The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
That's her with her children and Chief Judge Altonaga.
That means all three new judges are in and working. Congratulations again to all three!
Cases will now start getting transferred.
Let the fun begin.
Update with a picture of the swearing in of David Leibowitz, with his wife and son, by Judge Marcus. Judges Altonaga, Moreno, and Jordan were also present
By Michael Caruso
Yesterday, at the behest of an 8th-grade civics class, Massachusetts lawmakers formally exonerated Elizabeth Johnson a mere 329 years after she was convicted of witchcraft and sentenced to death (thankfully, she was not executed). Johnson was 22 when she was caught up in the hysteria of the witch trials and sentenced to hang. Then-Gov. William Phips threw out her punishment, but while dozens of suspects officially were cleared, including her own mother, Johnson's name wasn't included in various legislative attempts to set the record straight. Until now.
That's the question that keeps coming up at every holiday party and cocktail event. If Roe gets wiped away, will that turn the tide in the next election and help the Democrats keep the House/Senate and retake the Supreme Court? Is that worth it since it appears that the party is in neutral?
Meantime, Ruth Marcus wrote this piece in the Washington Post about the oral argument:
The vision of getting the courts out of the abortion-deciding business sounds so reasonable, so alluring.
It is also wrong, misleading and dangerous.
Mississippi Solicitor General Scott Stewart laid out the argument during the oral argument last week — urging the justices not only to uphold his state’s ban on abortion after 15 weeks but to overrule its decisions finding that the Constitution protects a woman’s right to choose.
“The Constitution places its trust in the people,” Stewart said. “On hard issue after hard issue, the people make this country work. Abortion is a hard issue. It demands the best from all of us, not a judgment by just a few of us. When an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people.”
Justice Brett M. Kavanaugh amplified Stewart’s argument, presenting it as the position of one side but leaving little doubt how much it resonated with him.
The Constitution, Kavanaugh posited, is “neutral” on abortion, “neither pro-life nor pro-choice.” Consequently, “this Court should be scrupulously neutral on the question of abortion … rather than continuing to pick sides.”
How superficially appealing all this is. Who could be against neutrality, especially scrupulous neutrality? Who disagrees with leaving choices to “the people” in a democracy?
The fundamental flaw here is that the Constitution exists in no small part to protect the rights of the individual against the tyranny of the majority. The Bill of Rights and the 14th Amendment exist to put some issues off limits for majority rule — as Justice Robert H. Jackson put it in a 1943 ruling protecting the right of Jehovah’s Witness schoolchildren not to be forced to salute the flag, “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities.” The Supreme Court, in protecting abortion rights, isn’t telling women what to do: It is preserving space for them to make their own decisions about their own pregnancies.
The Constitution instructs that the majority cannot force its preferred religion on the minority; in fact, it must respect and accommodate individuals’ free exercise of their own religious beliefs. The Constitution teaches that the majority cannot choose to shut down or punish speech that it finds disagreeable or even offensive. It means that “the people’s” decisions about how to reduce gun violence are limited by the court’s interpretation of the Second Amendment.
Conservative justices have had no difficulty taking this disempowering of “the people” to sometimes questionable extremes.
They’re happy to second-guess the decisions of elected officials and public health experts about how best to safeguard their communities in the midst of a pandemic when religious institutions claim their rights are being violated. They don’t flinch at saying that the core First Amendment protection for political speech places strict limits on Congress’s ability to limit corporate spending on elections or enact other campaign finance rules.
***
Thus, constitutional protection for the right to abortion is not a deviation from the court’s jurisprudence, it is a logical extension of it. “Our obligation is to define the liberty of all, not to mandate our own moral code,” the court plurality noted in Planned Parenthood of Southeastern Pennsylvania v. Casey. “The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter,” except perhaps in “rare circumstances.”
Stewart, the Mississippi lawyer, blithely assured the justices that the court’s abortion cases are unique, and that its other precedents, on contraception, gay rights or same-sex marriage wouldn’t be next in line if Roe and Casey fell. But why not? Maybe conservative activists have no burning desire to overrule Obergefell v. Hodges, the 2015 same-sex marriage ruling, but as a logical matter the right, without a basis in history or tradition, should be at least as vulnerable as abortion.
“I’m not sure how your answer makes any sense,” Justice Sonia Sotomayor told Stewart. “All of those other cases … rely on substantive due process. You’re saying there’s no substantive due process in the Constitution, so they’re just as wrong, according to your theory.”
