Election Tuesday

Thank goodness we don't elect judges in federal court. I'm not saying it's a great system we have, but I think it beats elections. Asking the lawyers that appear before you for money... Ads that have nothing to do with judging... Yuck. 

Anyway, I was very proud of having the blog after lasts week's comments and posts about Hogan and Richey. People wrote such beautiful tributes and memories. Speaking of which, there is a memorial this Friday for Jay Hohan at the Biltmore at 11am. 

Judge Gayles' new clerk was just married and it's in the NYT

Here.


 

Shahrzad Daneshvar, the daughter of Afsaneh Pournaderi Daneshvar and Farhang Daneshvar of Fair Oaks, Calif., was married Aug. 25 to Travis Viola, a son of Teresa Viola and Vincent Viola of New York. Judge Ann Claire Williams of the United States Court of Appeals for the Seventh Circuit officiated in her chambers in Chicago.

On Sept. 17, A. Reza Sheikholeslami, emeritus professor of Persian studies at Oxford, is to lead a traditional Persian ceremony at the Waldorf Astoria in New York.

Ms. Daneshvar, 28, is keeping her name. Next month, she is to begin a clerkship in Miami for Judge Darrin H. Gayles of the United States District Court for the Southern District of Florida. She graduated summa cum laude from George Washington. She also received a master’s degree in education from the University of Miami and her law degree with honors from the University of Chicago.

Her father retired as an industrial engineer in Fair Oaks.

Mr. Viola, also 28, is the vice president for hockey operations for the Florida Panthers of the National Hockey League. He graduated from Fordham. His father is owner, chairman and governor of the Panthers.

The couple were originally supposed to meet on a blind date in 2010. Though that date was canceled, they kept in touch, and met in person five months later in New York.

Jay Hogan obit in the Herald

Jay Weaver starts with a story I just love hearing about every time it's told:

Everyone seems to have a story about courtroom legend James Jay Hogan, who died this week at age 82, but no one will ever forget this surreal moment: In the mid-1980s, the Miami defense attorney got a key government witness to testify that in his previous life he was Hollywood icon Jean Harlow.

The credibility of the witness, it is safe to say, was instantly in serious question.

During the federal trial, Hogan unveiled a blown-up photo of the Roaring Twenties blonde bombshell, who died in 1937 of a brain infection. The man testifying was born five years later. Hogan’s client, a Miami lawyer accused of preparing phony real-estate documents for the witness, was acquitted.

Former law partner Hy Shapiro recalled how Hogan dug up the tidbit about Harlow from a little-known book written by the witness, a revelation that drew gapes and howls from jurors. He said Hogan’s secret weapon was his work ethic.

“He would eat, sleep and breathe a case when he got into it,” Shapiro said on Thursday. “He would delve more deeply than anyone into a witness’ life.”


Here's the newspaper story from the time, which is fun to read.

Judge Cooke rules for Jason Pierre-Paul against ESPN

The NYP covers the story here:

A Florida judge has green-lighted Giants defensive end Jason Pierre-Paul’s invasion-of-privacy lawsuit against ESPN and its reporter Adam Schefter for posting his private medical records online to millions of readers.
The ruling by Miami federal Judge Marcia G. Cooke sets the stage for the state’s second high-profile legal battle in a year between a sports star and a media organization over privacy issues. In March, wrestler Hulk Hogan won a record-breaking $140 million victory over Gawker for publishing his sex video.
***
Cooke agreed in a ruling she issued from the bench Thursday morning after an hour of arguments.
“This just went beyond the pale,” sports law expert Daniel Wallach said of Schefter’s decision to post the private records.
“If this is not where the line is, where would it be?” said Wallach, of the law firm Becker & Poliakoff. Wallach, who is not involved in the case, expects the decision will mean a quick settlement.
“The judge has the case on fast track with discovery cutoff in Februrary, meaning in-season depositions,” Wallach explained.
Lawyers for ESPN and Schefter had asked the judge to toss the case, citing First Amendment protections.
Pierre-Paul is suing for unspecified damages. He is also represented by lawyers Kevin Fritz and John C. Lukacs.

Meantime, I wanted to thank all of the readers who posted comments yesterday about Hogan and Richey.  This is what the blog is all about.  Thanks.  --dm

RIP Jay Hogan and Bill Richey

I'm so sorry to report that two great men and great lawyers passed away yesterday. Please share your memories/stories in the comments and I will post them. Sad.



From Judge Bob Scola on Jay Hogan:


"One of the true legal legends passed away last night. I tried a seven month long trial with him in Tampa and he was the real deal. It was like participating in a legal seminar every day ( and morning since we met at 5:30 am each day to get ready for that day's session). He invited me to share space with him after the trial and I was with him for 4 years until taking the bench. He was an invaluable resource and had the rare combination of exceptional talent coupled with an incredible work ethic. He was generous with his time, advice and in all other ways. He will definitely be missed."


From Judge Vance Salter on Bill Richey:

I saw your piece on Bill Richey and Jay Hogan this morning—tragic, shocking, I have to say. Bill was an associate at Steel Hector & Davis, following Janet Reno there from the State Attorney’s office (before Janet ran for the office herself). A trial lawyer’s trial lawyer, laser-guided but unfailingly polite and professional. Harlingen, Texas to HLS—big jump. He will be missed.


From Steve Bronis on Jay Hogan:

I was so saddened to learn of passing of Jay Hogan. Like Judge Bob Scola, I was honored to share office space with Jay for many years. He was a cherished mentor. He was a true gentleman and a masterful trial attorney. He had an uncanny ability to foster a great rapport with the jury. Jay was the most skillful cross-examiner I have ever known. I was privileged to be co-counsel with him on many cases including the famous Court Broom federal trial. Jay’s cross-examination of Ray Takiff in that case was absolutely stunning. It should be required reading for every trial attorney. He was one of a kind and will be greatly missed.


From Robert Kuntz on Jay Hogan:

I was a reporter then and covered Court Broom from voir dire to the verdict.

Jay Hogan was just amazing to me. Tall, long elegant hands, big-toothed smile -- and that unlit cigar that I don't think they'd let you walk around with in the courthouse these days. He was a consummate gentleman of the old school. He was totally at ease in the well of that imposing Central Courtroom and when he was up, every eye in the enormous place was on him. Judge Gonzalez didn't exactly defer to Hogan, but Hogan very certainly had the run of the place.

Ray Takiff, lead prosecution witness and literal bag man, had been all bombast and swagger (at least as much as he was capable of while claiming to be so debilitated with a heart condition that Judge Gonzalez reduced his testimony to half days). Hogan on cross was understated, leonine, and he stalked Takiff from the start. He built Takiff up, asking about some of his exploits. (Takiff told a story about walking through a police line of a surrounded house, saying he would speak with "his client," and get him to surrender. Takiff said he then got into the house, handed the barricaded STRANGER a business card and got the case on the spot. True? Who knew? But Takiff told it like it was.)

Then Hogan smoothly went in for the kill.

