For the Defense Podcast: William Pryor

 

Dear Friends,   This mini-season was too short!  I can't believe we are already at the finale... with Chief Judge of the 11th Circuit, William H. Pryor. I think it's a wonderful conversation and I hope you enjoy it. You can access it on Apple, Spotify, or any other platform from our website here. Judge Pryor, who made President Trump's short list of three potential Justices for Justice Scalia's seat, currently serves on the court of appeals, but he also served on the Sentencing Commission and as Alabama Attorney General, so we will have a lot to discuss.  (He's also an award winning timpanist!). It's not too late to catch up on Seasons 1 and 2 if you missed them (both of which are approved for CLE credits in Florida) or the other two episodes of Season 3 (with Judges Charles Breyer and Robin Rosenbaum).  This mini-season with judges also has been approved for CLE, and I give out the code at the end of this episode, so just listen until the end. Here's a picture of Judges Pryor and Breyer (who visited with us on the first episode of this season) together at the Sentencing Commission a few years ago in their seersucker suits: We are already working on Season 4, so thank you for your support and feedback.  It's really appreciated.  If you have a second and could leave a comment on Apple Podcast or the other podcast platforms, I would be grateful! If you have a friend that would like to receive these updates, please have them sign up here.   Hosted by David Oscar Markus and produced by rakontur

The Florida Supreme Court has jumped the shark

 I mean, is the Court really going to deny CLE credit for organizations (including the Florida Bar and ABA!) who require diverse CLE panels?  Apparently so.  From Law.com:

Attorneys, professional organizations and legal experts are lashing out at the Florida Supreme Court for a rule that is shaking up lawyers’ ability to receive credit for continuing-education courses required to keep practicing.
The controversial rule, issued by the court in April, prohibits The Florida Bar from approving continuing-education courses offered by any sponsor “that uses quotas based on race, ethnicity, gender, religion, national origin, disability or sexual orientation in the selection of faculty or participants.”
The court’s decision came in response to a move by The Florida Bar’s Business Law Section, which had adopted a policy regulating composition of faculty at section-sponsored continuing legal education programs.
The Bar section’s policy “imposes quotas” requiring a minimum number of “diverse” faculty, defining diversity in terms of membership in “groups based upon race, ethnicity, gender, sexual orientation, gender identity, disability, and multiculturalism,” the court’s April 15 order said.
The section’s diversity requirement was similar to one endorsed by the American Bar Association in 2016, which means the Supreme Court’s order has also jeopardized Florida lawyers’ participation in ABA continuing-education courses.

The ABA struck back with this brief, authored by appellate gurus Elliot H. Scherker and Brigid F. Cech Samole.  It also issued this press release.

There has been lots of criticism of the Court's opinion, including articles like this one from Above the Law, which concludes like this: "Please tell me what century the Florida Supreme Court is in, because it sure doesn’t look like mine or does it?"

The ol' grouping reversal

 Joe Exotic's conviction was affirmed.  But he got a new sentencing based on a grouping violation under the Sentencing Guidelines.

A win is a win.

The opinion is here.

AP story:

A federal appeals court ruled Wednesday that “Tiger King” Joe Exotic should get a shorter prison sentence for his role in a murder-for-hire plot and violating federal wildlife laws.

Joe Exotic, whose real name is Joseph Maldonado-Passage, was sentenced in January 2020 to 22 years in federal prison after being convicted of trying to hire two different men to kill animal rights activist Carole Baskin. A three-judge panel for the U.S. Court of Appeals for the 10th Circuit in Denver found that the trial court wrongly treated those two convictions separately in calculating his prison term under sentencing guidelines.

The blond mullet-wearing zookeeper, known for his expletive-laden rants on YouTube and a failed 2018 Oklahoma gubernatorial campaign, was prominently featured in the popular Netflix documentary “Tiger King: Murder, Mayhem and Madness.”

The panel agreed with Maldonado-Passage that the court should have treated them as one conviction at sentencing because they both involved the same goal of killing Baskin, who runs a rescue sanctuary for big cats in Florida. According to the ruling, the court should have calculated his advisory sentencing range to be between 17 1/2 years and just under 22 years in prison, rather than between just under 22 years and 27 years in prison. The court ordered the trial court to re-sentence Maldonado-Passage.

Podcast interview with Judge Robin Rosenbaum

 

Dear Friends,

I hoped you enjoyed the premiere episode of Season 3 of For the Defense last week with Judge Charles Breyer from San Francisco.  This week, we have another fantastic guest -- 11th Circuit Judge Robin Rosenbaum.

