Lots of discussion re Stone's arrest versus surrender

Here's Sen. Graham raising concerns about not letting Stone self-surrender. (And this is my original piece on it.)

Many have responded that SWAT team arrests is a wide-spread practice and Stone shouldn't be treated differently. But that argument doesn't hold water -- the practice should NOT be widespread. It should not be acceptable to waste resources and risk a dangerous situation where a defendant will voluntarily surrender.

"You are (as the author’s mother used to say) cruisin’ for a bruisin’. Don’t apologize—do better."

That was 11th Circuit Judge Newsom in United States v. Munksgard, affirming a criminal conviction "reluctantly" and over Judge Tojflat's dissent. Here's Judge Newsom's entertaining opening:

This criminal appeal presents both a surprisingly close question of evidentiary sufficiency—so close, in fact, that it has prompted a dissent—and an interesting statutory-interpretation issue. As to the former, federal law criminalizes the act of knowingly making a false statement in order to obtain a loan from a bank that is insured by the FDIC. 18 U.S.C. § 1014. Matthew Munksgard admits to knowingly making false statements in order to obtain bank loans—indeed, four times over. Even so, he contends, the government failed to show beyond a reasonable doubt, as it had to, that the institution he swindled was FDIC-insured. This case presents the (irritatingly familiar) question whether the government presented sufficient evidence to prove that pesky jurisdictional prerequisite. The proof of FDIC insurance here—as in other cases in which we have rapped the government’s knuckles—was hardly overwhelming. And given the ease with which insurance coverage could have been demonstrated—certificate, contract, cancelled check, etc.—inexplicably so. Having said that, “overwhelming” isn’t the standard, and when we view the evidence in the light most favorable to the government, as we must, see United States v. Frank, 599 F.3d 1221, 1233 (11th Cir. 2010), we conclude—albeit reluctantly—that the proof was adequate to demonstrate Munksgard’s guilt beyond a reasonable doubt. But let this be a warning to federal prosecutors: You are (as the author’s mother used to say) cruisin’ for a bruisin’. Don’t apologize—do better.

I appreciate the wonderful writing, but here's the thing -- prosecutors won't do better until there are consequences, like a reversal. There are so many appellate doctrines meant to make sure that convictions are affirmed (harmless error, abuse of discretion, and so on) that prosecutors and trial judges have learned to do whatever it takes to get the conviction. They know that there won't be any bruisin'. Judge Tjoflat has it right when he concludes:

The majority goes to great lengths to bail the government out. Nothing in our precedent compels this, and the Constitution doesn’t allow it. Because I would vacate the conviction, I respectfully dissent.

It's time to stop bailing the government out.

Federal Bar Reception tomorrow (Thursday) night

Local Federal Bar Association President David Weinstein sends the following email about this Thursday's event. It's always a good one

There might be a big game of Roman Numeral proportion coming up on Sunday, but this Thursday evening is an even bigger event. The South Florida Chapter of the Federal Bar Association will be hosting its 38th Annual Federal Judicial Reception to honor our federal judges.

Taking place at the Historic Alfred I. Dupont Building in the heart of the 305, there will be no speeches or a sit-down dinner. It’s an opportunity to mingle, network and socialize with the judiciary and your peers.

For more details, click here: https://fba-sdfla.org/event/fbas-38th-annual-federal-judicial-reception/

BOP refuses to give defendants their good-time credit under First Step Act

For many years, there was a debate in the criminal justice community about how much time prisoners should be receiving as good time credit.  Even though they were supposed to be getting 15%, which calculates to 54 days a year, BOP determined that they were only entitled to 47 days a year.  It doesn’t sound like a lot, but when you’re inside, every day matters.

The First Step Act fixed this problem and said that good time credit was actually 54 days a year.  And it even applied it retroactively, so many defendants believed that they would be getting out immediately.  But BOP is refusing to award the 54 days, citing to an error in the way that the statute was drafted.  From Reuters:

“You have thousands of families who thought the day this bill passed, their loved ones’ sentence was going to be recalculated and they were going to walk out of their halfway house, their home confinement ... or leave prison,” said Kevin Ring, president of Families Against Mandatory Minimums (FAMM).

“It’s a frustrating mistake,” Ring said.

Wyn Hornbuckle, a Justice Department spokesman, said the department is analyzing changes for the law and plans to “carry out all necessary steps.”

Reuters has seen a letter sent to inmates at the Federal Correctional Institution Coleman, a federal prison in Florida, in which officials acknowledged the new good-behavior credits would not take effect yet.

“The law will allow BOP in the future to apply 54 days of credit for every year a sentence was imposed, which is a change to the prior law,” the letter says.

“While this change may result in additional credit for inmates in the future, it is not effective immediately nor is it applicable to all inmates,” it says.

Apparently the White House is working on a fix to the probematic language in the statute, but this is just absurd. Judges may want to take this into account when sentencing defendants.

"Special Counsel’s Office wrong to arrest Roger Stone instead of letting him self-surrender"

That's the title to my piece in The Hill about the arrest vs. surrender of Roger Stone.  The arrest of non-cooperators has bothered me for a long time, even for guys like Stone.  Here's the intro:

A swarm of armed federal agents wearing bullet proof vests and equipped with battering rams and other riot gear arrested Roger Stone before sunrise Friday morning. Video cameras from CNN were present to capture the show of force.
There was absolutely no good reason to arrest Stone instead of letting him self-surrender like others who have cooperated with the investigation such as Michael Flynn.

And the conclusion:

Allowing Stone to self-surrender — like others who have cooperated with the government — would show that the Special Counsel is not going to retaliate or unnecessarily embarrass those who do not cooperate with his office.
There’s a long and controversial history of the perp walk.
Of course, sometimes arresting a defendant is necessary. For example, if there is a fear that the person will flee or destroy evidence, then an arrest might be appropriate. But here, where Stone knew of the investigation and was not a flight risk, there was no reason to arrest him before the sun came up with guns blazing.
He would have self-surrendered like others who were permitted to do so in this case.
Instead of instilling confidence in the Special Counsel’s office as neutral and detached, this arrest will give critics of that office a reason to say that it is acting inappropriately and with no real law enforcement purpose.

 Please click through to the article and let me know your thoughts.

Roger Stone arrested in Broward (UPDATED)

He will make his first appearance today at 11am in magistrate court in Ft. Lauderdale. Here’s the indictment which charges obstruction and false statements.

And here is the CNN story for more info.

