Update: Guilty verdicts in Broward federal healthcare trial

This is the one the blog covered earlier in the week here with Judge Cohn, defense attorney Joel Hirschhorn, and AUSAs Chris Clark/Lisa Miller.

 There were 23 counts and Sebastian Ahmed was found guilty of 18. The jury deliberated over the course of two days.

 One interesting story that I heard -- apparently Hirschhorn asked for a number of mistrials during the course of the trial because of the virus. And it was the defendant himself who objected on his own. Now that's insane. But there's no insanity defense left, sadly.

 Anyway, I think that was the last federal trial occurring in the country. It's anyone's guess when the next one will happen... not until late April at the earliest in this District.

Update on David Lat

We’re all rooting for David Lat, all around good guy and creator of the Above the Law blog.

He’s still on a ventilator.

And now, he’s receiving experimental medication, according to this Law.com article:

David Lat remains in critical condition, on a ventilator and sedated inside a Manhattan hospital, as doctors and his family wait to see over the next several days if the “very experimental” drug therapy he has been given to help him fight the coronavirus will work, said his husband on Monday afternoon.

“We won’t know for a few more days, whether he’s going to get better—whether this stuff [the drug therapy] is working or not,” said his husband of four and a half years, Zachary Baron Shemtob, in a phone interview.

“We’re hanging in there,” he said. “We’re just waiting and hoping.”

The initial sedation Lat was given early on Saturday, as he was put on a potentially life-saving ventilator because his oxygen levels had dropped, did not keep Lat from waking up on Saturday, “immediately opening his eyes, demanding a pen and paper and starting to write down questions, to get to the bottom of everything,” Shemtob said Monday.

“It was just David being David. It wasn’t that he was agitated, but, you know, he was curious and inquisitive,” Shemtob said. “He just wanted to be his inquisitive journalist self. It was shortly after being put on the ventilator.”

Here’s hoping for a speedy and full recovery.

One SDFLA trial carries on while the rest of the justice system has shut down (TWO UPDATES)

SECOND UPDATE — here’s the court order continuing all criminal trials that haven’t started yet until after 4/27.

FIRST UPDATE — in much more serious news, fellow blogger and friend David Lat (the creator of Above the Law) tested positive for COVID-19 and has been placed on a ventilator.  His condition is critical.  I know I speak for everyone when I say that we are thinking of him and his family and wish him the best and to pull through soon.  It’s just awful!

Original Post: As districts around the country issue orders postponing trials and as we await Chief Judge Moore’s order continuing all trials until after 4/27, there is one trial in Broward federal court that is pushing forward.

It’s one of the sober home (health care fraud) cases, U.S. v. Sebastian Ahmed.  The government is alleging $21 million in fraud.

Judge Cohn is presiding.

Chris Clark and Lisa Miller for the government.

Joel Hirschhorn for the defense.

The defendant is in custody.

The trial started back on February 20 and was only supposed to last 3 weeks.  On Monday, they will start week 6 of the trial!  The defendant testified for a few days last week. And the parties closed on Friday.

I understand that the defense has moved a number of times for mistrial based on the virus, but those motions have been denied. I’ve been told that Judge Cohn asked the jurors if they wanted to continue and they said yes.

The Sun-Sentinel covered opening statements back when the case started, before everyone realized how bad the virus was going to be:

“It’s one thing to have sloppy billing practices," Joel Hirschhorn, Ahmed’s defense attorney, said during opening statements. "It’s another for it to be fraud.”
***
The filings also allege that [the defendant’s brother, who pleaded guilty] Ali Ahmed fathered a child with a woman he met while she was seeking recovery at the treatment center and that he provided her with heroin and alcohol while she was pregnant.
“Did they turn a blind eye to unwanted and random sex?” Hirschhorn asked during opening statements.
“Yes,” the lawyer answered, before going on to argue that his client was more focused on the business and that Sebastian Ahmed "did not understand the human side” of the operation.

The Herald covered the sentencing of the brother and other co-defendants:

On Tuesday, Ali Ahmed, 38, the former operations director and co-owner of Medi MD in Davie, was sentenced to 10 years in prison and ordered to pay $4.2 million in restitution to the bilked private health insurers.
Prosecutors urged the judge to give Ahmed almost the maximum sentence of 20 years, saying he impregnated a woman with a heroin addiction who was living in a “Serenity” sober home and plied her with the drug. When their child was born, he tested positive for heroin and other drugs.
Assistant U.S. Attorney Christopher Clark scoffed at the idea that Ahmed sought as little as five years in prison while citing his devotion to his son as a basis for leniency, highlighting that he was “providing heroin to his girlfriend who was bearing his son.”

In the end, U.S. District Judge Federico Moreno recognized the “vulnerability” of the addicts who were lured to the brothers’ chain of sober homes and substance abuse facilities in Broward. But Moreno also said Ahmed pleaded guilty and accepted responsibility, qualifying him for a potential guideline sentence between 9 and 11 years. So, Moreno split the difference.

Ahmed, standing alongside his attorney, Bradley Horenstein, said: “I am very sorry for the damage I have done to my family. My son will grow up without a father because of me.”

All SDFLA jury trials to be continued until at least 4/27

The judges had a meeting today and agreed on this date.

Latest update from SDFLA

Chief Judge Moore issued the following order, which in effect puts the District on "telework" except for a skeleton crew.

We should be releasing all non-violent offenders on personal surety bonds immediately

It's amazing to me that this hasn't happened yet.  Some magistrate judges are asking for lawyers to revisit bond issues.  Below is one in the Northern District of California.  Come on judges (and prosecutors), let's be proactive and leaders on this issue.

11th Circuit procedures for oral argument week of March 30

Two choices — submit on the papers or do it by phone. The panel is Carnes, Marcus, and Luck. Here’s the email that went out this morning (I have an argument on 4/2).

Supreme Court and BOP closed, other updates

No oral arguments for the Supremes in March.

And BOP is closed for 30 days -- no visits of any kind and no movement.

