En banc day

The 11th Circuit has decided to hear the Fair Sentencing Act cases (Rojas and Hudson) en banc. The Federal Public Defender's office represents both defendants. The two en banc orders are here and here.

Rojas was the case that was on the 11th Circuit webpage and then off and then on again. Should be interesting...

In other news:

-- Justice Stevens has a new book out, Five Chiefs, that looks really interesting.

-- Kenneth Starr says open up the Supreme Court to cameras. He's 100% right. Why not:

The benefits of increased access and transparency are many. Democracy’s first principles strongly support the people’s right to know how their government works. This would seem to be underscored by this court’s stubborn insistence on freedom of communication in a democratic society. Recall that earlier this year, the court held that the First Amendment protected the right of protesters to hector a military family during a funeral service for their son, who was killed in Iraq. And the court decided that the same societal interest in free speech outweighed California’s interest in protecting minors from extremely violent video games. These are but two of many examples in which the current court has made plain its view that, in extreme cases, the force of First Amendment rights shall outweigh all else.

Year after year, the court issues decisions that profoundly affect the nation. Think of civics classes. The retired Justice Sandra Day O’Connor is one of many who have lately lamented the apparent collapse of civic literacy in public schools. Think of older Americans affected by President Obama’s health care program. Think of women or other groups affected by important class-action cases, like the Wal-Mart discrimination case last term. These citizens should have a chance to hear what the justices think about important questions that touch their lives.

The issue of cameras in the courtroom is one of precious few on which conservative Republicans, like Senator John Cornyn of Texas, and liberal Democrats, like Representative Henry A. Waxman of California, agree.

Quick news and notes

1. One of the Mutual Benefits defendants has pled out, which means that Judge Jordan (or whoever takes over his division after he goes up to the 11th Circuit) will only have one lengthy trial, not two. From Jay Weaver's article:

A prominent attorney whose fortunes rose with a Fort Lauderdale viatical insurance company at the center of a $1.25 billion investment fraud case pleaded guilty Wednesday to a single conspiracy charge, marking a major development in the long-running prosecution of executives and others at Mutual Benefits Corp.

Michael McNerney, 62, of Fort Lauderdale, admitted that as its lawyer, he helped the now-defunct company lure thousands of investors worldwide into buying dubious life insurance policies held mostly in the names of people dying of AIDS.

His role was part of an alleged investment scam lasting from 1995 to 2004 that authorities say rivals the $1.2 billion Ponzi scheme of disbarred Fort Lauderdale lawyer Scott Rothstein, convicted last year of selling fabricated legal settlements in a separate criminal case.

The Mutual Benefits and Rothstein cases rank as Florida’s largest fraud prosecutions.

He got a good deal -- a five year cap under Section 371.

2. The 11th Circuit's en banc decision today in Gilbert v. United States has all kinds of great rhetoric. Carnes wrote for the majority on complicated habeas issues, but he characterizes the issue as: "The primary question, in plainer English, is whether a federal prisoner can use a habeas corpus petition to challenge his sentence. Our answer is “no,” at least where the sentence the prisoner is attacking does notexceed the statutory maximum."

There are 105 pages of opinions, and I haven't read them in depth yet. But I found some good passages, especially from the dissents.

Judge Hill starts his dissent with this:

Ezell Gilbert’s sentence was enhanced by eight and one-half years as the result of his being found by the district court – reluctantly and at the explicit urging of the government – to be a career offender. Ezell Gilbert is not now, nor has he ever been, a career offender. The Supreme Court says so.

Today, this court holds that we may not remedy such a sentencing error. This shocking result – urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice – and accepted by a court that emasculates itself by adopting such a rule of judicial impotency – confirms what I have long feared. The Great Writ is dead in this country.

More:

The government even has the temerity to argue that the Sentencing Guidelines enjoy some sort of legal immunity from claims of error because they are not statutes at all, but mere policy suggestions. And the majority appears not to understand that Gilbert’s imprisonment – no matter how his sentence was calculated – is the act of the Sovereign, who is forbidden by our Constitution to deprive a citizen of his liberty in violation of the laws of the United States.

I recognize that without finality there can be no justice. But it is equally true that, without justice, finality is nothing more than a bureaucratic achievement. Case closed. Move on to the next. Finality with justice is achieved only when the imprisoned has had a meaningful opportunity for a reliable judicial determination of his claim. Gilbert has never had this opportunity.

A judicial system that values finality over justice is morally bankrupt. That is why Congress provided in § 2255 an avenue to relief in circumstances just such as these. For this court to hold that it is without the power to provide relief to a citizen that the Sovereign seeks to confine illegally for eight and one-half years is to adopt a posture of judicial impotency that is shocking in a country that has enshrined the Great Writ in its Constitution. Surely, the Great Writ cannot be so moribund, so shackled by the procedural requirements of rigid gatekeeping, that it does not afford review of Gilbert’s claim.

Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. The government hints that there are many others in Gilbert’s position – sitting in prison serving sentences that were illegally imposed. We used to call such systems “gulags.” Now, apparently, we call them the United States.

One last thought. The majority spends an enormous amount of time arguing that Gilbert is not a nice man. Perhaps. But neither, I expect, was Clarence Gideon, the burglar, or Ernesto Miranda, the rapist. The Supreme Court managed to ignore this legal irrelevancy in upholding the constitutional principle under attack in those cases. Would that we could have also.

Wow. Now that's good stuff. I will post more as I wade through it all.

The last week of good traffic

Gridlock starts next week with the start of school...

Looks like the storms are gonna miss us. Rumpole has been updating us all weekend on the positions of the storms. A tip for the future: keep an eye on the Herbert boxes.

