How would you answer this question?

While Gorsuch is being grilled on these important questions, Labor nominee Alex Acosta is quietly having his hearings.  From the Miami Herald:

“Why cut a non-prosecution deal despite your staff saying you shouldn’t?” Kaine asked. “That is not accurate,” Acosta responded, disputing reports that in cutting the plea deal with Epstein, he rejected the advice of his senior lawyers when he served as U.S. attorney for Southern Florida. “It was a broadly held decision,” Acosta said. The exchange was one of the more feisty moments in an otherwise relatively smooth hearing that Democrats and Republicans alike say will lead to easy confirmation for Trump’s second choice to lead the Labor Department. Republican Sen. Marco Rubio of Miami, a fellow Cuban-American, introduced Acosta to the Senate Labor Committee. “He is a brilliant legal mind, someone with deep knowledge of labor issues, and a proven leader,” Rubio said. Sen. Ted Cruz of Texas, like Rubio a 2016 Republican presidential candidate, said he and Acosta had bonded over the years as the sons of Cuban-American refugees. “Alex is a surprisingly good poker player and not nearly as good of a squash player,” Cruz said to laughter. The Senate in bipartisan votes previously confirmed Acosta for three positions: the prosecutor’s post in Miami, a senior Justice Department job and what became an eight-month stint on the National Labor Relations Board. And labor unions have already told their allies on the Hill that Acosta is a better choice than Trump’s first pick California fast food executive Andy Puzder.

Shaniek Maynard is your new Ft. Pierce Magistrate

It's not official yet because she is undergoing her FBI background check.  But that should happen soon.  She grew up in Ft. Pierce and went to Yale Law School.  Seems like an excellent choice.

"Respectfully, and reluctantly, I dissent."

That was Judge Jordan, dissenting in a death penalty case (Madison vs. Alabama DOC) in which Judge Martin writes for the majority (Wilson joined) that Vernon Madison is incompetent and therefore cannot be executed. Jordan says that's not the place of a federal court on a habeas petition to make that determination (even though he agrees with the majority that Madison is incompetent).

From the majority:

Because the Alabama trial court unreasonably determined the facts relevant to Mr. Madison’s claim and unreasonably applied controlling federal law, we do not owe the state court’s finding that Mr. Madison is competent to be executed deference under AEDPA.

From the dissent:

After reviewing the record, I believe that Vernon Madison is currently incompetent. I therefore do not think that Alabama can, consistent with the Constitution, execute him at this time for his murder of a police officer three decades ago. See generally Panetti v. Quarterman, 551 U.S. 930, 958 (2007) (explaining that a state cannot put to death a prisoner who “cannot reach a rational understanding of the reason for the execution”). But Congress has chosen to generally prohibit federal courts from adjudicating constitutional claims anew on habeas review, so Mr. Madison’s competency (or lack thereof) is not our initial call to make. Under the restrictive standards we are required to apply, see 28 U.S.C. § 2254(d), and given the way we interpreted Panetti in Ferguson v. Secretary, 716 F.3d 1315 (11th Cir. 2013), I do not think Mr. Madison can obtain habeas relief.

Baseball case ends in convictions

It was a very long trial and today the jury found both Bart Hernandez and Julio Estrada guilty. From the AP:

MIAMI (AP) — A Miami jury on Wednesday convicted a Florida sports agent and a baseball trainer on charges they smuggled Cuban baseball players to the U.S. in search of big profits from professional free agent contracts.

The verdict came after jurors heard about six weeks of testimony in the trial of Bartolo Hernandez and Julio Estrada, who were indicted on conspiracy and alien smuggling charges for an operation that began in 2009 and involved a number of high-profile Major League Baseball players.

Trial evidence showed an existing Cuban smuggling operation that brought people from the communist-run island to Mexico became the platform in 2009 for the much more lucrative trade in elite ballplayers. People involved in that operation testified it was ultimately overseen by Hernandez and Estrada.

The players would be whisked from Cuba to Mexico or Haiti in a speedboat, sign papers claiming residency in their new country and eventually be cleared to sign with MLB teams. Prosecutors showed jurors how many of those documents contained false information, such as made-up jobs for players, and some travel documents were forged.