I won't recall verbatim after all these years, but there was a moment. Takiff had claimed that, if not for being barred from taking the case (since he was by then in the secret employ of the government), he'd have walked General Noriega, who had been tried in that same courtroom. Part of what Hogan asked went something like:

". . . and you'd have gotten him off?"
"Yes."
"You'd would have WON that trial?"
"Yes."
"There wasn't anyone better than you?"
"No one."
"You would have saved the guy?"
"I would have."
"It would have been the case of a lifetime, right?"
[Starting to break] "Yes."
"But instead, all you are now is a rat?"
[In tears] "Yes. I'm a rat."
"You're not a lawyer anymore, you're just a rat?"
[More tears] "Yes. Yes. I'm a rat"

Anyway, that's how I remember it more than 20 years later. But I'll bet, if you pull up the transcript, it was even better than that.

From Judge Jonathan Goodman on Bill Richey:

This is the first comment I have ever posted on a blog, legal or otherwise. But Bill Richey's passing is an extraordinary event.

Bill hired me out of the U.S. Attorney's Office in 1988. I became partners with him, Kirk Munroe and Alan Fine less than a year later.

Bill taught me many things. Some of those things concerned the practice of law and being a trial lawyer.

On the law side, Bill was a master of strategy, planning and investigation. That man knew how to take a deposition, let me tell you.

But other things Bill passed on to me were about being a good person, how to deal with people, how to be a mensch and other life lessons.

I hope some of those lessons stuck, even a little.

Bill played a huge role in my life, and I will miss him dearly.

From Judge Milton Hirsch on Jay Hogan

Jay had a defendant in the famous "Court Broom" trial. Ed Carhart also had a defendant, and although "Court Broom" was tried in federal court, the case against Ed's client turned in substantial part on a question of Florida criminal procedure. Ed hired me to testify on that question as an expert, thus affording me a free front-row seat to one of the signature trials in modern Miami history.

So I testified. The government crossed. And then for no particular reason -- I honestly think it was to relieve the tedium of the moment -- Jay Hogan announced that he had a few questions for this witness.

I can, to this very day, reproduce from memory almost the entirety of his cross of me. (No, I'm not going to, but I can.) Ask me to recount a couple of highlights from my largely highlight-free career as a lawyer and a judge; at the top of the list you'll find, "I was cross examined by Jay Hogan."

I couldn't pick up my own bar tab for weeks. Every criminal lawyer in town was happy to buy my drinks just to hear me tell what it was like to be crossed by Hogan.

Judge Altonaga gives nod to IRS over Miccosukees

The Herald covers the big ruling here:

The Miccosukee Indians have lost a contentious tax case that experts say will strengthen federal government efforts to collect more than $1 billion in overdue personal income taxes.
U.S. District Judge Cecilia Altonaga found late Friday that a tribal member must pay $278,758 in taxes, interest and penalties to the Internal Revenue Service for failing to file a tax return in 2001. The judge concluded her family's gaming income — a distribution of casino profits — was not exempt from U.S. tax laws, a ruling likely to have ripple effects on many of the West Miami-Dade tribe’s 600 members.
Altonaga's decision, which will be formally filed as a judgment against the Miccosukees and tribe member Sally Jim later this week, provides the IRS with the legal power to compel other members — including Chairman Billy Cypress — to pay personal income taxes on casino gaming distributions dating back more than a decade.

In other news, The Florida Bar just approved the 5th annual anti-human trafficking conference by the Hispanic National Bar Association on Friday 9/16/16 at St. Thomas University School of Law, Moot Court from 8:30 a.m. to 1:00 p.m. for 5 CLE credits. Registration is free. Please RSVP to: mvargas@hinshawlaw.com.

The conference will cover trafficking in the Cambodia, a Congressional paper on trafficking in Latin America, religious organizations’ aid to the rescued, the correlation between environmental degradation and trafficking.

Rats.

That's how this 7th Circuit opinion by Judge Easterbrook starts:

Rats. This case is about rats. Giant, inflatable rats, which unions use to demonstrate their unhappiness with employers that do not pay union‐scale wages. Cats too—inflatable fat cats, wearing business suits and pinkie rings, strangling workers. Here is what they look like, as deployed during a labor dispute in the Town of Grand Chute, Wisconsin:

As the pictures show, the rat and the cat are staked to the ground, to prevent the wind from blowing them away. Those stakes led to this litigation.

I can't see to get the pictures from the opinion to paste into the blog post, so go check out the opinion itself. It's pretty funny. And happy first day of school!

Moment of Zen

Here's Justice Ginsburg reading to children:

Eric Trump testifies in Southern District of Florida

Susannah Nesmith for Bloomberg has the details:

Eric Trump took a page from his father’s playbook Tuesday, telling a judge the billionaire’s renovations to a foundering Florida golf club he bought made it even better.
“We took something that had really gone bad and we made it great again,” Eric Trump, the executive vice president of the golf club, told a judge in West Palm Beach, echoing Donald Trump’s presidential campaign slogan.
The Trump Organization saved Trump National Golf Club Jupiter because it was insolvent, Eric Trump testified. Most members love the renovated golf club now, he said. The suit was filed by former golfers at the club who say they were ripped off when Trump didn’t refund their deposits and barred them from the facilities.
After having insisted for months that people who resigned their memberships at the club didn’t lose access, Eric Trump admitted he was wrong on that point and that some had been barred.
“I’m the first person to have enough hubris to say when you’re wrong, you’re wrong,” he said.
The former members sued the golf club in Jupiter to recover almost $5 million in deposits that they say should have been refunded when the elder Trump changed the membership rules after buying the venture from Ritz-Carlton Hotel Co. in 2012.

No jury in this one... it will be up to Judge Marra:

Both sides in the dispute agreed to waive a jury trial, so U.S. District Judge Kenneth Marra will decide whether Trump must pay the club’s former members back.
Marra said at the conclusion of the two-day trial on Tuesday that he’d rule later.

Donald Trump in trial in SDFLA

No kidding.  I'm surprised it's not getting more play, but Donald Trump is a defendant in a civil lawsuit in WPB before Judge Marra in a trial that started yesterday.  He testified by taped deposition.  Here's the PBP:

 In classic Donald Trump fashion, the GOP presidential nominee testified Monday that improvements he made to an ailing Jupiter country club were “beautiful,” the members were “very happy” and those who weren’t were just “angry people” he didn’t want in his club anyway.
Never mind that the reason those people are angry is they believe he stole as much as $6 million from them.
Trump’s appearance at the breach of contract trial in U.S. District Court was limited to a roughly 25-minute video deposition. It was taken at his New York City offices in April 2015, long before anyone imagined the real-estate-mogul-turned-TV-celebrity would secure the Republican presidential nomination.
As expected, Trump denied allegations by members of Trump National Golf Club in Jupiter that he improperly changed the rules of their membership contracts when he in December 2012 bought the financially troubled club from Ritz-Carlton Golf Club & Spa for $5 million. He was equally dismissive of suggestions that he got the club at a bargain price by agreeing to assume an estimated $41 million in liabilities that hung over it because Ritz-Carlton promised to refund initiation fees, ranging from $35,000 to $210,000, to members who quit.
“It could have been the club would have closed and gone into bankruptcy and everyone would have lost money,” Trump testified. His purchase, he said, saved the club — and its members — from what he called “the ‘B’ word.”But, three members who filed the class-action suit on behalf of roughly 60 others when he refused to refund their membership fees, said Trump used their money to put the club on firm financial footing.Shortly after buying the club in a gated community on Donald Ross Road near Alternate A1A, he wrote members a letter, alerting anyone who had announced their intention of resigning: “you’re out.”

