Federal Grand Jury to Possibly Investigate Claims of “Lawfare” Against President Trump

By Jordi C. Martínez-Cid

Our district was in the news again. Various media outlets have reported that Mike Davis, founder and president of the Article III Project and former Chief Counsel for Nominations to Senate Judiciary Chairman Chuck Grassley, has claimed that a grand jury will be empaneled in Fort Pierce early next year to investigate a supposed decade-long conspiracy by Democratic Party officials and federal law enforcement agents aimed at undermining President Trump. There has been no official confirmation of the scope or purpose of the grand jury. Articles on the topic can be found here, here, and here.

The Heat is On

By John R. Byrne

Heat guard Terry Rozier didn't play in the Heat's opening loss to the Magic on Wednesday night. It was a coach's decision. Playing time is now the least of his worries. On Thursday morning, Rozier along with several others were arrested by the FBI on illegal gambling charges. Chauncey Billups--the NBA hall of famer who's currently coaching the Trailblazers--was also arrested, though for a slightly different alleged gambling scheme. 

The gist of the charges against Rozier involve prop "under" bets placed on his statistical performance in games, bets that paid off when Rozier left a game early. The separate indictment against Billups alleges that he was involved in rigged poker games that involved various methods of high-tech cheating that seem right out of a movie (including special contact lenses and glasses that could read marked cards).

Oh, and the mafia (Las Cosa Nostra, specifically) is also involved. Wild, wild, stuff. ESPN article here, if you want to read more. 

(Updated) NOT GUILTY x2: BIG DAY FOR THE FEDERAL DEFENDERS OFFICE

GUEST POST BY LAUREN KRASNOFF

Update: 

Following her not guilty verdict in Ruiz, AFPD MaeAnn waited patiently to celebrate with her boyfriend, Tim Driscoll, a state PD. But Tim couldn’t get there right away - he was waiting with APD Yanelis Zamora on their own verdict in front of Judge Richard Hersch. Tim and Yanelis’s client was found NOT GUILTY of the felony charges, but the double NG wasn’t enough for Mae and Tim - they got engaged! A true PD/NG love story!

Yesterday was a big day on the 11^th floor of the Wilkie D. Ferguson Courthouse, where the words NOT GUILTY were ringing loudly enough to hear in the attorney lounge (what, you forgot there was an attorney lounge?). The Office of the Federal Defender heard not one, but TWO federal juries find their clients NOT GUILTY.

In Judge Ruiz’s courtroom, AFPDs Ashley Kay and MaeAnn Dunker’s client, Ricardo Dos Anjos Gomes, was found not guilty of two counts of assault on a federal officer. Mr. Gomes was accused of biting two officers at the Crome Detention Center, where he was being held by ICE. The officers alleged that Mr. Gomes, upset about the conditions of confinement, bit the officers, causing them to “redirect” him to the ground (where they continued to “redirect” him, with nine other officers piling on). It turns out the jury agreed with Ashley and MaeAnn – that even those detained by ICE have a right to defend themselves from officers using excessive force.

In Judge Williams’s courtroom, AFPDs Victor Van Dyke and Ian McDonald’s client, Angelina Miguelina Hollis, was found not guilty of conspiracy to export a controlled substance and attempted exportation of a controlled substance. (Note: The controlled substance was marijuana, and yes, the dwindling USAO still has time to prosecute people for marijuana). Ms. Hollis’s alleged co-conspirator testified against her, but Victor and Ian were able to show not only that the cooperator perjured herself and lied during her debriefs, but also that Ms. Hollis was lied to, manipulated, and set up – and never had any intent to join the conspiracy.

I’m always proud to be a defender – but getting word of two not guilty verdicts in one day (from one office full of lawyers who aren’t being paid right now) is a great reminder about why we continue to do the work. I’m a strong believer that exercising the right to trial is the best leverage we have against the power of the United States government. In both of these cases, the government had it wrong. Ashley, MaeAnn, Victor, and Ian stood between their clients and the government – and told the government that if you want to take away our client’s liberty, you’ll have to get through us first.

What a great day for the Federal Defender’s Office. What a great day for justice. And what a great reminder to keep saying, “Ready for trial.”

#PDPride

Mensch on the bench

Judge Dimitrouleas is a great trial judge.  A story from a trial he is currently presiding over: 

An in-custody witness comes into court one morning complaining that the jail didn’t allow him to wear his  yarmulke to court. Judge D says hold on, I have one in my car you can have. He calls a 5 minute recess, goes down to his car and returns with yarmulke in hand. He passes it to the witness and calls in the jury.

He later explains that it was from Bob Josefsberg’s funeral. 