In one of the trial's memorable moments, Chicago White Sox star Jose Abreu testified that he ate a piece of his phony Haitian passport while flying to the U.S. in 2013 because he feared repercussions if he landed in Miami with a fake document. Abreu soon after signed a $68 million deal with Chicago.

Prosecutors behaving badly

This time it's in the Salomon Melgen trial in WPB, where the prosecutors elicited false testimony about uncharged conduct.  Although Judge Marra struck the testimony and instructed the jury, the defense's motion for mistrial was denied.  From the PBP:

The judge in Palm Beach County eye doctor Salomon Melgen’s Medicare fraud trial on Monday threw out the testimony of a witness who wrongfully claimed the doctor had billed her for a surgery he never performed.

Attorneys for Melgen had asked U.S. District Judge Kenneth Marra to declare a mistrial over the testimony that came up Thursday during the first day of testimony in a trial that is expected to last through next month.

Also Monday, federal jurors heard testimony from one of the FBI agents who pored over thousands of patient records and photographs from Melgen’s practice going back to the 1990s, and began hearing from an expert on macular degeneration — an eye illness that federal prosecutors say Melgen falsely diagnosed and treated in scores of patients at his offices in West Palm Beach, Delray Beach and Port St. Lucie to collect Medicare payouts of more than $108 million.

Before testimony began for the day, however, defense attorney Matthew Menchel told Marra that he and other defense attorneys for the 62-year-old doctor were completely blindsided by accusations from witnesses Thursday that Melgen had never performed an operation on patient Delores Griffiths for which he billed Medicare.

Menchel said that records showed that Melgen had done the procedure. But even if the allegations were true, Menchel said, federal prosecutors have never claimed in indictments against Melgen that he billed Medicare for procedures he never performed. Menchel said prosecutors were reckless and irresponsible for bringing up the allegations during the trial without prior notice.

“This was completely new, completely different, and completely out of left field,” Menchel said. “That’s like charging someone with robbery and then coming to trial and accusing them of rape.”

Menchel had asked Marra to either declare a mistrial in the case or to throw out the witness testimony. The judge chose the latter, telling jurors that records show the procedure had been done and instructing them to disregard the witness testimony.

NY Times piece on Alex Acosta

Labor nominee Alex Acosta's hearing has been pushed off a few days to allow the chair of the committee to attend a Trump rally.  Acosta will easily be confirmed when the hearing occurs. In the meantime, there have been a bunch of articles about him. Strangely, the Herald and NY Times have done a number of hit pieces on him.  Putting aside that ease with which Acosta will get confirmed, I think it would be a huge mistake for the Democrats to object to his nomination.  He is a fair, really smart, and pragmatic guy, who also has a big heart.  He was a very successful U.S. Attorney, who was extremely involved with the cases (from top to bottom) in the office (unlike many other top prosecutors who focus more on policy and community projects). Here's the nice part from the NY Times piece:

Others, including an immigration advocate and several professors at Florida International University’s law school, say Mr. Acosta is a fair leader who did not let his conservative ideals affect his decisions for the school and who worked hard to recruit, retain and support a diverse student group.
Erik Camayd-Freixas, a Hispanic studies professor at Florida International University, met Mr. Acosta several months before he was tapped to join the university’s law school, in 2009. Mr. Acosta was then the United States attorney for the Southern District of Florida, where his office prosecuted the lobbyist Jack Abramoff, the terrorism suspect Jose Padilla and founders of the Cali drug cartel.
Mr. Camayd-Freixas and several others called on the prosecutor’s office to investigate an immigration raid in Homestead, Fla., where, they claimed, United States Immigration and Customs Enforcement agents had unfairly roughed people up.
“I was very impressed with the way he handled it and his fairness in presenting essentially abuses by Immigration and Customs Enforcement to the Department of Justice for investigation,” Mr. Camayd-Freixas said of Mr. Acosta. “He put together a complaint, and he elevated it.”