As of this morning, the 11th Circuit is still planning on conducting oral arguments the week of March 30. 

District Court is still open but judges are being very good about continuing matters and trying to help. 

SDFLA cancels jury trials scheduled to begin March 16 until March 30 (UPDATED WITH ORDER)

Update -- here's a link to the order.

They won't occur until "further order of the Court."

"All trial-specific deadlines in criminal cases scheduled to begin before March 30, 2020, are continued pending further order of the Court.  Individual judges may continue trial specific deadlines in civil cases in the exercise of their discretion."

There's more to the Order, but no link yet on the Court's webpage.  As soon as there is one, I will post it.

Of note: "Judges are strongly encouraged to conduct court proceedings by telephone or video conferencing where practicable."  But criminal matters "such as initial appearances, arraignments, detention hearings, and the issuance of search warrants" before Magistrate Judges "shall continue to take place in the ordinary course."  And Grand Juries are still going forward.

Federal courts around the country have started to suspend jury trials and other hearings

The SDNY is an example.  From the NY Post:

The federal court district that covers Manhattan, the Bronx, Westchester County and several other New York counties will suspend jury trials that are scheduled to begin next week in an effort to stanch the spread of coronavirus, court officials said Thursday.

The suspension comes as the Southern District of New York attempts to limit the number of people entering federal courthouses in Lower Manhattan and in Westchester County amid the outbreak, District Executive Edward Friedland said. The court suspended non-case-related activity Wednesday.

There are also issues with prison visits in that district. The Post also covers the horrible conditions at MCC in New York with Avenatti:

“Mr. Avenatti’s cell was infested with rats. The jail reeks or urine. As of yesterday, Mr. Avenatti had not shaved in weeks. Meanwhile, across the country, public officials are declaring states of emergency as a result of the spread of the coronavirus,” [Scott] Srebnick wrote.

“Health officials are uncertain of the actual risks. And, by all accounts, a prison facility poses among the highest risks of spread of infection,” he added.

“Given the uncertainty regarding the coronavirus, the ease with which it spreads, and the documented unsanitary conditions at the MCC-New York, I am requesting that the … background interview be adjourned,” he wrote.

There are lots of rumors floating around about what SDFLA is going to do and what is going to happen with FDC. (One rumor is that social and legal visits are going to be shut down for a few weeks.) Also unclear is whether the 11th Circuit will go forward with oral arguments.  As of now, everything is still a go. I will post updates as soon as I have official word.

News & Notes (UPDATED)

UPDATED -- the 11th Circuit has canceled its judicial conference.  From Ed Carnes:

Because of the evolving threat represented by the outbreak and spread of the
Coronavirus (COVID-19) in the United States and in the State of Georgia, and in
view of the warnings issued by the Center for Disease Control, as well as by
Governor Kemp, I have decided to cancel the Eleventh Circuit Judicial
Conference, which had been scheduled to be held May 6 through May 9, 2020 in
Atlanta. Although circuit judicial conferences provide a good opportunity for
judges and lawyers to learn from each other and from speakers, I concluded that
the cancellation was necessary and prudent in the interest of the health of all of
those who would have attended the conference.
Given the importance of these conferences to the bench and Bar, we hope to
be able to reschedule this conference for 2021 if circumstances permit.

1. Harvey Weinstein sentenced to 23 years. From the NY Times:

Two of Mr. Weinstein’s victims gave emotional statements about the damage he had done to them. Miriam Haley, who testified Mr. Weinstein forced oral sex on her in 2006, said he had forever altered her life, crushing her spirit.

“He violated my trust and my body and my personal right to deny sexual advances,” she said.

Given a chance to speak, Mr. Weinstein suggested in a rambling speech to the court that he thought his relationships with his victims were consensual.

“We may have different truths, but I have remorse for all of you and for all the men going through this crisis,” he said, addressing his accusers.

He added: “I really feel remorse for this situation. I feel it deeply in my heart. I’m really trying, I’m really trying to be a better person.”

2. The Herald is covering the cert petition Miladis Salgado, which the blog posted about here back in January. From the Herald:

Now, Salgado is asking the U.S. Supreme Court to make her whole for the misguided May 11, 2015, raid on her home, arguing that a forfeiture law allows victims of wrongful money seizures to recover attorney’s fees in addition to their actual losses from the government. The outcome of a petition brought by the 57-year-old naturalized U.S. citizen from Colombia could affect thousands of people nationwide whose money is seized by federal agencies without criminal charges ever being filed against them.

“This is a game that the Justice Department plays — it’s a war of attrition,” said lawyer Justin Pearson with the Arlington, Va.-based Institute for Justice, which is representing Salgado free of charge. “This is a cash grab by the government to take money away from people who don’t have the ability to fight back.”

The U.S. Supreme Court is expected to decide in April whether to hear Salgado’s petition. After the solicitor general for the Trump administration signaled that he was not going to respond to her claim, the high court ordered his office to do so. In a recent filing, Solicitor General Noel Francisco asserts that Salgado had not “substantially prevailed” against the government, reasoning that when the feds returned her money, they did not lose the right to refile their civil forfeiture case and therefore did not owe her attorney’s fees.

3. The 11th Circuit in a 2-1 decision today said that the state prison system did not violate the rights of a transgender inmate by not treating her appropriately. This decision reversed a lengthy opinion by the district court. Newsom wrote the majority, which was joined by a visiting Alabama district judge. Judge Wilson wrote the dissent. I will summarize the opinion shortly, but it's definitely worth a read. Here's a Herald article discussing the issue of transgender inmates, including Reiyn Keohane (the inmate as issue in this case) back from December.