You can access it on Apple, Spotify, or any other platform from our website here.

Judge Rosenbaum currently serves on the court of appeals, but she also has been a district judge, a magistrate judge, a federal prosecutor, and a law clerk.  So she has a really interesting perspective on the criminal justice system and the courts in general.  I think you'll really enjoy hearing from her.

Next week, we will conclude the mini-season with Chief Judge William Pryor, the Chief of the 11th Circuit, who resides in Alabama.  A great and fascinating guest!

It's not too late to catch up on Seasons 1 and 2 if you missed them (both of which are approved for CLE credits in Florida).  This mini-season with judges also has been approved for CLE, and I will give out the code at the end of the third episode next week.

Please send me your feedback -- and of course, subscribe, like and comment!  If you have a friend that would like to receive these updates, please have them sign up here. .

Hosted by David Oscar Markus and produced by rakontur

There's a new Chief in town

 And her name is Cecilia Altonaga. 

Congrats to Judge Altonaga -- our first woman Chief -- on the new position.  And a big thank you to Judge Moore for leading the Court over the past 7 years and through the pandemic.

Not only is Judge Altonaga the first woman Chief Judge of the Southern District of Florida, I believe this is the first time in this District that a Chief Judge was a law clerk to the former Chief Judge (in this case, Edward B. Davis).  Judge Altonaga is Judge Davis' second favorite law clerk.

I asked Judge Altonaga what her goals were as the new Chief and she said: "My initial goal is to learn to juggle all the new administrative responsibilities with those attendant to being a district court judge.  The next goal is to steer the Court to a safe resumption of jury trials and in-person proceedings.  Beyond that, I simply hope to be a careful listener and wise administrator, in keeping with the Court's fine tradition and reputation."

In one of her first Administrate Orders, Altonaga extended the speedy clock till Labor Day in this order. Interestingly, the order references 703 cases currently awaiting trial.

Congrats again and good luck!  It can't be easy to try and navigate a bunch of federal judges....

Michael Avenatti sentenced to 30 months in prison (UPDATED)

His guidelines were 9 years at the low end.

This is a good example for judges around the country about how the guidelines make no sense.  Many judges would have given him the high end of the guidelines after a trial for a lawyer who, the judge found, abused the trust of his client.  

But the guidelines made no sense.  Even for someone who went to trial.  Even for a lawyer.  Even for someone who had other cases pending.  Even for someone who had a number of the piling-on enhancements (like sophisticated means, abuse of trust, and so on).

The fraud guidelines make absolutely no sense, and the judge in N.Y. (and it wasn't even Judge Rakoff) said so.  Good.

Miami's very own Scott Srebnick handled the sentencing.

Here's an article about it:

Michael Avenatti was sentenced to two and a half years in prison Thursday after being found guilty of an extortion scheme against Nike, just one of the criminal cases against Stormy Daniels's former lawyer and the onetime left-wing media darling.

The Justice Department’s indictment against Avenatti charged him with extortion and wire fraud, saying he tried to extort at least $22.5 million from the sporting apparel company. His three-week trial began in late January 2020, and he was found guilty the next month.

Judge Paul Gardephe of the Southern District of New York, the presiding judge during Avenatti’s 2020 trial, sentenced him to an aggregate sentence of 30 months. The judge said in the New York City courtroom on Thursday, “Mr. Avenatti’s conduct was outrageous. He hijacked his client’s claims, and he used those claims to further his own agenda — which was to extort millions of dollars from Nike to enrich himself.” The George W. Bush appointee added: “Mr. Avenatti had become drunk on the power of his platform, or what he perceived the power of his platform to be. He had become someone who operated as if the laws and rules that apply to everyone else didn’t apply to him.”

UPDATE -- three factors that helped sway the judge to give a below-guidelines sentence were (1) Avenatti's remorse, (2) the failure to charge co-conspirator Mark Geragos (which caused a disparity), and (3) the conditions of his pretrial confinement (during COVID at MCC).  From NBC:

Gardephe said that in the Nike scheme, “Mr. Avenatti’s conduct was outrageous.”  "He hijacked his client’s claims, and he used him to further his own agenda, which was to extort Nike millions of dollars for himself,” said the judge, who also sentenced Avenatti to three years of supervised release for the case, in which Avenatti was convicted at trial last year. “He outright betrayed his client,” Gardephe said....

