District Judge rules border search of cell phone must be based on reasonable suspicion

Unfortunately this major decision isn't from our District. It's from the District of Massachusetts. Here's the ruling.

From Forbes:

A Boston federal court ruled Tuesday that U.S. federal agents can’t conduct “suspicionless” searches of international travelers’ smartphones and laptops at the border and other ports of entry, a decision hailed by the American Civil Liberties Union (ACLU) as a “major victory for privacy rights.”

• In a 48-page decision, U.S. district judge Denise Casper ruled that border officials need justifiable reasons to search a person’s electronic devices, which should be balanced against the privacy interests of travelers.
• According to Reuters, Casper’s ruling is a higher standard than current U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) policies.
• Casper also ruled that the CBP and ICE policies violate the Fourth Amendment, which provides people protection from unreasonable searches and seizures.
• Agents, however, are still not required to obtain search warrants to examine phones and laptops with reasonable suspicion. 
• The ACLU was representing the case’s 11 plaintiffs; lawyer Esha Bhandari said the decision “significantly advances Fourth Amendment protections for the millions of international travelers who enter the United States every year.”

“Judge, may I address the court. We’re ready to go.”

That was U.S. Attorney Ariana Fajardo Orshan appearing in state county court. From the Miami Herald:

U.S. Attorney Ariana Fajardo Orshan, a former Miami-Dade judge, made a recent return to the state courthouse to watch a trial — involving a minor car crash.

Fajado appeared recently in support of her niece, who was the victim in a fender-bender accident in West Miami-Dade. Fajardo never identified herself on the record nor said she was the top federal prosecutor in South Florida.

But when the judge called the case, Fajardo did speak up, schooling the courtroom’s young prosecutors who appeared to be waffling on whether to proceed to trial against the woman who hit her niece’s car.

“Judge, may I address the court. We’re ready to go,” Fajardo said, according to the audio of the Oct. 22 hearing. “The issue is restitution. I told them you can reserve restitution, per statute, for 60 days to produce the deductible. They seem to think they can’t proceed forward. So I’m here on behalf of my niece, who has now missed school all day. I’m not understanding why we can’t go forward without restitution.”

Prosecutors fighting against First Step Act

That’s according to the Washington Post in this article:

The five former inmates assembled on the White House stage weren’t scheduled to speak, but President Trump couldn’t help himself. “Where’s Gregory? Greg?” he said. “Come on, get up here!”
From behind the president, Gregory Allen saluted and then made his way to the microphone. “Two months ago, I was in a prison cell, and I’m in the White House,” declared Allen, a Florida resident who had been freed under Trump’s signature criminal justice legislation. “That’s continuing to make America great again!”
The gathering in April was a triumphant celebration of the First Step Act, the most sweeping overhaul of the federal criminal justice system in a generation. Since its passage nearly a year ago, the law has led to the release of more than 3,000 inmates — including Allen, who was convicted of cocaine trafficking in 2001.
The Justice Department, though, had never wanted to let Allen out of prison. In fact, even as he and Trump shared a joyous embrace on television, federal prosecutors were trying to persuade a judge to put Allen back behind bars.
***
“DOJ is pushing against the will of the people, the will of Congress, the will of the president,” said Holly Harris, a conservative activist and leader of the Justice Action Network who worked with Congress and the White House to pass the law.
***
The First Step Act aims to lessen long-standing disparities in punishment for nonviolent drug offenses involving crack cocaine. Having five grams of crack, a form of cocaine that is more common among black drug users, used to carry the same mandatory minimum sentence as having 500 grams of powder cocaine, which is more common among white drug users.
But federal prosecutors are arguing in hundreds of cases that inmates who have applied for this type of relief are ineligible, according to a review of court records and interviews with defense attorneys. In at least half a dozen cases, prosecutors are seeking to reincarcerate offenders who have been released under the First Step Act.

This isn’t just happening in First Step cases. It’s happening across the board at sentencing. Lately, prosecutors have taken a new strategic tact — ask for middle or top of the guidelines in an effort dissuade judges from giving variances. Prosecutors are even doing this — not only opposing variances, but opposing low end sentences — in plea cases. This is done so that judges feel like they are doing the defendant some sort of favor by giving an oppressive low-end guideline sentence. Prosecutors are also asking probation to come back much higher than plea agreements state in an effort to have judges believe that a regular old guideline sentence in the plea agreement is a huge benefit to the defendant. Most judges are rejecting these outrageous tactics. But there are a few judges out there that seem to be moved by these new tactics, refusing to give any variance even for first time, non-violent offenders... which is just horrible.

Happier topics

Let's move on to nicer subjects after the last post, shall we?

It looks like the old Dyer building is on the way to a recovery, courtesy of Miami-Dade College.  From the Miami Herald:

Three years after taking possession of Miami’s grandly historic but long vacant federal building, Miami Dade College is nearing completion on the initial phase of a massive $60 million renovation that will return the 1933 Neoclassical masterpiece to public use.

The public college has wrapped up cleanup work to remove asbestos and mold from the vast former courthouse and post office, which has been shuttered since 2008. Next comes remodeling and restoration, a job expected to take two years, said Miami Dade’s interim president, Rolando Montoya, in an interview.

Once that’s done, the monumental building will house the college’s architecture, interior design and fashion design programs in appropriately splendid surroundings. The college also plans to install flexible-use classrooms, robotics and computer labs, faculty and administrative offices, and a conference center with capacity for 400 people.

“I think this is going to be beautiful,” Montoya said: “The building will be an interesting combination of several historical facilities with some high-tech, very modern facilities. It’s very nice architecturally, this combination.”

But, he added: “It’s a lot that has to be done. The building was in very bad shape.”

The limestone-clad federal building, widely regarded as one of the finest works of architecture in Miami, occupies most of a city block at Northeast First Avenue and Third Street across the street from the college’s Wolfson Campus in downtown Miami. Known in latter years as the David W. Dyer building after a prominent judge, the building is on the National Register of Historic places and is also a city of Miami designated historic landmark.

As part of the renovation, the college will restore the Dyer building’s pièce de résistance, an ornate central courtroom adorned by a mural depicting the role of justice in Florida’s development. The federal General Services Administration meanwhile will do its best to restore the badly deteriorated contemporary abstract frescoes by artist David Novros that grace the building’s interior courtyard, Montoya said.

Judge Moore is really serious about the Bluebook (updated)

Footnote 2:

The Court adopts in part Magistrate Judge Reid’s R&R with the following alterations: the pin cite in the citation on page six, line seven should be “1279” and omit citation to “n.2”; the pin cite in the citation on page seven, line seven should be “1223, n.2”; the case name on page seven, line nine should read: “Goebert v. Lee Cty.”; the quotation on page nine, line six should read: “[The] right must be . . .”; the pin cite in the citation on page nine, line thirteen should be “1121”; the quotation on page thirteen, line eleven should read: “We do not require a case directly on point, but existing precedent . . .”; the pin cite in the citations on page fourteen, lines one and six should be “589–90”; the quotation on page seventeen, line five should read: “Miami-Dade County and/or Public Health Trust”; the quotation on page eighteen, line nineteen should read: “[it] can rise to the level . . .”; the pin cite in the citation on page twenty, line seventeen should be “589–90”; the parenthetical on page twenty-one, line nine should read: “offering extraction over a root canal is not a constitutional violation if an extraction is medically appropriate to remove tooth decay”; the citation on page twenty-seven, lines five to six should read: “219 F.3d 132, 137 (2d Cir. 2000)”; and the citation on page twenty-seven, line nine should read “219 F.3d at 132.” Finally, the Court notes that it does not adopt citations in the R&R that do not conform to The Bluebook: A Uniform System of Citation (Columbia Law Review Ass’n et al. eds., 20th ed. 2015).

Yikes.

Here’s the R&R and the District Order.

Update— both in the comments and in emails/texts, people are criticizing me for posting this public order. I didn’t write the order, of course. This blog is meant to publish news about the District. Lawyers and judges around town are talking about the order. Numerous folks sent it to me. It certainly seems newsworthy. I have personal feelings about the order and who it makes look bad, but I’m not putting those out there. I’ll let you comment on that issue. I just put it out there because it happened.

