"What Would Bob J. Do?: Re-Examining Civility Today"

That's the title of this very nice piece in the DBR by Meaghan Goldstein and Katie Mitchell.

It starts this way:

Civility is a popular buzzword in legal circles, but perhaps not as popular in practice. The test comes in the ordinary moments and small decisions in litigation, which ultimately shape our daily lives: the email you’re about to send, the argument you’re about to make, the extension you’re asked to agree to. During the past year, when faced with uncertainty, we’ve found ourselves returning to one question in these moments: What would Bob J. do?

One year ago, the world lost Bob Josefsberg. We lost a mentor and a role model, and a true gentleman in the courtroom and out. We lost the first lawyer we worked under, who contributed so much to the formation of our own careers, but also the man who was mentor and teacher to so many people at KTT, including our founders. We lost the grandfather in our mentorship family tree, so to speak. But we have not lost the legacy.

As the calendar marks what would have been his 88th birthday, we find ourselves reflecting on the lessons Bob taught us, which, at their core, were quite simple: being a good person is part of being a good lawyer. 

Great timing for this piece as the FBA will be honoring Bob tomorrow night at its gala.  

Judge Leibowitz strikes down § 611 non-citizen voting statute (as applied)

By David Oscar Markus

Judge David Leibowitz issued an important 31-page opinion today holding that Congress had no power to pass 18 U.S.C. § 611, the federal statute that makes it a crime for a non-citizen to vote in a federal election. The government alleged that Chelsea Cox voted in Broward County in 2020 knowing she was not a citizen. It charged her with a misdemeanor. Judge Leibowitz appointed Paul Clement's firm as amicus, ordered a second round of briefing, and held oral argument. Then he held the statute unconstitutional as applied to Cox and dismissed the Information.

You gotta read this entire opinion.  It's awesome.

It opens:

This is an unusual criminal case. It rests upon a forty-year-old federal statute, 18 U.S.C. § 611, that prohibits the act of voting in a federal election by a non-U.S. citizen. Until very recently, no federal court has been presented with the following question about that statute: Did Congress have Constitutional authority to enact it?1 That’s unusual, all by itself.

But this case is even more unusual than that, because the Government’s principal defense of the statute’s constitutionality invokes a single Supreme Court case that is very, very weak. Let me say that a different way. The leading case cited by the Government to uphold the statute is of “minimal precedential value” (that’s not my characterization, it’s Justice Scalia’s; we’ll get to that), and the application of other binding precedent shows that the Government’s leading case simply does not control this one. So why does the Government lead with such a weak hand? Because it’s the best hand it can play. And why is that? Because the text, structure, and original public meaning of the Constitution show that Congress does not have the constitutional power to enact this statute. 

Cox moved to dismiss and the government responded. Judge Leibowitz then Paul Clement and Chadwick Harper of Clement & Murphy as amicus curiae. They took it on pro bono. The order makes clear they weren't there for either side. Their job was to give the court "a thorough and candid view of the relevant legal authorities." Judge Leibowitz thanked them for acting "in the finest tradition of the federal bar."

The government's main argument was Oregon v. Mitchell, 400 U.S. 112 (1970), where the Supreme Court upheld Congress lowering the voting age to 18 for federal elections. The problem is that Mitchell had no majority rationale. Justice Black relied on the Elections Clause. Four other Justices relied on the Fourteenth Amendment. Five Justices rejected each theory. As Judge Leibowitz put it: "Here's the weird part, and it has real bite for our case."

He walked through Marks and the Eleventh Circuit cases applying it and concluded that Mitchell holds only that Congress can regulate voting age in federal elections. He rejected the government's broad reading. He also rejected Cox's position that Mitchell has no precedential value at all.

The government tried to wave off Justice Scalia's description of Mitchell in Arizona v. Inter Tribal Council as "of minimal precedential value." Dicta, said the government. Judge Leibowitz answered with Judge Carnes: "there is dicta and then there is dicta, and then there is Supreme Court dicta."

