"How about the rest of us? Right-wingin', bitter-clingin', proud clingers of our guns, our God, and our religions and our Constitution. Tell us that we're not red enough? Yeah, coming from the establishment."

That was Sarah Palin yesterday endorsing The Donald.  There are so many good quotes.  More here.

Meantime, the Republicans are duking it out over sentencing reform.  Politico covers the story:

Senate Majority Leader Mitch McConnell faces snowballing pressure to tackle an overhaul of the criminal justice system. But deep dissension within his own party — between pro-reform Republicans and law-and-order types — is threatening one of the few items on the congressional agenda with a real chance of becoming law this year.
Criminal justice legislation is backed by the two top vote-counters of each party in the Senate and a powerful right-left coalition. It was bolstered by a presidential shout-out in the State of the Union last week. Passing a bill would advance McConnell’s favorite narrative — that the Senate is working again.

But loosening some mandatory minimum sentences is still a toxic suggestion among a vocal segment of the GOP, criticism that the presidential primary could amplify. Some backers of the bill fret that Sen. Ted Cruz, who’s vaulted into the top tier in the GOP presidential primary, might seize on the issue ahead of the Iowa caucuses. The Texas Republican has warned that a bill pending in the Senate could release violent criminals into the streets.
Still, backers are pressing ahead. Sen. John Cornyn (R-Texas), McConnell’s top deputy, has lobbied the majority leader to take up the proposal early this year. Backers say the Senate has to move on criminal justice reform quickly, perhaps as soon as next month, for the measure to have any hope of reaching President Barack Obama’s desk.

3-0

That's the defense record in Chinese importation trials. The latest was by AFPDs Sowmya Bharathi and Bunmi Lomax before Judge Seitz. There was also another January not guilty casting shade on Rumpole's "no-trials-in-January" mandate. Bottom line -- we need more trials! 

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article54763750.html?ppRandom=0.12800472962753218&pp_u=EpszNZmQZ2sGUh1MEMIQCA#storylink=cpy

Anthony Bosch's sentenced reduced

From the Herald:

Anthony Bosch, the fake doctor who sold illegal muscle-building steroids to Major League Baseball stars including Alex Rodriguez, had the goods on his partners in crime.
Once Bosch’s Coral Gables anti-aging clinic shut down and baseball’s biggest doping scandal erupted in early 2013, it wasn’t long before Bosch began assisting baseball and U.S. authorities to save his neck.
On Thursday, the 52-year-old Bosch received his benefit for snitching when a Miami federal judge reduced his four-year prison sentence by one-third for helping federal prosecutors convict other defendants who participated in his steroid-distribution racket. His sentence was lowered to two years and eight months.
Prosecutors recommended that Bosch, 52, former owner of the anti-aging clinic Biogenesis of America, be given lesser punishment because of his “substantial assistance” in the investigation. His parallel cooperation with baseball authorities resulted in lengthy suspensions of Rodriguez, the New York Yankees star, and 13 other professional ballplayers who purchased banned performance-enhancing drugs from Bosch.
“He provided us with viable information that led to the prosecution of various defendants,” said prosecutor Sharad Motiani, noting that Bosch met with criminal investigators more than a dozen times for lengthy interviews and reviewed hundreds of medical, phone and text records that contributed to the successful prosecutions of at least four other defendants.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article54650210.html#storylink=cpy

CJA hearings in Miami conclude

Celia Ampel for the DBR covers it here:

Lawyers appointed to represent federal defendants who can't afford an attorney sometimes have trouble securing expert witnesses, wading through voluminous e-discovery and persuading judges to approve their expenses, according to testimony at a public hearing Monday and Tuesday in Miami.
The Criminal Justice Act, which provides a system for compensating those attorneys, is under a two-year review by a committee appointed by U.S. Supreme Court Chief Justice John Roberts. The committee's stop at the Wilkie D. Ferguson Jr. U.S. Courthouse was the second of seven hearings in cities from Portland, Oregon, to Philadelphia.
Attorneys and judges from across the Southeastern U.S. testified at the hearing, including the Southern District of Florida's Federal Public Defender Michael Caruso, U.S. Attorney Wifredo Ferrer and U.S. District Judges Robert Scola Jr., Donald Graham and Kathleen Williams.
The committee questioned the witnesses on whether the authority to approve CJA panel attorney compensation should rest with the judiciary, the public defender's office or an independent body. The group also discussed the challenges of e-discovery.

***

But regardless of their independence, CJA panel attorneys have far fewer resources than federal defenders and the U.S. attorney's office, lawyers testified.
That inequality extends to discovery, which in a multidefendant case can amount to three terabytes of data — or 6,000 filing cabinets of documents, Caruso said.
"You can imagine the CJA lawyer who's a solo practitioner trying to make sense of 6,000 filing cabinets," particularly in a trial-heavy and fast-paced district like the Southern District of Florida, he said.

