Sports Cases on an NFL Opening Weekend

By John R. Byrne

For starters, I’d like to thank David for giving me the opportunity to post on his blog.  He’s created something special, and I’ll do my best to meet the high standards he has set.

Given that we already have a great group of (mostly) criminal law-focused bloggers, I plan to focus my posts on the civil side of the federal fence.  Still, today, in keeping with the theme of this post, I’m covering a few criminal cases. 

1.  Clinton Portis—the former University of Miami and NFL running back—pled guilty this week to participating in a health care fraud scheme.  The scheme involved submitting false claims to the NFL Player Health Reimbursement Account Plan.  Although the case was prosecuted in the Eastern District of Kentucky, there is a Miami nexus (the Miami FBI Field Office helped with the investigation).  Miami sports fans may recognize another defendant, Tamarick Vanover, who played at FSU and later the NFL (in one Miami-FSU classic at the Orange Bowl, he took the opening kickoff to the house).

2.  The Dolphins open the season against the New England Patriots.  Back in February of 2019, Florida state prosecutors charged the owner of the Pats, Robert Kraft, with misdemeanor solicitation (a charge that was dropped).  In late July, Palm Beach County Judge Leonard Hanser ordered the state to destroy the previously suppressed video evidence (this followed a S.D. Fla. federal court order this past January ordering the video’s destruction).  The case had many a twist and turn and Vanity Fair published a long article about it, if you’re interested in reading more.  

3. In golf news, a week or so back, Judge Ruiz issued an order granting summary judgment to the PGA Tour in a lawsuit filed by Hank Haney.  In short, Haney had blamed the PGA Tour for costing him his radio show at Sirius XM Radio (Sirius had cancelled Haney’s show after he made comments predicting a “Korean” to win the U.S. Women’s Open and going with the last name “Lee” because, if he “didn’t have to name a first name, I’d get a bunch of them right.”).  Order was picked up by ESPN and other news outlets. 

4.  Finally, and on a non-sports note, the high-profile federal criminal trial of Theranos founder Elizabeth Holmes began this past week.  You can read about the opening statements here.  Both sides seem to have the right strategy, with the defense looking to humanize Holmes and calling her "innocent" and the government portraying her as a greed-driven executive. 

 Hope everyone has a great weekend and that the Dolphins get the W.

 

Shadow Dockets

 

By Marissel Descalzo

 

Thank you David for inviting me to serve as a guest blogger.  I’m very excited for this opportunity to contribute to the community you’ve created.

 

If you’ve been following the news over the past few days, you’ve probably heard about the Supreme Court’s cryptic “shadow docket.” The “shadow docket” is a phrase coined by William Baude, a professor at the University of Chicago Law School, to describe the use of emergency orders and summary decisions by the Supreme Court without full briefing and oral argument. 

 

Shadow docket cases typically arise from emergency requests to stop a lower court’s decision where the applicant has to show “irreparable harm” absent immediate intervention. The Supreme Court has historically used the shadow docket to decide unambiguous cases (e.g., federal death penalty cases). 

 

Recently, there has been a recent shift in the type and number of cases being decided on the shadow docket. In the past 18 months, the Supreme Court has issued shadow docket decisions on issues involving the COVID-19 pandemic, restrictions on places of worship, and changes to voting rules during the pandemic.  

 

In the last week of August alone, the court decided three highly politically charged issues – the Biden administration’s eviction moratorium, the Trump administration’s “Remain in Mexico” policy, and the new Texas abortion law – all on the shadow docket. Arguably, the most controversial decision related to the Texas abortion law.  The decision was widely reported and criticized, even David blogged about it  and was reported throughout mainstream media, including was the Texas abortion law  HERE.

 

Critics claim that the “right” is using the shadow docket to push an agenda.  Steve Vladeck, a law professor at the University of Texas School of Law, strongly supports this view.  He’s been tracking the shadow docket and reports that 41 requests for emergency relief were submitted by the Trump administration, while only eight were submitted by the Obama and Bush administrations combined.  More about Professor Vladeck’s opinions can be found HERE.

 

Whatever the motivation, the use of the shadow docket is certainly troubling and downright dangerous.  Significant issues that affect our legal system and vulnerable populations are being decided without the benefit of briefing, oral argument, and public input through amicus briefing.  Here’s to hoping that these matters shift back into the light and out of the shadows!

 

 

---

 

Some good reads and great things to watch.

 By Margot Moss:

1.  “I helped destroy people.”  No - not the words of Sal Magluta during the era of the Cocaine Cowboys.  That’s FBI agent Terry Albury.  Albury says that he, along with his colleagues, “were compelled to commit civil and human rights violations.”  The story is here in this Sunday’s New York Times Magazine section.  Albury stated:  We’ve built this entire apparatus and convinced the world that there is a terrorist in every mosque, and that every newly arrived Muslim immigrant is secretly anti-American, and because we have promoted that false notion, we have to validate it. So we catch some kid who doesn’t know his ear from his [expletive] for building a bomb fed to them by the F.B.I., or we take people from foreign countries where they have secret police and recruit them as informants and capitalize on their fear to ensure there is compliance. It’s a very dangerous and toxic environment, and we have not come to terms with the fact that maybe we really screwed up here,” he says. “Maybe what we’re doing is wrong.”  Albury became so convinced that it was wrong that he leaked documents to the media “exposing the hidden loopholes that allowed agents to violate the bureau’s own rules against racial and religious profiling and domestic spying as they pursued the domestic war on terror.”  For sending these documents, Albury was arrested and sentenced to 4 years in prison.  

