News & Notes (UPDATED)

-- The JNC's interviews are open to the public today and tomorrow.  Anyone there and want to report back?

-- The ABA has listed its top blogs and twitter accounts.

-- Rumpole may want to pay attention to the 6th Circuit case in which the Court is considering outing the anonymous blogger.

-- James Gonzalo Medina was sentenced to 25 years in prison for attempting to attack an Aventura, Florida synagogue and attempting to provide material support to a foreign terrorist organization.  

UPDATE -- Congrats to Ashley Litwin and Marc Seitles for their win in the 11th Circuit today.  Here's the opinion by Judge Rosenbaum, which starts off like this:

 Theodor Seuss Geisel (perhaps better known as Dr. Seuss) is said to have observed, “Sometimes the questions are complicated and the answers are simple.”1 This is one of those times.
This direct appeal of Defendant-Appellant Edriss Baptiste’s sentence for access-device fraud and aggravated identity theft requires us to determine how to account in Baptiste’s criminal-history calculation for Baptiste’s ostensible sentence from a prior state case. More specifically, a state court purported to sentence Baptiste for a marijuana-possession conviction to “198 days time served,” referring to time he spent in U.S. Immigration and Customs Enforcement detention. Based on this disposition, the district court scored Baptiste two criminal-history points and therefore concluded his criminal-history category was II.
The parties debate whether time in Immigration custody can ever qualify as “imprisonment” for purposes of determining criminal history under the Guidelines. While the parties raise interesting arguments, we instead resolve this case by concluding that where, as here, a defendant has pled guilty to a prior crime and adjudication has been withheld, that disposition must be counted for a single criminal-history point under § 4A1.1(c) of the Guidelines, regardless of whether the sentencing court purported to impose—or even actually imposed—198 days or no days of imprisonment. For this reason, we vacate the sentence imposed by the district court and remand for resentencing, using a criminal-history category of I.

Back at it.

I hope everyone had a wonderful Thanksgiving weekend. It’s back at it, this Monday morning. It’s been almost a year, and we still do not have a U.S. Attorney nominee. But our acting U.S. Attorney, Ben Greenberg, will be interviewing (along with 23 others) for one of the 5 open judicial slots this week. The JNC will be cutting the list to 10, and then our 2 Senators will send 5 names to the President. It’s not altogether clear whether the President will nominate those 5 people or go with 5 of his own. And to come full circle, recent whispers around town have one of those JNC members, Jon Sale, as the emerging candidate (again) for U.S. Attorney.

The big cell-phone privacy case, Carpenter v. U.S., will be argued this week in the Supreme Court. I argued the same issue before the en banc 11th Circuit in U.S. v. Quartavious Davis, so this is an issue close to home for me. A few members of the 11th Circuit questioned whether the 3rd party doctrine should apply in our new technological world. This morning in the Washington Post, the lawyer who successfully argued Smith v. Maryland (one of the 2 leading 3rd party cases), wrote an op-ed saying (rightfully) that those old cases should not apply to our cell-phones:

That new world is defined by the rapid increase in sophisticated — and invasive — technology. It is also defined by a relentless and pervasive assault on privacy. As journalist Julia Angwin has shown in her book “Dragnet Nation,” the new digital world can track our movements, seize our secrets, manipulate our finances and much more.

In such a world, the very notion of a “legitimate expectation of privacy” seems antique.

There is evidence that the courts are catching on. Most predictive, perhaps, are the words of Justice Sonia Sotomayor, concurring in a 2012 case holding that the clandestine and warrantless attachment of a GPS tracking device to a defendant’s car was an unconstitutional search. Sotomayor suggested that “the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties” is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” As Sotomayor noted, “People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the email addresses with which they correspond to their internet service providers; and the books, groceries and medications they purchase to online retailers.”
Sotomayor is right. The Supreme Court should develop a modern Fourth Amendment doctrine. Such a test would recognize the legitimate claims of law enforcement but set objective boundaries — such as the duration of an intrusion or the nature of the data seized — that constrain those claims. The Carpenter case is the court’s opportunity to do so.

The world has changed profoundly since I argued Smith v. Maryland. And as Oliver Wendell Holmes Jr. taught us long ago: “The life of the law has not been logic; it has been experience.”

RIP William J. Surowiec, Esq.

RIP William J. Surowiec, Esq.

A great lawyer and super nice guy. And his wife is the best. So sad.

It's been an awful week in the District. Rumpole has a nice post about him here.

A celebration of his life will take place Saturday, November 25, 2017 at 2:00 pm., at the Key Biscayne Yacht Club.

RIP William M. Hoeveler

RIP William M. Hoeveler, a long-time well-respected judge in our District.  here:

The Herald has a nice and detailed obit

Hoeveler even drew praise from the most infamous defendant ever to appear in his courtroom, the deposed Panamanian General Manuel Noriega, who was captured by U.S. forces that invaded Panama in late 1989, leading to a nationally covered Miami trial that was “the mother of all battles in the war on drugs,” as one prosecutor later described it.

“The one shining light through this legal nightmare has been your honor,” said Noriega, who was convicted of cocaine trafficking and racketeering charges in 1992. “You have acted as honest and fair as anyone can hope for.”
***
His judicial secretary for nearly 40 years, Janice Tinsman, once wrote that while Hoeveler is “often considered by people to be the epitome of what a judge should be ... there is another thing he has taught us that many people do not realize, and that is we are on a journey in our lives.”

“I have seen him journey back from a stroke because he believed in what he did in serving the public,” Tinsman wrote in 2011, when Hoeveler won the Federal Bar Association’s Judicial Excellence award, named after the late U.S. District Judge Edward B. “Ned” Davis. “He did not just sit down and not come back. I have seen him journey back from the loss of his wife [Griff] only a couple of months after suffering his stroke.

“He did not quit. ... He loves the law. He did not give up. ... He has shown us that he is a man of faith in God. He has shown us that our paths in life, no matter what has put us on that path or what is in front of us, that we must always journey on.”

RIP Judge Kenneth Ryskamp

RIP Judge Kenneth Ryskamp.  He was 85.  A nice man, who served this District for a very long time.

From his Wiki page:

Education and career

Born in Grand Rapids, Michigan, Ryskamp received an Artium Baccalaureus degree from Calvin College in 1955. He received a Juris Doctor from University of Miami School of Law in 1956. He was a law clerk for Judge Mallory H. Horton of the Florida Third District Court of Appeal from 1957 to 1959. He was in private practice of law in Miami, Florida from 1959 to 1986.^[1]

Federal judicial service

Ryskamp was nominated by President Ronald Reagan on March 12, 1986, to a seat on the United States District Court for the Southern District of Florida vacated by Judge Joe Oscar Eaton. He was confirmed by the United States Senate on April 23, 1986, and received commission on April 24, 1986. He took the judicial oath and commenced service on May 2, 1986. He assumed senior status on January 1, 2000.^[1] As of January 2017, Ryskamp has taken inactive senior status, meaning that while he remains a federal judge, he no longer hears cases or participates in the business of the court.^[2]