Federal JNC to interview for two open judicial seats, not just one

Here's the letter from Senators Nelson and Rubio, saying that in addition to Judge Seitz's seat, they would like the JNC to interview for Judge Graham's seat because he is taking senior status at the end of the year.  Applications are due August 19, and the interviews will be September 17 (see JNC letter). 

Meantime, it's time for William Thomas to be confirmed to the federal bench.  This is just getting absurd already (his nomination has been pending 263 days) and people are starting to take notice. For example, the Congressional Black Caucus had this to say (via the Miami Herald):

“We have no idea,” Rep. Frederica Wilson, D-Miami, said in an interview, her frustration visible. “When there’s just absolute silence, you can’t think of anything but political gamesmanship.”

The complaints from the Congressional Black Caucus are broader than Florida. In a statement, the group said, “Currently, 30 percent of judicial nominees pending confirmation in the Senate are African-American.”

The group said that out of 787 federal positions, only 95, or about 8 percent, are held by black judges.

“A more diverse judicial system helps to deliver justice but also to boost public confidence in the vote,” Wilson said. “So I ask, why the delay?”

Judge Thomas is one of the most respected state court judges that we have. It's not right that he's been waiting so long.

From the Huffington Post:

Rep. Alcee Hastings (D-Fla.) said he has known Thomas since he was a child and can't figure out why Rubio isn't letting his nomination through. Both nominees have cleared Florida's Federal Judicial Nominating Commission, which vets nominees and makes recommendations to senators representing the state.
"I know this much: William Thomas was here before Marco Rubio's family came here," Hastings fumed during a press conference with members of the Congressional Black Caucus, or CBC. "It would seem to me that Marco Rubio could pick up the telephone and call me and ask me a little bit more about William Thomas if he needs to know something more about him."

Glenn Sugameli always has the scoop on this stuff, and is tracking the lengthy delay for Judge Thomas, which will hopefully end soon.

Zimmerman jury initially split

I find the post-trial interviews with the jurors fascinating. Last night one of the jurors spoke with Anderson Cooper and explained that the initial vote was 3 Not Guilty, 2 Manslaughter, and 1 Murder. Wow -- this just shows how hard it is to get an across-the-board acquittal and how much closer this case was than the pundits said. I also thought it interesting how important jury instructions are in close cases. The jurors quickly came to agreement on the facts, but struggled with how those applied to the law, especially with manslaughter and self-defense. Who can blame them... the instructions were impenetrable. Lots of credit to jury consultant Robert Hirschhorn who picked the jury.

In other news:

1. The NY Times covers the government's secret surveillance program and how it's playing out in courts, including our District:

In February, in a 5-to-4 decision that split along ideological lines, the Supreme Court accepted Mr. Verrilli’s assurances and ruled in his favor. Justice Samuel A. Alito Jr., writing for the majority in the case, Clapper v. Amnesty International, all but recited Mr. Verrilli’s representation.

“If the government intends to use or disclose information obtained or derived from” surveillance authorized by the 2008 law “in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.” (Again, note the phrase “derived from.”)

What has happened since then in actual criminal prosecutions? The opposite of what Mr. Verrilli told the Supreme Court. Federal prosecutors, apparently unaware of his representations, have refused to make the promised disclosures.

In a prosecution in Federal District Court in Fort Lauderdale, Fla., against two brothers accused of plotting to bomb targets in New York, the government has said it plans to use information gathered under the Foreign Intelligence Surveillance Act of 1978, or FISA, which authorized individual warrants. But prosecutors have refused to say whether the government obtained those individual warrants based on information derived from the 2008 law, which allows programmatic surveillance.

Prosecutors in Chicago have taken the same approach in a prosecution of teenager accused of plotting to blow up a bar.

In the Fort Lauderdale case, Magistrate Judge John J. O’Sullivan ordered the government to disclose whether it had gathered information for the case under the 2008 law. He relied on Justice Alito’s statement in the Clapper decision. The government has moved for reconsideration.

2. I always like FNU LNU stories:

When the man appeared before a federal judge in Manhattan to be sentenced in a drug case, he had a lawyer by his side, supporters in the courtroom and letters attesting to his character. Only one thing was missing: his true identity.

A program from “Fnu Lnu,” an Off Broadway play inspired by a newspaper correction published after the term was mistaken for an actual name.

Throughout his trial and conviction, the defendant had claimed to be someone he was not, and no one had any idea who he really was.

“I sentence people almost every day,” the judge, Richard J. Sullivan, said, “and I will tell you candidly, I am not aware of anybody who has done what you have done in this case.”

Court records had listed the man as “Fnu Lnu,” shorthand for “First name unknown, Last name unknown.” The acronym is often used in the early stages of a criminal case, when investigators cannot identify a voice on a wiretap, or the identity of someone picked up in an immigration sweep.

“Fnu Lnu is a stand-in; he’s the missing man; he’s the defendant you know exists but cannot name,” said Steven M. Cohen, a former federal gangs prosecutor.

But the designation, at once mysterious and common, has taken on a life of its own in courts around the country, with Fnu Lnus being mistaken for an actual name, confusing judges and lawyers, and in one case spawning a memorable newspaper correction and even an Off Broadway play.

At any given time there can be hundreds of Fnu Lnus in the court system. Such defendants’ identities are usually sorted out quickly, through fingerprints or by other means. But in rare cases where defendants have remained anonymous throughout their entire prosecution, defense lawyers end up making arguments that can border on the surreal.