Judge Graham was really strong on this point saying that prosecutors should be required to hand over hot documents to defense lawyers as a matter of proportionality and basic fairness.  Seems like a no-brainer.

Florida Death Penalty found unconstitutional

The case, 8-1 per Justice Sotomayor, is Hurst v. Florida:

A Florida jury convicted Timothy Lee Hurst of murdering his co-worker, Cynthia Harrison. A penalty-phase jury recommended that Hurst’s judge impose a death sentence. Notwithstanding this recommendation, Florida law required the judge to hold a separate hearing and determine whether sufficient aggravating circumstances existed to justify imposing the death penalty. The judge so found and sentenced Hurst to death.

We hold this sentencing scheme unconstitutional. The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.

Kudos to Judge Jose Martinez who was way ahead of this issue and found Florida's scheme unconstitutional many years ago.

"Not many people want to be locked up in a federal penitentiary serving a life sentence." (UPDATED)

But Harlan Salmona does, according to this opinion by Chief Judge Carnes.  The intro:

Not many people want to be locked up in a federal penitentiary serving a life sentence. Harlan Salmona does because it beats the alternative, which is being locked up in a state penitentiary that he believes is less safe. The problem for Salmona is that his life sentence was imposed by a Florida state court, not by a federal court. Salmona claims that because of a promise made to him by the United States Attorney’s Office in a long ago plea agreement the federal government is required to get him transferred from state to federal custody for the remainder of his state sentence. This is his appeal from the district court’s order denying his “Motion to Compel Compliance” with that plea agreement.

The conclusion:

Because the district court lacked subject matter jurisdiction over Salmona’s claim, its judgment is VACATED and the case is REMANDED with instructions to dismiss for lack of jurisdiction.

UPDATE -- from a tipster: The back story on him is fascinating. He is ex U.S. Coast Guard who was arrested by Feds for drug smuggling. He then decided to work off his case by informing on the marijuana organization he worked with. The Government indicted members of the organization based upon the anticipated testimony of Salmona and another informant.  Salmona then murdered the other Government informant in order to enhance his importance to the Government and become the sole key witness.  His state sentence of life was for that murder.

Meantime, it's CJA day at the federal courthouse.  Here's the live-stream of the committee hearings if you are interested.

The district bench is losing one of its stars

Judge John Gleeson is leaving the EDNY bench to go into private practice.  A huge bummer.  He was one of the best judges we had.  We wasn't afraid to rule against the government.  He wasn't afraid to do what was right.  And he wasn't afraid to write opinions explaining his reasoning.  We need more like him.

From the NY Law Journal:

Eastern District Judge John Gleeson is stepping down from the bench after more than 20 years to practice law.
In an email sent Monday to fellow judges, magistrate judges, bankruptcy judges and others, Gleeson wrote, "as difficult as it is to leave the work I love and the colleagues I love, this is the right decision for me and my family."
The email did not give specifics on his next move but said he would be leaving on March 9. The judge, through his chambers, declined to comment Monday.
...
As a judge, Gleeson has been vocal in his rulings about matters like sentencing law and judicial discretion.

"[T]he singer in “Margaritaville”—seemingly far from suffering embarrassment over his tattoo—considers it “a real beauty.”

That was the 11th Circuit last week in Buehrle v. Key West.  The whole footnote:

Jimmy Buffett’s song “Margaritaville” was referenced twice in the record, once by Mr. Craig in his deposition and once by the City’s attorney in oral argument before the district court, to support the claim that inebriated tourists are likely to get and then regret tattoos if more tattoo establishments operate in the historic district. But the singer in “Margaritaville”—seemingly far from suffering embarrassment over his tattoo—considers it “a real beauty.” Jimmy Buffett, “Margaritaville,” on Songs You Know by Heart (Geffen Records 1985).

Here's the intro to the opinion by Judge Jill Pryor:

The City of Key West, Florida has barred Brad Buehrle from opening a tattoo establishment in the City’s designated historic district, pursuant to an Case: 14-15354 Date Filed: 12/29/2015 Page: 1 of 14 2 ordinance strictly limiting the number of tattoo establishments permitted to operate there. Mr. Buehrle contends that the act of tattooing is entitled to First Amendment protection and that the ordinance is an unconstitutional restriction on his freedom of expression. The district court granted summary judgment to the City, agreeing with Mr. Buehrle that tattooing constitutes artistic expression protected by the First Amendment but nevertheless finding the ordinance to be a reasonable time, place, and manner restriction. We agree with the district court’s conclusion that tattooing is protected artistic expression, but we reverse the summary judgment because, on the record before us, the City has failed to show that the ordinance is a reasonable time, place, and manner restriction.

