Judge Gayles sworn in

Judge Darrin Gayles was sworn in at a small ceremony in Judge Moreno's courtroom this morning at 9:30. Below is a picture. Congrats again to Judge Gayles, who is now officially a member of the Southern District of Florida.

Judge Bloom to be confirmed tomorrow!

Judge Beth Bloom will have her final vote tomorrow (assuming cloture is invoked today). Congrats to Judge Bloom!


The District is really starting to change. We have an influx of new judges, and we will have a new Chief as of July 1. The DBR covers Judge Moreno's tenure here:

"Someone asks, 'What's a chief judge?' And I said, the chief judge doesn't make more money, doesn't boss anybody around. He is like the Queen of England," Moreno said. "The prime minister is the clerk of court, and my Winston Churchill is Steve Larimore."King said Moreno has managed a district with more judges, more staffers and more headaches than he had as chief judge from 1984 to 1991."I've been here for several chief judges, and in my humble judgment Chief Judge Moreno is the finest, the most outstanding chief judge we've ever had," King said.

And Judge Moore will be taking over:

Moore, who has been on the federal bench since 1992, said he is more than ready for the task that awaits him as chief judge.

The former longtime federal prosecutor is the former director of the U.S. Marshal's Service at the Department of Justice.

He said security is a top priority. Moore wants to make sure that employees and the public, such as jurors, feel they are safe coming to the federal courthouse. In Miami, the federal court complex is often surrounded by the chronically homeless.

"The issues remain the same regardless of who the chief judge is," Moore said. "We are always interested in making sure vacancies are filled and it looks like we are heading in the direction and I think the judges feel the space issue in Fort Lauderdale is still important."

CJA Conference

An all star panel of Lucy Lara, Judges Scola, Moreno, Cooke, & Matthewman, Henry Bell, and FPD Michael Caruso (at the podium). 

“I think you’re going to have to let the emperor stand naked without your helping him."

That was Judge Cooke in scolding Mike Pizzi, but not remanding him to jail. More from the Herald here:

A federal judge Wednesday came within a whisker of sending suspended Miami Lakes Mayor Michael Pizzi to jail after finding that he violated the terms of his bond and lied to a probation officer about it.

But U.S. District Judge Marcia Cooke instead allowed Pizzi to remain free on bail with less than a month before his trial on corruption charges of accepting bribes in exchange for political favors.

“If you keep this up, you will be across the street,” Cooke told Pizzi, referring to the nearby Miami Federal Detention Center. “You will be in jail.”

Cooke took Pizzi to task for sending out two political email blasts to his supporters in April that were also received by potential government witnesses the former mayor was forbidden from contacting before trial. Among the recipients: Miami Lakes town manager Alex Rey, whose administration was described as “corrupt” in Pizzi’s unsigned emails. They referred to an actual Miami-Dade County Ethics Commission’s ruling that found the town’s former public works director violated a conflict of interest law.

Pizzi’s probation officer, who had already put Pizzi on notice for sending out email blasts to no-contact witnesses earlier this year, told federal prosecutors that the former mayor lied when asked if he committed the same bond violation again in April. As a result, the U.S. attorney’s office asked the judge to revoke Pizzi’s $100,000 bond and detain him before his July 8 trial.

“I’m giving you fair warning right now,” Cooke told Pizzi, who was emotionally shaken by the prospect of being sent to jail. “No more, this is it. No emails. You just have to put your gadfly-ness on hold.”

Pizzi, a twice-elected Miami Lakes mayor who described himself as a longtime “gadfly” and “whistle blower,” said he can’t help himself because he’s “the guy who says the emperor has no clothes.”

“I think you’re going to have to let the emperor stand naked without your helping him,” Cooke told Pizzi.

Meantime, the CJA panel is heading to Hutchinson Island today for the annual conference. So it should be pretty quiet around the courthouse today and tomorrow.

