Summer court closures

Have a great Memorial Day on Monday.  Courts are closed.

Federal court is also closed on July 5 per this Order from Chief Judge Moore.

While I'm on the Administrative Orders page, I saw these new magistrate judge pairings for the new district judges:

ORDERED that effective May 6, 2019, when Judge Ruiz begins receiving case transfers
from other District Judges, he will be paired with Magistrate Judge Barry S. Seltzer for all Fort
Lauderdale cases; Magistrate Judge Jacqueline Becerra for all Miami cases; and Magistrate Judge
Bruce E. Reinhart for all West Palm Beach cases.

AND

ORDERED that effective April 11, 2019, when Judge Altman begins receiving case transfers from other District Judges, he will be paired with Magistrate Judge Patrick M. Hunt for all Fort Lauderdale and Miami cases; and Magistrate Judge Dave Lee Brannon for all West Palm Beach cases.

“It has taken all of us many years to learn the rules of procedure and you’re going to have to study that and learn that yourself.”

That was Judge Roy Altman telling Yujing Zhang, the accused Chinese spy, that she shouldn't represent herself. Her response:

“If necessary, I might do some study in terms of this,” Zhang acknowledged.

“A trained lawyer would defend you much better than you could represent yourself,” Altman replied. “I strongly urge you not to represent yourself. ... I’ve been a lawyer for a very long time and I think this is a very bad decision.”

The Herald has more here.

One interesting issue that is happening more and more is a reporter reporting on overhearing a conversation between lawyer and client in the court. The Herald reported on such a conversation here calling it an "intense heart-to-heart."

Gorsuch joins "liberal" wing of Supreme Court on Tribal issue

This is the second time he has done so.  The holding:  Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Justice Sotomayor wrote the opinion, which can be accessed here.

Roy Black gives commencement address at the University of Miami School of Law

It was very powerful.  An excerpt:

We lawyers can not change the world

that is the province of politicians

we have a higher calling --

we change the lives of people.

Judaism has a saying:

If you save one life,

it’s as if you’ve saved the world.

today on the cusp of your career

I issue a challenge to each one of you:

WHO among you will rescue the children

being held in steel cages at our southern border --

children our government has classified as collateral damage.

WHO among you will seek DNA from death row inmates.

WHO among you will prosecute or defend

war criminals at The Hague.

WHO among you will to take on

the existential threat to our environment --

to treat the climate crisis as the biggest threat in human history.

WHO will continue the campaign

to ensure every American,

regardless of ability to pay,

has the basic human right to healthcare.

it is not a coincidence that this mission

began with a president who taught constitutional law.

WHO will attend 8am bail hearings for indigent prisoners

WHO will fight for each one of the 68 million refugees,

men, women and children

desperately fleeing

the monsters who make war on them,

whether they be:

the drug gangs of Central America,

Assad bombing and gassing the cities of Syria,

or the brutal warlords on the plains of Africa.

WHO among you will demand they be treated humanely,

and not turn a blind eye to their torture.

WHO will stand up against the bigotry directed at

African Americans, Native Americans, other people of color,

the jews, Muslims, Hindus, Sikhs, immigrants

and every other despised minority under attack today.

WHO among you will seek the closure

of our concentration camp at Guantanamo

and have the audacity to demand fair trials for terrorists.

WHO would step forward to defend

Julian Assange, or Bill Cosby

or the Stoneman Douglas high school assassin

Or would you rather join your peers at Harvard

who are protesting a law professor

daring to represent Harvey Weinstein.

I urge you not to fear the displeasure of the crowd

or the distaste of the trolls.

Our constitution and laws are toothless if they only protect those

who enjoy popular approval.

Kavanaugh v. Gorsuch

An interesting antitrust opinion with a 5-4 split involving Apple pitted the two newest Justices against each other yesterday.  From the New York Times:

The Supreme Court on Monday allowed an enormous antitrust class action against Apple to move forward, saying consumers should be allowed to try to prove that the technology giant had used monopoly power to raise the prices of iPhone apps.

The lawsuit is in its early stages, and it must overcome other legal hurdles. But the case brings the most direct legal challenge in the United States to the clout that Apple has built up through its App Store. And it raises questions about how the company has wielded that power, amid a wave of anti-tech sentiment that has also prompted concerns about the dominance of other tech behemoths such as Facebook and Amazon.

The court’s 5-to-4 vote featured an unusual alignment of justices, with President Trump’s two appointees on opposite sides. Justice Brett M. Kavanaugh, who joined the court in October, wrote the majority opinion, which was also signed by the court’s four more liberal justices. Justice Neil M. Gorsuch, who joined the court in 2017, wrote the dissent.

The class-action lawsuit focuses on the fees that Apple takes on sales in its App Store, which millions of people use every day to download games, messaging apps and other programs. The company charges up to a 30 percent commission to developers who sell their products through its store, bars them from selling their apps elsewhere and plays a role in setting prices. App makers have long complained that the fee and other practices are unfair.

Scotus has more here.

"Kim Kardashian is the hero that criminal justice reform needs"

That's the title of my latest piece in The Hill, which you can read here.  The introduction:

A lot of people talk the talk about criminal justice reform, even though their records on reform are ... shall we say ... not sparkling. There are very few people who walk the criminal justice reform walk. Kim Kardashian is one of those actually working to make change. It shouldn’t be a big surprise that Kardashian has a deep-rooted passion for criminal defense as her dad, Robert, was also a well-known lawyer. 

She’s successfully working with President Trump on commutations and pardons. Kardashian saw a story on Twitter about Alice Marie Johnson and didn’t just retweet it. She did something and made it her mission to help the first-time nonviolent drug offender who was sentenced to life. She met with Johnson and then met with Trump. After 21 years in prison, Johnson was released. Kardashian literally saved her life and was quoted after hearing that Johnson was going to be released: "We cried, maybe, on the phone for, like, three minutes straight. Everyone was just crying." 

She’s funding lawyers who are working on freeing other inmates. There is so much work to be done with our over-incarceration problem because of the old War on Drugs policies, which resulted in thousands of people convicted of low-level drug offenses doing monster prison sentences, including life.  Kardashian is funding lawyers who are working on The Decarceration Collective and other initiatives (like #cut50 with Van Jones), including putting to work the First Step Act, the recent law meant to reform our criminal justice issues. In just the last 90 days, she has helped to free 17 prisoners. It’s truly remarkable work.

“Warning: Unavoidable Acronyms Ahead.”

Ha.  That’s Judge Newsom in this 11th Circuit opinion today:

Flat Creek is a commercial trucking company that transports non-hazardous materials—mainly refrigerated food products. Because it operates in interstate commerce, Flat Creek is subject to Department of Transportation regulations. And because its claim in this case arises against the backdrop of that regulatory framework, we begin with an overview. (Warning: Unavoidable Acronyms Ahead.)

BREAKING -- RAAG SINGHAL BEING VETTED FOR OPEN DISTRICT SLOT

Great news -- Judge Raag Singhal is being vetted for an open district court seat in Ft. Lauderdale.  He currently sits on the Broward state bench (he was appointed by Rick Scott back in 2011 and was re-elected in 2014) and has wide support on both sides of the aisle.  He's a former state prosecutor and private defense lawyer.  Plus, he's a really good guy.  Here's hoping that he gets nominated and confirmed quickly.  After that, there will still be one opening left.  It's unclear whether the JNC will be reconstituted or whether Senators Rubio and Scott will just select someone.

