Three-week-old news

It seems that some important findings and conclusions came out while D.O.M.—who has been indefatigable with his exhaustive coverage of Paris Hilton—was out of town. This oversight needs immediate and painstaking correction.

You will doubtlessly recall that the receiver to a film company claims Paris breached a contract by failing to promote the film Pledge This!. Last year, The Chief, applying New York law, held that the receiver was not entitled to reliance damages, i.e., the $8.3 million spent making the movie. (Seems like a lot for a film that The Chief noted was “hardly destined for critical acclaim.” {I hope that doesn’t mean he had to watch it.}) Nonetheless, the receiver might be entitled to some of the $1 million paid to Paris if she has been unjustly enriched. (Not in general—Paris Hilton is obviously unjustly enriched, if anyone is—but with regard to this project.)

So, the receiver had an expert go through a bunch of Paris Hilton’s contracts to figure out what it costs to have her, say, show up at a party and do some “non-meaningful speaking” and what it costs to have her attempt the other kind of speaking. Paris’ lawyers argued, apparently seriously, that this method “fails to value the benefit the producers received from Ms. Hilton’s acting services.” Notwithstanding, about three weeks ago, The Chief decided that Paris failed to deliver $160,000 worth of meaningful speaking.

The next step is for the parties to figure out whether the work Paris did—including her dramatic rendering of protagonist Victoria English, leader of “the most popular and exclusive sorority” at South Beach University—was worth more than $840,000. How could it not be? Briefs are due on October 15, 2010. So, expect a report from D.O.M. on that.

Judge Gold and the EPA face off

Back in April, having granted summary judgment largely to the plaintiffs in an Everglades environmental suit, Judge Gold told the EPA to quit dragging its feet and clean up the Everglades. A hearing was set for October 7 at which the EPA administrator was to explain to the court why the agency had failed to comply with various orders. On September 8, the EPA filed a 9-page motion saying that head Lisa Jackson was too busy to personally attend and would send her Water guy instead. The plaintiffs filed a 9-page response saying that it would really be helpful if Lisa herself came since, you know, this has been going on a long time already and there are lots of things that need to be cleared up. (I’m paraphrasing here.) And then Judge Gold entered a 9-page order saying that the EPA could bring anyone they wanted, as long as Lisa Jackson was among them. Money quotes:

Despite knowing for approximately five months that the EPA Administrator was ordered to appear at the hearing, Defendants now move—one month prior to the October 7, 2010 hearing—for a substitution of appearance.

In sum, Defendants have not demonstrated any showing of a matter of national importance, issue, or great significance to preclude the EPA Administrator—a named party—from attending the hearing. Rather, as recognized by all parties, protection of the Everglades is of considerable national importance. The Court's findings regarding the past actions of all Defendants, including the EPA, reveal how this litigation has continually persisted over the course of years. The Court must be able to make an intelligent inquiry regarding the EPA's position and policy matters, to be addressed by the EPA Administrator.

Well, the EPA filed a notice of appeal referencing that order yesterday. That's what they meant when they told the Herald they were “working with the Department of Justice to respond to the judge’s order.”

Get out your red pens

So, there are press reports that a bunch of neo-red-scare-artist-types have signed a letter to President Obama asking for the release of the five Cuban spies convicted here in the SDFla a while back. The problem is I can’t find a report about this that doesn’t ultimately trace back to Granma, the official news organ of the Cuban government. So, I don’t know whether to believe that these people are comunistas or victims of a comunista smear campaign. Either way, here are their names: Miguel Bosé, Juanes, Olga Tañón, Sean Penn, Benicio del Toro, Ry Cooder, Pete Seeger, Bonnie Raitt, Oliver Stone, Martin Sheen, Susan Sarandon, Danny Glover, and Ed Asner (“Oh, Mr. Grant, how could you?”). There’s a bunch more, but I got tired.

Trials in the news

D.O.M. and Michael Pasano are in separate trials, and both are in the news. (D.O.M.’s trial violates topicality for this blog because it is not in the SDFla, but, given that D.O.M. doesn’t really take topicality seriously at all, I figure I can get away with a link.)

Pasano’s tax fraud trial is in this district, before Judge Zloch, and since I can’t readily link to the DBR, I’ll again follow D.O.M.’s lead and liberally quote from it:

Michael Pasano, a partner at Carlton Fields in Miami, on cross-examination accused [government witness] Habib Levy of trying to hide assets from the government of Venezuela. He also brought up an affair the married Levy had with a woman who worked for Cohen Assor at a perfume business in Paris.

The exchange was clearly the most colorful in a trial full of technical documentation and signature comparisons.

Okay, one more thing: a look at the docket shows that the government and Pasano had a little pre-trial skirmish in their supplemental trial briefs about the latitude the Sixth Amendment affords a criminal defendant in demonstrating bias on the part of a witness. I will leave the government’s position to your imagination. Suffice it to say that, if I had 20 students in my evidence class rather than 140, I could use trial briefs like these to have way more interesting class discussions than the textbook affords.

A sign of the times

Missouri is attaching little price tags to its pre-sentence reports so that judges realize that executing sentences is not free. Defense attorneys applaud this, and prosecutors decry it. Money quote: “‘No one can put a price tag on being a victim,’ said Scott Burns, executive director of the National District Attorneys Association.”

Oh, Scott, did they not teach torts at your law school? It turns out that one of the main reasons we have law, Scott, is to put a dollar value on the harm visited upon victims of intentional and accidental wrongs. True, money is never going to bring back the dead, but it’s what we do so that civilization doesn’t crumble in a chaotic cycle of retribution and vigilanteism. It’s been going on for hundreds of years, and it works pretty well.

There’s also a lot of good reasons why we have judges—and not victims—craft sentences. One of those is that judges are supposed to act dispassionately and create a sentence that will maximize the public good—not only vindicate the victim. Judges can do that better if they are aware of the impact their choices have on the public fisc. Plus, if this were implemented at the federal level, it would give probation officers something to put into a pre-sentence investigation report that doesn’t entail having them make legal arguments.

I hope this goes to trial

Sometimes it’s hard to tell the cops from the robbers. That’s more or less what defense attorney Robert Pelier told the press about his client, Hialeah Gardens Police Detective Lawrence Perez. The federal government, for its part, alleges that Detective Perez conspired with one “Negro” and one “Chuchi” to rob a marijuana stash house. The news accounts don’t mention the aliases of Detective Perez’s alleged co-conspirators, but I thought you should know. Negro is supposedly a drug dealer and wanted Detective Perez’s help to rob a competitor. You would never know all this from the indictment, which sticks to the tried-and-true charges of attempting to possess with intent to distribute and conspiring to do so. Thankfully, the U.S. Attorney’s Office’s press releases fill the lacuna of narrative detail. The government and Detective Perez stipulated to a $50,000 corporate surety bond before Magistrate Judge McAliley. Federal Public Defender Kathleen Williams’ office was appointed to represent Negro. There is no record of Chuchi having had his initial appearance. Judge Jordan has the case.

How is this not a bigger deal?