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And to withhold protection — in the current circumstance, to withdraw the protection that has existed for almost 50 years since Roe v. Wade — is not a neutral choice. It is a thumb on the scale.
Woah, this opinion a doozy. Thanks to my commenters for pointing it out to me. Apparently it's been the talk of the (appellate) town and I initially missed it.
I don't even know how to describe it... you must read this opinion -- about a mansion in Palm Beach -- for yourself. It's 136 pages of back and forth between two of the most conservative judges in the country (Luck in the majority, joined by Carnes, against Marcus in dissent). And it gets really personal. Here's the first salvo to give you a flavor:
The “irony today” is not, as the dissenting opinion says, that we have done as the Supreme Court has instructed and conducted an independent examination of the whole record relating to Burns’s constitutional claims. Dissenting Op. at 73. The “irony today” is that it is the dissenting opinion that goes beyond the “whole record” in this case, the record developed by the parties and put before the district court. The dissenting opinion consults extra-record sources and draws from them the “facts” that it determines support its conclusion. Throughout the dissenting opinion, it laments the “incomplete record” and the “limited record” that’s before us. Id. at 74, 123 n.5. So, the dissenting opinion escapes the confines of the record to look for evidence that the parties never put forward and the district court never considered.
I'm no civil lawyer, so I can't tell you who is right. And I'm no architect or student of these types of homes, so I don't know who has the better of the argument here (maybe renaissance man Rumpole can help) even though both opinions have pictures and tons of historical references.
I'm just here for the food fight! Just to give you a sense, the majority opinion references the dissent 98 times.* I wonder how Judge Marcus felt when he read Judge Luck's opinion saying that he (Marcus) didn't understand "the way appellate review works."
The opinion is also noteworthy because just a few months ago, Judge Luck joined an opinion by Judge Newsom criticizing Judge Rosenbaum for being too personal. As I explained here, I thought that criticism was way off and that Judge Rosenbaum was anything but personal in her dissent.
So something must be going on to get Judge Luck so upset in this pretty mundane civil dispute. Anyone know the backstory?
*I simply did a find "dissent" and got 98 hits, so that number may be slightly off. But you get the idea.
BRANCH, Circuit Judge, delivered the opinion of the Court, in which WILLIAM PRYOR, Chief Judge, GRANT, TJOFLAT, ED CARNES, MARCUS, and JULIE CARNES, Circuit Judges, joined.
WILLIAM PRYOR, Chief Judge, filed a concurring opinion.Interestingly, 4 senior judges elected to participate in the case, and all of them voted with the majority. Had they not participated, it looks like there would have been a 3 judge plurality.
JORDAN, Circuit Judge, filed an opinion concurring in the judgment.
WILSON, Circuit Judge, filed an opinion concurring in part and dissenting in part.
MARTIN, Circuit Judge, filed a dissenting opinion, in which ROSENBAUM and JILL PRYOR, Circuit Judges, joined.
ROSENBAUM, Circuit Judge, filed a dissenting opinion, in which MARTIN and JILL PRYOR, Circuit Judges, joined.
While the evidence is that the three men and Mrs. Yarborough were secured near the porch of the house and, as emphasized by the majority, Officer Monroy’s re-entry was swift and his search was cursory, the only conclusion I can reach from the record is that Officer Monroy made the sweep, no doubt for officer safety, because the arrest scene was proximate to the house and he had a concern that the house, like any structure, could have concealed the presence of a dangerous individual. In other words, Officer Monroy conducted the sweep based on speculation, rather than articulable facts.
Royal Palm Yacht & Country Club, a residential community in Boca Raton, Florida, is home to multimillion-dollar mansions, a championship golf course, and even a private marina. It’s also home, as it turns out, to the contentious real-estate rivalry that spawned this trademark litigation.
Royal Palm Properties, a real-estate broker whose specialty is buying and selling homes in Royal Palm Yacht & Country Club, sued its competitor, Pink Palm Properties, for infringing its registered service mark on the phrase “Royal Palm Properties.” Pink Palm Properties counterclaimed, challenging the mark’s validity. A jury in the U.S. District Court for the Southern District of Florida upheld Royal Palm Properties’ mark but found that Pink Palm Properties hadn’t infringed it. The district court, though, overturned the verdict in part, granting Pink Palm Properties’ renewed motion for judgment as a matter of law and ordering the cancellation of Royal Palm Properties’ mark. The question before us is whether the district court correctly flipped the jury’s verdict and granted judgment as a matter of law on Pink Palm Properties’ trademark-invalidation counterclaim.