Check out this powerful dissent by Judge Rosenbaum

The case is Jameka Evans v. Georgia Regional Hospital. Judge Rosenbaum's powerful dissent start's out this way:

A woman should be a “woman.” She should wear dresses, be subservient to men, and be sexually attracted to only men. If she doesn’t conform to this view of what a woman should be, an employer has every right to fire her. That was the law in 1963—before Congress enacted Title VII of the Civil Rights Act of 1964. But that is not the law now. And the rule that Title VII precludes discrimination on the basis of every stereotype of what a woman supposedly should be—including each of those stated above—has existed since the Supreme Court issued Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), superseded in part by The Civil Rights Act of 1991, Tit. I, § 107(a), 105 Stat. 1075 (codified at 42 U.S.C. § 2000e–2(m)), 28 years ago. Yet even today the panel ignores this clear mandate. To justify its position, the panel invokes 38-year-old precedent—issued ten years before Price Waterhouse necessarily abrogated it—and calls it binding precedent that ties our hands. I respectfully disagree. 

And from the conclusion:

Presidential-Medal-of-Freedom recipient Marlo Thomas has expressed the
sentiment that “[i]n this land, every girl grows to be her own woman.”17 Title VII
codifies the promise that when she does, she will not be discriminated against on
the job, regardless of whether she conforms to what her employer thinks a woman
should be. Because the panel does not read Title VII to fulfill that promise, I
respectfully dissent.

The 2-1 decision is authored by District Judge Jose Martinez and joined by William Pryor (who also writes a concurring opinion).  Slate covers the opinion here:

On Friday, the U.S. Court of Appeals for the 11th Circuit ruled that Title VII of the Civil Rights Act of 1964 does not prohibit employers from discriminating against workers on the basis of their sexual orientation. Many federal courts—in addition to the Equal Employment Opportunity Commission—have reached the opposition conclusion, finding that Title VII’s ban on “sex discrimination” encompasses anti-gay discrimination. But by a 2–1 decision, a panel for the 11th Circuit bucked this trend, reading Title VII as narrowly as possible and, in the process, ignoring at least one critical Supreme Court precedent.

Friday’s decision, Evans v Georgia Regional Hospital, involved the case of Jameka Evans, a lesbian who presents as traditionally masculine. She sued her employer, alleging that she endured hostility and harassment in the workplace in violation of Title VII. Although that statute does not explicitly outlaw anti-LGBTQ discrimination, it does bar “sex discrimination,” including sex stereotyping. Evans argued that this prohibition bars employers from discriminating on the basis of gender presentation and sexual orientation.

Salomon Melgen trial starts

The AP had a nice story about opening statements:

A prominent Florida eye doctor tied to a U.S. senator's alleged corruption built much of his fortune by defrauding Medicare and instilling false hopes in some patients, a federal prosecutor told a jury Thursday.
Salomon Melgen stole millions from Medicare between 2008 and 2013 by falsely diagnosing patients and by performing unnecessary tests and treatments, Assistant U.S. Attorney Carolyn Bell said during her opening statement for Melgen's fraud trial. Melgen and Democratic New Jersey Sen. Bob Menendez face a separate trial in the fall in an alleged bribery case.
"This is a case about a doctor who lied to Medicare for money," Bell told the 12-member panel. He lied about his patients' diagnoses, she said. He lied about the tests he ran, she said. He lied about their prognoses, she said. All of it, she said, aimed at making Melgen rich, as many of these falsely diagnosed and treated patients could net him $72,000 each annually.
Medicare paid Melgen, 62, because it "relied on the integrity of the doctor," she said, but the government's investigation found that in many cases he "lied," using that word or a variation about two dozen times during her address.
Matthew Menchel, Melgin's attorney, countered during his opening that the government's case is built upon viewing Melgen's actions as criminal when they were actually aggressive medicine, legitimate differences of opinions between doctors and honest mistakes.***
"They turned a blind eye to evidence they didn't like," he said.
Many charges relate to patients Melgen said had age-related macular degeneration, one of the leading causes of severe vision loss in people 65 and older. Most ARMD patients have the "dry" variety, which is caused by retinal cells breaking down and cannot be treated. Fewer have the "wet" variety, which involves bleeding beneath the retina. It can be treated by injections.
***
Menchel said other doctors who have looked at Melgen's diagnoses and treatments don't always agree with him, but understand what he was attempting. Other eye doctors sent Melgen their hardest, most desperate patients because they knew of his "cutting edge" treatments that sometimes worked, Menchel said. He said a totally blind person who regains even a flicker of peripheral vision would feel the treatment is worth it.
"Many of Dr. Melgen's patients loved him, not just liked him, because he helped them," Menchel said.
Menchel said Melgen never claimed to test or treat prosthetic eyes, saying those billings were mistakes made by his employees. When those mistakes were pointed out to him, Melgen reimbursed Medicare, Menchel said.

