Fishy numbers at FDC-Miami

BOP is reporting that as of 04/28/2020, there are 1313 federal inmates and 335 BOP staff who have confirmed positive test results for COVID-19 nationwide.  Thirty have died.

The first female prisoner has died from coronavirus.  Her name was Andrea Bear and she was only 30.  It's a horrific story.  She had recently surrendered on a two-year sentence and was pregnant.  She had the baby while on a ventilator, and the baby survived.

Meantime, the numbers at FDC-Miami are strange.  There, we see 14 staff members who have tested positive, but no inmates.  How is that possible?  The explanation is pretty simple actually -- prisoners at FDC-Miami are not being tested.  I have heard this from numerous sources -- the clients themselves, guards, and others. 

So I call B.S. on the numbers, which local prosecutors are citing as a reason to deny release and bond.

In the good news category, go check out Don Samuel's new blog, Contemporary Legal Problems.  Don writes the 11th Circuit Handbook, that bible we all use everyday to kickstart our research.  While blog numbers are way down because of Twitter and other social media, it's nice to have such a great addition to the blogosphere!

Another Vacancy on the 11th Circuit -- Is a Compromise Near?

Hi there, SFL filling in for DOM as we hit the long holiday weekend.

It's true our own Judge Jordan was elevated without too much drama, discord, or delay, but that's not the case with Jill Pryor, who was nominated in February to fill Judge Birch's seat but has yet to be confirmed.

Now comes word that Judge J.L. Edmondson plans to go senior, possibly paving the way for a deal:

An intriguing possibility is that Edmondson's decision could allow the White House and the senators to compromise on a package of two nominees to the Eleventh Circuit — namely, Pryor and Troutman Sanders partner Mark Cohen.

Earlier this year, Chambliss and Isakson sent White House Counsel Kathryn Ruemmler a letter indicating they would return blue slips on Pryor and U.S. Magistrate Judge Linda Walker for district court spots and Cohen for the circuit seat.

The Daily Report previously reported that Cohen was vetted late last year by FBI agents and the U.S. Justice Department for the Eleventh Circuit post, an indication the White House had considered him for Birch's seat. Cohen has Democratic connections — he served as Governor Zell Miller's executive counsel and chief of staff.

But, acting as a special assistant attorney general for the state, he defended challenges to Georgia's voter ID law, a statute that Democrats generally consider anathema. Pryor, a partner at the Atlanta litigation boutique Bondurant Mixson & Elmore, previously was a member of the American Civil Liberties Union of Georgia's legal committee.

But it's by no means clear that either the White House or the senators would go for such a package.

Hmm, a Troutman Sanders partner who defended Georgia's voter ID law --  I think that makes you a moderate in the Peanut State.

Judge Jordan voice vote with no opposition

Congrats to Judge Jordan who took the next step today in getting to the 11th Circuit. The judiciary committee's voice vote was unanimous today on Judge Jordan. Senator Sessions even congratulated President Obama on nominating Judge Jordan, who said he had met with him and was impressed with his "12 good years as a district judge" and his prior experience. Cool!

HT: Glenn Sugameli

11th Circuit decides Padilla case 2-1

Here is the opinion .

Judge Dubina writes the majority, which Judge Pryor joins, affirming the conviction and reversing Jose Padilla's 17 year sentence as too low. Judge Barkett dissents on both the conviction and sentencing holdings. In total, there are 120 pages of opinions. This case seems destined for Supreme Court review.

More to follow...

Judge Jordan's confirmation hearing next week

It's set for Tuesday, September 20. That was quick -- Well done to the adminsitration for moving this nomination forward. After his hearing, then he will get written questions from the committee and then there will be a vote. Looks like Judge Jordan may be on the 11th by sometime in November.

Now we need to get Bob Scola confirmed. He is #19 on the list of district judges waiting confirmation, so if they do a few per week, we are looking at October for Judge Scola.

Things are starting to move, which is nice.

Big shout out to Dore Louis for his posting over the past two days. Good stuff.

News and Notes

1. Lots of people (91 in total and 45 in Miami!) charged with Medicare Fraud today.

2. Psychics get bond. But they knew that already.

3. Check out this footnote at the end of the opinion in United States v. Smith, which held that an appellate waiver was enforceable: After this opinion was written, the government filed a motion to withdraw its previously filed brief, which had argued that the appeal waiver applies, to vacate the sentence, and to remand for resentencing under the decision in United States v. Rojas, 645 F.3d 1234 (11th Cir. 2011). The motion admits that the sentencing appeal waiver does apply but states that the government has now “determined that it is appropriate under the circumstances to forego reliance upon the appeal waiver provision in this case.” OK, now what?