So, I started doing some reading to figure out what’s going on in the SDFla so that I can guest-host while D.O.M. rededicates himself to the practice of law. The news is good and bad. The good news is that the feds caught two people who really needed to be caught and who are guilty of the sort of crime that cries out for federal retribution. The bad news is that the factual proffer from Friday’s plea colloquy before Judge Marra makes me think that there may well be a deep circle in hell set aside for these defendants. Alfonso Baldonado, Jr., and Sophia Manuel admitted to extorting money from Filipino workers and luring them to Boca with false promises of lucrative employment at places like the Ritz. These victims went into substantial debt to travel here only to become an exploited cheap labor pool for the defendants’ staffing company. The two convicts confiscated the workers’ passports and terrorized them with threats of jail and deportation. Thirty workers slept side-by-side “on the kitchen, garage, and dining room floors.” They were fed “chicken feet, necks, innards, and rotten vegetables.” The litany of horribles goes on and on. Sentencing is set for December 10.

What I don’t understand is how this slavery case gets all of four short paragraphs in the newspapers. Maybe part of the reason is that Willy Ferrer put out a very professional and measured quote—“They came here seeking a better life, but found their dream of freedom transformed into a real-life nightmare of servitude and fear.” If I were U.S. Attorney, I would have said something like, “These defendants deserve to be tortured gruesomely and slowly, and I am frustrated that all we can do is put them in the same prisons where we put drug dealers.” Which alone is enough to explain why I’m not U.S. Attorney.

“At this age, I’m not even buying green bananas.”

Gotta love that quote from 103-year old district judge Wesley E. Brown, the oldest federal judge in the country (from the NYT):

Judge Wesley E. Brown’s mere presence in his courtroom is seen as something of a daily miracle. His diminished frame is nearly lost behind the bench. A tube under his nose feeds him oxygen during hearings. And he warns lawyers preparing for lengthy court battles that he may not live to see the cases to completion, adding the old saying, “At this age, I’m not even buying green bananas.”
At 103, Judge Brown, of the United States District Court here, is old enough to have been unusually old when he enlisted during World War II. He is old enough to have witnessed a former law clerk’s appointment to serve beside him as a district judge — and, almost two decades later, the former clerk’s move to senior status. Judge Brown is so old, in fact, that in less than a year, should he survive, he will become the oldest practicing federal judge in the history of the United States.
Upon learning of the remarkable longevity of the man who was likely to sentence him to prison, Randy Hicks, like many defendants, became nervous. He worried whether Judge Brown was of sound enough mind to understand the legal issues of a complex wire fraud case and healthy enough to make it through what turned out to be two years of hearings. “And then,” he said, “I realized that people were probably thinking the same thing 20 years ago.”
“He might be up there another 20 years,” added Mr. Hicks, 40, who recently completed a 30-month sentence and calls himself an admirer of Judge Brown. “And I hope he is.”
The Constitution grants federal judges an almost-unparalleled option to keep working “during good behavior,” which, in practice, has meant as long as they want. But since that language was written, average life expectancy has more than doubled, to almost 80, and the number of people who live beyond 100 is rapidly growing. (Of the 10 oldest practicing federal judges on record, all but one served in the last 15 years.)

Whacked

Judge Zloch sentenced a former Guatemalan soldier, Gilberto Jordan, to the maximum 10 years today lying on citizenship forms about his military service and role in the killings. It was a hefty upward variance. From Curt Anderson's report:

Jordan could have received just six months behind bars under sentencing guidelines. But prosecutors asked U.S. District Judge William Zloch to impose the maximum possible, a 10-year sentence.

They said Jordan admitted to U.S. Immigration and Customs Enforcement agents that he participated in the December 1982 massacre in the Guatemalan village of Dos Erres, including personally throwing an infant down a well.

Investigators say at least 162 people died, many hit with sledgehammers or shot.

"Mr. Jordan admitted to killing a baby. He then participated in the killings of countless other men, women and children," said Hillary Davidson, a U.S. Justice Department senior trial attorney. "He never should have been allowed to live here peacefully for many years."

Zloch was just as harsh, saying Jordan tried to hide "his background as a mass murderer." Referring to the 10-year sentence, the judge said: "Anything less would be totally inadequate as just punishment for this crime and its accompanying heinous acts."

Quick hits

1. I love this story from BLT -- senators are conducting the impeachment trial of U.S. District Judge G. Thomas Porteous Jr. and the schedule they are trying to keep to is about 8am to 7:30 pm. They need at least 7 senators to hear evidence. Problem is that they are having a tough time keeping 7 senators around for such a long day:

But senators, who aren’t used to staying in one place during the day, have had trouble keeping to the plan.

Today, for example, the 12-member committee that’s conducting the trial recessed at 11 a.m., so that its members could cast votes on the Senate floor. Sen. Claire McCaskill (D-Mo.), the committee’s chairwoman, asked her colleagues to return at 11:40 a.m. to hear more testimony before lunch. But only a few of them did, and seven members must be present before the committee can hear testimony.

“It doesn’t appear we’re going to get seven,” McCaskill said shortly after noon. “We have to have seven members before we can proceed.”

2. Also gotta love the 9th -- they don't put up with the Miranda two-step. Or illegally seizing ballplayers' drug-test records.

3. You all know that I really think that we should have cameras in federal court. But who is going to watch civil trials? Zzzzzzzzzzz.

4. Justices Ginsburg and Kagan know how to parttyyyyyyyyyyyyy.

Tuesday

What's with this rain every morning during rush hour traffic? US1 is really fun in the rain.

The Northern District is hearing the health care lawsuits:

Florida takes center stage this week in the fight over the federal health care law that consumed Congress for the better part of a year, and along with it, so will a Pensacola judge who is no stranger to hot button issues.
U.S. District Judge Roger Vinson, a Reagan nominee to the bench who presided over two high profile abortion clinic violence cases in the 1980s and 1990s, will hear oral arguments on the U.S. Department of Justice's motion to dismiss the lawsuit filed against the health care law by Florida and 18 other states on Tuesday.
The plaintiffs, the states, argue that the health care law illegally requires all citizens and legal residents to have health care coverage or pay a tax penalty, which they say is a violation the U.S. Constitution's Commerce Clause. The plaintiffs also say the law runs afoul of the states' rights guarantee in the 10th Amendment of the U.S. Constitution.
Also joining the suit: the National Federation of Independent Business and Florida residents Mary Brown and Kaj Ahlburg.
The defendant, the U.S. Justice Department, counters that overturning the health care law would unduly expand judicial review of Congress and other government branches. More specially, the DOJ argues that Congress has the power to determine how federal money appropriated for Medicaid may be spent and can give states an option of setting up their own health exchanges or having the federal government do so.

