Breaking— Congressional JNC recommends 6 names for two open judicial seats (UPDATED WITH U.S. ATTORNEY FINALISTS AND MARSHAL)

 I’m being told from multiple sources that the finalists for the two open district judge seats are:

Michael Caruso

Miguel de la O

Samantha Feuer

Ayana Harris

Shaniek Maynard

Detra Shaw Wilder

*These have been confirmed.  Congrats to the finalists.

UPDATED -- The finalists for Marshal are:

Amos Rojas and Gadyaces Serralta

The finalists for U.S. Attorney are:

Jackie Arango

Michael Hantman

Markenzy Lapointe

News & Notes

1.   David Ovalle covers the exploding numbers of COVID+ inmates in Florida prisons, which are being grossly underreported:

The U.S. Bureau of Prisons is finally acknowledging that at least two employees at the Miami Federal Detention Center have tested positive for COVID-19, according to its public coronavirus tracking website. A union official said Monday that a third officer at the Downtown Miami facility has also tested positive, and more are awaiting test results.

The official, Jose Rojas, has been openly critical of how the Bureau of Prisons has handled the coronavirus crisis. He said officers were not allowed to wear masks while on duty until April 8, and the department continues to transport inmates from facility to facility, elevating the risk of spreading the highly contagious virus.

“They’re lying about the numbers they are posting on their website,” said Rojas, the Southeast regional vice president of the corrections council of the American Federation of Government Employees. “They won’t want to make themselves look bad.”

2.  The 11th Circuit in a 2-1 decision (Newsom wrote the majority, joined by Tjoflat; dissent by Hull) ruled that the Crimes Victim Rights Act does not apply to the Jeffrey Epstein case because no criminal case was ever brought.  120 pages of decisions here.  Here's the intro to the majority:

This case, which is before us on a petition for writ of mandamus, arises out of a civil suit filed under the Crime Victims’ Rights Act of 2004. Petitioner Courtney Wild is one of more than 30 women—girls, really—who were victimized by notorious sex trafficker and child abuser Jeffrey Epstein. In her petition, Ms.Wild alleges that when federal prosecutors secretly negotiated and entered into a non-prosecution agreement with Epstein in 2007, they violated her rights under the CVRA—in particular, her rights to confer with the government’s lawyers and to be treated fairly by them.
Despite our sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein’s hands, only to be left in the dark—and, so it seems, affirmatively misled—by government lawyers, we find ourselves constrained to deny her petition. We hold that at least as matters currently stand—which is to say at least as the CVRA is currently written—rights under the Act do not attach until criminal proceedings have been initiated against a defendant, either by complaint, information, or indictment. Because the government never filed charges or otherwise commenced criminal proceedings against Epstein, the CVRA was never triggered. It’s not a result we like, but it’s the result we think the law requires.

 Things get a little testy.  Newsom:

Having so held, two final words.
First, regarding the dissent: Although we have endeavored along the way to meet a few of the dissent’s specific critiques, we must offer here two more global responses. As an initial matter, with respect to the dissent’s charge (Dissenting Op. at 65) that we have “dresse[d] up” what it calls a “flawed statutory analysis” with “rhetorical flourish”—well, readers can judge for themselves whose rhetoric is in fact more florid. See, e.g., id. at 61 (“So how does the Majority bail the U.S. Attorney’s Office out of its egregious CVRA violations . . . ?”); id. at 94 (“So how in the holy name of plain text . . . ?”); id. (“The Majority hacks away at the plain text with four tools.”); id. (“The Majority cherry picks the meaning of ‘case’ . . . .”); id. at 96 (“Nonsense.”); id. at 98 (“As its third tool to axe the plain text . . . .”); id. (“Do not fall for this.”); id. 106 (accusing us of ruling “by judicial fiat”); id. at 109–10 (twice accusing us of fearing crime victims more than “wealthy defendants”).