We hold that the district court erred. To be entitled to judgment as a matter of law, Pink Palm Properties would have had to make quite the showing at trial—such that no reasonable jury could have found that it failed to prove grounds for cancelling Royal Palm Properties’ mark. Based on our careful review of the record, we conclude that Pink Palm Properties didn’t meet this high bar. On neither of its two grounds for cancellation—that the “Royal Palm Properties” mark (1) is not “distinctive” and (2) is “confusingly similar” to previously registered marks—did Pink Palm Properties prove, decisively, that it had won the day. We therefore reverse the district court’s decision to overturn the jury’s verdict and invalidate Royal Palm Properties’ service mark.
Pink Palm Properties certainly satisfied the first two Coach House requirements. The “Royal Palm Properties” mark clearly “resembles” the “Royale Palms” marks—the spelling of the dominant words is nearly identical8—and the “Royale Palms” marks were registered several years before the “Royal Palm Properties” mark.
8.Welcome to the author’s life. Compare “Newsom” with “Newsome.”
Today, President Donald J. Trump announced his intent to nominate:
Barbara Lagoa of Florida, to serve as Circuit Judge on the United States Court of Appeals for the Eleventh Circuit
Barbara Lagoa currently serves as a Justice on the Supreme Court of Florida. Prior to her appointment by Governor Ron DeSantis in 2019, Justice Lagoa was a District Judge on the Florida Third District Court of Appeal. Before taking the bench in 2006, Justice Lagoa was an Assistant United States Attorney in the United States Attorney’s Office for the Southern District of Florida and spent 11 years in private practice in Miami, Florida. Justice Lagoa also served as the Chair of the Florida Judicial Ethics Advisory Committee from 2015 to 2016. Justice Lagoa earned her B.A., cum laude, from Florida International University and her J.D. from Columbia Law School, where she served as Associate Editor of the Columbia Law Review.
Robert J. Luck of Florida, to serve as Circuit Judge on the United States Court of Appeals for the Eleventh Circuit.
Robert Luck currently serves as a Justice on the Supreme Court of Florida. Prior to his appointment by Governor Ron DeSantis in 2019, Justice Luck was a District Judge on the Florida Third District Court of Appeal and a Circuit Judge for the Eleventh Judicial Circuit Court of Florida. Before taking the bench in 2013, Justice Luck was an Assistant United States Attorney in the United States Attorney’s Office for the Southern District of Florida. Justice Luck also served as an Adjunct Professor at Alabama State University from 2007 to 2008, where he taught an undergraduate class in business law. Upon graduation from law school, Justice Luck served as a law clerk to Judge Ed Carnes of the United States Court of Appeals for the Eleventh Circuit, to whom he also later served as a Staff Attorney. Justice Luck earned his B.A., with highest honors, from the University of Florida and his J.D., magna cum laude, from the University of Florida Levin College of Law, where he was inducted into the Order of the Coif and served as Editor-in-Chief of the Florida Law Review.
This appeal requires us to decide whether a police officer violated the Fourth Amendment when he removed a round of live ammunition and a holster from the pocket of a suspect during a protective frisk, see Terry v. Ohio, 392 U.S. 1 (1968). At 4:00 a.m., the officer responded to a call about a burglary in progress in a high-crime area. When the officer arrived at the scene, he saw Paul Johnson, who matched the burglar’s description, standing in a dark alley. After detaining Johnson, the officer frisked him and immediately recognized that he had a round of ammunition in his pocket. The officer removed the ammunition and an empty holster covering it. He then canvassed the area and found two pistols less than a foot from where he first saw Johnson. After a grand jury indicted Johnson for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1), he moved to suppress the pistols, ammunition, and holster, but the district court denied his motion. A panel of this Court reversed. United States v. Johnson, 885 F.3d 1313 (11th Cir.), reh’g en banc granted, op. vacated, 892 F.3d 1155 (11th Cir. 2018). We then vacated that decision and ordered rehearing en banc. We now affirm the denial of Johnson’s motion to suppress because the officer was entitled to seize the ammunition to protect himself and others.