Sometimes, the bad guys in the courtroom aren’t the defendants.  

2.  In another good read, a law review article examines the “deep flaw” of the sentencing guidelines’ loss section, which “routinely recommends arbitrary, disproportionate, and often draconian sentences.”  Not only does the loss section fail to address unwarranted disparities among similarly-situated individuals, but it “actively exacerbates them.”  Barry Boss and Kara Kapp lay out the history of the guideline, give examples of the outrageous sentences it recommends, and offers reforms that we should pay attention to. 

They point out that some courts “have called the loss tables ‘patently absurd’ and ‘a black stain on common sense’ that rely upon a ‘flawed methodology for tabulating white-collar sentences[.]’  Accordingly, courts have concluded that imposing sentences corresponding to the loss tables would ‘effectively guarantee[ ] that many such sentences would be irrational on their face.’”

Unfortunately, not all courts see it that way and continue to give guideline sentences using the 2B1.1 table.  That’s why reform is necessary.  Boss and Kapp first suggest calculating loss based on actual loss, not intended loss.  Or, in the alternative, to find that the intended loss was substantially likely to occur.  These seem like great places to start.  We all know that Medicare never pays what it’s been billed – if it pays at all.  What do blog-readers think?

3.  I’m fully aware that this is a blog largely devoted to the Southern District of Florida news and notes and other federal goings-on around the country.  But I can’t make my first post without giving a huge shout out to state Chief Judge Nushin Sayfie.  For years, I worked by her side as an APD and then looked up to her on the state bench in Miami.  She is a force and an incredible asset to our community.  And how great is it to have a former criminal defense attorney as the top dog?!  The Passing of the Gavel ceremony recognizing her election as Chief Judge of the 11th Judicial Circuit is this Friday, September 10 at 12:15.  You can watch it live here on YouTube.  Congratulations, Chief Judge Sayfie!

4.  Finally - R.I.P. Michael K. Williams, aka Omar Little, the greatest character on one of the best series on television, The Wire.  If you haven’t watched it, the show is a must-see.  I know David O. Markus likes it.  Here is Michael K. Williams/Omar in a classic scene:

Miami History Part 1

By Michael Caruso:

Thank you David for inviting me to contribute to your blog. For the last 15 years, your blog has been an integral part of our local federal court culture, and I'm flattered that you thought of me. 

For my first post, I wanted to offer an alternative to the current Netflix offering about Miami. In 1994, journalist Susan Orlean wrote an article based on her investigation of the 1994 arrest of horticulturist John Laroche and in south Florida for poaching rare orchids in the Fakahatchee Strand State Preserve.

Two years later, Orlean wrote another south Florida story. Orlean's story—The Homesick Restaurant—describes Juan Saizarbitoria and his restaurant in Miami and Havana.  Here's an excerpt:

"Saizarbitoria had grown up in the Basque region of Spain, and he had made his way to Cuba in the late thirties by sneaking onto a boat and stowing away inside a barrel of sardines. When he first arrived in Havana, he pretended to be a world-famous jai-alai player, and then he became a cook at the jai-alai club. In 1940, he opened Centro Vasco, and he made it into one of the most popular restaurants in Havana. Having lost the restaurant to Castro, in 1962, Juan Saizarbitoria moved to Miami and set up Centro Vasco in exile." 

I had not known of Saizarbitoria or his restaurant before coming across the article. Orlean reports from Centro Vasca in Miami and also visits the Havana restaurant taken away from Saizarbitoria. I fear that not much of this type of Miami history will be preserved, and I thought I'd share.

Blog changes

 I started this blog as a pet project back in 2005 as a way to keep up with our District and federal courts in general.  I didn't really think anyone would read it when I started.  But after 4044 posts and 15,104 comments over 16 years, we have 5.3 million views and lots of good tipsters.  

But now it's time to add some new voices and perspectives.  So you are going to start seeing some new authors pop up.  

Our all-star lineup includes:

John R. Byrne

Michael Caruso

Marissel Descalzo

Alaina Fotiu-Wojtowicz 

Robert Kuntz

Margot Moss  

Phil Reizenstein

I am going to continue to post (so definitely keep sending your tips), but it's way past time for the blog to open up a little bit.

Thanks for being part of the small federal family we have here in the Southern District and enjoy the new upcoming posts by our new contributors!

I'm really excited about this -- I hope you are too.

Houston, we have a problem.

 At least it's not Florida this time.  It's Texas.  It's always Texas or Florida...

The Supreme Court 5-4 last night did not take action to stop Texas' new abortion law.  From SCOTUSBlog:

Nearly 24 hours after a Texas law that bans nearly all abortions in the state went into effect, the Supreme Court on Wednesday confirmed what it had previously only implied through its failure to act the night before: The court rejected a request to block enforcement of the law, which abortion providers say will bar at least 85% of abortions in the state and will likely cause many clinics to close, while a challenge to its constitutionality is litigated in the lower courts. The vote was 5-4, with Chief Justice John Roberts joining the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – in dissent.

The case, Whole Woman’s Health v. Jackson, had come to the court on an emergency basis on Monday, with a group of abortion providers asking the justices to intervene. It was the first major test on abortion rights for the Roberts court since the death of Justice Ruth Bader Ginsburg in September 2020, and Ginsburg’s replacement by the conservative Justice Amy Coney Barrett was likely decisive in the outcome.

