HAPPY NEW YEAR TO THE SDFLA!

Happy New Year!

While the rest of the country freezes, we are nice and cozy down here in the Southern District of Florida.  I hope everyone enjoys their family and friends during this short break.  All the best for 2018!

If you are looking for some light reading over the holiday, here's a fun article from law.com with laugh lines at the Supreme Court.  A few examples:

Noel Francisco’s wedding cake. (Masterpiece v. Colorado Civil Rights Commission)
Justice Neil Gorsuch: “In fact, I have yet to have a wedding cake that I would say tastes great.”
Solicitor General Noel Francisco:  And, Your Honor, my wedding cake, the top of it is still sitting in our freezer, and I’m sure it no longer tastes great.”

An “obscure” question from Breyer. (Wilson v. Sellers)
Breyer: “Now, that’s extreme, but you see my point. Okay? What’s the answer to my point?”
Georgia Solicitor General Sarah Warren: “Justice Breyer, I’m not sure exactly what the, what the question was.”
Breyer: “Sorry. Well, from your pleasant expression, it sounded to me as if you were understanding my obscure question.”

Party like a justice. (District of Columbia v. Wesby)
Kagan: “And when looked at from the reasonable partygoer’s view, there are these parties that, once long ago, I used to be invited to, where you didn’t know the host, but you know Joe is having a party. And can I say that long, long ago, marijuana was maybe present at those parties? And, you know, so—and you know, it just is not obvious that the reasonable partygoer is supposed to walk into this apartment and say, ‘Got to get out of here.’”

“Given the caliber of nominees I’m seeing, I’m not comfortable creating a spot that might be filled by someone consistent with the qualifications, or lack of qualifications, of some of the folks I’ve seen nominated."

“Given the caliber of nominees I’m seeing, I’m not comfortable creating a spot that might be filled by someone consistent with the qualifications, or lack of qualifications, of some of the folks I’ve seen nominated." -- Anonymous appellate judge quoted in this BuzzFeed article from yesterday.

Of course there's no issue with staying on board until there's a President you agree with, but other than the occasional outlier, this criticism seems wrong to me.  Whether or not you agree with the politics of Trump's nominees so far, the majority of them seem qualified. Speaking of which, there are still 5 openings waiting to be filled in the Southern District of Florida.  Sources tell me that all 10 JNC finalists have been interviewed by the Senators and/or the White House.  Sources also tell me that the Senators won't be narrowing the list down to 5 recommendations for President Trump (as has been done with previous administrations).  Instead, all 10 nominees will be sent to the President's desk and he will pick 5 out of those... or 5 different selections... or a combination.  No one seems to know.

There's also this bubbling fight with the ABA over Trump's judicial picks.

Merry Christmas one day late in NY Fifa trial

Merry Christmas one day late in NY Fifa trial...

...Bruce Udolf showed the NY prosecutors how things are done from the 3-0-5 (Update—okay, okay... technically Udolf is from the 9-5-4). Not guilty for Manuel Burga, the former president of Peru's soccer federation, who has been in trial the last few months in the Eastern District of New York. The other two defendants were convicted.

Here's Burga leaving the courthouse with Udolf after the win.

Happy Festivus...

... for the rest of us.

Some airing of grievances:

1) Judges who don't vary down from the guidelines for first-time non-violent offenders.

2) Prosecutors who don't have open file discovery.

3) Defense lawyers who don't share what their cooperating clients are going to say.

4) The sentencing guidelines.

5) The few remaining judges who don't order early exhibit lists and pre-trial Jencks.

6) The good-faith exception to the 4th Amendment.

7) "Harmless error."

8) "PCA"

9) Arresting someone without giving them the opportunity to surrender.

10) Min-mans

CA11 holds that police can't tase someone for calling 911

CA11 holds that police can't tase someone (in this case a pregnant woman!) for calling 911. One wonders how this was even a question... but I digress:

Mrs. Brand then turned to Ms. Velazco and asked for a phone so she could call 911. Ms. Velazco handed Mrs. Brand the home phone. Deputy Pardinas ordered Mrs. Brand to “drop the phone,” but she did not. Instead she announced she was dialing 911. Mrs. Brand began dialing when suddenly and without warning, Deputy Pardinas tased her. The tase caused Mrs. Brand to fall to the floor in “[h]orrible, excruciating” pain.
Deputy Pardinas ordered Mrs. Brand to lie flat on her stomach. Deputy Pardinas began “punching [her] back,” striking Mrs. Brand about three times in an attempt to get her to lie on her stomach. Mrs. Brand said she couldn’t lie flat because she was pregnant. She kept one of her legs “elbowed out” to protect her stomach. Deputy Pardinas kicked Mrs. Brand’s leg several times to get her into a fully prone position.
***
As far as Deputy Pardinas knew, Mrs. Brand was not suspected of any crime when the deputy deployed her taser. Mrs. Brand was not the subject of the arrest warrant. And although Mrs. Brand was eventually arrested by Deputy Casal for obstruction and cruelty to children in the third degree, these alleged offenses were based on conduct that occurred before Deputy Pardinas joined Deputy Casal at the front of the house. Deputy Pardinas did not see, and did not know about, the altercation between Mrs. Brand and Deputy Casal that led to the charges against Mrs. Brand.
7 Those charges do not therefore support the reasonableness of Deputy Pardinas’s use of force. See Rodriguez v. Farrell, 280 F.3d 1341, 1352–53 (11th Cir. 2002) (“We do not use hindsight to judge the acts of police officers; we look at what they knew . . . at the time of the act.”).
Second, Mrs. Brand did not pose any “immediate threat to the safety of the officers or others” when Deputy Pardinas tased her. Graham, 490 U.S. at 396, 109 S. Ct. at 1872. It is true Mrs. Brand was “extremely upset [and] agitated” that the officers would not get out of her house. But, under the Brands’ version of events—which we accept at this stage—Mrs. Brand was never violent or aggressive toward the officers. For example, Ms. Velazco reports that Mrs. Brand never even yelled. Indeed, Ms. Velazco testified that “[t]he only aggressive acts came from the officers.” Mrs. Brand was simply standing in her foyer, asking the officers to leave, holding a phone, and attempting to dial 911. The defendants point to the fact that Mrs. Brand disobeyed Deputy Pardinas’s order to “drop the phone.” But there was nothing dangerous about Mrs. Brand holding a phone in the first place, especially where she made clear she was using it only to dial 911. Her refusal to comply with the order to drop the phone did not pose any threat to the safety of the officers, and certainly was not a threat that would necessitate the use of a taser with no warning to Mrs. Brand. Cf. Fils v. City of Aventura, 647 F.3d 1272, 1288 (11th Cir. 2011) (“[R]esisting arrest without force does not connote a level of dangerousness that would justify a greater use of force.”).
Third and finally, Mrs. Brand was neither actively resisting arrest nor attempting to escape when Deputy Pardinas tased her. Graham, 490 U.S. at 396, 109 S. Ct. at 1872. By all accounts, she had not even been told she was under arrest at the time she was tased.
Based on the Brands’ account of the facts, we are persuaded that Deputy Pardinas “used force that was plainly excessive, wholly unnecessary, and, indeed, grossly disproportionate under Graham.” Lee, 284 F.3d at 1198. We therefore conclude that Deputy Pardinas’s tasing of Mrs. Brand constituted excessive force in violation of Mrs. Brand’s Fourth Amendment rights.