Questions —  why not let him surrender? Was it a good use of resources to send all of those armed FBI agents to his house in the morning?  Why arrest him on a Friday?  Will the government be asking to hold him no bond over the weekend as they are entitled to do until the bond hearing next week?

UPDATE — The Special Counsel agreed to release Stone on a personal surety bond.

"In olden days a number of methods were used to ensure that juries reached a unanimous verdict. From the fourteenth through the eighteenth centuries, one “method of accelerating unanimity” was to prohibit jurors from eating or drinking until they all agreed on a verdict."

That's how Chief Judge Carnes starts out this entertaining opinion about deadlocked juries.  The entire introduction:

In olden days a number of methods were used to ensure that juries reached a unanimous verdict. From the fourteenth through the eighteenth centuries, one“method of accelerating unanimity” was to prohibit jurors from eating or drinking until they all agreed on a verdict. 3 William Blackstone, Commentaries *375. And if jurors did not unanimously agree on one before the judges left town, Blackstone recounted, “the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart.” Id. at *376. They were hauled around in the cart “until a judgment ‘bounced out.’” Renico v. Lett, 559 U.S. 766, 780, 130 S. Ct. 1855, 1866 (2010) (Stevens, J., dissenting). Which is to say until the resolve bounced out of the holdout jurors.
In one seventeenth-century sedition trial (involving William Penn and a co-defendant), the jury deadlocked on the most serious charge. George C. Thomas III & Mark Greenbaum, Justice Story Cuts the Gordian Knot of Hung Jury Instructions, 15 Wm. & Mary Bill Rights J. 893, 898–99 (2007). The judge responded by threatening to have a juror named Bushel branded unless the jury agreed that the defendants were guilty as charged. Id. at 899. When no verdict was forthcoming, the judge did not send for a branding iron, but he did have all the jurors “locked in the jury room without meat, drink, fire, and tobacco” until they could agree. Id. (quotation marks omitted). After nicotine withdrawal and the prospect of starvation failed to work, “the judge threatened to cut Bushel’s throat” if there were no verdict. Id. (Thus posing the prospect of a dead juror to unlock a deadlocked jury.) When even that threat did not bring forth a unanimous verdict, the judge gave up. Id. Bushel escaped the experience unbranded and with his throat intact, while the jury as a whole escaped with its disagreement intact. But the judge was angry enough at the jurors’ failure to agree that he fined each of them forty marks for their intransigence. Id. Fortunately, when the case made it to the Court of Common Pleas the fines were set aside. Id. at 899–900. History does not record if Bushel or any of the eleven other brave souls ever served on another jury.
Since those days, we have come a long way and now accept that some jury deliberations will end in deadlock. United States v. Rey, 811 F.2d 1453, 1460 (11th Cir. 1987) (“The jury trial system has not malfunctioned when the jury cannot reach a verdict. One of the safeguards against the conviction of innocent persons built into our criminal justice system is that a jury may not be able to reach a unanimous verdict.”). We no longer try to coerce holdout jurors to reach a verdict that they cannot abide. Or at least most of the time we don’t.

The opinion goes on to grant a habeas petition for ineffective assistance of counsel:

The jury that convicted our appellant, Sumnar Brewster, might feel some affinity with juries of yesteryear. Over the period of two days of deliberations the jurors repeatedly told the judges –– there was one judge on the first day of deliberations and a different one on the second day –– that they could not reach a unanimous verdict. And the judges repeatedly ordered them to keep trying. All told, the jurors sent six notes to the two judges stating that they could not reach a verdict.
Three times the jurors disclosed how they were divided: first reporting that they were deadlocked 9 to 3 for conviction, later that they were still deadlocked but now 11 to 1 in favor of conviction, and still later that the one holdout juror was continuing to hold out. Throughout the deadlocking, the judges gave a formal Allen charge, later two additional admonitions that the jurors must continue deliberating, and finally, another long charge that included instructions to keep on deliberating. That lengthy charge emphasized that the jurors had taken an oath to follow the law, which meant they must deliberate more. The judge ended his instructions with the challenge that he had taken his oath seriously and hoped they would do the same.
Shortly thereafter, when told that the one juror who wouldn’t vote to convict was doing crossword puzzles, the judge ordered all the reading materials taken out of the jury room. That tactic turned out to be even more effective than threatening to kill the hapless Bushel had been in William Penn’s case three hundred years before. Just 18 minutes after all reading materials were removed, Brewster’s jury dutifully –– and we do mean dutifully –– returned a guilty verdict. Through it all Brewster’s two attorneys neither objected nor moved for a mistrial. Not once.
This is Brewster’s appeal from the denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. He claims that his trial counsel rendered ineffective assistance by failing to object, or move for a mistrial, at any point during the deadlocked deliberations.

Trump formally renominates 3 SDFLA judges

Good news for nominees Roy Altman, Rudy Ruiz, and Rodney Smith as Trump has renominated them for judgeships here in the Southern District of Florida.  It is unclear how long it will take for them to get their final hearings. 

In other news, thanks to Raychel Lean at the DBR for picking up the TB story here.

FDC Shutdown continues (UPDATED -- FDC BACK UP)

FDC-Miami is still shutdown due to a supposed TB scare.  That means no legal or social visits.  It also means that no defendants are being brought over to court.  At least one trial was cancelled today because of it.  There have been many TB outbreaks at FDC over the years, but that has never stopped visits and court for any lengthy period of time before.  This is definitely a first.

Here's an update from one of the Miami marshals:

This email is intended to provide an update regarding the current PRECAUTIONARY QUARANTINE status within the FDC-Miami facility. As you may be aware, last Thursday evening the USMS was informed by FDC leadership & medical managers of an inmate with a potentially active case of Tuberculosis. Given a number of concerns regarding this notification, to include: the inmate’s transport into S/FL, recent court appearances within the District, potential impact within his actual designated facility (FCI Yazoo – Mississippi), and work there as a facility cook, USMS management (in consultation with FDC medical managers) recommended to the Judiciary a cancelation of the scheduled Miami Division in-custody court matters for last Friday (1/18/2019).

At this time FDC medical managers still have not received the final test results which they are certain will provide a definitive Negative/Positive confirmation in this specific case, and are uncertain as to when they will receive those results (we’re hopeful that they are returned sometime tomorrow afternoon). As a result of the delay in receiving the test results and in an abundance of caution, it is very likely that FDC will need an additional day of inmate quarantine (Tuesday – 1/22/2019) to work through this matter. The USMS is well aware of the disruption(s) this causes all affected parties, however, given the involvement of the Florida Department of Health, CDC, & U.S. Public Health Service, the USMS & FDC (BOP) would be negligent in attempting to move forward without all of the proper clearances and authorizations to do so.