The court’s inaction on Tuesday night that allowed the Texas law to go into effect and its brief order on Wednesday night denying any relief to the abortion providers unquestionably represented a victory for abortion foes, but the five-justice majority emphasized (and Roberts in his dissent reiterated) that the court was not endorsing the constitutionality of the law. The ruling also revealed a court that is deeply divided, not only on the merits of the case but also on the procedures that the court uses to resolve these kinds of emergency appeals.

The law, known as S.B. 8, is one of several so-called “heartbeat bills” that Republican legislatures have enacted around the country as part of an effort to overturn Roe v. Wade and Planned Parenthood v. Casey, ...

***

In a one-paragraph, unsigned order issued just before midnight on Wednesday, the court acknowledged that the providers had “raised serious questions regarding the constitutionality of the Texas law.” But that was not enough to stop the law from going into effect, the court explained, because of the way the law operates. Specifically, the court observed, it wasn’t clear whether the state officials – a judge and court clerk – and the anti-abortion activist whom the abortion providers had named as defendants “can or will seek to enforce the Texas law” against the providers in a way that would allow the court to get involved in the dispute at this stage.

In his dissent, which was joined by Breyer and Kagan, Roberts described the Texas scheme as “unprecedented.” By deputizing private citizens to enforce the law, Roberts stressed, the law “insulate[s] the State from responsibility.” He wrote that because of the novelty and significance of the question, he would stop the law from going into effect to preserve the status quo and allow courts to consider “whether a state can avoid responsibility for its laws in such a manner.”

Breyer wrote his own dissent, which was joined by Kagan and Sotomayor, in which he acknowledged the procedural challenges posed by the Texas law but expressed skepticism as to “why that fact should make a critical legal difference” when “the invasion of a constitutional right” is at issue.

Sotomayor, joined by Breyer and Kagan, described the court’s order as “stunning.” “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny,” she wrote, “a majority of the Justices have opted to bury their heads in the sand.”

Both Breyer and Sotomayor also noted that, within the first day that the Texas was in effect, clinics in the state began turning away most or all abortion patients.

Kagan’s dissent, joined by Breyer and Sotomayor, focused largely on the process by which the court reached its ruling on Wednesday night. She complained that, “[w]ithout full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions.” The result, she concluded, “is emblematic of too much of this Court’s shadow-docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend.”

The Texas case will now return to the lower courts, where litigation will continue. ***

Biden has been a big disappointment on criminal justice reform so far

 I'm still hoping he can turn things around.  But he has been extremely tepid with criminal justice reform.  The latest is this potential action -- commuting sentences only for low level drug offenders who were temporarily released from BOP custody during the pandemic.  There has been a big push not to have any of these low level offenders go back in.  Why only drug offenders? Makes no sense.  

From the N.Y. Times:

In interviews, officials have subsequently confirmed that focus. As a first step, the Justice Department will soon begin requesting clemency petitions for drug offenders who have less than four years left on their sentence, which will then be reviewed by its pardon office, they said.

It is unclear whether the Biden team is leaning toward commuting the sentences of the nonviolent drug offenders to home confinement, reducing the length of their sentences to bring them within the normal window for home confinement or a mix of the two.

The officials said focusing on nonviolent drug offenders, as opposed to other types of criminals, dovetailed with Mr. Biden’s area of comfort on matters of criminal justice reform. In his campaign platform, Mr. Biden had said he pledged to end prison time for drug use alone and instead divert offenders to drug courts and treatment.

Inimai Chettiar, the federal director of the Justice Action Network, called the idea a good start but also questioned the basis for limiting it to some nonviolent drug offenders, saying there was “no scientific evidence” for restricting the help to that category. She suggested another explanation. “Politically, it’s an easier group to start with,” Ms. Chettiar said.

In addition, officials said, the Justice Department is studying other options that could help keep different groups from being forced back into prison. Another idea under consideration is to petition the courts to let some individual inmates stay in home confinement under a “compassionate release” law.

“There are many things that go into a retirement decision."

 That was Justice Breyer in the N.Y. Times.  The whole article is worth a read... but here are some snippets:

He recalled approvingly something Justice Antonin Scalia had told him.

“He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Justice Breyer said during a wide-ranging interview on Thursday. “That will inevitably be in the psychology” of his decision, he said.

“I don’t think I’m going to stay there till I die — hope not,” he said.

Justice Breyer, 83, is the oldest member of the court, the senior member of its three-member liberal wing and the subject of an energetic campaign by liberals who want him to step down to ensure that President Biden can name his successor.

The justice tried to sum up the factors that would go into his decision. “There are a lot of blurred things there, and there are many considerations,” he said. “They form a whole. I’ll make a decision.”

***

He was in a characteristically expansive mood, but he was not eager to discuss retirement. Indeed, his publisher had circulated ground rules for the interview, saying he would not respond to questions about his plans. But he seemed at pains to make one thing clear: He is a realist.

“I’ve said that there are a lot of considerations,” Justice Breyer said. “I don’t think any member of the court is living in Pluto or something.”

Latest COVID order from SDFLA.... (UPDATED)

 ...is here.  It allows for the use of Zoom-hearings under the CARES Act.  There was some rumbling about whether jury trials (or grand juries) would be suspended again, but that didn't happen.  It's all systems go despite the all-time high COVID numbers.  There's also an order requiring all court employees to be vaccinated or tested twice weekly. I like it.  Unfortunately, though, this does not apply to the CSOs or Marshals.  