Hull:

 While the Majority laments how the national media fell short on the Jeffrey Epstein story, this case is about how the U.S. prosecutors fell short on Epstein’s evil crimes. See Maj. Op. at 6. Our criminal justice system should safeguard children from sexual exploitation by criminal predators, not re-victimize them. The Majority concludes that our Court is constrained to leave the victims “emptyhanded,” and it is up to Congress to “amend the Act to make its intent clear.” Id. at 19, 52. Not true. The empty result here is only because our Court refuses to enforce a federal statute as Congress wrote it. The CVRA is not as impotent as the Majority now rewrites it to be.
Given the undisputed facts that the U.S. Attorney’s Office completed its investigation, drafted a 53-page indictment, and negotiated for days with Epstein’s defense team, the Office egregiously violated federal law and the victims’ rights by (1) not conferring one minute with them (or their counsel) before striking the final NPA deal granting federal immunity to Epstein and his co-conspirators, (2) intentionally and unfairly concealing the NPA from the victims, as well as how the upcoming State Court plea hearing would directly affect them, and (3) affirmatively misrepresenting the status of the case to the victims after the NPA was executed. I would remand for the District Court to fashion a remedy.
For all of these reasons, I respectfully dissent from the Majority’s (1) decision that the crime victims of Epstein and his co-conspirators had no statutory rights whatsoever under the Crime Victims’ Rights Act, and (2) denial of the victims’ petition in this case as a matter of law.

3. And to further yesterday's post about Zoom hearings, check out this Broward judge who says to put on a shirt and get out of bed!

“It is remarkable how many ATTORNEYS appear inappropriately on camera,” the judge wrote in the letter posted on the Weston Bar Association website. “We’ve seen many lawyers in casual shirts and blouses, with no concern for ill-grooming, in bedrooms with the master bed in the background, etc. One male lawyer appeared shirtless and one female attorney appeared still in bed, still under the covers.

“And putting on a beach cover-up won’t cover up you’re poolside in a bathing suit. So, please, if you don’t mind, let’s treat court hearings as court hearings, whether Zooming or not.”

Amos Rojas, Jr. named U.S. Marshal for the Southern District of FLorida

The White House Press Release:

Amos Rojas Jr., to be United States Marshal, Southern District of Florida
Amos Rojas Jr. currently works for the Miami-Dade State Attorney’s Office, serving as the Deputy Director of the South Florida Money Laundering Strike Force.  He previously worked for 24 years in the Florida Department of Law Enforcement (FDLE), including serving for eight years as the Special Agent in Charge of the Miami Regional Operations Center of the FDLE.  Prior to joining the FDLE, he served as an Investigative Supervisor in the Miami-Dade State Attorney’s Office, and he has also served on the Huntsville (Alabama), South Miami, and Miami-Dade Police Departments.  He received his undergraduate degree in 1983 from the University of Alabama in Huntsville. 

From the Herald:

Amos Rojas Jr., a former longtime law enforcement officer who works as an investigator for the Miami-Dade state attorney’s office, has been nominated to serve as the U.S. marshal in South Florida.

Rojas, who was nominated by President Barack Obama on Thursday, is the deputy director of the South Florida Money Laundering Strike Force in the state attorney’s office.

Previously, he spent 24 years with the Florida Department of Law Enforcement, retiring as the special agent in charge of the Miami region. Rojas also was a police officer on the Huntsville, Ala., South Miami and Miami-Dade police departments.

A 1983 graduate of the University of Alabama, Rojas must be confirmed by the U.S. Senate before he starts his new position as head of the U.S. Marshals Service in the Southern District of Florida.

Obama, in a statement regarding four new U.S. marshal nominees in Florida, Ohio and Texas, said: “These nominees have spent their careers risking their own safety to protect their fellow Americans.”

Read more here: http://www.miamiherald.com/2013/08/02/3539841/longtime-south-florida-law-officer.html#storylink=cpy

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.

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.

Finalists for U.S. Marshal

They are: James S. Higgins, Eben Morales and Amos Rojas Jr..

Many of you will remember Jaime Higgins, who is an ATF agent, currently on assignment in Vancouver, Canada. His wife is Celeste Higgins, a former AFPD in Miami.