3. Should the AG be commenting on (some say undermining) a jury verdict? From the Washington Post:

With the acquittal of George Zimmerman continuing to reverberate nationwide, Attorney General Eric H. Holder Jr. said Monday he shares concerns about “the tragic, unnecessary shooting death” of an unarmed black teenager in Florida last year, and he vowed to pursue a federal investigation into the matter.

In a speech at the social action luncheon of the Delta Sigma Theta sorority, Holder pledged that the Justice Department would “continue to act in a manner that is consistent with the facts and the law” and would work to “alleviate tensions, address community concerns and promote healing” in response to the case.

“We are determined to meet division and confusion with understanding and compassion — and also with truth,” he said. “We are resolved, as you are, to combat violence involving or directed at young people, to prevent future tragedies and to deal with the underlying attitudes, mistaken beliefs and stereotypes that serve as the basis for these too common incidents. And we will never stop working to ensure that — in every case, in every circumstance, and in every community — justice must be done.”

Should the feds indict George Zimmerman?

Although Zimmerman was just acquitted of second degree murder, many are now clamoring for a federal indictment.

But doesn't the double jeopardy bar a federal prosecution after a complete acquittal in state court?

Nope. Although the Fifth Amendment provides, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb," the Supreme Court in Abbate v. United States, 359 U.S. 187 (1959), said the dual sovereignty doctrine permits both the State and the Feds to prosecute the same person for the same crime:

The basic dilemma was recognized over a century ago in Fox v. Ohio. As was there pointed out, if the States are free to prosecute criminal acts violating their laws, and the resultant state prosecutions bar federal prosecutions based on the same acts, federal law enforcement must necessarily be hindered. For example, the petitioners in this case insist that their Illinois convictions resulting in three months' prison sentences should bar this federal prosecution which could result in a sentence of up to five years. Such a disparity will very often arise when, as in this case, the defendants' acts impinge more seriously on a federal interest than on a state interest. But no one would suggest that, in order to maintain the effectiveness of federal law enforcement, it is desirable completely to displace state power to prosecute crimes based on acts which might also violate federal law. This would bring about a marked change in the distribution of powers to administer criminal justice, for the States under our federal system have the principal responsibility for defining and prosecuting crimes. See Screws v. United States, 325 U. S. 91, 109; Jerome v. United States, 318 U. S. 101, 104-105. Thus, unless the federal authorities could somehow insure that there would be no state prosecutions for particular acts that also constitute federal offenses, the efficiency of federal law enforcement must suffer if the Double Jeopardy Clause prevents successive state and federal prosecutions. Needless to say, it would be highly impractical for the federal authorities to attempt to keep informed of all state prosecutions which might bear on federal offenses.

Even though the law allows for a federal prosecution, it seems extremely unlikely in this case for all sorts of policy reasons.

The DOJ issued this statement, saying its investigation was ongoing:

JUSTICE DEPARTMENT STATEMENT ON THE TRAYVON MARTIN-GEORGE ZIMMERMAN CASE

As the Department first acknowledged last year, we have an open investigation into the death of Trayvon Martin. The Department of Justice's Criminal Section of the Civil Rights Division, the United States Attorney's Office for the Middle District of Florida, and the Federal Bureau of Investigation continue to evaluate the evidence generated during the federal investigation, as well as the evidence and testimony from the state trial. Experienced federal prosecutors will determine whether the evidence reveals a prosecutable violation of any of the limited federal criminal civil rights statutes within our jurisdiction, and whether federal prosecution is appropriate in accordance with the Department's policy governing successive federal prosecution following a state trial.

The Herald quotes friends of the blog here:

Jurors found that prosecutors failed to prove the more serious second-degree charge that Zimmerman, the neighborhood watchman at a Sanford gated community, possessed “ill-will,” “hatred” or “spite” in the fatal shooting of Martin. Instead, the six female jurors found that Zimmerman acted in self-defense.

Consequently, experts said, it would be legally inconsistent for the Justice Department to consider filing criminal charges against Zimmerman under the federal Shepard-Byrd Hate Crimes Prevention Act of 2009. Generally, that law prohibits someone from “willfully causing bodily injury” to another person because of his race, color, religion or national origin.

“If the state jury had been persuaded beyond a reasonable doubt that Zimmerman caused bodily harm to Trayvon Martin because of Martin’s race, it would have almost certainly convicted Zimmerman of second-degree murder, which requires proof of ‘ill-will’ or ‘malice,’” said Scott Srebnick, a prominent federal criminal defense attorney in Miami. “So, to bring a federal civil-rights prosecution against Zimmerman, the attorney general would essentially be second-guessing the state jury’s verdict as opposed to vindicating a different or broader federal interest.”

Srebnick added: “I find it doubtful that the attorney general will pursue a prosecution on a civil rights theory simply out of displeasure with the state jury’s verdict.”

Brian Tannebaum, a Miami defense attorney and past president of the Florida Association of Criminal Defense Lawyers, agreed.

“People are comparing this case to Rodney King, where there was a federal prosecution after a state acquittal, but the difference there was there were witnesses, specifically the video everyone still remembers,” Tannebaum said, referring to a man’s sensational videotape of the police beating.

Role Reversal: Zimmerman closing arguments

Interesting dynamic in the Zimmerman closings so far.

The prosecutor's closing yesterday seemed very much like a defense closing -- passionate and poking holes in Zimmerman's story. He seemed to be arguing that there is a reasonable doubt about Zimmerman's version of events.

This morning, O'Mara started his closing by accepting the burden of proof and arguing that Zimmerman is "100% innocent." He is also very low key, walking them through the facts and the elements of self-defense.

I thought the prosecution crushed the defense in opening statements, but it seems just the opposite so far in closings. The prosecutor was screaming and yelling way too much.