We are in direct contact with the Judiciary/Court, and will continue to provide any/all information received, in hopes of resuming District operations within the Miami Division as quickly as possible. Should you have any questions or concerns, please do not hesitate to contact me at any time. Thank you.

UPDATE -- BOP has determined that the TB is "not infectious" and is reopening.  Normal operations begin tomorrow.  From the Marshals office:

 Chief Cooper will be sending out a notice indicating that we got the “all clear” from FDC about 30 minutes ago.  The TB was determined “not infectious” so we will return to normal operating procedures as of tomorrow morning.

Shutdown at FDC-Miami

While TSA workers are calling in sick, the Bureau of Prison guards are cancelling visits, including attorney visits. They are saying that there “may be” a “recent inmate” who was “possibly” diagnosed with tuberculosis.

You can't really blame them for making up the TB scare.  The shutdown is absurd. 

Stokeling is decided 5-4 for the Government

The Supreme Court affirmed the 11th Circuit in an odd 5-4 lineup in which Chief Justice Roberts (along withe Kagan and Ginsburg) joined Justice Sotomayor in dissent.  Justice Thomas held for the majority: The Armed Career Criminal Act’s elements clause encompasses a robbery offense that, like Florida’s law, requires the criminal to overcome the victim’s resistance.

It used to be mildly surprising when Justice Breyer voted against criminal defendants, but that is the norm now.  He is among the worst justices on criminal justice issues.  In this case, one friend put it this way:  Breyer literally snatched victory from Stokeling's hands, violently.

This case is a pretty good example of how Scalia's death really affected the Court on criminal justice issues.  Scalia wrote the Johnson decision on which Stokeling's argument was based.  He likely would have sided with the defense here, where his replacement sided with the government.

Congrats to Robert Luck (updated with pictures)

This morning Gov. DeSantis will appoint Robert Luck to the Florida Supreme Court.  Luck currently serves on the 3rd DCA and was an AUSA in this District before that.  He will serve with another former AUSA and former 3rd DCA judge, Barbara Lagoa.

Luck is 39 and after graduating from UF law school, clerked for Ed Carnes on the 11th Circuit.

Congrats to Robert Luck!

UPDATE — here are some pictures from the swearing in, where newly appointed Florida Supreme Court Justice Barbara Lagoa swore in Robert Luck:

Congrats to Robert Watson

Former AUSA and Kobre Kim partner Robert Watson will be joining the county bench on Monday. His appointment was one of Gov. Scott's last actions on Monday. Robert is a friend of the blog and we wish him well.  

Barbara Lagoa named to Florida Supreme Court

Really cool news ... former SDFLA AUSA, current 3rd DCA judge, and local Miamian Barbara Lagoa has been named to the Florida Supreme Court.  She’s a really good person and I know her family (including her husband Paul Huck, Jr., her three girls, and her father-in-law Paul Huck, Sr.) is very proud.

More prosecutorial misconduct...

...and yet again, another court finds no consequences.

The numerous instances of prosecutorial misconduct have been well-documented in this district (and around the country). Again and again, there have been no consequences for the prosecutors who have engaged in the misconduct or in the cases in which the misconduct occurred.

Another example is found in this unpublished opinion from the 11th Circuit, United States v. Foster.

In Foster, the district court found that there was insufficient evidence to support the jury’s verdict and granted a post-trial Rule 29 motion because the defendant withdrew from the conspiracy. The 11th Circuit reversed and reinstated the jury’s verdict. In Foster’s second appeal, decided today, the 11th Circuit found quite a bit of prosecutorial misconduct (without naming the prosecutor) in how it cross-examined a defense witness that was central to the withdrawal defense. Nevertheless, the court found that the misconduct was harmless:

On balance, we conclude that the prosecutor’s improper comments did not prejudicially affect Ms. Foster’s substantial right to a withdrawal defense. There is no doubt that Mr. Danzig supported Ms. Foster’s withdrawal defense; he testified that she refused to cooperate with his internal investigation of Hollywood Pavilion when he called her in 2008.

But hold on, the case was close enough that the district judge found that — without a finding of misconduct — that the evidence was insufficient.  So more misconduct and nothing happens.  No consequences for the prosecutor.  And the conviction remains intact.  I understand that people make mistakes and that generally we should give others the benefit of the doubt.  But I wonder how a defense attorney would be treated if he or she did the same thing.  Or better yet, how do judges treat defendants who ask for second chances?  If we want the misconduct to stop, courts need to start taking some action — dismiss cases, exclude evidence, and so on.  Otherwise, it will just keep happening over and over again.

Welcome Back!

It’s been a quiet two weeks in the District, but now it’s back to work. I hope everyone had a happy holiday break.

Let’s start off with the new state prosecutors who have been elected around the country. They haven’t gotten a ton of press but they are making lots of important changes. Here’s a story from St. Louis:

On his second day in office, St. Louis County Prosecutor Wesley Bell fired the veteran assistant prosecutor Kathi Alizadeh, who was primarily responsible for presenting evidence to the grand jury that declined to indict a Ferguson police officer in the 2014 shooting death of Michael Brown.

Bell also issued new policies, such as no longer prosecuting marijuana possession and failure to pay child support cases.

***

The policy changes issued Wednesday included:

• No longer prosecuting marijuana possession cases of fewer than 100 grams. Prosecution of more than 100 grams will be pursued only if evidence suggests the sale or distribution of marijuana. (St. Louis Circuit Attorney Kim Gardner announced in June that possession of fewer than 100 grams would not be prosecuted unless there are aggravating circumstances.)

• Not prosecuting people who fail to pay child support. Current cases will not be dropped, however; they will be on hold. Not seeking to revoke probation solely on the basis of failure to pay child support.

• Not seeking charges against those who fail to pay restitution without a court order establishing someone’s “willful nonpayment” of child support.

• Not requesting cash bail on misdemeanor cases; issuing summonses instead of warrants on class D and E felony cases.

• Not seeking to “overcharge” defendants “to pressure the accused to admit guilt.” Prosecutors are barred from adding more counts to increase the range of punishment or threatening to route cases back to a grand jury if a defendant has exercised his or her pretrial constitutional rights.

• Evaluating a defendant’s “prior conditions of release when there has been a failure to appear on an open case” and not asking for cash bail if there is no evidence someone has tried to elude police or used an alias “in a police encounter.”

• Requiring prosecutors to share “the entire contents” of a criminal case file to the defense except for work product to fulfill Supreme Court rules for disclosing evidence.

