New Article on the Eleventh Circuit's State of Emergency

Section 46(b) of Title 28 of the U.S. Code states that appeals may be heard and determined "by separate panels, each consisting of three judges, at least a majority of whom shall be judges of that court, ... unless the chief judge of that court certifies that there is an emergency." By General Order No. 41, the Eleventh Circuit was for the better part of 2014 certified to be in an emergency state. South Florida appellate lawyer Andrew L. Adler, who clerked for two judges of the Eleventh Circuit, wrote about this in his scholarly article Extended Vacancies, Crushing Caseloads, and Emergency Panels in the Federal Courts of Appeals, which was recently published in the Journal of Appellate Practice and Process.

Here's the introduction:

At the end of 2013, the chief judge of the Eleventh Circuit declared a state of emergency, exempting the court from the requirement in 28 U.S.C. §46(b) that each of its panels include a majority of Eleventh Circuit judges. As would later become clear, the emergency arose from multiple vacancies on the court, which exacerbated the effect of its heavy per-judge caseload. Throughout 2014, emergency panels consisting of one Eleventh Circuit judge and two visiting judges resolved over one hundred appeals. 

In a petition for rehearing filed in one such case, an unsuccessful appellant challenged the validity of the emergency panel. Rather than resolving the petition summarily, the emergency panel instead published a precedential opinion upholding the certified emergency. Although other circuits have certified section 46(b) emergencies based on the vacancy-caseload combination, the Eleventh Circuit's opinion is the first federal appellate decision addressing a challenge to such an emergency. Because extended vacancies and heavy caseloads are likely to persist, that opinion invites new scrutiny of the emergency exception to section 46(b)'s majority requirement. This article begins that undertaking.

Adler defends Chief Judge Carnes's application of the emergency exception.

If you're interested in the Eleventh Circuit -- or in the federal courts of appeals in general -- do check out Adler's well written and thoroughly researched article.

Extended Vacancies, Crushing Caseloads, and Emergency Panels in the Federal Courts of Appeals

“They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.”

That's Judge Kozinski in this article calling for criminal justice reform:

Defense lawyers who are found to have been ineffective regularly find their names plastered into judicial opinions, yet judges seem strangely reluctant to name names when it comes to misbehaving prosecutors. Indeed, judges seem reluctant to even suspect prosecutors of improper behavior, as if they were somehow beyond suspicion….Naming names and taking prosecutors to task for misbehavior can have magical qualities in assuring compliance with constitutional rights.
If judges have reason to believe that witnesses, especially police officers or government informants, testify falsely, they must refer the matter for prosecution. If they become aware of widespread misconduct in the investigation and prosecution of criminal cases, a referral to the U.S. Department of Justice for a civil rights violation might well be appropriate. *** The U.S. Justice Department seems ready enough to pursue charges of civil rights violations in cases where police have engaged in physical violence, but far more reluctant to pursue misbehaving prosecutors.

And from the East Coast, you have Judge Gertner saying her sentences during 17 years on the bench were unfair and immoral:

Among 500 sanctions that she handed down, “80 percent I believe were unfair and disproportionate,” she said. “I left the bench in 2011 to join the Harvard faculty to write about those stories––to write about how it came to pass that I was obliged to sentence people to terms that, frankly, made no sense under any philosophy.”
No theory of retribution or social change could justify them, she said. And that dispiriting conclusion inspired the radical idea that she presented: a call for the U.S. to mimic its decision after World War II to look to the future and rebuild rather than trying to punish or seek retribution. As she sees it, the War on Drugs ought to end in that same spirit. “Although we were not remotely the victors of that war, we need a big idea in order to deal with those who were its victims,” she said, calling for something like a Marshall Plan.

And yet, nothing seems to be happening with reform....  Same old, same old.

But, we may have a new Broward courthouse:

Florida's most conservative and liberal members of Congress joined forces Tuesday in calling for more federal spending — for projects in the state.
Led by U.S. Reps. Lois Frankel, a Democrat who represents Broward and Palm Beach counties, and Jeff Miller, a Republican who represents part of the Florida Panhandle, half the state's congressional delegation wrote the administrator of the agency in charge of federal buildings that Fort Lauderdale and Pensacola need new federal courthouses.

The letter to the General Services Administration, signed by 13 of the state's 27 representatives, declared an "urgent need" for new buildings, citing "substandard conditions" that "hinder the efficient administration of justice."

Federal judges, and the lawyers who appear before them, have been complaining for years about the courthouse at Broward Boulevard and Northeast Third Avenue in Fort Lauderdale. The development community in Fort Lauderdale has urged a new courthouse as has Mayor Jack Seiler, a lawyer. Cost of a new Fort Lauderdale courthouse has been estimated at $250 million.

I'm gonna miss Jon Stewart:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “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,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Sick burn by Justice Scalia. He came out on the completely wrong side of this, but at least his writing is entertaining (and at least he wrote the other opinion that day striking the ACCA residual clause; that's more than you can say for Alito, who is entirely predictable and political, and a boring writer.).

Perhaps you'd like to see you own name in a Scalia insult... well, click here for your Scalia insult.