UPDATE -- I missed the continuation of the footnote on the next page:

The primary circumstance cited in the government’s motion is that Attorney General Eric Holder has changed the Department of Justice’s policy on whether the Fair Sentencing Act applies to cases in which the defendant was sentenced after enactment of that legislation. There has not, however, been any change in the law concerning sentence appeal waivers, and it is on the basis of the waiver that we are deciding this case. Sentence appeal waivers serve interests of the judiciary as well as interests of the government and defendants. See United States v. Bascomb, 451 F.3d 1292, 1296–97 (11th Cir. 2006) (interests of the government and defendants); cf. Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627 (1977) (recognizing
that plea bargains benefit all concerned, including the judiciary). And once an appeal arrives in this Court it is our responsibility to see that it is decided correctly under the law. For these reasons, the government’s motion is denied.

Wow.

Judge Jordan's application

Judge Jordan's nomination is, by all accounts, moving quickly towards confirmation. Here is his Senate questionnaire (which is unbelievably onerous and long):

Judge Jordan's CA11 Questionnaire

If you aren't interested in that sort of thing, here is the trailer for the new Hunger Games movie coming out in the spring. Go Katniss!

Get More: 2011 VMA, Music

Congrats to Judge Adalberto Jordan!

President Obama nominated him today to sit on the 11th Circuit. He will be terrific on the court of appeals but will be sorely missed on the district court where he was known for his smarts, his patience, for treating everyone with respect and for calling 'em right down the middle.

Here's the press release from the White House:
President Obama Nominates Judge Adalberto José Jordán to the United States Court of Appeals

WASHINGTON, DC – Today, President Obama nominated Judge Adalberto José Jordán to the United States Court of Appeals for the Eleventh Circuit.

“Judge Adalberto José Jordán will bring an unwavering commitment to fairness and judicial integrity to the federal bench,” President Obama said. “His impressive legal career is a testament to the kind of thoughtful and diligent judge he will be on the Eleventh Circuit. I am honored to nominate him today.”

Judge Adalberto José Jordán: Nominee for the United States Court of Appeals for the Eleventh Circuit
Judge Adalberto José Jordán has served as a District Judge on the United States District Court for the Southern District of Florida in Miami since 1999. He also teaches as an adjunct professor of law at University of Miami School of Law, where he has taught since 1990, and Florida International University College of Law, where he has taught since 2007. Judge Jordán was born in Havana, Cuba, and immigrated to the United States with his parents at the age of six. He received his B.A. magna cum laude from the University of Miami in 1984, and his J.D. summa cum laude from University of Miami School of Law in 1987. After graduating from law school, he served as a law clerk to the Honorable Thomas A. Clark of the United States Court of Appeals for the Eleventh Circuit from 1987 to 1988, and the following year he served as a law clerk to the Honorable Sandra Day O’Connor of the Supreme Court of the United States. In 1989, Judge Jordán joined the Miami law firm of Steel Hector & Davis LLP (now Squire Sanders & Dempsey) as a litigation associate, eventually specializing in appellate practice and becoming a partner in 1994. Later that year, he joined the United States Attorney’s Office in the Southern District of Florida, serving as an Assistant United States Attorney in the appellate division and handling criminal and civil appeals on behalf of the government. Judge Jordán became appellate division chief in the office in 1998, and also served as special counsel to the United States Attorney for legal policy. Since being appointed to the District Court bench in 1999, Judge Jordán has presided over nearly 200 trials on a wide range of civil and criminal matters. In addition, he has frequently sat by designation on the United States Court of Appeals for the Eleventh Circuit.

Big defense wins in the 11th Circuit

Friday afternoon was a rare time in the 11th Circuit -- two published opinions in favor of criminal defendants.

First up is a win by rising star AFPD Sowmya Bharathi in U.S. v. Rojas, No. 10-14662 (11th Cir. June 24, 2011):

The issue in this appeal is whether the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (2010), applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter. We conclude that it does.
***
We conclude that the FSA applies to defendants like Vera Rojas who had
not yet been sentenced by the date of the FSA’s enactment. The interest in
honoring clear Congressional intent, as well as principles of fairness, uniformity,
and administrability, necessitate our conclusion. Accordingly, we reverse and
remand to the district court for re-sentencing.