Even if there is no general order continuing trials, some judges are doing it on their own.  See this order from Judge Cooke:

Mistrial in the Michael Avenatti trial due to Brady violation

 Wow, this is a big one.

Another "taint team" and Brady problem in federal court. 

Reporter Meghann Cuniff is doing a really nice job covering what's going on in court:

Selna: "Shortcomings there may have been, but I find no misconduct, intentional or otherwise, on the part of the taint team."
Selna: "For all those reasons, I grant a new trial." It's official: Mistrial in Avenatti's wire fraud trial.

— Meghann Cuniff (@meghanncuniff) August 24, 2021

Here is the defense motion,

Govt response,

and the recent filing by the defense outlining the issues. 

COVID issues plaguing trial in Ft. Pierce

 This is a civil trial in which counsel has tested positive for COVID.  Developing.

Swintelski v. American Medical Systems de 168 by David Oscar Markus on Scribd

RIP Maria Shohat

 A really great person and lawyer, this is a sad one.  Maria and Ed Shohat made such a wonderful team.  And she was always the life of a party or a bar function.  But she has been battling Alzheimer's for a while now (here is the link to the fundraising page detailing the walk for Maria that is scheduled for November).  I will post the funeral arrangements on this page when I hear of them. 

Does this cross the line?

 I'm a big fan of sharp writing, but does it cross the line to compare your colleagues to a career offender because they've been reversed so many times it looks like a rap sheep?  Here's the 9th Circuit case in which Judge VanDyke does just that.

Apparently, AboveTheLaw didn’t like it: https://abovethelaw.com/2021/08/newsflash-unqualified-federal-judges-are-unqualified/

Bonus Podcast Episode with Billy Corben and Alfred Spellman

We've had defense lawyers.  We've had judges.  And today, I'm excited to let you know that we have a bonus episode of For the Defense with filmmakers (and my good friends and producers of this podcast!) Billy Corben and Alfred Spellman about their latest rakontur production -- Cocaine Cowboys: The Kings of Miami.  

If you haven't seen the docuseries on Netflix yet, you really should check it out. It's about the rise and fall of Willy Falcon and Salvador Magluta, also known as Los Muchachos or the Boys.  It's an only-in-Miami story -- Billy and Alfred's specialty.  

Lawyers will love it because it details the numerous trials in the case and there are lots of great interviews with federal prosecutors and defense lawyers (including Albert Krieger, Rod Vereen, Pat Sullivan, Chris Clark, Richard Klugh, and others).  Non-lawyers will love it for all of the craziness involved in the cases, detailed by none other than Jim Defede, who covered the cases in his New Times articles:  

And the latest version:



You can check out the bonus episode on Apple, Spotify, and Google,  All other platforms, including a regular desktop player, can be accessed on our website. 

Speaking of which, it's not too late to catch up on Seasons 1-3 of For The Defense.  While you are doing so, please subscribe, like, and comments.  We need you! (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

How are drugs these days getting into the U.S.?

 If you watched the most recent Cocaine Cowboys about Willy & Sal, you saw cocaine coming over in go-fast boats and planes.  But that's the old way of doing things.  According to Bloomberg, the drug trade has dramatically changed:

At a Florida port, the U.S. Coast Guard drops off $1.4 billion worth of cocaine and marijuana seized in the Caribbean and Eastern Pacific. The haul, the fruit of nearly 30 incidents and boarding operations by the U.S., Canada and the Netherlands, contains nearly 60,000 pounds of cocaine alone.

No, it’s not a reboot of “Miami Vice” — it happened last week.

Huge shipments of drugs are being captured at sea on their way to the U.S. and Europe. In 2019, U.S. authorities boarded the Gayane, a 1,000-foot container ship registered in Liberia, as it was entering a Philadelphia marine terminal at the end of a 9,300-mile voyage from Chile. The raid netted 40,000 pounds of cocaine worth $1.3 billion.

These are eye-popping numbers, even to those who have been involved in interdiction operations for decades. What is driving the trend toward huge shipments of narcotics, and how will U.S. authorities cope with it?

In the 2000s, when I headed the U.S. Southern Command (which has military responsibility for the Western Hemisphere south of the U.S.), one of our crown jewels was the Joint Interagency Task Force South. Headquartered in Key West, Florida, it is built around participation from the entire U.S. government — led by the Coast Guard but with significant support from the Department of Defense, Department of Justice, Drug Enforcement Administration, Customs and Border Patrol, FBI and CIA. Flags of 20 other nations fly in front of the Key West facility, representing liaisons from countries across Latin America, the Caribbean and Europe.

Over the years, traffickers moving cocaine up from the production zone — principally Colombia, Ecuador and northern Peru — have refined their efforts and, like any thriving business, scaled them significantly. In previous decades, they typically used many small runs on light aircraft, ultra-high-speed boats and even semi-submersibles. We captured one of the latter (often referred to in press accounts, incorrectly, as submarines), carrying 10 tons of cocaine, and put it on the lawn in front of Southern Command’s Miami headquarters as a trophy.

While those kinds of operations continue, the movement is toward more industrial notions of transport, with much larger shipments stored in huge container ships headed to the U.S. and Europe. With more than 5,000 major cargo ships globally moving 25 million containers (technically known as “20-foot equivalent units,” or TEUs) — and 11 million containers arriving annually to the U.S. alone — locating the ones carrying drugs is a needle in a haystack problem.