Meantime, it was the ABA White Collar Conference at the Fountainbleu this week.  About 1000 lawyers running around in suits while the beautiful people there were wondering who these aliens were invading their pool party.  Lots of recent former prosecutors, including Willy Ferrer and Matt Axelrod.  I previously covered Ferrer's move to H&K.  Here's the Axelrod story from the NY Times about his departure:

His boss was fired, and in effect, so was he. Now Matthew S. Axelrod is moving on.

The former top deputy to the acting attorney general, Sally Q. Yates, who was dismissed by President Trump in January after refusing to enforce his executive order barring travelers from seven predominantly Muslim countries, Mr. Axelrod is joining a major global law firm, Linklaters.

"Although Otis Redding may have enjoyed wasting time by watching ships roll into the Dock of the Bay,* if he were sitting on Cumberland Island’s Brick-Kiln Dock, he truly would be wasting his time, waiting in vain for ships that would never come."

That was how Judge Rosenbaum started this opinion with the following footnote:

1 STEVE CROPPER & OTIS REDDING, (Sittin’ On) The Dock of the Bay, on THE DOCK OF THE BAY (Volt/Atco 1968). Redding tragically died in a plane crash in December 1967, just two days after he finished recording “(Sittin’ On) The Dock of the Bay,” so the song was released posthumously on January 8, 1968. Marc Myers, Then I Watch ‘Em Roll Away Again, WALL ST. J. (Jan. 3, 2013 6:20 PM), http://www.wsj.com/articles/SB10001424127887323320404578213 633398825300. It later won the 1968 Grammy Awards for the Best Rhythm & Blues Male Vocal Performance and the Best Rhythm & Blues Song. RockPopInfo Song Facts: (Sittin’ On) The Dock of the Bay, ROCKPOPINFO, http://www.rockpopinfo.com/songs/sittin-on-the-dock-ofthe-bay--2/song-facts (last visited Aug. 2, 2016).

If the site was last visited on August 2, 2016, it seems that the opinion has been waiting to be published for a while.  What am I missing appellate clerks?

Hat Tip: Stephen Ludovici at Jones Walker

Baseball case moves to defense case

The government has rested after 6 weeks.  Now it's to the defense.  From the AP:

Two Texas Rangers executives testified Tuesday they never discussed bringing Cuban ballplayers to the U.S. illegally with a Florida sports agent on trial for allegedly smuggling players from the communist-governed island.
Rangers General Manager Jon Daniels and assistant GM Mike Daly told a jury they never knew that outfielder Leonys Martin planned to cross the U.S. border in Texas illegally and never talked about it with Martin's agent, Bartolo Hernandez.
"Absolutely not," Daly said under questioning from Hernandez attorney Daniel Rashbaum.

Supreme Court affirms 11th Circuit in Beckles

This was the vagueness challenge to the career offender guideline. Both the defendant and the government agreed that the guideline provision was vague and that the 11th should be reversed.  The Court had to appoint a lawyer to argue the contrary position, and ruled unanimously for that position:  Justice Thomas starts his majority opinion this way:

At the time of petitioner’s sentencing, the advisory Sentencing Guidelines included a residual clause defining a “crime of violence” as an offense that “involves conduct that presents a serious potential risk of physical injury to another.” United States Sentencing Commission, Guidelines Manual §4B1.2(a)(2) (Nov. 2006) (USSG).   This Court held in Johnson v. United States, 576 U. S. ___ (2015), that the identically worded residual clause in the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. §924(e)(2)(B), was unconstitutionally vague. Petitioner contends that the Guidelines’ residual clause is also void for vagueness.  Because we hold that the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause, we reject petitioner’s argument.