SDFLA notice regarding Covid19

This notice went out from the clerk’s office yesterday:

U.S. District Court for the Southern District of Florida
If you have traveled to any of the following countries within the last 14 days:
ITALY
IRAN
SOUTH KOREA
CHINA
Or if you reside with or have had close contact with someone who has
traveled to one of the above areas within the last 14 days
Or if you have been asked to self-quarantine by any hospital or health agency
Or if you have been diagnosed with, or have had contact with, anyone who has been diagnosed with COVID-19
Please advise the Court Security Officer prior to entering the Screening Area.
If a person answers yes to any of the above questions, they shall be denied entrance to the courthouse and be given the attached sheet of paper directing them to whom they should speak.
If you have any questions or concerns, you should contact Angela E. Noble, Kevin Kappes or Brandy Lonchena at 305-523-5001.
Thank you for your immediate attention to this matter.

If you have been denied entrance to the courthouse: If you are represented by an attorney, please contact your attorney.
If you are a juror, please contact the
Jury Department
(305) 523-5190
For District Court matters, please contact Angela Noble, Clerk of Court
(305) 523-5001
For Bankruptcy Court matters, please contact Joe Falzone, Clerk of Court
(305) 714-1800
For Probation matters, please contact Probation
(305) 523-5331
For all other matters please contact
Angela Noble, Clerk of Court
(305) 523-5001

You be the judge: What is an appropriate sentence for Harvey Weinstein?

The prosecutors are asking for the Court to consider 11 single-spaced pages of uncharged and unproven conduct.

The defense will be filing its memo shortly.

USA Today has this summary:

Harvey Weinstein's sentence for his conviction on two sex crimes should reflect his "lifetime of abuse" as shown at his trial and in 36 other cases of sexual harassment and assault, workplace abuse and even physically assaulting a reporter, Manhattan prosecutors said in a letter to the trial judge released Friday.

The 11-page letter from Assistant District Attorney Joan Illuzzi was sent to Judge James Burke in advance of Weinstein's sentencing on March 11, when prosecutors are expected to make an oral statement in court about the sentence.

The trial evidence, the testimony of the six accusers who took the stand, and additional allegations outlined in the letter, Illuzzi said, "show a lifetime of abuse towards others, sexual and otherwise."

She asked the judge to "impose a sentence that reflects the seriousness of defendant's offenses, his total lack of remorse for the harm he has caused, and the need to deter him and others from engaging in further criminal conduct."

Weinstein was convicted Feb. 24 of third-degree rape and first-degree sexual assault involving two women, and was acquitted of three more serious charges. He could be sentenced to prison for a term ranging from five years to 25 years.
***

"As this court is well aware, in imposing what it deems to be a fair and just punishment, a sentencing court is not limited to the evidence at trial," Illuzzi wrote, citing precedent to argue that the judge has "wide discretion to consider all circumstances that shed light on a convicted person's background, history and behavior" in considering a sentence.

"Chief among the information considered at sentencing is the defendant's history of 'misconduct, whether or not it resulted in convictions,' " Illuzzi said, citing precedents in several federal cases.

Justice Roberts is fired up...

...at Sen. Schumer for his comments that Justices Gorsuch and Kavanaugh "have released the whirlwind and ... will pay the price." Roberts responded: "Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter."

I wonder where all of that whirlwind talk got started.  Here's Kavanaugh to the Dems during this confirmation hearing: "Since my nomination in July, there’s been a frenzy on the left to come up with something, anything, to block my confirmation. You sowed the wind and the country will reap the whirlwind."

Of course, Trump makes it a daily occurrence to criticize judges across the country. Trump has led the charge with attacks against the judiciary, so it's unfortunate for the Democrats that Schumer went there.  And it's too bad that the Chief decided to single out and decry this (wrong and awful) attack instead of the daily right wing attacks.  They are all wrong and need to stop.

What's the appropriate sentence for a 22-year old austic man who stalked and taunted the families of the Parkland victims?

This is a tough one.

The sentencing guidelines were 57-71 months.  The statutory maximum for each of the 4 counts of conviction was 5 years (60 months).  The defense asked for a downward variance and a residential program to address his mental issues.  The prosecutor asked for an upward variance to 20 years! (The stat max for each count stacked on top of each other). Of course we all feel for the victims, but 20 years is more than many rapists, murderers, and terrorists get.

After a lengthy sentencing, Judge Ruiz issued a guideline sentence of 66 months.

A summary from the New York Times:

A 22-year-old California man was sentenced to 66 months in federal prison on Monday after cyberstalking and threatening to kidnap relatives of those killed in the 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla., federal prosecutors said.

The man, Brandon Michael Fleury, impersonated the confessed gunman on social media for three weeks to threaten and taunt survivors of the shooting and victims’ loved ones. He was found guilty in October of three counts of cyberstalking and one count of transmitting a kidnapping threat.

Sabrina Puglisi, Mr. Fleury’s lawyer, said she was disappointed that the judge did not place Mr. Fleury in a residential treatment program, given that he has autism spectrum disorder. However, she said, she was pleased the judge’s sentence was much lower than the maximum 20 years that Mr. Fleury had faced.

“The judge made a strong argument that this type of trolling behavior on the internet is not OK, not acceptable and it won’t stand,” Ms. Puglisi said in an interview on Monday. “He wanted to send a message to deter people from doing the same.”

What will happen when FDC or other federal prisons get coronavirus?

Will the corrections officers (who are already short staffed) show up to work?
Will prisoners be locked in their rooms 24-7?
Are the feds ready?

The virus is already in Chinese prisons.  From the LA Times:

Prisons are an ideal environment for viral transmission, according to medical experts. Doctors recommend keeping a distance of at least 6 feet from any sick person to avoid contagion from respiratory droplets when they cough or sneeze. Confirmed cases should remain in complete isolation, with the door closed.
“You aren’t going to see bottles of Purell. You’re going to see people existing very close together, which aids transmission,” said Brandon Brown, an epidemiologist at UC Riverside.
Perhaps the closest comparison to the prison scenario would be cruise ships, he said, where large populations living in close quarters have illustrated the virus’ explosive spread. Scientists have another concern: feces. In addition to the virus surviving for hours on surfaces — handrails, elevator buttons and even exchanged business cards — researchers suspect major contagion occurs in shared bathroom settings.