Article I, Section 2 and the Seventeenth Amendment tie voter qualifications for Congress to the qualifications each state sets for its own legislature. Article II leaves presidential electors to the states. The Framers considered giving Congress the power to set voter qualifications and said no. George Mason called it a power that "would be a dangerous [one] in the hands of the [federal] Legislature."

Section 611 has an "unless" clause that carves out state and local races where state or local law lets non-citizens vote. So § 611 bars non-citizens from federal races even in a state that lets them vote. Clement called that clause "the most damning textual evidence of Congress' overambitious intent." Judge Leibowitz agreed that § 611 is a voter qualification law. Neither the immigration power nor the Elections Clause saves it. As Justice Scalia wrote in ITCA, Congress may regulate "how federal elections are held, but not who may vote in them."

The amicus brief shows up all over the opinion. Clement's team flagged that § 611 validly reaches D.C. elections, which is why the court ruled only on the as-applied challenge. It rejected the government's reliance on a footnote in Kusper v. Pontikes. And it sketched the statute Congress could have written: one that makes it a federal crime to vote in violation of a state's voter qualifications. The court agreed it would "be difficult to identify a constitutional flaw" in that one.

It's a fun opinion to read.  And there are a bunch of similar cases pending (one went to trial a few weeks ago before Judge Becerra and the defendant was acquitted).  It will be interesting to see how this plays out. 

The SDFLA’s Aileen Wuornos Connection

By John R. Byrne

America is fascinated by serial killers. If you need more proof of that, HBO Max is streaming yet another documentary on Aileen Wuornos, the woman who was convicted of murdering six men. The documentary is titled "Unmasking a Monster." There have been multiple dramatizations of the Wuornos story, including, most famously, the movie "Monster," which earned Charlize Theron an Oscar for her portrayal of Wuornos.

How does this relate to the SDFL, you ask? Judge Raag Singhal actually represented Wuornos. Not at trial, though. His involvement came later. A Broward County judge appointed him to represent Wuornos in connection with complaints she had about her treatment in state prison. In that capacity, Judge Singhal wrote a letter to the justices of the Florida Supreme Court expressing concern about Wuornos's mental condition and, more specifically, whether she was competent to be executed. I'm linking to it here. Acknowledging that Wuornos herself was essentially asking to be executed, Singhal wrote: “It would seem to me that we should not be eager to execute an individual simply because she is a volunteer.” You can hear Judge Singhal's voice when you read that line, right? 

The letter got the Court's attention. The Court treated Singhal’s concerns as a claim that Wuornos might not be competent to be executed and referred the matter to then-Governor Jeb Bush. A few days later, Bush temporarily stayed the execution and ordered that Wuornos be examined by three psychiatrists. They ultimately concluded that she was competent to be executed, and Bush lifted the stay. Wuornos was executed by lethal injection on October 9, 2002.

One of Those "Only in Miami" Cases

By John R. Byrne

Ever been passing through the Grove and spotted a “diminutive, nattily dressed fellow with dark, bushy eyebrows and a conspicuous toupee”? If so, you may have seen Leslie Roberts, the man the Miami New Times describes as the “notorious” Miami art dealer. 

Now a federal judge is looking for him.

Roberts, who previously pleaded guilty and served prison time for selling forged Peter Max works, was supposed to be in federal court last Friday for another sentencing. This time, he’s being sentenced for selling forged Andy Warhol works.

But he didn’t show up.

Judge Altman has continued the sentencing for a week while the government and Roberts’s lawyer try to find him.

The Warhol forgery scheme was quite elaborate. It even involved a co-conspirator posing as a “senior art appraisal authenticator” to authenticate the works. The guy reportedly showed up dressed in black and wearing white gloves and everything.

I’m sharing an article here that includes a picture of Roberts.

A friendly bit of advice: If you see him, exercise caution regarding any significant art purchases.