More on Kozinski (UPDATED -- KOZINSKI RETIRES)

UPDATE: Judge Kozinski has decided to retire, effective immediately.



ORIGINAL POST: The Washington Post had another front page article this weekend, detailing another round of Judge Kozinski allegations.  It’s not pretty.  Above the Law explains:

And that’s really been the nugget at the core of any defense of Kozinski. He was “only” joking, or that he should get a pass or a mere slap on the wrist because his behavior didn’t cross the line into the physical. But in the new WaPo article more women are coming forward with allegations that seem to cross that line and are deeply unsettling.

Take the story of Christine O.C. Miller, who is now a retired U.S. Court of Federal Claims judge. She says that in 1986 she attended a professional event with Kozinski and shared a car ride home at the end of the evening. During that ride Miller alleges Kozinski asked her to stop at a hotel and have sex. When she rejected his advance, she alleges things turned physical:

“I told him, no, I wasn’t interested and didn’t want to be involved in anything like that,” she said. Kozinski, she said, persisted.

“He said if you won’t sleep with me, I want to touch you, and then he reached over, and — this was the most antiseptic — he grabbed each of my breasts and squeezed them,” Miller said. She said she stared straight ahead, and he soon dropped her off at her home.

So now what? The Second Circuit is investigating. He’s hired Susan Estrich at Quinn Emanuel. Will he step down before the Second Circuit concludes its investigation or will he dig in?

Your Friday moment of Zen

Your Friday moment of Zen:

If you haven’t watched Trump’s judicial nominee Matthew Petersen testify yesterday, then you need to watch this.

Judging A Book: Cooke Reviews 'Constance Baker Motley'

Judge Marcia Cooke reviewed "Constance Baker Motley: One Woman’s Fight for Civil Rights and Equal Justice Under Law" for Law360.  Here's the personal and interesting intro:

In the spring of 1955, my mother boarded a train in Sumter, South Carolina. She was traveling to join my father, who had moved to Detroit shortly after I was born. The plan was that she would join him later. They both knew there was little opportunity for economic advancement for African-Americans in South Carolina. They became part of the great migration — Southern African-Americans moving north from the dangerous, segregated South.

She carried me in her arms. I was 9 months old. She packed and carried enough provisions for both of us for the two-day trip. My mother, as a child of the segregated South, knew that the dining car on the train was not available to her. Whatever we would need on the two-day journey was in her luggage. Food. Clothing. Hygiene. Years later she spoke of the kindness of the Pullman porters, the African-American men that worked on the train. One would surreptitiously take my bottle, warm it and return it to my mother. Another would alert her when the small communal bathroom in the “colored” car was just tidied and available so she could take time to clean herself and me of the traveler’s dirt.

Ten years later, a return trip was very different. My family stopped at a West Virginia Howard Johnson’s on a Southern road trip. We walked into the dining room and were promptly seated, our orders were taken and we were served — without incident, thanks to Constance Baker Motley. Constance Baker Motley, who?

As historian Gary L. Ford Jr. states in his recently published biography, "Constance Baker Motley: One Woman’s Fight for Civil Rights and Equal Justice Under Law":

Many of the people Motley helped had no idea who she was or what she did for them. She operated within the confines of courtrooms where many protesters were either banned or strongly discouraged from attending their trials. She was their unseen and unknown guardian angel.

Ford is an attorney and professor of African studies at Lehman College. His biography of Constance Baker Motley is an interesting read, even for nonscholars. The book is also an excellent reference material. The appendix details Motley’s numerous cases before the U.S. Supreme Court, the various U.S. courts of appeals and the U.S. district courts.

Ford’s book is more than a general biography of the woman who would become the first African-American female United States district judge; it presents in vivid detail how her work altered the legal landscape of the United States systematically, case after case, dismantling the Jim Crow laws in the Southern United States. Most of us know that Thurgood Marshall and the NAACP Legal Defense Fund (“LDF”) filed cases to end public school desegregation, defended individuals arrested at sit-ins, and provided legal support and guidance to the early civil rights movement in this country. Most forget that Marshall left the LDF in 1961 when he was appointed to the United States Court of Appeals for the Second Circuit. The legal enforcement of Brown v. Board of Education, the desegregation of professional schools and a host of other litigation and civil rights enforcement fell to Motley.

Judge Moreno is the deciding vote in 11th Circuit case

Judge Moreno (visiting on the 11th Circuit) cast the deciding vote in this published opinion in which Judge Newson battles Judge Wilson (dissenting). From Newsom:

A brief coda: Having endeavored along the way to meet our dissenting colleague’s specific objections, we must respond briefly to his more sweeping charge that we have “disregard[ed]” or cavalierly “passe[d] by” settled procedural rules in a conscious effort to “move to the merits”—only, he says, to adopt a rule that “undermines long-established principles of bankruptcy law and the Code itself, and runs contrary to the purpose of Chapter 13 bankruptcy.” Dissenting Op. at 29– 30, 47. With the utmost respect, none of that is true. The former intimation—that we’ve somehow bent normal procedures in a
headlong rush to parse the U.S. Bankruptcy Code—seems to us to refute itself.
That’s not how courts should operate, and it’s not how we operate—and, let’s just say, the temptation to cut corners is not particularly strong (which is to say nonexistent) when the reward for doing so is an exhaustive assessment of Chapter 13, Georgia’s “pawn” statute, and those laws’ combined import for the fate of a 2006 Dodge Charger. (If anything, the incentives would seem to run in the other direction, but we digress.) Here as always, we’re just doing our best to call ’em like we see ’em. And needless to say, we find no particular joy in concluding that a pawnbroker now owns the car that Mr. Wilber once drove. For better or worse, that’s simply the result that, on our reading, the law requires.