The AP covered the case here:

A Virginia man who wants to open up a tattoo parlor in Key West can thank Jimmy Buffett's "Margaritaville" for helping him with his latest court case.
City officials twice referenced the song in opposition to Brad Buehrle's proposal for a new tattoo shop, saying drunken tourists would be more likely to get tattoos and then regret it if more ink shops were open in Key West's historic district.
But the 11th Circuit Court of Appeals said the city misunderstood the song lyrics in which the languorous narrator reflects on a brand new tattoo - but how the "Mexican cutie" got there, "I haven't a clue."
The judges wrote in a footnote to their ruling that the character in the song deems his new tattoo "a real beauty" and seems far from embarrassed about it.
The appeals court ruled last week that the city failed to show that more tattoo shops would erode the historic district's "character and fabric," The Key West Citizen (http://bit.ly/1R73FIK) reported.
According to the ruling, the city feared that "rash tourists will obtain regrettable tattoos, leading to negative association with Key West."

Happy New Year from the Chief Justice

Here's his year end report.  He starts with a story about dueling, including this gem:

Public opinion ultimately turned against dueling as a means of settling quarrels. By 1859, eighteen of the 33 States of the Union had outlawed duels. Following the Civil War, a public weary of bloodshed turned increasingly to other forums, including the courts, to settle disputes. But reminders of the practice persist. When Kentucky lawyers are admitted to the bar, they are required, by law, to swear that they have not participated in a duel. Today, Wilson’s pamphlet stands on the bookshelf as a largely forgotten relic of a happily bygone past. But it is also a stark reminder of government’s responsibility to provide tribunals for the peaceful resolution of all manner of disputes. Our Nation’s courts are today’s guarantors of justice. Those civil tribunals, far more than the inherently uncivilized dueling fields they supplanted, must be governed by sound rules of practice and procedure.  

The Chief highlighted changes in the Rules of Civil Procedure that attempt to get rid of some of the bickering:

Rule 26(b)(1) crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” 7 The amended rule states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of a case. Specifically, the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery. The key here is careful and realistic assessment of actual need. That assessment may, as a practical matter, require the active involvement of a neutral arbiter—the federal judge—to guide decisions respecting the scope of discovery.

And the conclusion:

As for the lawyers, most will readily agree—in the abstract—that they have an obligation to their clients, and to the justice system, to avoid antagonistic tactics, wasteful procedural maneuvers, and teetering brinksmanship. I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics. The test for plaintiffs’ and defendants’ counsel alike is whether they will affirmatively search out cooperative solutions, chart a cost-effective course of litigation, and assume shared responsibility with opposing counsel to achieve just results. I am hardly the first to urge that we must engineer a change in our legal culture that places a premium on the public’s interest in speedy, fair, and efficient justice. 

But I am motivated to address the subject now because the 2015 civil rules amendments provide a concrete opportunity for actually getting something done. In the nineteenth century, a change in culture left dueling by the wayside and left us with lessons learned. Joseph Conrad’s novella “The Duel” tells the tale, taken from fact, of two gallant French cavalry officers, D’Hubert and Feraud. Estranged by a trifling slight, they repeatedly duel over a 15-year period. According to newspapers of the era, the real-life antagonists, Dupont and Fournier, would cross swords and draw blood whenever their military service brought them near to one another. Conrad’s characters, like the real ones, relentlessly persist in their personal feud through the rise, fall, reemergence, and ultimate exile of Napoleon, as the world transforms around them. In the end, these soldiers, who should have been comrades in a patriotic cause, spent much of their adult lives focused on a petty squabble that left them with nothing but scars. We should not miss the opportunity to help ensure that federal court litigation does not degenerate into wasteful clashes over matters that have little to do with achieving a just result. 

Another year has quickly passed, and once again, I am privileged and honored to be in a position to thank all of the judges, court staff, and judicial personnel throughout the Nation for their continued excellence and dedication. Best wishes to all in the New Year.

Speaking of the new rules and proportionality, there are no rules helping the criminal defense bar with discovery. It used to be that prosecutors would give so little to the defense that most of the pretrial litigation would be focused on getting important documents and information to help prepare a defense.  Now the government has taken the opposite tack -- drown the defense with every possible piece of paper out there.  When the defense attorney complains to the judge, the prosecutor will say, "but judge, I gave them everything." (Many judges have caught on to this tactic and are now ordering the prosecution to disclose discovery indexes and exhibit lists well in advance of trial, as well as Jencks material and witness lists. But some judges still refuse to do so.) Providing terabytes of data, of course, is not much better than providing nothing at all because most of these documents are completely irrelevant and impossible to wade through.