Next up is a win by Richard Klugh in U.S. v. Ladson, No. 10-10151 (11th Cir. June 24, 2011):

Ladson argues that the Government did not file and serve an information
containing notice of an enhanced sentence in accordance with § 851(a)(1). We agree
that he was not served before trial with a copy of the information in accordance with
§ 851(a)(1), and thus the district court lacked authority to impose an enhanced
sentence on Counts I and II under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), (C), and 846.
We therefore vacate Ladson’s mandatory term of life imprisonment on Count I and
ten-year sentence on Count II, and remand with instructions to resentence Ladson on
Counts I and II without the § 851 sentence enhancement under the second
information. We affirm the judgment of conviction on Counts I, II, and IV.

Truthiness at law

D.O.M. has been much pressed for time of late, so I’m going to look at some dissents he’s noted and ultimately make good on his promise to revisit Gilbert. These opinions present a problem I can’t tackle in a single post, so I have to proceed episodically. I want to suggest that what Stephen Colbert dubbed truthiness is spreading through the law like a nasty virus and that, whatever harm truthiness inflicts when spewed by politicians and propagandists, its employ in opinions may be even worse. And the dissenters are sounding the alarm.

D.O.M.’s quote from Judge Wilson’s Duke v. Allen dissent shows that the majority's affirmance of the state courts’ facts is indefensible. “But,” as Justice Scalia recently wrote, “reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand.” Far more grave is this claim by the Duke majority: defense counsel’s saying “‘let the record reflect that the district attorney pointed straight at the defendant when he said that,’ is just an oral motion made by a lawyer; it does not establish the fact of a gesture having been made.”

Leaves you dumbstruck, right? The law now considers a plain statement of fact—let the record reflect—to be a motion. If you’re the dissenting judge, what do you say to that? How do you explain how a record is made to someone who seemingly doesn’t grasp it from the word “record” itself? My first thought was that one could cite a few of the thousands of reported cases where a judge uses the phrase (and maybe for emphasis allude to the scene in My Cousin Vinny where the judge says to the court reporter, “Let the record reflect that counsel is holding up two fingers.”). A judge would hardly make a motion to himself (or to a court reporter), ergo the phrase must not signal a motion.

Judge Wilson chose another tack. In addition to a couple of cases in which counsel used the phrase, he cited evidence gurus Mueller & Kirkpatrick for the proposition that a statement for the record is no motion. But he didn’t cite M&K’s authoritative five-volume Federal Evidence treatise. No, he cited page 17 of their law school textbook, the one I use to teach evidence to UM’s 2Ls and 3Ls. Maybe I’m seeing more than what’s there, but I think that when, in a published case, one judge disputes another judge’s holding with reference to a law school textbook, there’s a veiled message there.

Quick hits

1. En banc 11th Circuit, per Judge Pryor, rules that Orlando can place limits on feeding homeless without violating First Amendment. CSM coverage of the case here:

In a decision announced Tuesday, a federal appeals court ruled against the group, Orlando Food Not Bombs, and gave a green light to city officials to enforce an ordinance restricting weekly feeding of the homeless in downtown parks.

“The city is in a far better position than this court to determine how best to manage the burden that large group feedings place on neighborhoods in the city,” Circuit Judge William Pryor wrote for the unanimous decision of the 11th US Circuit Court of Appeals in Atlanta.

2. Still no Bonds verdict. Day 4 of deliberations today.

3. Via Jay Weaver, ICE chief on paid administrative leave. AOL snitched him out:
The head of Immigration and Customs Enforcement for South Florida has been placed on paid administrative leave, as federal agents investigate four images of child pornography he allegedly received on his home computer via an AOL e-mail account, according to sources familiar with the probe.

4. Front page story about my friend Alfred Spellman and his partner Billy Corben, who are just tearing it up at age 32! Their latest flick, Square Grouper, looks great:

He and Alfred Spellman, both 32, started filming documentaries with their friend David Cypkin when they were in high school, Corben at New World School of the Arts and Spellman and Cypkin at North Miami Beach Senior High School. Now their formerly self-staffed group rakontur employs six full-timers in their Miami Beach house-cum-office.