James Cohn takes senior status

In early August, Judge James Cohn quietly took senior status.  It's not even reflected on the court's website yet.  Judge Cohn, one of my favorite judges, had the perfect demeanor for a federal judge.  Easy going and gentlemanly, yet decisive. Even when he ruled against you, you and your client felt like you got a fair shake.  Here's some information about Judge Cohn from Wikipedia:

Cohn was born in 1948 in Montgomery, Alabama. He received his Bachelor of Science degree from the University of Alabama in 1971 and his J.D. from the Cumberland School of Law at Samford University in 1974. While at Alabama, Cohn was a member of the Zeta Beta Tau Fraternity.
Cohn served in the Alabama Army National Guard from 1970 to 1972, in the United States Army Reserves from 1972 to 1975, and in the Florida Army National Guard from 1975 to 1976.

Cohn served as assistant public defender in the Broward County Public Defender's Office in 1975 and as assistant state attorney in the Broward County State Attorney's Office in 1975 to 1978.

Cohn was in private practice in Fort Lauderdale, Florida from 1978 to 1995; he worked for a year with the Michael Widoff law firm before beginning his own general trial practice in 1979.

In 1995 Cohn became a judge on the 17th Judicial Circuit Court of Florida.

President George W. Bush nominated Cohn on May 1, 2003 to the United States District Court for the Southern District of Florida, to the new seat created by 116 Stat. 1758. Confirmed by the Senate on July 31, 2003, and received commission on August 1, 2003. He took senior status on August 5, 2016.

Legal Standards -- #ThrowbackThursdayEdition

This week, the Eleventh Circuit dusted off some old case law for the legal-standards sections of two published opinions.

In the first, the court, quoting one of its decisions from 2006, set forth the standard for grants of summary judgment:

We review de novo a grant or denial of summary judgment, viewing all facts and reasonable inferences in the light most favorable to the nonmoving party. Bridge Capital Inv’rs, II v. Susquehanna Radio Corp., 458 F.3d 1212, 1215 (11th Cir. 2006). “Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Hallmark Developers, Inc. v. Fulton Cty., Ga., 466 F.3d 1276, 1283 (11th Cir. 2006); see also Fed. R. Civ. P. 56(a).

In 2010 the drafters of the Federal Rules of Civil Procedure replaced the word “issue” with “dispute,” supposedly because it “better reflects the focus of a summary-judgment determination.” But—as seen by this decision—the word “issue” is still quite frequently used.

Regarding motions to dismiss, the Supreme Court of the United States nearly a decade ago famously wrote that that the “no set of facts” standard described in Conley v. Gibson of 1957 “ha[d] earned its retirement.” In an important securities-law decision issued yesterday by the Eleventh Circuit, however, that “no set of facts” standard came back.

Review of a district court’s decision to grant a motion to dismiss is conducted de novo. Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1187 (11th Cir. 2004). In deciding a Rule 12(b)(6) motion to dismiss, the court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff, Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007), but “[l]egal conclusions without adequate factual support are entitled to no assumption of truth,” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted). The motion is granted only when the movant demonstrates “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46, 78 S. Ct. 99, 102 (1957); see also Flint v. ABB, Inc., 337 F.3d 1326, 1328–29 (11th Cir. 2003).

Caruso and company lead Johnson fight

I missed this DBR article last week, which details the developments with Johnson in the 11th Circuit, including the cert grant in Beckles.  Big ups to Michael Caruso, Janice Bergman, and Brenda Bryn for leading this fight.  Here's the intro:

Next term, the U.S. Supreme Court will hear a case from the Atlanta federal appellate court that could shorten prison terms for thousands of people.
Miami Federal Public Defender Michael Caruso won a coveted slot on the high court's docket for an issue that's roiling the federal circuits. In the U.S. Court of Appeals for the Eleventh Circuit, which stands alone on this matter, one judge went so far as to accuse her court of fomenting injustice through unforced errors.
The question for the U.S. Supreme Court is whether possession of a sawed-off shotgun is a crime of violence under federal sentencing guidelines for career offenders. Significant swings in mandatory sentence zones — from up to 10 years to 15 years to life — turn on the answer.
The court ruled a year ago in Johnson v. United States that a similar provision of the Armed Career Criminal Act is unconstitutionally vague. A "residual clause" in the definition of a violent felony allows enhanced sentences for any crime involving "conduct that presents a serious potential risk of physical injury to another." Prosecutors argued that the definition covered nonviolent crimes like drunken driving and attempted burglary.
In Johnson, Justice Antonin Scalia wrote for an 8-1 majority that the residual clause invites "arbitrary enforcement." The court decided the wording violates due process, being "so vague that it fails to give ordinary people fair notice of the conduct it punishes," in Scalia's words.

Arrest vs. surrender

It's a dirty little (not-so)secret in our system that cooperators are treated very differently than those who decide to fight.  Sometimes those discrepancies are justified, but many times they are not.  For example, if you cooperate and agree to plead guilty before charges are filed, you are allowed to surrender and immediately bond out.  But heaven-forbid that you want to fight the upcoming charges, you almost will certainly be arrested (at 6am in front of your family) and often-times, there will be a fight over bond.  There is simply no reason for this other than to punish people who want to fight. Unless a defendant presents a real danger or risk of flight, he should be permitted to surrender just like the cooperator.

The Opa-Locka case is a good example.  The cooperator was (rightfully) permitted to surrender.  From the Herald:

On Monday, the 51-year-old administrator surrendered in federal court in Miami on a charge of using his office to pocket thousands of dollars in bribes while shaking down local businesses seeking licenses in one of Florida’s poorest cities.
Appearing in handcuffs and leg braces, the once-popular city manager who resigned from his job last week pleaded not guilty, was granted a $50,000 bond and was released in the afternoon.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/miami-gardens/article94388857.html#storylink=cpy

According to the Miami Herald, a "sweeping" indictment is coming out soon.  Will those defendants be given the same courtesy?  Why shouldn't those individuals also be permitted to surrender and post bond as well?  Is it a good use of resources to send the SWAT team in full riot gear to a white-collar defendant's home at 6am to arrest a defendant in front of his kids?  

RIP Julie Kay.

How sad. She was such a nice woman and a great, crafty reporter. She really loved scooping everyone on law stories. Here's the DBR obit.  Rest in peace Julie.

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REPRINTS

Julie Kay

J. Albert Diaz

Daily Business Review reporter Julie Kay so loved her job that when the opportunity arose to join a group of attorneys going to Cuba, she refused to let her battle with cancer get in the way.

Two days after receiving chemotherapy treatment, she boarded a plane with the international law section of the Florida Bar last year. She didn't tell anyone about the treatment because she was afraid she wouldn't be allowed to go. 

Kay, 54, died Sunday in Pompano Beach after a 10-year battle with ovarian cancer that included multiple surgeries, chemotherapy and a four-month clinical trial in Houston.

Kay was ferociously private about her health issues to the end, and friends said she saw it as a victory that so many people didn't know she was so ill. 

"She never complained about her illness and despised pity," said Sallie James, Kay's friend for more than 30 years. "She was a warrior with the kind of courage that is seldom seen anywhere. Julie loved being a reporter more than anything and always focused her energy on her work instead of her health."