This costs the judiciary lots and lots of money when the CJA panel lawyer, who has no choice but to go through all of the paper because the prosecution refuses to narrow the discovery to important documents, bills for all of this time.  This is one of the issues that will be discussed at the public hearing to address the Criminal Justice Act Program on January 11 and 12 in Miami. Here is the agenda.

I will be testifying.  So will Judge Graham.  Judge Graham has asked that if you have any issues that you'd like him to address to please let him know.  Feel free to email me at dmarkus@markuslaw.com and I will forward your email to him.

 

End of Year Post

I hope everyone had a wonderful 2015.  Looking back at the over 200 posts, here are some noteworthy ones:

John Pacenti left the DBR

Jose Gonzalez, 50 years on the bench

Mary Barzee-Flores nominated

Mark Fuller

Cell-Site data

Docs v. Glocks again again and again

Khan!

Go Dore Go!

10th b-day for blog

Ed Carnes concurred with himself

Judge & Mrs. Davis remembered

RIP Judge Peter Palermo, Judge Shelby Highsmith

And the most popular post of the year was this because of the search terms in the title.

See you next year.  All the best!
--David Oscar Markus

RIP Meadowlark Lemon

"The Clown Prince of Basketball."  Via ESPN:

  Lemon thrilled audiences with his long hook shots, ballhandling skills and ability to make fans laugh with the Globetrotters' bag of tricks -- including throwing buckets of confetti on unsuspecting fans as Lemon chased the referee with what was thought to be water.Lemon left the Globetrotters in 1978 over a contract dispute and thereafter formed his own traveling teams -- the Meadowlark Lemon's Bucketeers, the Shooting Stars and Meadowlark Lemon's Harlem All-Stars -- as he continued to play well into his 70s.
Aside from Lemon's No. 36, other Globetrotters to have their numbers retired are Wilt Chamberlain (13), Fred "Curly" Neal (22), Haynes (20) and Reece "Goose" Tatum (50). Washington Generals founder Red Klotz also had his number retired.

In law news, the Feds have taken the position that Puerto Rico is NOT a state and therefore not a separate sovereign for double jeopardy purposes.  Puerto Rico has taken the opposite position.  Pretty interesting showdown in the Supreme Court.  SCOTUSblog has more.

Anything going on in the District this week?  Or all quiet?

The one thing I did see was the Herald coverage of the Lewis Tein victory in the 11th Circuit: 

The ruling was another victory for prominent Miami lawyers Guy Lewis, Michael Tein and Dexter Lehtinen, who have long been mired in legal battles over their former representation of the West Miami-Dade Indian tribe.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article51735585.html#storylink=cpy

***

“The terrible shame is that the Tribe and its lawyers were able to prosecute these lies for years, leaving a wake of destructive litigation that cost millions of dollars to defend,” said Paul Calli, Lewis and Tein’s lawyer. “Thankfully, the courts have put a stop to it.”

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article51735585.html#storylink=cpy

Enjoy the Break!

-- Here's Dave Barry's year in review if you are looking for some fun reading today.

-- DOJ suspends forfeiture program that gives lots of $$ to locals.

-- The 4th DCA reverses judge who tried to keep newspaper from publishing public records.

-- Jeb really likes this sweater.

Enjoy your summer day!

Happy Festivus for the rest of us

It's a great day!

My favorite is Rand Paul's annual airing of grievances.  Here are some good ones:

to my absentee friend @marcorubio, I didn't put your $170k+ salary in my waste report today. But I could have #Festivus

— Dr. Rand Paul (@RandPaul) December 23, 2015

I have no grievances against my fellow doc @RealBenCarson because I have not heard a word he has said in any debate. #Festivus

— Dr. Rand Paul (@RandPaul) December 23, 2015

Where to start but @realDonaldTrump. If u bring the Yiddish, know what it means. Guess that's more of a kvetch than a grievance #Festivus

— Dr. Rand Paul (@RandPaul) December 23, 2015

37 years on the lam, but incompetent

Paula McMahon has this lengthy article about the interesting twists and turns of this old case:

In his heyday, Robert Woodring was a con man who lived a life of intrigue and adventure, then successfully went on the lam for 37 years to avoid going to prison.
Law enforcement finally tracked him down a year ago in Guadalajara, Mexico, and he was sent back to South Florida to serve his time for the original offenses and to pay the price for eluding justice.
But by Monday, when the 82-year-old Woodring was to be sentenced for jumping bond in 1977, the ravages of time had created another twist: He was recently diagnosed with Alzheimer's disease and dementia and was found legally incompetent to be sentenced.
His medical diagnosis does not mean he will get a free pass from the legal system.