"They want me to lie. They’re yelling at me.”

That was Rick Singer, the ringleader and main snitch in the Varsity Blues case describing what the case agents wanted him to do.  That should make your blood boil of course.  But the cover-up by prosecutors is just as bad, not disclosing this obvious Brady material until after twenty of the defendants have already pleaded guilty and served their time. It's just outrageous.

From the NY Times:

Since the mastermind of the college admissions scandal, William Singer, pleaded guilty last March to racketeering and other charges, he has been mostly offstage, paddleboarding and enjoying the California sun while many of his former clients head off to prison.

But this week, Mr. Singer, who admitted to organizing a scheme to cheat on tests and bribe college coaches to get students into elite schools, was again the center of attention. Lawyers for the actress Lori Loughlin and other parents said that notes Mr. Singer had taken while cooperating with federal investigators showed that they pushed him to lie to incriminate his clients.

They said that Mr. Singer’s own words suggested that parents did not knowingly engage in a conspiracy to bribe coaches, as prosecutors have argued, and they accused prosecutors of sitting on the evidence for months in violation of their legal obligations.

“Loud and abrasive call with agents,” Mr. Singer wrote on Oct. 2, 2018, in a note with several typos and misspellings. “They continue to ask me to tell a fib and not restate what I told my clients as to where there money was going - to the program not the coach and that it was a donation and they want it to be a payment.”

He added that the agents were essentially “asking me to bend the truth.”

In a hearing on Thursday, a federal judge called the allegations of prosecutorial misconduct “very serious” but did not rule on the issue, directing the parties to submit further motions.

Ms. Loughlin’s lawyers had written in a court filing on Wednesday that the evidence in Mr. Singer’s notes was “devastating to the Government’s case and demonstrates that the Government has been improperly withholding core exculpatory information, employing a ‘win at all costs’ effort rather than following their obligation to do justice.”

I previously wrote about how prosecutors were trying to bully Aunt Becky into pleading guilty.  Turns out they were doing much worse!

So what will happen now? The judge took various motions under advisement.  But the sad truth is that the likelihood that anything will happen to the prosecutors or agents who engaged in this misconduct -- or to the case itself -- is very low.  The right result would be to issue severe sanctions, including dismissal.  That's the only way that we are going to stop prosecutorial misconduct, which is a real problem for the criminal justice system.

The judiciary exists to act as a check on the executive branch.  But unfortunately we don't see much of that at all when it comes to misconduct. Instead, we hear: don't do that again; it wasn't intentional; there was no prejudice; it was harmless; and so on. So prosecutors and agents keep doing it.

At sentencings every day in every courtroom around the country, we hear about deterrence and why severe sentences are needed.  Let's be consistent with prosecutorial wrongdoing.

Roy Altman speaks for new judges at SCOTUS

Very cool honor for Judge Altman who spoke to and on behalf of the new judges (class of '19).  Justice Thomas spoke for the Court, and Justices Sotomayor, Alito, and Kavanaugh attended. Here are some pictures:

Elections matter...

...especially for the Supreme Court.

This week, in a 5-4 opinion, the Court found that a Border Patrol Agent cannot be sued for shooting a teenager from Mexico in the face.

Immune.

Insane.

Inhumane.

And of course it’s Alito writing the opinion. Totally on brand.

The opinion is Hernandez v. Mesa, available here.

The holding in Bivens v. Six Unknown Federal Narcotics Agents does not extend to claims based on a cross-border shooting.

Justices Thomas and Gorsuch say in a concurrence that they would do away with Bivens altogether!

Alito really is the most partisan Justice we have.

And it’s not even close.

Don’t @ me.

Thank goodness for Justice Ginsburg who writes the dissent and explains that allowing the suit to go forward would not impact national security or any other “concern” that the majority has.

It's Judge Newsom, not Newsome

Judge Newsom has quickly become known as one of the more entertaining writers on the 11th Circuit.  He even makes IP litigation fun.  From the intro:

Royal Palm Yacht & Country Club, a residential community in Boca Raton, Florida, is home to multimillion-dollar mansions, a championship golf course, and even a private marina. It’s also home, as it turns out, to the contentious real-estate rivalry that spawned this trademark litigation.
Royal Palm Properties, a real-estate broker whose specialty is buying and selling homes in Royal Palm Yacht & Country Club, sued its competitor, Pink Palm Properties, for infringing its registered service mark on the phrase “Royal Palm Properties.” Pink Palm Properties counterclaimed, challenging the mark’s validity. A jury in the U.S. District Court for the Southern District of Florida upheld Royal Palm Properties’ mark but found that Pink Palm Properties hadn’t infringed it. The district court, though, overturned the verdict in part, granting Pink Palm Properties’ renewed motion for judgment as a matter of law and ordering the cancellation of Royal Palm Properties’ mark. The question before us is whether the district court correctly flipped the jury’s verdict and granted judgment as a matter of law on Pink Palm Properties’ trademark-invalidation counterclaim.

We hold that the district court erred. To be entitled to judgment as a matter of law, Pink Palm Properties would have had to make quite the showing at trial—such that no reasonable jury could have found that it failed to prove grounds for cancelling Royal Palm Properties’ mark. Based on our careful review of the record, we conclude that Pink Palm Properties didn’t meet this high bar. On neither of its two grounds for cancellation—that the “Royal Palm Properties” mark (1) is not “distinctive” and (2) is “confusingly similar” to previously registered marks—did Pink Palm Properties prove, decisively, that it had won the day. We therefore reverse the district court’s decision to overturn the jury’s verdict and invalidate Royal Palm Properties’ service mark.

I enjoyed this discussion and the footnote especially:*

Pink Palm Properties certainly satisfied the first two Coach House requirements. The “Royal Palm Properties” mark clearly “resembles” the “Royale Palms” marks—the spelling of the dominant words is nearly identical8—and the “Royale Palms” marks were registered several years before the “Royal Palm Properties” mark.