And Wilson responds:

This should be an easy case. The Bankruptcy Code provides—and the Supreme Court and this Circuit agree—that a confirmed Chapter 13 bankruptcy plan enjoys a preclusive, binding effect. A creditor may only escape treatment under a plan if it objects to plan confirmation and then appeals the overruling of that objection. Title Max admitted to the bankruptcy judge, on the record, that it did not object, and the bankruptcy judge confirmed the plan. Title Max now says that it did object and that it therefore can elude the plan’s terms. But the law required an objection before plan confirmation, not a retroactive recasting of motions as objections. Therefore, Title Max remains bound by the confirmed plan.
The majority disregards these simple facts, choosing instead to move to the merits. In doing so, the majority rewards Title Max—by allowing it to sidestep the preclusive effects of a confirmed bankruptcy plan—for changing litigation positions on appeal. I am troubled that we would incentivize an attorney’s inconsistent representations before the courts of this Circuit, including before the judges of this panel, and I thus cannot join the majority’s opinion. Aside from these concerns, I am skeptical of the majority’s holding that state law may operate to divest a federally-created bankruptcy estate of a piece of property that all parties, and the majority, admit entered that estate pursuant to the Bankruptcy Code. Such a holding undermines long-established principles of bankruptcy law and the Code itself, and runs contrary to the purpose of Chapter 13 bankruptcy.
Therefore, I respectfully dissent.

#MeToo movement hits Judiciary

The #MeToo movement has made its way to the judiciary... Judge Alex Kozinski stands accused.  The Washington Post covers the story here:

A former clerk for Judge Alex Kozinski said the powerful and well-known jurist, who for many years served as chief judge on the U.S. Court of Appeals for the 9th Circuit, called her into his office several times and pulled up pornography on his computer, asking if she thought it was photoshopped or if it aroused her sexually.

Heidi Bond, who clerked for Kozinski from 2006 to 2007, said the porn was not related to any case. One set of images she remembered was of college-age students at a party where “some people were inexplicably naked while everyone else was clothed.” Another was a sort of digital flip book that allowed users to mix and match heads, torsos and legs to create an image of a naked woman.

Bond is one of six women — all former clerks or more junior staffers known as externs in the 9th Circuit — who alleged to The Washington Post in recent weeks that Kozinski, now 67 and still serving as a judge on the court, subjected them to a range of inappropriate sexual conduct or comments. She is one of two former clerks who said Kozinski asked them to view porn in his chambers.

In a statement, Kozinski said: “I have been a judge for 35 years and during that time have had over 500 employees in my chambers. I treat all of my employees as family and work very closely with most of them. I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done.”

Kozinski provided the statement after The Post called and emailed a spokesman with a detailed list of the allegations this story would include. After the story posted online, the judge told the Los Angeles Times, “I don’t remember ever showing pornographic material to my clerks” and, “If this is all they are able to dredge up after 35 years, I am not too worried.”

Unlike the politicians wrapped up in similar controversy, Kozinski has life-time tenure. It will be interesting to see how this plays out.

11th Circuit addresses dreadlocks in en banc denial

The 11th Circuit denied en banc review in an interesting case involving lots of discussion of dreadlocks.  Judge Jordan wrote a lengthy opinion concurring in the denial of review.  Judge Martin, joined by Judges Rosenbaum and Pryor, dissented.

Judge Martin starts her dissent this way:

Chastity Jones, a black woman, applied for a position at Catastrophe Management Solutions (“CMS”). She got the job. But after she was hired, the human resources manager—who is white—told Ms. Jones the company had to rescind its job offer because she wore her hair in dreadlocks. The manager told Ms. Jones the problem with dreadlocks is “they tend to get messy,” but at the same time recognized that Ms. Jones’s own dreadlocks were not messy. Even so, CMS took away Ms. Jones’s job offer because her hair violated the company’s blanket ban on dreadlocks.
The Equal Employment Opportunity Commission (“EEOC”) filed suit against CMS on behalf of Ms. Jones. The complaint alleged that CMS discriminated against Ms. Jones on the basis of her race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. The complaint alleged that dreadlocks are black hair in its natural, unmanipulated state, and that the natural texture of black hair carries with it a deeply entrenched racial stereotype that sees black people as “unprofessional,” “extreme,” and “not neat.” The complaint also alleged that CMS’s stated reason for banning dreadlocks—“they tend to get messy”—did not apply to Ms. Jones, as the human resources manager acknowledged Ms. Jones’s hair was not messy. Thus, the complaint indicated that CMS’s only reason for refusing to hire Ms. Jones was the false racial stereotype. 

Even with these clear allegations of racial discrimination, the District Court dismissed this action based on the pleadings alone. See Equal Emp’t Opportunity Comm’n v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1021 (11th Cir. 2016). This means, of course, that the courthouse doors were closed to Ms. Jones without either she or CMS having any opportunity for factual exploration or development of her claims. On this limited record, then, a panel of this Court affirmed. And now, despite the startling nature of the precedent created by the panel opinion, a majority of this Court has voted not to rehear the case en banc. I dissent from that decision.
The panel held that the complaint failed to state a claim because Title VII prohibits only discrimination based on “immutable traits” and dreadlocks are not “an immutable characteristic of black persons.” Id. at 1021. The panel said our decision in Willingham v. Macon Tel. Publ’g Co., 507 F.2d 1084 (5th Cir. 1975) (en banc),1 dictates this conclusion. See Catastrophe Mgmt., 852 F.3d at 1028–30. I cannot agree. By resting its decision on Willingham’s mutable/immutable distinction, the panel revives—in fact, expands—a doctrine the Supreme Court invalidated more than twenty-five years ago in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775 (1989). Even if Willingham’s immutable-trait requirement survived Price Waterhouse, the allegations the EEOC made here on behalf of Ms. Jones are sufficient to satisfy that requirement and state a Title VII disparate treatment claim.