Unlike MDC's newspaper, I won't quote you without permission

Here's another Judge Cooke case, where the defendant got into trouble for making statements after his sentencing to a reporter.  The issue in the case was whether changing the terms of probation, without an actual violation, was permitted.  Here's Judge Jordan, for the Court (Jordan, Martin, & Baylson) in U.S. v. Serrapio:

Like others before him, Joaquin Serrapio, Jr. learned the hard way that whatever one says to a reporter may later appear in print. After being sentenced to three years of probation (with a number of conditions, including four months of home confinement with electronic monitoring and 250 hours of community service) for threatening to shoot President Barack Obama during his 2012 visit to the University of Miami, Mr. Serrapio spoke to a reporter for his college newspaper. Among other things, he told the reporter that his ordeal had been “pretty funny,” that he could not be imprisoned in his “own house,” and that a lot of good had come out of his case, including for his rock band, as a “lot people showed up [to one of his shows] to see the kid who threatened to kill the [P]resident.”
The district court, upon learning of these comments, apparently took to heart Justice Frankfurter’s observation that “probation grew out of a realization that to make the punishment fit the criminal requires wisdom seldom available immediately after conviction.” Roberts v. United States, 320 U.S. 264, 273 (1943) (Frankfurter, J., dissenting). Although it did not revoke Mr. Serrapio’s three-year term of probation, the district court modified the conditions of probation to include 45 days in a halfway house and one year of home confinement with electronic monitoring.
In this appeal, Mr. Serrapio asks us to hold that these modifications violated his rights under the Double Jeopardy Clause of the Fifth Amendment, the Due Process Clause of the Fifth Amendment, and the First Amendment. With the benefit of oral argument, we conclude that, on this record, the district court’s actions were constitutionally permissible.
***
Mr. Serrapio told Ms. Barrios that the whole ordeal “was pretty funny” to him and his friends, suggesting that he did not really understand the gravity of his offense. He also commented that he could not be imprisoned in his “own house,” indicating that he viewed the home confinement aspect of the original sentence as little more than an inconvenience. And he noted, apparently with some satisfaction, that his rock band had benefited from the publicity surrounding his arrest: “[A] lot of good has come out of this, even for my music . . . I had a show that Saturday and a lot of people showed up to see the kid who threatened to kill the [P]resident[.]”
To the district court, these post-sentencing comments were relevant to the conditions of probation because they indicated that Mr. Serrapio did not grasp the seriousness of his conduct and did not think much of the probationary sentence he had received. See 18 U.S.C. § 3553(a)(2)(A)-(B) (in determining what sentence to impose, court “shall consider,” among other things, the need for the sentence to reflect the seriousness of the offense, promote respect for the law, provide just punishment, and afford adequate deterrence to criminal conduct); 18 U.S.C. § 3563(b) (providing that court has discretion to impose special conditions of probation so long as they are reasonably related to the factors set forth in § 3553(a)(1) and (a)(2)). Mr. Serrapio does not argue that the district court erred in so finding, and on this record that finding did not violate the First Amendment.
Simply stated, Mr. Serrapio was not punished for any abstract beliefs. See, e.g., United States v. Stewart, 686 F.3d 156, 167 (2d Cir. 2012) (rejecting First Amendment challenge to sentence based in part on the defendant’s public comments, which expressed a lack of remorse, because those comments were “legally relevant to a determination of the appropriate sentence to impose”); Kapadia v. Tally, 229 F.3d 641, 648 (7th Cir. 2000) (“Nothing in the Constitution prevents the sentencing court from factoring a defendant’s statements into sentencing when those statements are relevant to the crime or to legitimate sentencing considerations.”).

 What do you think?  Was Judge Cooke too harsh or right on?

Judge Cooke has all the fun!

