"Can you give me an area [of law] where a misdemeanor violation suspends a constitutional right."

That was Justice Thomas' first question in over 10 years.  Apparently he asked a bunch of questions.  From the Huffington Post:

Justice Clarence Thomas, near the end of a little-noticed criminal law case involving issues of domestic abuse and the potential loss of gun rights, asked his first question from the Supreme Court bench in 10 years.
"Can you give me an area [of law] where a misdemeanor violation suspends a constitutional right," Thomas asked of the federal government's lawyer, who was arguing that a federal ban on gun ownership for certain persons who are convicted of domestic violence offenses at the state level should apply if the offense was committed "recklessly."
Ilana Eisenstein, the assistant solicitor general arguing the case, had asked if anyone had more questions for her. That's when Thomas, in his booming baritone, spoke up, asking a lengthy string of questions about an issue so far unexplored in the hearing.
He wanted to know "how long" the suspension of Second Amendment rights was for persons prohibited under federal law to possess firearms, and he pressed Eisenstein to name any other legal analog where the federal government could permanently curtail constitutional rights following a conviction for an unrelated offense.
"Let's say that a publisher is reckless about the use of children ... in indecent displays," he said, and wondered if the government then could suspend that publisher's right of free press permanently.

"Senator Rubio is reviewing it and deciding how to proceed."

That was Marco Rubio’s spokesman Alex Burgos about the nomination of Mary Barzee Flores to the federal bench.  But his statement makes no sense since Rubio supported the nomination in the first place.  Presidential politics stink.

The Miami herald covers it here:

It's no wonder U.S. Sen. Marco Rubio recommended seasoned Miami lawyer Mary Barzee Flores to fill an opening on the busy federal judiciary in South Florida more than a year ago.
She worked her way through the University of Miami and its law school, spent more than two decades as an assistant federal public defender and state circuit court judge, then joined a top commercial law firm before applying for a coveted federal judgeship.
“What a spectacular judge,” said Miami lawyer Edward Blumberg, a former president of the Florida Bar Association, recalling his experience trying a complex medical malpractice case in front of her. “She's one of the best judges I've seen statewide.”
Rubio thought so, too. But since Barzee Flores' nomination by President Barack Obama a year ago, the Miami Republican now running for his party's presidential nomination has held up her confirmation by not allowing the Senate Judiciary Committee to move forward with it.
Rubio, who had recommended Barzee Flores along with his Florida colleague, U.S. Sen. Bill Nelson, has not submitted a so-called blue slip that would set the wheels in motion for her confirmation — a decision seemingly in lockstep with the GOP-led Senate’s strategy to “slow-walk” the Democratic president’s judicial nominees since early last year. Only 16 federal district and appellate judges have been confirmed since last year by the Senate, including four nominated after Barzee Flores. The president nominated her on Feb. 26, 2015, and Nelson, a Democrat, returned his blue slip for her confirmation immediately.
Rubio's critics, including some in the Republican Party, say his dilatory strategy is indefensible because, in Barzee Flores, the senator is blocking an ideal candidate for a federal judgeship that has been vacant for almost two years. Indeed, the position has been deemed by the court as a “judicial emergency,” leaving other federal judges with heavier caseloads in South Florida.
“I've been honestly shocked by his lack of responsibility as a U.S. senator,” said Miami lawyer Tom Spencer, a Republican who supported Rubio against Democratic challenger Charlie Crist for the Senate in 2010, but backed former Florida Gov. Jeb Bush during this presidential primary season. “She's an excellent judge. There is absolutely no reason for him not to move forward with her confirmation. It's an absolute outrage and slap in the face of the people of Florida.”

Read more here: http://www.miamiherald.com/news/politics-government/article63008137.html#storylink=cpy

Trial happenings

Most of the white collar bar was watching the criminal trial involving the BP oil spill case in New Orleans.  Yesterday the jury found the engineer that the government was trying to hold responsible not guilty in less than two hours.  From the AP:

A former BP rig engineer was found not guilty Thursday (Feb. 25) on a charge of negligence that contributed to the 2010 Gulf of Mexico oil spill.
Robert Kaluza was a rig supervisor aboard the Deepwater Horizon offshore rig when it exploded, killing 11 workers and resulting in millions of gallons of oil spewing into the Gulf and fouling wetlands and beaches.
Kaluza was charged with a single count of violating the federal Clean Water Act. Jurors got the case Thursday afternoon and reached a verdict after less than two hours of deliberation.
Prosecutors told jurors Kaluza and a former co-defendant, Donald Vidrine, botched a crucial pressure test indicating oil and gas could be flowing from deep beneath the sea floor into BP's Macondo well, which was thought to be securely plugged with cement and mud.
"All of the red flags in front of him should have told him that it was a bad test," Assistant U.S. Attorney Gary Winters told jurors after showing them projected images of smoke billowing from the flaming, crippled rig, followed by pictures of oil-coated coastal land.
Defense attorney Shaun Clarke cast Kaluza as a scapegoat. He said federal prosecutors failed to make their case.
Clarke said Vidrine, who has pleaded guilty in the case, was the rig leader who declared the test a success — after Kaluza's watch aboard the rig had ended.
"The Macondo well was under control during every single second of his watch," Clarke said.
Clarke also said other rig workers with 97 years of combined experience in drilling agreed with Vidrine. Clarke disputed Winters' statement that the test was a simple one, saying there were no government standards for the test the prosecution is citing.
"There is no dispute that others were negligent," prosecutor Jennifer Saulino argued later. But Kaluza shared in the negligence that caused the disaster and he should be held criminally accountable for the pollution, she said, as a video of oil flooding from the sea floor flashed on a screen behind her.
Another defense lawyer, David Gerger, argued that failure of multiple, redundant safety systems and equipment caused the explosion, not the interpretation of a test. He pointed to rig crew members failing to notice a "kick" or influx of oil and gas into the rig hours ahead of the spill, a captain's failure to timely operate an emergency system that would have disconnected the well from the rig ahead of the explosion and the failure of a crucial device known as a "blowout preventer" that had not been property certified.