• Barring prosecutors from threatening witnesses “in an effort to force them to participate in prosecutions.”

Some really important and positive changes here. Kudos to Bell and the other new District Attorneys around the country implementing change. Here’s to 2019.

Happy New Year from the SDFLA Blog

Best wishes headed into 2019!

It’s been slow going over the break, but the blog will be back in action next week.

Happy new year!

Judge Ungaro rules for BuzzFeed

Details here:

A district court judge ended a two-year battle over the Steele dossier Wednesday, ruling on the side of press freedom and the online news outlet BuzzFeed.

Published in January 2017, the now well-known dossier was a 35-page collection of memos with “unverified, and potentially unverifiable allegations” about President Trump and Russian interference in the 2016 presidential election, according to court filings.

The dossier claimed at one point that Russian Internet entrepreneur Aleksej Gubarev’s companies, Webzilla and XBT Holding, played a role aiding the Russian government’s effort to hack documents from Democratic Party officials.

Gubarev filed a lawsuit in February 2017 alleging his reputation had been damaged by false statements included in the dossier. In addition to BuzzFeed, Gubarev sued its author, former British spy Christopher Steele, who had turned the reports over to researchers working on behalf of Hillary Clinton’s presidential campaign.

On Wednesday, U.S. District Court Judge Ursula Ungaro for the Southern District of Florida held that the dossier dealt with a matter of public concern and reporting the details of an ongoing government investigation was made in the public interest.

“The press acts as the agent of the public, gathering and compiling diffuse information in the public domain. The press also provides the public with the information it needs to exercise oversight of the government and with information concerning the public welfare,” she wrote in the opinion, noting that the “fair report privilege” exists to protect the press in its watchdog efforts.

Roy Black represented BuzzFeed. Here is the order.

In other news, Magistrate Judge Reinhart has this interesting order on pen registers. The intro:

This matter came before the Court on a sealed Application by the Department of Justice,
pursuant to 18 U.S.C. §§ 3122 and 3123, for an order directing a cellular telephone company to
install a pen register and a trap and trace device (collectively "pen-trap devices") on the cellular phone of a person suspected of being involved in violations of the federal money laundering laws ("the Application"). The undersigned rejected the Application because it requested "that the Court order the service provider identified above and any other person or entity whose assistance may facilitate execution of this Order to notify the applicant and the law enforcement agency identified above of any changes relating to the cell phone number, including changes to
subscriber information, and to provide prior notice to the applicant and the law enforcement
agencies identified above before terminating or changing service to the cell phone number." I
write to explain the basis for my finding that the relevant statutes do not authorize the Court to
impose this duty on the cellular telephone company.

Big news on criminal justice reform

The U.S. criminal justice system has been astray for some time now.  Trials are way down (less than 3% of federal cases go to trial, which is absurd).  And incarceration rates are way up.  We lead the world in prison rates in all the bad ways.

There's lots of blame to go around.  From prosecutors, to guidelines, to the trial tax, to judges, to a culture of awfully high sentences.  But the Senate -- on a bipartisan basis -- stepped in today (with a nudge from Trump) and passed what the New York Times is calling the most substantial changes in a generation to federal prison and sentencing laws.  "The First Step Act" is expected to be signed into law shortly.  Some call it "Baby Steps" and it certainly doesn't fix the serious problems in the system.  We still need to stop penalizing defendants after trial and to stop issuing guideline sentences that are not tied to any empirical evidence (like the loss guideline and the drug guideline).  We need prosecutors and probation officers to stop asking for insanely high sentences for everyone except cooperators. And to use some discretion on who and what should be charged. 

Obviously not all prosecutors do this, and there are a lot of well-meaning folks in the system, but there is still a culture of incarceration insanity here and around the country. It needs to change.

The Senate and President Trump should be commended on taking this first, albeit small, step.  Here are some of the changes:

Many of the changes adopted by the Senate and embraced by Mr. Trump are modeled after successful initiatives at the state level intended to reduce the costs and improve the outcomes of the criminal justice system. Congress’s action would not directly affect state prisons, where the majority of the country’s offenders are incarcerated, but proponents believe they could spur more states to change their laws.

Once signed into law, thousands of inmates will be eligible for immediate sentencing reductions and expanded early-release programs. Going forward, the effect will grow as thousands of new offenders receive reduced sentences and enter a changed prison system.

***

Broadly speaking, the First Step Act makes heavy investments in a package of incentives and new programs intended to improve prison conditions and better prepare low-risk prisoners for re-entry into their communities.
By participating in the programs, eligible prisoners can earn time credits to reduce their sentence or enter “prerelease custody,” such as home confinement. In recent weeks, conservative senators and law enforcement groups successfully pushed to limit some violent offenders from eligibility, including fentanyl traffickers.

The legislation would also prohibit the shackling of pregnant inmates and the use of solitary confinement for juveniles in almost all cases. The Bureau of Prisons would be required to place prisoners in facilities close to their homes, if possible.

In all, it includes four changes to federal sentencing laws. One would shorten mandatory minimum sentences for some nonviolent drug offenses, including lowering the mandatory “three strikes” penalty from life in prison to 25 years. Another would provide judges greater liberty to use so-called safety valves to go around mandatory minimums in some cases. The bill would also clarify that the so-called stacking mechanism making it a federal crime to possess a firearm while committing another crime, like a drug offense, should apply only to individuals who have previously been convicted.

Finally, the bill would allow offenders sentenced before a 2010 reduction in the sentencing disparity between crack and powder cocaine to petition for their cases to be re-evaluated. The provision could alter the sentences of several thousand drug offenders serving lengthy sentences for crack-cocaine offenses. That would help many African-American offenders who were disproportionately punished for crack dealing while white drug dealers got off easier for selling powder cocaine.

And here's your President:

America is the greatest Country in the world and my job is to fight for ALL citizens, even those who have made mistakes. Congratulations to the Senate on the bi-partisan passing of a historic Criminal Justice Reform Bill....

— Donald J. Trump (@realDonaldTrump) December 19, 2018

"[My health] is fine [and] my ribs are almost repaired."

That was Justice Ginsburg over the weekend.  That's good news.  More:

Supreme Court Justice Ruth Bader Ginsburg said her ribs are "almost repaired" Saturday after breaking them in a November fall.
Ginsburg reassured a crowd gathered at an event in her honor at the Museum of the City of New York, according to CNN.
"[My health] is fine [and] my ribs are almost repaired," she said.
Ginsburg also said that, as of yesterday, she was able to do her whole workout routine with her personal trainer.
The 85-year-old justice cracked three ribs in a fall at her office on Nov. 7.
However, she was back working in her office and working out just days later.
Ginsburg has not missed a day of oral arguments in her 25 years on the court, despite cracking two ribs in 2012 and surviving two instances of cancer.