But Gardephe added that Avenatti deserved a lighter sentence than the range recommended by federal guidelines — from nine years to 11-years and three months — because, the judge said that for the first time in the case, “Mr. Avenatti has expressed what I believe to be severe remorse today.”

The judge also cited the brutal conditions in which Avenatti was kept for several months in a Manhattan federal prison after his 2019 arrest. And Gardephe sharply noted, in justifying the lower-than-recommended sentence, how federal prosecutors did not criminally charge Geragos in spite of what they have said was his active participation with Avenatti in the shakedown.

The judge ordered Avenatti, who remains free on bond, to surrender on Sept. 15 to begin his sentence, which Gardephe recommended be served in at the federal prison camp in Sheridan, Oregon.

Breaking — Sen. Rubio JNC announces interview schedule

 Here’s the list. More to follow shortly. 

Judge Charles Breyer joins For the Defense Podcast for premiere of Season 3

 

FOR THE DEFENSE SEASON 3 LAUNCH U.S. District Judge Charles Breyer We're back! In this third season of For the Defense, I will be speaking with three fascinating and experienced judges who have a lot to say about the criminal justice system.  We launch today with Judge Charles Breyer.  You can access it on Apple, Spotify, or any other platform from our website here. In the first two seasons, we spoke with great criminal defense lawyers around the country about their most fascinating cases, including the late F. Lee Bailey, Alan Dershowitz, Roy Black, Michael Tigar, Tom Mesereau, Donna Rotunno, and so many others.  Then there was a bonus episode with Judge Jed Rakoff (S.D.N.Y.), which was a big hit.  So I decided to do this mini-season in which I speak to three judges about the criminal justice system from their perspectives.  After Judge Breyer (who hails from San Francisco), next week Robin Rosenbaum joins the show.  She sits on the 11th Circuit Court of Appeals and lives in South Florida.  And then we'll conclude the mini-season with Chief Judge William Pryor, another 11th Circuit Judge, who resides in Alabama. It's not too late to catch up on Seasons 1 and 2 if you missed them (both of which are approved for CLE credits in Florida).  This mini-season with judges also has been approved for CLE, and I will give out the code at the end of the third episode. Please send me your feedback -- and of course, subscribe, like and comment!  If you have a friend that would like to receive these updates, please have them sign up here.  Thank you! --David   Hosted by David Oscar Markus and produced by rakontur

Happy Birthday to the Southern District of Florida Blog!

Happy 16th (!!) Birthday to the Southern District of Florida Blog!  

Sixteen years ago in 2005, on the July 4 weekend, I started this blog and it's been a fun run of over 4,000 posts and over 5.2 million page views.  

I'm really proud of this project I started all these years ago and am so grateful for all of the connections and friends I've made through the blog.  This is a great legal community and it's really like a family that I am happy to be a part of.

To put the 16 years in perspective, when the blog was started:

The Wilkie Ferguson courthouse was not yet open.

Judge Zloch was Chief Judge of the District.

Mel Martinez was one of our Senators.

Alex Acosta had just been named Acting U.S. Attorney.

The Supreme Court had seven different Justices: Rehnquist, Scalia, Stevens, Souter, Kennedy, Ginsburg, and O'Connor.

There was no Twitter.

There was no podcasting.  (I now have one of my own, called For the Defense).

There was no Zoom.

My firm had one lawyer, me (it now has 6).

I had one daughter (I now have 3 and one headed to college!).

We still don't have a Floridian serving on the Supreme Court, which was the very first post! But that may change with Ketanji Brown Jackson as the leading candidate to replace Justice Breyer if he retires.

Thanks again to all of you for reading and for the tips. As Brian Tannebaum pointed out to me, the blog is now old enough to drive! I still very much enjoy keeping tabs on the most interesting and exciting District in the country.

“Bill Cosby is free; Ghislaine Maxwell should be too.”

 That’s the title of an op-ed I just wrote for the New York Daily News in light of the Cosby ruling.  From the conclusion to the piece:

The case against Ghislaine Maxwell is extremely weak — based on 25-year-old, uncorroborated allegations made only after Epstein died. A jury should reject those flimsy and stale charges. But in the event of a conviction, she should get relief on appeal for the same reason Cosby did — prosecutors should have to live up to the deals they make. As that court explained: “A contrary result would be patently untenable. It would violate long-cherished principles of fundamental fairness. It would be antithetical to, and corrosive of, the integrity and functionality of the criminal justice system that we strive to maintain.”

The Cosby case reaffirms that a prosecutor is bound to act with integrity and the public must be able to rely on his word. What a concept.