Anyway, Rumpole hates when juries go out on Friday afternoon... But I don't think there will be a verdict today.

UPDATE -- the rebuttal was much better, but than the opening summation. Intense, but not screaming at the jury. Predictions on when the verdict will come back and what it will be?

Thursday News & Notes

1.  Judge Lenard denied Juan Caro's bid for a new trial, rejecting his request for a hearing to find out when the government knew about Nevin Shapiro's bad acts.  From the Herald:

Lenard rejected a new bid by defense attorney Arturo Hernandez to hold an evidentiary hearing to explore whether a Justice Department lawyer who teamed up with a Miami prosecutor in the La Bamba trial knew about the FBI’s investigation of Shapiro in New Jersey months before he took the stand.
Hernandez filed documents such as government emails in hopes of challenging the Miami prosecution team’s timeline.
The Miami prosecutors first informed Hernandez of the Shapiro criminal probe when Shapiro was charged in April 2010.
Hernandez argued that had he been told about the Shapiro probe, he would have asked him about his investment scam on the witness stand. Hernandez said he was “disappointed” with the judge’s ruling.

2.  The Justice Department found lots of bad Miami police shootings.  From the NY Times:

Federal officials have found that the Miami Police Department engaged in a pattern of excessive force that led to a high number of shootings by officers, among them episodes that resulted in the deaths of seven young black men over an eight-month period in 2011.
The findings, released on Tuesday, came after a two-year investigation by the Justice Department’s civil rights division, and they identified “troubling” practices, including delays in completing investigations of officer-involved shootings, questionable police tactics and a lack of adequate supervision. From 2008 to 2011, officers intentionally fired their weapons at people 33 times, the investigation found.       

In a summary addressed to Tomas P. Regalado, Miami’s mayor, and Manuel Orosa, the police chief, the Justice Department noted that its own investigation would have been completed sooner if not for the Police Department’s “frequent inability to produce necessary documents in a timely fashion.”

 Here's the letter to the Mayor.

3.  Young guns can see who the best closer is at this upcoming competition.  My advice -- don't start with a knock knock joke.

4.  Judge Kozinski is so good.  Footnote 1 from a 1992 opinion of his that was recently emailed to me:

We do not (except in the caption) follow the appellant's counsel's interesting practice of writing the names of the people involved in CAPITAL LETTERS. Neither do we follow the appellee's counsel's practice of writing appellant's name in BOLD-FACED CAPITAL LETTERS. Nor do we intend to write all numbers both as text and numerals, as in "eleven (11) loose teeth, two (2) of which were shattered[;] [m]oreover, her jaw was broken in three (3) places." Appellee's Brief at 7. Finally, we will also not "set off important text" by putting it on "separate lines" and enclosing it in "quotation marks."
See id. at 10. While we realize counsel had only our welfare in mind in engaging in these creative practices, we assure them that we would have paid no less attention to their briefs had they been more conventionally written.

AUSA Michael Garofola doesn't get a rose

This was Michael G.'s last episode (prior blog coverage about the federal prosecutor on the Bachelorette here).  He had a good run on the show, making it to the final five. 

 
 


Gossip Cop has the recap of the show.  Some highlights:

Next up was Michael G, getting to have a 1-on-1 with Hartsock for the first time.
After going tobogganing, the federal prosecutor opened up about his estrangement with his father, his battle with Type I diabetes, and finding out his live-in girlfriend was cheating on him.
“The silver lining to all this is that — I mean this from the bottom of my heart — is I’m feeling these feelings again,” he told Hartsock, adding to the camera later that he’s “falling in love.”
For her part, the reality star told the camera that “Michael is one of the greatest guys I ever met.”
***
At the rose ceremony, Hartsock ultimately gave roses to everyone except Michael.
She explained to the shell-shocked contestant her other relationships were “growing differently.
“I’m heartbroken,” he confessed as Hartsock went on to praise their “friendship,” before wishing each other “the best.”

Did you know we had a secret court, operated by similar thinking judges on an ex parte basis?

The New York Times had a front page piece on the FISA Court this weekend.  The whole thing is worth a close look.  From the article:

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.
***
Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. In fact, it is not clear in all circumstances whether Internet and phone companies that are turning over the reams of data even have the right to appear before the FISA court.

Created by Congress in 1978 as a check against wiretapping abuses by the government, the court meets in a secure, nondescript room in the federal courthouse in Washington. All of the current 11 judges, who serve seven-year terms, were appointed to the special court by Chief Justice John G. Roberts Jr., and 10 of them were nominated to the bench by Republican presidents. Most hail from districts outside the capital and come in rotating shifts to hear surveillance applications; a single judge signs most surveillance orders, which totaled nearly 1,800 last year. None of the requests from the intelligence agencies was denied, according to the court.

Closer to home, visa-fraud prosecutions are up.  According to the Herald:

A report released in April by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) showed that visa fraud criminal prosecutions now rank third among the top 10 immigration law prosecutions in the country.
Also, a Government Accountability Office report issued in September said the State Department screens visa applicants for fraud.
But GAO auditors found that consulates do not systematically employ methods to prevent fraud.
“State has a variety of technological tools and resources to assist consular officers in combating fraud, but does not have a policy for their systematic use,” the GAO report said.
In response, the State Department said it generally agreed with GAO findings and would implement recommendations to improve fraud tracking .
The GAO report said the top 10 countries where visa fraud occurs are China, Dominican Republic, Mexico, India, Brazil, Ghana, Cambodia, Jamaica, Peru and Ukraine.

Your Friday moment of Zen

Gotta love technology.  Here's Rachel Maddow on the Zimmerman trial getting Skype Bombed:

And here's the actual raw footage of the whole thing:

 

Happy Birthday to the Blog!