So in the next “bullet case,” rather than asking—or worse, requiring the responding officer to ask—whether the neighborhood is sufficiently scary, the hour sufficiently late, the light sufficiently dim, and the suspect and scene sufficiently secure, I would simply hold that the Fourth Amendment permits the protective seizure.
Because I conclude that a bullet falls in to the category of “guns, knives, clubs, or other hidden instruments for the assault of the police officer,” id. at 29, and cannot logically be separated from a gun for Terry purposes, I would find that anytime an officer conducts a lawful Terry frisk, the officer may seize any bullet located during the frisk.
Relying on Justice Scalia’s originalist position, Mr. Johnson argues that we should construe Terry narrowly, and not extend it to allow the seizure and removal of items that are neither weapons nor contraband. See Mr. Johnson’s En Banc Br. at 18-23. But the majority barely acknowledges this argument, and declines to address its merits. According to the majority, we are bound by Terry, and must therefore ignore the original understanding of the Fourth Amendment.2
The majority is correct that Terry constitutes binding precedent, and that no one on this court can wish it away. But accepting Terry does not require extending its reach on an issue of first impression. Terry permitted pat-downs for weapons, and only weapons. See Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979) (“Nothing in Terry can be understood to allow . . . any search whatever for anything but weapons.”). By allowing officers to seize a stand-alone bullet from an unarmed suspect who is in handcuffs and being held at gunpoint by several officers, the majority expands Terry beyond its “narrow scope.” Dunaway v. New York, 442 U.S. 200, 210 (1979).
Charades may be fun at parties, but not in judicial opinions where officer safety and privacy rights hang in the balance. I therefore respectfully decline to engage in that activity.12
IV.
Today we issue a new rule we did not ask the parties to brief, they did not brief, and the government expressly disavowed. And we do this even though we could have obtained the parties’ input on the question we decide today. I respectfully decline to participate in that activity. The parties’ testing of the issues we decide is and should be the engine that drives our adversarial system.
The panel correctly held that the seizure of a bullet and holster from the pocket of Mr. Johnson—who was compliant with officers’ commands, on the ground, handcuffed behind his back, and held at gunpoint by several officers—constituted an unreasonable seizure under Terry and its progeny. See United States v. Johnson, 885 F.3d 1313, 1323-24 (11th Cir. 2018). With respect, I dissent from the majority opinion’s contrary holding.
Faced with a defendant’s motion for summary judgment, a plaintiff asserting an intentional-discrimination claim under Title VII of the Civil Rights Act of 1964, the Equal Protection Clause, or 42 U.S.C. § 1981 must make a sufficient factual showing to permit a reasonable jury to rule in her favor. She can do so in a variety of ways, one of which is by navigating the now-familiar three-part burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by proving, among other things, that she was treated differently from another “similarly situated” individual―in court-speak, a “comparator.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258–59 (1981) (citing McDonnell Douglas, 411 U.S. at 804). The obvious question: Just how “similarly situated” must a plaintiff and her comparator(s) be?
To date, our attempts to answer that question have only sown confusion. In some cases, we have required a proper comparator to be “nearly identical” to the plaintiff. See, e.g., Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1185 (11th Cir. 1984) (citations omitted). In others, we have expressly rejected a nearly-identical standard. See, e.g., Alexander v. Fulton Cty., 207 F.3d 1303, 1333–34 (11th Cir. 2000). In still others, without even mentioning the nearly-identical benchmark, we have deemed it sufficient that the plaintiff and the comparator engaged in the “same or similar” conduct. See, e.g., Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam). And to make matters worse, in still others we have applied both the nearly-identical and same-or-similar standards simultaneously. See, e.g., Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). It’s a mess.
In an effort to clean up, and to clarify once and for all the proper standard for comparator evidence in intentional-discrimination cases, we took this case en banc and instructed the parties to address the following issue:
More:The Supreme Court has held that in order to make out a prima facie case of discrimination under Title VII of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, or 42 U.S.C. § 1981, a plaintiff must prove, among other things, that she was treated differently from another “similarly situated” individual. What standard does the phrase “similarly situated” impose on the plaintiff: (1) “same or similar,” (2) “nearly identical,” or (3) some other standard?