8.Welcome to the author’s life. Compare “Newsom” with “Newsome.”

* Welcome to this author's life as well.  Compare "Markus" with "Marcus."

Stone sentenced to 40 months

The criminal justice world, as well as the political world, are all talking about the Roger Stone sentence.  40 months...

Rumpole has a nice post about it here, calling the sentence too harsh.  He's right of course.  The problem is that so many people see it as lenient because the sentence was below the Sentencing Guidelines.  And that's the problem.  Over 3 years (YEARS!) in prison for a first-time non-violent and elderly offender is not lenient by any stretch.

We've become so accustomed to the Sentencing Guidelines that people -- including judges -- see downward variances as some sort of break.  But once we realize that the guidelines are just made up numbers, which are not based on anything, and that they have completely warped our system into jailing more people for longer amounts of time than any other country in the world, then we will see that downward variances are no break and 3+ years is lenient. 

Maybe we should not call them "downward variances."  That implies that the judge should start off with the guidelines.  Any ideas?

Trump commutes sentence of Judith Negron

In one of the worst examples of the trial tax in this District and around the country, Judith Negron -- a first-time non-violent offender -- was sentenced to 35 years (35 years!!!) in prison for Medicare fraud.  President Trump commuted her sentence yesterday to time served (8 years).  Most people are asking what her connection is to the President, and that's the problem with his commutations.  They are being viewed as individual driven instead of being driven by the unfairness of the system (which is the same criticism of his Stone tweets).  I just wish Trump would use this opportunity to grant more commutations and make some broader statements about the issues with our system.  Let's fix the trial tax and the Sentencing Guidelines.

Here's the WH press release on Negron:

Judith Negron is a 48-year-old wife and mother who was sentenced to 35 years in prison for her role as a minority-owner of a healthcare company engaged in a scheme to defraud the Federal Government.  Ms. Negron has served 8 years of her sentence and has spent this time working to improve her life and the lives of her fellow inmates.  Her prison warden and her counselor have written letters in support of clemency.  According to her warden, Ms. Negron “has always shown herself to be a model inmate who works extremely well with others and has established a good working relationship with staff and inmates.”  This grant of clemency is supported by the Clemency for All Non-Violent Drug Offenders Foundation, Dan Schneider, Matt Whitaker, Adam Brandon, Kevin Roberts, Brett Tolman, John Hostettler, and Alice Johnson, among others.

Roberto Martinez takes on his former colleagues in this Miami Herald op-ed

There are a bunch of former prosecutors calling for AG Bill Barr to resign in light of the recent change in Roger Stone's sentencing recommendation. Former U.S. Attorney Roberto Martinez -- who worked under Barr during the Bush presidency -- did not sign the letter even though he disagreed with Trump's public statements about the Stone sentencing, and he explained why in this Miami Herald op-ed:

Neither the signers of the letter — nor I — have any first-hand knowledge of the facts, the law and the various policy considerations involving the appropriate punishment that were considered by the DOJ and Barr regarding Stone’s sentencing. Neither the signers — nor I — know what conversations took place, when or where they took place, who participated in them, who said what and what issues where considered.

Yet, the letter makes a lot of assumptions and accusations about Barr and his decision that no lawyer or prosecutor (former or current) should ever make without knowing the details. Certainly, none of us would want a prosecutor to make accusations about one of our clients similarly uninformed. And yet, the letter’s signers demand that Barr resign. It is dangerous to make accusations about anyone without fully knowing the facts. Former prosecutors, some of whom are now in the private sector representing clients before the DOJ, probably know that better than anyone.

Meantime, the Federal Judges' Association has called an emergency meeting to address the Stone affair.  From the USA Today:

A national association of federal judges has called an emergency meeting Tuesday to address growing concerns about the intervention of Justice Department officials and President Donald Trump in politically sensitive cases, the group’s president said Monday.

Philadelphia U.S. District Judge Cynthia Rufe, who heads the independent Federal Judges Association, said the group “could not wait” until its spring conference to weigh in on a deepening crisis that has enveloped the Justice Department and Attorney General William Barr.

“There are plenty of issues that we are concerned about,” Rufe told USA TODAY. “We’ll talk all of this through.”

This strikes me as strange.  I bet Judge Amy Berman Jackson does not like the idea that the association is having an emergency meeting about a pending case before her.

It will be interesting to see what happens at the Stone sentencing now, as well as the Michael Avanetti sentencing (which is scheduled for June). In both cases, I'm for a sentence way under the made-up Sentencing Guidelines. I just don't think we need to be sentencing non-violent first-time offenders to prison simply because they decided to go to trial (or really for any other reason). My take on the Stone sentencing is here.

Valentine's Day news and notes

1. The SDFLA Court will be celebrating Black History Month with a presentation on "Effective Legal Activism" on February 24 at 11:30 at the Ferguson Courtroom, 13th Floor. RSVP by 2/18/20 to: FLSD_Program@flsd.uscourts.gov

2. The 11th Circuit judges went at it in a student loan case this week. Judge Martin called Judge Pryor's reading of the statute at issue as "a grammatically incoherent reading." From Law.com:

An opinion affirming that one of the nation’s leading federal student loan guaranty agencies isn’t liable for aggressive tactics it employed over a nonexistent debt has ignited the second textualist split this week at the U.S. Court of Appeals for the Eleventh Circuit.

The ruling published Friday and written by Judge William Pryor Jr. of the U.S. Court of Appeals for the Eleventh Circuit provoked a strong dissent from fellow Judge Beverly Martin of the U.S. Court of Appeals for the Eleventh Circuit. Martin chastised Pryor and Judge Gregory Katsas of the U.S. Court of Appeals for the D.C. Circuit, who joined with Pryor in affirming dismissal of the case, arguing that their findings could “only be achieved by a grammatically incoherent reading” of the statute.

Pryor took issue with Martin’s critique in his majority opinion, writing, “Our dissenting colleague is wrong.”