Vinson is an interesting judge:

Vinson, who was nominated to the federal bench in 1983 by President Ronald Reagan, has indicated he knows the legal world will be waiting for his verdict, but that it will almost certainly be immediately appealed no matter which way he comes down. The case is widely expected to end up at the U.S. Supreme Court, which means a final legal decision could take years.
Other than the timing and allowing the arguments on the merits of the case to be heard, Vinson has not said much about the nonjury proceeding. But Ben Gordon, a Fort Walton Beach lawyer who clerked for him from 2000-02, said Vinson will likely keep the lawyers from both sides on their toes.
``He will be a very intelligent judge who does a lot of his own work,'' Gordon said, which made clerking for Vinson ``interesting because he wouldn't just rely on what I and other clerks told him.''
``He'll educate himself and have read all the key cases,'' Gordon said. ``I anticipate he'll ask probing questions on both sides. It'll be interesting to watch. I believe he will have some questions the lawyers might not anticipate. He'll be that engaged in this.''
Vinson, 70, is no stranger to cases involving issues at the center of national debates. In 1985, Vinson sentenced two men, Matt Goldsby and James Simmons, to 10 years in prison for their role in bombing an abortion clinic, though he made them eligible for early parole and gave Goldsby's fiancée and Simmons' wife, who were convicted of conspiracy, to five years probation. Nobody died in the bombing.
Vinson also presided over the federal trial of Paul Hill, who was convicted and later executed for the 1994 murders of a Pensacola abortion provider and a volunteer escort at an abortion clinic. Hill was sentenced to death in state court, but Vinson sentenced him to two additional life terms for violating the federal clinic access law. Hill was executed in 2003.

In other news, confessions don't work.

Supreme Court Justices aren't on the JV team -- they're varsity.

SFL beat me in week one Fantasy. It's a long season....

Football Sunday

Let's go Fins.

Some weekend news:

Interestingly, Justice Kagan has recused in 21 out of the 40 cases in which the Court has granted cert. Wow, that seems like a huge number to me.

Another huge number -- almost 2000 Justice employees owe more than $14 million in 2009 taxes. Here's the WaPo article.

Jonathan Goodman investiture today at 2pm (UPDATED)

Congrats again to Magistrate Judge Goodman. See you all there.

Update -- it was a great ceremony.

Judge McAliley did the invocation (which was beautiful); Chief Judge Moreno then opened (lots of good jokes and stories -- including that Judge Marcus forgot his robes and had to wear Judge Moreno's Notre Dame robes); Frank Agnones presented the Bible; James Miller, Jeffrey Mandler, Stanley Wakshlag, and William Xanttopoulos spoke. Then Judge Goodman gave a response -- and he mentioned the blog. Very cool. Thanks for the mention Judge Goodman.

Short week

Labor Day and Rosh Hashanah in one week makes for slow news.

South Florida Lawyers has more on the 11th Circuit "boy" case. The NY Times has gotten interested in the story:

Last month, for the third time and in the face of a 2006 rebuke from the United States Supreme Court, the federal appeals court in Atlanta said there were no racial overtones when a white supervisor called an adult black man “boy.”
“The usages were conversational,” the majority explained, repeating what it had told the trial court after the Supreme Court ruled, and “nonracial in context.” Even if “somehow construed as racial,” the unsigned 2-to-1 decision went on, “the comments were ambiguous stray remarks” that were not proof of employment discrimination.
Two Alabama juries had seen things differently.
They had heard testimony from another black Tyson worker, Anthony Ash, who recalled sitting in the cafeteria at lunchtime when the plant’s manager said, “Boy, you better get going.” Mr. Ash said the manager’s tone was “mean and derogatory.”
Mr. Ash’s wife was there. “He’s not a boy,” Pam Ash shot back, according to her husband. “He’s a man.”
Ms. Ash testified that the manager, Tom Hatley, “just looked at me with a smirk on his face like it was funny.”
Mr. Ash explained to the jury why the remark stung.
“You know,” he said, “being in the South, and everybody know being in the South, a white man says ‘boy’ to a black man, that’s an offensive word.”

I wonder how the 11th Circuit will deal with this case when the jury awards a big number to the wrongfully arrested:

An Orlando mother was arrested after disembarking from a cruise ship, mistaken for a suspected prostitute wanted in Central Florida.
Thirty-one-year-old Paola Londono spent more than 36 hours in a South Florida jail before her attorney could persuade a judge to let her out. She had been mistaken for a woman with the same name, but who was seven years younger, five inches taller and looked completely different.

Rumpole and I finally agreed to terms on our NFL bet. We will each take one team against the spread. This week I took TB -3. Wish me luck.

Tuesday morning notes

Here's some fun to get your week started:



In other news:

1. SFL covers political law clerks.

2. Curt Anderson has this interesting piece on the lawsuit to recover for pre-WWII German bonds

3. The blog draft was yesterday. Here's your winning squad:

Phillip Rivers
Reggie Wayne
Miles Austin
Michael Crabtree
Ray Rice
Knowshon Moreno
Jason Witten
Justin Forsett
Donald Driver
Michael Bush
Kevin Kolb
Willis McGahee
Louis Murphy
Joshua Cribbs
Roy Williams
Fred Taylor
James Jones
James Davis
New Orleans Defense
Mason Crosby

Random Friday thoughts

UPDATE -- we still need one more team for the Blog Fantasy Football league. Email Miguel De La O at delao13@gmail.com if you want in.

1. Bill Barzee has filed a complaint against David Rivera. From the Herald article: "David and his campaign have to learn that you have to play by the rules,'' Barzee said of his complaint. ``All I'm concerned about is that this will stop.'' The FEC confirmed it received Barzee's complaint on Aug. 26. The commission does not comment on a complaint's status, which is confidential.


2. "Still a virgin" signs are cropping up all over Florida.


3. Here's a picture from my DC trip yesterday. That's the Main Justice building, which is harder to get into than Ft. Knox.


4. I didn't know what a "cramming scheme" was. But it gets you a lot of time in jail. From the Sun-Sentinel: Willoughby Farr went into the Palm Beach County Jail in October 2003 and became a multimillionaire behind bars.
It's doubtful he will be able to perform the same remarkable feat during his next stint in the lockup — a 21-year federal prison sentence handed down on Thursday for bilking telephone customers across the country out of $34 million.
Federal prosecutors and regulators say Farr ran his "cramming" scheme — billing telephone customers for nonexistent long-distance charges — from the county jail by using a pay phone to direct a few employees on the outside.
"When the unscrupulous and the dishonest line their pockets with consumers' hard-earned money, we will hold them accountable," Tony West, assistant attorney general for the civil division of the Department of Justice, said in a statement. "As this sentence demonstrates, the Justice Department has put a priority on protecting the public from fraudulent schemes. This case should also remind consumers to carefully review their telephone bills for unauthorized charges."

MIA--->DCA

Just for the day. Be back soon my peeps.