Blog makes news

Pretty cool -- Alyson Palmer of the Daily Report in Georgia wrote a nice story about the Rojas opinion disappearing and reappearing on the 11th Circuit website and our coverage of it:


The case of the missing opinion has been solved.
Court watchers had been scratching their heads after a June 24 sentencing opinion by a panel of the 11th U.S. Circuit Court of Appeals vanished from the court's website. Lawyers interested in reading the decision had to go to other sources, such as the Federal Public Defender's Office in Miami or a Miami lawyer's blog.
On Wednesday, more than one week after the Miami blogger noted on June 28 the opinion's disappearance, the decision reappeared on the court's site with the original June 24 date. A few hours later, a revised opinion was issued, mandating the same pro-defendant result and bearing the explanation that the panel had modified the opinion to reflect recent case law developments in other circuits.
According to Clerk of Court John Ley, the original opinion was withdrawn at the request of the judge who wrote it. (The unanimous three-judge panel was composed of Judges Charles R. Wilson and Beverly B. Martin and Senior Judge R. Lanier Anderson, but the opinion was unsigned.) "It happens every now and then," said Ley, "but then they reissued it once they reviewed their citations."
***
Within days of the opinion's issuance, however, it disappeared from the court's website. Noting the federal public defender's office was fielding requests for copies of the opinion, a University of Miami law professor, Ricardo J. Bascuas, posted the ruling on the blog of Miami attorney David O. Markus.
Lawyers at the federal public defender office that's handling the matter couldn't be reached to discuss what they were thinking when their case appeared in limbo, and federal prosecutors in Miami declined to comment. But others were talking.
"When a decision like that just disappears and there's no explanation and no reason given, it just makes the court look weird—I don't know the right word for it," Bascuas said in an interview Wednesday shortly before the opinion resurfaced on the court's site.
An anonymous comment on Markus' blog mused that perhaps the court was concerned that the upcoming vote by the federal sentencing commission on whether to make changes to the crack sentencing guidelines retroactive, scheduled for June 30, could moot the case. But the commission's decision to extend its guidelines changes even to those who were sentenced years ago didn't, and couldn't, change the mandatory minimums at issue in Rojas' case; the guideline changes would help the many inmates whose crimes involved drug quantities that placed their sentences beyond (often far beyond) the statutory minimums.

Rojas is back on the 11th Circuit homepage

Very strange. Prior coverage here. And here's the opinion, which still has the June 24 date. Below is a screen shot of the 11th Circuit home page:

UPDATE: The 11th actually issued a revised opinion today with this language starting it off (the link in the initial post above and on the 11th home page is to the old June opinion):

We sua sponte modify our previous opinion in this appeal to reflect recent developments in the law of the First and Seventh Circuits. See United States v.
Fisher, 635 F.3d 336, 340 (7th Cir. 2011); United States v. Douglas, No. 10-2341,
2011 WL 2120163 (1st Cir. May 31, 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.

Vanishing precedent

Rojas isn’t gone only from the Eleventh Circuit’s website. It’s gone from Westlaw and apparently everywhere else as well. The Federal Public Defender has been fielding requests for copies of the mysteriously vanished decision. Here it is:
Rojas

Tuesday News and Notes

1. Mark Cuban files a pretty funny pleading with a picture from the championship.

2. The State AG's office has asked Judge Martinez to reconsider his ruling finding the Florida death penalty unconstitutional.

3. Strangely, the U.S. v. Rojas case (finding the Fair Sentencing Act applied to all defendants sentenced after August 2010) has disappeared from the 11th Circuit website.

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.

So you wanna be a federal judge?

Below are the 12 applicants for Judge Gold's seat:

Jerald Bagley
Beatrice Butchko
Marina Garcia Wood
Brian Gilchrist
Robert Levenson
Peter Lopez
Caroline Heck Miller
John J. O'Sullivan
Robin Rosenbaum
Barry Seltzer
William Thomas
John Thornton, Jr.

UPDATE -- I fixed the initial post in which I initially listed the applicants for Marshal. Here they are:

Gwendolyn Boyd
Darin Cooper
James Higgins
Eben Morales
Hector Pesquera
Amos Rojas, Jr.
Michael Roy
David Say, Jr.
G. Wayne Tilman
John F. Timoney
Chadwick E. Wagner