Former Dolphin Will Allen going to prison for 6 years

From the AP:

Ex-NFL cornerback Will Allen and his business partner have been sentenced to prison for running a Ponzi scheme that took in more than $35 million.
A federal judge in Boston Wednesday sentenced Allen, of Davie, Florida, and Susan Daub, of Coral Springs, Florida, each to six years in prison and three years of supervised release. They also were ordered to pay restitution totaling $17 million.
Allen and Daub collected millions from investors between 2012 and 2015, saying it would be used for high-interest loans to professional athletes. Their Massachusetts business made some loans but they also diverted money to themselves and other ventures.

 This isn't his first run-in with the law (from Wiki):

Allen was arrested February 20, 2010 and charged with driving under the influence when he was stopped in a late-model Ferrari at 3:30 a.m. at the corner of Fifth Street and Alton Road, said Miami Beach police spokesman Detective Juan Sanchez.^[2]
According to the arrest report, Allen approached a police road-block and instead of following the detour, he kept driving toward a police car, stopping only two feet from it.
Will Allen was placed on injured reserve September 5, 2010 because of a knee, just one week before season opener ending his 2010 season.

In other news, we still don't know whether there is going to be a JNC here in Florida.  There's been no clarity on who will permanently fill Ferrer's slot as U.S. Attorney or how it will be done.  Ben Greenberg is the acting U.S. Attorney. 

"No doubt the limitations imposed by the Tenth Amendment, like so many limitations imposed by the Constitution, are a source of frustration to those who dream of wielding power in unprecedented ways or to unprecedented degrees. But America was not made for those who dream of power. America was made for those with the power to dream."

That was Judge Milton Hirsch finding that Mayor Gimenez violated the 10th Amendment by ordering people slated for deportation to be jailed (because the city was being threatened by President Trump). As always, Judge Hirsch writes a beautiful order.

The conclusion:

The “people” to whom the Tenth Amendment refers include the native-born as well as the naturalized citizen; the native English speaker as well as the speaker for whom English is a second, or third, language; the scion of old Yankee stock as well as the newcomer who took the oath of citizenship yesterday. Miami is not, and has never been, a sanctuary city. But America is, and has always been, a sanctuary country. As I have written elsewhere, “America, perhaps more than any other nation, was made great not by its leaders but by its people: by the refugees who were called to begin life anew; by the pioneers who were called to build a nation; by ‘the homeless, tempest-tossed’ who were called by the light that shone from the ‘lamp beside the golden door’.” State v. Robaina, 20 Fla. L. Weekly Supp. 406a (Fla. 11th Cir. Ct. 2013) (quoting Emma Lazarus, “The New Colossus”). Of course we must protect our country from the problems associated with unregulated immigration. We must protect our country from a great many things; but from nothing so much as from the loss of our historic rights and liberties.

Ft. Pierce Magistrate position

A tipster has informed me that the 4 finalists for Magistrate in Ft. Pierce are:

Barbara Junge
Lauren Louis
Shaniek Maynard
Corey Steinberg

What do all of these finalists have in common? They all were (or are currently) prosecutors. Junge and Louis are now in private practice.

Supreme Court during the Trump Address last night (UPDATED WITH WILLIE FERRER'S NEW JOB)

UPDATE -- As expected, Willie Ferrer will be going to Holland & Knight.

We are all Elena Kagan pic.twitter.com/BuoljihPVp

— Josh Sternberg (@joshsternberg) March 1, 2017

That's a pretty funny picture.

It probably sums up how the jury feels in the baseball trial before Judge Williams. It's been 4 weeks and it's still going... Looks like it might perk up today though when Chicago White Sox player Jose Abreu testifies. The government is calling him, but he's the defendant (Jose Estrada's) good friend. Should be interesting:

Abreu left Sox camp after Monday's game against the Cubs, and the Sox said only that he had to tend to personal matters in Miami. Sox manager Rick Renteria said Abreu was expected him back at some point Wednesday, but he said he would not plan to use him in Wednesday's game against the Diamondbacks at Camelback Ranch.

Abreu hit the first Sox homer of the spring Monday against the Cubs. He has gone 2-for-5 in two spring games.