Breaking Andrew Brasher nominated to the 11th Circuit

As predicted on this blog, President has nominated Andrew Brasher to fill Chief Judge Carnes’ seat.

From the White House release:

The White House
Office of the Press Secretary
FOR IMMEDIATE RELEASE
November 6, 2019

President Donald J. Trump Announces Judicial Nominees

Today, President Donald J. Trump announced his intent to nominate:

Andrew L. Brasher of Alabama, to serve as Circuit Judge on the United States Court of Appeals for the Eleventh Circuit.

Andrew Brasher currently serves as a United States District Judge for the Middle District of Alabama. Before taking the bench in May 2019, Judge Brasher was the Solicitor General of the State of Alabama, where he argued cases before the United States Supreme Court, the United States Court of Appeals for the Eleventh Circuit, and the Alabama Supreme Court. He previously served for several years as the Deputy Solicitor General and practiced in the litigation and white-collar criminal defense practice groups in the Birmingham, Alabama office of Bradley Arant Boult Cummings LLP. Upon graduation from law school, Judge Brasher served as a law clerk to Judge William H. Pryor Jr. of the United States Court of Appeals for the Eleventh Circuit. Judge Brasher earned his B.A., summa cum laude, from Samford University and his J.D., cum laude, from Harvard Law School, where he was a member of the Harvard Law Review.

News & Notes

1. Lots and lots of DUI convictions have been exposed as faulty under this NY Times report regarding the inaccurate breathalyzer tests.

2. Transitions is having its Fall Festival this Thursday, Nov. 7 at 6pm at the Historic Lyric Theatre, 819 NW 2nd Avenue.

3. Are Trump's tax returns headed to the Supreme Court? From Lyle Denniston:

President Donald Trump’s lawyers plan, within the next 10 days, to go to the Supreme Court with a plea to rule – before the Justices’ current term ends this summer – that no court has power to order that his personal and business tax returns be handed over to a state criminal investigation. That appeal follows a unanimous ruling Monday by a federal appeals court in New York City, rejecting the President’s sweeping claim of total immunity to any state probe of his financial affairs.

In its 34-page decision, a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled that the accounting firm that has the Trump personal and business tax records must obey a New York state grand jury subpoena demanding the turnover of eight years of that data, going back to January 2011. The panel stressed that its ruling was narrow and did not settle wide-ranging questions on what kind of legal immunity Trump might have, if the subpoena were aimed at him directly rather than at his accounting firm. (The firm is Mazars USA; it takes no position in the legal fight over Trump’s records.)

Under an agreement reached last month, between the state prosecutor and Trump’s attorneys, a defeat for the President in the appeals court would start the running of a 10-day period for an appeal to the Supreme Court.

Vowing to pursue that appeal, one member of the Trump legal team, Washington, D.C., attorney Jay Sekulow, said in a statement that “the issue raised in this case goes to the heart of our Republic. The constitutional issues are significant.”

Under the terms of the two sides’ agreement, the state prosecutor will make no attempt to enforce the disclosure of the tax records during the ten days that an appeal is being prepared – that is, apparently, by November 14 – and for another 10 days after that while legal papers are being submitted to the Justices by both sides. Trump’s team is also required to ask the Justices to grant review, hear and reach a final decision during the Court’s current term, which is expected to run until late June. If the Justices do grant review, the subpoena will not be enforced while the Justices work on a decision.

The Justices have complete discretion to grant or deny review; Trump has no guarantee of review. The Justices also have no duty to proceed on the schedule Trump’s team will be suggesting. However, because of the importance of the constitutional dispute, review and a speedy process very likely will be allowed.

The main constitutional question the appeal is expected to raise is this: Does the President, while serving in office, have complete immunity to any investigation by a state or local government prosecutor, even if the probe seeks information of a personal or private nature and does not demand access to any documents or data directly involving the performance of official duties?

4. Speaking of the Supreme Court, there was an interesting case there today on the 4th Amendment. From Orin Kerr:

[T]he Supreme Court will hold argument in an interesting Fourth Amendment case, Kansas v. Glover.  Glover raises a simple question: When an officer spots a car driving on a public road, and a license check reveals that the registered owner of the car has a suspended license, does the fact that the registered owner of the car has a suspended license create reasonable suspicion that the driver of the car has a suspended license that then justifies a Terry stop of the car?   Put another way, for Fourth Amendment purposes, can the police presume that the registered owner of a car is driving it?

Congrats to Judge Rodney Smith

The SDFLA clerk’s office is getting lots of experience planning big parties. The latest was for Judge Rodney Smith, who had his investiture on Friday. Still to come — Raag Singhal and the Fort Pierce seat. Then we’ll have the 11th Circuit slots for Lagoa and Luck. Good times.

RBG and the Clintons reminisce

I didn’t remember that Gov. Mario Cuomo was Clinton’s first choice for the Supreme Court. He ended up nominating Ginsburg. There was a concern about her age as she was 60 at the time. But she has served now for 27 years. More from the Washington Post:

Justice Ruth Bader Ginsburg said she knew there was concern about President Bill Clinton nominating a 60-year-old to the Supreme Court when he picked her in 1993.
“Some people thought I was too old for the job,” Ginsburg said Wednesday night during a conversation with Clinton and Hillary Clinton at Georgetown Law Center in Washington. She paused a beat.
“If you worried about my age, it was unnecessary,” she said.
Ginsburg is now 86 and entering her 27th year on the court. She and the Clintons reminisced about the old days at an annual lecture named for her.
Bill Clinton repeated that he knew within 10 minutes of interviewing then-Judge Ginsburg that he would offer her the job, although his first choice was New York Gov. Mario Cuomo.

He said she was serious about judging and laid out her views clearly. “I thought, this woman is completely on the level,” Clinton said.
Later, it was conceded that the serious Ginsburg also has a sense of humor. “It’s essential to the job,” she said.
Ginsburg says she is ‘on my way to being very well’ after cancer treatment

Hillary Clinton said she liked to think she had something to do with Ginsburg’s nomination as well. “I may have expressed an opinion or two about people he should move up” the list of possibilities, she said.

I wonder how many kids will dress up as RBG for Halloween today. Hope you have a fun night.

Are the Dems taking criminal justice reform seriously enough?

On Monday, at a forum involving former prisoners, only three Democratic nominees showed up to answer questions.  One of them is former prosecutor Kamala Harris, who has a terrible record on criminal justice reform.  Meantime, Donald Trump is speaking about criminal justice reform at every turn.  This issue has traditionally belonged to the left, but it seems to be up for grabs in the next election.  From the Marshall Project:

Harris faced questions about her record as a prosecutor in San Francisco and later as California’s attorney general, and whether she had been committed enough to “progressive prosecution.” She defended her actions, positioning herself as the only Democratic candidate who has taken tangible steps toward “reforming the criminal justice system.” The senator pointed to her creation of a reentry and job training program, for example.Harris’s critics say she opted for the most politically palatable programs while shying away from more substantive approaches, like declining to prosecute more low-level offenses, that could have reduced the number sent to prison each year in California.
***
As senator, Harris has been a vocal critic of President Trump’s First Step legislation, calling it a “compromise of a compromise.” The act granted early release for thousands of non-violent drug offenders. Harris said Monday that did not go far enough. “You took a step, but you just learned how to walk,” she said. “We need the plan for step ten.”She said on day one as president, she would conduct a comprehensive audit of the criminal justice system to understand areas for reform. Her plan also includes allocating federal funding to help local counties clear people’s criminal records, removing clemency from the Department of Justice and legalizing marijuana.

Ed Carnes to take senior status

Big news out of the 11th Circuit... Chief Judge Ed Carnes is taking senior status.  That means Donald Trump will get another judge on that court.  Currently pending are Barbara Logoa and Robert Luck.  But this seat won't go to a Florida lawyer or judge.  This one will go to someone from Alabama. 

The word is that District Judge Andrew Brasher is the favorite.  He's from the Middle District of Alabama.  If confirmed along with Lagoa and Luck, Trump will have appointed 6 judges to the court. 

Chief Judge Carnes has been on the court since 1992 (Bush) and has been Chief since 2013.