Even with that growing staff, it’s hard to believe they’ve produced half a dozen award-winning feature-length documentaries, including The U, part of ESPN’s 30 for 30 series. Or that the Miami premiere of their new documentary Square Grouper on Thursday is the first of five premieres set for 2011. Another five full-length features are planned for 2012. Up until now, the group had released about one a year.

"This appeal is about usurping the role of the jury in a criminal trial byrelying upon racial stereotypes."

That's how Judge Pryor started the opinion in United States v. Almanzar. Also on the panel was Judge Carnes and our very own Judge Seitz.

The rest of the opinion's intro:

The key question presented is whether there is sufficient evidence to support a jury verdict that Araceli Almanzar knowingly possessed with the intent to distribute 500 grams or more of methamphetamine. 21 U.S.C. § 841(a)(1), (b)(1)(A). The United States appeals the judgment of acquittal and conditional grant of a new trial entered in favor of Almanzar after a jury found her guilty of the charged offense. During a traffic stop of a truck loaded with 6,665 grams of methamphetamine in a hidden compartment, Almanzar exercised control over the truck and gave both written and verbal consent to its search, lied to a state trooper about the ownership of the truck and her acquisition of it, presented a phony bill of sale, and appeared to be so nervous as to be on the verge of a “panic attack,” with her hands shaking and her mouth dry. Almanzar later admitted that she had lied to the state trooper because her travel by bus from Dallas to Atlanta with her brother to retrieve the truck from two strangers was “suspicious.” She also admitted that she knew the truck contained “something we were not supposed to have.” Before the district court entered a judgment of acquittal, it stated that “life is different for a Hispanic woman in a male dominated culture, . . . the cultural expectations are different and that Hispanic women frequently, basically, do what their male family members ask them to do without asking lots of questions.” The United States argues that the evidence was sufficient to support the jury’s verdict and the district court applied the wrong standard of review, relied on speculation and impermissible stereotypes, considered information not in the record, and substituted its judgment for that of the jury. The United States also argues that the jury’s verdict was not a miscarriage of justice that would support the grant of a new trial. We agree with both arguments of the United States. We vacate in part, reverse in part, and remand with instructions to reinstate the jury’s verdict and conduct further proceedings consistent with this opinion.

Who got this one right -- the district judge or the 11th Circuit?

“Notice of Appeal Rule 4(a) of Federal Rules of Appellate Procedure. Request Permission to Appeal My 17 Years of Wrongful Conviction"

It's almost impossible for a criminal defendant to win in the 11th Circuit. But the pro se prisoner who filed the above pleading in the court of appeals did just that. From the opinion's intro:

Luis Camejo-Rodriguez seeks relief from his 1995 guilty plea to various cocaine and firearm offenses. In the instant appeal, he argues that the document he filed on September 11, 2009, entitled “Notice of Appeal Rule 4(a) of Federal Rules of Appellate Procedure. Request Permission to Appeal My 17 Years of Wrongful Conviction,” is an application to this Court for an order authorizing him to file a second or successive habeas petition. We conclude that Camejo-Rodriguez does not need such an order because the district court failed to properly notify him of the consequences of re-characterizing an earlier motion as his first § 2255 habeas petition, as required by Castro v. United States, 540 U.S. 375, 383, 124 S. Ct. 786,
792 (2003). Therefore, Camejo-Rodriguez is entitled to file a habeas petition that is not subject to the restrictions placed on second or successive petitions.

UPDATE--Congrats to AFPD Janice Bergman who was appointed by the 11th to represent Mr. Camejo-Rodriguez.

11th Circuit in Atlanta is closed today

It's cold there. From the Court's website:

Inclement Weather
Court of Appeals employees should not report for duty at the Tuttle or Godbold Buildings in Atlanta on Monday, January 10, 2011, unless they are specifically directed to do so by a supervisor.

It's a beautiful day in Miami today. Outside the Ferguson Courthouse this morning, there was the swearing in of all the new representatives. Everyone who spoke mentioned John M. Roll and the other victims who died in the tragedy in Tucson, Arizona, and wished a complete and speedy recovery to Representative Gabrielle Giffords. In addition, Chief Judge Moreno gave a nice shout out to Kathy Williams and urged the new reps to get her confirmed. Well done Chief.

11th Circuit Limits "Safety-Valve" Sentencing Relief.

Hi kids, SFL here, killing time while David O undoubtedly does something glamorous and exciting I am sure.

I'm glad I don't do any criminal, because if I did I'd have to use the term "safety-valve" as part of my work.