CONGRATULATIONS TO JUDGE SINGHAL!

Judge Ruiz sworn in

There was a really nice informal swearing-in of Judge Ruiz at lunchtime today in Judge Moore's courtroom.  Judge Moreno -- who Judge Ruiz clerked for -- did the honors for a packed courtroom.  Here are some shots:

CONGRATULATIONS TO RUDY RUIZ

Our newest judge for the Southern District of Florida, confirmed 90-8.

Awesome.

Rudy Ruiz will be confirmed shortly

The motion to invoke cloture on Rodolfo Armando Ruiz II was agreed on 89-10.  He will be confirmed by the end of the week.

Judges, get your new set of transfer orders ready.

"Immoral and barbaric"

That was Judge Bob Scola in his recusal order discussing United Health's decision not to cover proton radiation treatment. More:

In early 2017, the Court was diagnosed with prostate cancer. In
determining the best course of treatment, the Court consulted with top medical
experts throughout the country. All the experts opined that if I opted for
radiation treatment, proton radiation was by far the wiser course of action.
Although the Court opted for surgery, rather than radiation, those opinions
still resonant.
Further, a very close friend of the Court was diagnosed with cancer in
2015. He opted to have proton radiation treatment at M.D. Anderson in
Houston. His health care provider, United Healthcare, refused to pay for the
treatment. Fortunately, he had the resources to pay $150,000 for the treatment
and only upon threat of litigation did United Healthcare agree to reimburse
him.
It is undisputed among legitimate medical experts that proton radiation
therapy is not experimental and causes much less collateral damage than
traditional radiation. To deny a patient this treatment, if it is available, is
immoral and barbaric.
The Court’s opinions in this matter prevent it from deciding this case
fairly and impartially.

Thankfully Judge Scola is healthy again. And what an amazing order.

"Hmm."

That's a paragraph in Judge Rosenbaum's dissent from the denial of en banc review in another fight about Johnson. Judge William Pryor wrote a lengthy opinion respecting the denial. Judges Martin and Rosenbaum each wrote responses.

Here's the Hmm language:

Perhaps for this reason, the Pryor Statement takes a second tack to argue prisoners incorrectly sentenced as career offenders pre-Booker have no cognizable
§ 2255 claim. In an unusual move, the Pryor Statement denies the reality that these prisoners were actually sentenced under a mandatory regime. It reasons that since the Supreme Court in Booker found that themandatory Guidelines violated the Sixth Amendment, they “were never really mandatory,” even though courts applied them that way for two decades. Pryor Statement at 22 (emphasis in original).

Hmm.

I doubt the perhaps 1,000-plus inmates3 who sit in prison right now because a court sentenced them using a mandatory version of the Guidelines with an indisputably unconstitutionally vague career-offender clause would agree.

Pryor and Rosenbaum also get into it on a metaphysical level:

Here's Pryor:

The second part of Judge Rosenbaum’s statement identifies the heart of my argument, but it offers no meaningful response. I have said that statements like “Booker made the Guidelines advisory” are ubiquitous but not precisely accurate. Judge Rosenbaum’s statement responds only by confirming that they are ubiquitous but makes no effort to refute my point that they are imprecise. See id. at 58–60. I have said that courts used to treat the Guidelines as mandatory but that, as Booker held, they committed legal error by doing so. Judge Rosenbaum’s statement responds only by insisting that courts used to treat the Guidelines as mandatory. See id. at 60. Her statement’s flotilla of quotations from the United States Reports, see id. at 58–59, ignores, first, that Booker held that the literal sense of those statements is false and, second, that courts routinely describe the terms and intended effects of statutes as if they were valid even as they hold the opposite. See, e.g., Murphy, 138 S. Ct. at 1483 (stating that the unconstitutional Professional and Amateur Sports Protection Act “banned the authorization of sports gambling in casinos” and “prohibited the spread of state-run lotteries”); Marbury, 5 U.S. at 176 (“The authority . . . given to the supreme court . . . appears not to be warranted by the [C]onstitution . . . .” (emphasis added)). The second part’s only direct response to my argument—that “the Booker Court did not make the Guidelines advisory because they were always advisory, since the Sixth Amendment never allowed them to be mandatory”—is that it “is certainly interesting on a metaphysical level.” Statement of Rosenbaum, J., at 60. I appreciate the compliment.

And Rosenbaum's response:

Today, though, the Pryor Statement chalks these remarks up to a failure of linguistic precision and seeks to rewrite history. See Pryor Statement at 17. According to the Pryor Statement, the Booker Court did not make the Guidelines advisory because they were always advisory, since the Sixth Amendment never allowed them to be mandatory. Id. at 19. That is certainly interesting on a metaphysical level.
But it ignores reality. Back here on Earth, the laws of physics still apply. And the Supreme Court’s invalidation of a law does not alter the space-time continuum. Indeed, there can be no dispute that from when the Guidelines were adopted in 1984 to when the Supreme Court handed down Booker in 2005, courts mandatorily applied them, as § 3553(b) required, to scores of criminal defendants—including many who still sit in prison because of them.
It’s also a particularly mindboggling bit of judicial fiction to, in one breath, conclude that the Guidelines were always advisory, and in the next, withhold relief from individuals in Lester’s circumstances by noting the advisory Guidelines do not apply retroactively because Booker is a procedural rule, even though, according to the Pryor Statement, the Guidelines always were advisory. Under the Pryor Statement’s reasoning, the Guidelines were never mandatory, but to inmates like Lester, they will always be mandatory, since these prisoners remain subject to their punishment. This heads-I-win-tails-you-lose logic cannot withstand scrutiny. Either the Guidelines were never mandatory, in which case, Lester and inmates like Lester would not have been sentenced under the mandatory regime or at least would not remain in prison because of the mandatory regime (a circumstance that is clearly not the case), or they were mandatory until Booker ruled they weren’t, and inmates like Lester can mount Johnson challenges.

Monday morning Endgame and Battle of Winterfell edition

No spoilers here, but if you're like most, you watched a lot of on-screen battling this weekend. 

We have our own Game of Thrones with Dems and Republicans battling it out.  Who are the White Walkers?  The latest battle... the census.  Here's former AG Eric Holder saying that the other side is trying to "weaponize" the census question:

Following oral arguments earlier this week, I’m deeply concerned that the Supreme Court appears willing to allow the Trump administration to weaponize the 2020 Census to determine where political and economic power in the United States should reside. Allowing the administration to demand citizenship information from every household as part of the decennial census for the first time in more than half a century would dramatically depress the count in areas with significant Latino and immigrant populations and would reposition political representation toward areas more likely to elect Republicans. Yet a 5-to-4 opinion along ideological lines in this case would further erode the public’s trust in the Supreme Court as an apolitical body.

Litigation over the inclusion of a citizenship question has raised significant constitutional concerns. It has also clearly shown that the Commerce Department violated the Administrative Procedure Act in failing to appropriately test its proposed change to the census questionnaire. Part of the purpose of the APA is to ensure that federal agencies do not inject ideological considerations into what are supposed to be fact-based determinations, precisely what Commerce Secretary Wilbur Ross has done.

