98-0

That was the vote confirming Darrin Gayles to the District bench.  Congratulations to Judge Gayles!

Judge Gayles to be confirmed tomorrow!

He has his final Senate vote tomorrow.  Good luck to Judge Gayles! (My sources tell me he was moved up to this group for the historic vote of two openly gay judges and that Beth Bloom will be in the next group.)

In less exciting news, Chief Judge Moreno has abolished the bankruptcy appeals case assignment wheel in administrative order 2014-57: "After consideration of relevant circumstances and after consultation with the Judge of this District, the Court has determined that the administration of justice at this time would be best served by returning to the purely random assignment of Bankruptcy Appeals that existed prior to the establishment of the pilot project for assignment of Bankruptcy Appeals."

Meantime, the Court surprised Judge Moreno with a party last week, recognizing his incredible 7-year tenure as Chief Judge of this District.  Amazingly, Judge Moreno seemed genuinely surprised, which was cool.   Here's a picture by 3rd DCA Judge Kevin Emas of yours truly and Judge Moreno:     

Also last week, Judge Huck had his yearly seminar with the summer and young associates.  It was really well-attended.  Below is a picture of a panel with Judge Huck moderating Judges Altonaga, Scola, and Goodman:

So you wanna be a district judge?

The JNC is now taking applications for Judge Rosenbaum's seat.  They are due July 30.  Interviews will be September 4 and the finalists will be sent to the senators by September 8. 

11th Circuit & SDFLA judicial happenings, including big opinion on cell site data

The Senate will be moving forward with the Georgia 11th Circuit nominees (Pryor & Carnes), but for now, the district nominee of Michael Boggs is stalled.  From HuffPost:

Sen. Patrick Leahy (D-Vt.), chairman of the committee, announced Wednesday that he is adding six of the seven pending nominees for federal court seats in Georgia to this week's agenda.
Georgia's two Republican senators, Saxby Chambliss and Johnny Isakson, "asked that I move forward with the Georgia nominees who were ready for a Committee vote," Leahy said in a statement. "I thank both of them for their willingness to move forward with these important nominations."
Boggs' nomination will remain pending before the committee.
"More time is needed to follow up on his recent testimony before his nomination will be scheduled for a vote," Leahy said.

 Also up for full consideration of the judiciary committee is Robin Rosenberg for our District.

While all of this is going, the 11th Circuit is still issuing opinions.  Here's an opinion of first impression from the court today on cell site data and the Fourth Amendment:

Before MARTIN, DUBINA, and SENTELLE,* Circuit Judges.
SENTELLE, Circuit Judge:
Appellant Quartavius Davis was convicted by a jury on several counts of Hobbs Act robbery, 18 U.S.C. § 1951(b)(1), (3), conspiracy, 18 U.S.C. § 1951(a), and knowing possession of a firearm in furtherance of a crime of violence, 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. The district court entered judgment on the verdict, sentencing Davis to consecutive terms of imprisonment totaling 1,941 months. Davis appeals, assigning several grounds for reversal. His principal argument is that the court admitted location evidence based on stored cell site information obtained by the prosecution without a warrant, in violation of his Fourth Amendment rights. He assigns other grounds of error going to prosecutorial misconduct, evidentiary sufficiency, and sentencing. For the reasons set forth below, we hold that there is no reversible error, although we do find merit in one argument that the sentence was improperly enhanced. We therefore affirm the judgment below in large part, but vacate a sentencing enhancement regarding “brandishing” a firearm.

 Although the reversal on the brandishing is important, the real discussion is regarding the cell site location data, which the Court holds is protected by the Fourth Amendment:

Having determined that the privacy theory of Fourth Amendment protection governs this controversy, we conclude that the appellant correctly asserts that the government’s warrantless gathering of his cell site location information violated his reasonable expectation of privacy. The government argues that the gathering of cell site location information is factually distinguishable from the GPS data at issue in Jones. We agree that it is distinguishable; however, we believe the distinctions operate against the government’s case rather than in favor of it.

Jones, as we noted, involved the movements of the defendant’s automobile on the public streets and highways. Indeed, the district court allowed the defendant’s motion to suppress information obtained when the automobile was not in public places. The circuit opinion and the separate opinions in the Supreme Court concluded that a reasonable expectation of privacy had been established by the aggregation of the points of data, not by the obtaining of individual points. Such a mosaic theory is not necessary to establish the invasion of privacy in the case of cell site location data.

One’s car, when it is not garaged in a private place, is visible to the public, and it is only the aggregation of many instances of the public seeing it that make it particularly invasive of privacy to secure GPS evidence of its location. As the circuit and some justices reasoned, the car owner can reasonably expect that although his individual movements may be observed, there will not be a “tiny constable” hiding in his vehicle to maintain a log of his movements. 132 S. Ct. at 958 n.3 (Alito, J., concurring). In contrast, even on a person’s first visit to a gynecologist, a psychiatrist, a bookie, or a priest, one may assume that the visit is private if it was not conducted in a public way. One’s cell phone, unlike an automobile, can accompany its owner anywhere. Thus, the exposure of the cell site location information can convert what would otherwise be a private event into a public one. When one’s whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts. Therefore, while it may be the case that even in light of the Jones opinion, GPS location information on an automobile would be protected only in the case of aggregated data, even one point of cell site location data can be within a reasonable expectation of privacy. In that sense, cell site data is more like communications data than it is like GPS information. That is, it is private in nature rather than being public data that warrants privacy protection only when its collection creates a sufficient mosaic to expose that which would otherwise be private.