Katsas was appointed by President Donald Trump in 2017. Pryor, a George W. Bush appointee, has twice been on Trump’s short list for the U.S. Supreme Court. Martin was appointed by President Barack Obama.

3. Last week, Judge Robin Rosenberg was assigned the Zantac MDL, one of the largest in MDL history. It's a big deal in civil circles. The MDL panel said Rosenberg was “an able jurist who has not yet had the opportunity to preside over an MDL.”

“Let's use Roger Stone's case to fix our broken justice system“

The the title of my latest piece in The Hill, which you can access here.  Please let me know your thoughts.  Here’s the intro:

Every day in courthouses around the country, federal prosecutors ask for grossly outrageous and offensively high sentences. The United States puts more people in prison for longer amounts of time than any other country in the world. And it’s not just violent, repeat offenders who are getting the monster sentences. Those whopping sentences are also doled out like candy to first time, non-violent defendants.

That’s why it should have come as no surprise when the prosecutors handling Roger Stone’s case (involving an elderly first-time non-violent defendant) recommended a sentence of 7-9 years.

As wrong and over the top as that recommendation was, it was not unusual in the slightest. What was unusual was President Donald Trump’s Department of Justice coming in and saying that the recommended sentence was “excessive and unwarranted” and that the sentencing guidelines do not “serve the interests of justice in this case.”

People are rightly upset that DOJ is saying that the sentencing guidelines apply to everyone — except the president’s friends. That’s a huge problem, and it’s no wonder that the prosecutors handling the case resigned. How can they go into court every day and ask for monster sentences across the board except for FOT (Friends of Trump)?

Breaking -- Andrew Brasher confirmed to the 11th Circuit

Another lighting fast confirmation.  The vote was 53-43.

BREAKING -- Judge Federico Moreno to take senior status.

Wow, this is big news.

Judge Moreno has been the heart and soul of this Court for 30 years.  He's been the Chief and on Trump's short list for the Supreme Court. 

He gave his notice today that he will take senior status when his replacement is confirmed or on July 17, 2020 (he has thirty years of service as of July 16), whichever comes first.

Here is the official letter:

I will write more about Judge Moreno shortly, but a big shout out to him for his service to the bar and the community.

54 cellphones, 47 amphetamine pills...

... 25 grams of an amphetamine infused leafy substance, two syringes filled with liquid amphetamine, one opiate-infused paper strip, at least nine cellphone chargers and one 11.5-inch, dagger-like shank fashioned from a piece of copper pipe.

That’s what was found during a recent 30-day sweep at FCI-Miami, according to the Sun-Sentinel. More:

On Jan. 24 this year, unrest broke out in the camp. According to corrections officers who work at the facility, the discovery of more than 50 prohibited cellphones in a single day triggered a lockdown, which in turn led to an inmate strike.
The labor strike, according to corrections officers, included a mass refusal by inmates to eat in the facilities’ food hall.
A Jan. 25 police report of a possible escaped inmate, documented in Federal Bureau of Prison’s documents, only increased tensions. A headcount showed there was no escape, but corrections officers suspect it was someone actually breaking into the compound to deliver contraband.

There have been lots of reports about the lockdown at FCI-Miami. Inmates thinking they were serving time at a low or a camp have been subjected to conditions more like a medium or high.

“Do you have a lot of trouble answering questions in life or just when you come to the court?”

That was Federal Circuit Judge Raymond Clevenger to a DOJ lawyer when she wouldn't answer hypotheticals during oral argument on PACER fees. From Politico:

A lawsuit accusing the federal court system of treating nearly a billion dollars in online access fees like a slush fund got a favorable reception on Monday from an appeals court, where the main question that judges seemed interested in debating was how to calculate the extent to which the public was bilked.

A three-judge panel of the U.S. Court of Appeals for the Federal Circuit heard arguments on a class-action lawsuit filed in 2016 that picked up on federal judges’ claims that the user fees from the so-called PACER system were being used to broadly subsidize the courts’ information technology budget, rather than being used solely to cover costs related to making court records available online.

At issue is about $145 million in fees that users pay each year to search for and download federal court filings. The courts typically charge 10 cents a page for electronic copies of those filings. It’s a meager amount, but the bills can add up to hundreds or thousands of dollars a month for law firms, electronic publishers, news organizations and nonprofit groups that use the records for a wide variety of purposes.

Two of the judges, Raymond Clevenger and Todd Hughes, sounded inclined to allow the lawsuit to continue over the objections of the Justice Department, which argued for dismissal of the case.

A Justice Department attorney, Alisa Klein, told the judges that Congress’ directions about what costs could be recovered through user fees were too vague to be the basis for a suit. She also said the alleged overcharges were impossible to calculate because surpluses in the accounts were carried from year to year, with the courts requesting appropriations to make up for shortfalls.

“That’s unknowable,” she said.

Clevenger asked, incredulously, whether the Justice Department was contending that PACER users couldn’t get refunds even if the courts incurred “knowingly, blatantly illegal” expenses on the accounts, like new curtains for the Supreme Court or “gold-plated toilets” for judges. He also raised the possibility that, under the government’s broad interpretation of the law, courts could use the PACER funds to publicize the menu in the Supreme Court cafeteria.

Klein initially resisted those hypotheticals, prompting a barbed response from the judge: “Do you have a lot of trouble answering questions in life or just when you come to the court?”

We really need judges to step up prosecutorial misconduct...

...because no one else will.  The legislature in New York tried, setting up a commission on prosecutorial misconduct.  But it was struck down!  From the AP:

A New York judge has struck down a law that would have created a state commission tasked with investigating prosecutorial misconduct.

Justice David Weinstein declared the law unconstitutional in a decision issued Tuesday, marking a win for a prosecutors’ association that sued over the statute.

The law would have set up an 11-member commission to probe misconduct claims against New York state prosecutors. The panel would have been appointed by the governor, Legislature and New York’s chief judge.

Gov. Andrew Cuomo, a Democrat, first signed the law in 2018 and later approved amendments after constitutionality concerns were raised.