After her fall last month, supporters nationwide jokingly offered to donate their ribs to her, highlighting concerns that she may not serve the remaining five years that she promised.

Angela E. Noble named new SDFLA Clerk of Court

The Court's notice is here.

The Judges of the United States District Court, Southern District of Florida, announced today the appointment of Angela E. Noble as Court Administrator ∙ Clerk of Court, effective January 1, 2019. The current appointment occurs after a nation-wide search that culminated in her selection among a broad field of diverse and highly qualified applicants.
Ms. Noble has over 18 years of experience with the U.S. Courts, including serving the last three years as Northern Division Operations Manager. She is a graduate of New York Law School and City University of New York, John Jay College. During her tenure with the Southern District, she previously served as Courtroom Deputy to United States District Judge Donald M. Middlebrooks. She also practiced law as an Assistant Attorney General with the Criminal Appeals and Capital Collateral Division of the state of Florida’s Office of Attorney General in West Palm Beach, Florida, focusing on felony criminal appeals and collateral matters, including federal habeas corpus petitions and civil rights claims.
Ms. Noble has experience in virtually all areas of the Clerk’s Office, including operations/docketing, the Court’s Case Management/Electronic Case Files (CM/ECF) system, and administrative functions. She has served as a trainer and presenter in many Continuing Legal Education sessions and conferences focusing on courtroom technology. Ms. Noble has been a leader in the Operations Department for the Southern District’s Clerk’s Office, and she currently heads the Clerk’s Office’s participation in the District’s tri-agency Leadership Development Program.
The Judges of the Court sincerely appreciate Ms. Noble’s dedication and commitment to the continued success of the Clerk’s Office. They enthusiastically approved the appointment at a regularly scheduled Judges’ Meeting in October, and have expressed their utmost support and confidence in Court Administrator Noble’s abilities to lead the Clerk’s Office over the coming years.

Hackers spoofing 11th Circuit...

Below is the notice from the court. I feel like there’s a joke in there somewhere.

Notice Regarding Spoofed Calls

Wednesday, December 12, 2018
Members of the public have received calls from individuals posing as "agents" working for or with the Eleventh Circuit Court of Appeals. The callers then ask the recipient to pay a monetary fine. While the recipient's caller ID may show that the call comes from the Clerk's Office main phone number (404-335-6100), these calls are "spoofed" and are not from the Court of Appeals. The Eleventh Circuit Court of Appeals does not call members of the public and ask them to pay a fine over the phone. If you receive one of these calls please hang up and contact the FBI Atlanta Field Office at 770-216-3000.

First steps

Mitch McConnell will bring the First Step Act to a Senate vote.  I like the title because this bill doesn’t give a whole lot of relief, but it’s a nice first step in the right direction for criminal justice reform.  It will pass by a huge number.  From USA Today:

The measure would give judges more discretion in sentencing offenders for nonviolent crimes, particularly drug offenss, and bolster rehabilitation programs for former prisoners. It would also call for placing federal prisoners closer to home – no more than 500 miles – so families could visit more often.

Trump welcomed McConnell's announcement.

“Looks like it's going to be passing, hopefully – famous last words,'' Trump said at the White House. "It’s really something we're all very proud of. Tremendous support from Republicans and tremendous support from Democrats. Lot of years they've been waiting for it.”

William Barr to be Trump's Attorney General

Out with the old and in with the old.

Although Trump is calling for criminal justice reform and even pushed McConnell on Twitter for a vote on the First Step Act, Barr is an old-school criminal justice thinker.  Here's the Brennan Center for Justice explaining that he is similar (if not worse) than Sessions:

Barr’s record suggests he might also be opposed to the FIRST STEP Act, the current bipartisan bill on criminal justice reform. If passed, the bill would shorten some unnecessarily long federal prison sentences and enforce rules that would improve conditions for people currently in prison. Barr’s potential opposition to the FIRST STEP Act would put him at odds with President Trump and the majority of Republicans in the Senate, who support the bill.
Barr’s previous stint as attorney general also included troubling positions on criminal justice issues. During his tenure in the Bush administration, Barr helped devise federal policies that furthered mass incarceration and the war on drugs. Notably, in 1992, he published a book by the Department of Justice called The Case for More Incarceration, which argued that the country was “incarcerating too few criminals.” After serving as attorney general, Barr led efforts in Virginia to abolish parole in the state, build more prisons, and increase prison sentences by as much as 700 percent.

“Alexander Acosta is being unfairly criticized for his handling of Epstein’s plea deal”

That’s the title of my op-ed in the Miami Herald this morning.  It starts like this:

Alexander Acosta is arguably President Trump’s most successful cabinet member. For starters, job numbers and unemployment rates are breaking records under his supervision as Labor Secretary. And particularly noteworthy for this administration, Acosta has been scandal free. There have been no Twitter fights (like with Jeff Sessions), no misuse of government funds (like with six other cabinet members), or other similar issues (like with Louise Linton going off on Instagram).Instead, Acosta has done what he has always done — kept his head down, worked hard, and gotten good results.Because of his successes, there had been some whispers that Acosta was being considered, albeit as a long-shot, for Attorney General.Acosta, who has dedicated his life to public service (from the civil rights division to U.S. Attorney to dean of Florida International University School of Law to his current position in the cabinet), would have been an incredible choice.Then last week, the Miami Herald retold the story of Jeffrey Epstein’s plea deal from over 10 years ago, when Secretary Acosta was U.S. Attorney Acosta. Although Epstein was required to plead guilty, register as a sex offender, pay restitution and go to state prison, there are many — including the New York Times, Miami Herald, and others — who are calling for Congress to investigate Acosta and force him out, equating Acosta’s approval of the deal to Epstein’s actions.Although it is fair to have an honest disagreement about the Epstein plea agreement, the attacks on Acosta are not justified. As for the merits of the agreement, it is important to remember that the federal government only prosecutes federal crimes.

I can’t republish the whole thing here, so please click on the link above and let me know your thoughts.  

Read more here: https://www.miamiherald.com/opinion/op-ed/article222705765.html#storylink=cpy

Read more here: https://www.miamiherald.com/opinion/op-ed/article222705765.html#storylink=cpy

Federal Courts in SDFLA are closed on Wednesday 12/5

The notice is here.