NED Award to Patricia Seitz

The Federal Bar Association's NED award holds a special place in my heart.  The NED is named after Edward B. Davis, known to his friends as Ned.  He was the ideal federal judge -- smart, funny, old-school, and a real human being.  I've never heard anyone say a negative word about him or his wife, Pat Davis.  Two of the best.  And yes, I'm biased since I clerked for Judge Davis.

Last night, the local Federal Bar Association gave the annual NED award to Judge Patricia Seitz.  Congratulations to Judge Seitz for this amazing honor.

Judge Altonaga, a former Judge Davis clerk, introduced Judge Seitz.  That was really cool, especially since Judge Altonaga is Judge Davis'
second favorite law clerk.

 h/t for the picture from last night's event from Michelle Suskauer

Raag Singhal advances to Senate floor

Congrats to Judge Singhal, who advances to the Senate floor for a full vote. He sailed out of committee this morning.

Addicted to jail (Probation Officers)

A few weeks ago, I wrote this piece in The Hill, "We're addicted to jail."  It addressed a problem that we have in the United States -- we jail too many people for too long.  I offered one modest proposal, that we get more defenders and civil lawyers on the bench and fewer prosecutors:

One easy fix — appoint more criminal defense lawyers and civil lawyers to the bench and fewer prosecutors. According to the Cato Institute, former prosecutors are “vastly overrepresented” throughout the judiciary. As to federal judges alone, the ratio of former prosecutors versus former criminal defense lawyers is four to one (and if you include lawyers who worked for the government on the civil side, the ratio is seven to one). A criminal case or a civil rights case has a 50 percent chance to be heard by a former prosecutor and only a six percent chance to be heard by a judge who has handled a case against the government. Cato explains the unfairness of this with a simple example — we would never allow four of the seven referees of a Ohio State-Michigan football game to be alumni of Michigan. Ohio State fans would never tolerate it. And yet, there are no criminal defense lawyers on the Supreme Court and there hasn’t been one for more than 25 years.

In many cases, former prosecutors have never represented a person sentenced to jail. They have never visited a client in jail. They have never explained to a family — while the family cried — that their loved one is going to be taken from them. As prosecutors, they have only put a lot of people in jail. And so, as judges, this addiction to jail continues, even for someone like Deandre, who ends up serving a jail sentence because he overslept.

I've decided to continue to write on this subject and offer other proposals with the hope of trying to fix the over-criminalization problem that both sides of the aisle agree on (when they literally can agree on nothing else).  If you'd like to write a response (and sign your name) or make your own proposal, please feel free to email me and I will post it.

One crazy function of the federal criminal justice system is that probation officers, who are mostly non-lawyers, prepare a presentence investigation report, which includes a calculation of the federal sentencing guidelines.  In other words, these officers are analyzing complex legal questions and making a determination, many times after only speaking to the prosecution about the case.  Those reports often-times take the most extreme view of the guidelines (even more extreme than the government's view of the guidelines), views that are not supported by the plea agreement, by the law, or by the facts.  The reports also do not ever include reasons for why there should be a downward variance under 3553.  They simply repeat their standard policy that there are no factors that warrant a variance.  And then some judges will meet with probation officers ex parte and discuss the guidelines and potential sentences, all without hearing from the parties.  It's an upside-down practice.

So here's another modest proposal, this one regarding probation officers --

1.  Probation officers should not do any analysis of the guidelines whatsoever.  That should be left to the parties to each submit their guideline calculations. The judge and her law clerks can then analyze the parties' submissions and rule on any disagreements.  The same for variance arguments (up or down).    

2. Just as importantly, judges should not have ex parte meetings with probation officers before the sentencing (or accept ex parte "blue sheets" with probation recommendations as to sentence).  It's simply not fair to the parties.  The judge that I clerked for -- Judge Edward B. Davis -- would occasionally meet with a probation officer in chambers when he had a question about something in the report.  But he would never do it without the parties.   I remember one exchange he had with a probation officer who had not recommended minor role for a drug courier.  Judge Davis asked him why the reduction was not considered even though the case law was clear that it was to be decided on a case by case basis.  The PO responded that his office had a policy of never including it.  Judge Davis chuckled and asked, "Don't you work for me?" 

 We have a real jail problem.  The federal guidelines are in part to blame.  That issue is exarcerbated when probation officers have the ability to shape the debate over how those guidelines are applied and then have access to the judge without the parties before sentencing.  There is no downside to making these small changes to our sentencing process. 

Bigger ones to follow.

"Corruption fighter to controversy, Kastrenakes lauded for smarts, chided for ‘God complex’"

That's the title of this Palm Beach Post article which profiles Palm Beach judge John Kastrenakes.  From the intro:

The two faces of Judge John Kastrenakes — vigilant defender of the law and unbridled hothead — played out in stark relief this month after his decision to send a juror to jail for 10 days.
WEST PALM BEACH — When John Kastrenakes arrived at the Palm Beach County Courthouse 10 years ago to take a seat on the powerful circuit bench all that was missing was a shining steed.
After sending five elected officials in the county to prison, the career prosecutor was feted as a gleaming knight who would use his formidable skills as a dogged crime fighter to continue to chip away at the area’s reputation as “Corruption County.”
A year later, he grabbed headlines for far different reasons.
Stopped for driving the wrong way in the parking lot of a service plaza on Florida’s Turnpike, Kastrenakes became irate. Blasting the Florida Highway Patrol trooper as “a liar,” he said he would never believe her and would doubt the veracity of any FHP officer who appeared in his courtroom.
Concerned about his ability to be fair, state prosecutors asked him to step down from seven cases built by FHP troopers. Kastrenakes agreed and apologized for his outburst.
The two faces of Kastrenakes — vigilant defender of the law and unbridled hothead — played out in stark relief this month.
Howls of overreaching and racial bias greeted his decision to send a 21-year-old West Palm Beach juror to jail for 10 days. Ruling that DeAndre Somerville willfully violated his orders, Kastrenakes found the young black man guilty of contempt of court after he explained that he overslept and didn’t call to report his absence because his cellphone was broken.
Florida state Sen. Bobby Powell, D-Riviera Beach, has asked the Judicial Qualifications Commission to investigate Kastrenakes.

Investiture for Roy Altman

It will be a big party on the top floor of the Wilkie Ferguson courthouse tomorrow afternoon for Judge Roy Altman.  Congrats to Judge Altman.

Judge Rodney Smith’s investiture will be next.

Then, if all goes according to plan, Judge Raag Singhal will be confirmed and have his.

We are still waiting on that 5th open district seat in Fort Pierce.

Lagoa and Luck on the Senate calendar

Judges Barbara Lagoa and Robert Luck will have their first hearings before the Senate tomorrow (Wednesday) morning at 10am and will answer any questions the Judiciary Committee might have.  After this hearing, they'll answer written questions from the Senators.  Floor votes should come relatively quickly. 

If you are interested in getting all the news as it happens, you should follow @fedjudges on Twitter.

Will the Dems address federal judges in tonight's debate?

Trump has placed an emphasis on remaking the federal judiciary and he has been extremely successful. Obama (and Clinton) never had such an emphasis. And the Democratic candidates so far have barely mentioned the judiciary in their campaigns and debates. Hopefully it will be discussed tonight.

Others, however, have been pressing for a new narrative on judging. Clark Neily of Cato has called for a moratorium on appointing prosecutors to the bench.

Given the government’s vast resources, nearly every court case pitting a lone citizen against the state represents a David-versus-Goliath fight for justice. To further stack the deck with judges who are far more likely to have earned their spurs representing Goliath than David is unfair to individual litigants and a bad look for the justice system as a whole.

Fortunately, the solution is simple: a temporary moratorium on nominating former prosecutors to the bench and a strong preference for lawyers with substantial experience representing individuals against the government in criminal and civil cases. If that proposal seems extreme, consider the image of a federal judiciary in which former public defenders outnumbered prosecutors 4 to 1. Notwithstanding the transformative effect that would have on our deeply dysfunctional criminal justice system, not to mention the Bill of Rights, it’s probably not a good idea. But neither is it wise to continue doing nothing while the imbalance runs the other way.