To deal with the traffickers’ new approach of going big, the U.S. and its allies need to update their own strategy and tactics.

 

Vaccine mandates in the courts

 The Supreme Court won't block Indiana University's vaccine mandate, as many  on the right thought would happen.  From the NY Times:

The Supreme Court allowed Indiana University on Thursday to require students to be vaccinated against the coronavirus.

Eight students had sued the university, saying the requirement violated their constitutional rights to “bodily integrity, autonomy and medical choice.” But they conceded that exemptions to the requirement — for religious, ethical and medical reasons — “virtually guaranteed” that anyone who sought an exemption would be granted one.

Justice Amy Coney Barrett, who oversees the federal appeals court in question, turned down the student’s request for emergency relief without comment, which is the court’s custom in ruling on emergency applications. She acted on her own, without referring the application to the full court, and she did not ask the university for a response. Both of those moves were indications that the application was not on solid legal footing.

The students were represented by James Bopp Jr., a prominent conservative lawyer who has been involved in many significant lawsuits, including the Citizens United campaign finance case. He argued that the university’s vaccine requirement was putting his clients at risk.

***
A trial judge had refused to block the university’s requirement, writing that the Constitution “permits Indiana University to pursue a reasonable and due process of vaccination in the legitimate interest of public health for its students, faculty and staff.”

A unanimous three-judge panel of the United States Court of Appeals for the Seventh Circuit, in Chicago, declined to issue an injunction while the students’ appeal moved forward.

“Each university may decide what is necessary to keep other students safe in a congregate setting,” Judge Frank H. Easterbrook wrote for the appeals court. “Health exams and vaccinations against other diseases (measles, mumps, rubella, diphtheria, tetanus, pertussis, varicella, meningitis, influenza and more) are common requirements of higher education. Vaccination protects not only the vaccinated persons but also those who come in contact with them, and at a university close contact is inevitable.”

Judge Easterbrook, who was appointed to the appeals court by President Ronald Reagan, relied on a 1905 Supreme Court decision, Jacobson v. Massachusetts, which ruled that states may require all members of the public to be vaccinated against smallpox or pay a fine.

New trial for defendants who received ineffective counsel in white collar case...

 ...out of the First Circuit.  But represented by Greenberg Traurig lawyers Jed Dwyer and Jay Yagoda.* What's amazing in this case is not just the ineffective lawyer's conduct, but that the government tried to defend the convictions where the lawyer did not even have a computer that could open the voluminous discovery.  Shame.  Here's the introduction from the case (opinion here):

Meet Roger Boncy and Joseph Baptiste. Boncy once served as chairman and CEO of a U.S.-based investment company called Haiti Invest, LLC. And Baptiste once sat on that company’s board of directors. We use the past tense, because everything changed when the feds accused them of conspiring to bribe Haitian officials into approving an $84 million port project in that country — one involving cement factories, a shipping-vessel repair station, an international transshipment station, and a power plant (among other things). Prosecutors tried them jointly. And each had their own lawyer. We will save lots of details about the trial and its aftermath for later. But for now it is enough to note the following.

The government claimed (based in large part on undercover recordings played at trial) that Baptiste and Boncy solicited money from undercover agents (posing as investors in Haitian infrastructure ventures), which they promised to funnel to Haitian bureaucrats through a Baptiste-controlled nonprofit that supposedly helped Haiti’s poor — 5% of project costs would be allocated to bribe Haitian authorities. And as a further way to grease the project’s skids, the duo — again according to the government’s theory — promised to pay off Haitian officials with campaign contributions, offers of future jobs, and money to fund their favorite social programs. At the trial’s end, the jury convicted them of conspiring to violate the Foreign Corrupt Practices Act and the Travel Act (count 1), and convicted Baptiste (but not Boncy) of violating the Travel Act (count 2) and conspiring to violate the Money Laundering Act (count 3).

After firing his original attorney and hiring a new lawyer, Baptiste moved under Criminal Rule 33 for a new trial on the counts of conviction based on (according to the motion) ineffective assistance of counsel under the Sixth Amendment. Likewise invoking Criminal Rule 33, Boncy asked for a separate new trial on the count of conviction because (the motion argued) Baptiste’s lawyer’s “ineffective[ness]” influenced how the jury “view[ed] . . . both defendants” and so impaired his (Boncy’s) Fifth Amendment “due process right” to a “fair” proceeding. The government opposed both motions.

Following an evidentiary hearing, the district judge found that Baptiste had shown deficient performance of counsel and that the cumulative effect of counsel’s deficiencies caused him (Baptiste) prejudice. Not only that, but the judge also found Baptiste’s attorney’s shortcomings prejudiced Boncy by (among other things) requiring “Boncy’s counsel . . . to play an outsized role at trial rather than pursue his preferred defense strategy.” And noting that a joint trial of alleged coconspirators is presumptively appropriate and that “severance [was] not warranted,” the judge ordered a joint retrial in the interest of “justice” because neither defendant got “a fair” first trial — the significance of the “justice” buzzword (pulled from Rule 33) will be apparent later.

From that decision, the government now appeals. After setting out the guiding legal principles, we turn directly to the issues that confront us — adding additional details necessary to put matters into workable perspective. When all is said and done, we affirm.”

How bad was the lawyer.  Here's the start to the court's summary:

• He could not "open discovery produced by the [g]overnment." 