Judge Carnes on the Armed Career Criminal Act

Like him or not; agree with him or not; Judge Carnes is a gifted writer. From United States v. Rainer:

• This is yet another felon-in-possession case involving yet another variation on the issue of whether a previous conviction qualifies as a “violent felony” for purposes of the enhanced penalties provided in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1).
• Rainer’s non-frivolous contention is that the district court erred when it decided at sentencing that he qualified for an enhanced sentence under the ACCA, 18 U.S.C. § 924(e)(1), which applies to a defendant convicted under § 922(g) who has three previous convictions for violent felonies or serious drug offenses.
• The question is whether “building of Richie’s Shoe Store, Inc.”and “building of, to wit: Whiddon’s Gulf Service Station” in the indictments show that Rainer’s convictions were for burglary of a shoe store and service station, places that fall squarely within the scope of generic burglary.
• But a vehicle could not be used to carry on the business of a gasoline service station, which is mainly to dispense gasoline for sale. While a shoe store theoretically could be operated out of a vehicle, that possibility is too farfetched to undermine our conviction that Rainer’s two previous convictions were for burglary of a building in the generic burglary sense of the word.
• The ACCA is part of the real world, and courts should not refuse to apply it because of divorced-from-reality, law-school-professor-type hypotheticals that bear no resemblance to what actually goes on.

USAO adds to management team

I just received this announcement:

Eduardo I. Sanchez returned to the United States Attorney's Office on August 16, 2010, as Counselor to the U.S. Attorney in the Executive Division in Miami. Ms. Bowen, a veteran of the Office, will serve as the District Training Director. As Counselor to the U.S. Attorney, Mr. Sanchez will provide advice, analysis, and guidance on legal and policy issues, strategic planning, training, and other matters of district-wide significance.*** Assistant U.S. Attorney Dawn Bowen will serve as the District’s Training Director, effective September 1, 2010.

Ed and Dawn are both really good people; Willy is putting together a smart, respected team. Now we have to see if things are going to change...

Multiple Choice

Here are your choices this morning --

A. Read more about the Scott Rothstein case here.

B. Read more about the federal judicial openings here.

or

C. Watch the hilarious Jimmy Fallon intro to the Emmy's:

Wet Monday Mornings stink

How annoying -- US1 basically turns into a parking lot if there is the slightest hint of rain. Combine that with Monday morning. Ugh.

Anyway, we're almost to football season, and I'm thinking of betting against all of Rumpole's picks this year. I don't know what to make of this Dolphins. I'm trying to stay optimistic...

Miguel DeLa O is running the blog fantasy football league this year. If you want to play, email me or him. Alex Gomez (at Scott Srebnick's firm) beat me in the finals last year. I will get revenge this year.

Please let me know what's going on in the District -- it's pretty slow news wise. I've been wondering when the Federal JNC is going to announce that they are taking applications for the two open judicial slots... Will it be the same group of applicants or will the list grow because there are two openings? It'll be interesting.

And for the record, I believe you Paris.

Okay, well, that's your stream of consciousness this morning....

Fire at Tre downtown

Boy

I was about to write up this (unpublished?!) opinion by the 11th, but SFL beat me to it, as did the DBR:

During 14 years of litigation over his claims that he was denied a promotion because he is black, John Hithon has twice been awarded jury verdicts of more than $1 million. His case prompted the U.S. Supreme Court to say using the word “boy” to describe an African-American man could by itself be evidence of race discrimination. But Hithon and his lawyer have not persuaded the federal appeals court in Atlanta. On its fourth stop in the 11th U.S. Circuit Court of Appeals, the case generated a 2-1 unsigned opinion sending the case back to trial court for judgment in favor of Tyson Foods. The split panel reaffirmed an 11th Circuit ruling concluding evidence of the use of the term “boy” — allegedly by a white poultry plant manager to address Hithon and another plaintiff — wasn’t enough to support a jury finding of racial discrimination. Hithon’s lawyer, Alicia K. Haynes of Birmingham, Alabama, said Circuit Judges Edward E. Carnes and William H. Pryor Jr., who ruled Aug. 17 over the dissent of a visiting senior judge, missed something in their review of the paper record of the case. “The concern is that any time you present that type of evidence, it is the jury who is listening to how those words are being said,” Haynes said. “They’re listening to the tone that was used in saying those words. They’re listening to the inflection. They are able to judge who the speaker was and what effect those words had on the person that it was being said to, and the appellate court is missing all of that. They are reading a cold, written record.”

Rothstein takes down Mafia player

Curt Anderon and Jay Weaver cover the story of the 4 year deal for Roberto Settineri. Jeff Weiner, Settineri's lawyer, had this to say:

"Our initial intention was to go to trial,'' Weiner said in an interview. ``My client had no criminal record. He was actively targeted and set up by Rothstein.
``But my client made a terrible mistake in judgment by agreeing to help Rothstein,'' he said, pointing out that the FBI's sting generated tape recordings and text messages incriminating his client. ``The bottom line, when the evidence came in . . . it would have been a foolish choice to go to trial at that point.
"[Settineri] took the bait, hook, line and sinker, to help someone he thought was a friend,'' the lawyer added. ``He was one of Rothstein's victims.''

Election night

Rumpole and JAABlog are covering your Dade and Broward elections. Even though I think judicial elections are ridiculous, it's still fun to watch the election results.

While you wait for the results, check out the new trailer for Square Grouper by the boys at Rakontur (who made The U and Cocaine Cowboys):



Finally, Efraim Diveroli is back behind bars, this time ATF nabbed him in Central Fla. He's still awaiting sentencing for the Miami conviction on the illegal Chinese ammo. The Complaint is quite a read.

First day of school

And there goes another summer...

This one seemed to go by really fast, no?

School shouldn't start in August. After Labor Day. That's the way it should be.

Enough about school. What's going on in the SDFLA?

1. Two Magistrates are up for reappointment -- Patrick White and Frank Lynch. Send in your comments if you want to be heard.

2. There isn't much time left to comment on the proposed 11th Circuit Rules. Rick Bascuas has some commentary here.

3. And of course, the King building needs drapes. You like the ones I picked?

4. More Rothstein indictments coming soon? (via DBR)

Should federal judges be writing books?

That's the question this Boston Globe article raises in light of Judge Nancy Gertner's new book, In Defense of Women: Memoirs of an Unrepentant Advocate --

The 64-year-old Boston jurist said the book being published by Beacon Press focuses on her two decades as a prominent criminal defense and civil rights lawyer before she joined the bench in 1994. As such, she might not have to worry about the federal Judicial Code of Conduct, which prohibits judges from making public statements about cases that could come before them.
But by devoting a memoir to her years as an “unrepentant advocate’’ for notorious criminal defendants and women who brought sex-discrimination suits, Gertner will almost certainly give ammunition to those who say she tilts toward those litigants instead of prosecutors and corporations.
Gertner, whose sentences of criminal defendants have drawn criticism from federal prosecutors and who was accused of bias by lawyers defending the Boston police in a civil rights suit, said she is not worried.
“The unrepentant advocate stuff ends at my swearing-in,’’ she said, referring to the day in April 1994 when she officially became a judge.
She also emphatically denied that she is biased on the bench in favor of criminal defendants or people fighting corporations or police departments. Just last week, she noted, she dismissed a lawsuit by several customers of Bank of America, N.A., who al leged the bank engaged in deceptive business practices.
“I do believe my record speaks for itself,’’ she said in a telephone interview last week, adding that news outlets tend to cherry-pick rulings that reinforce the stereotype of her as a liberal.