For Kay, journalism was a kind of medicine for the soul. She reveled in finding "juicy" story ideas as business of law reporter at the Daily Business Review for more than six years. Her life revolved around reporting, her friends, and her nieces and nephews.

The Missouri Public Defender just appointed the Governor to represent an indigent defendant

The letter is here.

Wow.

H/T A.B.

Procedural Happenings

Last week, both David and South Florida Lawyers discussed the Eleventh Circuit’s trademark-infringement decision FIU v. FNU. The decision ought to be required reading for civil lawyers practicing in the Eleventh Circuit. It highlights an important consideration when filing and presenting cross motions for summary judgment in cases scheduled for a bench trial: How you go about it may affect whether the Eleventh Circuit reviews any appeal of a summary judgment de novo or only for clear error.

After the close of discovery, the parties filed cross motions for summary judgment. At a status conference, the lawyers largely agreed that the record was clear, and one lawyer suggested that the court “would not ‘learn anything new at trial that it had not already seen from both sides.’” Following these suggestions, the court scheduled a follow-up hearing on “cross motions for summary judgment slash bench trial,” where it heard further argument and “said that it understood the parties’ views of the record and did not see any ‘need for live testimony unless either party felt that it would like to add to or continue this proceeding.’” Three months later, the Court granted FNU’s motion for summary judgment and denied FIU’s motion for summary judgment.

In lengthy detail, the Eleventh Circuit analyzed whether it was reviewing “a summary judgment order or a final judgment entered after a bench trial.” The answer is important, because it determines whether review was de novo or for clear error, whereby any factfinding is given great deference, and obtaining reversal is next to impossible. “In the unique circumstances of this case,” the Eleventh Circuit concluded, “we think the district court’s decision is better understood as a judgment entered after a bench trial.” Affirmed.

(Of course, the Eleventh Circuit may have affirmed regardless of the standard of review it used. As summed up by South Florida Lawyers, "Did FIU seriously think there would be confusion?")

***

In other quasi-procedural news, the prior-panel-precedent rule remains as strong as ever.

Yesterday, relying squarely on the holding of one of its decisions from 2004, the Eleventh Circuit affirmed the dismissal of a challenge by an adult bookstore and a woman with multiple sclerosis to the constitutionality of a municipal ordinance prohibiting the sale, rental, or lease of obscene material. Though “sympathetic” to the argument that the ordinance violated appellants’ due-process rights under the Fourteenth Amendment, the panel felt “constrained by [its] prior precedent” and “obligated to follow it even though convinced it is wrong.” In an unusual step, the panel informed the appellants that they “are free to petition the court to reconsider our decision en banc, and we encourage them to do so.”

"DEET should be the new perfume in Wynwood"

Oof, what a disaster. Zika in Wynwood. The Herald has the details:

With a dozen local cases of Zika now confirmed in a single neighborhood, Miami-Dade County officials are ramping up efforts to combat the urban mosquito blamed for spreading the virus.

A team of 12 inspectors will be increased to 32 on Tuesday. They will patrol for breeding hotspots and hit those areas with back-pack foggers or other mosquito-killing treatments. More personnel will be added if needed, said public works and waste management spokeswoman Gayle Love.

Outreach efforts that began in February after Gov. Rick Scott declared a state of emergency are also being increased. Over the weekend, the school district used its robo-call system to warn the families of some 355,000 school children to be on guard. The calls follow increased outreach that began with the start of the mosquito season in June, when the county sent mailers to every county resident about “a drain and cover” program which Love said is considered “the first line of defense” against mosquitoes.

Now where will Miami lawyers go to lunch?

An example why state court is fun, via David Ovalle:

True to the social media age, Genesis Davila only learned she had been stripped of her crown as Miss Florida USA when she saw a Facebook post featuring the runner-up accepting the title.

Now, she’s hoping social media will be her salvation.

The key evidence: an Instagram post cited by pageant management that purportedly showed Davila getting professional hair and makeup help, a supposed no-no under contest rules. But at a press conference Monday, her lawyer held up a blown-up photo of the post, pointing out the pic was dated more than a week before July’s Miss Florida contest.

Pageant boss Grant Gravitt Jr. cropped out the date on the Instagram post to falsely smear Davila, lawyer Richard Wolfe said in announcing a defamation lawsuit seeking $15 million — and a return of her crown.

Shouldn't the government let you move on with your life after an acquittal?

You would think so.

But not so much with Mike Pizzi, who the government tried to set up again (this time it was the State). There won't be an indictment or trial in this case, and Pizzi made it clear on tapes that he was clean. Dave Ovalle from The Herald has the scoop:

The allegations against Pizzi surfaced at an Aug. 6, 2015, meeting when Flores, again secretly recording the exchange, asked if Pinder was still getting a monthly $3,000 kickback from Pizzi for getting him the job. Pinder sounded baffled.

“Mike don’t give me sh-t,” Pinder said angrily.

“He owes you three grand a month. ... He’s f---ing you,” said Flores, who claimed Pizzi was also supposed to give him $1,000 a month.

With Flores at his side, a testy Pinder called Pizzi on speakerphone. “Are you f---ing me, Mike? ” Pinder told him. “He says you’re f---ing me.”

“What are you talking about,” Pizzi replied.

The conversation quickly turned to joking around and plans for dinner. “You saw how he changed the conversation?” Flores said after they hung up, adding: “He’s taking you to the cleaners.”

The three never got together for dinner. But Flores did meet with Pizzi on Oct. 13 at Lakes Seafood. He did not confront Pizzi, according to the secret tapes, asking only that Pinder “thought I was getting money from you.”

Pizzi replied that he paid nobody, then floated a plan to ask Pinder to get the city to hire him for “special litigation” at $150 an hour. “Just to get back in the door,” Pizzi said on the recording. “All he gets is great services at a great cost.”

Pizzi told the Miami Herald that Flores called him later, pressing him to get involved in a corruption scheme in Opa-locka. He said he sent Flores a text that he wasn’t for sale: “Jose. Thanks. my friend. But I’m not interested in Opa Locka. DON’T DO BUSINESS THAT WAY. SEE YOU SOON. THEY CAN FIND ANOTHER LAWYER.”

The two did not speak again until December, when Pizzi said Flores called to meet for a drink at the Havana Group Cigar Club in Miami Lakes. As football blared on the TV in the background, Pizzi urged Flores to stay away from Opa-locka and leave him out of city business.

“Do me a favor, never mention my name,” Pizzi said.

Bragging on my partner Margot Moss

She has the cover story in NACDL's The Champion this month. It's a primer on restitution, titled "Restitution in Federal White Collar Cases."

This reminded me of Judge Palermo and his pocket Constitution

Rosenbaum/Jill Pryor: we're trying to be nice here but our colleagues are really really wrong

That's the message in this -- yet another Johnson -- concurrence (which Jordan did not join).  From the intro and then the conclusion:

To err is human; to forgive, divine; but to correct? Well ... after In re
Baptiste, No. 16-13959, _ F.3d _, 2016 WL 3752118 (I Ith Cir. July 13, 2016),
that's not something we do in this Circuit, when it comes to wrongly denied
inmates' requests for authorization to file a second or successive habeas petition.
So some inmates with sentences unconstitutionally enhanced under the Armed
Career Criminal Act may sit in prison for years beyond their constitutionally
authorized sentences. Though we deeply respect our colleagues, we think this is
just wrong.
***
Arnold Bennett said that "[a]ll wrong doing is done in the sincere belief that
it is the best thing to do." We do not doubt our colleagues' intentions in issuing
Baptiste. But their good intentions do not make their conclusions in that case, in
our view, any less wrong.