So, we are left to try to find the sweet spot between Lewis’s squishy not-useless standard and the City’s preferred nearly-identical standard. For reasons explained below, we hold that a plaintiff proceeding under McDonnell Douglas must show that she and her comparators are “similarly situated in all material respects.”Judge Rosenbaum has this to say about the Majority:
The Majority Opinion tries to hide the “not onerous” elephant in the McDonnell Douglas framework by wishing it away as a mere “descriptor that doesn’t pertain to the substantive standard that governs the prima facie analysis.” Id. In the Majority Opinion’s view, then, the plaintiff’s burden to establish a prima facie case is “not onerous” with respect to something other than her burden to establish a prima facie case under the substance of the standards governing the prima facie case.
Wait . . . what?
Of course, whether standards are onerous or not governs whether the plaintiff’s burden on the prima facie case is onerous or not. It makes no sense to speak of the plaintiff’s prima facie burden as “not onerous” if the plaintiff must, in fact, satisfy an onerous substantive standard to meet her prima facie burden.
Two dissents—those by Judges Wilson and Martin—have seized upon this direct appeal case as an opportunity to criticize our Court’s processing and publishing of orders on federal prisoners’ applications to file successive motions under 28 U.S.C. § 2255(h). Those dissents not only distort the factual context but also contain unfounded attacks on the integrity of the Court as an institution. So, regrettably, a response is required to set the record straight.Judge Wilson responds in his conclusion:
These two dissents focus on only prisoners’ post-conviction applications to file successive § 2255 motions. To place the subject matter of the dissents in context, it is necessary to describe first (1) the nature of the instant direct-appeal case and (2) how, after a direct appeal, a federal prisoner has yet another post-conviction opportunity to challenge his sentence through an initial 28 U.S.C. § 2255 motion. Second, I explain how Congress has strictly limited prisoners’ applications to file successive § 2255 motions that seek to challenge yet again a federal conviction and sentence that has long since become final.
Third, to correct the record about our Court’s published orders ruling on such applications, I provide the statistics that show how our Court has published only 1 to 2% of its orders on post-conviction applications to file successive § 2255 motions, even in 2016, the year on which the dissenters focus. Lastly, contrary to what the dissents claim, I discuss how all published orders of this Court are always subject to further review, such as the en banc poll in this very case. As explained below, there simply isn’t (nor has there ever been) any crisis about our Court’s published orders.
Judge Tjoflat takes offense to my dissent, which sheds light on what I believe is an unfair process.5 Thoughtful and respectful disagreement is essential to our constitutional directive—“[t]he premise of our adversarial system is that appellate courts . . . [are] arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.). There is sometimes impassioned but collegial disagreement about the answers to those questions. But to turn substantive disagreement into a sweeping charge that contrary views are “attacks on the integrity of the court as an institution” is another thing entirely. It is the great respect for both this Court as an institution and the judicial role that leads members of this Court to dissent. And if anyone has the duty to raise concerns about the fairness of this Court’s process for resolving a category of appeals, it is a member of this Court. Consistent with that duty, I will continue to express disagreement when important issues are at stake. In another case, when Judge Tjoflat is in the minority, he will be entitled to do the same.And Judge Martin responds in her introduction:
Federal judges who decide cases in groups are bound to have differences of opinions about how those cases are decided. I’ve always understood that it is the discussion of those differing views that furthers the development and evolution of the laws and precedent that govern us all. My understanding does not appear to be unique, because if there is any member of this court who has not written a dissenting opinion, they have not been on this court for very long. As for this dissent, it is certainly not an attack on the institution of the federal courts, to which I have devoted the last eighteen years of my professional life. Rather, this dissent is intended to honor the role I have been given on this court. I understand my oath to require me to point out procedures or interpretations of the law that I view as hampering our ability to administer justice to the people who come before us. If I have distorted any fact in this opinion, I request that someone tell me what that fact is so that I can correct my mistake.
As my colleagues have pointed out, this case is the direct appeal of Michael St. Hubert, who was sentenced to serve a 32-year prison sentence in 2016. Although this is Mr. St. Hubert’s first opportunity to challenge his conviction and sentence in this court, his opportunity is limited by rulings this court has made in our habeas jurisprudence. So while Mr. St. Hubert is sitting in prison, his case has generated what I view as a healthy discussion of how it came to pass that he will be required to serve the entirety of a sentence that could not be legally imposed upon him if he were sentenced today. Six of the twelve of the active judges on this court have written opinions about Mr. Hubert’s case, so it seems to have merited a valuable exchange of viewpoints.