"It's something that we were made aware of (ahead of time), and so he has to have this time," Renteria said. "Once he gets back, I'm sure he'll be wanting to get back in the swing of things."

Abreu has declined comment in recent months about the trial, but when Hernandez was indicted last February, he said they had a "respectful relationship." Abreu signed a six-year, $68 million contract with the Sox in 2013 when represented by Praver Shapiro sports agency, which worked with Hernandez and his company, Global Sports Management. But he switched agencies in 2015.

I wonder if Justice Kagan gave that face after this recent exchange:

JUSTICE GINSBURG: Is -- is the -- 924(c) is a statute, it's nothing to do with the guidelines, and it does say sentences have to be consecutive. So I go back to the point I opened with. You are, in effect, asking for a concurrent sentence.

MR. STOLER: Well, just -- just --

JUSTICE GINSBURG: Just adding one day.

MR. STOLER: Well, as Justice Kagan and I discussed, one day is an additional punishment. And one day --

JUSTICE KAGAN: She's Justice Sotomayor.

MR. STOLER: I'm sorry. Wrong end. (Laughter.)

JUSTICE KAGAN: She was the one helping you. (Laughter.)

MR. STOLER: I'm sorry.

JUSTICE SOTOMAYOR: This is the --

JUSTICE KAGAN: I was the one who wasn't. (Laughter.)

MR. STOLER: I got my ends mixed up. I'm sorry.

SCOTUS grants cert on a habeas case from the 11th Circuit

Back in August 2016, the en banc 11th Circuit had 96 pages of opinions in this AEDPA case (Wilson v. Sellers).  I can honestly tell you that I haven't read it.  But some clerks at the Supreme Court did, and granted cert.  I found the cert petition's cover page interesting.  Here's the question presented:

Issue: Whether the court's decision in Harrington v. Richter silently abrogates the presumption set forth in Ylst v. Nunnemaker — that a federal court sitting in habeas proceedings should “look through” a summary state court ruling to review the last reasoned decision — as a slim majority of the en banc U.S. Court of Appeals for the 11th Circuit held in this case, despite the agreement of both parties that the Ylst presumption should continue to apply.

RIP Judge Wapner

We need more judges like him.  For real.  Enjoy:

Response to Joe Patrice's post on criminal defense lawyers

As SDFLA blog readers know, I do not use this forum as a place to discuss my cases.  I use this blog as a place to cover news in this District and other court news that I find interesting.  Every now and then there is an exception, and this is one of those times. 

Joe Patrice at Above The Law had this post where he compared me and other criminal defense lawyers to the Trump administration’s attack on the media as fake news.  In a case that I am handling, the prosecution has come up with various theories which we do not believe have any support in the facts.  One such theory was that my client was paying for the defense of an indicted defendant.  Even though this is demonstrably false and even though the prosecutor never asked us if this was true, the prosecution filed a motion setting out this false theory.  I described the motion (and the prosecution in general) as based on “alternative facts.”

Based on this quote, Patrice then compared me and criminal defense lawyers to Trump’s attack on the media as “fake news”:

Today we grieve in solidarity with the victims of Sweden while the official organs of American government ask that we kindly get over our hangups and just accept the simulation they prefer. It’s how we do things around here now.

Which is not dissimilar to the role criminal defense attorneys routinely play. When you think about it, asking reasonable people to accept all sorts of ludicrous alternative theories in the spirit of creating that shadow of a doubt is a time-honored tradition. … Because defense attorneys are definitely respecting the tricks and tactics of the administration.

But he’s got the analogy backwards. Our Founders created a system with a robust bill of rights so that the media and lawyers could act as a check on the executive branch. Criminal defense lawyers are the cornerstone of our criminal justice system, just as a free press is the cornerstone of our democracy.  The media must be permitted to call out the executive branch when it is less than fully transparent and accurate.  So too must the criminal defense lawyer call out the executive when it fails to prove its allegations. 

Patrice's thinking -- that criminal defense lawyers are out there using tricks to subvert the truth -- has led to all sorts of problems in our system: innocent people being forced to plead guilty, prosecutors holding back evidence (see, e.g., Ted Stevens), and so on.  One study says that 10,000 innocent people are convicted each year.  

