"I want to reiterate to all department personnel…that they are prohibited from soliciting, procuring, or accepting commercial sex."

That was a friendly reminder from Attorney General Eric Holder to DOJ employees not to hire prostitutes even if it's legal in that country:

As an excuse for his actions, one DEA agent told investigators that prostitution is “considered a part of the local culture” — Holder dismissed this line of reasoning outright in his letter.
“Regardless of whether prostitution is legal or tolerated in a particular jurisdiction,” he wrote, “soliciting prostitutes creates a greater demand for human trafficking victims and a consequent increase in…commercial sex slavery.”

Friday news and notes

1.  Justice Sotomayor had dinner with the Clooneys, per Page Six.

2.  AP: The FBI is getting a $200 million building in Miramar.  But we can't get a new state courthouse.

3.  This lawsuit says: Keep the Kardashians out of Florida!

4.  New proposed sentencing guidelines for fraud. Up up and away!

An Unusual Decision Not to Publish - by Guest Blogger Brian Toth

An Unusual Decision Not to Publish - by Brian Toth

 

Earlier this year, Justice Thomas, joined by Justice Scalia, dissented from the court’s decision not to review a ruling by the Fourth Circuit reviving a habeas petitioner’s claim that he was sentenced too harshly by a vindictive judge. The dissent in Plumley v. Austin was notable mostly for its sharp criticism of the Fourth Circuit’s choice to label its decision “unpublished”—that is, without precedential effect. The Fourth Circuit’s decision was 40 pages long, rendered after oral argument, contained a dissent, and, in Justice Thomas’s view, satisfied three criteria for publishing decisions. “It is hard to imagine,” Justice Thomas wrote, “a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the Circuit.”

Yesterday, the Eleventh Circuit issued a decision in United States v. Rivero affirming a 30-year sentence for a 56-year-old defendant who pleaded guilty to possession with an intent to distribute cocaine and marijuana. Because Mr. Rivero qualified as a career offender, his advisory-guidelines range was 188 to 235 months. The government recommended that Mr. Rivero be sentenced toward to bottom of that range, but the district court, citing his lengthy criminal history, sentenced him to 360 months in prison—the statutory maximum. The Eleventh Circuit’s decision was rendered after oral argument and over a forceful dissent by the panel’s only active judge, Judge Martin, who addressed not just Mr. Rivero’s case but also the court’s precedents on sentencing. The Eleventh Circuit’s decision in Rivero, like the Fourth Circuit’s in Austin, was unpublished. Why?

In certain respects, the panel’s choice not to publish Rivero seems sound, and might even, to some, be preferable. Mr. Rivero’s first argument on appeal—was he a career offender?—was foreclosed by precedent, and applying precedent to new cases rarely justifies publication alone. And the majority disposed of Mr. Rivero’s challenge to the reasonableness of his sentence by carefully hewing to the court’s precedents and to its highly deferential standard of review. Plus, the decision doesn’t create binding precedent for imposing on other defendants, in Judge Martin’s words, “an extraordinary sentence for what seems to be an ordinary crime.” The court metes out tough justice for Mr. Rivero, but only for Mr. Rivero. 

But for those who closely follow the Eleventh Circuit, that yesterday’s decision is unpublished may seem unusual. The Eleventh Circuit takes special interest in sentencing, and nearly always seems to publish decisions involving large variances (only death-penalty cases get similar automatic-publication treatment). Further, because we want similarly situated defendants to be sentenced similarly—and because, presumably, we want the process in which they are sentenced to be similar, too—publishing decisions involving sentencing is important. The court, moreover, publishes many decisions where, as in Rivero, there has been oral argument. And although it’s common for the Eleventh Circuit to dispose of an appeal in an unpublished decision after oral argument where the result is clear, it’s not common to do so where there has been a strong dissent by the only active judge on the panel. And the facts of this case are compelling: Mr. Rivero, a 56-year-old man, indeed has a long criminal history, but he was given a tough sentence for, according to the majority, an “unremarkable” current offense. And the government recommended a bottom-of-the-guidelines sentence as well. In short, this is not your run-of-the-mill sentencing case. 

Courts don’t say why they publish their decisions; per the Eleventh Circuit’s internal operating procedures, the choice is up to the majority of the panel. Thus, why Rivero is unpublished is anybody’s guess. But I suspect that a principal reason was, as Justice Thomas observed in Austin, “to avoid creating binding law for the Circuit.” If so, then the question still remains, Why?

I don’t know and, to be clear, I’m not criticizing the majority’s choice not to publish Rivero. But one by-product of its decision seems clear: the likelihood of en banc review is greatly reduced, for there is little reason for the full court to undertake the arduous process of reviewing a decision that doesn’t bind it or lower courts. In dissent, Judge Martin observed that she was “aware of no published opinion in which we have held that an above-Guidelines sentence was substantively unreasonable.” If Rivero had been published, her observation would remain true. But it would also be true that the likelihood of en banc review—and therefore the likelihood of a published opinion in which an above-guidelines sentence was held to be substantively unreasonable—would have been greater.