Michael St. Hubert was 37-years-old when he pled guilty to two firearms charges brought against him under 18 U.S.C. § 924(c). At that 2016 hearing, the District Judge explained that Mr. St. Hubert would not be a free man until after his 69th birthday. Then, in a sprawling opinion reviewing Mr. St. Hubert’s direct appeal, a panel of this Court affirmed Mr. St. Hubert’s convictions and 32-year sentence, holding that the offenses underlying his convictions—Hobbs Act robbery and attempted Hobbs Act robbery—qualify as crimes of violence under § 924(c)’s residual and use-of-force clauses. See United States v. St. Hubert (“St. Hubert II”)6, 909 F.3d 335 (11th Cir. 2018).
There are several problems with the panel opinion that I believe deserve the attention of the en banc Court. Judge Wilson and Judge Jill Pryor each cogently address some of those problems, and I am privileged to join their dissents in full.
See Wilson, J., dissenting op. at 50–57 (discussing the St. Hubert II panel’s troubling reaffirmation of its ruling that published panel orders from the second or successive context bind all panels of this Court); Jill Pryor, J., dissenting op. at 85–90 (arguing the panel erroneously held attempting a crime of violence itself equates to a crime of violence).
In writing separately, I echo some of my colleagues’ concerns. But beyond that, Mr. St. Hubert’s case offers a valuable illustration of why I’ve been concerned about how this Circuit has parlayed the limited authority given it under 28 U.S.C. § 2244(b) (statute governing second or successive habeas petitions) to stop thorough consideration of the issues presented by people like Mr. St. Hubert, even on his direct appeal. It is an aberration that a statute meant to govern the treatment of inmates who seek to file a second or successive § 2255 motion now serves as a tool for this Court to limit the review of prison sentences on direct appeal. I am convinced this aberration results from our Court failing to follow the plain mandate of 28 U.S.C. § 2244(b)(3)(C). Since this is his case, I will begin with Mr. St. Hubert.
This is a troubling case. There can be no doubt -- and the government does not contest the point -- that constitutional error occurred. It is also clear that the error was plain and obvious. The decision to allow the government to introduce inculpatory evidence while both the defendant and her lawyer were absent for three to ten minutes in a trial that lasted more than 49 hours violated the defendant’s right to counsel, her right to confront the witnesses arrayed against her, and her right to be present at trial under both the Due Process Clause and Fed. R. Crim. P. 43. The only question is whether Garcia’s convictions should be reversed on account of the error.
We hold that Garcia’s convictions must be affirmed because the errors did not affect Garcia’s substantial rights. There can be no question that Garcia failed to preserve the errors at trial even though she had ample opportunity to do so. She was given every chance to object and to secure some remedial relief from the trial court but expressly declined to act. As a consequence, under well-established law we must review the constitutional violations that occurred for plain error, not for harmlessness beyond a reasonable doubt. What’s more, there is good reason in this case to be punctilious in selecting the proper standard of review. The prejudice analysis is by no means clear-cut and the standard by which we measure it could well make all the difference.
With time running out, a federal appeals court late Wednesday sided with Florida in an escalating battle over the state’s process for restoring voting rights for former prisoners.UPDATE -- A few readers have emailed me expressing surprise that with this panel, Marcus ended up siding with Gov. Scott. But that's really no surprise. Former President Bill Clinton appointed 4 judges to the 11th Circuit -- Rosemary Barkett, Frank Hull, Stanley Marcus, and Charles Wilson. Marcus and Hull have been two of the most conservative members of the Court since that time (over 20 years). Judge Hull just took senior status, and Judge Barkett no longer serves on the Court, so that leaves Charles Wilson and Stanley Marcus as two members of the "old" guard.
U.S. District Judge Mark Walker had given Florida until Thursday to create a new process after ruling in February that the state’s current system is unconstitutional and arbitrary, with decisions possibly swayed by politics and racial factors.
But a three judge panel of the Atlanta-based 11th U.S. Circuit Court of Appeals blocked Walker’s ruling while it considers an appeal from Gov. Rick Scott and other Florida Republican officials.
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Walker’s ruling had kept the ban intact, but he had challenged the current system that requires a former prisoner to wait between five and seven years before they can even ask to have their voting rights back. The governor and the three elected Cabinet members then decide each request individually, subject to the governor’s unilateral veto.
It wasn’t always this way. Shortly after taking office in 2007, then-Republican Gov. Charlie Crist convinced two of the state’s three Cabinet members to approve rules allowing the parole commission to restore voting rights for nonviolent felons without hearings, and ultimately more than 100,000 felons were allowed to vote again.