Supporters say the law would set up a new way of stopping prosecutors who abuse their power. Cuomo’s office has touted the commission as the nation’s first and said prosecutorial misconduct can lead to wrongful convictions.

The law would have allowed the commission to censure or admonish a prosecutor. It also gave the panel the ability to recommend to the governor that a prosecutor be removed,

Prosecutors have called the law unconstitutional.

In their lawsuit, the District Attorneys Association of the State of New York argued the measure violated the separation of powers and gave state lawmakers too much oversight over independent district attorney’s offices.

Sigh.

Patrick Mahomes is going to Disney World.

And so are all the federal and state judges (and lawyers who want to be judges) to attend the Federalist Society meeting, which was this weekend in Orlando.

.@PatrickMahomes is going to Disney World. And he's bringing everybody. #ChiefsKingdom #SBLIV pic.twitter.com/D4VgzQw9Yx

— NFL (@NFL) February 3, 2020

But should they?  There's a proposal to limit judicial membership in the organization.  Justice Thomas, who was at the meeting, spoke out against the proposal (via WSJ):

Supreme Court Justice Clarence Thomas questioned a proposed ethics rule that would discourage federal judges from belonging to the conservative Federalist Society and its liberal counterpart, the American Constitution Society.

Justice Thomas has long participated in events sponsored by the Federalist Society, which has groomed many of President Trump’s judicial nominees.

“And now I think they’re about to silence the Federalist Society. So I guess I can’t come back,” Justice Thomas quipped Friday at Federalist Society convention at Walt Disney World.

“Some of us are fighting back,” responded U.S. Circuit Judge Gregory Katsas, a former Thomas law clerk who interviewed his former boss before the audience.

The ethics proposal, circulated last month by the federal judiciary’s policy-making body, the Judicial Conference of the U.S., would tighten existing guidance that lets judges belong to the two groups but not take leadership roles.

My summer trial schedule is more important than your family summer vacation

That was a NY federal judge to a defense lawyer in the Epstein BOP guard case. So ridiculous. Would it have been so terrible to set the trial either before or after the trial? From the NY Post:

A lawyer for one of the corrections officers accused of falsifying records the night Jeffrey Epstein died got into a shouting match Thursday with a Manhattan federal judge — because she set a trial date that landed right in the middle of a trip to Italy.
Tova Noel’s lawyer Jason Foy objected when Judge Analisa Torres scheduled trial for his client and Michael Thomas to begin June 22, saying his daughter would be in Italy and his family was planning to join her, but hadn’t actually booked anything yet.
“Counsel, use Skype,” Torres told him curtly after Foy expressed displeasure at the trial date.
“No, no, no,” he responded, his voice rising. “I will not use Skype.”
The back-and-forth escalated, with Torres repeatedly telling Foy to “sit down” while he argued over her, saying “this is not just about vacation.”

"Agents seized this mom’s $15,000 in a raid. Now the Supreme Court may weigh in to help her."

That's the title of this Sun-Sentinel piece on a cert petition that has a lot of appeal:

A mom was saving up money for her daughter’s 15th birthday, planning an unforgettable coming-of-age celebration. Imagine the mother’s surprise when federal agents raided her home and seized the $15,000 in cash she was planning to use to pay for the party.

Miladis Salgado is a 54-year-old Colombian immigrant who splits her time working at an airport duty-free store and Subway sandwich shop. It was heartbreaking to lose the funds: “That was money I’d saved for my daughter’s quinceanera,” she said.

The agents raided Salgado’s suburban West Kendall home in May 2015 because they were acting on a bogus tip from a confidential narcotics informant, according to court records. But the lead agent on the case would later admit the cash was clean, federal records show.

Still, it took almost two years and a legal battle for the government to give Salgado back her cash, and according to her court filings, federal authorities refused to pay her attorney’s fees, which means she’s still out $5,000.

Now, the U.S. Supreme Court has been asked to weigh in and decide if the government has a responsibility to repay Salgado for all her costs. The Supreme Court has yet to agree to hear the case, but the court has taken the step of asking the U.S. Solicitor General to prepare a response, which, according to Salgado’s attorney Justin Pearson, is a good sign that the court may hear Salgado out.

Jane Raskin for the President

Whether you are for or against the POTUS, it's pretty impressive that Miami lawyer Jane Raskin is on the legal team representing him. She is the one lawyer on the President's team that has stayed below the radar, which is also impressive.  She's doing much better than Starr, who made the absurd argument that this is the age of impeachment.  That may be, but Starr gets all the credit for that.  How did they let him of all people make that argument?

Florida Supreme Court is now a political body

Rumpole is covering the stunning reversal by the Florida Supreme Court on the issue of the death penalty and unanimity.  So are all of the major news outlets. The Court just a few years ago ruled X, and then there was some turnover with new justices, and then two went to the 11th Circuit, and a new 5-justice majority now ruled Y.  It's jaw-dropping.  Here's a piece by Slate:

The Florida Supreme Court has become a laboratory of judicial conservativism since 2019, and now the justices have given themselves a new tool to clear away remaining obstacles. On Thursday, they issued a decision of extraordinary breadth, overturning a landmark precedent and letting judges once again impose the death penalty without the unanimous recommendation of a jury. Their decision authorizes the legislature to revive a scheme that empowers judges to issue a death sentence when the jury does not recommend it.

At the same time, the court effectively overruled precedents that limited its ability to reverse past decisions. In all, the decision announces an aggressive new campaign to toss out liberal precedents and move the court far rightward.

Thursday’s decision in State v. Poole overturns a momentous ruling, State v. Hurst, handed down in October 2016. Hurst dealt with Florida’s capital sentencing scheme, a notorious outlier even among states that retained the death penalty. Like these other states, Florida required a jury to determine whether “aggravating circumstances” exist that justify a sentence of death.