Forcing the government to back up what it says with actual proof instead of baseless statements isn’t a “trick” or “tactic.”  This isn’t a defense lawyer “flipping th[e] script” as Patrice describes it.  It is exactly the script that our Constitution dictates and one that I and other criminal defense lawyers are proud to carry out.

Judge William Zloch takes senior status

Thanks to a tipster, I see that Judge William Zloch took senior status on January 31, 2017.  That means that our District now has 3 open seats.  Judge Zloch was the Chief Judge of our District from 2000-2007.  Here's his wiki entry:

William J. "Bill" Zloch (born 1944 in Fort Lauderdale, Florida) is a Senior United States District Judge, as well as a former American football quarterback and wide receiver for the University of Notre Dame.
Following the departure of Heisman Trophy winner John Huarte in 1965, Notre Dame football coach Ara Parseghian was faced with a wide-open competition for the quarterback position. He opted to move senior Bill Zloch from wide receiver to quarterback for the 1965 season.^[1] Directing a team that was heavily run-oriented, Zloch finished the season completing 36 of 88 passes for 558 yards and three touchdowns.^[2] The team finished 7-2-1 and ranked 8th nationally.
After graduation, Zloch spent three years in the United States Navy, achieving the rank of lieutenant, then returned to Notre Dame Law School, completing a Juris Doctor in 1974. He returned to Fort Lauderdale to begin a private law practice.^[3]
On October 9, 1985, President Ronald Reagan nominated Zloch to a newly created seat on the United States District Court for the Southern District of Florida. He was confirmed by the United States Senate on November 1, 1985, and received his commission on November 4, 1985. On July 1, 2000, he began a seven-year term as Chief Judge of the district, ending on June 30, 2007. He was succeeded as Chief Judge by Judge Federico A. Moreno.^[4] He assumed senior status on January 31, 2017.
Judge Zloch on August 21, 2009 sentenced UBS whistleblower Bradley Birkenfeld to 40 months in prison with 3 years probation and a $30,000 fine, a term that was harsher than the prosecutors wanted. "Assistant U.S. attorney Jeffrey A. Neiman recommended that Birkenfeld get 30 months in prison for his conviction on one count of conspiracy to defraud the government -- down from the 60-month maximum sentence he is exposed to -- because of his extensive cooperation," the Miami Herald reported.^[5][6]

En banc 11th Circuit rules in "Docs v. Glocks" case

The en banc 11th Circuit opinion in the "Docs v. Glocks" case is here.  There are two majority opinions for the en banc Court, one by Judge Jordan and one by Judge Marcus. Judge Jordan’s opinion is joined by Chief Judge Ed Carnes and Judges Hull, Marcus, William Pryor, Martin, Rosenbaum, Julie Carnes, and Jill Pryor. Judge Marcus’ opinion is joined by Judges Hull, Wilson, Martin, Jordan, Rosenbaum, and Jill Pryor.

Judge Jordan's opinion starts this way:

Despite its majestic brevity—or maybe because of it—the freedom of speech clause of the First Amendment sometimes proves difficult to apply. See, e.g., Burt Neuborne, Madison’s Music: On Reading the First Amendment 5 (2015) (“Reading the First Amendment isn’t easy.”); Saxe v. State College Area Sch. Dist., 240 F.3d 200, 218 (3d Cir. 2001) (Rendell, J., concurring) (“[T]here are no easy ways in the complex area of First Amendment jurisprudence.”). Yet certain First Amendment principles can be applied with reasonable consistency, and one of them is that, subject to limited exceptions, “[c]ontent-based regulations [of speech] are presumptively invalid.” R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).
This particular principle looms large in this case, which concerns certain provisions of Florida’s Firearms Owners’ Privacy Act, Chapter 2011–112, Laws of Florida (codified at Fla. Stat. §§ 790.338, 456.072, 395.1055, & 381.026). And that is because some of FOPA’s provisions regulate speech on the basis of content, restricting (and providing disciplinary sanctions for) speech by doctors and medical professionals on the subject of firearm ownership.
Shortly after FOPA was enacted in 2011, a number of doctors and medical organizations filed suit in federal court against various Florida officials, challenging some of the Act’s provisions as unconstitutional. Ruling on cross-motions for summary judgment, the district court held that FOPA’s record-keeping, inquiry, anti-discrimination, and anti-harassment provisions violated the First and Fourteenth Amendments, and permanently enjoined their enforcement. See Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251 (S.D. Fla. 2012) (Wollschlaeger I). The state officials appealed, and a divided panel of this court issued three opinions—each using a different First Amendment standard of review—upholding the challenged provisions of FOPA. See Wollschlaeger v. Governor of Fla., 760 F.3d 1195 (11th Cir. 2014) (Wollschlaeger II); Wollschlaeger v. Governor of Fla., 797 F.3d 859 (11th Cir. 2015) (Wollschlaeger III); Wollschlaeger v. Governor of Fla., 814 F.3d 1159 (11th Cir. 2015) (Wollschlaeger IV). We voted to rehear the case en banc and heard oral argument in June of 2016.
Exercising plenary review, see ACLU of Fla., Inc. v. Miami-Dade County Sch. Bd., 557 F.3d 1177, 1206 (11th Cir. 2009), and applying heightened scrutiny as articulated in Sorrell v. IMS Health, Inc., 564 U.S. 552, 563–67, 571–72 (2011), we agree with the district court that FOPA’s content-based restrictions—the record-keeping, inquiry, and anti-harassment provisions—violate the First Amendment as it applies to the states. See U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech[.]”); Stromberg v. California, 283 U.S. 359, 368 (1931) (“[T]he conception of liberty under the due process clause of the Fourteenth Amendment embraces the right of free speech.”). And because these three provisions do not survive heightened scrutiny under Sorrell, we need not address whether strict scrutiny should apply to them. We also conclude, this time contrary to the district court, that FOPA’s anti-discrimination provision—as construed to apply to certain conduct by doctors and medical professionals—is not unconstitutional. Finally, we concur with the district court’s assessment that the unconstitutional provisions of FOPA can be severed from the rest of the Act.

 And Judge Marcus starts this way:

The Court has correctly determined that the record-keeping, inquiry, and anti-harassment provisions of Florida’s Firearm Owners’ Privacy Act (FOPA), Fla. Stat. § 790.338(1)–(2), (6), plainly target core First Amendment speech. Because the State has failed to demonstrate that these provisions are narrowly drawn to directly and materially advance a substantial government interest, they cannot withstand heightened scrutiny. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995).

Judge Tjoflat dissented.

Alex Acosta to be named Secretary of Labor

Congrats to former U.S. Attorney and current Dean of FIU law school, Alex Acosta, for being named as the nominee for Secretary of Labor.

Alex is a wonderful choice.  He's smart and ethical.  More importantly, he's a really good guy.

Breaking news-- U.S. Attorney Wifredo Ferrer resigns (UPDATED WITH QUOTE FROM FERRER)

Multiple sources have emailed me that Willy Ferrer has resigned today as U.S. Attorney for the Southern District of a Florida. Ben Greenberg is acting. More to follow.

UPDATE -- I have it confirmed that Ferrer has stepped down.

UPDATE 2 (1:15pm) -- Willy was kind enough to speak with me and confirm the news. He is a very good guy and we should all wish him the best. His resignation is effective on March 3, and Ben Greenberg already has been approved to be the acting U.S. Attorney starting March 4.  Willy announced the news at an office-wide meeting today after serving our community for 7 years as U.S. Attorney.  He previously worked as an AUSA for 6 years.  He had this to say:

There has been no greater honor than to serve and protect the same community that opened its arms to my parents when they immigrated to this country.  For almost seven years, I have been blessed to work alongside remarkable men and women in the U.S. Attorney’s Office, community leaders, and our federal, state and local law enforcement partners who strive tirelessly to combat crime and promote a safer, stronger and more united district.  I am incredibly proud of all that we have been able to accomplish together, in and out of the courtroom, including building meaningful bonds of trust with the diverse community we serve.

 I really like the sentiment, especially the opening line about his parents coming to this country, which welcomed them with open arms.