Yesterday, the blog turned 8 years old.  Pretty neat.

This was the original post, asking the President to appoint a Floridian to the Supreme Court.  We are still waiting 8 years later....

Since then, your first local legal blog has had 2,361 posts and almost 2 million page views. 

The most popular post this year was breaking the story that AUSA Mike Garofola was going to be a contestant on the Bachelorette.  Second, was Dore Louis' NSA motion.

After the United States, the blog's readership is as follows:

Entry	Pageviews
United States	918641
Russia	12746
Germany	12597
United Kingdom	11530
Canada	10289
France	8799
Norway	7695
Netherlands	3722
Ukraine	3142
Malaysia	1532

The blog has broken a number of stories this year, including your newest magistrate judges and the nomination of Will Thomas to the federal bench (he needs to get confirmed already!).  Speaking of magistrates, Alicia Valle was officially named to the bench yesterday.  Congrats to her!

It's been really fun for me to post over the last 8 years, and I hope you have enjoyed the blog as much as I have had doing it.

Happy Fourth of July!

--David

What was Chief Judge Roberts' favorite case of the Term?

A.  DOMA

B.  Voting Rights
C.  Affirmative Action
D.   DNA
E.  Fane Lozman's house boat case

Yup, you got it -- E.  The Chief Justice loved the case from the Southern District of Florida about whether the floating structure was a house or a boat.  From Forbes:

Turns out the Chief Justice felt the same way. In this interview on C-SPAN, John Roberts called the lawsuit over whether a floating house was a boat one of his favorites from the last term.It’s surprising to hear this, given the momentous cases that were also before the court: The Voting Rights Act, gay rights, affirmative action, human gene patents — nearly all of them had broader implications for society at large than Fane Lozman’s Quixotic battle with the authorities of a coastal city in Florida over whether they had the power to haul his home away.“There are going to be  half-dozen cases people are going to be talking about,” Roberts said in the interview with Fourth Circuit Court of Appeals Judge J. Harvie Wilkinson III.“The littler ones can be quite fascinating,” he said, however. “My favorite from last term was a case called Lozman."“The way cases develop in the law, you have something that seems to fit not comfortably on either category,” Roberts said. “Depending on which side you were on, it was either a floating home or a house boat.”In Lozman’s case, it was a seedy-looking house on a floating platform, connected to shore with a garden hose and an extension cord. Lozman had towed it hundreds of miles around the Florida peninsula, but the house didn’t have any power to move itself. City officials argued it was a boat for purposes of obtaining a maritime lien and impounding it. The court decided otherwise, in a decision with implications for much more significant structures like floating casinos.“We had a lot of fun with it …looking at the different characteristics and posing a lot of interesting hypotheticals at the argument,” Roberts said. At one point, the justices seemed to be toying with the lawyer for Riviera Beach, trying to back him into ridiculous definitions of a boat.Roberts asked if an inner tube qualified. After all, it could support a human and move him from place to place. Then Justice Stephen Breyer chimed in: “This cup. what about the cup?” Justice Sonia Sotomayorasked, “what about a garage door?” And Elena Kagan followed up with: Take the inner tube, and you know, paste a couple of pennies on the inner tube. Now it carries things.”

On a separate note, I haven't been watching the Bachelorette, but I'm told that local AUSA Michael Garofola has made the top 5....  And that he is very against other contestants cursing on the show.  

So you wanna be a federal judge?

The Federal JNC is reconstituted and its finally taking applications for Judge Seitz's open seat.  Applications are due July 31, and interviews will take place on August 21.

The Florida Bar website listing the JNC members was wrong, and so my prior post had the wrong list of JNC members.  The correct list is:

Kendall Coffee

Alex Acosta

Georgina Angones

Reginald Clyne

Vivian de las Cuevas-Diaz

Albert Dotson

Phil Freidin

Carey Goodman

Cynthia Johnson-Stacks

Manny Kadre

Ira Leesfield

Dexter Lehtinen

Richard Lydecker

Thomas Panza

David Prather

Dennis Alan Richard

Jon Sale

Stephen Zack

Marilyn Holifield

Harley Tropin

Danny Ponce

You can grab the application here if you are interested.

Meantime, Holly Skolnick's memorial service was Sunday, and it was an amazing outpouring of love and support.  Really nice memories of her from her family and friends...  What a big loss for the community. Holly is survived by her husband Richard Strafer,* their daughter, and her parents. 

*As an aside, Richard is working on the Kaley case (along with Howard Srebnick), headed to the Supreme Court next Term, which Curt Anderson covered yesterday:

When Kerri and Brian Kaley came under federal investigation for allegedly stealing medical devices, they took out a $500,000 line of credit on their New York house to hire lawyers. Yet after their indictment in 2007, prosecutors sought to prevent the Kaleys from using the money because the government intended to seize the house.

The Kaleys insisted they were legally reselling the medical items. At the very least, they wanted a hearing to determine whether the government's case was strong enough to justify freezing most of their assets and denying them the right to hire the attorney of their choice.

It's an issue federal courts around the country are deeply divided over. Now, the U.S. Supreme Court has a chance to settle the matter after agreeing earlier this year to hear the Kaleys' appeal.