Ross falsely claimed that he added the citizenship question “solely” at the request of the Justice Department so that it could more effectively enforce the Voting Rights Act. Given the total lack of VRA enforcement by the Trump administration, this is both untrue and rank hypocrisy. And the litigation process revealed that in 2017, Ross planned the addition of a citizenship question with his staff, as well as former White House official Stephen K. Bannon and then-Kansas Secretary of State Kris Kobach, two of President Trump’s radical, anti-immigrant political advisers, before broaching the subject with Justice Department leadership.

News & Notes

1. Is "chalking" your car a violation of the 4th Amendment? Yup, according to the 6th Circuit in this case. Orin Kerr discusses here:

From a practical perspective, this is a really important decision. It concludes that a routine practice that wasn't thought to be illegal (if it was thought of at all) is actually unconstitutional. I'm not sure if the decision is correct. And as I'll explain below, there are several plausible but debatable moves in the opinion. But this decision is now binding in the Sixth Circuit and may also be followed elsewhere: Traffic enforcement officers around the country should be paying attention to this.

2. What's going to happen with the census question in SCOTUS. Most are predicting a conservative 5-4 ruling. Mark Joseph Stern explains why the conservatives are being hypocritical:

To uphold the citizenship question, the court’s conservatives will have to feign respect for the Voting Rights Act, international law, and agency deference—three of their greatest enemies in any other context. In the process, they’ll have to pretend that Ross’ absurd pretexts, his many lies and obfuscations, are believable, even reasonable. And they appear willing to do exactly that to let Ross and Trump have their way. Such a decision would be an embarrassment to the judiciary, evidence that a majority of the justices place the goals of the Republican Party above the truth. A partisan ruling in this case would diminish the court’s legitimacy and fuel support for the addition of more justices. If SCOTUS abandons any pretense of neutrality and throws its weight behind the Trump administration, court packing may come to look like the only sensible option to save democracy from its wayward guardians.

3.  Meantime in our District, the word is the newly-minted Judge Roy Altman has a stable of cases now and has brought the parties in for status conferences.  He will be having a busy summer.  The big question -- will he get to send cases to the two new judges who will be coming shortly.

Michael Avenatti case has Miami connection

The L.A. Times has the story about Avenatti being accused of stealing $1.5 million from Hassan Whiteside and his girlfriend here:

When Hassan Whiteside of the Miami Heat wired $2.75 million to Michael Avenatti in January 2017, the pro basketball player intended most of the money to go to his former girlfriend, Alexis Gardner.

Avenatti was Gardner’s attorney. An actress and barista, she’d hired him just a few weeks before to negotiate a settlement of a potential lawsuit against Whiteside. It’s unclear what she would have alleged. Avenatti quickly struck a $3-million deal, and the $2.75 million was Whiteside’s first payment.

Avenatti, prosecutors say, was entitled to take just over $1 million in legal fees, leaving the rest for Gardner.

Instead, they allege, Avenatti hid Whiteside’s payment from her and immediately took $2.5 million to buy a share of a private jet.

Federal prosecutors are trying to bully 'Aunt Becky' into pleading guilty

That’s the title of my piece this week in The Hill. From the intro:

Let’s put aside whether we really want cheating on a test or lying on a resume to become a federal crime. And let’s also put aside whether we really want cheating on a test to result in federal prison time.  A larger problem with the criminal justice system is being exposed with the college admissions scandal — federal prosecutors are bullies. As we are seeing in the college admissions case, they bully defendants to plead guilty in at least 5 ways:

And one of the ways:

Threatening charges against family members. In other words, “Plead guilty or your family will pay!” Criminal defense lawyers across the country can empathize with this threat because it’s frequently made by federal prosecutors. And in this case, prosecutors have sent target letters to some of the adult children of people charged. The message is clear — if you plead guilty and fall on the sword, we will not go after your kids. Shame on prosecutors for using those kinds of threats to force guilty pleas.



Let me know your thoughts on the rest of the piece before you turn your attention to the Mueller report.

Big en banc 4th Amendment opinion comes down 7-5

It's the usual battle lines in United States v. Paul Johnson, Jr.

William Pryor for the majority, which includes Ed Carnes, Tjoflat, Marcus, Newsom, Branch and Grant. Newsom concurs, Branch concurs (joined by Grant), Jordan dissents, Rosenbaum dissents, and Jill Pryor dissents (joined by Wilson, Martin, and Jordan).

Lots of interesting writing and fighting here.

Pryor starts off this way:

This appeal requires us to decide whether a police officer violated the Fourth Amendment when he removed a round of live ammunition and a holster from the pocket of a suspect during a protective frisk, see Terry v. Ohio, 392 U.S. 1 (1968). At 4:00 a.m., the officer responded to a call about a burglary in progress in a high-crime area. When the officer arrived at the scene, he saw Paul Johnson, who matched the burglar’s description, standing in a dark alley. After detaining Johnson, the officer frisked him and immediately recognized that he had a round of ammunition in his pocket. The officer removed the ammunition and an empty holster covering it. He then canvassed the area and found two pistols less than a foot from where he first saw Johnson. After a grand jury indicted Johnson for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1), he moved to suppress the pistols, ammunition, and holster, but the district court denied his motion. A panel of this Court reversed. United States v. Johnson, 885 F.3d 1313 (11th Cir.), reh’g en banc granted, op. vacated, 892 F.3d 1155 (11th Cir. 2018). We then vacated that decision and ordered rehearing en banc. We now affirm the denial of Johnson’s motion to suppress because the officer was entitled to seize the ammunition to protect himself and others.

Newsom writes a concurrence saying that both sides have nice totality of the circumstances arguments and that on balance he's with the majority, but he favors bright lines and would end up saying that cops can always seize a bullet:

So in the next “bullet case,” rather than asking—or worse, requiring the responding officer to ask—whether the neighborhood is sufficiently scary, the hour sufficiently late, the light sufficiently dim, and the suspect and scene sufficiently secure, I would simply hold that the Fourth Amendment permits the protective seizure.

Branch agrees (Grant joins) with Newsom but writes separately without all of the nice stuff about the dissents:

Because I conclude that a bullet falls in to the category of “guns, knives, clubs, or other hidden instruments for the assault of the police officer,” id. at 29, and cannot logically be separated from a gun for Terry purposes, I would find that anytime an officer conducts a lawful Terry frisk, the officer may seize any bullet located during the frisk.

Jordan dissents and says, what about originalism? Originalism would not have allowed this to go forward and all of those in the majority who are generally champions of originalism are awfully quiet now:

Relying on Justice Scalia’s originalist position, Mr. Johnson argues that we should construe Terry narrowly, and not extend it to allow the seizure and removal of items that are neither weapons nor contraband. See Mr. Johnson’s En Banc Br. at 18-23. But the majority barely acknowledges this argument, and declines to address its merits. According to the majority, we are bound by Terry, and must therefore ignore the original understanding of the Fourth Amendment.2
The majority is correct that Terry constitutes binding precedent, and that no one on this court can wish it away. But accepting Terry does not require extending its reach on an issue of first impression. Terry permitted pat-downs for weapons, and only weapons. See Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979) (“Nothing in Terry can be understood to allow . . . any search whatever for anything but weapons.”). By allowing officers to seize a stand-alone bullet from an unarmed suspect who is in handcuffs and being held at gunpoint by several officers, the majority expands Terry beyond its “narrow scope.” Dunaway v. New York, 442 U.S. 200, 210 (1979).