The blawgosphere is aflutter over the possibility of free PACER. (Thanks to MDO for the tip, but Miguel, shouldn't you be studying for the fantasy football draft?) I'm all for free access to the courts, but I've heard grumbling among lawyers that electronic filing has led to their pleadings being stolen and that making PACER free will lead to even more stealing. Isn't that the greatest form of flattery? SFLawyers makes passing reference to lawyers looking at Iqbal motions to dismiss. Is it me, or is SFL oddly obsessed with Iqbal. Yes, we had a Paris obsession here a couple weeks back, and that was strange, but this Iqbal craze is, well, strange.

Rick Bascuas blogs about the en banc 11th Circuit looking into sentencing practices after giving discretion back to district judges. Apparently, the government isn't happy about below guideline sentences. Shock.

Anyone trying any cases this week?

In the comments, there are calls for the follow up to what I called the most boring post ever. Here is one of the comments:

How about something less prurient and more generally worth noting: the 11th Circuit in an en banc opinion overruled its prior decision in United States v. Brown, 79 F.3d 1550 (11th Cir. 1996), finding that the district court did not err in using the pattern jury instruction for mail fraud, that is, not limiting the mail fraud statute to schemes that would deceive only prudent persons. No matter what your particular persuasion -- prosecutor, defense lawyer, judge, or even criminal -- this is an important decision in white-collar cases. http://www.ca11.uscourts.gov/opinions/ops/200513809op2.pdf

Well, there you have it.

Most boring post *ever*

This post is coming straight at you from the en banc 11th Circuit. I know, I know -- b-o-r-i-n-g.

1. First up is United States v. Svete. The Court agreed to hear the case en banc. This is going to be followed by all prosecutors and defense lawyers. The panel decision reversed a mail fraud conviction because, the court held, mail and wire fraud offenses do not encompass schemes which are not calculated to deceive a reasonably prudent person. The Court will address whether mail fraud (and related offenses) encompass schemes which are not calculated to deceive a reasonably prudent person? Get fired up baby!

2. Next is Jerry Greenberg v. National Geographic Society. No, not that Jerry Greenberg. This Jerry Greenberg. Can National Geographic reproduce (on a CD set) old magazines with Greenberg's pictures without his permission?

Judge Barkett wrote the majority opinion, which starts out this way:

Appellant National Geographic Society is a nonprofit scientific and educational organization that has published a monthly magazine since 1888.2 The Society also produces televised programs and computer software as well as other educational products through National Geographic Enterprises, a wholly-owned and for-profit subsidiary of the Society. Appellee Jerry Greenberg is a freelance photographer, some of whose photographs were published in four issues of the National Geographic Magazine. For decades, the Society has reproduced back issues of the Magazine in bound volumes, microfiche, and microfilm. In 1997, National Geographic produced “The Complete National Geographic” (“CNG”), a thirty-disc CD-ROM4
set containing each monthly issue of the Magazine, as it was originally published, for the 108 years from 1888 through 1996—roughly 1200 issues of the Magazine. In addition, the CNG includes a short opening montage and a computer program that allows users to search the CNG, zoom into particular pages, and print. Greenberg sued National Geographic, alleging that it had infringed his copyrights by reproducing in the CNG the print magazine issues that included his photographs. The district court disagreed and granted summary judgment in favor of National Geographic, holding that because the CNG constituted a “revision” of
the print issues of the Magazine, the reproduction of Greenberg’s photographs in the CNG was privileged under 17 U.S.C. § 201(c) of the Copyright Act and did not constitute an infringement of Greenberg’s copyrights. However, a panel of this Court in Greenberg v. National Geographic Society (Greenberg I), 244 F.3d 1267, 1275–76 (11th Cir. 2001), reversed and remanded for the district court to “ascertain the amount of damages and attorneys fees that are, if any, due as well as any injunctive relief that may be appropriate.” After a jury trial on damages, the jury returned a verdict against National Geographic in the amount of $400,000.
National Geographic appealed again, this time arguing that the intervening decision of the U.S. Supreme Court in New York Times Co. v. Tasini, 533 U.S. 483 (2001), decided after Greenberg I, mandated a reversal of the jury verdict against it. A second panel of this Court agreed, finding that Tasini compelled a reversal of the jury verdict because, under Tasini’s rationale, National Geographic was privileged to reproduce its print magazines in digital format pursuant to § 201(c) of the Copyright Act. See Greenberg v. Nat’l Geographic Soc’y
(Greenberg II), 488 F.3d 1331 (11th Cir. 2007).5 This Court then vacated the Greenberg II panel opinion and granted rehearing en banc to address the question of whether National Geographic’s use of Greenberg’s photographs in the CNG is privileged.

The conclusion:

In the light of the Supreme Court’s holding in Tasini that the bedrock of any § 201(c) analysis is contextual fidelity to the original print publication as presented to, and perceivable by, the users of the revised version of the original publication, we agree with the Second Circuit in Faulkner and find that National Geographic is privileged to reproduce and distribute the CNG under the “revision” prong of § 201(c).

The CNG—albeit in a different medium than print or microform—is a permissible reproduction of the National Geographic Magazine. Greenberg’s photographs are preserved intact in the CNG and can only be viewed as part of the original collective works in which they appeared. Similar to the microforms of Tasini, which preserve the context of multiple issues of magazines, the CNG’s digital CD-ROMs faithfully preserve the original context of National Geographic’s print issues. The CNG’s additional elements—such as its search function, its
indexes, its zoom function, and the introductory sequence—do not deprive National Geographic of its § 201(c) privilege in that they do not destroy the original context of the collective work in which Greenberg’s photographs appear.21 We REVERSE and REMAND to the district court for proceedings consistent with this opinion.