Snitching ain't easy

Paula McMahon from the Sun-Sentinel has been covering an interesting "pill-mill" prosecution before Judge Marra. There have been a series of articles (here, here, and here) covering one cooperating witness in particular -- a Christopher George. Apparently, Mr. George discussed some of the prior testimony with his father, which was recorded on a jail phone:

Christopher George is hoping to get his prison term reduced, provided that federal prosecutors think his anticipated testimony against two South Florida doctors is worth a reward. But a recorded call the 32-year-old inmate made to his father from the Palm Beach County Jail may have put a kink in his plans.
Despite a message that plays at the start of every jail inmate call warning all parties that they are being recorded, the two men had a phone conversation that went on for about 15 minutes last week — with dad John George giving a play-by-play of how another witness testified in court and coaching his son on what questions might come up and what might sound good on the witness stand.
***
On the recorded call, George, his father and a woman who accompanied the dad to court last week, were heard hashing out the details of the first trial witness's testimony and what appeared to be playing well to the jury and what wasn't working.
"We took a lot of notes …. we took pages of notes," John George, 62, told his son during the call, explaining that it didn't look good when a witness downplayed any benefit he might receive for his testimony. "The defense attorneys … jump on that. They will say, 'How much time to do you expect to get off.'"
After detailing the highlights of the defense's strategy and line of questioning, John George threw in a critique of attorney Michael D. Weinstein's cross-examination of the witness: "This guy … really can slice things up … He was pretty good."

Although the defense moved to exclude George's testimony entirely based on these recordings, he has been permitted to testify.  Sounds like the stuff of movies:

The businesses brought in so much cash that his staff quickly stopped using cash registers because they filled up too quickly, he said. They tried cash drawers for a while but George said that slowed down business too much and eventually they settled on dropping the cash into two-gallon trash bins by their desks.
Hassled by police and reporters, George said he moved from the first clinic to locations on Cypress Creek Road in Fort Lauderdale, then Boca Raton and Palm Beach County.
As the business evolved, he realized that a prior criminal conviction for illegally importing and selling steroids was bringing more unwanted attention and he put the clinics in a friend's name, though he still ran them.
George testified he saved some money, stashing $5 million in safes in his mom's attic and bedroom, but he also blew a lot of it. He bought three homes, some boats and so many luxury cars that he struggled to recall the details.
"I went through a lot, I don't remember all of them," George testified, listing off Range Rovers, BMWs, a Mercedes, a Lamborghini, a Bentley, and a freightliner truck that cost more than $200,000.

Some great in-depth coverage by Ms. McMahon. 

-- Meantime, another court is fed up with discovery/Brady violations.  This time the 6th Circuit.

-- Finally, a big congrats to Robert Luck, who was named Circuit Court Judge by Governor Scott.  Luck is a good guy, and smart.  A nice addition to the bench.

Wednesday News & Notes

1.  Although Dore Louis withdrew his request for NSA records and although the judge denied his motion based on that withdrawal, the feds filed another classified pleading to "clarify" what it said in the earlier classified filing.  Of course that clarification is redacted, so we have no idea what needed to be explained.

2.  The Federal JNC has been reconstituted.  Finally. Now can we get William Thomas confirmed? Here are the Southern District's members:
 UPDATED -- THIS LIST BELOW IS INCORRECT.  The correct list is here.

SOUTHERN DISTRICT CONFERENCE
John M. Fitzgibbons, Statewide Chair
Kendall B. Coffey, Conference Chair
Georgina A. Angones
Reginald J. Clyne
Vivian de las Cuevas-Diaz
Albert E. Dotson, Jr.
Philip Freidin
John H. Genovese
Carey Goodman
Evelyn Langlieb Greer
Cynthia Johnson-Stacks
Manuel Kadre
Eduardo R. Lacasa
Ira Leesfield
Dexter W. Lehtinen
Charles H. Lichtman
Richard J. Lydecker
Thomas F. Panza
David C. Prather
Dennis Alan Richard
Jon A. Sale
Stephen N. Zack

3.  Tom Almon received the Eugene Spellman Criminal Justice Act Award.*  I'm really happy to post about Tom Almon, who has been a CJA lawyer for a long time and has really provided a wonderful service to indigent defense.  Here's a picture:

Chief Judge Federico Moreno, me, Tom Almon, Judge Bob Scola (picture by Cathy Wade)

I never met Judge Spellman, but he was very close with Judge Davis who told lots of great stories about him.  Here's the NY Times obituary for Judge Spellman:

Judge Eugene P. Spellman, an 11-year veteran of Federal District Court who was known for innovative sentences and supporting social causes, died of cancer today at Mercy Hospital. He was 60 years old.
Judge Spellman was absent from the bench only a week before his death.
He crafted a novel sentence that withstood a challenge in the tax-evasion case of the industrialist Victor Posner, a millionaire who was ordered to give $3 million to the homeless and to serve meals in a shelter.
In other cases, the judge decried "underhanded tactics" used by Federal immigration officials against Haitian immigrants and released on bond a prisoner with AIDS after ruling that the Bureau of Prisons did not offer the prisoner adequate medical treatment.
In a case involving religious freedom, Judge Spellman ruled that public health and needs outweighed the tenets of the Afro-Cuban Santeria religion and upheld ordinances banning animal sacrifices in the Miami suburb of Hialeah.
He presided over the 1985 trial of Hernan Botero, a Colombian financier who was convicted of laundering $57 million in drug money, as well as drug cases involving former Government ministers of the Turks and Caicos Islands in the Caribbean and a former agent for the Federal Bureau of Investigation.

I pulled up an old administrative order when Judge King was Chief, appointing Judge Spellman to the CJA committee.  Lots of heavy hitters also on the committee...

*I also received the award this year.  I have a policy about not posting about me or my cases, but I wanted to post about Tom.  Also, Judge Scola ordered me to put this up.  It is a real honor for me to have received this award.