Meantime, it's the last day of the Term today.  Pretty anticlimactic. Go to SCOTUSblog at 10am to see the final 3 opinions.

In the meantime, here's your Monday morning moment of zen:

Pointing a laser pointer at a plane... (TWO UPDATES)

... got this dude 14 years.  14 YEARS!!

Thankfully, the 9th Circuit vacated one of the convictions, so he'll get resentenced.  From the opinion:

There ought to be a law against shining a laser pointer at
an aircraft. In fact, there is, and it’s punishable by up to five
years in prison, as appellant Sergio Rodriguez discovered for
himself. Rodriguez, his girlfriend, and their kids were fooling
around with a laser pointer one summer evening in the
courtyard of their apartment complex – trying to see just how
far it could go – and they shined it at overflying helicopters.
Rodriguez was convicted of Aiming a Laser Pointer at an
Aircraft, in violation of 18 U.S.C. § 39A, and was sentenced
to the maximum sentence: five years in prison. Rodriguez
does not challenge that conviction.
He also was convicted of another crime stemming from
the same conduct – Attempting to Interfere with the Safe
Operation of an Aircraft, in violation of 18 U.S.C. § 32(a)(5)
and (8). That crime requires proof of a willful attempt to
interfere with the operator of an aircraft, with either the intent
to endanger others or reckless disregard for human life.
Rodriguez was charged with and found guilty of the reckless
variety, and for that offense, was sentenced to fourteen years
in prison.
The evidence clearly shows that Rodriguez was rightfully
convicted of aiming the laser pointer at a helicopter (§ 39A).
However, there is insufficient evidence that he willfully
attempted to interfere with the safe flight of the helicopter
(§ 32(a)(5)). Rather, the evidence showed that he was
attempting to see how far his laser would go at night – a
stupid thing to do, yes, but there is no evidence that he was
trying to interfere with the pilot. Section 39A is designed for
knuckleheads like him. On the other hand, 18 U.S.C.
§ 32(a)(5) is designed for both the Osama bin Ladens of the
world – people trying to bring down a plane, intending to
cause harm – and those who are aware that their actions are
dangerous and could harm others, but just don’t care. The
failure to recognize this distinction is to fail to appreciate that
Congress saw fit to create two different crimes, one more
serious than the other, for two different types of offenders.

Meantime, another Judge Moore sentence is at the center of an 11th Circuit opinion.  The court says there was a procedural error:

Juan Gutierrez (“Defendant”) appeals his 72-month sentence of imprisonment, imposed for violating conditions of his supervised release in three separate cases. Defendant argues that his sentence was procedurally unreasonable because the district court improperly considered alleged criminal conduct by Defendant that had not been proved. Defendant also argues that his sentence was substantively unreasonable because the district court abused its discretion in weighing the factors under 18 U.S.C. §§ 3583(e) and 3553(a).
Upon careful review of the record and the parties’ briefs, we conclude that, in imposing sentence, the district court committed procedural error by largely relying on alleged criminal conduct by Defendant that the latter argued had not been proved by a preponderance of the evidence, and that the court did so after having stated that it would not consider this conduct. We therefore VACATE Defendant’s sentence and REMAND for a new sentencing hearing on Defendant’s revocation proceeding.

 The opinion ends this way:

Because we conclude that the court committed a procedural error, we do not reach the question whether the court’s sentence would have been substantively reasonable had Defendant been properly proved to have engaged in new smuggling activity. We therefore remand for a new sentencing hearing at which the district court shall allow Defendant the opportunity to contest any information that the court is considering as a sentencing factor and at which the court shall consider only such conduct as is proved by a preponderance of reliable evidence.

Hmmmm. Where have I heard that before? Any bets on whether the sentence will be any different on remand?

UPDATE -- Big decisions by SCOTUS today, including healthcare.  Interestingly, Scalia uses "SCOTUS" in his dissent... first time that expression has been used in a Supreme Court opinion.  He says that Obamacare should be called SCOTUScare...  All kinds of funny memes on the internet about the opinion.  Here's one:






SECOND UPDATE -- Another sentencing reversal by the same panel with the same district judge here.

THIRD UPDATE -- And the same lawyer won both cases -- Richard Klugh.  Congrats!

Third Circuit issues incredible order:

This doesn't involve our district or circuit, but I find this order by Third Circuit Judge Theodore McKee absolutely fascinating (h/t How Appealing):

The Court would have granted Petitioners a stay of removal, but was informed that Petitioners were removed earlier today. The government is hereby ordered to use its best efforts to intercept Petitioners when they land tonight in Guatemala City and to return Petitioners to the United States immediately. If the government is unable to intercept Petitioners at the airport, they must locate Petitioners in Guatemala and return them to the United States as quickly as possible. Upon their return, Petitioners are granted a stay of removal pending disposition of their petition for review. If, upon contact, Petitioners inform the government that they do not want to return to the United States, the government shall secure a written memorialization to that effect -- even if that writing is in Spanish.

The only thing that would have made it better is if he would have ordered the return flight to be first class.