Unlike almost every other state, however, the jury’s determination was not binding. Instead, jurors issued an “advisory verdict”—approved by a bare majority—for the judge to consider. But the judge could then hold a separate hearing, analyze the facts independently, and issue a sentence regardless of the jury’s advice.

The U.S. Supreme Court invalidated this system in January 2016. It reiterated that the Sixth Amendment requires a jury, not a judge, to find all facts that increase the maximum punishment. Since Florida allowed a judge to find “aggravating circumstances” that justified a capital sentence, it ran afoul of this rule. The justices returned the case to the Florida Supreme Court to implement their decision, which, at that point, had a 5–2 liberal majority.

But the Florida Supreme Court did more than apply Hurst. The court also considered its state constitution, which declares that the “right of trial by jury shall be secure to all and remain inviolate.” Interpreting this guarantee, the majority expanded the role of the jury in capital trials beyond the federal minimum. It declared that a judge may not impose death unless the jury unanimously found all aggravating factors to be proven beyond a reasonable doubt, “sufficient to impose death,” and not outweighed by any “mitigating factors.” Moreover, the majority held that a jury must “unanimously recommend a sentence of death” before a judge “may consider imposing” it.

The Florida legislature begrudgingly updated state law to reflect these new rules and bring Florida in line with other death penalty states, which placed these decisions in the hands of the jury long ago. Their revisions left just one state, Alabama, that allowed a non-unanimous jury to impose capital punishment.

On Thursday, though, a reconstituted court gave the legislature the greenlight to repeal these reforms and expand judges’ control over death sentences. In a caustic opinion, the majority blithely threw Hurst—a 5–2 decision—out the window.

A lot has changed since October 2016: Four justices in the Hurst majority were forced to step down under Florida’s mandatory retirement law. Former Republican Gov. Rick Scott replaced one with the ultra-conservative C. Alan Lawson, who previously served as a lower court judge. Current Republican Gov. Ron DeSantis replaced the other three with conservatives selected by Leonard Leo, head of the Federalist Society, a partisan organization that elevates Republicans to the judiciary. Donald Trump has already placed two of DeSantis’ three justices on the 11th U.S. Circuit Court of Appeals. So Thursday’s decision in Poole was decided by a five-member court that split 4–1. The one remaining liberal was the lone dissenter.

Michael Avenatti should not be in solitary confinement

That's the title of my latest piece in The Hill.  Please let me know your thoughts.  From the introduction:

Imagine being held by yourself in a small, freezing cold cell 24 hours a day. Not allowed to go outside. Not allowed to make a phone call. Not allowed to go to the bathroom without being watched. Not allowed to shave. Not allowed to visit with a family member. Shivering and alone, day after day.
This is bad enough for a hardened convicted criminal who cannot safely be housed with others. But imagine being held in these conditions when you have not been convicted of any crime. And when the only crime of which you have been accused is a non-violent financial crime.
This is no crazy, off-the-wall hypothetical. It is a strategy too often used against accused first-time non-violent offenders in an attempt to crush them and coerce them into pleading guilty.
This is what is happening right now to Michael Avenatti.
And it is wrong.

Brrrrr!

It's finally winter!

And it's impeachment talk all the time.

But while everyone is talking impeachment, there are two big trials starting up in New York.

The first is Harvey Weinstein, where he won a motion to be able to show the jury in opening the "dozens and dozens" of loving emails from his accusers:

"What we will counter with are their own words, where they describe loving relations, sensual encounters with Mr. Weinstein," defense attorney Damon Cheronis said during oral arguments Tuesday. "Mr. Weinstein is described as someone they care about both before and after the alleged sexual assault."

"Another complaining witness who claims Harvey Weinstein sexually assaulted her sent him an email wanting to introduce him to her mother," Cheronis argued at another point, though he never specified to whom among the six he was referring.

Of course he should be able to do so, and it's weird that it was even a question. 

For the other big NY trial, we move to federal court where Scott Srebnick and Jose Quinon are representing Michael Avenatti.  The big fight right now is trying to get Avenatti out of the SHU, where it is impossible to prepare for trial.  Here's Scott's letter and the Warden's response. It's absurd to keep a first-time accused white collar defendant in solitary conditions like El Chapo.  Let's hope this doesn't break Avenatti into pleading as the government is trying to do.

Slow blogging

Sorry for the slow blogging over the long weekend. I’ll be back at it tomorrow (Wednesday). See you then.

Should we have a "Defender General?"

Daniel Epps and William Ortman make the pitch for a Defender General in this forthcoming piece:

The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients—even when they conflict with the interests of criminal defendants as a whole. The prosecution’s advantages likely distort the law on the margins.
If designed carefully, staffed with the right personnel, and given time to develop institutional credibility, a new Office of the Defender General could level the playing field, making the Court a more effective regulator of criminal justice. In some cases—where the interests of a particular defendant and those of defendants as a class align—the Defender General would appear as counsel for a defendant. In cases where the defendant’s interests diverge from the collective interests of defendants, the Defender General might urge the Court not to grant certiorari, or it might even argue against the defendant’s position on the merits. In all cases, the Defender General would take the broad view, strategically seeking to move the doctrine in defendant-friendly directions and counteracting the government’s structural advantages.

I haven't thought through all the pros and cons of a DG, but if we are going to have one, I nominate Michael Caruso.

News & Notes

1.  Fane Lozman, of Supreme Court fame, has settled his case against Riviera Beach to the tune of $875,000.  Good for him!

2.  Michael Munday's case was affirmed by the 11th Circuit.  No issues with playing clips from Cocaine Cowboys at trial.

3.  Should Apple be forced to open an iPhone from accused defendants?  The NY Times covers this recurring debate here.

4. Michael Avenatti was supposed to start trial next week in New York (with Miami criminal defense lawyers), but he was arrested last night in connection with his California case.  The feds allege that he was violating his bond conditions. 

5.  Mike Flynn wants to withdraw his guilty plea.  I've never understood judges who deny these motions.  (There are some judges in this District who always grant them, which seems like the right move.)  If he wants a trial, let him have his trial!