It is perfectly understandable that current government officials wish to stock the courts with former government advocates. But it’s a bad deal for the rest of us and a doubtful way to ensure equal justice under law.

And Demand Justice has put out its own Supreme Court shortlist (as Trump did when he was a candidate) since no Dem has done so. There are no Floridians on the list, and it's not a realistic list in my view (with only 2 Circuit judges), but it's a conversation starter.

Kudos to Judge Scola for being compassionate

It’s not every day that a federal judge is compassionate. But Judge Scola deserves a lot of credit today for releasing 84-year old Hafiz Khan, who is dying. The federal public defender’s office filed the motion for Khan, which received very strong opposition from the U.S. Attorney’s Office. From the Miami Herald:

“I do find that his demise is imminent, and he can no longer speak and does not pose a danger to the community,” Scola said Friday, after holding three hearings this week on the Khan family’s petition.
***
Earlier this week, a prison doctor testified that Khan has a host of dire health issues and could die within weeks. But he also said he may be too weak to be moved from the prison medical facility, let alone to Miami. Scola, the judge, raised concerns about the logistics of transferring Khan because of his fragile state.

The family, with the help of Federal Public Defender Michael Caruso and colleague Sowmya Bharathi, found a solution that satisfied the judge’s concern: a hospice center in Raleigh that could accommodate Khan on Friday.

“No one wants him released without proper medical care available,” Bharathi said, adding that Khan’s family had the finances to pay for his ambulance transfer to the Raleigh facility and the daily hospice care.

The judge said that because of Khan’s rapidly deteriorating health and inability to speak, he believed the defendant would be unable to spread any possible propaganda to incite the Taliban to take violent action against Americans — evidence that surfaced during his 2013 terrorism trial in Miami.

“Mr. Khan’s danger was his ability to speak and influence other people,” said Scola, who in his order prohibited Khan from any access to a telephone, computer or the internet. He also limited his visitors at the Raleigh hospice facility to immediate family members.

CA11 issues interesting opinion on experts

There are 3 opinions in this lengthy case, with the majority written by visiting district judge Lewis Kaplan, a concurrence by Julie Carnes, and a dissent by Tjoflat.

Of note is that many practitioners think that the criminal discovery rules require less disclosure from prosecutors on experts than the civil case counterparts. But Tjoflat explains that that understanding is wrong. Prosecutors must make real expert disclosures or risk full reversal:

In closing, to understand just how significantly Mentor has been wronged today, consider what we would do if this case were criminal rather than civil. Under Federal Rule of Criminal Procedure 16(a)(1)(G), the government has a duty to “give to the defendant a written summary of any [expert] testimony that the government intends to use.” Fed. R. Crim. P. 16(a)(1)(G). The government’s summary must include the expert witness’s “opinions, the bases and reasons for those opinions, and the witness’s qualifications.” Id. As with the Civil Rules, the government has the continuing duty to inform the defendant of changes to the expert’s opinion. Id. 16(c). And, like Civil Rule 37(c), Criminal Rule 16 empowers the district court to “prohibit [a non-compliant] party from introducing
the undisclosed evidence.” Id. 16(d)(2)(C).

Now imagine this were a criminal trial. The government identifies Dr. Porter as an expert witness. Mentor obtains Dr. Porter’s summary, deposes Dr. Porter and—based on the information obtained—builds its defense. All seems to go as planned until, mid-trial, Dr. Porter changes his tune in a way that prejudices Mentor. Moreover, the circumstances of the reversal indicate that the government induced Dr. Porter to change his opinion. Mentor moves for a mistrial citing the
prejudicial and deliberate Rule 16 violation. The district judge denies Mentor’s motion, and Mentor appeals. Now the case is before our Court. What result?

Reversal. See United States v. Chastain, 198 F.3d 1338, 1348 (11th Cir. 1999) (“[W]here it is apparent . . . that the defense strategy may have been determined by the failure to disclose, there should be a new trial.” (citation omitted) (second and third alterations omitted)). Reversal, and perhaps—because of the violation’s deliberateness—a citation of criminal contempt for the prosecution. But over on the civil side—with the same degree of prejudice and the
same degree of deliberateness—we inadvertently reward this behavior.

Why is that? Why do we tolerate in a civil case the same kind of behavior that would require reversal in a criminal case? It seems that we have two standards of ethics and professionalism—one for criminal cases, and another, significantly more lenient standard for civil cases. Lawyers do without a hint of shame in a civil case what they would never think to do in a criminal one. This bifurcated sense of what ethics and professionalism require of the bar is sadly nothing new. But what is new—and what is made worse by today’s majority opinion—is the extent to which we will let civil lawyers get away with behavior that would be unthinkable in a criminal trial.

“We’re addicted to jail.”

That’s the title to my latest in The Hill.  Please take a look.  Here’s a snippet:

We issue jail sentences like candy, to address every known problem that we have. Drug problem — jail. Using your family member’s address to get your child into a better school — jail. Paying college athletes — jail. The United States jails more people than any other country in the world. We have higher incarceration rates than Russia, Iran, and Iraq — by a lot. We tolerate innocent people sitting in jail when we only suspect that they might have done something wrong, as one man did for 82 days when he brought honey into the United States. 82 days.

Even though oversleeping doesn’t seem to be a rampant problem, the judge in Deandre’s case admitted that he was trying to solve a broader jury “misconduct” issue with jail. This is not how it should be.

The jail solution has become much worse than the diseases it was trying to cure. So what do we do about it?

First Monday in October

The Term starts off with two exciting criminal law cases:

1. First up is Kahler v. Kansas: “Whether the Eighth and 14th Amendments permit a state to abolish the insanity defense.”  Amy Howe of SCOTUSblog has a nice write up here.  A snippet:

Under Kansas law, Kahler could not argue that he was insane as a defense to the charges. In 1995, Kansas had replaced the insanity defense with a new law that allows a defendant to argue that, because of mental illness, he could not have intended to commit the crime but makes clear that mental illness “is not otherwise a defense.” The law was a response to several high-profile criminal cases, including the attempted assassination of President Ronald Reagan by John Hinckley, who was found not guilty by reason of insanity. The trial court instructed the jurors in Kahler’s trial that they could only consider Kahler’s mental illness as part of determining whether he intended to kill his victims. The jury found him guilty and sentenced him to death.
The Kansas Supreme Court upheld Kahler’s death sentence, rejecting his argument that the failure to allow him to raise an insanity defense violated the Constitution. The U.S. Supreme Court agreed to hear the case in March.
In his brief on the merits, Kahler contends that it has long been established that a mentally ill person who commits a crime without understanding that his actions are wrong is not morally responsible for those actions and therefore should not be held criminally responsible. The importance of this rule, he suggests, can be seen in the fact that, until 1979, every jurisdiction in the United States allowed an insanity defense. Today, he continues, 45 states, the federal government, the U.S. military and the District of Columbia all allow a mentally ill defendant to assert an insanity defense.
But under Kansas law, Kahler argues, it doesn’t matter whether an insane defendant understands that what he is doing is wrong. The only question is whether he intended to commit the crime, which is a much lower bar. Therefore, Kahler posits, “so long as a defendant intentionally kills another human being—even if he delusionally believes the devil told him to do it, or that the victim was an enemy soldier trying to kill him,” he can be convicted of murder even if he is insane. Such an approach is not the equivalent of offering an insanity defense, Kahler maintains. Rather, he predicts, the state’s rule will “shrink the class of defendants who might be acquitted as a result of mental disease or defect almost to the vanishing point.”
Removing such a fundamental principle from the criminal justice system, Kahler maintains, violates the 14th Amendment’s due process clause, which was enacted to protect exactly these kinds of basic principles. Kansas’ rule also violates the Eighth Amendment’s ban on cruel and unusual punishment because, “by convicting and punishing people who are not blameworthy, cannot be deterred, and require incapacitation and rehabilitation that the criminal justice system cannot provide,” it doesn’t advance any of the justifications for punishment – such as deterrence or retribution. Indeed, Kahler notes, at the time the Eighth Amendment was adopted, it was widely regarded as cruel and unusual to impose criminal punishments on the insane.
Kahler acknowledges that the Supreme Court normally gives the states a fair amount of latitude in how they structure their criminal justice systems, and he concedes that states can “tweak” a baseline standard that hinges on whether the defendant knows that his actions were wrong. States can also require defendants to show that they are insane, perhaps even beyond a reasonable doubt, but they can’t get rid of the insanity defense altogether.
Kansas frames the issue very differently, telling the justices that the state has simply “redefined,” rather than “abolished” the insanity defense. Although a defendant cannot raise insanity as an affirmative defense to accusations of a crime, the jury can still consider evidence of mental illness in determining whether the defendant could have intended to commit the crime.

