Judge Donald L. Graham

 

By John E. Thornton, Jr.:

Shrewd, wise, pensive. Courteous, disciplined, respectful. Cultured, traveled, adventurous. These are the first words that come to mind when reflecting upon the last fifteen years I have known Judge Graham.

I interned for Judge Graham during the summer after my 1L year, and I clerked for him from 2015 to 2017. For those who have served as judicial law clerks, clerking is one of the best legal jobs one can have. Besides the rigorous education clerking provides, its true value comes from the unwritten nuggets of wisdom received from the judge for whom one clerks. For two years, I learned from him—how to: interpret the law; analyze the facts; distinguish effective advocacy from the ineffective; properly prepare for every challenge, no matter how small; and navigate a legal career, an esteemed profession—not industry, while also serving the community in which we practice.

Judge Graham personifies professionalism. He never demands more from litigants or their counsel than what he demands from himself or his staff. Preparedness, thoughtfulness, accountability, excellence, integrity and, of paramount importance, respect for the court. As a jurist, Judge Graham is a perpetual student of the law. Because of that, he approaches every matter with astute clarity, which ensures every case and ruling is handled efficiently and judiciously.

Having served over thirty years on the bench—thirty-four to be exact, Judge Graham has presided over and ruled upon many consequential cases, both locally and nationally. These cases include: Haitian Refugee Ctr., Inc. v. Baker, 1991 WL 330942 (S.D. Fla. Nov. 19, 1991), where he granted the emergency application for a temporary restraining order to halt the United States from forcing the repatriation of Haitians to Haiti; Meek v. Metropolitan Dade Cnty, Fla., 805 F. Supp. 967 (S.D. Fla. 1992), where, in a forty-one page opinion, he ruled that Miami-Dade County’s then-present at-large system of voting violated the mandate of Section 2 of the Voting Rights Act—affirmed on the merits by the Eleventh Circuit Court of Appeals; and Wojcieszak v. U.S., 196 F. Supp. 3d 1319 (S.D. Fla. 2016), where he vacated and set aside the petitioner’s original sentence and concluded that his three prior Florida burglary convictions, because of the elements constituting burglary in Florida, did not qualify the petitioner as an armed career criminal under the Armed Career Criminal Act’s (“ACCA”) enumerated or residual clauses. At a time when ACCA sentencing litigation was exceptionally high, and flooding the courts nationally in light of Descamps v. United States,  Johnson v. United States, and Welch v. United States, Judge Graham was the first Article III judge in the Southern District of Florida to issue an opinion granting a first-filed motion to vacate pursuant to 28 U.S.C. § 2255 based upon Florida’s burglary statute once the legal dust settled.

Before the judiciary, Judge Graham served in the Judge Advocate General’s Corps, United States Army, in West Germany and at the Homestead Air Force Base and then as an Assistant United States Attorney in Miami where he dutifully served that Office as both the Chief of the Narcotics Unit and Special Prosecutions Unit. After that, he went into private practice with Martin Raskin, Esq., where they engaged in criminal and civil trial practice in state and federal courts throughout the United States, including right here in South Florida when Miami’s “Cocaine Cowboys” were at their peak.

As a dedicated public servant, Judge Graham has served as a lecturer in the United States Department of Justice Trial Advocacy Program on behalf of the Department of Justice and Department of Commerce in: Cebu and Manila, Philippines; Shenyang, Hangzhou, Xiamen, and Shanghai, People’s Republic of China; Kathmandu, Nepal; Kampala and Jinja, Uganda; Gaborone, Botswana; Monrovia, Liberia; and Nairobi, Kenya. He has also served as a member of the United States Advisory Board on the Investigative Capacity of the Department of Defense, and as a faculty member for the Trial Advocacy Workshop at Harvard Law School in Cambridge, Massachusetts.

The breadth and depth of Judge Graham’s community activities and professional involvements include having served as a president, board member, or member of the following: Federal Bar Association, South Florida Chapter; National Bar Association; Wilkie D. Ferguson, Jr. Bar Association; District Judges Association – Eleventh Circuit; Council of Florida Bar Presidents; the Just The Beginning Foundation; and the 5000 Roles Models of Excellent Project.

Judge Graham has served as a professional and personal mentor to me. To wit, he graciously agreed to serve as the officiant when I married my lovely wife, Jennifer. That said, I am not the exception. He has provided prescient advice to innumerable law clerks, interns, attorneys, and staff. Judge Graham takes a keen interest in the lives of everyone with whom he encounters, and he guides those who request his stewardship.

Ever the traveler, Judge Graham has traveled to numerous countries and has visited every continent except Australia and maybe Antarctica. Maybe. From traversing rivers in Southeast Asia to exploring jungles in Africa, his knowledge and understanding of many different cultures is only rivaled by his knowledge and understanding of the law. Indeed, he has on multiple occasions spent time with the Maasai people of Kenya, for whom he has an affection and appreciation, who immediately took to him due to his warmth and kindness.