News & Notes

1.  FNU is not the same as FIU.  That was easy.  But it took the 11th Circuit 50 pages.  KMW affirmed.

2.  Bar complaints were filed in the Miccosukee case against Bernardo Roman and Jose "Pepe" Herrera. From the DBR:

The Florida Bar filed formal complaints against two Miami lawyers who represented the Miccosukee tribe, alleging they knowingly made false and frivolous claims against former counsel for the tribe.
The complaints against Bernardo Roman III ( read the Roman complaint here) and Jose "Pepe" Herrera ( read the Herrera complaint here) ask the Florida Supreme Court to consider disciplining the attorneys for pursuing meritless claims, withholding evidence and even making a false 911 call during litigation against Miami lawyers Guy Lewis and Michael Tein and their firm, Lewis Tein.
The Thursday filings are the latest development in a nasty saga that led to the tribe agreeing in May to pay $4 million to cover Lewis and Tein's attorney fees in three racketeering and malpractice lawsuits Roman pursued. The tribe cut ties with Roman last year.
"Each court that has examined this issue has determined that Roman's actions resulted from the bad blood, or personal animosity, held by Roman and the new tribal leadership against the former tribal administration and its associates, including Lewis and Tein," states one of the complaints filed by Florida Bar lawyer Jennifer Falcone in Miami.

3.  Bitcoin is not money.  From the MH:

But Miami-Dade Circuit Judge Teresa Mary Pooler ruled that Bitcoin was not backed by any government or bank, and was not “tangible wealth” and “cannot be hidden under a mattress like cash and gold bars.”
“The court is not an expert in economics; however, it is very clear, even to someone with limited knowledge in the area, the Bitcoin has a long way to go before it the equivalent of money,” Pooler wrote in an eight-page order.
The judge also wrote that Florida law — which says someone can be charged with money laundering if they engage in a financial transaction that will “promote” illegal activity — is way too vague to apply to Bitcoin.
“This court is unwilling to punish a man for selling his property to another, when his actions fall under a statute that is so vaguely written that even legal professionals have difficulty finding a singular meaning,” she wrote.

Read more here: http://www.miamiherald.com/news/local/crime/article91682102.html#storylink=cpy

HRC's VP nominee Tim Kaine clerked on the 11th Circuit

Back in 1983-84, Tim Kaine clerked for Judge Lanier Anderson.  Here's a portion of the wiki entry for now Senior Judge Anderson, who assuredly had an impact on Kaine:

On April 18, 1979, President Jimmy Carter nominated Anderson to a newly created seat on the United States Court of Appeals for the Fifth Circuit. The United States Senate confirmed Anderson on July 12, 1979, and he received his commission on July 13, 1979.^[1]
On October 1, 1981, the federal government created the United States Court of Appeals for the Eleventh Circuit, and Anderson was one of a group of judges reassigned to the new circuit.
In 1986, Anderson became the subject of an impeachment drive after a three-judge panel on which he sat ordered retrials for several convicted murderers because, they ruled, pretrial publicity had unfairly tainted their trials.^[4]
In 1999, Anderson penned a noted ruling in favor of the estate of Martin Luther King, Jr. in a copyright fight with CBS over King's famous "I Have a Dream" speech.^[4]
Anderson became a chief judge of the Eleventh Circuit on May 17, 1999, serving in that capacity until May 31, 2002.^[5][6]
In July 2008, Anderson told President George W. Bush of his intention to take senior status effective January 31, 2009. However, word did not become public of his decision until November 2008.^[4] Anderson told a local newspaper that he still planned to work "almost full-time" but that he hoped to take more vacation time—probably four to six weeks a year—to visit grandchildren in New York and Connecticut. And while Anderson could have taken senior status in November 2001, he chose not to do so, he told the paper, because "I was having so much fun, I didn't want to."^[4]
In 2008, Anderson described himself as a judicial "moderate," and added that he "would like to be thought of as a judge who had no particular agenda and who took each case on the facts and applied the law that the Supreme Court laid down," regardless of his own personal view on it. "And I think that’s what I attempt to do, and I think every judge on our court does."

11th Circuit now being ridiculed for its Johnson jurisprudence (UPDATED)

Noah Feldman has this essay in Bloomberg about the Johnson mess in the 11th Circuit, and it's not a pretty picture.  The conclusion, in support of Judge Martin and her frequent dissents on the Johnson orders:

Yet no other court of appeals appears to be engaging in this kind of case-by-case analysis. They’ve been approving the requests automatically and allowing a federal district court to sort out the details.
Judge Beverly Martin of the Eleventh Circuit issued an unusual and stirring opinion this week declaring that the process in her court wasn’t working.
Martin asserted that among the thousands of applications and hundreds of denials, her court has been making mistakes -- mistakes that, by their legal nature, can't be appealed. “A court of appeals is simply not equipped to construct a new basis for a prisoner’s old sentence in this way,” she wrote.
To make matters worse, the Eleventh Circuit gives itself 30 days to rule on each request. The presentence report can be inadequate or misleading, and there are no attorneys involved to explain what it means. And most prior convictions are under state law, which varies from place to place and have technical details that are hard for the court to determine without a lawyer’s help.
What's more, the Eleventh Circuit had rejected petitions for reconsideration before the Supreme Court said its Johnson ruling applied retroactively.
The upshot is that something very like a travesty of justice is happening in the Eleventh Circuit. And as you know if you’re still reading this, the issue is sufficiently technical that it’s hard to draw attention to the problem.
But real people are spending potentially many extra years in prison on the basis of an unconstitutional law. That’s wrong. In the spirit of Justice Scalia, the Eleventh Circuit should change course and start allowing district courts to review post-Johnson ACCA petitions the way the other circuits do.

UPDATED -- You can get some pretty interesting stuff just about every day from the slew of Johnson orders coming out.  Here's Judge Ed Carnes' concluding paragraph from a concurrence today in In Re Emilio Gomez:

And, as the order states, “[s]hould an appeal be filed from the district court’s
determination, ‘nothing in this order shall bind the merits panel in the appeal.’”
Maj. Opn. at 8. Nothing.

Ferguson building being evacuated (updated)

Not sure what's going on over there other than a fire alarm went off and everyone is milling around outside. Will update if any further information becomes available.

Update (2pm) -- Apparently the King building has been evacuated as well.

Update 2 (2:40pm) -- back to business. The buildings have been reopened. The Atkins building was never evacuated. 

Former Miami AUSA and Bachelorette contestant still making news

This time Mike Garofola makes news for dating habits in NYC.  From the New York Post:

Ever since Michael Garofola, 36, moved to New York in October, his calendar has been packed with different women penciled in for dinner or drinks.
As a former “Bachelorette” contestant, Garofola knows he has no problem scoring with women — he goes on up to five first dates a week, which he says usually include a drink or two and nothing beyond a goodnight smooch on the cheek. But in the past two months, he’s been feeling spent by the mating game.
“In New York, everyone has this feeling that they have limitless options,” the Gramercy-based lawyer tells The Post. “We have this mentality of, ‘Why should I settle for Susan, who’s beautiful and smart, when I could turn the corner and meet Jessica, who’s just as smart and beautiful?’”
Garofola meets most of the women he dates on Tinder, Bumble and the League. But while he claims he only swipes right on less than 10 percent of profiles, his good looks still net him more than 100 matches a week — and it’s tiring trying to keep up.
“It can be mentally and physically exhausting, and I start to question the time and money I’ve spent,” he says.