"Thank God that juries are smarter than judges."

That was criminal defense lawyer Frank Carson after he was charged with murder, went to trial that lasted 17 months, and was acquitted by a jury.  It's an amazing (and very sad) story, covered by the L.A. Times in these three articles, here, here, and here.  

Above is his mug shot, where he wouldn't give the prosecution the satisfaction of looking grim. Carson loved to stick it to the man.  And he believed that was payback after a long career of fighting and winning.  Sadly, he died shortly after winning his own trial, but not before he got to try another case as a lawyer.

This is how the third installment from the L.A. Times starts:

They were a year into the preliminary hearing with no visible end, and Frank Carson was close to despair. He was trapped where so many of his clients had been, alone in a chilly cell in a Stanislaus County jail. He had rebuffed every overture to cut a deal, to plead, to inform on codefendants in exchange for lenience.

But guilt pierced him. He blamed himself for the plight of his wife and stepdaughter, out on bail but charged in the so-called murder plot he had supposedly masterminded. He blamed himself for the continued incarceration of three other codefendants, former highway patrolman Walter Wells and Pop N Cork liquor store owners Baljit “Bobby” Athwal and brother Daljit “Dee” Atwal. All of them had refused to implicate Carson, telling prosecutors they had nothing to say.

“Boys,” Carson said one day, sitting before them in a courthouse holding room.

He had found a solution, he explained. He would take the blame, so they could go free. There seemed no other way out. He was in his 60s, with no kids; they were younger men, and fathers. The D.A. wanted him. What he did not tell them was that he had knotted up a sheet to keep under his pillow, to hang himself before they put him on a bus to prison.

“No, Mr. Carson,” his codefendants said. The brothers were Sikhs from the Punjab region of India. To let Carson take the blame for something he hadn’t done would dishonor the family, they explained — they’d be killed if they returned to their village.

Where is the Biden administration on the CARES Act and prisoners who were released during the pandemic?

 During the Trump administration, about 4,500 at-risk inmates were released during the pandemic.  But in the last few days of his presidency, Trump's DOJ said everyone needed to go back in when the crisis ended. It was a really weird decision.  Many have thought Biden would rescind that order, but he hasn't and has rightfully faced a lot of criticism because of it.  

In the meantime, BOP is doing BOP things... here's an article by the WaPo about a 76-year old grandmother who was released but taken back into custody because she was taking a class on word-processing and didn't immediately answer her phone.  Our system is so messed up... 

In the year she was out of prison, Gwen Levi, 76, was thriving.

After serving 16 years in different federal facilities for dealing heroin, Levi was allowed to leave last June and finish her 24-year sentence in home confinement under the supervision of federal prison officials. She moved in with her 94-year-old mother in Baltimore and volunteered at prisoner advocacy organizations, hoping for a paying job to come along. She was also building her relationships with her sons and grandsons.

But Levi’s season on the outside ended June 12 after she attended a computer word-processing class in Baltimore’s Inner Harbor. A Federal Bureau of Prisons incident report said she was out of contact for a few hours with the officials supervising her.

Levi is now at the D.C. jail awaiting transfer to a federal facility, according to her attorney, Sapna Mirchandani, of Maryland’s Office of the Federal Public Defender.

“There’s no question she was in class,” Mirchandani said. “As I was told, because she could have been robbing a bank, they’re going to treat her as if she was robbing a bank.”

Also, your favorite blogger was on 20/20 Friday night.  Here's a short clip from the two hour episode if you are interested. 

Fane Lozman to take on Department of Justice...

 ... and my money is on Fane Lozman.  The guy has gone to the Supreme Court twice and won twice.  It's pretty amazing.  This time, DOJ is hounding him about a floating home on his property.  Here's the letter he received:

Here is the home at issue:

I spoke to Mr. Lozman and he told me that he was going to respond to the DOJ with a letter that basically says "F*** off."  And that he did just that.  Here's the intro to his response:

Dear Brandon

Your letter, attached below, is a sloppy attempt to intimidate me.  Let's start with my answer to your settlement offer, that would require me to remove my floating residential structure from my homesteaded, private property in ten days. 

I am never moving my floating home off of my private property!

Your request is Un-American.  What country do you represent?

My floating home is not fill, which is usually rock and sand that is placed in submerged lands to create dry land.  Instead my floating home is the legal equivalent of a residential house built on land, as recognized by the State of Florida with my homestead designation, and the U.S. Supreme Court in its opinion, Lozman v. Riviera Beach. 568 U.S. 115 (2013). Both of my cases were argued at Georgetown's Supreme Court Moot Court program.  Did you really graduate from Georgetown law school, because that is hard to believe given the multiple grammatical errors in your letter and lack of comprehension as to what is Supreme Court precedent.  