I would be remiss to omit Judge Graham’s affinity for all things Ohio State Buckeyes, especially football. Let’s just say I am glad I was not clerking for him when the Buckeyes played my Florida Gators in the 2007 BCS National Championship Game (the Gators won). But the Buckeyes have won two national championships since then and the Gators only one, the fact of which he will politely remind me when we discuss college football.

Judge Graham is fair, even keeled, and has a presence that fills any room but never seeks the limelight. Indeed, and unknown to many, Judge Graham periodically presides over matters in the Fort Pierce Division, despite sitting in Miami, and he has dutifully done so for years. Unknown to more, he was only the second Black American nominated and confirmed to the federal bench in the Southern District of Florida at a time when there were no Black judges in this District. If Judge Graham ever decides to hang up his robe, unlikely considering his vitality and vigor—he is in the gym four to five times a week, seriously—this community will owe him an unpayable debt of gratitude for his over 40 years of public service.

And with that, I will leave you with a quote I think captures the spiritual essence Judge Graham imprints upon anyone who knows him:

“Success is to be measured not so much by the position that one has reached in life as by the obstacles which he has overcome while trying to succeed.”

-Booker T. Washington

FBA Post Below:

 Judge Donald Graham was nominated to the district bench in 1991 by President George H.W. Bush; he continues to serve as a senior judge. After graduating from law school at The Ohio State University, Judge Graham served in the United States Army Judge Advocate General’s Corps from 1974 to 1979 and in the Army Reserve JAG Corps from 1983-1991. He worked as an Assistant United States Attorney and later as a private criminal defense attorney until he was nominated to serve the Court. In 2004, he was the first judge in the Southern District of Florida to hold a provision of the U.S. Sentencing Guidelines unconstitutional; his decision tracked Blakely v. Washington, decided that same year, and anticipated United States v. Booker the following year, which made the guidelines advisory nationwide.

Former AUSA Will Rosenzweig sues DOJ after being fired

 By David Oscar Markus

We previously blogged about the Rosenzweig saga, including the Golden Hammers.

The next chapter is here -- and the former AUSA has sued (here's the complaint, which is now before Judge Moore and has a blog reference).  He's represented by Margaret Donovan, Dan Fridman, and Adam Fels.

From the Herald:

“The Department’s conduct rests on a single premise: a citizen must forever refrain from criticizing the government and its leaders to remain eligible to serve it,” says the suit, which was filed in Miami federal court. “That rule would force every American who might one day serve to choose between speaking freely now and working for the government later. Conditioning public employment on political loyalty, where a party card rather than merit opens the door to a government job, is a way of life in Havana and Caracas. It has no place here.”

***

The South Florida office — with roughly 120 prosecutors on staff, about half the usual number of lawyers — was once known as one of the busiest in the country, but it’s now under siege. Reding Quiñones, a former Miami-Dade County judge, took over as the U.S. Attorney for the Southern District of Florida in August 2025. In a break from tradition, Reding Quiñones, a member of the conservative Federalist Society and a Trump loyalist, was sworn in by Bondi in Washington instead of by the Southern District of Florida’s chief federal judge. Despite being the head of the South Florida office, Reding Quiñones “never contacted Mr. Rosenzweig about his termination” by Bondi the following month, according to the fired prosecutor’s suit.

Judge Altman Pauses Order Requiring Trump to Send Financial Date to the BBC

By Jordi C. Martínez-Cid

U.S. District Judge Roy Altman has temporarily blocked an order entered by Magistrate Judge Lett that required President Donald Trump to hand over financial records of his business empire to the British Broadcasting Corporation.

This week, the BBC was supposed to receive that financial data through discovery in Trump's ongoing $10 billion defamation lawsuit against the outlet, which claims a 2024 BBC documentary damaged his business and reputation by deceptively editing footage of his speech on January 6, 2021. Non-Party Donald J. Trump Revocable Trust sought an emergency stay of the order requiring financial disclosure arguing the irreperable harm casued by the disclosure of that information and Trump's intent to amend his complaint to eliminate allegations of harms to his business. The amended complaint will supposedly seek damages only related to the purported harm to Trump's reputation. The BBC, however, argues that Trump's financial records remain discoverable because his reputation is closely tied to his business interests. If the case goes forward, what Trump's reputation is and how it was harmed is sure to be interesting.

The order was filed yesterday. Judge Altman agreed with the non-party Trust's argument, calling it "compelling," and added that “If the plaintiff’s amendment obviates the need to compel a non-party to disclose confidential financial information, we think it’s prudent to enter a brief stay of the order until the amendment request is resolved.” Judge Altman's order postpones discovery of Trump's financial information until the court determines whether amendment of the complaint is appropriate and what effect, if any, the revised claims will have on the scope of discovery. No deadline has been set at the moment for when Trump has to file the updated complaint. Judge Altman's order can be found here.