***

On Monday, U.S. District Judge Marcia Cooke met privately with probation officials and then held a lengthy sidebar discussion with Salnick and Assistant U.S. Attorney Robert T. Watson.
The judge decided the most practical course of action was to send Woodring to a federal prison hospital, where he can receive appropriate treatment. She recommended sending him to Butner Federal Medical Center in North Carolina.
For technical legal reasons, she gave him a provisional sentence of one year in federal prison for the bond-jumping offense and recommended the prior 7.5-year term, imposed by judges who are long dead, also be converted to a provisional sentence because it is unlikely Woodring would ever be restored to legal competency.
Woodring, dressed in khaki prison scrubs and using a wheelchair, joked affably with the deputy marshals who escorted him to the Miami courtroom from the neighboring Federal Detention Center.
He did not speak during the hearing but was overheard talking with his lawyer, saying at one point: "Life is short."
Salnick said Judge Cooke's sentencing was "the very kind and very humane thing to do."

Your Monday Moment of Zen

People make mistakes... This guy jumped ship for 37 years after his (via the AP):

A Florida man is facing additional prison time after spending 37 years on the lam until his capture late last year in Mexico.

Prosecutors are seeking an additional year in prison for 82-year-old Robert Anton Woodring for jumping bail in 1977. Woodring's sentencing has been delayed several times for medical evaluations.

A hearing is set Monday before U.S. District Judge Marcia Cooke.

Prosecutors say Woodring failed to surrender in 1977 to begin serving a seven-year prison sentence for fraud and for a related conviction involving an attempt to flee in his 60-foot yacht so officials couldn't seize it.

U.S. Marshals caught Woodring in Guadalajara, Mexico, in December 2014 after getting a tip while searching for another fugitive. Mexican officials sent him back to the U.S.

Happy Holidays from President Obama ...

... to 95 people who got pardons or commutations.

Today, President Obama is commuting the federal prison sentences of 95 men and women, most of whom committed nonviolent offenses. With this step, the President has now granted 184 commutations total -- more than the last five presidents combined. Take a look:

Not such a great holiday for former bank vice president Frank Spinosa, who was sentenced to 30 months by Judge Bloom.

Who's excited?!

It's here -- Star Wars day!

In that vein, I thought you'd be interested in a story about Star Wars and the First Amendment from the Volokh Conspiracy. 

Joe Southern says his [7th-grader] son, Colton, wore a shirt depicting the “Star Wars – The Force Awakens” logo, along with a Storm Trooper holding a weapon, to class Thursday at George Junior High School….
On Thursday, though, school officials told Colton the shirt was banned because it has a gun, or at least a picture of what in the movie is weapon….
A spokesperson for Lamar Consolidated Independent School District says the LCISD secondary school handbook spells out potential violations of dress code. The list includes “symbols oriented toward violence.”
Administrators say they did not reprimand the student, though they could have required him to change or assigned him in-school suspension. They say they only required him to zip up his jacket….

Volokh analyzes some First Amendment cases and then concludes: "...nothing about this T-shirt can reasonably be understood as promoting illegal blaster use. A pretty clear First Amendment violation, then, on the school district’s part."

Docs vs. Glocks part 3

This is the third (!!) opinion in the case.  I like Judge Wilson's dissent:

Numerous voices have weighed in on this appeal, which requires us to assess the constitutionality of Florida’s Firearm Owners Privacy Act. Thirty amici curiae filed briefs, and the Majority has now filed its third iteration of an opinion seeking to uphold the Act. See Wollschlaeger v. Governor of Fla. (Wollschlaeger I), 760 F.3d 1195 (11th Cir. 2014), opinion vacated and superseded on reh’g, Wollschlaeger v. Governor of Fla. (Wollschlaeger II), 797 F.3d 859 (11th Cir. 2015). Having considered all these arguments for and against the constitutionality of this state law, I continue to believe that it does not survive First Amendment scrutiny. However, I have already written two dissents to this effect, and the plaintiffs have sought en banc review. Accordingly, I decline to pen another dissent responding to the Majority’s evolving rationale. I rest on my previous dissents.

Supreme Court News

1.  Trump vs. Scalia:

Republican presidential hopeful Donald Trump thinks that Justice Antonin Scalia went a little too far when he suggested last week that black students may benefit from taking a slower educational route.
Scalia said during oral arguments in an affirmative action case last week that black students may benefit from attending a "slower-track school." Scalia said that "most of the black scientists in this country don't come from schools like the University of Texas."
Trump, in an interview with Jake Tapper that aired on CNN on Sunday, indicated he disagreed with Scalia's remarks.
"I thought it was very tough to the African-American community," Trump said. "I don't like what he said." 