Rosenbaum dissents, arguing that the majority is answering a question that was never briefed or argued:

Today we hold that any ammunition may always be seized during a frisk when the searching officer immediately identifies it as ammunition, regardless of any surrounding circumstances. This is a new rule that we did not ask the parties to address, that neither party briefed, and that the government expressly declined to adopt at oral argument.
Indeed, during oral argument, the Court asked the government, “Once you feel the bullet, the officer can seize the bullet. Is that the government’s position?” Recording of Oral Argument dated Oct. 24, 2018, at 38:58. And the government responded without equivocation, “No, Your Honor.” Id. Then the government explicitly stated, “We are not asking the Court to rule that a bullet in isolation in all circumstances would be sufficient to reach in [to the pocket and seize]; we are asking the Court to apply the facts-specific Fourth Amendment tests that this Court has applied and other courts have applied . . . under the totality of the circumstances.” Id. at 51:34.1
Because we operate only “as arbiters of legal questions presented and argued by the parties,” Nat’l Aeronautics & Space Admin. v. Nelson, 562 U.S. 134, 148 n.10 (2011) (citations and internal quotation marks omitted), once the government disclaimed the per se rule at oral argument, we were left with only two permissible options: apply a true totality-of-the-circumstances test or rehear the case, ask the per se question to the parties and, if necessary, appointed counsel, and analyze the arguments presented. Instead, the Majority Opinion takes a third route and adopts the new per se rule on its own. That new rule may well be correct. Or it may not. But if we wanted to consider such a rule, we should have asked the parties to brief and argue it in this en banc proceeding, instead of asking them to brief and argue a more discrete question.

Judge Rosenbaum is the Kagan of our Circuit. A glimpse here from the conclusion:

Charades may be fun at parties, but not in judicial opinions where officer safety and privacy rights hang in the balance. I therefore respectfully decline to engage in that activity.12
IV.
Today we issue a new rule we did not ask the parties to brief, they did not brief, and the government expressly disavowed. And we do this even though we could have obtained the parties’ input on the question we decide today. I respectfully decline to participate in that activity. The parties’ testing of the issues we decide is and should be the engine that drives our adversarial system.

Jill Pryor's dissent (joined by Wilson, Martin, and Jordan) defends the panel decision:

The panel correctly held that the seizure of a bullet and holster from the pocket of Mr. Johnson—who was compliant with officers’ commands, on the ground, handcuffed behind his back, and held at gunpoint by several officers—constituted an unreasonable seizure under Terry and its progeny. See United States v. Johnson, 885 F.3d 1313, 1323-24 (11th Cir. 2018). With respect, I dissent from the majority opinion’s contrary holding.

The Supreme Court addresses whether FUCT can be trademarked

The issue at yesterday’s oral argument was whether Section 2(a) of the Lanham Act’s prohibition on the federal registration of “immoral” or “scandalous” marks is facially invalid under the free speech clause of the First Amendment.

Some background from SCOTUSblog:

This case arose when Erik Brunetti applied to register his trademark FUCT for use as a brand for clothing. Brunetti started a streetwear company in 1990 with professional skateboarder Natas Kaupas, and later applied to register the trademark with the USPTO. The examining attorney rejected Brunetti’s trademark application on the basis that the mark is a phonetic equivalent of a vulgar word. The Trademark Trial and Appeal Board affirmed the refusal, finding that the examiner had provided sufficient evidence that a substantial composite of the general public would find the mark vulgar. The TTAB stressed that consideration of the constitutionality of Section 2(a) was beyond the scope of jurisdiction of the TTAB.

On appeal, the U.S. Court of Appeals for the Federal Circuit agreed that substantial evidence supported the board’s findings that the FUCT mark is vulgar and was therefore unregistrable under Section 2(a). However, it ultimately reversed the board’s holding. The Federal Circuit found that the bar on registering scandalous and immoral trademarks is a content-based restriction on free speech in violation of the First Amendment.

This case arises in the aftermath of, and perhaps as a natural consequence of, Matal v. Tam, which struck down the registration bar for the other type of offensive trademarks — those deemed disparaging. In Tam, the Supreme Court held that trademarks are private, not government, speech, and an examiner may not refuse to register trademarks based on the particular viewpoint the trademarks express. Because the disparagement provision in Section 2(a) denied registration to any trademark that was deemed disparaging by a substantial composite of the referenced group, it discriminated based on viewpoint: “Giving offense is a viewpoint.” The court found that whether strict scrutiny or a more lenient standard used to evaluate the constitutionality of restrictions on commercial speech under Central Hudson Gas & Electric Corp. v. Public Service Commission of New York applied, the provision could not withstand either level of review because it was not narrowly tailored to serve a substantial government interest. Justice Anthony Kennedy explained in his concurrence that “the central purpose of trademark registration is to facilitate source identification… Whether a mark is disparaging bears no plausible relation to that goal.”

There were legal gymnastics at oral argument not to say the word FUCT. More from SCOTUSBlog:

Sommer has pre-empted the warning that has typically come from the court about not using profane or vulgar language during arguments in past cases involving Paul Cohen’s “F**k the Draft” message on the jacket he wore in a courthouse, George Carlin’s “Filthy Words” routine (or the “seven words you can’t say on the public airwaves”), and the “isolated utterances” of obscene words on television.

An amicus brief on Brunetti’s side from the Cato Institute, besides offering its own thoughtful take on the importance of vulgar language in society, directs readers to a fascinating article in a 2012 issue of the William & Mary Bill of Rights Journal by Thomas Krattenmaker, who was a law clerk to Justice John Marshall Harlan. In Cohen v. California, Harlan (and mostly Krattenmaker, by his account) wrote the opinion for the court that said the anti-draft message on the jacket was protected from criminal prosecution by the First Amendment.

Krattenmaker relates the well-known fact that before oral argument in Cohen in the fall of 1970, then-Chief Justice Warren Burger sought to head off the use of the offending word by telling Cohen’s lawyer that the justices were familiar with the facts of the case. But the lawyer, Melville Nimmer, used the word in response to the first question he received. Krattenmaker further relates that Nimmer worried that court security personnel might jump up and say, “He said F*** in the Supreme Court, grab him!”

No one grabbed Nimmer that day, of course.

***
One thing the justices seem to agree on this morning is that the Trademark Office has been thoroughly inconsistent in its treatment of trademark applications involving the “seven dirty words” and their variations.

Justice Neil Gorsuch refers to the appendix at the end of Brunetti’s merits brief, which provides a four-page guide to those inconsistencies with examples that would make any sailor blush.

“There are shocking numbers of ones granted and ones refused that do look remarkably similar,” Gorsuch says.

(The appendix is part of the printed “red brief,” but is a separate document in the court’s docket for the case. Parental Guidance suggested. And by that, we mean that some parents may need to consult their 20-something children for explanations.)

We weren’t surprised to learn that the motto on the wallet of Samuel L. Jackson’s character (Jules) in “Pulp Fiction” was rejected for federal trademark protection. (As Jules puts it in the classic 1994 Quentin Tarantino film, “It’s the one that says ‘Bad Mother F*****.’”)

When Stewart starts to discuss an example by spelling out a phonetic equivalent for the profane past participle form of the word at issue, Gorsuch cuts him off.

“I don’t want to go through the examples. I really don’t want to do that,” he says to laughter from the courtroom.