Hamburger Mary's Gets Flipped

By John R. Byrne

In an en banc decision, the 11th Circuit has upheld a Florida law that barred persons from knowingly admitting children to an "adult live performance.” What’s an "adult live performance," you ask? Well, that’s what the lawsuit was all about. Sure, the statute defined adult live performance, saying it was a live performance that satisfied the following four requirements:

• Requirement #1: depicts “nudity, sexual conduct, sexual excitement, or specific sexual activities [as defined], lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts”;
• Requirement #2: “[p]redominantly appeals to a prurient, shameful, or morbid interest”;
• Requirement #3: “[i]s patently offensive to prevailing standards in the adult community of [Florida] as a whole with respect to what is suitable material or conduct for the age of the child present”; and
• Requirement #4:  “[t]aken as a whole, is without serious literary, artistic, political, or scientific value for the age of the child present.”

But, according to the plaintiff (restaurant Hamburger Mary’s), parts of that definition were the problem. According to the restaurant, which puts on drag shows,  the use of the word “lewd” and the phrase “age of the child present” made the law unconstitutionally overbroad and vague. A majority of the 11^th Circuit disagreed. It noted, among other things, that the Florida Supreme Court supplied a definition for “lewd” back in 1971 (in a case called Chesebrough) and that the “age of the child present” requirement wasn’t a problem because  age-variable standards are an established feature of obscenity law (plus, the Court had previously upheld an even broader statute that prohibited works “harmful to minors” as a class). 

Lots of dissenting judges here (five) and two dissenting opinions. Judge Rosenbaum said that the Court had embraced the “mess-around-and-find-out” First Amendment jurisprudence (“mess” replacing a different word in the more familiar saying). The idea there being that the the "age of the child present” is so vague that live performance venues will only know what the law means by putting on a performance and “finding out” what happens—will they be charged with a misdemeanor or not? Judge Abudu also dissented, saying that the Florida legislature enacted the law for an unlawful purpose (to target protected speech it didn’t like by passing a law that chills it).

You can read the whole thing here. 

Mr. Impeachment

By David Oscar Markus

Florida Attorney General James Uthmeier, who has called for the impeachment of many really good judges, is now asking Congress to impeach Judge Nancy Abudu of the Eleventh Circuit.

Sigh.

If it wasn't so outrageous, it would be comical.

His reason? Before she took the bench, she worked at the Southern Poverty Law Center. 

The Constitution sets a high bar for removing a judge. Treason, bribery, high crimes and misdemeanors. In more than two centuries, the House has impeached only fifteen federal judges. The ones actually removed committed real crimes. Bribery. Perjury. Tax fraud. Not "used to work at a place the government now doesn't like."

Judges come from somewhere. Prosecutors. Public defenders. Big firms. Legal aid. Civil rights groups. If a lawyer's prior employer becomes grounds for impeachment, no judge is safe. Today it's the SPLC. Tomorrow it's a firm that represented a company under investigation, or a prosecutor's office with a bad case, or a defender who represented someone awful.

And Abudu isn't the only target. Uthmeier has called for impeaching some of our best judges. Most recently, Miguel de la O. Judges with sterling reputations, dragged into this because someone didn't like a ruling. Absurd.

This is becoming normal, and that's the problem. A judge rules the wrong way, or has the wrong resume, and someone calls for impeachment. It's a threat, and it's meant to be one. Rule against us and we'll come for your job.

Lawyers know better, and lawyers have to say so. An independent judiciary is the thing standing between our clients and the government. We defend it whether or not we agree with a given judge. The alternative is judges who decide cases with one eye on Congress.

Judge Abudu is a wonderful judge -- thoughtful, hard-working, liked by her colleagues.  But she comes from the other side of the aisle of Mr. Impeachment, so he is on the attack.  

Please don't say silent about this. The bar should be loud in its defense of our judiciary.

Our system has lost its way

By David Oscar Markus

Imagine the World Cup final goes to penalty kicks. The referee announces that one team gets five kicks and the other gets four for no good reason. 

The four-kick team loses. On review, the officials agree the referee got it wrong. But the result stands, they explain, because the winning team was better anyway. The advantage didn't matter. Then one of the three officials on the review panel writes separately to say there was no error at all. The losing team got to take some kicks. That's all the rules require.

No league in the world could survive that. But apparently it's good enough for our criminal justice system.

On Friday, the Eleventh Circuit decided United States v. Hernandez, No. 24-10047 (11th Cir. July 31, 2026). Elizabeth Hernandez, a nurse practitioner from Homestead, went to trial before Judge K. Michael Moore on charges that she defrauded Medicare of $111 million. The trial lasted six days. 