Instead I'm stuck with delightful words and phrases such as "Celotex," "Iqbal," "Venetian Salami" and "mending the hold."

But for those of you who derive some kind of legal meaning from a safety valve, you may consider this new 11th Circuit opinion of value, which disagrees with several other circuits on this question:

The question we must resolve today is this one: can a district court grant safety-valve relief when reducing a defendant’s sentence pursuant to section 3582(c)(2)? The answer is “no,” because the safety-valve is inapplicable to sentence-modification proceedings.

Best I can tell, the 11th reasons that a Section 3582(c)(2) proceeding is not a "sentencing or resentencing" proceeding, but is instead a "modification of a term of imprisonment."
 
But then later there's a footnote in which the 11th acknowledges "they are in some sense a sentencing proceeding."

So I'm glad crim law makes as much sense as civil litigation?

255 pages of en banc fun

The 11th Circuit issued United States v. Irey today, with 255 pages of opinions, which are a must read for any criminal practitioner in this Circuit. The question presented is whether a lengthy variance (from 30 years to 17) was reasonable in a horrific case involving multiple acts of child rape. The majority, written by Carnes and joined by Dubina, Black, Hull, Marcus, Wilson and Pryor, found the variance substantively unreasonable. Lots of interesting questions addressed, like how much deference is due to trial courts at sentencing.

Here are some highlights from Carnes' opinion:

The steady stream of criminal cases flowing through this Court brings us many examples of man’s inhumanity to man, and we see a depressingly large number of crimes against children.


The 17 ½-year sentence, if all of it were to be served, would amount to only 4 months and a week for each of the 50 distinguishable victims that Irey raped, sodomized, or sexually tortured.


In light of 18 U.S.C. § 3624, Irey will likely serve only 15 years and 3 months of his sentence, which works out to less than four months for each of those 50 victims who can be distinguished from each other in the images that show some of Irey’s crimes. And that calculation does not include any time for Irey’s additional criminal behavior of producing and distributing the massive amount of extremely graphic child pornography. Four months per child raped, sodomized, and tortured is grossly unreasonable. In sentencing there should be no quantity discount for the sexual abuse of children.


We realize that 17 ½ years, even when reduced to 15 ¼ years to serve is, as the panel stated, “a substantial portion of a human life—and no serious person should regard it as a trifle.” … Irey, after all, sentenced the children he raped, sodomized, and sexually tortured to a lifetime of harm, and the egregious child pornography he created and distributed will, because he uploaded it to the internet, continue causing harm for far longer than 17 ½ years. Irey’s pink wall series will last longer than his own lifetime or ours, inciting and encouraging the sexual abuse of multitudes of children yet unborn.


Because of the substantial deference district courts are due in sentencing, we give their decisions about what is reasonable wide berth and almost always let them pass. There is a difference, though, between recognizing that another usually has the right of way and abandoning one’s post. We will not quit the post that we have been ordered to hold in sentencing review and the responsibility that goes with it. The Supreme Court has instructed us that “[i]n sentencing, as in other areas, district judges at times make mistakes that are substantive,” and that it is our duty “to correct such mistakes when they occur.” Rita, 551 U.S. at 354, 127. In this case the district court made a substantive mistake, a clear error in judgment, by unreasonably varying downward from the advisory guidelines sentence when no sentence less than it is sufficient to fulfill the purposes set forth in the Sentencing Reform Act. To do our duty to correct that mistake, we vacate the sentence the district court imposed and remand with instructions that the defendant is to be resentenced within the guidelines range.

Judge Tjoflat concurs that the amount of variance is unreasonable but dissents, arguing that the case should be remanded for the district judge to find what is reasonable. He argues that it is not the job of the 11th Circuit to sentence Irey:

In sum, when placed on a balance sheet, the grave institutional harm caused by the court’s approach significantly outweighs any benefit the approach might yield. Resentencing defendants on appeal diminishes the role of the district court in the eyes of the legal profession, and it diminishes the public’s confidence in the district courts as an institution for administering criminal justice. It misallocates and gobbles up judicial resources. None of this is necessary. If a sentence constitutes an abuse of discretion, we should simply say so and return the case to the district court, the appropriate forum for the main event.