TVPA Trial Regarding the Siege of the Palace of Justice in Bogotá Concludes

By Jordi C. Martínez-Cid

Two weeks ago I wrote about the opening of Urán, et al. v. Plazas Vega, No. 0:22-cv-60338-RAR, the Torture Victim Protection Act case against retired Colombian Colonel Luis Alfonso Plazas Vega arising out of the 1985 siege of Bogotá’s Palace of Justice. On September 17, the jury returned a unanimous verdict of not liable on every count. Col. Plazas was cleared of both a conspiracy theory and a command-responsibility theory, as to both the torture and the extrajudicial killing of Magistrate Carlos Horacio Urán Rojas.

For those who didn’t follow the trial, I’ll say it again, the Miami Law Human Rights Program’s Substack did a remarkable job of it and it is from them I am getting most of my information. This post won't do it justice, so check it out for yourselves here: https://miamilawhumanrightsprogram.substack.com/p/uran-et-al-v-plazas-vega.

Some highlights from my reading. Plaintffs hired Forensic Architecture, a research group that painstakingly synchronized forty-year-old news camera footage, military radio traffic, and witness statements into a single reconstructed timeline. Both sides spent a tremendous amount of time on this as you might imagine. A former military informant was called to testify and was crossed. A former auxiliary magistrate who testified he saw Mag. Urán’s body on the Palace floor was confronted with a 1986 video of himself saying, three times, “I didn’t see him.” Even Col. Plazas himself testified, insisting that his command was limited and that overall command belonged to General Jesús Armando Arias Cabrales. He was quoted as saying that “You can't shoot at the enemy and ask guerrillas for ID at the same time.” Pressed on inconsistencies with his own prior declarations and five books on the siege, he repeatedly told plaintiffs’ counsel some version of either “I don't remember” or “this happened 40 years ago.”

In closing, plaintiffs’ counsel argued that “Urán survived M-19 [the guerilla group] . . . but he did not survive the Colombian military.” The defense’s response was more clinical: “The tragedy is clear. The connection is not.” Judge Ruiz instructed the jury that they were not bound by the Colombian courts’ own findings of Col. Plazas's 2010 conviction and his 2015 acquittal, but that they could give them whatever weight they thought appropriate. After eight trial days and a little over three hours of deliberation, which included three questions from the jury, the jury submitted a complete defense verdict. President Abelardo de la Espriella, who I had mentioned in my last post for having expressed support of Col. Plazas, reiterated his full support.

Credit: Forensic Architecture's 3D model of the Palace of Justice and Plaza de Bolívar.

2026 S.D. Fla. Hispanic Heritage Event

 By Jordi C. Martínez-Cid

Yesterday was the district's Hispanic Heritage event featuring José Herrera Paz, a partner at Hinshaw Culbertson; Aymee Valdivia, a partner at Holland & Knight; Amys Serret, Chief Justice Couriel's law clerk (and soon to be law clerk to Chief Judge Altonaga); and moderated by Patricia Sánchez Abril, Dean of the UM Law School. Assistant County Attorney Fabiana Cohen made the introductory remarks.

The panel was about whether Miami is still the gateway to the Americas. The answer is yes, but I think we all anticipated that. What stood out and made the event so positive was the passion of the presenters and the sense of pride it helped generate about our community and our country. The American Dream is still alive, and though each of the presenters had their own difficult journey, there was a sense that, at least in Miami, the community at large wanted them to and helped them succeed.

The event was well attended and as always, there was way too much food at the reception. Special thank you to Judge López-Castro (back of head pictured below) and Judge Hernández who chair the committee that puts on the event.

Why was this objection sustained?

By David Oscar Markus

 CourtTV has some background on this fascinating pro se murder defendant:

Tomasz Kosowski, 47, has pleaded not guilty to a charge of first-degree murder in the death of Steven Cozzi, 41, who disappeared in March 2023. Cozzi was representing a group of people being sued by Kosowski at the time of his disappearance; prosecutors say Kosowski, angry and frustrated over the lawsuit, killed the victim in a bathroom at Cozzi’s law firm. Kosowski, a Dartmouth Medical School graduate, is representing himself at trial and has waived his right to a jury, meaning Judge Joseph Bulone will decide his fate.