The United States further argues that cell site location information is less protected than GPS data because it is less precise. We are not sure why this should be significant. We do not doubt that there may be a difference in precision, but that is not to say that the difference in precision has constitutional significance. While it is perhaps possible that information could be sufficiently vague as to escape the zone of reasonable expectation of privacy, that does not appear to be the case here. The prosecutor at trial stressed how the cell phone use of the defendant established that he was near each of six crime scenes. While committing a crime is certainly not within a legitimate expectation of privacy, if the cell site location data could place him near those scenes, it could place him near any other scene. There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute. Again, we do not see the factual distinction as taking Davis’s location outside his expectation of privacy. That information obtained by an invasion of privacy may not be entirely precise does not change the calculus as to whether obtaining it was in fact an invasion of privacy.

Of course there's no reversal on this issue because it is governed by the good faith exception.... 
 

"Pull your pants up!"

That's what a sign in Judge Wayne Maura's courtroom says.  And for violating the too low pants rule, one defendant was fined $50. 

Here's the Morning Call:

Maura recounted the incident that prompted the citation, saying the waistband of Dennis' pants was "completely below his buttocks," leaving only a "very thin layer" of fabric between his posterior and the courtroom bench.
..."I think Mr. Dennis is old enough to understand when he's in a public courtroom, there's a reason he was told to leave and fix the way he's dressed," Maura said.
Maura said he routinely sees people in court wearing low-slung pants, calling them a sign of disrespect for the courts and taxpayers.
After the hearing, Makoul called the judge's ruling "disappointing" and said she likely will appeal the sentence after she speaks to Dennis.
In several places in Maura's courtroom and office, a sign is displayed that has a cartoon drawing showing the backsides of three people all wearing pants well below waist level with their underwear exposed. The sign says, "Pull your pants up!"
Maura's Bethlehem office also includes a second sign warning that visitors may not appear in the courtroom or be waited on by staff if they are wearing baggy pants with "exposed undergarments" or "excessive exposure of any private body areas."
Maura declined to comment after Monday's hearing. When asked about the signs in his courtroom, he would only say "they speak for themselves."

Below is the offensive sign at issue:

“There is very little heart and soul in Judge Breyer’s opinions. Quite clearly, he is a rather cold fish.”

Yikes, that's Ian Gershengorn, now deputy Solicitor General, who helped then President Bill Clinton vet then 1st Circuit Judge Breyer.  From the WSJ:

“Nothing in Judge Breyer’s opinions suggests that he would be a great Supreme Court justice,” Mr. Gershengorn, then fresh out of Harvard Law School, and another attorney, Tom Perrelli, wrote in a June 1993 memo to White House lawyer Joel Klein. “There is very little heart and soul in Judge Breyer’s opinions. Quite clearly, he is a rather cold fish.”
The memo was released Friday in the fifth batch of documents from the Clinton Presidential Library, along with 2,000 pages of material that had been previously withheld for legal reasons that no longer apply.
The memo assesses then-Judge Breyer’s opinions in the areas of civil rights, privacy and national security law. It finds it “most remarkable that virtually none” of his rulings turned on substantive issues, instead being decided on administrative or procedural grounds.
“Nonetheless, the dearth of commentary about the substantive issues at stake indicates that Judge Breyer has no real interest in the area of civil rights; it is all but impossible to imagine him being an innovator on the Supreme Court on these issues.,” the memo said.
His decisions are “often reasonable and perhaps legally correct, but there is such a lack of vigor in his jurisprudence that one suspects he does not have (or refuses to utilize) any innate sense of justice,” the memo went on.
“Conservatives will be thrilled if Judge Breyer is appointed,” while “liberals would be very upset at this selection,” the memo concludes
“Everyone has regrets from his 20s,” Mr. Gershengorn said Friday. “Suffice to say, I have the highest respect for Justice Breyer and believe he has proven to be a terrific justice. As Earl Weaver once said, ‘It is what you learn after you know it all that counts.’”
His co-author, Mr. Perrelli, said the 1993 memo shows “why you don’t have second-year associates writing evaluations of potential Supreme Court nominees.” Mr. Perrelli spent three years as associate attorney general in the Obama administration, and now is back in at his old law firm, Jenner & Block.
Justice Breyer couldn’t be reached for comment.
Mr. Perrelli said that in 1993 he was a young lawyer at Jenner, where Mr. Gershengorn worked with him as a summer associate. The two were among a group of private attorneys recruited by the Clinton White House to assess candidates for the high court, he said.
President Clinton passed over Justice Breyer for a 1993 vacancy, instead selecting another federal appeals judge, Ruth Bader Ginsburg, for the slot. The following year, however, Mr. Clinton gave him the nod when another court seat came open.

You know who is not a cold fish?  Lebron.  Go Heat.