Michelle Obama wins the Republican Convention

First, she gave the best speech of the convention.

But then this.  She is the coolest First Lady ever:



Meantime, Cruz is already running for 2020.  Woweee:



Can't we all just hug it out?

Johnson showing huge divides in the 11th Circuit

Just today, there were a bunch of orders with very different results and very passionate concurrences/opinions. Without getting into the weeds of the holdings, this post will point out some of the really powerful writing that's going on in the 11th Circuit. For example, here's Judge Rosenbaum citing one of the great all-time TV shows in In Re: Charles Clayton:

Imagine a sentencing guideline that read, “A defendant is a career offender if ‘[p]uddles do not ask for why not? It is cheese! Breath and wind. It is cheese.’” Boston Legal, “Word Salad Days” (2006), http://www.imdb.com/title/tt0770843 /quotes (last visited Apr. 28, 2016). Now imagine that based on the Guidelines range that that indecipherable language required, a district court sentenced a defendant to twice as much time as it otherwise would have. How could the sentencing court know that the guideline applied? How could the reviewing court know that the correct Guidelines calculation included an enhancement under that guideline? Surely doubling a defendant’s sentence based on nonsense would violate due process. But in United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), we allowed defendants to continue to be sentenced to much more severe sentences than they would otherwise receive, based on the residual clause of the career-offender guideline, a guideline that the Supreme Court has found hardly more scrutable than the hypothetical one above.
No doubt criminal defendants do not have a due-process right to a sentence within a particular Sentencing Guidelines range. But Congress can, and essentially has, required courts to begin the sentencing process by correctly calculating the Guidelines range. The question here is whether, when the Supreme Court strikes language from a statute because it is unconstitutionally vague language and that same language also appears in a guideline, we are constitutionally able to continue to apply that language in the sentencing process that Congress has mandated. The answer, unlike the challenged part of the career-offender guideline, is clear: we are not.
I concur in all but Section I.A of Judge Martin’s well-reasoned concurrence. I agree that the Supreme Court’s decision in Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015), holding the Armed Career Criminal Act’s (“ACCA”) residual clause unconstitutionally vague renders the exact same language in the Sentencing Guidelines unconstitutional as well.

Denny Crane!

And here's Judge Martin, who has been at the front of criticizing the 11th Circuit for its post-Johnson rulings:

The Matchett panel gave no heed to these admonitions against “arbitrary enforcement.” Zero. Instead, the panel addressed only Johnson’s “notice” rationale, without ever mentioning the Court’s concern about “arbitrary enforcement by judges.” This matters because we have been instructed that the “arbitrary enforcement” concern is “the more important aspect of vagueness doctrine.” Kolendar v. Lawson, 461 U.S. 352, 358, 103 S. Ct. 1855, 1858 (1983). Perhaps reflecting this lesson, every time Johnson told us why the residual clause is not lawful, it underscored the problem that the vague language of the clause led different judges to give similarly situated defendants widely varying sentences. But again, the panel made no effort to address this concern about arbitrariness, which the Supreme Court told us is “the more important aspect of vagueness doctrine.”

***

On the topic of this court’s singular approach, I add one more observation. Last month the Supreme Court granted certiorari in the case of a Texas prisoner named Duane Buck. See Buck v. Stephens, No. 15-8049, __ S. Ct. __, 2016 WL 531661 (U.S. June 6, 2016). The Court took the case even though the lower court ruled that Mr. Buck’s appeal was so meritless that he couldn’t even file it. Mr. Buck’s petition for certiorari asked: “did the United States Court of Appeals for the Fifth Circuit impose an improper and unduly burdensome Certificate of Appealability (COA) standard?” Our treatment of applications for successive § 2255 motions may be even more troubling than the issue raised in Buck. Unlike for the denial of a COA, AEDPA provides that “denial of an authorization . . . to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). This means no motion for reconsideration, no motion for en banc review, no appeal, and no petition for certiorari. The decisions we make in these cases are therefore, as a practical matter, not reviewable.
A month after AEDPA became law, the Supreme Court held that these “new restrictions on successive petitions . . . do not amount to a ‘suspension’ of the writ.” Felker v. Turpin, 518 U.S. 651, 664, 116 S. Ct. 2333, 2340 (1996). Three Justices filed a concurrence warning that “the question whether the statute exceeded Congress’s Exceptions Clause power” might need to be revisited “if the courts of appeals adopted divergent interpretations of the gatekeeper standard.” Id. at 667, 116 S. Ct. at 2342 (Souter, J., concurring). I hope someone better equipped than me will take this opportunity to look at whether the divergent views taken by this court require reexamination of this question asked by these Justices so soon after AEDPA was enacted. Twenty years later, I worry that our court’s harsh view of our § 2244(b) gatekeeping role brings us perilously close to a suspension of the writ.

 In another order, In Re William Hunt, we see some more concurrences with all three judges (Wilson, Rosenbaum, and Jill Pryor).  I like the concurrence by Judge Jill Pryor (joined by the other two judges), which ends this way:

When it comes to Matchett, we soon may be told we are wrong again. On the
last day of this year’s term, the Supreme Court accepted certiorari in Beckles v.
United States, No. 15-8544, 2016 WL 1029080 (U.S. June 27, 2016). Beckles is yet
another Johnson case that originated in this Circuit. This time, the petitioner was
sentenced as a career offender under the advisory guidelines rather than under the
ACCA. So the Supreme Court, in deciding Beckles, will decide the very issue that
Matchett concerns.
If we simply asked whether, on our existing precedent, the applicant has made
a prima facie showing that his sentence was based on crimes that met the definition
of “violent felony” before Johnson but no longer do, we undoubtedly would be
granting authorization to file second or successive § 2255 motions in more cases.
At least then these many individuals who may be serving unconstitutional sentences
would have a shot at meaningful review, first in the district court and then in this
Court on appeal (and maybe even ultimately in the Supreme Court).
I recognize that the number of requests for authorization we have received in
the wake of Johnson has been extremely taxing on our Court. We have been
inundated with thousands of filings in addition to our regular court work. And I
understand that published orders from this Court that categorically foreclose relief to
whole groups of individuals, like Matchett and Griffin, may lessen that burden on
district courts, too. But such prudential concerns are not reasons to refuse to
remedy constitutional violations. As judges we are not sworn to shield district
courts; rather, we are sworn to uphold the Constitution and vindicate the individual
rights that the Constitution protects.
If the Supreme Court decides in Beckles that the residual clause in the career
offender guideline is void for vagueness, there may be new hope for the scores of
inmates who have tried to obtain relief since Johnson, only to be turned away by this
Court based upon Matchett. I hope next time around we will avoid the mistakes I
have identified. And I hope that, rather than being behind the march of justice, we,
as our nation’s designated guardians, will be at the front.

Most of the criticism from these judges, I believe, is directed at Judge Hull, who continues to issue orders, like this one, denying successive petitions. 