Big Double Jeopardy case in Supreme Court this week

It’s Gamble v. U.S. and it comes out of the 11th Circuit (a 3-page unpublished opinion!). The issue is whether the Court should overrule the “separate sovereigns” exception to the Double Jeopardy Clause.

The separate sovereign doctrine — that different sovereigns, like the state and the feds could prosecute someone for the same crime — has bothered me for a long time and really makes no sense.

As usual, SCOTUSblog has lots of background and coverage.  Here is some summary of the arguments:

In the Supreme Court, the federal government insists that the separate sovereigns doctrine should remain in place. The text of the double jeopardy clause bars successive prosecution and punishment for the same offense, the government emphasizes, not for the same conduct. And when it uses the term “offence,” the government continues, the double jeopardy clause is referring to the violation of a law. The same conduct can violate two different sovereigns’ laws and constitute two different offenses, which each sovereign can then punish and prosecute separately. If the Framers had wanted the clause to apply more broadly, the government adds, they would have used the term “conduct” or “acts” rather than “offence.”

Gamble offers a very different interpretation of the text, telling the justices that nothing in the text points to any exceptions to the double jeopardy clause. Instead, he stresses, the text of the clause bars prosecution of the “same offence,” without suggesting that two prosecutions for the same offense would be acceptable as long as they are prosecuted by two separate sovereigns. To the contrary, Gamble observes, Congress considered but rejected an exception that would have allowed the federal government to prosecute a defendant even after he’d been convicted for the same offense under state law.

Gamble contends that the separate sovereigns doctrine is also inconsistent with the purpose of the double jeopardy clause. Permitting two consecutive prosecutions for the same conduct on the ground that prosecutions are brought by two different sovereigns, Gamble argues, “hardly serves the deeply rooted principles of finality and fairness the Clause was designed to protect,” particularly when it would still require two trials and could potentially lead to double punishments.

Gamble tells the justices that the principle of adhering to prior decisions – known as stare decisis – should not stand in way of overruling the separate sovereigns doctrine. First, he says, the doctrine “has long been questioned by members of this Court, lower-court jurists, and legal scholars” – including by both Justice Ruth Bader Ginsburg and Justice Clarence Thomas.

There has been lots of media coverage of the case because of what it might mean for a Mueller pardon and for a prosecution of Trump. Here’s the WAPO on the case:

But likely to be watching the proceedings closely will be those concerned about a big-time felon, Republican consultant and former Trump campaign chairman Paul Manafort, who was prosecuted by special counsel Robert S. Mueller III for tax fraud.

With President Trump keeping alive prospects that he might pardon Manafort, Gamble v. United States might be redubbed Manafort v. Mueller, joked Thomas C. Goldstein, an attorney who regularly argues before the Supreme Court.

The outcome in the case could affect nascent plans by states to prosecute Manafort under their own tax evasion laws — New York, in particular, has expressed interest — should Trump pardon Manafort on his federal convictions.

Witnesses do not belong to one side or the other

I use the current situation with Mueller, Manafort, and Trump as a vehicle to discuss the issue this morning in The Hill:

There has been a lot of hand-wringing over the recent revelation that Paul Manafort’s lawyers have been speaking to Donald Trump’s lawyers. Pundits have said breathlessly that such conduct is obstructive and that only mob lawyers engage in such behavior. Nothing could be further from the truth — by itself, there is nothing obstructive about the lawyers speaking with each other and sharing information.
Witnesses do not belong to one side or the other.
Paul Manafort has pleaded guilty and as part of his plea agreement has promised to answer Mueller’s questions truthfully. Mueller did not ask Manafort to keep those questions and answers secret, nor could he make such a request. This situation comes up frequently in federal criminal cases outside of mob cases. In one common scenario, employees who are questioned by federal authorities are often asked by their employers to share information and do so all of the time. There is nothing nefarious or obstructive about this. Several courts have explained that it is improper for a prosecutor to tell a government witness not to talk to the defense.

"Mueller should not get to decide whether Manafort is lying"

That's the title of my latest piece in The Hill.  The intro:

Prosecutors call them cooperating witnesses. The rest of the criminal justice system calls them rats, snitches, chivatos, stool pigeons, informants and sapos, just to name a few of the terms. The federal criminal justice system is built on these witnesses. So long as they tell “the truth,” they receive enormous reductions in their sentences. In some cases, sentences for defendants convicted after trial are 500 percent longer than sentences received by those who plead and cooperate with the government.
So it’s no surprise that trials have dropped from almost 20 percent of all cases in the 1980s to less than 3 percent today (with most all the rest of the cases resolving in a plea).  Like the days of Salem witches, even the innocent are racing to plead guilty and to tell the prosecutors what they want to hear in the hopes of avoiding monstrous sentences.
There are many fundamental problems with such a system. One such issue is demonstrated in the Paul Manafort case, where the prosecution team just filed a status report with the court explaining that they have concluded that Manafort is not fulfilling his end of the plea agreement because, they say, he has lied to them during interviews (or as they are called in the system, debriefings). Manafort has said he has answered all of their questions truthfully. This may or may not be true.

Trump bashes 9th Circuit for reversal rate...

...but you know which Circuit is reversed more often?

That's right, the 11th Circuit. (82% for the 11th vs. 80% for the 9th over the past 5 Terms).

It's all silly, of course. The reversal rate is pretty consistent across the circuits as the Supreme Court generally takes cases to reverse, not to affirm.

And the 9th Circuit is by far the largest Circuit with the most cases, so on a pure number-of-cases basis, it's going to lead the pack.

Justice Roberts joined the fray with this retort about an independent judiciary.

The Washington Post then roasted Trump explaining that judges on both sides of the aisle have been ruling against him, again and again:

[Roberts] could have noted that the number of rulings against his administration’s actions now stands somewhere in the range of about 40 to 50, according to a rough estimate by The Washington Post. Norman Siegel, writing at Law.com in January, counted 37 “major” losses, and that was in January, before numerous other rulings that thwarted Trump administration decisions.

And he could have observed that all of this is a bit of a surprise. All presidents lose cases. But a losing streak of this magnitude for a president is a new phenomenon.

Despite the endless decades of rhetoric about “judicial activism,” judges at the district court level are generally a timid lot when it comes to confronting presidents. Historically, they are inclined to do what former federal judge Nancy Gertner calls “duck, avoid and evade.”

“Now,” she wrote in the April issue of NYU Law Review, “I am not so certain. . . . Perhaps ‘judging in a time of Trump’ ” is different, she wrote. “It is one thing to ‘duck, avoid and evade’ when you believe that official actors are acting more or less within constitutional bounds. It is another to do so when you are concerned about real abuse of power.”