What is the appropriate sentence for Dr. Salomon Melgen?

What is the appropriate sentence for Dr. Salomon Melgen?  That's the question facing Judge Marra, who starts a 3-day (!) sentencing hearing today.  From the AP:

Prosecutors say a prominent Florida eye doctor accused of bribing Democratic Sen. Bob Menendez of New Jersey should get a 30-year sentence for a separate Medicare fraud scheme that they say stole more than $100 million from the federal government.
A three-day sentencing hearing for Dr. Salomon Melgen, 63, is scheduled to begin Tuesday on 67 counts, including health care fraud, submitting false claims and falsifying records in patients’ files. U.S. District Judge Kenneth A. Marra could give Melgen a life sentence, but he has wide discretion. Melgen’s attorneys want less than 10 years.
Assistant U.S. Attorney Roger Stefin argued in court documents that Melgen “was the highest-paid (Medicare) provider in the country for most, if not all, of those years” between 2008 and 2013.
“The crimes committed by the defendant were truly horrific. The defendant not only defrauded the Medicare program of tens of millions of dollars, but he abused his patients — who were elderly, infirm, and often disabled — in the process,” Stefin wrote. “These unnecessary procedures resulted in pain, discomfort, and, in some instances, endophthalmitis, a serious eye infection that can lead to vision loss and blindness.... These ‘treatments’ involved sticking needles in their eyes, burning their retinas with a laser, and injecting dyes into their bloodstream.”
Melgen’s attorneys say prosecutors are exaggerating Medicare’s loss, and say some patients testified the Dominican-born, Harvard-trained doctor improved their sight.
Kirk Ogrosky and Matthew Menchel argue in court documents that the proposed sentence is comparable to what terrorists get, which they say is “irrational on its face.” Because of Melgen’s age and poor health, any lengthy sentence would be equivalent to a life term, they say.
They say a sentence of 30 years or more would result in Melgen being housed in a maximum security prison, which they called “an unnecessary burden on the taxpayers,” given his lack of criminal history. They want him sent to a minimum security camp, which they say would require a sentence of less than 10 years. Prosecutors dispute that, saying the federal Bureau of Prisons would decide his placement regardless of the sentence’s length.

Former Judge Moreno clerk, Asher Perlin, argues before the Supreme Court

Former Judge Moreno clerk, Asher Perlin, argued Rubin v. Islamic Republic of Iran before the Supreme Court today.  Here is the oral argument transcript.  In a very cool moment, Judge Moreno attended the argument to watch his former clerk (he sat in a seat provided by the Chief Justice).  Howard Srebnick, who assisted Perlin in argument prep, was also there.  Here is a picture of Judge Moreno and Mr. Perlin:

SCOTUS to hear sports gambling case

The Supreme Court is hearing the sports gambling case. It's a fascinating battle. Here's the into from SCOTUSblog's preview:

Most Americans are familiar with some parts of the Bill of Rights, such as the First Amendment’s guarantee of free speech and the Second Amendment’s protection of the right to bear arms. Other provisions, however, are less well known – for example, the 10th Amendment, which provides that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” But the 10th Amendment is at the heart of an important Supreme Court case next week, in which New Jersey and a group of horse-owners will argue that a federal law that bars virtually all states from legalizing sports betting violates the Constitution.

The federal law is the Professional and Amateur Sports Protection Act (known as PASPA), which Congress passed in 1992. PASPA makes it illegal for states to “authorize” “a lottery, sweepstakes, or other betting, gambling, or wagering scheme based” “on one or more competitive games in which amateur or professional athletes participate.” PASPA grandfathered in four states – Delaware, Montana, Nevada and Oregon – that already had sports gambling, and it also carved out an exception for New Jersey that would have allowed sports betting at the state’s casinos, as long as the state set up the scheme within one year after PASPA went into effect.

New Jersey didn’t take advantage of that exception at the time, but nearly two decades later the state appeared to have second thoughts. In 2010, the New Jersey legislature held hearings to consider the possibility of sports betting, which would benefit the state’s struggling racetracks and casinos. In 2011, New Jersey residents overwhelmingly voted to amend the state’s constitution to give the legislature the power to legalize sports betting, which the legislature did in 2012. The National Collegiate Athletic Association and the four major professional sports leagues – the National Basketball Association, the National Football League, the National Hockey League and Major League Baseball – quickly went to federal court to challenge the 2012 law, arguing that it violated PASPA.

The state did not dispute that the 2012 law conflicted with PASPA. Instead, it countered that PASPA violates the 10th Amendment, which the Supreme Court has interpreted to prohibit the federal government from “commandeering” the states to enforce federal law. But the lower courts rejected that argument, with the U.S. Court of Appeals for the 3rd Circuit ruling that the “anti-commandeering doctrine” did not apply because PASPA does not require the states to do anything; it simply bars them from allowing sports betting. The Supreme Court denied review of that decision.

In 2014, the New Jersey legislature returned to the drawing board. It passed a new law that did not affirmatively legalize sports betting, but instead repealed existing prohibitions on sports betting, at least as they applied to New Jersey casinos and racetracks. The NCAA and professional sports leagues again went to federal court, where the lower courts once again ruled for the leagues. This time, the full 3rd Circuit ruled that, even though New Jersey had “artfully couched” the 2014 law as simply a “repealer,” the statute nonetheless authorized sports betting at casinos and racetracks in the state. This time the Supreme Court agreed to weigh in, granting two petitions for review by New Jersey Governor Chris Christie and the New Jersey Thoroughbred Horsemen’s Association, a group of horse-owners and trainers that also owns a racetrack in New Jersey, which the group believes can only be saved from financial ruin by money from sports betting.

In the Supreme Court, Christie and the NJTHA portray PASPA as an attempt to to take over the legislature’s job that is “dramatic, unprecedented, and in direct conflict with this Court’s Tenth Amendment jurisprudence barring Congress from controlling how the States regulate private parties.” Unlike the 2012 law, they emphasize, the 2014 law does not affirmatively authorize sports betting, but instead just repeals the existing bars on sports betting at casinos and racetracks, without giving the state any role to play in the sports betting that will follow. Indeed, they point out, during the litigation challenging the 2012 law, the federal government itself told the 3rd Circuit that New Jersey was “free to repeal those prohibitions in whole or in part.” And if the 10th Amendment bars the federal government from requiring states to regulate, they contend, it must also be true that the federal government cannot require states to keep on their books laws that they have opted to repeal – which amounts to essentially the same thing as mandatory regulation.