2.  Rubio vs. Gay Marriage:

CHUCK TODD: Are you going to work to overturn the same sex marriage?
MARCO RUBIO: I disagree with it on constitutional grounds. As I have said–
CHUCK TODD: But are you going to work to overturn this?
MARCO RUBIO: I think it’s bad law. And for the following reason. If you want to change the definition of marriage, then you need to go to state legislatures and get them to change it. Because states have always defined marriage. And that’s why some people get married in Las Vegas by an Elvis impersonator. And in Florida, you have to wait a couple days when you get your permit. Every state has different marriage laws. But I do not believe that the court system was the right way to do it because I don’t believe–
CHUCK TODD: But it’s done now. Are you going to work to overturn it?
MARCO RUBIO: You can’t work to overturn it. What you–
CHUCK TODD: Sure. You can do a constitutional amendment.
MARCO RUBIO: As I’ve said, that would be conceding that the current Constitution is somehow wrong and needs to be fixed. I don’t think the current Constitution gives the federal government the power to regulate marriage. That belongs at the state and local level. And that’s why if you want to change the definition of marriage, which is what this argument is about.
It’s not about discrimination. It is about the definition of a very specific, traditional, and age-old institution. If you want to change it, you have a right to petition your state legislature and your elected representatives to do it. What is wrong is that the Supreme Court has found this hidden constitutional right that 200 years of jurisprudence had not discovered and basically overturn the will of voters in Florida where over 60% passed a constitutional amendment that defined marriage in the state constitution as the union of one man and one woman.
CHUCK TODD: So are you accepting the idea of same sex marriage in perpetuity?
MARCO RUBIO: It is the current law. I don’t believe any case law is settled law. Any future Supreme Court can change it. And ultimately, I will appoint Supreme Court justices that will interpret the Constitution as originally constructed.

 3.   Supreme Court to hear another DUI case.

The Supreme Court agreed on Friday to decide whether states can make it a crime for motorists suspected of drunken driving to refuse breath, blood or urine tests. Thirteen states have such laws.

The court took up the question in three cases: one from Minnesota and two from North Dakota, which were consolidated for a single argument.

In 2013, in Missouri v. McNeely, the Supreme Court ruled that the police investigating a drunken-driving incident must generally obtain warrants before drawing blood without consent.

The state laws get around that ruling by making refusal to consent to testing a separate crime. State officials justify those laws in part on the ground that drivers have given their consent to be tested as a condition of being permitted to drive.

The defendants in the new cases say the laws violate the Fourth Amendment’s ban on unreasonable searches and seizures.

 4.  And in non-Supreme Court news, the numbers of low-level medicare fraudster prosecutions is way up.  So are immigration offenders.  But where are the prosecutions of these cases -- horrific abuse in our prisons.  You gotta read the Miami Herald's investigation on Lowell correctional institution.  How is it that we can have places like this?





4.

Judge Palermo's service today at noon

At the Gesu Church
118 N.E. Second Street
Miami, Florida 33132

Why we need cameras in the Supreme Court!

Everyone should be able to see how Justice Scalia questioned and commented about affirmative action:

Near the end of oral argument in a high-profile affirmative-action case Wednesday, conservative U.S. Supreme Court Justice Antonin Scalia suggested that black students benefit from a “slower track” at less prestigious schools and are thus harmed by affirmative action. The comments come during a time of racial turmoil on campuses across the country, from Yale to the University of Missouri.

“There are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do not do well — as opposed to having them go to a less advanced school, a slower-track school where they do well,” Scalia said from the bench. “One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”

Scalia went on to say that it could be bad if the “really competent blacks” do not go to these “lesser” schools because they might then not become scientists. “I don’t think it stands to reason for the University of Texas to admit as many blacks as possible,” he concluded. 

Or what about Chief Justice Roberts?

Some of the Supreme Court justices on Wednesday seemed to question the utility of considering race in admissions at all, suggesting they may be backing away from their compromise on Fisher two years ago.

“What unique perspective does a minority student bring to a physics class?” Chief Justice John Roberts asked at one point, challenging UT’s contention that one of its goals was to attain classroom diversity. (In 2002, UT found that 90 percent of its classes had only one or zero black students in them.)

 Here's the actual exchange with Scalia:

JUSTICE SCALIA: There are there are
those who contend that it does not benefit
African Americans to to get them into the University
of Texas where they do not do well, as opposed to having
them go to a less advanced school, a less a
slower track school where they do well. One of one
of the briefs pointed out that that most of the
most of the black scientists in this country don't come
from schools like the University of Texas.
MR. GARRE: So this Court
JUSTICE SCALIA: They come from lesser
schools where they do not feel that they're that
they're being pushed ahead in in classes that are
too too fast for them.
MR. GARRE: This Court
JUSTICE SCALIA: I'm just not impressed by
the fact that that the University of Texas may have
fewer. Maybe it ought to have fewer. And maybe some
you know, when you take more, the number of blacks,
really competent blacks admitted to lesser schools,
turns out to be less. And and I I don't think
it it it stands to reason that it's a good thing
for the University of Texas to admit as many blacks as
possible. I just don't think
MR. GARRE: This Court heard and rejected
that argument, with respect, Justice Scalia, in the
Grutter case, a case that our opponents have and asked
this Court to overrule. If you look at the academic
performance of holistic minority admits versus the top
10 percent admits, over time, they they fare better.
And, frankly, I don't think the solution to
the problems with student body diversity can be to set
up a system in which not only are minorities going to
separate schools, they're going to inferior schools. I
think what experience shows, at Texas, California, and
Michigan, is that now is not the time and this is not
the case to roll back student body diversity in America.
Thank you, Your Honors.