Some of you may remember the prosecutor from the big ATC case here before Judge Seitz.  The defense team involved some of the best lawyers I know -- David Gerger, Robert Hirschhorn, and Jennifer Johnston* to name a few.  Before the trial, the lawyers--with some great lawyering in court and in negotiations with prosecutors--were able to convince DOJ to drop the more serious charges:

Although Kaluza could have faced a year of prison on the pollution charge, he once faced more serious charges. He and Vidrine had been indicted on federal manslaughter and "seaman's manslaughter" charges — 22 counts apiece — stemming from the 11 deaths on the rig. But the seaman's manslaughter counts were thrown out by the courts and government prosecutors late last year backed away from the remaining manslaughter counts.
Prosecutors have recommended no prison time and 10 months of probation for Vidrine. He is set for sentencing in April.

He testified for the prosecution early in the trial, telling jurors that Kaluza never gave him information that prosecutors say was critical. The information dealt with a test meant to show whether two cement plugs, other structures and drilling mud below the ocean floor could stand up to the pressure of oil and gas farther down.

Congrats to the defense team.  What a win.

*Full disclosure -- Johnston used to work with my firm.

President Obama, Guest Blogger on SCOTUSblog

Wow, this is so cool. Check out the guest post by President Obama, titled "A Responsibility I Take Seriously":

The Constitution vests in the President the power to appoint judges to the Supreme Court. It’s a duty that I take seriously, and one that I will fulfill in the weeks ahead.

It’s also one of the most important decisions that a President will make. Rulings handed down by the Supreme Court directly affect our economy, our security, our rights, and our daily lives.

Needless to say, this isn’t something I take lightly. It’s a decision to which I devote considerable time, deep reflection, careful deliberation, and serious consultation with legal experts, members of both political parties, and people across the political spectrum. And with thanks to SCOTUSblog for allowing me to guest post today, I thought I’d share some spoiler-free insights into what I think about before appointing the person who will be our next Supreme Court Justice.

 

A bad day for Broward lawyers

First is this report from Paula McMahon about a lawyer charged in a horrific child porn case:

Broward lawyer, arrested on federal child porn charges, is also accused of abusing two underage girls, according to court records.

David Rothenberg, 47, was arrested Saturday at his Margate home. An undercover investigation revealed he was logging on to a "daddaughtersex" chat room from the Internet protocol address of his Fort Lauderdale law firm and trying to persuade a stranger to let him have sex with her 13-year-old daughter, authorities said.

Rothenberg did not realize he was communicating with an undercover officer for about six weeks.

Authorities said they moved swiftly to arrest Rothenberg on the child porn charges when they found evidence he was sexually abusing a real teenage girl.

When agents from the Florida Department of Law Enforcement and the FBI's taskforce on crimes against children went to arrest him, they uncovered evidence that he was abusing a second underage girl in Broward County, according to the criminal complaint.

Rothenberg, who said he is married but has no children, has not yet indicated if he will fight the charges.

***

Rothenberg came to the attention of law enforcement Jan. 13 when he chatted online with an undercover officer from the Vermont State Attorney General's office, authorities said. The officer was posing as a divorced mother with two children in the "daddaughtersex" chat room.

Rothenberg, using online nicknames that included "D Roth," asked if the "mother" would "be accepting of" letting her 13-year-old girl be "sexually explored and cultivated by a more strong man in her life," investigators wrote.

In the chats, Rothenberg told the undercover officer he had sexually exploited an underage girl and said the abuse was ongoing. He also explained how he had access to her, agents wrote.

Investigators traced the online Internet protocol address he was using to the Fort Lauderdale law firm where Rothenberg worked. During chats that continued into February, he revealed he was a lawyer and gave the undercover officer his birth date when he said he was celebrating his birthday. Investigators said he also sent a beach scene photo they traced to South Florida.

Oh, and then there was this lawyer who was forging judges' signatures on order. Not good:

Miami lawyer is facing multiple forgery charges after investigators found he forged the signatures of seven different Broward County and Circuit judges on documents related to civil cases involving structured settlements, according to court records.

Jose Manuel Camacho was arrested in October after Broward County Judges Marina Garcia-Wood and Carlos Rodriguez found their forged signatures on legal documents filed with the clerk of courts.