• He "did not provide copies of documents or audio and video recordings to . . . Baptiste, nor did they ever sit down together to review all of the materials that the [g]overnment had provided." 

• He did not "'thoroughly review' certain documents." 

• "[H]e [did] not investigate[]" the case "sufficiently to understand the import" of the government's evidence or to craft an appropriate response. • He did not get English translations of Haitian-Creole recordings, even after learning about "potential errors" in one of the government's translations. 

• He "did not subpoena any witness" or "formulate his own list of potential witnesses in support of . . . Baptiste's potential defenses." 

• "[H]e did not . . . identify or contact any expert witnesses that could have provided evidence on Haitian law or business practices." • He "continued to pursue an entrapment defense," even though "others had previously told him that the defense was not available to . . . Baptiste on the facts of the case" — a mistake that essentially put Baptiste in the thick of the conspiracy. 

• He "only cross-examined two of the [g]overnment's six witnesses, none of whom [he] had contacted or sought to interview prior to trial." 

• He "elicited damaging testimony" from the two he did cross. 

• And he deferred to Boncy's lawyer on the "cross-examinations of the remaining witnesses," even though Boncy's "trial strategy was to portray . . . Baptiste as the primary driver of the alleged conspiracy" — a conspiracy that Boncy's attorney insisted Boncy was not a part of.  

Sigh.

*Update -- There was some confusion in the comments about whether GT represented Bouncy at trial or just appeal.  Here's what happened: (1) GT represented Boncy at trial and got acquittals on all counts, except the 371/fcpa charge: (2) post-trial, they moved for a new trial for Boncy on the basis that co-defendant’s (Baptiste’s) counsel was ineffective; the court granted the motion; and (3) on appeal, 1^st circuit affirmed that Boncy gets a new trial as district court held. 

Judge Kathy Williams rules for Norwegian and against Gov. DeSantis

 This is a biggie.  You can read the order here. It's a lengthy 59-page order exploring the First Amendment and the Dormant Commerce Clause (looks like Judge Williams and her clerks had a very busy weekend as this was just argued on Friday).  

Here's the intro from the order:

On July 13, 2021, Plaintiffs—Norwegian Cruise Line Holdings Ltd.; NCL (Bahamas) Ltd., d/b/a Norwegian Cruise Line; Seven Seas Cruises S. De R.L., d/b/a Regent Seven Seas Cruises; and Oceania Cruises S. De R.L., d/b/a/ Oceania Cruises (collectively, “Plaintiffs” or “NCLH”)—initiated this action against Dr. Scott Rivkees, the Surgeon General of Florida and the head of the Florida Department of Health (“Defendant”). (DE 1.) After 15 months of suspended operations, NCLH plans to resume passenger cruises from Florida on August 15, 2021 on the Norwegian Gem. (Id. at ¶ 1.) NCLH has adopted a policy requiring all passengers on its vessels to be fully vaccinated against COVID-19 and to provide documentation confirming their vaccination status before boarding. (Id. at ¶¶ 4, 35.)

Plaintiffs assert that a recently-enacted Florida law, codified at Fla. Stat. § 381.00316 (“Section 381.00316” or “the Statute”), prevents them from implementing the vaccination policy for vessels departing from Florida. (Id. at ¶ 122.) Under the Statute, Plaintiffs are prohibited from requiring passengers to provide “any documentation certifying COVID-19 vaccination or post-infection recovery” prior to boarding. Fla. Stat. § 381.00316. NCLH explains that if it cannot maintain its vaccination policy in Florida, it would be forced to either cancel all voyages leaving from the state or allow unvaccinated passengers to sail, and both options would cause significant financial and reputational harms. (DE 3 at 17–19.)

NCLH brings this as-applied constitutional challenge, arguing that the Statute violates its rights under the First Amendment, the dormant Commerce Clause, and Substantive Due Process. (DE 1.) It also claims that the Statute is preempted by the CDC’s Conditional Sailing Order (“CSO”) and subsequent instructions. Plaintiffs have asked the Court to enjoin the enforcement of Section 381.00316 pending resolution on the merits of their claims. Upon a review of the record, and with the benefit of oral argument, the Court finds that Plaintiffs are entitled to a preliminary injunction.

Norwegian was represented by Quinn Emanuel (Derek Shaffer, John O'Sullivan, Olga Vieira, and I'm sure lots of others). 

Quiet, summer blogging

 Sorry for the slow pace of the blog lately... with COVID raging again, there isn’t much happening in the SDFLA.  One interesting case going forward is in front of Judge Kathy Williams... a dispute between Norwegian Cruise Line and Gov. DeSantis about the so-called vaccine passports.  From Reuters:

Norwegian Cruise Line heads to federal court on Friday in a battle that pits the company's plan for returning to the seas against Florida Governor Ron DeSantis's vow to oppose COVID-19 "vaccine passports."
The court battle comes as big business and some government entities are responding to the rapid spread of the Delta variant of the coronavirus with vaccination requirements, prompting legal challenges from vaccine skeptics and civil libertarians. read more

Norwegian plans to make its first post-pandemic departure from Miami, the main port for Caribbean cruises, on Aug. 15. As part of its plan to guard against a COVID-19 outbreak, it will require passengers to prove they have been vaccinated.
Banning anyone who refuses to prove their vaccine status will run afoul of Florida's law, which forbids businesses, government entities and schools from requiring proof of COVID-19 immunity in return for a service. The law has certain exceptions, such as for healthcare.