4.  The 9th Circuit really gives meaning to Rule 16 and Brady.  Check out the latest, from Judge Kozinski, here. Another conservative judge is frustrated with how our criminal justice system is operating.  But when is the last time you saw an 11th Circuit opinion like this?

We vacate the conviction and remand for an evidentiary
hearing into whether the prosecution’s failure to disclose the
certificate in discovery or at any point before the proofs had
closed was willful. If it was willful, the district court shall
impose appropriate sanctions. The district court shall, in any
event, dismiss the illegal reentry count of the indictment on
account of the STA violation, with or without prejudice,
depending on its weighing of the relevant factors. See
18 U.S.C. § 3162(a)(2); United States v. Lewis, 349 F.3d
1116, 1121–22 (9th Cir. 2003).
We are perturbed by the district court’s handling of the
reopening issue. The court persisted in giving a reason for
allowing the government to reopen that was contradicted by
the record, despite defense counsel’s repeated attempts to
point out the error. The court also ignored defendant’s twiceraised
Rule 16 objection and made a questionable ruling
regarding defendant’s Speedy Trial Act claim.
“Whether or not [the district judge] would reasonably be
expected to put out of his mind” his previous rulings, and
“without ourselves reaching any determination as to his
ability to proceed impartially, to preserve the appearance of
justice, . . . we conclude reassignment is appropriate,” and we
so order. See Ellis v. U.S. Dist. Court (In re Ellis), 356 F.3d
1198, 1211 (9th Cir. 2004) (en banc).

5.  Everyone is focused on the blockbuster cases before the Supreme Court.  But how about the debate about Clue:

[Jusice Kagan] resorted to the game Clue—or the plot line of the musical version of Clue, to be exact—to illustrate her point. Kagan wrote: "(Think: Professor Plum, in the ballroom, with the candlestick?; Colonel Mustard, in the conservatory, with the rope, on a snowy day, to cover up his affair with Mrs. Peacock?)"
It was an example of the vivid writing, aimed at making complex concepts understandable that Kagan has adopted in her first years on the high court.
But Alito, the sole dissenting justice, was apparently not impressed. Making the point that different ways of committing a crime do not make them different crimes, Alito wrote a footnote responding to Kagan’s reference.
“The board game Clue, to which the Court refers… does not provide sound legal guidance. In that game, it matters whether Colonel Mustard bashed in the victim’s head with a candlestick, wrench, or lead pipe. But in real life, the colonel would almost certainly not escape conviction simply because the jury was unable to agree on the particular type of blunt instrument that he used to commit the murder.”

A nice comeback by Alito, but why is he making faces at Justices Ginsburg and Sotomayor:

The most remarkable thing about the Supreme Court’s opinions announced Monday was not what the justices wrote or said. It was what Samuel Alito did.

The associate justice, a George W. Bush appointee, read two opinions, both 5-4 decisions that split the court along its usual right-left divide. But Alito didn’t stop there. When Justice Ruth Bader Ginsburg read her dissent from the bench, Alito visibly mocked his colleague.
Ginsburg, the second woman to serve on the high court, was making her argument about how the majority opinion made it easier for sexual harassment to occur in the workplace when Alito, seated immediately to Ginsburg’s left, shook his head from side to side in disagreement, rolled his eyes and looked at the ceiling.

His treatment of the 80-year-old Ginsburg, 17 years his elder and with 13 years more seniority, was a curious display of judicial temperament or, more accurately, judicial intemperance. Typically, justices state their differences in words — and Alito, as it happens, had just spoken several hundred of his own from the bench. But he frequently supplements words with middle-school gestures.

Days earlier, I watched as he demonstrated his disdain for Elena Kagan and Sonia Sotomayor, the two other women on the court. Kagan, the newest justice, prefaced her reading of an opinion in a low-profile case by joking that it was “possibly not” the case the audience had come to hear. The audience responded with laughter, a few justices smiled — and Alito, seated at Kagan’s right elbow, glowered.

Another time, Sotomayor, reading a little-watched case about water rights, joked that “every student in the audience is going to look up the word ‘preemption’ today.” Alito rolled his eyes and shook his head.

Details for Holly Skolnick's memorial

 

Please join her family and friends in a

Celebration of Life

Holly Skolnick

May 7, 1954 - June 23, 2013

 

Sunday, June 30, 2013 at 1:00 p.m.

Gusman Concert Hall at the University of Miami

(Across from the law school)

1314 Miller Drive

Coral Gables, FL 33146

 

Reception to immediately follow at the University of Miami Law School

 

In lieu of flowers and in honor of Holly, please consider a donation to

Americans for Immigrant Justice https://donatenow.networkforgood.org/AIJustice.

Donations will fund the Holly Skolnick Human Rights Fellowship.

 

Openings in Zimmerman case

Check out the difference in opening statements between the prosecutor (strong and dramatic) and defense (flat footed joke that bombs):



Now the defense:



Wow.

RIP Holly Skolnick

Very very sad news...  Holly Skolnick has passed away.  I really liked Holly -- she was a great person.  Smart, energetic, and fun to be around. She's the second from the left in the picture below (with Ellen Roth, Cheryl Little, and Jane Moscowitz):



 Here's the into from the Herald's obit:

Holly R. Skolnick, a veteran attorney at the Miami-based firm Greenberg Traurig, died on Saturday of melanoma. She was 59.
In an email to firm personnel, co-President Hilarie Bass, said that Skolnick “will be remembered as a close friend to so many of us. A brilliant lawyer, a wonderful friend, and someone who was always committed to finding justice for those who needed her help.
“ Whether as the leader of [the firm’s] pro bono efforts, the chair of the country's most important organization for providing legal assistance to immigrants, or her involvement with Equal Justice Works Fellows, Holly will be remembered for her passion for our legal system and helping all of us to try to fulfill it's promise for everyone.’’
Skolnick held degrees from the University of Wisconsin/Madison, 1976, and Harvard University Law School, 1980.
***
Skolnick is survived by her husband, federal appellate attorney Richard Strafer, daughter Jordan Strafer, and her parents.