***
It was U.S. District Court Judge Dana M. Sabraw, for example, a California jurist appointed by President George W. Bush, who ripped the administration repeatedly for its family separation debacle.

And how could Trump forget that it was his own appointee, Timothy J. Kelly of the U.S. District Court for the District of Columbia, who slapped down the effort to ban CNN’s Jim Acosta from the White House.

***
One of the toughest dressings-down came from a decision blocking Trump’s “sanctuary cities” crackdown written by Judge Ilana Rovner, appointed by President George H.W. Bush to the U.S. Court of Appeals for the 7th Circuit, based in Chicago. In a decision joined by a Gerald Ford appointee and a Reagan appointee upholding a lower-court ruling by a Reagan appointee, she lit into the Trump administration for assuming powers to withhold money not granted to it by Congress to punish states and cities that didn’t go along with efforts to round up those in the country illegally.

Her message to Trump and then-Attorney General Jeff Sessions, translated, was basically, who do you think you are?

Our role in this case is not to assess the optimal immigration policies for our country. . . . The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescense of elected legislators, the check against tyranny is forsaken.

Gorsuch and Sotomayor channel Justice Scalia

From ScotusBlog:

But one criminal case on which they did act today, involving the Sixth Amendment right to confront the prosecution’s witnesses in a criminal trial, drew a dissent from the unlikely pairing of Justices Neil Gorsuch and Sonia Sotomayor.

Sotomayor joined Gorsuch’s dissent from the denial of review in Stuart v. Alabama. The defendant in the case, Vanessa Stuart (who has since changed her name to Vanessa American Horse), was charged with driving under the influence and criminally negligent homicide after she rear-ended Tiffany Howell’s car, causing Howell to strike a tree and die.

At Stuart’s trial, prosecutors introduced lab reports as evidence of Stuart’s blood alcohol level. But they did not ask the scientist who signed the lab report to testify. And that omission, Stuart contended, was inconsistent with Bullcoming v. New Mexico, in which the Supreme Court held that introducing a lab report at trial without testimony from the person who prepared the report violates the Sixth Amendment’s confrontation clause, which gives a defendant the right “to be confronted with the witnesses against him.”

The justices turned down Stuart today, over a four-page dissent from Gorsuch, who began by noting that because “cross-examination may be the greatest legal engine ever invented for the discovery of truth, the Constitution promises every person accused of a crime the right to confront his accusers.” “That promise,” Gorsuch continued, “was broken here.”

Gorsuch went on to explain that, although the state court’s errors in Stuart’s case were in his view obvious, they were also understandable, because the Supreme Court’s opinions on the confrontation clause – and in particular a 2012 case in which no rule was able to garner a majority of the votes – “have sown confusion.” He (and Sotomayor) would have granted review to clarify some of the issues surrounding cases like Stuart’s.

In other news, Willie Falcon was deported... but not to Cuba.  He was sent to the DR.  From the Miami Herald:

One of South Florida’s most infamous cocaine cowboys — Willie Falcon — has been deported to the Dominican Republic after his bid to stay in the United States failed following his 20-year prison sentence on a drug-related money-laundering conviction.

Falcon, 62, was deported earlier this month because he was a convicted felon without U.S. citizenship. He had been held in Louisiana since June 2017 by immigration authorities who at first sought to deport him to his native Cuba.

But Falcon, who recently lost his final federal court appeal to block his deportation, won’t be sent to Cuba as he and his Miami family members initially feared, according to federal officials. The Dominican Republic government agreed to accept Falcon as a resident.

Monday news and notes

1.  Donald Trump made a joke about Justice Scalia’s wife being busy. Via USA Today:

Amid introducing the awardees of the nation's highest civilian honor, some online noticed the president seemed to include a joke about Scalia's virility.

Trump welcomed Scalia's wife, Maureen, and their nine children who attended the White House ceremony. After reading the names of each of the nine children, Trump seemed to slip in a joke about the couple's sex life.

"You were very busy. Wow," the president said, causing those in the room to chuckle. "Wow. I always knew I liked him."

2.  Stephen Colbert interviews Justice Sotomayor. Here it is on YouTube.

3.  Trump’s nominee to fill Justice Kavanaugh’s spot on the D.C. Circuit is a defender of dwarf tossing.  From MotherJones:  “Add to that list Neomi Rao, Trump’s nominee to replace Brett Kavanaugh on the powerful DC Circuit, who has written at least two law review articles and a blog post in which she defended dwarf-tossing.”

4.   The Florida Supreme Court says that judges and lawyers can be Facebook friends.  Here’s the Law.com article.

D’oh! Cut and paste job goes bad... charges against Assange revealed in unrelated court filing.

The Washington Post has the story, which is every lawyer’s nightmare when they hit the file button on cm/ecf:

WikiLeaks founder Julian Assange has been charged under seal, prosecutors inadvertently revealed in a recently unsealed court filing — a development that could significantly advance the probe into Russian interference in the 2016 election and have major implications for those who publish government secrets.
The disclosure came in a filing in a case unrelated to Assange. Assistant U.S. Attorney Kellen S. Dwyer, urging a judge to keep the matter sealed, wrote that “due to the sophistication of the defendant and the publicity surrounding the case, no other procedure is likely to keep confidential the fact that Assange has been charged.” Later, Dwyer wrote the charges would “need to remain sealed until Assange is arrested.”
Dwyer is also assigned to the WikiLeaks case. People familiar with the matter said what Dwyer was disclosing was true, but unintentional.

Joshua Stueve, a spokesman for the U.S. attorney’s office in the Eastern District of Virginia, said, “The court filing was made in error. That was not the intended name for this filing.”

Miami AUSA opens in El Chapo case

It’s AUSA Adam Fels for the prosecution.  He opened this way: “Money, drugs, murder and a vast global narcotics trafficking organization — that is what this case is about, and that is what the evidence in this case will prove.”  More from the NY Post:

Opening statements finally began Tuesday in the trial for Joaquin “El Chapo” Guzman — with prosecutors describing some of the notorious accused drug lord’s most heinous acts for jurors, along with his weapons of choice.

“Some of his favorites include a diamond-encrusted handgun with his initials on it and a gold-plated AK-47,” said federal prosecutor Adam Fels.

He recounted how Guzman allegedly ordered hits on his own loved ones and used a small private army — consisting of hundreds of men “armed with assault rifles” — to take out his rivals.