Go Heat & other SDFLA News & Notes

1.  Lewis Tein and Paul Calli are dominating the proceedings before Judge Cooke.  The latest victory -- disqualification of the Tribe's lawyer -- is reported in the DBR:

She said Cortiñas as Lehtinen's former law partner would be familiar with all of the small firm's business with the tribe and agreed with Lehtinen that it amounted to an "unfair informational advantage."She said this perceived conflict was reason enough to disqualify Cortiñas. "How does it look for those on the outside who are not lawyers?" Cooke asked. "How do we police ourselves?"Cooke ruled Cortiñas did not violate ethics rules by representing the tribe after hearing similar issues while an appellate judge. Though she added his appearance "disturbs me."As a result, she ruled the Gunster firm was not disqualified from representing the tribe or its attorneys at the evidentiary hearing on sanctions.Cortiñas told Cooke before his disqualification that the tribe's former attorneys were afraid of his legal prowess. "The reason they really don't want me here is I know fraud cases very well," Cortiñas said.Cooke said the comment somewhat indicated the tribe may have had incompetent counsel in Roman and his associates.

2.  Check out this order from the 11th. The defendant's lawyer challenged (on rehearing) the fact that the panel had two visiting district judges.  The same panel consisting of only one active 11th Circuit judge said no problem.  Well, the court is getting Judge Rosenbaum now.  I wonder if the order allowing two visiting judges still applies.


3.  Meantime, Judge Rosenbaum's elevation has caused an emergency on the district court....

How's it looking for the new Georgia judges?

Not so good.  The Democrats might block Obama's deal.  From District Chronicles:

Democrats and civil rights advocates continue to express concerns over two of President Obama’s federal judicial nominees for Georgia’s northern district, who have suspect civil rights backgrounds.

 In a package deal with Republican United States Sens. Saxby Chambliss and Johnny Isakson from Georgia, President Obama nominated Julie Carnes and Jill A. Pryor to the United States Eleventh Circuit Court, Leslie Abrams to the United States Court of the Middle District of Georgia, and Michael Boggs, Mark Cohen, Leigh May, and Eleanor Ross to the Court of the United States Northern District of Georgia.

 If confirmed, Abrams and Ross would become the first Black women to serve lifetime appointments as federal judges in Georgia.

 However, Democrats and some progressive groups object to the nominations of Boggs and Cohen.

 The United States Senate Judiciary Committee held a hearing for the nominees where Democratic senators grilled Boggs, who is currently a judge on Georgia’s appeals court, over his voting record while he served in the Georgia state legislature.

 When questioned about his votes against removing the Confederate battle emblem from the Georgia state flag, Boggs said that although he found the Confederate symbol personally offensive, his constituents wanted the opportunity to vote on any changes to the state flag.

 Boggs also voted for legislation requiring doctors to list how often they provided abortion services. When senators questioned him about the public safety concerns associated with publishing such a list following decades of violence against doctors who performed abortions, Boggs said that he was unaware of that history at the time of the vote.

 A day before the hearing, Rep. David Scott (D-Ga.) said on the Tom Joyner Morning Show, “Here you have the architect and the attorney that defended photo ID voter suppression laws in Georgia, the very same laws the president is fighting all across the country” nominated to the federal bench in Atlanta where most of the Black people are.

 To have this being done by the first African-American president is shameful, it’s painful, and it hurts deeply.”

 Scott continued: “The president should have stood up to those Republicans and said, ‘No, I can’t do this to my people. You wouldn’t do it to George Bush. You wouldn’t have done it to Bill Clinton. Why are you doing it to me?’”

 When white students sued the University of Georgia over the school’s freshman admissions policy that used race as factor, Cohen scored a court victory in 2001 for affirmative action proponents who supported the university’s program, according to Brooks.

 Nearly a decade later, then-Georgia state Attorney General Thurbert Baker, asked Cohen to defend Georgia’s photo identification law for in-person voting that many voter’s rights advocates say discriminates against Blacks and the poor. Brooks said it was a move that likely provided Baker, who is Black, political cover.

 Brooks called Boggs and Cohen friends and said that he had no reason to oppose their nominations.

 “This isn’t the perfect deal, but I trust the president,” said Brooks. “If [the president] had a different hand of cards, the package would look different, but he’s doing the best that he can do under these circumstances.”

 Mary Frances Berry, former chair of the U.S. Commission on Civil Rights, says that President Obama held his ground and nominated Boggs and Cohen, assuming that the civil rights groups and Democrats in the Senate would go along with his decision.

 “The problem with that is that the advocacy groups believe that the president should fight harder to get the nominees that he wants. The president has a lot of power to make horse trades with people on things other than appointments,” said Berry. “There are always things that Senators want.

 Obama made the deal but some think the price is too high, said Berry.

Stay out of Brevard county!

This story is insane:

A judge allegedly struck a public defender Monday after a verbal confrontation in a Brevard County courtroom.

Judge John Murphy is accused of hitting Andrew Weinstock, according to the public defender's office.

During a court session, Murphy asked Weinstock to waive his client's right to a speedy trial, but Weinstock refused, the public defender's office said.

The confrontation leading up to the fight was captured on video.

"If I had a rock, I would throw it at you right now," Murphy said. "Stop pissing me off. Just sit down. I'll take care of it. I don't need your help. Sit down."