Senate takes Spring Break

The Senate is off for the next two weeks, which means that the vote on Rudy Ruiz likely won’t happen until they are back. So judges will have to wait on the next batch of reassignment orders...

Roy Altman has been sworn in (UPDATED with news regarding Rudy Ruiz)

Update — The Senate is moving forward with Rudy Ruiz on Monday with the cloture motion ripening.  He should be confirmed early next week.  

Judge Marcus had the honor of swearing in Roy Altman yesterday.  Not minutes later, judges started reassigning cases to Judge Altman!

Here's a nice picture of the event:

Esformes forfeiture verdict

The Esformes trial is finally over ...

The forfeiture trial was Monday, and the jury deliberated and reached a verdict yesterday.  But only after some drama in which there were a flurry of notes saying that they were hung and that one jury was holding out for the defense.  But the jury ended up coming back, refusing to forfeit most of the assets the government was asking for. Instead, it decided that the government was entitled to interests in the operating companies for seven facilities.

Next up is sentencing.

The Secret Service plugged Zhang's thumb-drive into its computer

Um, whoops?

Yujing Zhang, the woman who was arrested at Mar-a-Lago, with her thumb-drive had her bond hearing today in West Palm Beach.  She was represented by the Federal Public Defender's office.  This gem came out during the agent's testimony (via the Miami Herald):

On Monday, wearing a short-sleeved, navy-blue detainee uniform and chewing her lower lip, Zhang glanced repeatedly at the crowd of journalists who had gathered for the hearing. Her hands were clenched in fists so tight they began to turn red. She appeared to speak in English with one of the attorneys representing her, although a court-appointed Mandarin interpreter was also present. When the hearing started, she began taking notes on a yellow legal pad.

Adler, Zhang’s attorney, pushed back during the hearing on the idea that she was a spy.

“She did not have the type of devices that can be associated with espionage activities,” he said.

Garcia, the prosecutor, replied that “there is no allegation [in the criminal complaint] she was involved in espionage ... all of this is irrelevant.”

“That’s good to know,” Adler said.

Later, Garcia said he could not rule out more serious charges.

“There are a lot of questions that remain to be answered,” he told the judge.

Investigators are still trying to determine the nature of the malware Zhang allegedly brought into the club, sources told the Herald. It is not clear how much of a threat the malware posed and whether it might have been intended to gather information at the president’s club or possibly to destroy an existing network or program, they said.

Secret Service agent Samuel Ivanovich, who interviewed Zhang on the day of her arrest, testified at the hearing. He stated that when another agent put Zhang’s thumb drive into his computer, it immediately began to install files, a “very out-of-the-ordinary” event that he had never seen happen before during this kind of analysis. The agent had to immediately stop the analysis to halt any further corruption of his computer, Ivanovich testified. The analysis is ongoing but still inconclusive, he said.

Insys case to jury

In addition to Esformes, there is another huge health care trial that just went to the jury after 43 days of testimony.  It’s known as the Insys case and it involves John Kapoor, the CEO of Insys, in Boston federal court.  From NPR:

Kapoor, the founder of Insys Therapeutics, allegedly oversaw a marketing strategy that paid doctors more than $1 million to prescribe Subsys in high doses — often to patients who did not need it. Subsys is a highly addictive opioid painkiller up to 100 times stronger than morphine.

Then, prosecutors claim, Insys set up a call center to ensure the expensive medication was covered by insurers. At the call centers, Insys employees allegedly pretended to be from doctors' offices and fabricated diagnoses and other information necessary to get the medication approved.

"The decisions, the money, the strategy came from the top," Yeager said. The obligation of physicians to "first, do no harm, became: First, do what you're told."

Yeager showed the jury internal company spreadsheets detailing how much money Insys had paid each doctor and the ROI, or return on investment, from those payments. That is, exactly how much money the company was making back via prescriptions from each doctor it had paid. Yeager suggested it should be called ROB — "return on bribe."

***

Kapoor, the founder of Insys Therapeutics, allegedly oversaw a marketing strategy that paid doctors more than $1 million to prescribe Subsys in high doses — often to patients who did not need it. Subsys is a highly addictive opioid painkiller up to 100 times stronger than morphine.

Then, prosecutors claim, Insys set up a call center to ensure the expensive medication was covered by insurers. At the call centers, Insys employees allegedly pretended to be from doctors' offices and fabricated diagnoses and other information necessary to get the medication approved.

"The decisions, the money, the strategy came from the top," Yeager said. The obligation of physicians to "first, do no harm, became: First, do what you're told."

Yeager showed the jury internal company spreadsheets detailing how much money Insys had paid each doctor and the ROI, or return on investment, from those payments. That is, exactly how much money the company was making back via prescriptions from each doctor it had paid. Yeager suggested it should be called ROB — "return on bribe."

Philip Esformes verdict -- Hung on Health Care, convicted of other counts (UPDATED & EDITED)

The Philip Esformes jury came back this morning -- hung jury on the main counts of health care and found guilty of other counts (including the kickback and money laundering counts) after a hard fought trial and lengthy deliberation.

Both sides will claim victory (as is happening in the press). The defense can argue that it won because of a hung jury on the main health care counts after a long trial.  The defense will argue that the case was billed as the largest health care fraud case but it resulted in no health care fraud count convictions.  That may be true for the lawyers, but it will be a tough sell when Esformes is ultimately sentenced. And the government can certainly say that it won with lots of convictions and no acquittals.  It will be interesting to see what sentence is ultimately handed out.  (I’ve edited this paragraph of this post a few times after thinking about the verdicts and what they mean.)

The poor jury thought they were done with the case, but now have to come back on Monday to handle the forfeiture portion of the trial.

Update— actually, the jury knew it would have to come back. Judge Scola informed them that after phase 1, there would be a few more days of evidence.

Congrats to Judge Roy Altman

He was just confirmed, 66-33.

Senate goes nuclear over Roy Altman

There's a lot of political back and forth over Trump's recent judicial nominees.  Miami is always ground zero, and it was here too as Altman was the first judicial selection to test the nuclear option today.  And boom, the Senate did go nuclear, and the bottom line is that the final vote for Altman will be tomorrow (Thursday) at 11:45. He will very likely be our newest district judge.

Here's Roll Call explaining a little more about the process.  And here are some tweets by the Senate Cloakroom with what happened today:

• Votes Scheduled: At 11:45am TMRW the Senate will proceed to 2 votes: 1.Confirmation of Cal. #32 Altman to be U.S. District Judge for the Southern District of FL
• Invoked, 66-33: Motion to invoke cloture on Executive Calendar #32 Roy Altman to be U.S. District Judge for the Southern District of Florida 

Interestingly, because Altman will be confirmed first, he will have seniority over Ruiz and Smith.

In Defense of Joe Biden

That’s my latest piece in The Hill. The intro:

It’s official: The pendulum of #MeToo claims has now swung too far. When a friendly gesture with no sexual intent is labeled a reprehensible act that should be subject to public shaming and even disqualification from public office, it is time that we all recognize that we are starting to lose perspective.

Let’s be clear before I continue: I am not talking about the crass comments by the current President that it’s okay to “grab [women] by the pussy” or inappropriate sexual relations between then-President Clinton and an intern. Those are clearly beyond the pale. But the “allegations” against Joe Biden — that he touched Linda Flores’ shoulders and kissed the back of her head — are very different.