**

Several lawyers who insisted on anonymity because they might have to appear before Gertner said a judge should not be an “unrepentant advocate.’’
In contrast, Harvey Silverglate, a criminal defense and civil rights lawyer and former law partner of Gertner’s, dismissed the notion that judges should be silent about their personal and professional backgrounds or even their views on jurisprudence. Judges, he said, had lives before they entered what he called the “monastery,’’ and it is foolish to pretend otherwise.
“Judges, like other human beings, have predispositions,’’ said Silverglate. “Some are called liberals. Some are called conservatives. To hide these facts doesn’t make them untrue. And so by encouraging judges to talk more, when you have a case before a judge, you have a better idea of what that judge might be interested in and what you might have to say in order to overcome that judge’s predispositions.’’
Asked whether the book will expose his friend to criticism, he said, “Of course. If your question is, ‘Will it expose her to legitimate criticism?’ the answer is no.’’
To be sure, Gertner is not the first sitting federal judge to write a book or even a memoir.
Supreme Court Justice Sandra Day O’Connor wrote a critically acclaimed 2002 memoir with her brother called “Lazy B: Growing Up on a Cattle Ranch in the American Southwest,’’ that described her childhood in Arizona and New Mexico.
Richard A. Posner, an influential judge on the US Court of Appeals for the Seventh Circuit in Chicago and appointee of President Reagan, has written about 40 books on jurisprudence and legal philosophy, some of which plumbed current events. He also blogs and writes magazine articles.

Thursday news and notes

1. Rocket indicted.

2. Big opinion out of the 11th today on jury instructions -- a reversal for not providing the good faith instruction as requested by the defense. It's 67 pages and I haven't digested it yet, but here's the money quote:"The requested instruction properly placed the determination with the jury as to whether they acted in good faith in seeking advice, fully and completely reporting to their accountant, and acting strictly in accordance with the advice."

3. Joel DeFabio says his pimp (of Haitian descent) is being selectively prosecuted when compared to Jeffrey Epstein:

Johnny Saintil, a Fort Lauderdale native of Haitian descent, sits in jail awaiting a federal trial Monday on charges of recruiting two girls for an Internet-based prostitution ring in Broward County. The 28-year-old faces up to life in prison if convicted.
Jeffrey Epstein, a Palm Beach billionaire, ended his one-year probation last month after serving 13 months in jail on two state convictions for soliciting a prostitute who was a minor. He also had to register as a sex offender.
Epstein, 57, came within a whisker of being indicted by the U.S. attorney's office in Miami on essentially the same charges as Saintil -- but involving a much higher number of victims.
Now Saintil's defense attorney, Joel DeFabio, is urging a Fort Lauderdale federal judge to throw out the indictment against his client, arguing ``selective prosecution'' by prosecutors while citing the race and class differences between Saintil, a poor black man, and Epstein, a rich white man.
***
DeFabio points out that Epstein didn't just pay for sex with high school girls -- he also schemed with aides to recruit them for his personal pleasure.
``Epstein was both a pimp and a `john' (an individual who pays the prostitutes for sex),'' DeFabio said in court papers. ``He recruited and paid individuals to go out into the public and find minor girls to have sex with him for money.''
Two other defendants charged with Saintil -- Michael DeFrand and Stanley Wilson -- have joined his selective prosecution petition filed with U.S. District Judge William Zloch.
The U.S. attorney's office countered in court papers that DeFabio's claims are ``unfounded.'' A spokesman declined to comment.

Slow news day in the SDFLA...

...so we'll have to turn to Alabama, via CNN:

"Former Alabama prosecutor arrested on enticement, child porn charges"

Here's the quote from the former prosecutor's defense attorney:

"The facts of the case will turn out to be interesting and (we will) address those when we go to trial."

Interesting? Perhaps not the best choice of words... From the article:

A former Alabama assistant district attorney who specialized in prosecuting sex crimes against minors is accused of enticing what he thought was a teenage girl online for sexual purposes, authorities said.
Steven Giardini was indicted on charges of enticement and solicitation crimes over the computer with the intent to produce child pornography, the Alabama Attorney General's Office said in a statement. Giardini, a former prosecutor in Mobile County, was arrested Tuesday.
The charges stem from the suspect's alleged communication with what he thought was a 15-year-girl, Alabama Attorney General Troy King said in a statement Tuesday. But instead he was communicating with an agent from the FBI's Internet Crimes Against Children division.

More on Judge Huck

Last Monday, I posted about Judge Paul Huck's decision to take senior status. Today, the DBR has more on the story:

District Judge Paul Huck in Miami will take senior status at the end of the month, opening a third seat on the federal bench in South Florida. Huck is the second South Florida judge to announce he’ll take senior status in the past month. U.S. District Judge Alan S. Gold will be going senior in January. Public Defender Kathleen Williams has been nominated to replace U.S. District Judge Daniel T.K. Hurley, but judicial confirmations are on a slow track in the U.S. Senate.

***

Huck, 70, was appointed to the bench a decade ago by thenPresident Bill Clinton, following a 36-year career as a lawyer. Huck said he is going senior because he is able to do so under the court’s “rule of 80.” Under the rule, when a judge’s age, added to his or her years on the bench, totals 80, the judge has the option of staying put, going senior or retiring. The judge receives the same pay for all options. Huck, who is known as one of the hardest-working judges on the bench with a penchant for moving cases to resolution, still plans on working full-time. But he hopes to help out busy districts in other states and to do more teaching at the law schools of the University of Miami and University of Florida — his alma mater — and in high school civics classes. Huck has been hosting high school students in his courtroom to teach them about civics and turned his hallway on the 13th floor of the Miami courthouse into a civics training area with enlarged copies of the Declaration of Independence and the Bill of Rights. “I want to try some cases in some other places,” he said. “Some of our districts are overloaded with long trials and need help, such as in Houston. Plus, I’m getting old.”

***

Huck did say he wants to “allow the position to open up and bring another person on.” Huck also said his decision does not signify any frustrations with the job, saying: “This is the best job in the world. It brings me a great deal of satisfaction. I wrestled with this for awhile.”

In addition to all the comments about Judge Huck being hard-working, the guy is also a mensch. He tries to go to every bar function and to all the going-away parties for PDs and AUSAs. You can tell that he loves the law and being around lawyers.

"2 Hialeah businessmen busted for bilking Medicare for penis pumps"

That headline, from Jay Weaver's article, really says it all, doesn't it? More:

It's one thing that a pair of Hialeah companies were fraudulently billing Medicare for penis pumps at $395 a pop to supposedly help male patients combat impotence.
It's quite another that Charlie RX and Happy Trips also billed the federal healthcare program for vacuum erection systems to aid female patients battle erectile dysfunction, authorities say.
And what's even more remarkable: Medicare paid the two medical equipment providers $28,600 after they submitted a total of $63,000 in false claims for the erection pumps, according to charges unsealed Monday in federal court in Miami.

Happy Trips indeed.

I'm back

Thanks to my guest bloggers -- SFL, Rumpole, and Rick B.

Now back to work.... I hope everyone enjoys the last good week of traffic because school starts in one week and then US1 and I-95 turn back into parking lots.