"I'm the public defender, I have the right to be here and I have a right to stand and represent my clients," Weinstock said.

"Sit down," Murphy said. "If you want to fight, let's go out back and I'll just beat your ass."

"Let's go right now," Weinstock said.

The two went into a hallway and Murphy allegedly grabbed Weinstock by the collar and started hitting him, according to the public defender's office.

Although off camera, the two can still be heard yelling at each other, with one of them saying, "You want to (expletive) with me?"

A Brevard County sheriff’s deputy stopped the fight.

The participants refused to press charges, and no arrests were made.

Video also shows the judge being applauded as he returned to the courtroom.

It's not known if the judge or public defender will face any disciplinary action.

Meantime, let's go HEAT:

Feds can't prosecute "unremarkable local offense"

That's what the Supreme Court said today in a very interesting opinion, Bond v. United States.  From Chief Justice Roberts' majority:

The horrors of chemical warfare were vividly captured by John Singer Sargent in his 1919 painting Gassed. The nearly life-sized work depicts two lines of soldiers, blinded by mustard gas, clinging single file to orderlies guiding them to an improvised aid station. There they would receive little treatment and no relief; many suffered for weeks only to have the gas claim their lives. The soldiers were shown staggering through piles of comrades too seriously burned to even join the procession.
     The painting reflects the devastation that Sargent witnessed in the aftermath of the Second Battle of Arras during World War I. That battle and others like it led to an overwhelming consensus in the international community that toxic chemicals should never again be used as weapons against human beings. Today that objective is reflected in the international Convention on Chemical Weapons, which has been ratified or acceded to by 190 countries. The United States, pursuant to the Federal Government's constitutionally enumerated power to make treaties, ratified the treaty in 1997. To fulfill the United States' obligations under the Convention, Congress en-
acted the Chemical Weapons Convention Implementation Act of 1998. The Act makes it a federal crime for a person to use or possess any chemical weapon, and it punishes violators with severe penalties. It is a statute that, like the Convention it implements, deals with crimes of deadly seriousness.
     The question presented by this case is whether the Implementation Act also reaches a purely local crime: an amateur attempt by a jilted wife to injure her husband's lover, which ended up causing only a minor thumb burn readily treated by rinsing with water. Because our constitutional structure leaves local criminal activity primarily to the States, we have generally declined to read federal law as intruding on that responsibility, unless Congress has clearly indicated that the law should have such reach. The Chemical Weapons Convention Implementation Act contains no such clear indication, and we accordingly conclude that it does not cover the unremarkable local offense at issue here.

ScotusBlog has this summary:

The Court appeared to bring to an end a case that even the Justices acknowledged was a “curious” one:  a federal criminal prosecution, with a potential life sentence, of a Pennsylvania woman because she sought revenge by spreading poison chemicals on surfaces that her husband’s paramour would touch — a door knob, a car door handle, the mailbox.  The other woman did touch one of those surfaces, and got a minor burn on a thumb – dealt with by rinsing her hand with water.
Although the prosecuted woman, Carol Anne Bond, may have violated a number of laws in her state, she actually was charged under state law only for making harassing telephone calls and letters, and state officials refused to accuse her of assault.  She had pleaded guilty to the federal crime of using a “chemical weapon,” on condition that she could later challenge the prosecution. She was convicted under the 1998 law, but Monday’s decision wiped out that result because the law did not even apply to what she did, according to the Court majority.
Aside from its own unusual facts, the case had attracted wide notice because it seemed to pose the ultimate question of just how far Congress could go, in regulating activity entirely inside the U.S., when it was enacting a law to carry out a global obligation that the federal government had assumed under a treaty.  In particular, the case raised a question about the continuing validity of a 1920 precedent, Missouri v. Holland, that had seemed to endorse sweeping congressional power to implement treaty promises.
But Chief Justice John G. Roberts, Jr., writing for himself and five other Justices, invoked the traditional practice of avoiding constitutional issues if not necessary to a decision, and chose to deal only with the question of whether Congress had meant to pass a law that was so nearly limitless that it would reach “a purely local crime” growing out of “romantic jealousy.”
‘The global need to prevent chemical warfare,” the Chief Justice wrote, “does not require the federal government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.   There is no reason to suppose that Congress — in implementing the Convention on Chemical Weapons — thought otherwise.”
Among other reasons that the majority felt driven to read the 1998 law narrowly was its view that, as applied to Carol Anne Bond’s case, the law meant a deep intrusion into the traditional authority of states to enforce criminal laws within their own jurisdictions.  The decision did not in any way seek to absolve her of criminal behavior, but stressed that this was a matter that state law could handle.