2.  Second up is Ramos v. Louisiana, which addresses “whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.”  Amy Howe again:

In Ramos’ case, the justices are not writing on a blank slate. Nearly 50 years ago, in Apodaca v. Oregon, the court ruled that the Sixth Amendment guarantees a right to a unanimous jury, but that such a right does not extend to defendants in state trials. The justices were deeply divided. Four justices would have ruled that the Sixth Amendment does not require a unanimous jury at all, while four others would have ruled that the Sixth Amendment establishes a right to a unanimous jury that applies in both state and federal courts. That left Justice Lewis Powell, who believed that the Sixth Amendment requires a unanimous jury for federal criminal trials, but not for state trials, as the controlling vote.
In his brief on the merits, Ramos starts with the threshold question of whether the Sixth Amendment’s jury trial clause requires a unanimous verdict at all. He argues that the answer is yes: The Sixth Amendment, he contends, guarantees a defendant in a criminal case a “trial, by an impartial jury,” which the Supreme Court has consistently interpreted as requiring a unanimous jury verdict before a defendant can be convicted of a crime. This includes the court’s 1972 decision in Apodaca, he continues, in which “a majority of the Court agreed yet again that the Sixth Amendment requires jury unanimity to convict.”
The history and purposes of the jury trial clause also make clear that a unanimous verdict is required to convict a defendant, Ramos continues. Starting as far back as the 14th century, Ramos explains, laws in England required a unanimous verdict. The colonies embraced this requirement in their own legal systems, and the Framers of the Constitution and the Bill of Rights adopted this understanding of what the right to jury trial meant in the Sixth Amendment. The requirement of a unanimous verdict also serves important purposes at the heart of the jury trial right, such as countering possible bias or overreach by prosecutors. “Indeed,” Ramos writes, “the knowledge that a conviction cannot be obtained absent a unanimous verdict deters prosecutors from bringing questionable charges in the first place.” The requirement also “ensures the jury’s verdict represents the voice of the whole community” and “promotes public confidence in the reliability and fairness of the criminal justice system.”
Louisiana counters that the Sixth Amendment does not require a unanimous jury. Nothing in the text of the Constitution imposes such a requirement, even though the Constitution imposes other requirements on the jury system – for example, specifying where jury trials must take place. And, the state argues, the justices should not assume that, just because juries were required to be unanimous in the late 18th century, that requirement was tacitly included in the Constitution’s reference to a “jury.” To the contrary, the state suggests, the history of the Bill of Rights shows that the Framers intentionally omitted a unanimity requirement from the Sixth Amendment: The original draft of the amendment included a unanimity requirement, but the Senate rejected it, instead adopting a different version without one. At the same time, the state observes, some state constitutions explicitly imposed a unanimity requirement – which they would not have needed to do if the phrase “trial by jury” had been understood to include a requirement that the jury’s vote be unanimous. Indeed, the state adds, there were other historical jury practices that no one has argued should be read into the Sixth Amendment – for example, “the requirement that juries consist of twelve male property owners who would be held without food and drink until they returned a unanimous jury verdict.”
Louisiana also sees no conflict between the purpose of the Sixth Amendment and a rule that jury verdicts do not have to be unanimous. The purpose of the jury trial clause, the state stresses, is to ensure that a defendant is convicted by members of the community, who have looked at the evidence and independently concluded that he is guilty beyond a reasonable doubt. That purpose is served, the state insists, whether the vote is unanimous or is instead 11-1 or 10-2 – as demonstrated by the fact that most countries (including England) that use jury trials do not require unanimous verdicts. Eliminating the unanimity requirement also significantly reduces the likelihood of a deadlocked jury, the state notes, which in turn reduces burdens on court systems.

Breaking — Jared Strauss is your new Magistrate Judge

Strauss has been an AUSA in Broward. He graduated from Harvard Law School in 2005.

Congratulations to Jared Strauss!

Rudy G. hires Jon Sale

Yours truly is quoted in the Herald article praising Rudy for the hire.  It's a smart move.

A former Watergate prosecutor based in Miami may have a big say in whether Rudy Giuliani complies with a subpoena from lawmakers conducting impeachment hearings in the House of Representatives.

Giuliani has tapped Miami-based veteran attorney Jon A. Sale, of counsel with Nelson Mullins, to represent him before the congressional inquiry into whether President Donald Trump improperly pressured Ukraine’s president for a political favor.

“This subpoena is very complex because it raises a lot of issues — including privilege and constitutional issues — so it requires serious analysis,” Sale said in a brief telephone interview Tuesday afternoon. “There’s a lot of work involved here.”

A former New York University law school classmate of Giuliani, Sale was a junior prosecutor during the Watergate probe and is often described as the dean of the white-collar defense bar in South Florida.

Your new chair of the Committee on Audits and Administrative Office Accountability .... is .....

Drumroll please...
....

Chief Judge K. Michael Moore.

Congrats on the appointment by Chief Justice John Roberts.

Other appointments are listed here, including Judge Kethledge as the Chair on the Advisory Committee on Criminal Rules.

Rosh Hashanah

Rosh Hashanah is the Jewish new year, which is celebrated yesterday and today. Schools and state courts were closed yesterday. But the feds were open. And the 11th Circuit issued this opinion regarding Scott Rothstein, affirming his 50 year sentence. They couldn’t have waited a few days to issue the opinion?

In other news, there’s a new baseball smuggling case. The last one, a trial in front of Judge Kathleen Williams, is on appeal. The Sun-Sentinel has the details on the new matter:

A Cuban national in South Florida is accused of running a smuggling operation that moved Cuban baseball players through Mexico and into the major leagues in exchange for a large percentage of their contracts.
After being deported from Mexico in June, Tomas Valle Valdivia, 44, faces new smuggling charges in Miami. Prosecutors say he is part of a criminal enterprise that has profited for years off the black market for Cuban ballplayers.
***
Valdivia, also known as “Tomasito,” is accused of using go-fast boats to smuggle one player off the island in October 2013 and another at an undetermined time. Neither player is identified in court documents, but the first appears to be Cincinnati Reds pitcher Raisel Iglesias.
Court documents claim the agreed-upon price for the player’s smuggling was 20% of his $27 million contract. Iglesias was the Reds’ only Cuban defector in 2013, according to the website baseball-reference.com. He signed a $27 million contract in 2014.
RELATED: White Sox's Jose Abreu says he ate fake passport, washed it down with beer on plane to U.S. »
In addition, Tomasito’s Lawyer, Joaquin Perez, said the player is “not doing so well for Cincinnati.” Iglesias finished last season with a 3-12 won-lost record.
Perez made the comments Thursday in Miami federal court, where he argued unsuccessfully for Tomasito’s release from custody.

“We don’t go about our work in a political manner.”

That was Chief Justice Roberts at a speech earlier this week.  More from The NY Times:

But he added that the outside criticism did not affect the court’s independence. “A lot of the criticism is based on a misperception,” he said.

People often note that the court is made up of five Republican appointees and four Democratic ones, he said, and they expect predictable 5-to-4 decisions along those lines.

“Last year,” he said, “we had 19 5-to-4 decisions, and seven of them were divided with the five justices appointed by Republican presidents in the majority and the four justices appointed by Democratic presidents in dissent.”

“That shouldn’t come as a surprise because we don’t go about our work in a political manner,” he said.

The last term’s two biggest decisions, on partisan gerrymandering and adding a question on citizenship to the census, both featured controlling opinions written by the chief justice, who was appointed by President George W. Bush. Both were closely divided. In the gerrymandering case, Chief Justice Roberts voted with the other Republican appointees. In the key part of the census decision, he voted with the four Democratic appointees.