I love his cross:

During Tuesday’s cross-examination, Kosowski focused on what prosecutors said he did: kill the victim in the bathroom, then load the body into a Gorilla Cart that he wheeled to his truck. Then, prosecutors said, Kosowski eventually moved the body to a second car, drove it to a dumpster and disposed of it. Despite extensive search efforts, Cozzi’s remains have never been found.

"How did I get that Gorilla Cart onto the truck?” Kosowski asked. “From what I recall, [Cozzi] weighed about 190 pounds,” Bolton said. “It’s a movable amount of weight. It can be lifted. It was in a wagon. But that’s an amount of weight that can be picked up and put in the bed of a truck.”


Kosowski: “Are you physically fit?”
Bolton: “I would think so.”
Kosowski: “Do you exercise?”
Bolton: “I do.”
Kosowski: “Do you lift weights?”
Bolton: “I do.”
Kosowski: “OK, would you be willing to help in a demonstration?”
Bolton: “Yeah, I could. Sure.”

Kosowski pointed at a desk in the room and said it measured 30 inches high—close to his Tundra’s 28 inches. “I would say that’s a pretty good analog, maybe a little bit less, of the height that somebody would have to lift a person to load it onto the Toyota tailgate,” Kosowski said. “Now, we have a Gorilla Cart in evidence right now. What I propose we do is that we take that Gorilla Cart, we ask for a volunteer that’s approximately 190, 195 pounds to get into that Gorilla Cart. And I would like you to lift that Gorilla Cart with that person onto the desk.”

Prosecutors objected to the proposed demonstration; Bulone sustained it, saying that Kosowski had made his point. But the defendant wasn’t done. “He’s telling you,” Kosowski said, pointing at Bolton, “that I committed the murder, and he’s trying to kill me for it,” he added, pointing to the prosecution team. “That is their theory. The least they have to do now is show me that this is plausible. Now, because of my career, I know what it’s like to transfer 195-pound people all the time because I transfer people from … OR tables to gurneys all the time, all right? If your theory is real, you should have no problem lifting that cart up with a 195-pound person onto that desk.”

Bulone again denied Kosowski’s request but said he would consider it.

But why was the objection sustained??

Here's a video of the exchange.  

Tom Goldstein strikes back

By David Oscar Markus

 I am biased here, I admit.  I like Tom and am rooting for him.  I think the trial was way overblown and the consequences are absurd.  I'm glad to see that he has a great appellate lawyer and lots of amicus supporting him.  You can read those briefs here and here.

Bloomberg covers it:

A former federal prosecutor who once served as personal counsel to President Donald Trump backed a new trial for convicted former Supreme Court lawyer Thomas Goldstein, in a friend-of-the-court brief outlining pervasive “prosecutorial misconduct.”

The brief, filed by amicus John Dowd in support of Goldstein’s Fourth Circuit bid for a new trial on federal tax and mortgage fraud charges, condemns what it calls the government’s “convict-by-any-means-necessary approach.”

Goldstein’s appeal identifies what it calls “fatal flaws” in the prosecution — withheld evidence, problematic jury instructions, and improperly excluded evidence — but the conduct underlying those problems “was only part of a far broader pattern of impropriety,” Dowd wrote.

From start to finish, he said, the Justice Department “withheld evidence, mischaracterized the facts, and unpredictably shifted positions to find any workable way to target Goldstein.”

The amicus brief also claims the government misled the court repeatedly, including in its efforts to extend the statute of limitations on some of the charged offenses.

Dowd was a prosecutor in DOJ’s Tax Division and chief of an organized crime strike force in the Criminal Division before entering private practiceHe is well-known for representing Trump, for a time, in former special counsel Robert Mueller’s investigation into alleged collusion with Russia. He resigned while the investigation was still underway.