Defendants in "Virtual Concierge" trial convicted

From the Sun-Sentinel:

Before jurors even took their seats — verdict in hand — Joseph Signore clenched shut his eyes.

The 51-year-old Palm Beach Gardens resident and former CEO then held on to his attorney, Michael Salnick, as a court official read each count: guilty, guilty, guilty.

Signore, his business partner and his soon-to-be ex-wife, Laura Grande-Signore, were found guilty by a jury Monday on charges that they bilked investors of $80 million through a virtual concierge business.

Signore was found guilty on 34 counts and his partner, Paul Schumack, of Coconut Creek, on 23 counts.

Grande-Signore, also of Palm Beach Gardens, was found guilty on seven counts for her involvement in the scheme. She was found not guilty of one count of fraud.

Jurors deliberated over the 34-count indictment for three days after listening during the trial, which went just longer than six weeks.

"Is Gollum good or evil?"

That's the headline of this nerdy fan-boy NY Times piece.

A Turkish man’s freedom may hang on a question put to a panel of “Lord of the Rings” experts: Is Gollum evil?

More significantly, was it an insult to compare Turkey’s president to the slimy, bug-eyed creature from the films based on J.R.R. Tolkien’s trilogy?

A physician, Dr. Bilgin Ciftci, is accused of sharing a meme that juxtaposes Gollum, as played by Andy Serkis (and advanced digital effects), with Recep Tayyip Erdogan in several situations: while laughing, while surprised, while eating. Insulting the president is a crime under Turkish law.

The punishments were swift. Dr. Ciftci lost his job with the Public Health Institution of Turkey after sharing the meme, and he faces a two-year prison sentence, the Turkish newspaper Today’s Zaman reported. After a judge said he did not know enough about the Tolkien creature to make an appropriate decision, five experts were ordered to conduct an investigation into Gollum’s moral character before the next phase of the trial begins in February.

Michael D. C. Drout, an English professor at Wheaton College who edits an annual review of Tolkien’s works, is observing the situation from America. He said that those experts will be assessing the most complicated character in the English writer’s already complex world.

“I don’t think there’s any consensus that Gollum is evil,” Mr. Drout said in an interview. “He is the most tragic character in ‘The Lord of the Rings.’ ”

Middle Earth, the place where Gollum began his life as a creature named Sméagol, is full of complex characters and allegiances. But a single gold ring, forged with a dark lord’s evil powers, has the power to rule them all. Sméagol catches a glimpse of the ring, murders for it, and possesses it for centuries until it is mislaid and found by another hobbit. Sméagol struggles to redeem himself, but his obsessive bloodthirst for the ring wins out. He accidentally destroys himself and the ring, but also saves Middle Earth in the process. (It is the hobbit hero Frodo who gets most of the credit.)

“The context is this: Gollum accidentally, not intentionally, saves the entire world,” Mr. Drout said.

RIP Shelby Highsmith

Senior United States District Judge Shelby Highsmith passed away yesterday.   Judge Highsmith served in the United States Army from 1949-1955 before graduating from the University of Missouri Kansas City School of Law with an LL.B. in 1958.  Judge Highsmith was in private practice in Missouri before relocating to Florida and entering private practice.  Prior to his appointment to the federal bench, Judge Highsmith served as chief legal advisor to the Governor's War on Crime Program, Florida, special counsel for the Florida Racing Commission, and served as a circuit judge for the 11th Judicial Circuit (Dade County) from 1970 to 1975.  Judge Highsmith joined the federal bench in 1991 where he served with distinction until his retirement on December 31, 2008.     


On a personal note, I was assigned to his courtroom as a young AFPD and learned a great deal from him. He had a big heart and took great interest in teaching the young lawyers before him how to practice law with dignity. 

"Virtual Concierge" case to jury

It's before Judge Hurley in West Palm Beach.  From the PBPost:

After a nearly two-month trial and two days of closing arguments, a federal jury on Wednesday finally began deciding whether a Palm Beach County couple and their business partner set out to bilk thousands of investors out of $80 million in a Virtual Concierge scheme operated out of plush offices west of Jupiter.
After less than two hours of deliberation, the jury of 10 women and two men signaled they are in for the long haul.