Have Zoom sentencings helped or hurt defendants?

 Over the past 16 months or so, most federal sentencing hearings have been conducted via Zoom.  Sure, some judges have conducted in person sentencings.  But mostly, it’s been over a video screen.  At first, many defense lawyers objected and said that it would be hard to get a fair sentencing over Zoom.  How could you really humanize your client over the computer.  But then it became clear that with some judges, sentencing over Zoom during COVID resulted in a lower than usual sentence.  

It would be really interesting to see the stats for sentences during the pandemic.   And if the sentences were generally lower, was that in spite of video screens (and mostly due to not wanting to burden prisons with long sentences during the pandemic) or is Zoom a more effective way to make a sentencing presentation?

Here’s an interesting article about empathy and video screens, by Susan Bandes and Neal Feigenson: Empathy and Remote Legal Proceedings, 51 Southwestern Law Review Issue 1 ( (Symposium on Courts in the COVID-19 Era). Forthcoming December, 2021.

From the abstract:

Do remote legal proceedings reduce empathy for litigants? Pre-COVID studies of remote bail hearings and immigration removal hearings concluded that the subjects were disadvantaged by the remote nature of the proceedings, and these findings are sometimes interpreted to mean that decision-makers tend to be less empathetic toward remote litigants. Reviewing both the pre-COVID literature and more current studies, we set out to determine whether empathy is reduced in virtual courts. The notion that it is more difficult for decision-makers to exercise empathy toward someone they encounter only on a video screen is consistent with findings that physical distance increases social and hence psychological distance, and may well be borne out by further research. However, while there are reasons to suspect that the exercise of empathy may be altered on Zoom or comparable platforms, thus far there is no firm evidence that the remote nature of legal proceedings, in itself, reduces empathy for litigants, witnesses, or other participants in legal proceedings. On the other hand, there are ample grounds for concern that remote proceedings may further disadvantage litigants who are already unequally burdened by empathy deficits based on race, social class, gender, ethnicity, or other factors that may differentiate them from decision-makers. We call attention to particular ways in which virtual proceedings may exacerbate these empathy deficits.

Biden and the Courts

 There's been a lot in the news about how Biden is trying to catch up to Trump in appointing judges.  But he has a long way to go... in part because it wasn't a priority to the Obama administration.  Here is a nice background article on what's going on and why Obama left Biden in such a hole:

President Barack Obama’s judicial nominees faced several structural obstacles that do not hinder Biden’s. When Obama took office, the filibuster enabled Republicans to block any nominee who didn’t have supermajority support in the Senate, and it enabled the GOP to slow the Senate’s business to an excruciating crawl even when Democrats did have the 60 votes necessary to break a filibuster.

The Senate changed these rules to allow judges to be confirmed by a simple majority, and to limit the minority party’s power to delay most confirmation votes.

Then-Senate Judiciary Chair Patrick Leahy (D-VT) — like so many other Democrats who cling to their own idiosyncratic notions of how institutions should function at the expense of governance — insisted on giving Republican senators veto power over anyone nominated to a federal judicial vacancy in their state by taking an unusually expansive view of a Senate tradition known as the “blue slip.” The current chair, Sen. Dick Durbin (D-IL), will not allow Republicans to veto at least some of Biden’s nominees, especially his nominees to powerful appellate courts.

Obama also had to fill a Supreme Court vacancy in his first year, which made it difficult for the White House or the Senate to pay as much attention to lower court nominees.

But even if Obama was dealt a more difficult hand on judicial confirmations than Biden, he played that hand terribly.

At least in the first year of his presidency, Obama staffed his White House with senior officials who either treated the process of shepherding judges to confirmation as a chore, or who lacked experience with judicial politics.

Rahm Emanuel, Obama’s first chief of staff, reportedly told a room full of activists that he didn’t “give a fuck about judicial appointments.” Greg Craig, Obama’s first White House counsel, was a former State Department official who showed more interest in Obama’s worthy, but failed, effort to close the prison at Guantanamo Bay than in choosing judges.

Obama, meanwhile, prevailed on Craig to hire Cassandra Butts, a personal friend and law school classmate of Obama’s with a distinguished career on Capitol Hill and in left-of-center politics. (Disclosure: In 2015, I interned on the Center for American Progress’s domestic policy team, which Butts led.) Craig made her his deputy overseeing judicial nominations.

Yet, while Butts was undoubtedly qualified to work in the White House, she had limited experience working in judicial politics. And her legislative background also fit in poorly in a White House counsel’s office that placed credentials such as a Supreme Court clerkship or practice at a white-shoe law firm on a pedestal. That appears to have diminished her influence.

The result of this mix of inexperience and indifference is that the early Obama White House was often slow to nominate judges. And it stumbled into traps that aides more familiar with judicial politics might have avoided.

***

Though Obama’s judicial confirmations effort grew more sophisticated later in his presidency, it never fully recovered from its early missteps. In eight years as president, Obama appointed only 55 federal appellate judges — just one more than Trump appointed in only four years in the White House.

 Biden is doing quite a bit better.  Here's an AP article about his early picks.

Los Muchachos

 Get ready for the new documentary from Billy Corben and Alfred Spellman: Cocaine Cowboys: The Kings of Miami.  It's the only-in-Miami story of Willy & Sal, coming out next week on Netflix.

 

And here is the famous New Times cover from back in the day and the one that came out today:

 

Jury trials?