Yesterday she had the sanction hearing dealing with the Miccosukee lawyer who sued with no basis.  From the DBR:

Roman took the stand Monday and Tuesday in an effort to prove he filed the lawsuit in good faith. Among his evidence was a brochure advertising Lewis' open house that showcased his personal car collection.
Roman said the brochure supported his lawsuit because it showed sudden "unexplained wealth."
U.S. District Judge Marcia Cooke in Miami, in one of many moments of incredulity with Roman, asked late Monday: "You used this document? You used a real estate brochure?"
The sanctions hearing was scheduled for one day but stretched into Tuesday. Cooke refused to allow the tribe to call a money laundering expert, saying he had no bearing on Roman's justification for filing the lawsuit.
The Gunster law firm, representing the tribe, repeatedly delayed Roman's cross-examination by asking Cooke to take witnesses out of order. Gunster shareholder William Hill then told Cooke he was about to wrap up the direct questioning of Roman only to change course and say it would stretch into another day.
"This is taking too long," Cooke complained at one point Tuesday.

Oh come on Judge, who would want this to end?  Paul Calli certainly doesn't... he's knocking it out of the park:

Attorney Paul Calli of Carlton Fields Jorden Burt, representing Lewis Tein, initially objected to the open house brochure but changed his mind, saying the home was purchased in 2006 when Lewis Tein billed the tribe $40,000.
"Let it all in," he told Cooke.
In the last 45 minutes of the day, Calli was finally able to cross Roman. He asked Roman if he could prove if “one transaction or one dollar” went from Lewis Tein to Billy Cypress as a kickback. Roman said he did not have any such evidence and that he conjectured that fraud occurred based on the amount the firm charged the tribe. Roman also confirmed a tribal official’s deposition that he is being paid $250,000 a month to represent the tribe.
Cooke questioned Roman's long soliloquies Monday in justifying the lawsuit. "We are so far downstream as to what can possibly be credible," she said.

Meantime, she has a bond revocation hearing today for former Mayor Pizzi. The government's claim seems really weak. From the Herald:

Prosecutors have moved to revoke Pizzi's bond and detain him, claiming he violated the terms when he arranged to have a colleague send two email blasts about “corrupt” activity by other Miami Lakes officials to thousands of his supporters. Among the recipients: the town manager and other potential trial witnesses the former mayor was ordered not to contact by a federal magistrate judge.
Prosecutors made their move against Pizzi after they said he lied to the court’s probation office about his behind-the-scene’s role in sending the emails in April. Pizzi’s defense attorneys have called the prosecution’s actions “a shocking exercise of government overreaching” while trampling on his right to free speech. They have sought to dismiss his bribery indictment.
U.S. District Judge Marcia Cooke has scheduled a hearing Wednesday to decide Pizzi's pre-trial fate. His trial starts July 8 with jury selection.
Pizzi’s first email, sent in early April, included references to Miami Lakes town manager Alex Rey in a “purported” press release made to look like it was issued by the Miami-Dade County Commission on Ethics and Public Trust, according to federal prosecutors. “The press release was misleading in that it improperly alleged that A.R. and his staff were engaged in corruption and awarding contracts illegally,” stated the prosecution’s motion to revoke Pizzi’s bond.
Rey, who received the email, is on the no-contact list because he is listed as a potential witness at Pizzi’s upcoming trial.
Pizzi said federal prosecutors and FBI agents have completely distorted his actions by implying he fabricated the press release cited in the email blasts to intimidate potential witnesses. He doesn’t dispute his role in sending them with the help of a public relations assistant.
His legal team called the prosecution’s strategy to revoke his $100,000 bond an “intrusion into Mr. Pizzi’s privacy and First Amendment rights,” defense attorneys Ed Shohat and Ben Kuehne wrote in a response to the government’s motion.
“Today the government seeks to punish Pizzi, who has scrupulously avoided any real contact with anyone on the no-contact list, for exercising his First Amendment right to expose corruption in the town of Miami Lakes,” they wrote Friday.

98-0

That was the vote confirming Darrin Gayles to the District bench.  Congratulations to Judge Gayles!