Judge William Pryor's op-ed in the NYT

Judge William Pryor wrote this op-ed in the New York Times, challenging Professor Steven Calabresi's plan to pack the courts with more judges. From the intro:

A prominent conservative law professor, Steven Calabresi, and one of his former students recently published a proposal to expand the federal judiciary by creating hundreds of new judgeships. A founder and chairman of the Federalist Society (of which I have been a member since 1984), Professor Calabresi promoted his “judgeship bill” as a way of “undoing” President Barack Obama’s judicial legacy. But there is nothing conservative — or otherwise meritorious — about this proposal.

Professor Calabresi, who teaches at Northwestern University, argues that federal courts are overwhelmed by their caseloads. He complains that appellate courts hear too few oral arguments and issue too many unpublished opinions, and that district courts too rarely conduct jury trials and approve too many plea bargains in criminal cases. He also contends that the federal judicial conference, the policymaking body for the federal courts, opposes more judgeships because it fears an expansion would diminish the prestige of the judiciary. None of this is true.

It's an interesting debate. I will say this -- the 11th Circuit needs more judges. They only hear oral argument in a very small percentage of cases. With more judges, there would be more oral argument and the litigants would feel like they are getting more process. It's very difficult to have a trial with real issues, only to get a non-published opinion back from the 11th Circuit that was done without the benefit of OA. We don't need 50+ judges as Calabresi says. That's silly. But a few more wouldn't hurt either.

BREAKING -- JNC makes the cut to 10 finalists for district judge

The 10 finalists for the 5 open seats in the Southern District of Florida are:

Roy Altman
Antonio Arzola
Benjamin Greenberg
David Haimes
Peter Lopez
Rodolfo Ruiz
Raag Singhal
Rodney Smith
John Thornton
Melissa Visconti

News & Notes (UPDATED)

-- The JNC's interviews are open to the public today and tomorrow.  Anyone there and want to report back?

-- The ABA has listed its top blogs and twitter accounts.

-- Rumpole may want to pay attention to the 6th Circuit case in which the Court is considering outing the anonymous blogger.

-- James Gonzalo Medina was sentenced to 25 years in prison for attempting to attack an Aventura, Florida synagogue and attempting to provide material support to a foreign terrorist organization.  

UPDATE -- Congrats to Ashley Litwin and Marc Seitles for their win in the 11th Circuit today.  Here's the opinion by Judge Rosenbaum, which starts off like this:

 Theodor Seuss Geisel (perhaps better known as Dr. Seuss) is said to have observed, “Sometimes the questions are complicated and the answers are simple.”1 This is one of those times.
This direct appeal of Defendant-Appellant Edriss Baptiste’s sentence for access-device fraud and aggravated identity theft requires us to determine how to account in Baptiste’s criminal-history calculation for Baptiste’s ostensible sentence from a prior state case. More specifically, a state court purported to sentence Baptiste for a marijuana-possession conviction to “198 days time served,” referring to time he spent in U.S. Immigration and Customs Enforcement detention. Based on this disposition, the district court scored Baptiste two criminal-history points and therefore concluded his criminal-history category was II.
The parties debate whether time in Immigration custody can ever qualify as “imprisonment” for purposes of determining criminal history under the Guidelines. While the parties raise interesting arguments, we instead resolve this case by concluding that where, as here, a defendant has pled guilty to a prior crime and adjudication has been withheld, that disposition must be counted for a single criminal-history point under § 4A1.1(c) of the Guidelines, regardless of whether the sentencing court purported to impose—or even actually imposed—198 days or no days of imprisonment. For this reason, we vacate the sentence imposed by the district court and remand for resentencing, using a criminal-history category of I.

Back at it.

I hope everyone had a wonderful Thanksgiving weekend. It’s back at it, this Monday morning. It’s been almost a year, and we still do not have a U.S. Attorney nominee. But our acting U.S. Attorney, Ben Greenberg, will be interviewing (along with 23 others) for one of the 5 open judicial slots this week. The JNC will be cutting the list to 10, and then our 2 Senators will send 5 names to the President. It’s not altogether clear whether the President will nominate those 5 people or go with 5 of his own. And to come full circle, recent whispers around town have one of those JNC members, Jon Sale, as the emerging candidate (again) for U.S. Attorney.

The big cell-phone privacy case, Carpenter v. U.S., will be argued this week in the Supreme Court. I argued the same issue before the en banc 11th Circuit in U.S. v. Quartavious Davis, so this is an issue close to home for me. A few members of the 11th Circuit questioned whether the 3rd party doctrine should apply in our new technological world. This morning in the Washington Post, the lawyer who successfully argued Smith v. Maryland (one of the 2 leading 3rd party cases), wrote an op-ed saying (rightfully) that those old cases should not apply to our cell-phones:

That new world is defined by the rapid increase in sophisticated — and invasive — technology. It is also defined by a relentless and pervasive assault on privacy. As journalist Julia Angwin has shown in her book “Dragnet Nation,” the new digital world can track our movements, seize our secrets, manipulate our finances and much more.

In such a world, the very notion of a “legitimate expectation of privacy” seems antique.

There is evidence that the courts are catching on. Most predictive, perhaps, are the words of Justice Sonia Sotomayor, concurring in a 2012 case holding that the clandestine and warrantless attachment of a GPS tracking device to a defendant’s car was an unconstitutional search. Sotomayor suggested that “the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties” is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” As Sotomayor noted, “People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the email addresses with which they correspond to their internet service providers; and the books, groceries and medications they purchase to online retailers.”
Sotomayor is right. The Supreme Court should develop a modern Fourth Amendment doctrine. Such a test would recognize the legitimate claims of law enforcement but set objective boundaries — such as the duration of an intrusion or the nature of the data seized — that constrain those claims. The Carpenter case is the court’s opportunity to do so.

The world has changed profoundly since I argued Smith v. Maryland. And as Oliver Wendell Holmes Jr. taught us long ago: “The life of the law has not been logic; it has been experience.”