 Dave Ovalle and Rumpole have been covering the state court jury trial problems with COVID.  It's not good over there right now.  Here is Ovalle's article:

For Miami, the civil trial was relatively routine: an insurance dispute over building damage caused by Hurricane Irma. It was also one of the first lengthy jury trials to be held in person as Miami-Dade courts began opening up after a long pandemic closure.

The trial ended in early July. But then, several lawyers and the judges who had taken part in the two-and-a-half week trial tested positive for COVID-19.

One of the attorneys, Brittany Quintana Martí, who is pregnant, fell ill enough that she spent five days in the hospital. “She had shortness of breath and fatigue. Really horrible fatigue. Her oxygen levels dropped,” said her husband, fellow Miami lawyer Jose Martí.

***

Last week alone, the Miami-Dade State Attorney’s Office disclosed, seven employees were diagnosed with COVID-19. On Monday, the office announced three more employees had tested positive; that’s 17 total since courts reopened fully to the public on June 28.

Since that date, at least 19 Miami-Dade jail inmates have tested positive, according to county statistics; it’s unknown how many of those have physically been to court, although at least two were confirmed in the Richard E. Gerstein Justice Building during the first week back.

That includes one Miami jail inmate who tested positive on the third day of trial for a case involving a drunk-driving car crash. The trial was delayed three weeks, and is expected to resume in the coming days.

Federal jury trials in this district have restarted without any horror stories just yet. But it seems like it is only a matter of time before there is an outbreak in court.  

How are the new SCOTUS justices judging?

 CNN has this piece, which tries to peg how "Trump's appointees are turning the Supreme Court to the right with different tactics."  The beginning of the article seemed really silly to me:

The three appointees of former President Donald Trump have together sealed the Supreme Court's conservatism for a generation, but they have revealed strikingly different methods. They diverge in their regard for practical consequences, their desire to lay down markers for future disputes and their show of internal rivalries.
Neil Gorsuch takes no prisoners. Brett Kavanaugh tries to appear conciliatory, even as he provokes internal conflict. And Amy Coney Barrett is holding her fire, for the moment.
Whether their differences intensify or fade will determine the Trump effect on the high court and how fast the law moves rightward regarding abortion rights, gun control, religion and LGBTQ clashes.

 What does that even mean?

Here's the conclusion:

Overall, the three Trump appointees voted together with fellow conservatives (Roberts, Clarence Thomas and Samuel Alito) in the most consequential cases of the 2020-21 session.

They curtailed the reach of the Voting Rights Act, threatened the ability of states to impose disclosure requirements on political donors and strengthened property rights in the face of government regulation. That last dispute, from California, arose from union organizers' efforts to temporarily enter agricultural property to talk to migrant farmworkers.

But as the three went their individual ways, Gorsuch agreed more with far-right conservatives Thomas and Alito, while Kavanagh and Barrett aligned more with Roberts at the center-right of this nine-member bench.

Overall in the recently completed session, Gorsuch agreed most with Thomas, 73% in full and 87% in part, according to SCOTUSblog annual statistics. Meanwhile, Kavanaugh and Barrett had one of the highest rates of agreement in cases: 75% in full and 91% in part.

Trump has touted his influence on the federal judiciary as one of his greatest achievements in office. That impact will swell as his appointees across the judiciary -- especially on the high court -- gain seniority and further shape the law with their opinions.

Well, that bolded part is interesting.   

Breaking — Rubio JNC announces finalists

For Judge, they recommend David Leibowitz and Detra Shaw-Wilder  

For US Attorney, Jackie Arango, Markenzie Lapointe, and Andres Rivero  

For Marshal, Gadyaces Serralta  

First federal criminal jury trial since the pandemic...

 ... is a NOT GUILTY.

It was a carjacking and firearm case before Judge Middlebrooks.  Vic Rocha for the defense.

It will be interesting to hear the details about jury selection, masks, and so on about the case.

More to follow. 

Michael Avenatti to represent himself in California

He will be opening this morning.  I like the move as a matter of strategy.

Meghann Cuniff has some great coverage on Twitter about how it went down yesterday and in this Law.com article:

Michael Avenatti will represent himself in his California client theft trial, wrestling the spot from his taxpayer-funded lawyer minutes before a jury was empaneled Tuesday in an Orange County federal courtroom. In an extraordinary move in a high-stakes white-collar criminal case, Avenatti stood as U.S. District Judge James V. Selna’s clerk was about to swear in 12 jurors and said he had a “Faretta issue,” referring to the 1975 U.S. Supreme Court case Faretta v. California, which established defendant’s right to self represent. “No, no. Sit down. Sit down. Sit down, Michael,” his attorney, solo practitioner H. Dean Steward, told him. It didn’t work. With jurors gone for lunch, Avenatti conferenced with Steward for a few minutes then told Selna he wanted to “participate in my defense.” Avenatti told the judge jurors don’t seem to differentiate between civil and criminal defense attorneys, and he was “critically concerned that if I do not play a role in my defense that that will be held against me.” Avenatti told Selna he’s “still a member of the [California State] Bar. I’m under temporary suspension, just to be clear.” Selna warned him: “You can’t appear in this court in a capacity as an attorney with that suspension.”

Avenatti is very forceful and clear in his questioning. Not easy to describe, but that's what I keep going to. He's looking at the juror while standing at the podium, nodding and listening. Guy is talking about his panic attacks.

— Meghann Cuniff (@meghanncuniff) July 20, 2021