The first dissent is written by Judge Edmonson, and joined by Birch Barkett and Martin:

The limit that the law places on the right use of appellate court power to interfere with the sentencing decisions of United States District Judges (who, of course, have -- under the law -- powers of their own) is, for me, what this appeal is about. The specific case before us involves a serious crime and ghastly conduct -- “horrific” in the District Judge’s words -- on the part of Defendant. And, no party
has contended that the District Judge, in imposing the sentence, made a significant procedural error. The government prosecutors (who bear the 1 burden of showing reversible error) contend that the sentence imposed in district court is too lenient and that no sentence would be lawful except the maximum sentence of imprisonment that the pertinent criminal statute will allow: 30 years.

The issue is not whether federal appellate judges ought to do their duty. They must. And the issue is not whether appellate courts can review sentences and sometimes correctly set them aside, even when the sentence was imposed without procedural errors. They can. Appellate judges do have some legitimate power to review the substance of sentences: that is, to determine whether a District Judge has imposed a sentence that is either too lenient or too harsh as a matter of law. The general question presented here is what is the limit, under the law, on the power of appellate judges in deciding such reviews.

Next up is Judge Birch, who says (I think quite rightly):

The time-worn adage in jurisprudence that hard facts often lead to bad law is certainly applicable to this case. I have little doubt that had I been the sentencing judge I might well have fashioned a different and harsher sentence for this defendant. But the decision at play here is the respective roles of the appellate court and the sentencing court. Our appellate role is properly constrained by the standard of review to which we are required to adhere. As Judge Edmondson persuasively describes the application of that standard to the record, it compels an affirmance of the sentencing court’s judgment in this case. Accordingly, I respectfully dissent and join in the dissenting opinions of Judge Edmondson and Judge Barkett.

Judge Barkett also dissents, joined by Birch and Martin:

I agree with just about everything in Judge Edmondson’s dissent. If there is any point of departure, it is the addition (or clarification, in my view), that the district judge must articulate the reasons for the sentence imposed based on the evidence in the record. Because the record may support a number of reasonable sentences, this articulation is necessary so that the appellate court can be satisfied that the district judge actually considered how all of the § 3553 factors relate to the defendant’s individual case.

11th Circuit update

Thanks very much to JANE MOSCOWITZ for this guest post:

Richard Strafer and Howard Srebnick had a big win in the Eleventh Circuit this week in United States v. Kaley. Judges Marcus, Wilson and Tjoflat reversed and remanded the district court's decision not to permit the Defendants to challenge the pretrial restraint of assets they wanted to use to hire their counsel of choice, Howard Srebnick and Susan Van Dusen. Judge Marcus wrote that the Court was bound by United States v. Bissell, 866 F.2d 1343 (11th Cir. 1989), which held that a defendant is only entitled to such a hearing if he meets the Barker v. Wingo balancing test. Here, clearly believing that there should have been an evidentiary hearing, the Court determined that the trial court had failed correctly to balance the Defendants’ assertion of their right to a hearing and the prejudice to them of its denial. Judge Marcus especially noted the prejudice to the Defendants of being deprived of their counsel of choice, calling that a “powerful” form and “substantial source” of prejudice. The Court sent the case back for a correct evaluation of the factors to determine whether a hearing should be held.

Judge Tjoflat concurred in a separate opinion in which he held that Bissell should not apply because its use of Barker v. Wingo was “non-binding dicta.” Judge Tjoflat did not find the return of the indictment or the submission of an ex parte affidavit sufficient to determine whether the restrain was proper. He wrote that under the standard procedural due process test of Mathews v. Eldridge, an evidentiary hearing should be held ( a proposition with which Judge Marcus agreed) and should be held pretrial. The resolution of whether assets that are to be used for the payment of counsel of choice may continue to be restrained cannot wait for determination at the trial. He noted that, if the matter is carried along till trial, the “prosecutorial incentives increase the likelihood of an erroneous deprivation in the absence of a prompt hearing. A prosecutor has everything to gain by restraining assets that ultimately may not be forfeited. By doing so, he can stack the deck in the government’s favor by crippling the defendant’s ability to afford high-quality counsel. If the prosecutor can delay judicial oversight of the restraint until trial, he also has nothing to lose, as he does not have to dedicate any extra resources to defending his decision.”

"There is no constitutionally significant difference between masturbating in front of a minor in person versus doing so via web camera."

That's the Eleventh Circuit in USA v. Aldrich. Not sure I have anything to add to that one.