And it concludes this way:

So go for it, criminally charge me along with pursuing a civil enforcement case, that you can set for trial.  Both the district judge and jury will think that you and Sydney are bullies and have wasted their time with your nonsensical pleadings. By the way, does Attorney General Merrick Garland know that you threatened me with your bullshit letter? Your flippant attitude for SCOTUS precedent, and lack of comprehension as to the limitations of 33 U.S.C.§ 403, reflects poorly on the Department of Justice.  I and others will make sure that it is formally addressed with Attorney General Garland and those in your direct chain of command.

All the best,

Fane Lozman

Chief Judge Pryor channels his inner rapper

 Check out this opinion, involving T.I.:

This appeal is about an initial coin offering of cryptographic tokens promoted by celebrities to fund a new movie-streaming platform. The platform never launched, and the value of the tokens plummeted a few months after the offering. After the limitations period had run, a purchaser, Kenneth Fedance, brought a putative class action for the sale of unregistered securities against Ryan Felton and Clifford “T.I.” Joseph Harris Jr., the purported co-owners of the company that issued the tokens. Fedance asserted that fraudulent concealment equitably tolled the limitations period, but the district court dismissed the complaint as untimely. We affirm.

That's the intro... but then the opinion gets fun, citing to T.I. lyrics throughout.  From CourthouseNews:

In a playful opinion littered with puns referencing Clifford “T.I.” Harris’s songs, a unanimous panel of 11^th Circuit judges upheld the dismissal of a class action securities lawsuit against the rapper and ended investors’ attempts to recoup money they say was lost on worthless cryptocurrency investments.

In a 21-page opinion embellished with no fewer than seven references to T.I.’s oeuvre, a three-judge panel of the Atlanta-based appeals court ruled that the lawsuit failed to plausibly allege that the rapper or his business associate Ryan Felton fraudulently hid information which would have allowed the investors to assert claims under sections of the Securities Act.

***

“Anyone in Fedance’s position could say ‘You Know What It Is,’” U.S. Circuit Judge William Pryor, a George W. Bush appointee, wrote on behalf of the panel, referring to T.I.’s 2007 hit featuring Wyclef Jean.

“In conclusory fashion, Fedance alleges that neither he nor putative class members could bring claims for the sale of unregistered securities within the one-year limitations period because Felton and Harris fraudulently concealed the facts necessary to reach the legal conclusion that FLiK Tokens were securities. But you cannot make fraudulent concealment mean “Whatever You Like,'” Pryor wrote, quoting another song title.

Good stuff! A further note -- I interviewed Judge Pryor for my podcast, For the Defense, and his episode will be airing in mid-July.  I think you'll really enjoy hearing him discuss writing, appellate courts, and his background.

It's the first day of summer

Woohooo!

In the old days of Miami, many law offices would close and there would be no trials.  Many Miami courtrooms would close the entire month of August.  

This year on the first day of summer, we have Prime Day.  Any good deals you're looking at?

We also have the Supreme Court finishing the Term.  The WaPo says there is some tentative good news regarding Amy Coney Barrett... that she may be in the Roberts' wing of the conservative court and not the Alito/Thomas wing.  We shall see.

Michael Avenatti's sentencing is coming up next week in SDNY.  Scott Srebnick is representing Avenatti.  Professor Berman over at the Sentencing Law and Policy blog has an interesting post about the guidelines in the case and how the parties seem to agree that they really don't apply.  

Speaking of the Guidelines, Judge Jed Rakoff continues his fantastic real-world critique of how they work.  In his latest sentencing decision, he states: "It appears to me that there has never been a case where the guidelines have been more irrational, silly and ridiculous than in their application to this case."  Reuters covers it here, where he sentences two defendants to 30 and 15 months in a $100 million fraud case. If you want to hear him discuss the Guidelines at length, check out our podcast discussion here.

David Lat is back to full time writing, this time on Substack.  He does a great job, as usual.

A&E's new show Under Oath covers the decision to call Katie Magbanua to testify.  She is represented by the great trial team of Chris DeCoste and Tara Kawass.  

Finally, it was a good weekend for the cruise industry.  Middle District of Florida Judge Steven Merryday in a 124-page ruling held that the CDC could not enforce its coronavirus restrictions and rules for cruise ships in the state.