A couple of quick hits to start your week:

1. Blago jury still out.

2. Justice Sotomayor jokingly compares herself to J.Lo.

3. Blogger convicted after three tries for threatening comments about federal judges.

4. Justice Ginsburg wants the good ol' days back in the Senate.

5. Justice Scalia OK after tripping.

6. Neal Katyal likely to become 10th Justice.

7. A must read dissent by Judge Kozinski on GPS tracking and the 4th Amendment. The intro:

Having previously decimated the protections the Fourth
Amendment accords to the home itself, United States v.
Lemus, 596 F.3d 512 (9th Cir. 2010) (Kozinski, C.J., dissenting
from the denial of rehearing en banc); United States v.
Black, 482 F.3d 1044 (9th Cir. 2007) (Kozinski, J., dissenting
from the denial of rehearing en banc), our court now proceeds
to dismantle the zone of privacy we enjoy in the home’s curtilage
and in public. The needs of law enforcement, to which
my colleagues seem inclined to refuse nothing, are quickly
making personal privacy a distant memory. 1984 may have
come a bit later than predicted, but it’s here at last.

And the conclusion:

I don’t think that most people in the United States would
agree with the panel that someone who leaves his car parked
in his driveway outside the door of his home invites people
to crawl under it and attach a device that will track the vehicle’s
every movement and transmit that information to total
strangers. There is something creepy and un-American about
such clandestine and underhanded behavior. To those of us
who have lived under a totalitarian regime, there is an eerie
feeling of déjà vu. This case, if any, deserves the comprehensive,
mature and diverse consideration that an en banc panel
can provide. We are taking a giant leap into the unknown, and
the consequences for ourselves and our children may be dire
and irreversible. Some day, soon, we may wake up and find
we’re living in Oceania.

Let's Talk Judicial Appointments!

We might as well, since President Obama and Senator McConnell did the same the other day:

President Obama and Senate Republican Leader Mitch McConnell had their first one-on-one meeting today, and it dealt primarily with one topic: Confirming judges.
Or, more precisely, Republican holds on Obama judicial nominees.

"Right now there are 12 federal judicial nominees that have passed the Judiciary Committee with a unanimous vote," White House spokesman Robert Gibbs said before the meeting. "There are other judges that have been through the process and approved by the Judiciary Committee."

The meeting concerned "a direct discussion about moving those judges," Gibbs said.

The president is "rightly frustrated" at a pace that is "unrivaled and unmatched in its slowness," Gibbs said, and he added that some recess appointments may be in the offing.

Hmm, that's not good.

According to ACS' nifty website judicialnominations.org, there are now 100 vacancies out of 867 seats on the federal bench.

So that's roughly 10 percent of the judicial branch, with nominees cooling their heels for indefinite periods while they await an uncertain fate in the Senate.

My guess is this will have some deleterious institutional effects on the federal justice system, but what do I know?

This is SFL, hoping I'm wrong (again).

Magistrate Judge Brown Addresses Futility of "Notices of Unavailability"

Judge Brown Notice of Unavailability

Hi kids, SFL here.

Regular readers of my blog know I have a special fondness for this case.

In an order entered yesterday, Magistrate Judge Brown addresses the rather pointless of practice of filing "notices of unavailability," a personal pet peeve of mine:

The parties should note that there is no local rule in our Court providing for the filing of same, and no federal rule supporting same.  While the Court is not precluding anyone from filing same, and as a matter of professionalism and courtesy they should be considered, the parties should understand that these filings have no legal significance.

He's right.

This is a dated practice of dubious utility.  If you have a conflict with an actual (as opposed to a possible or  hypothetical future) Court deadline, ask the Court to move it.  If you don't want the opposing party to schedule something while you're on vacation, pick up the phone and ask them about it.

D.O.M. called

“You haven’t posted anything.”
That was D.O.M. again, calling from wherever.
“Yup.”
“What about that case where Judge Altonaga got affirmed for asserting jurisdiction over the pre-WWII Germans?”
“Yeah, I saw that.”
“So, why not write something up, Professor?”
D.O.M. only busts out my title when things are dark, so I said,
“Well, you gave the blog over to the people who write comments.”
“I thought you didn’t read the comments.”
“I don’t.”
Beat.
“You’re being too uptight about this.”
That was D.O.M. breaking the silence.
“Maybe.”
Beat.

1600!!!

There's a certain honour with being the blogger to post the 1600th post on David O Markus's famous Southern District Of Florida Blog. And with DOM being out of town and unawares, we decided to grab the honour before he could change his mind and revoke our blogging privileges.

For those of you discriminating enough to read our own humble blog about the Richard E Gerstein Courthouse in Miami, you know that last week we promised- at the possible expense of Mr. Markus's standing in the community and his law license- to post a joke that started off this way: " A rabbi, a priest, President Obama and (insert your favourite federal judge here) walk into Tobacco road...."

But before we get to the punch line, there's this to consider:

Rumpole's person of the day:

Meet Former Jet Blue Flight Attendant Steven Slater. On a flight on Monday inbound to JFK from Pittsburgh, Mr. Slater had a confrontation with an unruly female passenger. (Side note- those gals from the Steel City can be quite a handful when they've had a few Iron City beers in them). Upon landing at JFK, Mr. Slater had all he could take. When the plane stopped taxing, Mr. Sater activated the emergency exit, deployed the emergency slide, grabbed a beer from the beverage cart, and slid off the plane and into instant fame. Mr. Slater got into his car and drove home to Queens where a few hours later a few members of New York's Finest showed up to arrest him on a slate of charges. For those of you who exclusively practice in Federal Court, The NY Times coverage is here.

For those of you who occasionally venture over to State Court, the NY Post coverage is here. (Headline was "Wing-Nut pleads not guilty.")

Punchline: They all walk up to the bar and order a round of beers. And the bartender looks up and sees who has walked in and says: 'what is this, some kind of joke?' "

Sorry folks, this is what happens when DOM goes on vacation.

See You in Court.

HR.

PS-if you want to know something useful about current federal legal developments, read South Florida Lawyer's post just below this one. We craftily waited until he posted number 1599 so we could grab 1600.

11th Circuit Limits "Safety-Valve" Sentencing Relief.

Hi kids, SFL here, killing time while David O undoubtedly does something glamorous and exciting I am sure.

I'm glad I don't do any criminal, because if I did I'd have to use the term "safety-valve" as part of my work.

Instead I'm stuck with delightful words and phrases such as "Celotex," "Iqbal," "Venetian Salami" and "mending the hold."

But for those of you who derive some kind of legal meaning from a safety valve, you may consider this new 11th Circuit opinion of value, which disagrees with several other circuits on this question:

The question we must resolve today is this one: can a district court grant safety-valve relief when reducing a defendant’s sentence pursuant to section 3582(c)(2)? The answer is “no,” because the safety-valve is inapplicable to sentence-modification proceedings.

Best I can tell, the 11th reasons that a Section 3582(c)(2) proceeding is not a "sentencing or resentencing" proceeding, but is instead a "modification of a term of imprisonment."
 