RIP William J. Surowiec, Esq.

RIP William J. Surowiec, Esq.

A great lawyer and super nice guy. And his wife is the best. So sad.

It's been an awful week in the District. Rumpole has a nice post about him here.

A celebration of his life will take place Saturday, November 25, 2017 at 2:00 pm., at the Key Biscayne Yacht Club.

RIP William M. Hoeveler

RIP William M. Hoeveler, a long-time well-respected judge in our District.  here:

The Herald has a nice and detailed obit

Hoeveler even drew praise from the most infamous defendant ever to appear in his courtroom, the deposed Panamanian General Manuel Noriega, who was captured by U.S. forces that invaded Panama in late 1989, leading to a nationally covered Miami trial that was “the mother of all battles in the war on drugs,” as one prosecutor later described it.

“The one shining light through this legal nightmare has been your honor,” said Noriega, who was convicted of cocaine trafficking and racketeering charges in 1992. “You have acted as honest and fair as anyone can hope for.”
***
His judicial secretary for nearly 40 years, Janice Tinsman, once wrote that while Hoeveler is “often considered by people to be the epitome of what a judge should be ... there is another thing he has taught us that many people do not realize, and that is we are on a journey in our lives.”

“I have seen him journey back from a stroke because he believed in what he did in serving the public,” Tinsman wrote in 2011, when Hoeveler won the Federal Bar Association’s Judicial Excellence award, named after the late U.S. District Judge Edward B. “Ned” Davis. “He did not just sit down and not come back. I have seen him journey back from the loss of his wife [Griff] only a couple of months after suffering his stroke.

“He did not quit. ... He loves the law. He did not give up. ... He has shown us that he is a man of faith in God. He has shown us that our paths in life, no matter what has put us on that path or what is in front of us, that we must always journey on.”

RIP Judge Kenneth Ryskamp

RIP Judge Kenneth Ryskamp.  He was 85.  A nice man, who served this District for a very long time.

From his Wiki page:

Education and career

Born in Grand Rapids, Michigan, Ryskamp received an Artium Baccalaureus degree from Calvin College in 1955. He received a Juris Doctor from University of Miami School of Law in 1956. He was a law clerk for Judge Mallory H. Horton of the Florida Third District Court of Appeal from 1957 to 1959. He was in private practice of law in Miami, Florida from 1959 to 1986.^[1]

Federal judicial service

Ryskamp was nominated by President Ronald Reagan on March 12, 1986, to a seat on the United States District Court for the Southern District of Florida vacated by Judge Joe Oscar Eaton. He was confirmed by the United States Senate on April 23, 1986, and received commission on April 24, 1986. He took the judicial oath and commenced service on May 2, 1986. He assumed senior status on January 1, 2000.^[1] As of January 2017, Ryskamp has taken inactive senior status, meaning that while he remains a federal judge, he no longer hears cases or participates in the business of the court.^[2]

“I had no recollection of this meeting until I saw these news reports.”

That was Attorney General Jeff Sessions. Many criminal defendants have (wrongfully) been prosecuted for 1001 violations (false statements) or obstruction for similar statements. One senator made this point to the Attorney General:

As Democrats repeatedly put heat on Mr. Sessions over the evolution of his testimony before Congress, Representative Hakeem Jeffries, Democrat of New York, invoked an unexpected ostensible ally: Senator Jeff Sessions.

Holding up a speech he said Mr. Sessions had given on the Senate floor during the proceedings to remove President Bill Clinton from office, Mr. Jeffries said Mr. Sessions had then justified his vote for removal by saying that he would not hold the president to a different standard than a young police officer he had prosecuted years before for lying under oath.

“You stated that you refused to hold a president accountable to a different standard than the young police officer who you prosecuted,” Mr. Jeffries said. “Let me be clear: The attorney general of the United States of America should not be held to a different standard than the young police officer whose life you ruined by prosecuting him for perjury.”

Mr. Sessions vehemently disagreed with the comparison, repeatedly calling Mr. Jeffries suggestion “unfair.” “Mr. Jeffries, nobody, nobody, not you or anyone else should be prosecuted, not be accused of perjury for answering the question the way I did in this hearing,” Mr. Sessions said. “I have always tried to answer the questions fairly and accurately.”

Fane Lozman is headed back to SCOTUS

Most lawyers dream of getting a golden ticket to the Supreme Court.  Fane Lozman, who isn't a lawyer, just found his second golden ticket.  SCOTUSblog describes the case this way:

With today’s grant in his lawsuit against Riviera Beach, Florida, Fane Lozman – whose eponymous website describes him as a “persistent and tenacious underdog who fought against the government seizure of 2200 homes and businesses” – joins Carol Ann Bond and Encino Motorcars in the pantheon of recent repeat litigants on the merits at the Supreme Court. But unlike Bond’s and Encino’s, Lozman’s latest case involves an entirely different set of legal issues from those presented in his first case, even though his opponent is the same.
In Lozman’s first visit to the Supreme Court, the justices ruled that Lozman’s floating home was not a “vessel” for purposes of federal maritime jurisdiction. His second case, however, arises from his November 2006 arrest at a city council meeting, after he refused to stop talking about local government corruption when a councilmember directed him to do so.
The charges against Lozman were quickly dropped, but that didn’t end the matter. Lozman filed a lawsuit in federal district court, alleging that he had been arrested in retaliation for his criticism of the government and for a lawsuit that he had filed against the city. The U.S. Court of Appeals for the 11th Circuit ruled, however, that Lozman’s retaliatory-arrest claim could not succeed because the jury found that the police had probable cause to arrest him. Now the Supreme Court will decide whether that ruling is correct.

News and Notes

1.  As posted earlier, your two new magistrates are Lauren Louis and Bruce Reinhart.  Here's a little more about them from their law firm profiles:

Lauren Louis:

Lauren’s practice includes a broad spectrum of significant complex litigation matters, including professional malpractice, intellectual property disputes, antitrust violations, civil rights enforcement, employment law, and class action litigation. She represents both plaintiffs and defendants in federal and state courts across the U.S.

Lauren participates in internal and pre-suit investigations to analyze her clients’ civil and criminal exposure. Lauren is also designated by the U.S. District Court for the Southern District of Florida to serve as a Criminal Justice Act attorney, which allows her to represent indigent criminal defendants in Federal Court. Lauren was part of the trial team that represented Florida children on Medicaid, in which the firm appeared pro bono.