This was a funny exchange:

And, of course, Justice Ginsburg brings her experience as a rock star,” he said.

Asked if he could best Justice Ruth Bader Ginsburg at push-ups, he said that would not be a fair fight.

“She has so much less to push up,” he said. “I can comfortably say that I can bench press her weight and she can’t bench press mine.”

Asked for his favorite classic rock band, Chief Justice Roberts, 64, picked the Byrds, saying he had seen them not long ago. “I’ve never been in a room with more 65-year-old men with ponytails,” he said.

He also endorsed the decision to award the Nobel Prize in Literature to Bob Dylan, an observation that was greeted by applause.

How fast is Robert Luck's star rising?

So fast that he had his Florida Supreme Court investiture today, weeks after he was nominated to the Eleventh Circuit Court of Appeals (that nomination is still working its way through the system). Amazing! Good for Justice (soon to be Judge) Luck. Here are some pictures from Tallahassee.com. From a quick scroll of Facebook, it looks like it was an amazing turnout of Miami lawyers and judges (both state and federal). Pretty cool that so many people flew up.

Also in Tallahassee, Miami lawyers Tara Kawass and Chris DeCoste have started trial in State v. Katie Magbanua, one of the highest profile cases in the country right now. The co-defendant, Sigfredo Garcia, is represented by Sa'am Zangeneh. The State is seeking the death penalty against Garcia. More from Tallahassee.com. This might be the first time the blog has cited that newspaper twice in one post.  (Full disclosure, I represent someone who has not been charged in the case.)

And let me be a proud dad for a minute and also post about my daughter Nicole, who has this op-ed in today's Sun-Sentinel. It's on climate change. The intro:

Protesting at last Friday’s global climate strike isn’t enough. Yes, it is amazing that you went. It is incredible that so many people care about the climate that they would miss their jobs, or an important school test, or anything else they may have had.

But if we do not continue to make our voices heard once the strike is over, all of it will be for nothing. Every day, we need to talk about solutions, lobby the government, and change easy habits that can help reduce our collective carbon footprint. When events happen in your community, go to them. When you can, spread awareness to your peers.

Because if the number of people showing up for the environment Sept. 20 showed up every day, we would not face this issue. We would have governments scrambling to keep up with the demands from young people, and old people, and everyone in between.

Unstoppable

If I were her age and had suffered the health set backs that she has had, I would not have the energy to be on the speaker circuit.  (I don't have that energy now!).  But RBG is pretty amazing.  From USA Today:

Over her 86½ years on earth, Ruth Bader Ginsburg has been lauded as a women's rights pioneer, a Supreme Court justice and a cultural icon. These days, she receives hearty ovations just for staying on the job.

To satisfy some of her liberal allies, she must do that for at least another 16 months.

Fresh off three weeks of radiation treatment for her fourth bout with cancer, the woman fondly known as the "Notorious RBG" is traveling the nation giving speeches, staging conversations and accepting awards and honorary degrees. By demonstrating her vitality before adoring audiences, she hopes to tamp down concerns about her longevity.

"As cancer survivors know, that dread disease is a challenge, and it helps to know that people are rooting for you. Now, it's not universal," she quipped Thursday night at the famed 92nd Street Y in New York City. She vowed to stay on the job "as long as I'm healthy and mentally agile."

The concerns are based on the political calendar. Ginsburg must remain on the nation's highest court at least until January 2021 to avoid giving President Donald Trump and a Republican-controlled Senate the opportunity to replace her. Such a doomsday scenario for liberals would give conservatives a 6-3 hold on the high court – solidifying their majority, perhaps for decades to come.

***
Ginsburg resumes her national hopscotching tour Monday at Meredith College in Raleigh, N.C., where she will appear before about 1,600 fans. The following week, she will be at Amherst College in western Massachusetts.

The court's 2019 term begins Oct. 7, briefly keeping Ginsburg in the nation's capital, where her latest accolade was a two-story mural unveiled Monday on a downtown D.C. building. When two weeks of oral arguments are completed, she is scheduled to travel cross country to California.

"It's a travel schedule that would exhaust the rest of us," says Marge Baker, executive vice president of the liberal group People for the American Way. “This is a statement that’s she’s making, and she seems to draw energy from it.”

For years, Ginsburg has traveled and spoken publicly more than most of her colleagues. Before Associate Justice Antonin Scalia's death in 2016, the two ideological opposites occasionally made joint appearances that called attention to their longtime friendship. Ginsburg has made more than 170 public appearances in the last five years; only Associate Justice Sonia Sotomayor has done more.

"When I am active, I am much better than when I am just lying about feeling sorry for myself," Ginsburg said at the Yale Club event. "The necessity to get up and go is stimulating."

No bond for AA employee who sabotaged a plane

From Fox News:

Prosecutors said Alani glued styrofoam inside the nose of the aircraft that disabled a part used to gauge airspeed and other critical flight data. Pilots detected the issue before takeoff, and a subsequent inspection discovered the problem.

Airport surveillance captured Alani, who walks with a limp, working on the plane's nose for about seven minutes. He was identified by co-workers.

After his arrest earlier this month, he told agents he acted “out of my evil side” and “wanted to do something to delay” the plane “to get overtime” for maintenance repairs, Assistant U.S. Attorney Maria Medetis told the judge Wednesday.

While Alani is not yet charged with a terror-related crime, Medetis said the potential links to the Islamic State give rise to the possibility that his actions had a darker purpose beyond what he insisted was a labor issue.

The judge ultimately denied Alani bail.

Whenever I hear the word “sabotage,” I think of this.

Who was the only Supreme Court Justice ever impeached?

Answer: Samuel Chase. This Washington Post story has the interesting story, which shows that judges shouldn't always just side with prosecutors:

Samuel Chase was a frequent subject of the rumor mill for his entire life. As a young lawyer in Annapolis, Md., in the 1760s, he was expelled from a debating society for “extremely irregular and indecent” behavior. He was also an early critic of the Stamp Act and headed up Anne Arundel County’s chapter of the Sons of Liberty.

His height and broadness added to his gruff and intimidating personality. He also had a reddish-brown complexion, earning him the nickname “Old Bacon Face” — which some might consider its own impeachable offense.

***

President George Washington nominated Chase to the Supreme Court in 1796. At the time, though, the highest court in the land had little to do, so justices still served on lower courts.

And those lower courts are where Chase’s problems arose.

While presiding over the 1800 sedition trial of Thomas Cooper, Chase railed against Cooper during his instructions to the jury, seeming to act more as a prosecutor than a judge.

Before a treason trial in Philadelphia, he showed defense attorneys his opinion before the trial had even taken place. He later sentenced the man to death. (President John Adams pardoned him.)

At a sedition trial in Richmond, he sat a juror who said he had already made up his mind that the defendant was guilty.

And while presiding over a grand jury in Delaware, Chase angrily refused to dismiss a grand jury after it declined to charge a man with sedition.

But all of that is background to why he ended up getting impeached:

Once they had the reins of power, the Democratic Republicans overturned a law that had created lower courts in a bid to limit the power of Federalist judges installed by Adams.

But that didn’t stop Chase. In 1803, before a Baltimore jury, Chase denounced the Democratic Republicans for overturning the law.

When Jefferson found out about it, he sent a letter to a congressman friend strongly suggesting that — cough cough, hint hint — only Congress could do something about Chase.

The next year, the House voted 73-32 to impeach him, charging that he “tend[ed] to prostitute the high judicial character with which he was invested.”

The Senate trial took place in February 1805. Over 10 days, senators heard from more than 50 witnesses, according to Rehnquist. Chase maintained that he could not be impeached for poor judgment, but only indictable offenses.

Two-thirds majorities were needed to convict on each of the eight articles of impeachment. If the votes had gone strictly down party lines, Democratic Republicans would have had more than enough; at the time, they dominated the Senate 25 to nine, according to the Senate Historical Office.
But that isn’t how the votes went. Though majorities found Chase guilty on three of the eight articles, none passed the two-thirds threshold.

Old Bacon Face had dodged the frying pan.

And a precedent had been set, Rehnquist said, that “a judge’s judicial acts may not serve as a basis for impeachment.”