Scott and state officials changed the process in 2011, and since then fewer than 3,000 have had their rights restored. The governor has defended the change, saying that former prisoners should have to demonstrate they can remain out of trouble before their voting rights are returned.
Last year, however, a group of former prisoners who had their applications turned down sued the state.
In its split ruling, the federal appeals court concluded that Florida has a good chance of prevailing in its appeal and questioned Walker’s decision to order the state put in place a new process. U.S. Circuit Judge Stanley Marcus wrote that there should not be a “rushed decision-making process created on an artificial deadline.”
“There is wisdom in preserving the status quo ante until a panel of this court, on an expedited basis, has had an opportunity on full briefing to come to grips with the many constitutional and equitable issues that have been raised,” Marcus wrote.
If confirmed, Roy K. Altman of Florida will serve as a District Judge on the U.S. District Court for the Southern District of Florida. Roy Altman is a partner at Podhurst Orseck P.A., where his practice has focused on aviation and commercial litigation since 2014. Before entering private practice, Mr. Altman served for six years as an Assistant United States Attorney for the Southern District of Florida, where he prosecuted hundreds of cases covering the full range of Federal criminal conduct. Over this period, Mr. Altman tried more than 20 cases to jury verdict and argued several of these before the U.S. Court of Appeals for the Eleventh Circuit. During his service as a Federal prosecutor, Mr. Altman won a number of awards including the Director of the Executive Office of U.S. Attorneys Award for “Superior Litigation Team” in United States v. Mentor (first-degree murder), the Director of the Executive Office of U.S. Attorneys Award for “Superior Litigation Performance” in United States v. Flanders (human trafficking), the Federal Bar Association Young Federal Lawyer Award (one of five attorneys under 37 nationwide), and the “Federal Prosecutor of the Year” award from the Miami-Dade County Association of Chiefs of Police and the Law Enforcement Officers Charitable Foundation. Upon graduation from law school, Mr. Altman served as a law clerk to Miami-based Circuit Judge Stanley Marcus of the U.S. Court of Appeals for the Eleventh Circuit. Mr. Altman earned his B.A., cum laude, from Columbia University, where he played baseball and football, and his J.D. from Yale Law School, where he served as the projects editor of the Yale Law Journal.
If confirmed, Rodolfo “Rudy” Ruiz II of Florida will serve as a District Judge on the U.S. District Court for the Southern District of Florida. Rudy Ruiz currently serves as a Circuit Judge in the Eleventh Judicial Circuit of Florida since his appointment by the Governor in 2014. As a Circuit Judge, Judge Ruiz has presided over both civil and criminal divisions. He previously served for two years as a County Court Judge in the Eleventh Judicial Circuit, where he handled a full range of civil and criminal cases. Before ascending to the bench, Judge Ruiz served for three years as an Assistant County Attorney in the Miami-Dade County Attorney’s Office, where he handled a wide range of civil defense matters in Federal and State court at both trial and appellate levels. Before joining the County Attorney’s Office, Judge Ruiz practiced corporate law in the Miami office of White & Case LLP. Upon graduation from law school, Judge Ruiz served as a law clerk to Judge Federico A. Moreno of the U.S. District Court for the Southern District of Florida. Judge Ruiz earned his B.S. from Duke University and his J.D. from Georgetown University, where he was an articles editor of the American Criminal Law Review.
If confirmed, Rodney Smith of Florida will serve as a District Judge on the U.S. District Court for the Southern District of Florida. Rodney Smith serves as a Circuit Judge in the civil and felony criminal divisions of the Eleventh Judicial Circuit, where he has served since his appointment by the Governor in 2012. In this capacity, he also serves as co-chair of the Diversity Committee of the Florida Conference of Circuit Judges. He previously served for four years as a Miami-Dade County Court Judge of the Eleventh Judicial Circuit, where he handled both civil and criminal cases. Before ascending to the bench, Judge Smith served as a senior assistant city attorney in the Office of the City Attorney for Miami Beach, where he handled a broad range of civil defense matters. Before joining the City Attorney’s office, Judge Smith practiced insurance defense law at a number of private Miami firms. Upon graduation from law school, Judge Smith served for four years as an Assistant State Attorney in the Miami-Dade County State Attorney’s Office. Judge Smith earned his B.S., cum laude, from Florida Agricultural and Mechanical University, and his J.D., cum laude, from the Michigan State University College of Law.