From November 2001 until July 2006, Lauren served as an Assistant U.S. Attorney in the Southern District of Florida, where she tried more than 25 jury trials, wrote approximately 30 briefs, and appeared twice to argue before the Eleventh Circuit.

And Bruce Reinhart:

Bruce E. Reinhart is a nationally recognized trial attorney and distinguished former federal prosecutor. Mr. Reinhart’s extensive experience includes having served as an Assistant United States Attorney in the Southern District of Florida for over 11 years, as Senior Policy Advisor to the Undersecretary for Enforcement at the U.S. Treasury Department, and as a Trial Attorney in the Public Integrity Section of the U.S. Department of Justice in Washington, D.C.

2. Amy Howe of SCOTUSBlog will be speaking today at the Federal Bar Luncheon. It's always a great talk.


3. Speaking of the Boies law firm, David Boies is in a little bit of hot water. From Slate:

Renowned liberal attorney David Boies represented Al Gore during the contested aftermath of the 2000 election and argued for marriage equality before the Supreme Court. Boies’ progressive legacy, though, is now in question in the wake of revelations about his involvement in the Harvey Weinstein scandal. In October, the New York Times reported that Boies, who represented Weinstein starting in 2015, was aware that the Hollywood mogul had settled with several women who’d accused him of sexual misconduct. Now, Ronan Farrow’s latest blockbuster in the New Yorker has raised the possibility that Boies helped abet a sprawling and costly conspiracy to cover up Weinstein’s misdeeds.

Farrow reports that in 2016, Weinstein enlisted Kroll, a corporate investigation firm, and Black Cube, a private intelligence agency, to try to stop outlets from publishing allegations of his sexual abuse. Kroll and Black Cube agents reportedly met with journalists and victims to obtain information and attempt to quash stories. Boies’ elite firm, which represented Weinstein, contracted with these companies, potentially adding a layer of attorney-client privilege to insulate Weinstein from the intelligence work he commissioned. Boies didn’t hand off all this work to associates. Farrow reports that the lawyer personally signed a contract “directing Black Cube to attempt to uncover information that would stop the publication of a [New York] Times story about Weinstein’s abuses.” Further complicating matters, he did so while his firm was representing the Times in a libel lawsuit.

Boies told Farrow that he didn’t think this was a conflict, explaining that he was doing the Times a favor by pushing the newspaper to vet its Weinstein coverage carefully. “If evidence could be uncovered to convince the Times the charges should not be published, I did not believe, and do not believe, that that would be averse to the Times’ interest,” he told the New Yorker.

This is pretty clearly nonsense. Legal ethics expert and Georgetown Law professor David Luban told us in an email that, at minimum, Boies could have run afoul of Rule 1.7 of New York’s rules of professional conduct, which bars lawyers from representing a client “if a reasonable lawyer would conclude that … the representation will involve the lawyer in representing different interests.” There are exceptions, but they require informed consent from both clients, which Boies did not provide to the Times. “We learned today that the law firm of Boies Schiller and Flexner secretly worked to stop our reporting on Harvey Weinstein at the same time as the firm’s lawyers were representing us in other matters,” the newspaper said in a statement. “We consider this intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe. It is inexcusable and we will be pursuing appropriate remedies.”

More from Above The Law here.

Another ACCA case

Here's an interesting introduction by Chief Judge Carnes in U.S. v. Davis:

This is an ACCA “violent felony” issue case. So here we go down the rabbit hole again to a realm where we must close our eyes as judges to what we know as men and women. It is a pretend place in which a crime that the defendant committed violently is transformed into a non-violent one because other defendants at other times may have been convicted, or future defendants could be convicted, of violating the same statute without violence. Curiouser and curiouser it has all become, as the holding we must enter in this case shows. Still we are required to follow the rabbit.

So, who is the rabbit?  The rule of law?

** **BREAKING -- Lauren Louis selected as new magistrate in Miami

** **BREAKING -- Lauren Louis has been selected as the new magistrate in Miami.

And as noted below, Bruce Reinhart is the new mag in West Palm Beach.

**BREAKING -- Bruce Reinhart selected as new magistrate in West Palm Beach(UPDATED)

**BREAKING -- I am being told that Bruce Reinhart has been selected as the new magistrate in West Palm Beach.

I am still waiting to hear who got it in Miami.

UPDATE -- Lauren Louis has been selected as the new magistrate in Miami.

Shanieck Maynard investiture

Congrats to Shanieck Maynard on her investiture as Magistrate Judge in Ft. Pierce. 

The judges will be selecting two new magistrates today for West Palm Beach and Miami from this list:

Miami:

Lynn Kirkpatrick, Lauren Louis, Gera Peoples, Steven Petri, and Erica Zaron

West Palm Beach:

Panayotta Agustin-Birch, Celeste Higgins, Stephanie Moon, Steven Petri, and Bruce Reinhart

Federal Bar Association Dinner

It was a big night at the South Florida Chapter of the Federal Bar Association last night.  Judge Donald Graham received the Ned Award, named after Judge Edward B. Davis.  It's a very prestigious honor and one that Judge Davis would be very proud that it was awarded to Judge Graham.  Also, Russell Koonin was installed as the new president of the organization.  Ben Brodsky is the outgoing president.  Here are some good pictures:

Give me a lawyer dog or Give me a lawyer, Dawg

Did the defendant say: Give me a lawyer dog or Give me a lawyer, Dawg.  According to the Supreme Court of Louisiana, the defendant could have wanted some sort of weird animal called a lawyer dog:

In my view, the defendant’s ambiguous and equivocal reference to a “lawyer dog”does not constitute an invocation of counsel that warrants termination of the interview and does not violate Edwards v. Arizona, 451 U.S. 477, 101 S.Ct.1880, 68 L.Ed.2d 378 (1981).

ABSURD!!

The memes from the case have been funny.  Here's one from Slate:

Here come the (conservative) judges...

While everyone is focused on the Manafort indictment, the Senate is about to confirm 4 conservative appellate judges.  From HuffPost:

Senate Majority Leader Mitch McConnell (R-Ky.) is finally giving conservative groups what they want: a huge push on judicial confirmations.