Read more here: http://www.miamiherald.com/2013/06/23/3466467/holly-skolnick-prominent-attorney.html#storylink=cpy

Read more here: http://www.miamiherald.com/2013/06/23/3466467/holly-skolnick-prominent-attorney.html#storylink=cpy

Celebrate -- pots and pans edition!

Government files two responses to Dore Louis' NSA motion

One is classified and one is public.

 Here's the public one, which was posted by Paula McMahon from the Sun-Sentinel.

She writes:

Federal prosecutors filed two versions of their response in federal court in Fort Lauderdale late Wednesday. The unclassified, publicly filed version was 21 pages long and included several lines that stated "CLASSIFIED INFORMATION REDACTED."
Prosecutors filed a longer, classified version of their response with supporting information under seal with U.S. District Judge Robin Rosenbaum — so even the defense attorneys cannot see it — saying the judge would need additional information to make her ruling.
Prosecutors claimed in court records that the secretive NSA program did not capture "information about where a cellular telephone was geographically located at the time a call was made."
"Thus, the government does not possess the records the defendant seeks," they wrote.
The defense will have an opportunity to respond before the judge issues her ruling, which the prosecution asked should be sealed if it contains any classified information.

If the government does not have the data, then so be it.  But 20 pages seems like a lot of words to say we don't have it.  I found the argument heading on page 17 interesting: "Neither Brady nor Rule 16 permit the defendant to conduct a fishing expedition of highly classified NSA Data." 

Government responds to Dore Louis' motion for NSA records

Last week, the blog broke the story of Dore Louis' motion seeking NSA phone records, and Judge Rosenbaum's order requiring the government to respond.  The story got a lot of attention, which was pretty neat.

The government filed a short motion this morning, asking the Court to appoint a CIPA (Classified Information Security Officer) to watch over the classified information that it will be disclosing to the defense and the Court in its response.  Here's a link to the government's motion, which is unopposed. And here is the most interesting part of it:

As a result of the filing of Brown’s Motion to Compel Production (DE:778) and CIPA Section 5 Notice (DE:779), the government’s response will require the discussion of classified material. Pursuant to the Classified Information Procedures Act (“CIPA”), 18 U.S.C. App. 3, and Section 2 of the Security Procedures established under Pub. L. 96-456, 94 Stat. 2025 by the Chief Justice of the United States and promulgated pursuant to Section 9 of CIPA the Court shall designate a CISO in any proceeding in a criminal case in which classified information is reasonably expected to be within.
 To assist the Court and court personnel in handling any motions, pleadings and implementing any orders relating to the CIPA proceedings, the government requests that the Court designate Daniel O. Hartenstein as the CISO for this case, to perform the duties and responsibilities prescribed for CISO’s in the Security Procedures promulgated by the Chief Justice.

All of this means that the government's response is likely to be deemed classified, so the public will not get a chance to see it.  What a shame...

Justice Kagan dials Jenny at 867-5309

Gotta love this -- Justice Kagan cited the famous 1982 Tommy Tutone song in American Trucking Association v. City of Los Angeles:

Under th[e] contract, a company may transport cargo at the Port in exchange for complying with various requirements. The two directly at issue here compel the company to (1) affix a placard on each truck with a phone number for reporting environmental or safety concerns (You’ve seen the type: ‘How am I driving? 213–867–5309‘) and (2) submit a plan listing off-street parking locations for each truck when not in service.

Lots of big decisions coming out this week, and SCOTUSBlog has all of the action. Unless there is some big SDFLA news, there will be very little blogging this week...

Meantime, you can listen to the classic 8675309/Jenny right here.

Supreme Court reverses 11th in Davila v. United States

Apropos of the previous post dealing with the 11th Circuit, the Supreme Court decided Davila today, 9-0:

This case concerns Rule 11 of the Federal Rules of Crim- inal Procedure, which governs guilty pleas. Two provi- sions of that rule are key here. The first, Rule 11(c)(1), instructs that “[t]he court must not participate in [plea] discussions.” The second, Rule 11(h), states: “A variance from the requirements of th[e] rule is harmless error if it does not affect substantial rights.” Rule 52(a), which covers trial court errors generally, similarly prescribes: “Any error . . . that does not affect substantial rights must be disregarded.”
Anthony Davila, respondent here, entered a guilty plea to conspiracy to defraud the United States by filing false income tax returns. He maintains that he did so because a U. S. Magistrate Judge, at a pre-plea in camera hearing and in flagrant violation of Rule 11(c)(1), told him his best course, given the strength of the Government’s case, was to plead guilty. Three months later, Davila entered a plea on advice of counsel. The hearing on Davila’s plea, con- ducted by a U. S. District Judge, complied in all respects with Rule 11.
The question presented is whether, as the Court of Appeals for the Eleventh Circuit held, the violation of Rule 11(c)(1) by the Magistrate Judge warranted automatic vacatur of Davila’s guilty plea. We hold that Rule 11(h) controls. Under the inquiry that Rule instructs, vacatur of the plea is not in order if the record shows no prejudice to Davila’s decision to plead guilty.