The court gave the government 40 minutes and the defense 30. When defense counsel hit her 30 minutes, the court cut her off mid-argument. She asked for ten more. Denied. After the government's rebuttal, she objected again, explaining that 30 minutes hadn't been enough to cover the false statement counts, the loss amount, or good faith. 

The panel, in an opinion by Judge Brasher joined by Judge Jill Pryor, agreed this was error. The government carries the burden in every criminal case, the court explained, so that "cannot justify dividing argument time unequally as between the parties." The district court "abused its discretion by applying this unusual presumption of unequal treatment."

But as is often the case, the court found harmless error: "It is inconceivable that granting Hernandez ten extra minutes could have overridden the extensive trial evidence of her guilt."

In other words, the winning team was better anyway.

And believe it or not, that was the defense-friendly part of the opinion. 

Judge Luck concurred in the judgment only, because he saw no error in the first place. In his view, a defendant is only entitled to an opportunity to give a closing argument, and enough time to make her legally tenable arguments. In his words: "That's it."  So one of the three judges on this panel wouldn't even call five kicks against four a problem.

There's a lot more to this opinion that will get your blood boiling. Good faith was one of the defenses Hernandez said she ran out of time to argue. When the court then read the instructions aloud, it told the jury that "[a] defendant is required to prove good faith." 

The law, of course, is exactly the opposite.

The panel held that error wasn't reversible because the written instructions were correct. 

Hernandez got 20 years.  Is it too much to ask for a defendant to get a fair fight before getting decades in prison?

Farewell to Judge Matthewman

By John R. Byrne

It was a heartfelt--and very funny--sendoff for Magistrate Judge William Matthewman yesterday at the Wilkie D. Courthouse. Magistrate Judge McCabe served as master of ceremonies, and the other speakers included former Magistrate Judge O’Sullivan, Magistrate Judge Reinhart, and Judge Williams.

At the outset, Judge McCabe unveiled an incredible throwback photograph of a young (and mustachioed) Judge Matthewman from his days as a K-9 officer with the City of Miami. Yes, his dog, Fuzz, was pictured too. I wish I had snapped a photo of it. As Judge Williams observed, Judge Matthewman looked ready to audition for CHiPs.

Although the speeches prompted plenty of raucous laughter, they also made clear how much respect and admiration Judge Matthewman’s colleagues have for him. And, although I probably should have known this already, I learned that Judge Matthewman was an accomplished criminal defense lawyer before taking the bench, including trying a high-profile death-penalty case before Judge Ungaro.

In his own remarks, Judge Matthewman cracked a few jokes, of course. But he also shared some words of wisdom that judges and lawyers alike could take to heart. For judges, he recalled what Judge Cohn told him when he first took the bench: “This job isn’t that hard. Listen carefully to the arguments and just be reasonable!” And for lawyers, this: Be concise. In your openings, your examinations, and your closings. 

And with that, I’ll end this blog post.

Girl you know it's true

By David Oscar Markus 

Do jurors know who Milli Vanilli is? A lawyer for a Goldman Sachs banker is betting on it as he invoked the lip synching group from the 1980s in his opening statement.

From Law360:

Jurors heard opening statements in the trial of former Goldman executive director Asante Kwaku Berko, 52, who's facing Foreign Corrupt Practices Act and money laundering charges stemming from an allegedly corrupt deal for a Turkish power producer to make hundreds of millions of dollars by supplying much-needed electricity to the West African nation while taking kickbacks for himself.

Goldman client Turkish Aksa Enerji Uretim AS was looking for an edge to secure a contract with the Ghanaian government in 2015 and 2016 to build and operate an electrical plant, prosecutors say. To make it happen, Berko arranged for the power producer to funnel corrupt payments to state officials "up and down the chain."

While prosecutors say they have strong evidence, such as Berko's "damning admission" to bribery on tape, and purported email correspondence about the bribes, after jurors heard the government's openings Tuesday, defense attorney Robert Boone of WilmerHale told the jury that just like the fact that Milli Vanilli stars Fab Morvan and Rob Pilatus did not provide the actual vocals for their songs, the government's case is devoid of proof that Berko committed any crime.

Boone told the jury "there were signs if you looked for it," in reference to the lipsyncing by the R&B-inspired German pop sensation that was credited with singing hits like "Girl You Know It's True" and "Baby Don't Forget My Number," namely, embarrassing technical snafus at performances and the heavy accents of Morvan and Pilatus that were conspicuously absent from their songs.

Despite the flashy presentation, Boone said that, like Milli Vanilli, "what you just heard from the government was an incredible story, but it wasn't true."  

I like creative lawyering and taking risks, but wondering if the jury will get it.