McConnell has teed up votes this week on four of President Donald Trump’s judicial nominees. That’s an incredible amount of activity on judges in one week. For some comparison, former Senate Majority Leader Harry Reid (D-Nev.) typically scheduled a vote on one nominee per week, at most.

“I never remember the Democrats ever doing anything comparable,” Carl Tobias, a University of Richmond law professor and an expert on judicial nominations, told HuffPost on Monday.

With little fanfare, this week is shaping up to be one of Republicans’ biggest boosts to Trump’s agenda since Supreme Court Justice Neil Gorsuch was confirmed in April.

All four nominees are young (in their late 40s and early 50s), conservative and up for a lifetime post on a U.S. circuit court ― one level below the Supreme Court. None got a single Democratic vote when they were reported out of the Senate Judiciary Committee. Two were recommended to Trump directly by the Federalist Society and the Heritage Foundation, both right-wing think tanks.

The Senate cleared a procedural step on Monday night for the first nominee in the batch, Amy Coney Barrett. She is now on track to be confirmed Tuesday to the U.S. Court of Appeals for the 7th Circuit.

Democrats have raised red flags with Barrett’s past writings on abortion, which include her questioning the precedent of Roe v. Wade and condemning the birth control benefit under the Affordable Care Act as “a grave infringement on religious liberty.” One Democrat, Al Franken (Minn.), called her out for taking a speaking fee from the Alliance Defending Freedom, a nonprofit that has defended forced sterilization for transgender people and has been dubbed a hate group by the Southern Poverty Law Center.

Trump’s other court picks getting votes include Joan Larsen, a nominee to the 6th Circuit Court of Appeals who is opposed by 27 LGBTQ advocacy groups and the Leadership Conference on Civil and Human Rights; Allison Eid, a nominee to the 10th Circuit Court of Appeals who is opposed by the AFL-CIO and the Leadership Conference on Civil and Human Rights; and Stephanos Bibas, a nominee to the 3rd Circuit Court of Appeals.

JNC schedules interviews for Federal District Judge

The Federal JNC has scheduled interviews for Federal District Judge as follows:

DAY ONE November 28, 2017

9:00 am           Benjamin Greenberg

9:40 am           Migna Sanchez-Llorens

10:20 am         Rodney Smith

11:00 am         John Thornton

11:40 am         Marina Garcia Wood

12:15 – 1:00 pm          LUNCH

1:00 pm           Angel Cortinas

1:40 pm           John Kastrenakes

2:20 pm           Orlando Prescott

3:00 pm           Melissa Visconti

3:40 pm           Beatrice Butchko

4:20 pm           Raag Singhal

5:00 pm           Antonio Arzola

DAY TWO November 29, 2017

9:00 am           Roy Altman

9:40 am           Thomas Rebull

10:20 am         Michael Sherwin

11:00 am         Dina Keever-Agrama

11:40 am         Daryl Trawick

12:15 – 1:00 pm          LUNCH

1:00 pm           William Roby

1:40 pm           Peter Lopez

2:20 pm           Jeffrey Colbath

3:00 pm           David Haimes

3:40 pm           Rodolfo Ruiz

4:20 pm           Mark Klingensmith

5:00 pm           Meenu Sasser 

The 24 interviews will be narrowed to 10 recommendations to the 2 Florida Senators.  They will then recommend 5 to the White House.

Finalists for the two Magistrate Positions

Finalists for the two Magistrate Positions are:

Miami:

Lynn Kirkpatrick, Lauren Louis, Gera Peoples, Steven Petri, and Erica Zaron

West Palm Beach:

Panayotta Agustin-Birch, Celeste Higgins, Stephanie Moon, Steven Petri, and Bruce Reinhart

Judge William Pryor reviews book on Justice Scalia

11th Circuit Judge and SCOTUS short-lister, William Pryor, wrote this review of "Scalia Speaks" for Law360. Here's a snippet:

Scalia’s famous literary style shines on every page. Consider, for example, his colorful description of his “intense dislike” of legal canards — that is, “oft-repeated statements that he [wa]s condemned to read, again and again, in the reported cases.” Scalia complained, “It gets to be a kind of Chinese water torture: one’s intelligence strapped down helplessly by the bonds of stare decisis that require these cases to be read, and trickled upon, time after time, by certain ritual errors, vapidities, and non sequiturs.”

Or consider his vivid description of the remote injury caused by a package of fireworks to a railroad passenger in a famous legal case: “And when the package landed on the rails, there resulted a rather large pyrotechnic explosion, which caused a set of scales a considerable distance away on the far end of the platform to fall over, and to land on top of poor Mrs. Palsgraf, who was injured.”

The collection even offers advice from the late justice to Scribes: The American Society of Legal Writers about the “time and sweat” necessary to become a good writer: that is, one who has what the justice called “the ability to place oneself in the shoes of one’s audience; to assume only what they assume; to anticipate what they anticipate; to explain what they need explained; to think what they must be thinking; to feel what they must be feeling.” That advice came when the society unsurprisingly honored the justice with a lifetime achievement award.

Scalia’s wit also offers laughs at every turn. To the Friendly Sons of St. Patrick in New York City, Scalia explained “the best formula for after-dinner speeches being what one of the Jesuits I had in high school advised was the best advice for kissing among unmarried couples: leviter, breviter.” In a crack about the education of new Catholic priests, Scalia then deadpanned, “For the younger clergy in the audience, that is Latin for ‘lightly and briefly.’” And then after what must have been a pause, he delivered the punch line: “I have reason to believe that that advice has been no more effective for after-dinner speakers than it has been for unmarried couples.”

The next week he spoke to B’nai B’rith in the nation’s capital, where he recalled his speech to the Friendly Sons the week before and said, “Washington is becoming more and more like New York. Just last Wednesday I was at the dinner for the Friendly Sons of St. Patrick, and here I am at B’nai B’rith. As Irving Kristol said some years ago, in reference to a Jewish mayor of Dublin, ‘Only in America!’” And then there’s Scalia’s description of one his “most humbling moments” as a turkey hunter: “I took a shot at a gobbler and he went right down — flapped a little and went down. I was so excited, I jumped out of the box stand and hurried to him. I got about five feet away and he lifted his head, looked at me, and ran away.” Scalia then explained, “And I had left my gun back in the box stand.”