Felicity Huffman's 14-day sentence is unjust — because it's too high

That’s the title of my latest piece in The Hill, which starts this way:

With as much subtlety and sophistication as a sledgehammer, social media erupted after Felicity Huffman’s 14-day sentence was announced, with commenter after commenter saying her sentence was way too light. A rich, white woman only received two weeks in jail. The system must be corrupt! Well, the system is corrupt, but not because Huffman’s sentence was too light, but because it was too severe.

But wait, you might be saying, she only received a few weeks; how can that be too severe?

Her sentence is wrong for at least four reasons:

Our criminal justice system still has an unjust “jail-first” mentality. The default sentence for a first-time non-violent offender who accepted responsibility where no one suffered any loss should obviously be something other than incarceration. If that type of offender — with no aggravating factors — isn’t getting probation, then who is? The problem is that we are so tied to putting people in jail, even people we know will never do anything similar again, that our default is some prison. That’s wrong. It’s important to keep things in perspective: Huffman didn’t hurt anyone and it’s not altogether clear that paying someone to take a test should even be a federal crime in the first place.

Please take a look and let me know your thoughts.

BREAKING -- Barbara Lagoa and Robert Luck to be nominated to the 11th Circuit (UPDATED with President Trump's official release)

Numerous sources have confirmed that Florida Supreme Court Justices Barbara Lagoa and Robert Luck are set to be nominated to fill the 11th Circuits seats of Judges Tjoflat and Marcus.  Both are former AUSAs in Miami, former 3rd DCA judges, and current Justices on the Florida Supreme Court.  And both are *excellent.*  A big congrats to them.  Very exciting news.

UPDATE -- shortly after this post, President Trump made it official with this release:

Today, President Donald J. Trump announced his intent to nominate:

Barbara Lagoa of Florida, to serve as Circuit Judge on the United States Court of Appeals for the Eleventh Circuit

Barbara Lagoa currently serves as a Justice on the Supreme Court of Florida. Prior to her appointment by Governor Ron DeSantis in 2019, Justice Lagoa was a District Judge on the Florida Third District Court of Appeal. Before taking the bench in 2006, Justice Lagoa was an Assistant United States Attorney in the United States Attorney’s Office for the Southern District of Florida and spent 11 years in private practice in Miami, Florida. Justice Lagoa also served as the Chair of the Florida Judicial Ethics Advisory Committee from 2015 to 2016. Justice Lagoa earned her B.A., cum laude, from Florida International University and her J.D. from Columbia Law School, where she served as Associate Editor of the Columbia Law Review.

Robert J. Luck of Florida, to serve as Circuit Judge on the United States Court of Appeals for the Eleventh Circuit.

Robert Luck currently serves as a Justice on the Supreme Court of Florida. Prior to his appointment by Governor Ron DeSantis in 2019, Justice Luck was a District Judge on the Florida Third District Court of Appeal and a Circuit Judge for the Eleventh Judicial Circuit Court of Florida. Before taking the bench in 2013, Justice Luck was an Assistant United States Attorney in the United States Attorney’s Office for the Southern District of Florida. Justice Luck also served as an Adjunct Professor at Alabama State University from 2007 to 2008, where he taught an undergraduate class in business law. Upon graduation from law school, Justice Luck served as a law clerk to Judge Ed Carnes of the United States Court of Appeals for the Eleventh Circuit, to whom he also later served as a Staff Attorney. Justice Luck earned his B.A., with highest honors, from the University of Florida and his J.D., magna cum laude, from the University of Florida Levin College of Law, where he was inducted into the Order of the Coif and served as Editor-in-Chief of the Florida Law Review.

Raag Singhal has committee hearing (Updated with results of Chinese spy trial))

This morning Judge Raag Singhal appeared before the Judiciary Committee, on his way to a full Senate vote.  Judge Singhal is a really excellent choice and should sail through without a problem. Both sides of the aisle would do well to support him.  Here’s Senator Rubio’s statement in support:

Regretfully, due to a scheduling conflict, I am unable to attend today’s nominations hearing to introduce a highly qualified judicial nominee from my home state of Florida – Judge Anuraag “Raag” Singhal. Judge Singhal has been nominated to serve as a United States District Judge for the Southern District of Florida. I commend and support his nomination and the committee’s work toward Senate confirmation of Judge Singhal.
Judge Singhal is a graduate of Rice University and Wake Forest University School of Law, and he has lived and worked in Florida for 30 years. Most recently, Judge Singhal has served as a Circuit Court Judge in Broward County. He has extensive experience in the courtroom as both an attorney and a judge. He is active in Broward County’s legal community and is particularly proud of his ongoing work to mentor young attorneys. He is committed to honoring professionalism, honesty, integrity, and ethics in his work and in the community, and I am confident he will exhibit and exercise those qualities on the federal bench.
I thank the committee for its work on Judge Singhal’s nomination and believe that the committee will find him to be highly qualified to serve in this very important capacity.
Thank you for the opportunity to submit this statement in support of Judge Singhal’s nomination and confirmation.

 UPDATE on Yujing Zhan's case:  She was found guilty today after 4 hours of deliberation.  The closings were interesting (via Courthouse News Service):

In the courtroom Tuesday, prosecutors called a cavalcade of FBI agents and analysts to the stand, but Zhang declined to ask them a single question.
“She’s just not gonna do anything,” prosecutor Rolando Garcia said while closing arguments were being scheduled with U.S. District Judge Roy Altman.
Altman, a Trump appointee who is one of the youngest federal judges in the country, urged Zhang in pretrial hearings to enlist counsel, to no avail.
On Tuesday evening, he denied Zhang’s request for more time to prepare final remarks to the jury.
“You’re going to have to get ready,” Altman told Zhang.
The defendant, who describes herself as a China-based investment consultant, stood up and in a quiet, disjointed voice delivered a less-than-five-minute closing statement. It was one of the only moments throughout the trial where she took steps to defend herself in front of the jury.
“I am a bit nervous,” Zhang said. “I did nothing wrong.”
Zhang reminded the jury of a service contract that, by all accounts, involved her paying $20,000 to a Chinese agent to arrange her trip to a Mar-a-Lago gala.
The March 30 event supposedly would give Zhang and other Chinese attendees an opportunity to rub shoulders with Trump and his family and meet high rollers in the Palm Beach social scene.
“I made contract to go to Mar-a-Lago to go see the president … see his family,” Zhang said in broken English.
According to prosecutors, Zhang was told by the Chinese agent that the event was canceled. But she flew to the United States anyway, went to the posh Palm Beach resort and lied her way in, prosecutors say.
“There was no event. She knew there was no event. … She was bound and determined to get on that property,” Garcia told jurors during his closing argument.
He cited cellphone communications in which the Chinese agent told Zhang, “We can forget about [the Mar-a-Lago event].”

Your next magistrate judge will be...

...one of these 5:

AFPD Sowmya Bharathi
Barbara Junge

Meredith Schultz 

AUSA Steve Petri

AUSA Jared Strauss 

The district judges will interview these candidates and make a decision at their next judges' meeting in October.  Congratulations!

Greatest opening ever?

“Good afternoon, grand jury. What I want to say ... I don’t believe I did anything wrong. And thank you, USA.”

That was Yujing Zhang's entire opening statement this morning before Judge Altman. The post below covers the craziness that happened with her clothing before trial started.

Michael Sherwin, a good guy and smart prosecutor, has the unenviable task of trying a case against a pro se defendant. The Herald covered his opening:

Assistant U.S. Attorney Michael Sherwin, one of two prosecutors, told the jury that Zhang had lied multiple times to Secret Service agents and Mar-a-Lago staff in order to gain entry for a charity event, even though she learned the gala had been canceled days earlier.

The prosecutor told the 12-person jury that Zhang gave a variety of misleading explanations to agents and staff before her arrest. Among them: that she had come to the president’s Palm Beach club to use the pool, that she had been invited to a United Nations Chinese-American Association event, and finally that she wished to engage in trade and economic negotiations with Trump and his daughter, Ivanka.

“In no way was this defendant authorized to be there,” Sherwin said. “She lied multiple times.”