Biden is an affectionate guy, but in a grandfatherly sort of way. He explained: “In my many years on the campaign trail and in public life, I have offered countless handshakes, hugs, expressions of affection” and never intended to disrespect or cause any harm to Flores or anyone else. But Flores has gone so far as to say that Biden’s intent is irrelevant. Kelly Ann Conway has repeated this argument, saying that it does not matter what Biden intended.

Of course Biden’s intent is relevant. It’s the most important question here. That’s why Stephanie Carter, wife of secretary of Defense at the Pentagon, has had to publicly speak out about the picture of her and Biden that is making the rounds again. As Carter made clear, "The Joe Biden in my picture is a close friend helping someone get through a big day, for which I will always be grateful. So, as the sole owner of my story, it is high time that I reclaim it – from strangers, Twitter, the pundits and the late-night hosts."

Please read the whole thing and lemme know your thoughts...

"I'm saving her for Ginsburg."

That was your President, Donald Trump, when telling confidants his plans for Amy Coney Barrett.  I guess we should not be surprised by the crass comment.

From Axios:

As he was deliberating last year over replacing Supreme Court Justice Anthony Kennedy, President Trump told confidants he had big plans for Judge Amy Coney Barrett.

"I'm saving her for Ginsburg," Trump said of Barrett, according to three sources familiar with the president's private comments. Trump used that exact line with a number of people, including in a private conversation with an adviser two days before announcing Brett Kavanaugh's nomination.

***

Yes, but: There's no guarantee Trump will get another Supreme Court pick. It's very unlikely Ginsburg will retire while he’s in office. And though she's 86 and has had 3 bouts with cancer, she's on the bench now and appears healthy.

Barrett isn't a lock even if Trump does get to make another appointment, the people familiar with his thinking said.
Barrett has the inside track "in a very specific sense," said a source who's discussed Barrett with Trump. "She is the most known quantity right now amongst the women on the list. ... And she also has the inside track in the sense that she was kind of battle-tested for having gone through a confirmation already."
Between the lines: Trump changes his mind all the time, and Barrett would need to undergo a fresh round of vetting to review the rulings and public comments she's made since confirmed to the 7th Circuit Court of Appeals in 2017.

"The Supreme Court judicial selection process with the president is a very fluid one," said a source familiar with Trump's thinking on the subject. "He floats in and out of these discussions over a period of time."
Barrett's education didn't appeal to Trump, according to sources familiar with his thinking. She went to law school at Notre Dame, and Trump prefers candidates with Harvard and Yale on their resumes.

Why it matters: Trump has already pulled the court well to the right. If he gets to replace Ginsburg, especially with Barrett, he would cement a young, reliably conservative majority that could last for decades.

It’s closing time.

At 8:30am tomorrow morning in Judge Scola’s courtroom, the Esformes trial heads to closing arguments. It’s been a long and emotional trial.

It took all day to do the charge conference.

And the defense just filed this doozy of a motion of a dismiss, saying that because DOJ took the position that the entire ACA was unconstitutional. This would include, according to the defense, the provisions that criminalized health care fraud and kickbacks. Judge Scola is giving the government a chance to respond, but after closings.

***

In other (sad) news, Miami Beach legend Seymour Gelber passed away at 99. What an incredible life. The entire Herald obit is worth a read. Here’s the intro:

Former prosecutor, juvenile judge and Miami Beach Mayor Seymour Gelber was a local luminary. But by his own account, he was simply a streetwise kid from Brooklyn who used enough smarts and a little bit of luck to get ahead in life.

Gelber cut a self-effacing figure, disguising a shrewd legal mind that made him a heavyweight in jurisprudence who took his work seriously — but never himself.

“I never liked it,” he quipped about law school. “Never thought I would like to be a lawyer.”

His doubts faded as he ascended the ranks to become a respected jurist who shaped Miami-Dade’s juvenile justice system. He later served as mayor of Miami Beach while the city emerged from a tumultuous period rocked by corruption in the early 1990s. In the coda to his life of public service, Gelber provided a steady hand to guide City Hall.

Gelber died Thursday at age 99, his family said. He leaves behind a legacy that looms large in courtrooms and local government.

Can the President block Twitter users?

It seems like only this President would argue yes...

The Second Circuit seemed skeptical:

He had blocked many critics from his account, which prevents them from directly responding to his tweets.

U.S. District Judge Naomi Reice Buchwald ruled last May that this violated the users’ First Amendment rights, prompting Trump to unblock at least some of these accounts. The decision came in a lawsuit brought by the Knight First Amendment Institute at Columbia University and several Twitter users.

A lawyer for the U.S. Department of Justice, arguing for the president on Tuesday, urged three judges of the 2nd U.S. Court of Appeals in Manhattan to overturn Buchwald’s decision.

While Trump does use his Twitter account for government business, it was not a public forum, the attorney, Jennifer Utrecht, told the judges.

When Judge Barrington Parker asked why blocking users for their political views did not violate the First Amendment, Utrecht said blocking was akin to Trump walking away from a person trying to talk to him on the street.

The judges had fewer questions for Jameel Jaffer, the lawyer for the plaintiffs.

Jaffer said that although Twitter is a private platform, Trump was effectively inviting the public to participate in an open forum by using it for government purposes.

“The whole point of Twitter is to facilitate interactions between users,” Jaffer said.

“Barr and Rosenstein likely made correct legal decision on obstruction”

That’s the title of my piece in The Hill, examining the obstruction of justice statute and recent Supreme Court cases restricting prosecutors from attempting to broadly use it. The intro:

Mueller March Madness! No new indictments, no collusion, no obstruction charges, but no obstruction exoneration either. Upsets, favorites, and Cinderellas … all depending on your political point of view.
The 4-page summary letter of the Mueller report already has been subject to copious punditry, but very little has been said about the law regarding obstruction of justice. Many will criticize the attorney general as being politically motivated for not proceeding on obstruction charges, but his letter tracked the Supreme Court’s limitations on obstruction of justice prosecutions.

In light of a long line of Supreme Court precedent that has limited various obstruction statutes, even reversing convictions, the decision has legal support. To successfully bring obstruction charges, a prosecutor would have to prove that a defendant did more than lie, get others to lie, or even destroy documents.
The special counsel “did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction.” While the report “does not conclude that the president committed a crime, it also does not exonerate him.” Instead it left “any legal conclusions … to the Attorney General to determine whether the conduct described in the report constitutes a crime.”
Attorney General William Barr, along with Deputy Attorney General Rod Rosenstein, then “concluded that the evidence developed … is not sufficient to establish that the President committed an obstruction-of-justice offense.” The reasons cited in the short letter include:

• “the President was [not] involved in an underlying crime related to Russian election interference”;

• he did not act “with corrupt intent”; and

• there was no “nexus” with the president’s conduct “to a pending or contemplated proceeding.”

Of course none of us knows yet what facts the special counsel found. And it sure sounds like there is quite a bit of evidence “on both sides.” But even assuming some really bad facts for the president, the attorney general made the cautious — and most likely the right — legal decision not to go forward based on recent Supreme Court cases on obstruction.

Please click through and read the whole thing, and give me your thoughts.

A judge, an Olympic gold medalist, and a sports agent

Those were three of the defense witnesses in the Esformes trial on Friday before Judge Scola.  The trial is winding down now and the defense will likely rest this week.  The government will put on a short rebuttal and then closing arguments are expected as early as next Monday.  The gold medalist was Maurice Greene.