Virtual concierge kiosks in Jupiter last year. (Bruce R. Bennett / The Palm Beach Post)

With dozens of charges of conspiracy, wire fraud and money laundering to weigh against Joseph Signore, his estranged wife, Laura Grande-Signore, and their business partner, Paul Schumack, the jurors sent out a note, indicating that they don’t expect to reach a verdict Thursday.
Instead, they told U.S. District Judge Daniel Hurley, they will deliberate Thursday, take Friday off and continue their work Monday.
Their scheduling announcement came as attorneys representing the three continued to insist their clients had done nothing wrong. Hurley rejected the attorneys’ pleas to throw out the charges that had already been sent to the jury.
“When you add the constellation of facts together, isn’t that enough to send to the jury for a decision?” Hurley asked Schumack’s attorney rhetorically, rejecting his request for a judgment of acquittal.
The defense attorneys spent most of the day trying to persuade jurors that federal prosecutors had woven together a disparate array of circumstantial evidence in hopes of proving the three never intended to produce the electronic kiosks much less install them in sports arenas, hotels, casinos, hospitals or other venues.

Rosenbaum vs. Martin

And Rosenbaum gets the visiting district judge from Alabama to join her opinion, affirming a denial of a motion to suppress in a child porn case.

It's a fascinating debate between two of our "new" 11th Circuit judges involving whether a lost cellphone has been abandoned. There's all sorts of interplay with the cellphone cases (like Riley) and older 11th Circuit law on standing.

Even though many have claimed that the court has taken a turn to the left with the new judges, this opinion shows pretty definitely that it has not, especially on 4th Amendment issues.

From the majority:

To be clear, we do not suggest a Fourth Amendment jurisprudence of
“finders keepers; losers weepers.” Loss is not the same thing as abandonment.
And loss alone cannot support a finding of abandonment. Nor does the filing of a
claim for a lost item and the replacement of that item with the resulting insurance
money, in and of itself, demonstrate an intent to abandon. Instead, we must view
all of the facts and consider the totality of the circumstances to determine whether
an intent to abandon may objectively be discerned.

And Martin's dissent:

Courts must distinguish between the everyday use of the term
“abandonment” and its use in a context that may result in the loss of Fourth
Amendment protections. Here, Mr. Johnson and Ms. Sparks ended their efforts to
recover their lost cell phone only after several days of active searching. Although
this might colloquially be referred to as “abandonment,” it is not nearly what is
necessary to show abandonment so as to deprive someone of their Fourth
Amendment protections.
***
But a person may not abandon property for Fourth Amendment purposes by
mere loss, carelessness, or accident, where he has made reasonable efforts to
reclaim the property. See, e.g., Ramos, 12 F.3d at 1026 (11th Cir. 1994) (finding
no abandonment where the defendant left a briefcase in a temporarily leased
condominium a few hours after the scheduled checkout and telephoned the
condominium office the next day to seek the briefcase’s return). In light of their
repeated efforts to reclaim it, Mr. Johnson and Ms. Sparks demonstrated no intent
to abandon the cell phone.4
The fact that they could have conceivably done more is simply
not sufficient, in my view, to constitute abandonment under the Fourth
Amendment.

SDFLA Cyber Monday Deals!

You get free blog posts!

Here's what's happening:

-- More legitimate complaints about Congress not doing anything, especially with our federal judge nominees ("Even routine business was neglected this year, and 2016 won’t be better. The Senate has confirmed 135 Obama executive nominees this year, but many more are languishing in Congress. One of these is for the vacant post of undersecretary of the Treasury for terrorism and financial crimes, for which Mr. Obama nominated someone in April. By comparison, in George W. Bush’s seventh year, a Democratic Senate confirmed 234 nominees in 2007. Meanwhile, only 10 judicial vacancies have been confirmed this year, leaving 66 benches open, the slowest pace for confirmations in more than half a century.")

-- The NY Times explains how to prosecute abusive prosecutors.  ("It is absolutely essential to bring rogue law enforcement officers to justice, particularly in a post-Ferguson world in which violations of constitutional rights have come under intense scrutiny. However, the government’s focus on abuses by law enforcement officials leaves the burden of curbing abuse by judges and prosecutors to private individuals. This is a responsibility few lawyers are willing to accept, in large part because the United States Supreme Court has made pursuing a civil case against a prosecutor or judge practically impossible.")

-- The Sun-Sentinel covers this "inside job", uncovering a $3 million heist. ("When armed robbers took off with more than $3 million from an armored truck company's South Florida depot, investigators suspected the crime was an inside job.It would take the FBI and prosecutors years of digging to solve the case. Now, three Palm Beach County men have pleaded guilty to the Sept. 15, 2012, heist at the old Garda Logistics armored truck building on Garden Road in Riviera Beach.").