Moving on to other appellate news, the 11th Circuit reversed Judge Highsmith's sentence of probation for James Hendrick, "once Monroe County's powerful government attorney." Here's Jay Weaver's article and here's the opinion. The entire analysis on the sentencing is as follows:

The government cross-appeals Hendrick’s below-guidelines sentence. After
carefully reviewing the record and considering the arguments that the parties
briefed and orally argued, we agree with the government that the sentence is both
procedurally and substantively unreasonable. We accordingly vacate it and
remand for resentencing.

That's it? I understand (sort of) short opinions from appellate courts when they affirm, but to reverse with no analysis...

What say you dear readers? I have taken off moderation, so please be appropriate in the comments.

Cracking the guidelines

Last year the Sentencing Commission retroactively amended the crack guidelines. But what happens when a defendant was sentenced as a career offender? Here's the Law.com article discussing how the 11th Circuit oral argument from the 5 consolidated cases (4 from Judge Hurley, 1 from Judge Middlebrooks) went in Atlanta today:

Today, two of the most controversial issues in sentencing law -- the length of sentences for crack cocaine offenders and judges' ability to go outside the federal sentencing guidelines -- will intersect in arguments at a federal appeals court panel sitting in Atlanta.
The five cases from the Southern District of Florida, consolidated for oral argument at the 11th Circuit, have the potential to affect many other cases throughout Florida, Georgia and Alabama. The appellate chief at the U.S. Attorney's Office in Atlanta, Amy L. Weil, said she'd seen about a dozen motions by defendants in the Northern District of Georgia alone that raise the same issue.
In each case before the court today the defendant was convicted of a federal crack cocaine offense and sentenced before more lenient crack cocaine sentencing guidelines went into effect in November. Each is trying to get a new sentence based on the change in the guidelines but has been stymied because prosecutors argue they were sentenced as career offenders. (see below for related case briefs.)
Crack cocaine sentencing guidelines have been criticized because the sale, manufacture or possession of crack carries a much harsher sentence than that for a similar amount of powder cocaine. The disparity has been described as a 1-100 ratio, meaning a small amount of crack is equivalent under the sentencing guidelines to a large amount of cocaine. Defenders of the disparity in sentencing have said that crack is more likely to be linked with crimes of violence, while critics note that the harsher crack guideline disproportionately affects African- Americans.

11th Circuit vacates drug conviction

Extremely interesting case from the 11th Circuit today, United States v. Lopez-Vanegas. The issue is whether the U.S. drug laws reach conspiracies to distribute cocaine from one foreign country to another, where meetings occurred here in the U.S. The Court said no, reversing two convictions.

From the 11th:

Appellants assert that the agreement to ship cocaine from Colombia to Venezuela to Saudi Arabia to France for distribution throughout Europe does not violate 21 U.S.C. § 846 because the object of the conspiracy – the possession and distribution of cocaine on foreign soil – is not a violation of 21 U.S.C. § 841(a)(1). Thus, the district court should have granted defendants’ motion for acquittal at the close of the Government’s case. The Government asserts that the defendants’ conduct was encompassed by the prohibitions of 21 U.S.C. § 846 and § 841(a)(1), forbidding conspiracy to possess with intent to distribute cocaine. The issue of whether discussions occurring in the United States related to possession of controlled substances outside of the United States with intent to distribute those substances outside of the United States is a crime in the United States is res nova in the Eleventh Circuit. We squarely address that issue now.
***
Because the Court holds that 21 U.S.C. §§ 841 and 846 do not apply extraterritorially, the conduct of Lopez and Salazar does not violate those statutes. The judgments of conviction and sentences issued by the district court are VACATED.

It will be interesting to see how this case is applied in a number of different prosecutions. First, the Padilla defense has raised this argument, saying that even if the Government is correct, the object of the conspiracy deals with conduct overseas. I'm not sure if the statute at issue there contemplates this sort of activity... but if not, watch out. (Second) Update -- I'm told that the statute at issue in the Padilla case does, in fact, address conduct overseas...

Also, what about the cases involving people going overseas to find underage sex. Typically, those cases involve a defendant talking to an undercover travel agent arranging for a trip to another country. To date, these convictions have been upheld even though all the intended activity is occurring in another country. UPDATE -- a helpful reader points out that the statute in these cases, 18 USC 2423, addresses people here travelling in interstate or foreign commerce, which makes it much different than the drug statute addressed above.

Very interesting...

Congrats to Scott Srebnick and Richard Strafer, the defense lawyers on this case.