But then later there's a footnote in which the 11th acknowledges "they are in some sense a sentencing proceeding."

So I'm glad crim law makes as much sense as civil litigation?

Big news from the road

Judge Paul Huck has informed President Obama that he will be taking senior status. That makes three current openings; Judge Hurley (to be filled by Kathy Williams); Judge Gold; and now Judge Huck.

Judge Huck has been a wonderful district judge and is regarded as the hardest working judge in the District. I have lots more to say when I can get to a computer instead of this phone. In the meantime, congrats to Judge Huck.

Good luck to...

... Brian Stekloff, who after making a good name for himself at the PD's office, is off to Paul Weiss in DC.

They needed someone to try cases, and they found the right guy.

Straw buyers walk

Four of em... Before Judge D after an 11 day trial. Defendants repped by Phil Horowitz, Alan Kaufman, Brian Tannebaum, and John Wylie. Congrats.

Get ready for the guest bloggers

Taking a little break from the blog for a week. Starting tomorrow, you'll have SFL, Rumpole, and Rick Bascuas entertaining you. Enjoy.

Magistrate feels “like a schoolmarm scolding little boys."

The whole opinion is definitely worth a read. Here's a snippet:

• My practice is to preliminarily review every motion called an “emergency” the day it
  is filed. However, other cases, motions filed, scheduled hearings and settlement conferences do not afford me the luxury of dropping everything to hear a party’s perceived “emergency” especially when it involves a case that has already taken an inordinate amount of the court’s time (to the detriment of other litigants who need decisions in their matters) to resolve yet another in a series of routine discovery disputes. Thus, as the motion has worked its way up the tall stack of other matters on my desk, there are no longer any depositions to take.
• I am not the Maytag repairman of federal judges desperately hoping for something to do.
• Counsel for Plaintiff could not resist replying. Mr Kossack’s reply adds up the number of Mr. Cannon’s improper objections during Mr. McCurdy’s deposition and compares them to the number of improper objections Mr. Cannon accuses him of making. Not wanting to miss an opportunity to engage equally unseemly “tit-for-tat,” Mr Kossack pads his reply with gratuitous comments which include a reference to counsels’ respective choice of beverages during depositions.
• To ensure that reading the 185 pages of these exchanges was not a complete waste of time, I assigned this motion to a law student extern to prepare a legal memorandum to further his education. In a short period of time he was able to prepare a well-written, concise memo which identified a large number of state and federal cases throughout the country articulating the standards for making deposition objections and identifying improper conduct for which lawyers have been admonished or sanctioned. He correctly concluded that both lawyers engaged in misconduct which violated Rule 30(c)(2).
• The exchanges related in excruciating, repetitive detail in the moving and responsive papers and their attachments were painful to read. If I was an elementary school teacher instead of a judge I would require both counsel to write the following clearly established legal rules on a blackboard 500 times.
• Although these papers, and the conduct they relate, make me feel like a school marm scolding little boys, I am the judge whose duty it is to decide this motion. Accordingly, Mr. Kossack and Mr. Cannon are admonished for engaging in conduct which I know you know violates Rule 30(c)(2). You are better men and better lawyers than the conduct in which you have engaged illustrates.

Being on a plane...

... with 8 rows is not fun. Tampa for the day. Back tonight.

Tuesday News and Notes

1. Moving sucks.

2. The FBI is taking the absurd position that Wikipidea shouldn't use its emblem.

3. Law.com covers the Irey case.

4. Roberts v. Kagan, per Dahlia Lithwick.

5. More on Kagan -- she is only 6th SCOTUS law clerk to become Justice.

6. Miranda is losing its teeth.

7. Obama is having a tough time getting judges confirmed. Another article on it here.

8. Conrad Black writes on his time in a federal prison. The whole thing is worth a read:

In the Coleman Low Security compound, there are 1,800 residents and it is a little universe terminally addicted to gossip about the custodial system and especially the goings-on of the group confined there. By this time there were large numbers of journalists and photographers clustered at the gate of the Coleman complex and ongoing television coverage watched with some bemusement by my fellow residents in the television rooms of the residential units.
A steady stream of well-wishers from all factions of the compound came to say goodbye, as I put my books and papers and a few clothes items into cardboard boxes. (The only article of clothing that I took that was not among the few things I had bought myself was the nondescript brown shirt bequeathed to me when he left by the don of one of the famous New York gang families).
The Mafiosi, the Colombian drug dealers, (including a senator with whom I had a special greeting as a fellow member of a parliamentary upper house), the American drug dealers, high and low, black, white, and Hispanic; the alleged swindlers, hackers, pornographers, credit card fraudsters, bank robbers, and even an accomplished airplane thief; the rehabilitated and unregenerate, the innocent and the guilty, and in almost all cases the grossly over-sentenced, streamed in steadily for hours, to make their farewells.
Most goodbyes were brief and jovial, some were emotional, and a few were quite heart-rending. Many of the 150 students that my very able fellow tutors and I had helped to graduate from high school, came by, some of them now enrolled in university by cyber-correspondence.

New digs

Personal post: I've moved office space to right across the street from the Federal Courthouse in Miami (the address is 40 N.W. Third Street, Courthouse Center, Penthouse 1, Miami, Florida 33128). And I've added two great lawyers -- Margot Moss and Mona Markus-- to join Robin Kaplan and me. 

Margot (pictured right) was a partner at Fowler White and before that was an assistant public defender for 10 years.  Mona (left)graduated Harvard Law School a year after I did. She was a partner at Stearns Weaver, where she has worked for 11 years.

I am very excited about the move and the growth of the Firm, which will now be called Markus & Markus (instead of David Oscar Markus PLLC). I have some work to do on the website...

I will be sharing space with a bunch of other lawyers, including Marc Seitles, Richard Klugh, Hector Flores, William Barzee, and Ivlis Mantilla. 

Trustees behaving badly

It hasn't been a good run for receivers and trustees in the Southern District of Florida lately.  John Pacenti covers the latest abuse of trust here:

A longtime court-appointed trustee and receiver entrusted with $1 million earmarked for the victims of ex-lawyer Scott Rothstein’s mammoth fraud is refusing to return the money and is the subject of a federal investigation, sources told the Daily Business Review.


The money was donated by the law firm chairman in his heyday as a Broward County power broker to Holy Cross Hospital in Fort Lauderdale. As part of the recovery effort for fraud victims, federal authorities and bankruptcy attorneys for the defunct Rothstein Rosenfeldt Adler demanded the money back, along with millions of dollars in other charitable and political donations made by Rothstein and his law firm.

The hospital returned the money in November shortly after Rothstein’s $1.2 billion fraud collapsed. A source said the money was wired by the hospital directly to an account controlled by Marika Tolz, who was working under a contract with the U.S. Marshals Service.

The federal law enforcement agency, which is responsible for assets seized in criminal cases, hired her to safeguard the Holy Cross money until it could be disbursed and to oversee real estate seized from Rothstein after reports that one of his properties was burglarized and another was infested with mold.