Your moment of Zen for Monday morning

Judge Gleeson is awesome

He is pushing the U.S. Attorney's Office in the EDNY to cure an injustice related to the trial tax:

  Because clemency is not a realistic option, the United States Attorney is respectfully requested to reconsider her decision not to agree to an order vacating two or more of Holloway’s 18 U.S.C. § 924(c) convictions. The onerous enhancement in § 924(c)(1)(c) for “second or subsequent conviction[s]” under § 924(c) masquerades as a recidivism enhancement, but when the “second or subsequent” conviction occurs in the very same case as the first one, as they did here, the result is frequently a manifestly unjust mandatory sentence with a disparate impact on black men.1 Holloway deserved harsh punishment for his three robberies, but no one can reasonably contend that his mandatory sentence was not excessive.
The case will be called for a status conference on June 20, 2014, at 2:00 p.m. The government is respectfully directed to take the steps necessary to produce Holloway in court at that time. Harlan Protass is appointed pursuant to the Criminal Justice Act to represent Holloway. Once again, I ask the United States Attorney to exercise her discretion to permit me to reopen the sentence in this case to do justice.In the absence of a government agreement to reopen the sentencing, I will address the pending application to reopen Holloway’s collateral challenge to his conviction. The extraordinary trial penalty in this case may warrant further briefing on the constitutional issues raised by such a use of prosecutorial power. In addition, though I long ago rejected a claim of ineffective assistance of counsel based on trial counsel’s admission in his opening statement that Holloway in fact robbed the three victims of their cars, upon further reflection I may direct a closer inspection of that issue as well.

 Fantastic. 

The Attorney General should be applauded for taking steps (even if they are small steps) to fix the ridiculous sentences and incarceration rates in the U.S., but we need more judges like Gleeson who is willing to tell it like it is.

Should judges participate in plea discussions?

The Rules and 11th Circuit have an absolute ban on the practice.  But Judge Jed Rakoff persuasively argues that we should make a change:

Too many innocent people go to prison because the American plea bargain process is broken, says a prominent New York judge with an innovative new solution.
Manhattan Federal Judge Jed Rakoff argues judges should become more involved in the process so prosecutors armed with harsh mandatory minimum sentences are less able to bully defendants, he told the Daily News in a rare sit-down interview.
"The current process is totally different from what the founding fathers had in mind," because nearly all cases end in pleas, he said.
Nationwide, 97% of federal defendants plead guilty instead of taking their chances at trial. Thirty of 316 convicts exonerated by DNA evidence had entered a guilty plea, according to the Innocence Project.
The current system forces defendants to "choose between Satan and Lucifer," says Rodney Roberts, a Newark man exonerated this year on charges related to a sexual assault after 17 years in prison.
"I knew I didn't do it, but I didn't want to be in prison for the rest of my life," Roberts said. "They made me believe they were ready to enforce a life sentence.”
That's why Rakoff is proposing a mechanism that would designate junior judges to hear evidence and issue plea bargain recommendations early on in cases.
The junior judges, called magistrate judges in the federal system, would hear from prosecutors and defense lawyers separately before weighing in. Their recommendations wouldn't be binding.
Rakoff says the setup, which could begin as a pilot program, would bring plea bargaining out from behind closed doors and relieve pressure on defendants deciding whether to risk a longer sentence by heading to trial.
"There are some people who will say, 'I'm innocent and I'm going to fight to the end,' but they're the exception," Rakoff observed.
Rakoff would most like to see Congress trash mandatory minimums, but isn't holding his breath. He says an all-out elimination just isn't politically feasible.

Our state system allows the practice and the sky hasn't fallen.  What do you think?

Tuesday news and notes

Welcome back everyone.  Some happenings:






1.  Judge Rosenbaum's cases should be reassigned this week and next.  Look out for the notices.






2.  There were more Rothstein pleas last week.  Is this still news?






3.  Did you know that Supreme Court cases get revised after they are published?  The NY Times explains:

The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.

The court can act quickly, as when Justice Antonin Scalia last month corrected an embarrassing error in a dissent in a case involving the Environmental Protection Agency.

But most changes are neither prompt nor publicized, and the court’s secretive editing process has led judges and law professors astray, causing them to rely on passages that were later scrubbed from the official record. The widening public access to online versions of the court’s decisions, some of which do not reflect the final wording, has made the longstanding problem more pronounced.

Unannounced changes have not reversed decisions outright, but they have withdrawn conclusions on significant points of law. They have also retreated from descriptions of common ground with other justices, as Justice Sandra Day O’Connor did in a major gay rights case.                    

The larger point, said Jeffrey L. Fisher, a law professor at Stanford, is that Supreme Court decisions are parsed by judges and scholars with exceptional care. “In Supreme Court opinions, every word matters,” he said. “When they’re changing the wording of opinions, they’re basically rewriting the law.”

4.  Justice Ginsburg performed the wedding for an old client of hers.  Great story, and here's the intro:

Stephen Wiesenfeld’s first collaboration with Ruth Bader Ginsburg at the Supreme Court was in 1975.
She was a Columbia Law School professor, head of the American Civil Liberties Union’s Women’s Rights Project and making a name for herself as the lawyer systematically prodding the court to rewrite its jurisprudence concerning gender equality.

Wiesenfeld was a young father whose wife had died in childbirth, leaving him with a son he loved and a grievance with his government, which he felt had done him and his family an injustice.
The result of their lawsuit was a unanimous victory for Wiesen­feld and an important link in the landmark chain of cases Ginsburg brought to get rid of laws she felt made irrational distinctions between men and women.
The two met again at the Supreme Court on Saturday, nearly 40 years later. Ginsburg, of course, is now the court’s senior liberal justice.
And Wiesenfeld was a 71-year-old groom.
Ginsburg officiated at Wiesen­feld’s marriage to Elaine Harris in front of family and friends, including Jason Wiesenfeld, the little boy at the center of Weinberger v. Wiesenfeld.
“I’ve kept up over the years with all of them,” Ginsburg said in an interview last week, referring to the clients in the cases she either briefed or argued before the Supreme Court in the 1970s. 