Interesting opinions from the 11th Circuit

1.  Judge Pryor doesn't like dissentals, which I know all too well.  His latest concurral is in Michael Morgan's case.  He starts this way:

I write to respond to the dissents filed by three of my colleagues about the
denial of a rehearing en banc. I continue to adhere to the view expressed by Judges Henry Friendly and Raymond Randolph that dissents from the denial of rehearing en banc, particularly where one did not participate in the decision, are “of dubious policy,” United States v. Shaygan, 676 F.3d 1237, 1238 (11th Cir. 2012) (Pryor, J., respecting the denial of rehearing en banc) (quoting United States v. N.Y., New Haven & Hartford R.R. Co., 276 F.2d 525, 553 (2d Cir. 1960) (Friendly, J., concurring in the denial of reh’g en banc, joined by Lumbard, C.J.), and that “denials of rehearing en banc are best followed by silence,” id. (alteration omitted) (quoting Indep. Ins. Agents of Am. v. Clarke, 965 F.2d 1077, 1080 (D.C. Cir. 1992) (Randolph, J.)). But my colleagues do not share that view, and their dissents should not go unanswered. Lest anyone doubt the correctness of our decision in this matter, I must respond to five misunderstandings in the dissents that follow. 

I disagree with Judge Pryor and think Judge Kozinski has it right:

“Cases arguably warranting en banc review are those in which the stakes are unusually high or the law is especially unclear.”⁶⁴ It does honor to the law, promotes justice, and serves the interests of an informed public when citizens learn that appellate judges have given difficult and important cases exacting scrutiny—not just one judge or even the three-judge panel, but an entire court of appeals.As Judge Clark put it in the case that started out this essay, “I do believe the court gains standing by encouraging free and thorough canvassing of these issues without the deadening influence of constraining restrictions.”⁶⁵Dissentals are here to stay. Get over it.

2.  The Court of Appeals also addressed some forfeiture issues in the Rothstein matter.  Judge Tjoflat starts off this interesting issue like this:

A number of criminal statutes within the Federal Code mandate that a
defendant, when convicted, forfeit to the United States as part of his sentence the lucre he acquired as a result of his criminal activity. In this case, the defendant, a lawyer, deposited the lucre in his law firm’s bank accounts, where it was commingled with the firm’s receipts from legitimate clients. The question this appeal presents is whether the money in the bank accounts at the time the defendant was charged is subject to forfeiture. We hold that it is not.

3.   OK, this isn't the 11th Circuit, but you gotta love how this Second Circuit opinion starts out:

In addition to the awesome cover art, Judge Chin has a cool intro:

In 1972, the Marvel Comics Group published a comic book featuring the "Ghost Rider" -- a motorcycle-riding superhero with supernatural powers and a flaming skull for a head. The issue -- which sold for twenty cents -- told the story of Johnny Blaze, a motorcycle stunt rider who promised his soul to the devil to save his adoptive father from cancer.
 

Go, Dore, Go!

There's a lengthy multi-defendant trial before Judge Rosenbaum right now. I've been hearing lots of interesting (and sometimes funny -- including Marc Seitles putting on a dress during a cross!) stories from the trial, and this one is worth sharing. Dore Louis filed a motion for phone records, which the government claims it doesn't have. But -- according to recent reports -- doesn't the government have all of our phone records? Judge Rosenbaum wants to hear from the government on this point:

Defendant Brown urges that the records are important to his defense because cell-site records could be used to show that Brown was not in the vicinity of the attempted robbery that allegedly occurred in July 2010. And, relying on a June 5, 2013, Guardian newspaper article that published a FISA Court order relating to cellular telephone data collected by Verizon,1 Defendant Brown now suggests that the Government likely actually does possess the metadata relating to telephone calls made in July 2010 from the two numbers attributed to Defendant Brown.

Under 50 U.S.C. § 1806(f), when an “aggrieved person”2 moves “to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance[3] under [FISA],” the Court must provide the Attorney General of the United States with an opportunity to file an affidavit under oath indicating whether disclosure or an adversary hearing on the defendant’s request would harm the national security of the United States. If the Attorney General files such an affidavit, the Court must conduct an in camera and ex parte review of the application, order, and other materials to determine whether the surveillance of the movant was lawfully authorized and conducted. If the Attorney General declines to file such an affidavit, however, the Court may conduct this inquiry in open court.

Upon review of the application, order, and other materials, if the Court concludes that Defendant Brown was an “aggrieved person” and that the surveillance was not lawfully authorized or conducted, it must grant Defendant’s Motion and preclude the Government from using the evidence. See 50 U.S.C. § 1806(g). And, even if the Court determines that the surveillance was lawfully authorized or conducted, it must order discovery or disclosure to the extent that due process requires it, although the Court must otherwise deny the motion. Id. Here, Defendant asserts that, under Brady v. Maryland, 373 U.S. 83 (1963), due process requires the production of the July 2010 telephone records because they are anticipated to be exculpatory in that they are expected to show that Defendant Brown was not physically located at the scene of the alleged attempted Brink’s truck robbery in July 2010.

In view of Defendant Brown’s Motion and the requirements of FISA, it is hereby ORDERED and ADJUDGED that the Government shall respond to Defendant Brown’s Motion and, if desired, shall file an affidavit of the Attorney General of the United States, as contemplated by Section 1806(f), by Wednesday, June 12, 2013. The Court regrets the short deadline for compliance but notes that the evidence that Defendant Brown seeks pertains to a trial that has been underway since May 31, 2013,4 and any order requiring the production of any materials sought would become meaningless if such items were not produced in sufficient time for the defense to use them in its case.5

Fascinating. The rest of the order, including the footnotes, are also worth reading.

Any predictions on how the government will respond?  Will we get an affidavit from General Holder?