The U.S. trustee’s office discovered the $1 million discrepancy in May and asked Tolz to resign from its rotating panel of trustees assigned to bankruptcy cases. The Daily Business Review reported in May that Tolz had resigned from her cases after discrepancies were discovered, but investigators and the the U.S. trustee’s office have remained tight-lipped about the case.

"Miami also has a great NBA basketball team, right?"

That was the chief of the multidistrict panel, U.S. District Judge John G. Heyburn II of Kentucky, after Ervin Gonzalez was pushing for the oil litigation to be here in Miami.  From Curt Anderson's report:

More than 100 lawyers crowded into a sixth-floor courtroom in Boise's downtown courtroom, jockeying amongst themselves for the limited speaking slots in a hearing that lasted about 1 1/2 hours. Although some 2,000 miles from the Gulf, Boise was the scheduled stop for the roving seven-judge panel.

Most lawyers only got to talk for a few minutes, and there were a few moments of levity.

After Miami attorney Ervin Gonzalez extolled the virtues of South Florida and its chief federal judge, Federico Moreno, Heyburn cracked that Miami also has "a great NBA basketball team, right?" -- a reference to the Miami Heat's recent signings of stars LeBron James, Dwyane Wade and Chris Bosh.

Assuming the cases are centralized as expected, the judge or judges chosen to hear them will have to decide key issues such as whether they are dismissed or allowed to continue, and whether to certify one or more class actions for people and businesses in similar situations. If the cases are not dismissed and unless there is an early settlement, a handful are usually chosen to go to trial first as "bellwhethers" that can determine the ultimate outcome of all lawsuits.

255 pages of en banc fun

The 11th Circuit issued United States v. Irey today, with 255 pages of opinions, which are a must read for any criminal practitioner in this Circuit. The question presented is whether a lengthy variance (from 30 years to 17) was reasonable in a horrific case involving multiple acts of child rape. The majority, written by Carnes and joined by Dubina, Black, Hull, Marcus, Wilson and Pryor, found the variance substantively unreasonable. Lots of interesting questions addressed, like how much deference is due to trial courts at sentencing.

Here are some highlights from Carnes' opinion:

The steady stream of criminal cases flowing through this Court brings us many examples of man’s inhumanity to man, and we see a depressingly large number of crimes against children.


The 17 ½-year sentence, if all of it were to be served, would amount to only 4 months and a week for each of the 50 distinguishable victims that Irey raped, sodomized, or sexually tortured.


In light of 18 U.S.C. § 3624, Irey will likely serve only 15 years and 3 months of his sentence, which works out to less than four months for each of those 50 victims who can be distinguished from each other in the images that show some of Irey’s crimes. And that calculation does not include any time for Irey’s additional criminal behavior of producing and distributing the massive amount of extremely graphic child pornography. Four months per child raped, sodomized, and tortured is grossly unreasonable. In sentencing there should be no quantity discount for the sexual abuse of children.


We realize that 17 ½ years, even when reduced to 15 ¼ years to serve is, as the panel stated, “a substantial portion of a human life—and no serious person should regard it as a trifle.” … Irey, after all, sentenced the children he raped, sodomized, and sexually tortured to a lifetime of harm, and the egregious child pornography he created and distributed will, because he uploaded it to the internet, continue causing harm for far longer than 17 ½ years. Irey’s pink wall series will last longer than his own lifetime or ours, inciting and encouraging the sexual abuse of multitudes of children yet unborn.


Because of the substantial deference district courts are due in sentencing, we give their decisions about what is reasonable wide berth and almost always let them pass. There is a difference, though, between recognizing that another usually has the right of way and abandoning one’s post. We will not quit the post that we have been ordered to hold in sentencing review and the responsibility that goes with it. The Supreme Court has instructed us that “[i]n sentencing, as in other areas, district judges at times make mistakes that are substantive,” and that it is our duty “to correct such mistakes when they occur.” Rita, 551 U.S. at 354, 127. In this case the district court made a substantive mistake, a clear error in judgment, by unreasonably varying downward from the advisory guidelines sentence when no sentence less than it is sufficient to fulfill the purposes set forth in the Sentencing Reform Act. To do our duty to correct that mistake, we vacate the sentence the district court imposed and remand with instructions that the defendant is to be resentenced within the guidelines range.

Judge Tjoflat concurs that the amount of variance is unreasonable but dissents, arguing that the case should be remanded for the district judge to find what is reasonable. He argues that it is not the job of the 11th Circuit to sentence Irey:

In sum, when placed on a balance sheet, the grave institutional harm caused by the court’s approach significantly outweighs any benefit the approach might yield. Resentencing defendants on appeal diminishes the role of the district court in the eyes of the legal profession, and it diminishes the public’s confidence in the district courts as an institution for administering criminal justice. It misallocates and gobbles up judicial resources. None of this is necessary. If a sentence constitutes an abuse of discretion, we should simply say so and return the case to the district court, the appropriate forum for the main event.

The first dissent is written by Judge Edmonson, and joined by Birch Barkett and Martin:

The limit that the law places on the right use of appellate court power to interfere with the sentencing decisions of United States District Judges (who, of course, have -- under the law -- powers of their own) is, for me, what this appeal is about. The specific case before us involves a serious crime and ghastly conduct -- “horrific” in the District Judge’s words -- on the part of Defendant. And, no party
has contended that the District Judge, in imposing the sentence, made a significant procedural error. The government prosecutors (who bear the 1 burden of showing reversible error) contend that the sentence imposed in district court is too lenient and that no sentence would be lawful except the maximum sentence of imprisonment that the pertinent criminal statute will allow: 30 years.

The issue is not whether federal appellate judges ought to do their duty. They must. And the issue is not whether appellate courts can review sentences and sometimes correctly set them aside, even when the sentence was imposed without procedural errors. They can. Appellate judges do have some legitimate power to review the substance of sentences: that is, to determine whether a District Judge has imposed a sentence that is either too lenient or too harsh as a matter of law. The general question presented here is what is the limit, under the law, on the power of appellate judges in deciding such reviews.

Next up is Judge Birch, who says (I think quite rightly):

The time-worn adage in jurisprudence that hard facts often lead to bad law is certainly applicable to this case. I have little doubt that had I been the sentencing judge I might well have fashioned a different and harsher sentence for this defendant. But the decision at play here is the respective roles of the appellate court and the sentencing court. Our appellate role is properly constrained by the standard of review to which we are required to adhere. As Judge Edmondson persuasively describes the application of that standard to the record, it compels an affirmance of the sentencing court’s judgment in this case. Accordingly, I respectfully dissent and join in the dissenting opinions of Judge Edmondson and Judge Barkett.

Judge Barkett also dissents, joined by Birch and Martin:

I agree with just about everything in Judge Edmondson’s dissent. If there is any point of departure, it is the addition (or clarification, in my view), that the district judge must articulate the reasons for the sentence imposed based on the evidence in the record. Because the record may support a number of reasonable sentences, this articulation is necessary so that the appellate court can be satisfied that the district judge actually considered how all of the § 3553 factors relate to the defendant’s individual case.