5.  One of the few areas that the 11th Circuit consistently reverses trial judges on is sentencing guideline determinations without the requisite proof.  Here's one dealing with loss calculations that originates from the SDFLA, U.S. v. Isaacson.

Rothstein dominoes

Stu Rosenfeldt is the latest domino to fall, again to a 5-year cap.  If he hadn't cooperated and agreed to plead, what would he have been facing after a trial?  How do you feel about this sort of charge-bargaining?

Anyway, have a great Memorial Day weekend.  See you Tuesday.

"Mozie’s home was a den of degradation."

That's one of the opening lines in Judge Carnes' opinion in United States v. James Mozie.  I'm sure you can bet how this one is going to come out.... But just in case there was any doubt, here's the whole intro:

James Mozie hosted “parties” at his house six days a week, every day but Sunday. With the help of his family members, including his teenage sons, he sold food, alcohol, and drugs to his party guests. He also sold sex, providing young girls who would strip for tips and have sex for money. Many of them were teenagers and one was only thirteen. For them Mozie’s home was a den of degradation.
Mozie found the teenage girls he used by posing as a benevolent businessman who ran a modeling agency. He was anything but benevolent and no respectable business would have been named, as his was, “Pretty Pink Pussy Enterprises.” Mozie preyed on vulnerable girls, many of whom were teenage runaways with no money and no shelter. In return for alcohol, drugs, and a place to stay, the young girls became what he called his “merchandise.”
Mozie’s brothel business led to a ten-count indictment charging him with eight counts of child sex trafficking, one count of conspiring to commit child sex trafficking, and another count of producing child pornography. He was convicted on all ten counts and sentenced to life imprisonment. This is Mozie’s appeal in which he raises three challenges to his convictions and two challenges to his sentence.

Judge Moreno moving on up...

Although Judge Moreno will be stepping down as Chief Judge this summer (and handing the baton over to Judge Moore), he will still be very active for the Circuit. The Circuit and District judges of the Eleventh Circuit have just elected Judge Moreno to be the next district judge member of the Judicial Conference of the United States from the 11th Circuit.

Congratulations to Judge Moreno.

How much time should Christina Kitterman get? (UPDATED)

UPDATE -- KITTERMAN SENTENCED TO 5 YEARS.

Paula McMahon has the preview of the sentencing here. 

When Scott Rothstein's former protegee Christina Kitterman went to trial earlier this year, she became the only one of his associates — so far — to roll the dice and force prosecutors to prove their case.
It didn't work out for her. Jurors found her guilty of three counts of wire fraud for impersonating a Florida Bar official during an April 2009 conference call that federal prosecutors said kept Rothstein's massive Ponzi scheme alive for its final six months.
Kitterman is facing a very uncertain fate when she is sentenced Tuesday in federal court in West Palm Beach.
Sentencing guidelines recommend a punishment of 20 years in prison, her defense attorney Valentin Rodriguez Jr. said, but he hopes U.S. District Judge Daniel T.K. Hurley will sentence her to probation.
"She had to endure Scott Rothstein for many years, which is punishment enough," Rodriguez wrote in court records submitted to the judge.
Kitterman is a convicted felon, will lose her license to practice law and was "blacklisted in the legal community," Rodriguez wrote.

How much time should Kitterman get?
	To the moon -- 20 years
	20 years is too much, but she should get a significant sentence
	5 years, like many of the co-defendants who pleaded guilty, sounds about right
	Probation because as her lawyer says, she has suffered enough
pollcode.com free polls

Who will Rothstein vote for in the next election?

He's still eligible to vote!  From the Sun-Sentinel:

One of South Florida’s most notorious felons, Ponzi schemer Scott Rothstein, is still a registered voter in Florida.
His presence on the voter rolls was discovered by Broward civic activist Andrew Ladanowski and confirmed Monday by Mary Cooney, director of public services at the Broward Supervisor of Elections Office.
Rothstein is still listed as a registered voter at his tony, previous address at 30 Isla Bahia Drive in Fort Lauderdale.
He’s now at an undisclosed location because he is in a witness protection program within the federal prison system because he supplied authorities with information about organized crime figures. His whereabouts have been a closely guarded secret since June 2010, when he was sentenced to 50 years in federal prison for masterminding a $1.4 billion Ponzi scheme out of his opulent law office on Fort Lauderdale's Las Olas Boulevard.
Voting records list his mailing address as 401 E. Las Olas Blvd., in Fort Lauderdale. That’s the downtown Bank of America building where his Rothstein Rosenfeldt Adler law firm was headquartered before his scheme imploded.
He last voted in the 2008 presidential election. A registered Republican, he voted in the 2008 state primary and in the 2008 presidential preference primary. He first registered to vote in February 1998.
His wife, Kim, is also still registe
red to vote, Cooney said.

Robin Rosenberg's hearing before the Judiciary Committee set for Tuesday morning

With Judge Robin Rosenbaum moving up to the 11th Circuit, we now have room for Judge Robin Rosenberg.