The greatest form of flattery?

Lawyers are used to it...  but this is incredible:



The discarded logo was a sight to see. And now this. Fun times.

At least he got an hour for lunch.

Even though this order is a few months old, it is making the rounds right now... H/t @bradheath from USA Today for posting it on Twitter.  According to Heath, this juror was late for jury duty, which resulted in this order:

That was fast: Kosher meals case decided two days after argument.

Judge Pryor, writing for a unanimous 11th Circuit after oral argument earlier in the week, upheld Judge Seitz' order granting summary judgment to the United States, requiring Florida to make kosher meals available to Jewish inmates.  The writing was on the wall after the OA.  From the intro:

 This appeal requires us to decide whether the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq., prevents the Secretary of the Florida Department of Corrections from denying kosher meals to inmates whose sincere religious beliefs require them to keep kosher. After the United States sued the Secretary to compel the Department to provide kosher meals, but before the entry of an injunction, the Secretary voluntarily created a religious diet program. Even so, the Secretary continues to insist that the Department need not provide kosher meals because denying them is the least restrictive means of furthering a compelling governmental interest in containing costs. But the Secretary’s argument lacks any support in the record. We affirm the summary judgment for the United States and the permanent injunction requiring the Secretary to provide kosher meals to the inmates.

Judge Federico Moreno named to Executive Committee

What a big (and well-deserved) honor.  Chief Justice John Roberts has formed the executive committee of the Judicial Conference to include:

Judge Paul J. Barbadoro, Chair   District of New Hampshire

Judge Robert James Conrad	Western District of North Carolina
Chief Judge Merrick B. Garland	DC Circuit
Federico A. Moreno	Southern District of Florida
Chief Judge William Jay Riley	Eighth Circuit
Chief Judge Sidney R. Thomas	Ninth Circuit
Martha Vazquez	District of New Mexico
James C. Duff	AO Director

Thin.

That was Judge Rosenbaum in this concurrence yesterday.  Here's the whole intro:

Johnny Marshall has already spent seventeen years in jail for a $261 robbery that he very well may not have committed. And after our decision today, he may spend the rest of his life there. But Marshall’s attorney almost certainly could have prevented Marshall’s conviction, had he done what any other competent attorney would have on this record: pursued a motion to suppress the illegally obtained sole eye-witness’s identification of Marshall, an identification that the same witness’s earlier description of Marshall squarely contradicted.
I write separately because I believe that Marshall was denied effective assistance of counsel, in violation of the Sixth Amendment. Nevertheless, despite the weak evidence underlying Marshall’s conviction and the substantial error his trial counsel made, I agree with the Majority’s ultimate conclusion that 28 U.S.C. § 2254 offers Marshall no relief. Whether because of § 2254’s strict statutory exhaustion requirements or its highly deferential standard of review of state-court decisions, we have no choice but to deny Marshall’s claim. At this point, any potential relief Marshall might obtain must come from the state, such as an act of clemency by the state’s executive branch.
I.
Thin. That’s a generous way to describe the evidence against Marshall. The only evidence tying Marshall to the robbery consists of Geraldine Jenkins’s identification of him. But Jenkins—the Pizza Hut employee who was present during the robbery—identified Marshall within about an hour of providing a description of the robber that bore about as much resemblance to Marshall’s actual appearance as broccoli does to carrots. Both are in the same general category—men and vegetables, respectively—but that’s where the similarities end.

"You haven't litigated much against the State of Florida then."

 That was Judge William Pryor this morning in the argument regarding kosher meals in the prison system.  A tipster told me the exchange went something like this:

Pryor: [to lawyer arguing for the prisoners]  You should quit while you are ahead [and sit down with 5 minutes left during your argument].

Lawyer: I've never been in this position before.

Pryor:  You haven't litigated much against the State of Florida then.

OUCH!  Maybe that will change now that Florida has a new SG.

B-Girls convictions reversed with citations to the Bible, Vulcans and Pappy's Bourbon

Wow, big opinion today by the 11th Circuit, reversing the B-girls convictions.  The blog covered (and frequently criticized) the prosecution and lengthy trial, which involved bar girls getting guys drunk and running up tabs at bars. Welcome to Miami!

The 11th Circuit held that the court should have instructed the jury as follows: that they must acquit if they found that the defendants had tricked the victims into entering a transaction but nevertheless gave the victims exactly what they asked for and charged them exactly what they agreed to pay.

The panel was Ed Carnes, Martin and visiting district judge Amul Thapar (EDKY).

The appellate defense team included Howard Srebnick, Richard Klugh, Marcia Silvers, and John Bergendahl.

The opinion, written by Judge Thapar, is awesome and includes all sorts of fun references (to the Bible, Star Trek, Whiskey, Holmes and more).  Here's the intro:

The wire-fraud statute, 18 U.S.C. § 1343 does not enact as federal law the Ninth Commandment given to Moses on Sinai.* For § 1343 forbids only schemes to defraud, not schemes to do other wicked things, e.g., schemes to lie, trick, or otherwise deceive. The difference, of course, is that deceiving does not always involve harming another person; defrauding does. That a defendant merely “induce[d] [the victim] to enter into [a] transaction” that he otherwise would have avoided is therefore “insufficient” to show wire fraud. See United States v. Starr, 816 F.2d 94, 98 (2d Cir. 1987).
Here, the defendants feared that the jury might convict them of wire fraud based on “fraudulent inducements” alone. Hence they asked the district court to give the jurors the following instruction: that they must acquit if they found that the defendants had tricked the victims into entering a transaction but nevertheless gave the victims exactly what they asked for and charged them exactly what they agreed to pay. The district court refused to give that instruction, and the jury ultimately convicted the defendants of wire fraud and other crimes, most of which were predicated on the wire-fraud convictions. The question presented in this appeal is whether the district court abused its discretion when it refused to give the requested instruction.

*See Exodus 20:16 (“Thou shalt not bear false witness against thy neighbor.”) (KJV).

Some other good stuff:

• The question before us, however, is not whether the proposed instruction was “logically entailed” by the given instruction, but whether it was “substantially covered”; and those are meaningfully different concepts. After all, the average juror is not Mr. Spock. If he were, then a trial-court judge’s job would be much easier. He could instruct the jury in broad strokes—instructing only as to the bare elements of the crime, perhaps—and be confident that the jury would deduce all of the finer-grained implications that must logically follow. As it stands, however, the vast majority of American juries are composed exclusively of humans. And humans, unlike Vulcans, sometimes need a bit more guidance as to exactly what the court’s instructions logically entail.
• Now imagine another, more common scenario: a young woman asks a rich businessman to buy her a drink at Bob’s Bar. The businessman buys the drink, and afterwards the young woman decides to leave. Did the man get what he bargained for? Yes. He received his drink, and he had the opportunity to buy a young woman a drink. Does it change things if the woman is Bob’s sister and he paid her to recruit customers? No; regardless of Bob’s relationship with the woman, the businessman got exactly what he bargained for. If, on the other hand, Bob promised to pour the man a glass of Pappy Van Winkle** but gave him a slug of Old Crow*** instead, well, that would be fraud. Why? Because the misrepresentation goes to the value of the bargain.  
  
  ** “Pappy’s,” as it is often called, is a particularly rare bourbon varietal: nearly impossible to find, and nearly impossible to afford when one finds it.
  
