate Judge Pending Appointment" in Fort Pierce. Two other spots are open for clerks to handle pro se filings. A clerkship is a great resume builder and a professionally and personally rewarding experience. The job are listed as "open until filled" so, if interested, apply promptly.