"Was Dzhokhar Tsarnaev trial necessary?"

That's the provocative headline to this Nancy Gertner op-ed.  If Tsarnaev would have pleaded guilty to life without parole and where Massachusetts doesn't have the death penalty, should we have used all of these federal resources on a trial?  A snippet:

Perhaps Attorney General Eric Holder wanted to show that the government does not need Guantanamo or military tribunals to secure the death penalty for those accused of terrorism. Perhaps he believed that any lesser punishment would expose the administration to criticism about the softness of the civilian system and reopen the floodgates to military tribunals. But that political calculation hardly justifies what the government seeks here, its costs, its emotional toll on the victims and on the city, the likelihood of extensive appeals, even the risk of error, particularly when there was another alternative — a plea of guilty in exchange for life without parole.
Following such a plea, the victims would have spoken at length at a sentencing proceeding, directly confronting Tsarnaev. Their narratives would have been no less compelling than what we have heard the past few weeks. The focus would have been on them, and only them. And once life without parole was imposed, the case would have been over, completely and totally. There would have been no appeals.

***
In some ways, this phase may be more difficult than the first phase. At this point, the focus necessarily shifts to Tsarnaev and away from the victims. More troubling, the jury’s life-and-death decision could be taking place at the same time as the second anniversary of the bombing. Boston is gearing up for the Marathon, and jurors will be passing the banners, the familiar sights of Marathon Monday, coupled with the city’s commemoration of the tragedy. Jurors are supposed to tune out the press. While it is difficult in a high-profile case, here their efforts will have to be extraordinary. And any juror’s exposure to the emotional and intense coverage could put the entire trial at risk on appeal.
The choices for the government should not be a death finding in a civilian court, or a death finding in a military tribunal, lethal injection or a firing squad. Countless others accused of heinous crimes have pled guilty to a life without parole. There was another way. There still is.

Accusations against Dersh stricken

A justified win for Professor Dershowitz before Judge Marra.  Via the AP:

A federal judge rejected a bid by two women to join a high-profile sexual abuse lawsuit and ordered scandalous sex allegations against Britain's Prince Andrew and a prominent U.S. lawyer removed from the court record.

U.S. District Judge Kenneth Marra's ruling Tuesday came in a case involving wealthy financier Jeffrey Epstein. The two women, identified as Jane Does No. 3 and No. 4, claim to be among dozens of women Epstein sexually abused as teenagers at locations ranging from a Palm Beach mansion to a private Caribbean island to a sprawling New Mexico ranch.
The women wanted to join a lawsuit filed by other alleged victims. The lawsuit against the U.S. government seeks to reopen a non-prosecution agreement Epstein reached with federal prosecutors. Epstein pleaded guilty more than six years ago to state sex offenses and served a 13-month jail sentence, but could have gotten a much longer prison term if the Justice Department had brought charges.
Federal prosecutors opposed allowing the two Jane Does to join the lawsuit, which was filed in 2008, and Marra agreed.
"Justice does not require amendment in this instance," the judge wrote.
Marra also ordered sensational allegations against Prince Andrew and well-known lawyer Alan Dershowitz, a former Harvard Law School professor, stricken from the court record. Both denied any wrongdoing, with Dershowitz contending in his own court filings that Jane Doe No. 3 made up sex abuse stories involving him. Buckingham Palace stood by Prince Andrew, the second son of Queen Elizabeth II who is also known as the Duke of York.
Marra said the sex abuse details had no bearing on the lawsuit's goal of reopening the Epstein non-prosecution agreement.
"The factual details regarding with whom and where the Jane Does engaged in sexual activities are immaterial and impertinent to this central claim," the judge wrote. "These unnecessary details shall be stricken."
Buckingham Palace had no comment Tuesday, referring to its past denials. Dershowitz, in a statement, called the decision "a vindication of my position" and said it should serve as a warning to attorneys against making unsupported allegations.

Full Disclosure -- I'm quoted in this article in support of the decision.

Update -- Dersh is on the record with ATL:

This isn’t the end of all Epstein-related litigation for Professor Dershowitz. He’s still a defendant in that libel action filed against him by Paul Cassell and Bradley Edwards, counsel to Jane Doe #3 aka Virginia Roberts. But Professor Dershowitz might actually welcome the continuation of that case. With his involvement in the Jane Doe case now over, the defamation case may be the best avenue for completely disproving the allegations against him.
UPDATE (2:45 p.m.): I just raised this possibility in email correspondence with Professor Dershowitz, and he agreed: “Right. I won’t rest until she admits she made it up.”
In his 1982 memoir, The Best Defense (affiliate link), Professor Dershowitz wrote, “Sometimes the public has to be reminded that the word criminal in criminal lawyer — like the word baby in baby doctor — is a description not of the professional, but rather of the clientele.” Alan Dershowitz might represent criminals, but he’s no criminal himself — and those who allege otherwise do so at their peril.