It's nice that things are starting to happen in the District.  Pretty exciting stuff.


Good luck Judge Rosenberg.

Eleventh Circuit issues fractured 1-1-1 opinion today

Judge Pryor for the majority frames the issue this way: "This appeal requires us to decide whether a seaman can recover money damages under the Jones Act, 46 U.S.C. § 30104, for an injury stemming from excessive work hours and an erratic sleep schedule."  He then reverses, and renders judgment in favor of Maersk "because Skye’s complaint of an injury caused by work-related stress is not cognizable under the Jones Act, which concerns injuries caused by physical perils."

Judge Fay concurs, but asks the Supreme Court to jump in:  "Most respectfully, my hope is that the Supreme Court will revisit this area of the law. As Justice Ginsburg stated in her dissent in Gottshall: “Instead of the restrictive ‘zone’ test that leaves severely harmed workers remediless, however negligent their employers, the appropriate FELA claim threshold should be keyed to the genuineness and gravity of the worker’s injury.” Gottshall, 512 U.S. at 572, 114 S. Ct. at 2419 (Ginsburg, J., dissenting)."

And Judge Jordan dissents: "Congress enacted the Jones Act “for the benefit and protection of seamen who are peculiarly the wards of admiralty.” Atl. Sounding Co. v. Townsend, 557 U.S. 404, 417 (2009) (internal quotation marks omitted). Given that purpose, and absent definitive indication from the Supreme Court, I would not read the Jones Act to preclude liability for an employer who makes a seaman work so hard and so continuously that he suffers physical injury in the form of heart disease, heart attack, organ failure, seizure, or stroke."

Which side are you on?

Lawyer on the lam may be "armed and dangerous"

Paula McMahon has the details here:

The FBI has issued a 'Wanted' notice for a Broward County lawyer accused in a $19 million fraud — declaring him "armed and dangerous" — after he failed to show up for an April 29 court hearing.
Michael Ralph Casey, 67, of Oakland Park, has been missing for two weeks, according to the FBI in Miami.
Casey was indicted in August 2012 on federal mail and wire fraud conspiracy charges for his alleged involvement in what prosecutors said was an international investment scheme that defrauded more than 700 investors out of approximately $19 million in less than 18 months.
Federal prosecutors said that Casey, who practiced law in Fort Lauderdale for 36 years, conspired with two convicted felons to defraud investors. Casey was once the chairman of the Broward County Bar Association's Corporation, Banking and Business Law Section and had worked for several well-known law firms.
Casey "should be considered armed and dangerous," according to FBI officials. Anyone with information about him should contact their local FBI office or the nearest U.S. embassy or consulate.
FBI spokesman Michael Leverock said the warning was issued for the safety of any law enforcement officer or member of the public who comes into contact with Casey because agents were told that Casey may have access to a firearm.
"We also believe that anyone who flees while their case is going through the court process can be considered desperate," Leverock said.

Here's the FBI wanted poster.

"I don't think my legislative record that's over a decade old is indicative of what kind of judge I'd be [on the federal court]."

That was Michael Boggs, a Georgia Court of Appeals judge nominated by President Obama to the 11th Circuit, being grilled by the liberal wing of the Senate Judiciary Committee at today's hearing.  More from Talking Points Memo:

Seven nominees to federal courts in Georgia came before the Senate Judiciary Committee on Tuesday, but all eyes were on one of them: Michael Boggs, selected by President Barack Obama to serve as a U.S. district court judge.

The Georgia Court of Appeals judge has come under fierce criticism from progressive advocates for a swath of votes from 2000 to 2004 as a Georgia state legislator against abortion rights, same-sex marriage and to retain the state's old flag which contained the Confederate battle flag.

Democratic senators took the lead in grilling Boggs.
"I was offended by the flag, Senator," he told Senate Majority Whip Dick Durbin (D-IL) under questioning, saying it was a "terribly agonizing" decision to choose between his own conscience and the will of his constituents, whom he suggested wanted to keep the Confederate-linked flag. But he said: "I'm glad the flag was changed."
Boggs said he was very sensitive to the views of African-Americans at the time and that those who know him recognize his vote intended no disrespect to them. "If someone is accusing someone of being a racist, I don't know how you disprove that," he said.
Amid questioning from Sen. Richard Blumenthal (D-CT), Boggs declined to reveal his positions on abortion rights and marriage, saying they're "irrelevant" to how he'd act as a federal judge and that it would be "inappropriate" for a judge to discuss personal views.
 ***
 He disowned one bill he voted for, which would disclose the number of abortions performed by doctors, which critics said would endanger their safety. "In light of what I subsequently learned, I don't think it would be appropriate to" do that, Boggs said.
Notably, when asked about marriage rights, Boggs said his views "may or may not have changed" since he voted for a state constitutional amendment to ban same-sex marriage.
Senate Judiciary Chairman Patrick Leahy (D-VT) pointed out that Boggs and the other six nominees Tuesday were negotiated as a package deal between Obama and Georgia's two Republican senators, Johnny Isakson and Saxby Chambliss.
"I have noted before that there is no 'deal' negotiated with me as chairman of the Senate Judiciary Committee or with any of the other Senators," Leahy said in written testimony. "The constitutional responsibility of advice and consent resides with each individual Senator, and there is no such thing as a binding deal that negates each Senator’s responsibility to determine the fitness of a judicial nominee for a lifetime appointment."
Boggs promised Sen. Amy Klobuchar (D-MN) he'd abide by Supreme Court precedent when asked about rulings on contraception (Griswold v. Connecticut), federal treatment of gay married couples (Windsor v. US) and other gay rights rulings.
Sen. Dianne Feinstein (D-CA) voiced her skepticism with Boggs' promises to respect precedent, noting that nominees frequently make that promise to the Senate but behave differently when they become judges.
Boggs faced friendlier questioning from the committee's ranking member, Sen. Chuck Grassley (R-IA), who asked about his judicial philosophy but didn't bring up the other contentious issues.