News & Notes

 By John R. Byrne

1. The DOJ is looking to hire a bunch of new lawyers. Business Insider covers it here, noting that this includes the Miami office which is looking for criminal, civil, and appellate attorneys.

 2. Last Wednesday, the Catholic University of America Columbus School of Law hosted a panel that included our own Judge Ruiz. The other participants were federal appellate judges Kyle Duncan (Fifth Circuit) and William Nardini (Second Circuit). The panelists discussed their pre-judicial legal career, their path to the bench, and their work as judges. A theme was how their Catholic backgrounds have shaped them as jurists. Very interesting watch if you have the time. Video here.

3. Non-football related, some of us need more religion in our lives given the state of our football teams. Canes blew a prime time game Friday night, FSU has somehow lost nine straight ACC games, and Florida just fired their coach. Oh, and the Dolphins were bludgeoned to death 31-6 by the 1-5 Cleveland Browns. Think this is officially rock bottom, folks. 

Oral Argument in Zantac MDL

By Jordi C. Martínez-Cid

The Eleventh Circuit, specifically a panel composed of Judge Jordan, Judge Lagoa, and Judge Hernandez Covington (sitting by designation), heard oral argument on the appeal from Judge Rosenberg's 341-page summary judgment order in the Zantac multi-district litigation. The appeal deals with interesting issues of jurisdiction, preemption, the role of courts when evaluating scientific evidence, and esoteric MDL issues. Recording of the oral argument can be found here. While most of the cases related to Zantac are pending or have been settled before State courts, the MDL in our district effects thousands of cases. Some observers, such as Courthouse News, suggest that the panel was sympathetic to the plaintiffs' arguments with regard to their challenges to the Daubert rulings. Regardless of how the panel rules, it will likely be worth a read and will have far-reaching consequences.

Justice Kennedy speaks out

 His memoir, Life, Law, & Liberty, is coming out.  So he is speaking... and saying some interesting things.  From the NY Times:

As a justice, he leaned mostly right, siding with the court’s conservatives to strike down campaign finance laws, to gut the Voting Rights Act and to expand the scope of the Second Amendment. But he joined the court’s liberals in cases on abortion, affirmative action and the death penalty.

Justice Kennedy also turned out to be the greatest judicial champion of gay rights in the nation’s history, the author of the majority opinions in four of the court’s landmark gay rights rulings, culminating in the 2015 decision establishing a constitutional right to same-sex marriage.

The rulings were met by cutting dissents from Justice Scalia, who wrote, for instance, that he would “hide my head in a bag” if he ever joined an opinion that began, as the 2015 one did, with this sentence: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

But the blow that really stung, Justice Kennedy wrote, was his colleague’s statement in 2015 that there were no genuine Westerners on the court because “California does not count.”

That comment, he said last week, was “way out of line,” as “my upbringing was very much in the West.”

It led to a rift, one that did not start to heal until the next February, when Justice Scalia came to visit. “We had the conversation right here,” Justice Kennedy recalled, “and he was really concerned that he’d gone too hard. He was in earnest, and he was being honest about the fact that he changed his mind and that he was intemperate.”

Justice Scalia, an enthusiastic traveler, was setting off on a hunting trip in Texas, during which he would die in his sleep. “And the last thing he said was, ‘Tony, this is my last long trip,’” Justice Kennedy said. “Which turned out to have multiple meanings.”

News & Notes

Well, I just finished week 4 of this 3 month civil trial in state court. It makes me truly miss federal criminal cases! More on all of this when I finish, if ever.

In the meantime, some news and notes...

1. A few days ago I posted about the Comey indictment and asked what the strategy should be. Interestingly, no one has raised the Hyde Amendment. Although I made some bad law in this Circuit on the ability of a criminal defendant to recover for a vexatious case, you gotta wonder whether that statute will be employed. Maybe these prosecutions will breathe new life into the Hyde Amendment.

2. Things are changing at the U.S. Attorney's Office. Jason Reding Quinones sent an email around last week naming new sections and new chiefs. Previously, he named Yara Klukas (who was as sitting judge) as First Assistant.

Here are the other changes:

Economic Crimes & Cyber Fraud Section -- Michael Berger

Narcotics Section -- Sharad Motiani

Border and Immigration Crimes Enforcement (BICE) Section -- John Grivner

General Crimes Section -- Joe Egozi

Peter Forand stays on as Chief of Criminal. And Yisel Valdes continues as Deputy Division Chief.

Other Retained Section Leadership: National Security Section – Maria Medetis, Chief
Violent Crimes and Special Victims Section – Brian Dobbins, Chief
Collateral Litigation Section – Susan Osborne, Chief
Public Corruption Section – Ed Stamm, Acting Chief
Civil Rights Section – Ed Stamm, Acting Chief