For the defense:

Guzman’s defense team, meanwhile, claimed during its opening statements that prosecutors were trying to use him as a “scapegoat.”

“There’s another side to this story, an uglier side,” said attorney Jeffrey Lichtman. “This is a case that will require you to throw out much of what you were taught.”

According to Lichtman, the real criminal mastermind is Ismael “El Mayo” Zambada — current leader of the infamous Sinaloa Cartel. The lawyer described the 70-year-old former poppy-field worker as “the biggest drug trafficker in Mexico.”

Chuck Grassley and George Will (and lots of other GOPers) think we need sentencing reform

Here’s The NY Times on Grassley’s push for federal sentencing reform, which now has a real shot of passing:

A bipartisan group of senators has reached a deal on the most substantial rewrite of the nation’s sentencing and prison laws in a generation, giving judges more latitude to sidestep mandatory minimum sentences and easing drug sentences that have incarcerated African-Americans at much higher rates than white offenders.

The lawmakers believe they can get the measure to President Trump during the final weeks of the year, if the president embraces it.

The compromise would eliminate the so-called stacking regulation that makes it a federal crime to possess a firearm while committing another crime, like a drug offense; expand the “drug safety valve” allowing judges to sidestep mandatory minimums for nonviolent drug offenders; and shorten mandatory minimum sentences for nonviolent drug offenders, according to draft text of the bill obtained by The New York Times.

George Will has this piece, which addresses a state sentence of life for a juvenile:

Parents who have raised sons understand that civilization’s primary task is to civilize adolescent males, a task that is difficult for many reasons, some of which neuroscience explains. The part of the brain that stimulates anger and aggression is larger in males than in females (for evolutionary, meaning adaptive, reasons). And the part that restrains anger is smaller in males. The Supreme Court has noted that adolescent brain anatomy can cause “transient rashness, proclivity for risk, and inability to assess consequences,” thereby diminishing “moral culpability” and, more important, enhancing “the prospect that, as the years go by,” offenders’ “deficiencies will be reformed.” Hence “a lifetime in prison is a disproportionate sentence for all but the rarest of children, those whose crimes reflect ‘irreparable corruption.’ ”

Judges are supposed to be a check on the executive branch. I really don’t understand why sentences aren’t much lower. So many judges have become accustomed to just following the prosecutor/probation officer/sentencing guidelines, that we have one of the highest incarceration rates in the world. It’s absurd. It will be interesting to see how the new crop of Trump judges sentence defendants, especially non-violent first time offenders.

Will Alex Acosta be named Attorney General?

Marc Caputo floats the idea here:

WHAT ABOUT ACOSTA? — It’s well-known that President Donald Trump prizes loyalty and loves guys with Harvard degrees. By those standards, Alex Acosta fits the bill for attorney general. Acosta has also already survived Senate confirmation, too, and serves as Trump’s only Hispanic secretary, for labor. A son of Cuban exiles, Acosta has prosecutorial experience, having served as the U.S. Attorney for the Southern District of Florida before becoming dean of Florida International University. One possible blemish on Acosta’s record: His decision to give accused pedophile billionaire Jeffrey Epstein what many saw as a sweetheart deal.

Acosta would be a fantastic choice.

Also listed in the short list is Pam Bondi.

Election impact on SDFLA

With the Republicans picking up seats in the Senate and Rick Scott flipping Florida to a two-GOP Senate state, it will be that much easier for Trump to push his judiciary picks.  The three pending district court judges should be confirmed shortly.  And it will be interesting to see how quickly those two open seats get nominees.

Florida amended its constitution to allow for restoration of felon voting rights.  Republicans aren't happy about that one and are promising litigation. But that will likely be in state court. 

Two House seats in the SDFLA flipped blue (Shalala and Mucarsel-Powell).  Barzee-Flores couldn't flip the third seat though.

In non-election news, here's a federal judge who allowed jury nullification arguments in a child porn prosecution:

"This is a shocking case. This is a case that calls for jury nullification."
Many have had similar reactions when confronting cases involving authorities running roughshod over people with bad laws, punitive sentences, and ill-considered prosecutions. But this time, the person invoking jury nullification was a federal judge—District Judge Stefan R. Underhill of the District of Connecticut—and he spoke in court about a case over which he presided.
The prosecution that shocked Underhill involves Yehudi Manzano, a 30-something man charged with producing and transporting child pornography after saving, and then deleting, a video of his teenage sex partner to and from his own phone and its associated Google cloud account. "The only people who ever saw it were the guy who made it, the girl who was in it, and the federal agents," Norman Pattis, Manzano's attorney, told me.

But that, prosecutors say in the indictment, was enough for the federal government to proceed with charges under the assumption that Manzano acted "knowing and having reason to know that: such visual depiction would be transported and transmitted using any means and facility of interstate and foreign commerce." And that's important, because the mandatory minimum sentence under federal law for recording video of sex with an underage partner is 15 years.
That draconian sentence—independent of what was in store in the entirely separate state trial for sex with a minor—was too much for Judge Underhill. "I am absolutely stunned that this case, with a 15-year mandatory minimum, has been brought by the government," he said in court. "I am going to be allowed no discretion at sentencing to consider the seriousness of this conduct, and it is extremely unfortunate that the power of the government has been used in this way, to what end I'm not sure."
Judge Underhill acknowledged that he's not allowed to encourage jury nullification, but "if evidence comes in about the length of the sentence, or if Mr. Pattis chooses to argue, I do not feel I can preclude that. I don't feel I'm required to preclude that. And I think justice requires that I permit that."
The judge's appeal to jury nullification as a remedy for runaway prosecution didn't come out of the blue. Defense counsel and prosecutors had already sparred over the case's rather tenuous connection to interstate commerce, by which the federal government claimed jurisdiction.
"Apparently, the mere fact that the recording equipment was manufactured outside Connecticut is sufficient to meet the interstate commerce requirement of the statute," Judge Underhill noted in surprise. They also tussled over the extent to which jurors should be informed of the long years in prison that awaited Manzano upon conviction.
"Juries exist for a reason," Pattis argued in court. "They stand between the government and the accused, and they provide the accused with an opportunity to hold the government to its burden of proof. And in certain trials in our history, juries have done more than that. They've said the law is wrong, and we, the people, say it's wrong."
In response to that, Neeraj N. Patel bluntly told the court on behalf of the U.S. Attorney's office, "you should take steps to prevent jury nullification and not inform the jury of the sentencing consequences."

I'm not sure why the judge did not just Rule 29 the case after the government rested.  There's no appeal and it's a way for the judiciary to check the executive on absurd prosecutions.