  ***Although Old Crow has a venerable pedigree—reportedly the go-to drink of Mark Twain, Ulysses S. Grant, Hunter Thompson, and Henry Clay—it is not Kentucky’s most-expensive liquor. Its “deluxe” version, “Old Crow Reserve,” retails for approximately $15 per bottle.
  
  Thus, a “scheme to defraud,” as that phrase is used in the wire-fraud statute, refers only to those schemes in which a defendant lies about the nature of the bargain itself. That lie can take two primary forms: the defendant might lie about the price (e.g., if he promises that a good costs $10 when it in fact costs $20) or he might lie about the characteristics of the good (e.g., if he promises that a gemstone is a diamond when it is in fact a cubic zirconium). In each case, the defendant has lied about the nature of the bargain and thus in both cases the defendant has committed wire fraud. But if a defendant lies about something else—e.g., if he says that he is the long-lost cousin of a prospective buyer—then he has not lied about the nature of the bargain, has not “schemed to defraud,” and cannot be convicted of wire fraud on the basis of that lie alone.
• Similarly, in Hill, the court instructed the jury that the defendant was guilty of credit-application fraud only if he made false statements to the bank knowingly and willfully. The defendant asked the court to instruct the jury that he was not guilty if he believed the statements were true. United States v. Hill, 643 F.3d 807, 852–54 (11th Cir. 2011). Thus, to get from the given instruction to the requested one, the jury needed to infer only one thing: that a person cannot lie “knowingly and willfully” if he speaks what is in his view the truth. That inference, too, hardly requires Holmesian feats of deduction.****
****Sherlock or Oliver Wendell: either Holmes will do here.

This is just some of the really fun stuff in the opinion.  Check it out.

“Now it’s time for us to move to New Zealand.”

That was Justice Ginsburg in an interview with the NYT saying what would happen if Trump won:

Unless they have a book to sell, Supreme Court justices rarely give interviews. Even then, they diligently avoid political topics. Justice Ruth Bader Ginsburg takes a different approach.

These days, she is making no secret of what she thinks of a certain presidential candidate.

“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”

It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said.

“‘Now it’s time for us to move to New Zealand,’” Justice Ginsburg said, smiling ruefully.

Last week, I posted about the 3-judge concurrence in the 11th Circuit.  Professor Bascuas has criticized the practice in the comments:

By definition, there is no such thing as a majority, much less a unanimous, concurrence. That essay is either the rationale for the holding or obiter dicta. Since we can assume that these judges know what a "concurrence" is, the question is, why deliberately mislabel this writing in a way guaranteed to draw maximal attention to it? The sub-text may be an awakening to the fact that the court has fetishized the superfluous and redundantly named "prior precedent" rule to the point where the first opinion on an issue is treated as legislation rather than as a precedent. The reach of a precedent in a common-law system is limited by the case's facts and the judges' analysis, subject to revision under different facts or a more complete analysis. Given that, what need is there for a "rule"? If the first panel is convincing, its opinion controls. Why should an unconvincing opinion control? The first-panel-makes-law rule is harmful to litigants. It encourages judges to overreach the facts and the law so as to "bind" the whole court (the way Matchett did). In that way, later litigants are "bound" by the first brief on an issue, even if it was not very well researched or presented. Hopefully, this writing is a sign that this insidious and unnecessary rule's days are numbered.

11th Circuit issues 3 judge concurrence

This opinion is interesting. Judges Jordan, Rosenbaum, and Jill Pryor denied a motion for a second habeas petition based on existing law in the 11th Circuit (which is way out of whack with the rest of the circuits).  But then they issued a 3-judge concurrence saying that the existing law is wrong. From their joint concurrence:

Although the mandatory Sentencing Guidelines operated to cabin the discretion of judges, just like sentencing statutes passed by Congress, a panel of our Court recently held that the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which struck down the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e), as unconstitutionally vague, does not apply to the identical residual clause of the mandatory career offender guideline, U.S.S.G. § 4B1.2(a)(2) (2003). See In re Griffin, No. 16-12012, __ F.3d __, 2016 WL 3002293 (11th Cir. May 25, 2016). The Griffin panel also concluded that, even if Johnson did apply to the residual clause of the mandatory career offender guideline, the Supreme Court’s decision in Welch v. United States, 136 S. Ct. 1257 (2016)—which held that Johnson was retroactive to cases on collateral review—did not make Johnson retroactive in cases involving challenges to the Sentencing Guidelines. Although we are bound by Griffin, we write separately to explain why we believe Griffin is deeply flawed and wrongly decided.

Sad day.

Welcome back.

We start year 12 with this cool article from the Herald about Fane Lozman, who has this message for his town:  Fane Lozman returns, Thank you... U.S. Supreme Court 

From the article:

“I want to make a statement,” he said. “I want people to see who I am and then they can look up the case to find out more.”
Lozman’s troubles began when Riviera Beach “arrested” his houseboat in April 2009 and later destroyed it. Lozman, a former Marine Corps officer, argued that the city couldn’t regulate his home as a maritime vessel.
His houseboat had been moored at the Riviera Beach marina after Hurricane Wilma destroyed his former marina in North Bay Village in 2005. The structure did not have an engine and was equipped to be connected to sewer lines on dry land.
In 2013, the Supreme Court, by a 7-2 vote, overturned an 11th Circuit Court of Appeals ruling, deciding that Riviera Beach didn’t have the jurisdiction to have his boat seized. He said he still hasn’t recovered his financial losses — including the cost of the boat — from the city, and hopes he will soon.

Meantime, Justice Sotomayor is kicking some ass (via NYT):

The Supreme Court term had barely gotten underway in early November when Justice Sonia Sotomayor issued her first dissent. A police officer’s “rogue conduct,” she wrote, had left a man dead thanks to a “‘shoot first, think later’ approach to policing.”

Justice Sotomayor went on to write eight dissents before the term ended last week. Read together, they are a remarkable body of work from an increasingly skeptical student of the criminal justice system, one who has concluded that it is clouded by arrogance and machismo and warped by bad faith and racism.

Only Justice Clarence Thomas wrote more dissents last term, but his agenda was different. Laconic on the bench, prolific on the page and varied in his interests, Justice Thomas is committed to understanding the Constitution as did the men who drafted and adopted it centuries ago.

Justice Sotomayor’s concerns are more contemporary and more focused. Her dissents this term came mostly in criminal cases, informed as much by events in Ferguson, Mo., in 2014 as by those in Philadelphia in 1787.

She dissented again in January, from Justice Antonin Scalia’s final majority opinion. Joined by no other member of the court, she said the majority in three death penalty cases might have been swayed by the baroque depravity of the crimes. “The standard adage teaches that hard cases make bad law,” she wrote. “I fear that these cases suggest a corollary: Shocking cases make too much law.” 

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/miami-beach/article87493917.html#storylink=cpy

Happy 11th birthday to the blog

Tomorrow the blog turns 11 years old, which is very old in blog years!  It's been pretty cool covering the District ... we are at 3000 posts and counting. 

The very first post 10 years ago asked for President Bush to appoint a Floridian to the Supreme Court.  Although the Court did get its first Hispanic jurist, it did not get a Floridian.  Hopefully one day soon!

Thanks to all of you for reading, sending me tips, and commenting.