After the judges complained, Broward Sheriff's Detective John Calabro interviewed them and five other judges. In all, Camacho, 46, was accused of forging 114 signatures. The other judges were Eileen O'Connor, John Luzzo, John Bowman, Thomas Lynch and Mily Rodriguez Powell.

Camacho worked for the Miami-based Camacho Law Group and graduated from the University of Miami Law School. He was admitted to the Florida Bar in April 2000.

In structured settlement cases, someone expecting a large payout in installments over a period of time will negotiate a deal with a buyer who agrees to pay a lump sum immediately in exchange for the future payments. Judges have to sign off on the transactions and will reject them if they conclude the original recipient of the payments is not getting a fair deal.

According to an arrest report, Camacho admitted forging the judges' signatures and filing the orders with the clerk of courts.

The case against Camacho was originally assigned to Broward Circuit Judge Matthew Destry, but because it involved other judges as victims, Destry recused himself. He asked Broward Chief Administrative Judge Peter Weinstein to have it transferred to another jurisdiction.

The case is now being handled by Miami-Dade Circuit Judge Ellen Sue Venzner. Assistant Broward State Attorney Ryan Kelley is continuing to prosecute.

Government asking for life sentence for convicted fraudster (Updated)

Update-- Judge Martinez sentenced him to 40 years. 

Original post:

According to this Herald article:

The former chief of the failed Clubs Resorts and Marinas will learn his sentence in a 9:30 a.m. Monday hearing at the Key West federal courthouse. Maximum combined sentences for the counts carry a potential 200 years behind bars, prosecutors wrote in a filing last week.

A life sentence "would be reasonable" for convicted bank-fraud defendant Fred D. "Dave" Clark, former chief of the failed Cay Clubs Resorts and Marinas, federal prosecutors say.

Clark "has repeatedly advanced his view that everyone is to blame for his conduct but himself," prosecutors wrote. The "defendant has exhibited a decades-long pattern of making up his own rules and avoiding responsibility for breaking the law. Until now."

The 11-page sentencing memo describes prison terms in other financial fraud cases, including the 50-year sentence imposed on disgraced Fort Lauderdale attorney Scott Rothstein.

Clark was convicted Dec. 11 after a five-week retrial, after a jury could not reach a verdict in his first trial.

Federal authorities say Cay Clubs was a $300 million Ponzi scheme.

Yikes, a life sentence for this crime... when Rothstein -- the supposed worst of the worst -- gets 50. That seems way too high. What say you?

Meantime, it's the first oral argument without Justice Scalia this morning, in this exclusionary rule case: "Should courts suppress evidence obtained from a suspect after a police officer executes a valid arrest warrant, if the officer first illegally detained the suspect?"

Big Federal Bar Shindig tonight

It's the 35th annual judicial reception.  It's so big that you can win a free iPad Air!!

FREE iPad Air GIVEAWAY! We will be conducting a membership drive. If you sign up for membership in the Federal Bar Association at the federal judicial reception, you will be entered into a raffle to win an Apple iPad Air. 

Hopefully, it won't be able to be backdoored...

Good for Tim Cook and Apple.

"The bottom line is that President Obama’s nominee is not getting confirmed before the election."

That's SCOTUSblog's Tom Goldstein in this post about who might get the nomination.  His latest thinking is Ketanji Brown Jackson, a district judge in D.C.:

Ketanji Brown Jackson is a judge on the U.S. District Court for the District of Columbia.  She was confirmed by without any Republican opposition in the Senate not once, but twice.  She was confirmed to her current position in 2013 by unanimous consent – that is, without any stated opposition.  She was also previously confirmed unanimously to a seat on the U.S. Sentencing Commission (where she became vice chair).
She is a young – but not too young (forty-five) – black woman.  Her credentials are impeccable.  She was a magna cum laude graduate of Harvard College and cum laude graduate of Harvard Law School.  She clerked on the Supreme Court (for Justice Stephen Breyer) and had two other clerkships as well. As a lawyer before joining the Sentencing Commission, she had various jobs, including as a public defender.
Her family is impressive.  She is married to a surgeon and has two young daughters.  Her father is a retired lawyer and her mother a retired school principal.  Her brother was a police officer (in the unit that was the basis for the television show The Wire) and is now a law student, and she is related by marriage to Congressman (and Speaker of the House) Paul Ryan.
Judge Brown Jackson’s credentials would be even stronger if she were on the court of appeals rather than the district court and if she had been a judge for longer than three years.  One person whom I know who has been deeply and directly involved in prior confirmations is confident the president would not nominate someone from the district court.
I disagree because these are special circumstances.  It is easy to see a political dynamic in which candidate Hillary Clinton talks eagerly and often about Judge Brown Jackson in the run-up to the 2016 election, to great effect.

 Another reason to support her -- she is also a local, having gone to Palmetto High School.  If I remember correctly, she won nationals in oratory, which was a big deal to us debate nerds back then. I also knew her in law school, so if it's Judge Ketanji Brown Jackson, I hope Tom is wrong about the nominee not getting confirmed.