91-0

That was the vote today, confirming Robin Rosenbaum to the 11th Circuit Court of Appeals (filling Judge Rosemary Barkett's seat).

CONGRATS TO JUDGE ROSENBAUM. 

She's only 47 years old and will be on the court a long time, helping to reshape it with other moderate judges appointed by President Obama -- Judges Jordan and Martin.

Now another seat opens up on the district bench.  

Back to blogging

A big thanks to Jeff Marcus and MNR for stepping up and guest blogging last week. Good stuff!

Lots of goings on in the district last week with the progression of new judges and the elevation of Judge Robin Rosenbaum to the 11th Circuit, which should officially happen today. Congratulations to Judge Rosenbaum in advance!

She's still busy though, sentencing Rogerio Scotton to 9 years on Friday. He was the race car driver who represented himself during trial and engaged in all kinds of shenanigans, including claiming (falsely) that he had a sex tape to prove his marriage was legit. Paula McMahon of the Sun-Sentinel has more:

He also was found guilty of two counts of lying to immigration officials about his marriage to a Cuban woman. Jurors found that the Brazilian citizen entered into a sham marriage with Ailyn Mollinedo in July 2008 so that he could remain in the United States.

Mollinedo testified that the marriage was one of convenience. She said that she had never lived with Scotton and never had sex with him. Under U.S. immigration rules, foreign citizens who marry Cuban nationals may qualify for U.S. permanent resident status.

Prosecutors said that Scotton bullied Mollinedo and tried to control her by holding on to her green card. Mollinedo testified that she entered into the marriage as a favor to Scotton and stayed in it because he threatened her and her family if she told the truth.

Scotton insisted that the marriage was real and insisted many times in court that he had video footage of him having sex with Mollinedo that he wanted to show the judge and jury to prove that their relationship was real.

The judge said Friday that there was no evidence at all that any such video had ever existed and that Scotton's continued pretense in court — to her and the jury — was "absolutely inappropriate and obstructive."

The sex-tapes pretense was just one of many inappropriate acts committed by Scotton, the judge said.

"I don't think they were indiscretions," Rosenbaum said. "I think they were purposeful attempts to mislead this jury and this court."

A "Holder Effect" on Federal Sentencing?

Last summer at the ABA delegate meeting, Attorney General Holder made news when he said what many of us in this business have known for a long time, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” Speech here.  After the nation's chief law enforcement officer joined the chorus for sentencing reform, some legal pundits wondered whether there would be any kind of "Holder Effect" driving down the length of federal sentences.

Sentencing guru and law professor Doug Berman thinks there just might be (post here) and speculates that perhaps judges are thinking even harder about the wisdom of imposing guideline sentences that call for lengthy incarcerations.  Three weeks ago, the U.S. Sentencing Commission issued its quarterly sentencing data report for the last quarter of FY 2013 (here) and Professor Berman has finished crunching the numbers.  His analysis reveals a small uptick in judge-initiated, below-guideline sentences to just over 20% of all federal sentences (up from 18% from early 2013) -- the largest percentage of below-guideline sentences for any quarter on record.  But the news is not all good.  The single largest determinant of a below-guideline sentence still remains the recommendation of the prosecutor on behalf of a cooperating defendant.  

Is it too much to hope that the Department backs up AG Holder's words with below-guideline recommendations for non-cooperators in appropriate cases?  Now that would be change we could believe in.  

Confirmation Update: More Good Judicial News

Today, Judges Darrin Gayles and Beth Bloom both were approved by voice vote by the Senate Judiciary Committee.  Judge Robin Rosenbaum should have her vote in front of the full Senate completed sometime Monday. Best of luck to all three nominees.

Not Breaking News: It's Still Illegal to Carry a Concealed Gun in Florida During a Zombie Apocalpyse

From the "Only in Florida Department" on a slow news day.  The NRA is on high alert this week after a rare sunshine state legislative defeat.  The bill, which would have allowed Floridians to carry concealed firearms while evacuating during a state or local emergency, was voted down by the Florida Senate after Senator Dwight Bullard, apparent fan of The Walking Dead, sarcastically proposed the bill be amended to include any "act relating to the zombie apocalypse."  The Florida Sheriffs Association ("FSA") also opposed the bill, with one sheriff calling it "insane."  Standing its ground, the NRA issued a response alert (here) yesterday labeling the criticism of the FSA, the "barking of a cut dog."