In other District news, the Southern District of Florida's Black History Month program was postponed due to the federal government shutdown. It has been rescheduled for Friday, March 29th, at 11:30 am.

Panelists include Dr. Keneshia Grant, Political Science Professor at Howard University, and Karen Andre, an Attorney and political strategist. The panel will be moderated by Magistrate Judge Lisette Reid.

RSVP by today to: FLSD_Program@flsd.uscourts.gov

Legal writing on display in latest en banc back and forth

This time it's a civil case and it's Judge Newsom for the majority, in which ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, JORDAN, BRANCH, and GRANT, Circuit Judges, joined.

Judge Rosenbaum filed an opinion concurring in part and dissenting in part, in which MARTIN and JILL PRYOR, Circuit Judges, joined.

Newsom frames the issue:

Faced with a defendant’s motion for summary judgment, a plaintiff asserting an intentional-discrimination claim under Title VII of the Civil Rights Act of 1964, the Equal Protection Clause, or 42 U.S.C. § 1981 must make a sufficient factual showing to permit a reasonable jury to rule in her favor. She can do so in a variety of ways, one of which is by navigating the now-familiar three-part burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by proving, among other things, that she was treated differently from another “similarly situated” individual―in court-speak, a “comparator.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258–59 (1981) (citing McDonnell Douglas, 411 U.S. at 804). The obvious question: Just how “similarly situated” must a plaintiff and her comparator(s) be?
To date, our attempts to answer that question have only sown confusion. In some cases, we have required a proper comparator to be “nearly identical” to the plaintiff. See, e.g., Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1185 (11th Cir. 1984) (citations omitted). In others, we have expressly rejected a nearly-identical standard. See, e.g., Alexander v. Fulton Cty., 207 F.3d 1303, 1333–34 (11th Cir. 2000). In still others, without even mentioning the nearly-identical benchmark, we have deemed it sufficient that the plaintiff and the comparator engaged in the “same or similar” conduct. See, e.g., Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam). And to make matters worse, in still others we have applied both the nearly-identical and same-or-similar standards simultaneously. See, e.g., Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). It’s a mess.
In an effort to clean up, and to clarify once and for all the proper standard for comparator evidence in intentional-discrimination cases, we took this case en banc and instructed the parties to address the following issue:

The Supreme Court has held that in order to make out a prima facie case of discrimination under Title VII of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, or 42 U.S.C. § 1981, a plaintiff must prove, among other things, that she was treated differently from another “similarly situated” individual. What standard does the phrase “similarly situated” impose on the plaintiff: (1) “same or similar,” (2) “nearly identical,” or (3) some other standard?

 More:

So, we are left to try to find the sweet spot between Lewis’s squishy not-useless standard and the City’s preferred nearly-identical standard. For reasons explained below, we hold that a plaintiff proceeding under McDonnell Douglas must show that she and her comparators are “similarly situated in all material respects.”

Judge Rosenbaum has this to say about the Majority:

The Majority Opinion tries to hide the “not onerous” elephant in the McDonnell Douglas framework by wishing it away as a mere “descriptor that doesn’t pertain to the substantive standard that governs the prima facie analysis.” Id. In the Majority Opinion’s view, then, the plaintiff’s burden to establish a prima facie case is “not onerous” with respect to something other than her burden to establish a prima facie case under the substance of the standards governing the prima facie case.
Wait . . . what?
Of course, whether standards are onerous or not governs whether the plaintiff’s burden on the prima facie case is onerous or not. It makes no sense to speak of the plaintiff’s prima facie burden as “not onerous” if the plaintiff must, in fact, satisfy an onerous substantive standard to meet her prima facie burden.

En banc fight

The issue is whether published panels orders should be binding on all subsequent panels.  The 11th Circuit denied en banc review.  But Judges Martin, Jill Pryor, and Wilson all wrote dissents from the denial of en banc review.  Judge Rosenbaum joined the dissent as well.

Judge Tjoflat wrote an opinion concurring in the denial of rehearing en banc, joined by Ed Carnes, William Pryor, Newsom and Branch.  Judge William Pryor wrote an opinion respecting the denial of rehearing en banc.  Judge Jordan wrote an opinion concurring in the denial of rehearing en banc.   Judge Marcus did not join any opinion but appears to have voted against en banc review.  In all, 90 pages of opinions.

Judge Tjoflat starts his off in a very aggressive tone:

Two dissents—those by Judges Wilson and Martin—have seized upon this direct appeal case as an opportunity to criticize our Court’s processing and publishing of orders on federal prisoners’ applications to file successive motions under 28 U.S.C. § 2255(h). Those dissents not only distort the factual context but also contain unfounded attacks on the integrity of the Court as an institution. So, regrettably, a response is required to set the record straight.
These two dissents focus on only prisoners’ post-conviction applications to file successive § 2255 motions. To place the subject matter of the dissents in context, it is necessary to describe first (1) the nature of the instant direct-appeal case and (2) how, after a direct appeal, a federal prisoner has yet another post-conviction opportunity to challenge his sentence through an initial 28 U.S.C. § 2255 motion. Second, I explain how Congress has strictly limited prisoners’ applications to file successive § 2255 motions that seek to challenge yet again a federal conviction and sentence that has long since become final.
Third, to correct the record about our Court’s published orders ruling on such applications, I provide the statistics that show how our Court has published only 1 to 2% of its orders on post-conviction applications to file successive § 2255 motions, even in 2016, the year on which the dissenters focus. Lastly, contrary to what the dissents claim, I discuss how all published orders of this Court are always subject to further review, such as the en banc poll in this very case. As explained below, there simply isn’t (nor has there ever been) any crisis about our Court’s published orders.

Judge Wilson responds in his conclusion:

Judge Tjoflat takes offense to my dissent, which sheds light on what I believe is an unfair process.5 Thoughtful and respectful disagreement is essential to our constitutional directive—“[t]he premise of our adversarial system is that appellate courts . . . [are] arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.). There is sometimes impassioned but collegial disagreement about the answers to those questions. But to turn substantive disagreement into a sweeping charge that contrary views are “attacks on the integrity of the court as an institution” is another thing entirely. It is the great respect for both this Court as an institution and the judicial role that leads members of this Court to dissent. And if anyone has the duty to raise concerns about the fairness of this Court’s process for resolving a category of appeals, it is a member of this Court. Consistent with that duty, I will continue to express disagreement when important issues are at stake. In another case, when Judge Tjoflat is in the minority, he will be entitled to do the same.

 And Judge Martin responds in her introduction:

Federal judges who decide cases in groups are bound to have differences of opinions about how those cases are decided. I’ve always understood that it is the discussion of those differing views that furthers the development and evolution of the laws and precedent that govern us all. My understanding does not appear to be unique, because if there is any member of this court who has not written a dissenting opinion, they have not been on this court for very long. As for this dissent, it is certainly not an attack on the institution of the federal courts, to which I have devoted the last eighteen years of my professional life. Rather, this dissent is intended to honor the role I have been given on this court. I understand my oath to require me to point out procedures or interpretations of the law that I view as hampering our ability to administer justice to the people who come before us. If I have distorted any fact in this opinion, I request that someone tell me what that fact is so that I can correct my mistake.
As my colleagues have pointed out, this case is the direct appeal of Michael St. Hubert, who was sentenced to serve a 32-year prison sentence in 2016. Although this is Mr. St. Hubert’s first opportunity to challenge his conviction and sentence in this court, his opportunity is limited by rulings this court has made in our habeas jurisprudence. So while Mr. St. Hubert is sitting in prison, his case has generated what I view as a healthy discussion of how it came to pass that he will be required to serve the entirety of a sentence that could not be legally imposed upon him if he were sentenced today. Six of the twelve of the active judges on this court have written opinions about Mr. Hubert’s case, so it seems to have merited a valuable exchange of viewpoints.
Michael St. Hubert was 37-years-old when he pled guilty to two firearms charges brought against him under 18 U.S.C. § 924(c). At that 2016 hearing, the District Judge explained that Mr. St. Hubert would not be a free man until after his 69th birthday. Then, in a sprawling opinion reviewing Mr. St. Hubert’s direct appeal, a panel of this Court affirmed Mr. St. Hubert’s convictions and 32-year sentence, holding that the offenses underlying his convictions—Hobbs Act robbery and attempted Hobbs Act robbery—qualify as crimes of violence under § 924(c)’s residual and use-of-force clauses. See United States v. St. Hubert (“St. Hubert II”)6, 909 F.3d 335 (11th Cir. 2018).
There are several problems with the panel opinion that I believe deserve the attention of the en banc Court. Judge Wilson and Judge Jill Pryor each cogently address some of those problems, and I am privileged to join their dissents in full.
See Wilson, J., dissenting op. at 50–57 (discussing the St. Hubert II panel’s troubling reaffirmation of its ruling that published panel orders from the second or successive context bind all panels of this Court); Jill Pryor, J., dissenting op. at 85–90 (arguing the panel erroneously held attempting a crime of violence itself equates to a crime of violence).
In writing separately, I echo some of my colleagues’ concerns. But beyond that, Mr. St. Hubert’s case offers a valuable illustration of why I’ve been concerned about how this Circuit has parlayed the limited authority given it under 28 U.S.C. § 2244(b) (statute governing second or successive habeas petitions) to stop thorough consideration of the issues presented by people like Mr. St. Hubert, even on his direct appeal. It is an aberration that a statute meant to govern the treatment of inmates who seek to file a second or successive § 2255 motion now serves as a tool for this Court to limit the review of prison sentences on direct appeal. I am convinced this aberration results from our Court failing to follow the plain mandate of 28 U.S.C. § 2244(b)(3)(C). Since this is his case, I will begin with Mr. St. Hubert.

When there is so much disagreement and it takes 90 pages to discuss whether there should be en banc review, why not have it?  The 11th Circuit has a long history of only granting en banc review when there is a defense-favorable issue.  This looks like another example of the most-government friendly appellate court in the country bending over backwards to just rule for the government.  Sigh.

Will Amy Comey Barrett be the next Supreme Court Justice?

If there is an opening during Trump's tenure, my money is on her.  The 46-year old judge on the 7th Circuit just wrote this dissent, arguing that felon-in-possession laws are unconstitutional as applied to non-dangerous felons.  It starts this way:

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun. In 1791—and for well more than a century afterward—legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.
18 U.S.C. § 922(g)(1) and Wisconsin Statute § 941.29(1m) would stand on solid footing if their categorical bans were tailored to serve the governments’ undeniably compelling interest in protecting the public from gun violence. But their dispossession of all felons—both violent and nonviolent—is unconstitutional as applied to Kanter, who was convicted of mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and billing Medicare accordingly. Neither Wisconsin nor the United States has introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe. Nor have they otherwise demonstrated that Kanter himself shows a proclivity for violence. Absent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment.

The conclusion:

If the Second Amendment were subject to a virtue limitation, there would be no need for the government to produce—or for the court to assess—evidence that nonviolent felons have a propensity for dangerous behavior. But Heller forecloses the “civic right” argument on which a virtue limitation depends. And while both Wisconsin and the United States have an unquestionably strong interest in protecting the public from gun violence, they have failed to show, by either logic or data, cf. Skoien, 614 F.3d at 642, that disarming Kanter substantially advances that interest. On this record, holding that the ban is constitutional as applied to Kanter does not “put[] the government through its paces,” see Williams, 616 F.3d at 692, but instead treats the Second Amendment as a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality opinion). I therefore dissent.

Meantime, in local news, Riverside House is trying to help recently released defendants reintergrate into the community.  In that vein, it is holding its 1st Annual Recognition Ceremony where AFPD Helaine Batoff and AUSA J.D. Smith are being honored for their work in Care Court.  Very cool!  Get your tickets here.

Review of Confessions of a Cocaine Cowboy

Friend of the blog Billy Corben is known for his uniquely Miami documentaries: The Cocaine Cowboys series, The U series, Dawg Fight, Screwball, and on and on.  They are all must-watch.  So too with his new venture — a play at the Colony Theatre in Miami Beach called Confessions of a Cocaine Cowboy.

The play tells the story of 80's Cocaine Traffickers Rivi (Jorge Ayala) and Griselda Blanco through the eyes of Rivi (played by Yancey Arias).  You’ll also get some of the story told by Detectives Singleton  (Stephen Anthony) and Diaz (Nicholas Richberg), as well as Blanco and Kathy Rundle (both played by Zilah Mendoza). All of the actors were really great, and Mendoza seamlessly goes back and forth between two leading parts.  Billy makes clear that he views both her characters as the villains in the story.  

Billy’s fast-paced persona jumps off the script: the play is funny, smart, and history lesson all at the same time. 

And in an only-in-Miami opening night, the audience included the actual detectives Singleton and Diaz, Blanco’s son (named Michael Corleone), Blanco’s lawyer, a former U.S. Attorney, a federal judge, and the mayor of Miami Beach.  The detectives and Corleone were recognized towards the end of the show to the crowd’s delight.  

Billy loves telling Miami stories and is at his best when he’s doing so.  When he and partner Alfred Spellman were first researching for Cocaine Cowboys and came across the Rivi depo, they joked about turning it into a play. You couldn’t make up some of the stories that Rivi tells, including the insane sex-phone scandal with some of the secretaries at the State Attorney’s office.  

Government rests in Esformes trial

I’m trying to stay away from blogging about this case, but it’s the biggest case going on in the District so here’s a little news. Five weeks in, the government rested. Judge Scola kicked some of the counts, but most will be going to the jury. But not just yet. The defense listed 150 witnesses.

So you wanna be a Magistrate Judge?

Well, step right up.  Judge Barry S. Seltzer is retiring on January 3, 2020, opening up a slot in Ft. Lauderdale.

Chief Judge K. Michael Moore has selected Jon Sale to lead the Magistrate Selection Committee.  That Committee will recommend 5 applicants to the District Court for the final selection.

Although this has not been made public yet, in the near future, the application will be available on the court website and then forward it to FLSD_MagistrateJudgeRecruitment@flsd.uscourts.gov

Good luck all.

Tony Gonzalez named First Assistant at U.S. Attorney's Office

Ariana Fajardo Orshan shook up the office last week, making lots of changes, including naming Tony Gonzalez as her First Assistant. 

Ben Greenberg, who had that role under Willie Ferrer, and then again under Orshan (while serving as Acting U.S. Attorney in between), is moving to Ft. Lauderdale as senior litigation counsel.