The prosecutor said that after Zhang’s arrest. federal agents discovered evidence on her iPhone 7 showing she had received text messages while she was still in China saying the Mar-a-Lago event on March 30 was canceled.

Zhang received the bad news in two “We Chat” messages on March 18 and March 26 from a person she had paid to make the arrangements for her, Sherwin said. Zhang was upset and texted back: “I want a refund.” Despite the cancellation, Zhang left for the United States two days later on March 28.

Even the first witness had a memorable moment:

Prosecutors presented their case chronologically, including testimony by a cab driver who said he took a woman who looked like Zhang to the area around Mar-a-Lago on March 29, the day before her arrest.

Willy Isidore said he picked up the woman at the Colony Hotel in Palm Beach and she asked him to give her a ride to Mar-a-Lago.

“She said she didn’t have an invitation,” Isidore testified. “I told her, ‘If you don’t have an invitation, you can’t get in.’ ”

Instead, he drove her to the neighborhood around Trump’s private club. He said the woman was talking on her cell phone and taking pictures the whole time.

When he brought her back to the Colony Hotel, Isidore said the woman asked for a receipt and he gave her his business card.

“She told me her name was Veronica,” Isidore testified.

But when asked if he could recognize the woman by Assistant U.S. Attorney Rolando Garcia, Isidore flubbed the question.

“Maybe,” he said, sitting less than 10 feet away from Zhang in the courtroom. “I’m not sure.”

Zhang did not cross-examine Isidore, missing an opportunity to challenge his credibility.

The Herald says that she missed the opportunity to challenge his credibility, but she actually did the right thing here. If she gets up and crosses the guy, he might then recognize her. Sometimes "no questions" is the right move.

Roy Altman to start trial this morning in the pro se Chinese trespasser case (UPDATED)

The pro se Chinese national charged in federal court with trespassing at Mar-a-Lago starts trial this morning.  The Miami Herald has this profile on Yujing Zhang in advance of the trial.  The Federal Public Defender's Office will be standby counsel. 

Judges and prosecutors hate pro se defendants.  It's a tough tight rope of giving them the benefit of the doubt and not letting them take advantage.

From the Herald:

Zhang, who has spent the past five months in pretrial detention, has been charged by indictment with two federal crimes: trespassing on restricted property and lying to a federal agent. Next week, a jury will determine how at least that part of her story ends during a trial that begins Sept. 9.

Though she has not been charged under the Espionage Act, prosecutors have filed classified evidence in Zhang’s case, indicating the existence of an ongoing, parallel investigation into matters regarding national security that potentially involve her and others. The FBI’s counterintelligence squad is investigating whether the Chinese national was working as an agent of the Chinese government or had been in contact with officials in Beijing before her trip to Mar-a-Lago, according to sources familiar with the probe.

Prosecutors have suggested they could bring more charges against Zhang in the future.

Currently facing a maximum of six years in federal prison, Zhang’s best possible defense seems premised on presenting herself as a bumbling foreign tourist lost in an unfamiliar world. Experts on Chinese espionage say it’s an act they’ve seen before — and that playing the role of a misguided, Trump-obsessed businesswoman could be the perfect cover for a spy. Mar-a-Lago and other Trump properties — where the president is known to loosely discuss national-security affairs — present perfect targets for foreign infiltration.

UPDATE -- jury selection appears to have been ... interesting (via the Miami Herald):

On Monday morning, Zhang appeared in a courtroom at the Fort Lauderdale federal court house in a brown inmate uniform. She is representing herself despite a judge’s plea that she accept attorneys from the Federal Public Defender’s Office, and is facing a maximum of six years in prison on charges of entering restricted property and lying to a federal agent.

Seeing the under-dressed defendant in court, U.S. District Judge Roy Altman asked Zhang why she wasn’t wearing her civilian clothes.

Zhang, speaking in Mandarin, told Altman that she didn’t have any “undergarments,” or underwear, such as a bra and panties, although in fact she had been provided with clothes she brought with her from China before her arrest.

The judge quickly dressed her down.

“You have no undergarments in your cell?” he asked.

“No,” said Zhang, who is being held in a Broward County jail facility while in federal custody.

“You should wear your civilian clothes so the jurors don’t see you in your prison garb,” Altman explained.

Zhang said she didn’t understand the judge’s English, and Altman told her to listen to her Mandarin interpreter or “we could be here for a year.”

Finally, Assistant Federal Public Defender Kristy Militello, who is still advising Zhang though her client fired her before trial, intervened. Militello told the judge that Zhang had the appropriate undergarments along with a silk blouse and skirt and could change into them.

In that case, the judge said, Zhang should change out of her prison garb.

About 15 minutes later, Zhang returned in a blouse, peach-colored jacket and khaki slacks.

The judge told her that he was going to introduce her to prospective jurors. She said she didn’t want to be introduced because she thought the trial was canceled.

“You are obviously unprepared to proceed,” Altman said, then “strongly recommended” that Zhang go to trial with the public defender by her side.

Altman asked her one last time if she wanted Militello to represent her.

“I don’t think so,” she told Altman.

And with that, the jury candidates were brought into the courtroom. The two sides must pick 12 of them plus a few alternates for trial.

Stanley Marcus to take senior status

Big news out of the 11th Circuit today.  Judge Stanley Marcus announced that he will be taking senior status meaning that Donald Trump will get to appoint another judge to that court.  Although Marcus was appointed by President Clinton, he is known for siding with the conservative wing of the court, especially on criminal justice issues so it’s not altogether clear that a Trump appointee will move the already very conservative court more to the right.  With Marcus’ announcement, that means that Trump has two seats to fill on the 11th (Tjoflat also recently announced his retirement).  Both seats will be filled from Florida.

Breaking -- Greg Craig found NOT guilty

This was the big white collar case that everyone was following very closely over the past month.

Craig never should have been charged.  One count was dismissed and one count quickly rejected by a jury.  Sad!

From the Government's closing:

“No matter how many great things he has done in this country, no one is above the law in this country,” he went on. “The truth matters. Facts matter. And now that you have heard the evidence, it is time for you to hold this man accountable for that scheme, and that truth, and find him guilty as charged.”

And from the defense:

In the defense’s closing, Craig attorney William J. Murphy implored jurors to scrutinize the law and a 2013 letter from Craig to the Justice Department explaining to investigators that Craig had his own reasons to speak to the Times, namely to defend himself, his firm’s and his colleagues’ work, and that he was not paid for his media outreach.

Government allegations that Craig was part of Ukraine’s media rollout of the report relied on the words of a “congenital liar,” Murphy said, naming Manafort deputy Rick Gates, who testified and awaits sentencing after cooperating in Mueller’s probe and as a witness against Craig and Manafort.

Murphy said Craig was truthful in saying that in responding to the Times, Craig did not inform or consult with Ukraine or act as its agent.

Murphy spoke of the reputation Craig had built over 50 years and urged jurors to “salvage” it for him, saying, “We ask you to apply the evidence with the law and find him not guilty and prevent this prosecution from sounding a horrible, false note at the end of an incredible career of honor, service and integrity.”

There really should be consequences when the Government loses at trial.

Still no word on the mags

Tipsters welcome!

Meantime, go buy some Ben & Jerry’s Justice Remix’d, their new ice cream flavor:

We are flipping our lids over our newest flavor! Meet Justice ReMix’d, a new flavor featuring cinnamon and chocolate ice creams, gobs of cinnamon bun dough, and spicy fudge brownies. And the best part? Justice ReMix’d also has a sweet swirl of justice under the lid.

Justice For All? 

We launched Justice ReMix’d in partnership with The Advancement Project National OfficeOpens a new window, a multi-racial civil rights organization that works with local grassroots organizers on racial justice issues. We believe justice should be for everyone, not just the white and wealthy. So we’re speaking out in the best way we know of — with a euphoric ice cream flavor — for an end to structural racism in our broken criminal legal system.

We started in Washington, DC, by announcing the new flavor one day before the Miami-Dade County School Board is expected to address issues that impact the school-to-prison pipeline.

Systemic racism and criminal justice reform are big issues for a business to take on, but we’ve been advocates for social justice and equity throughout our 40 year history. “Our approach to creating social change is to raise up the work non-profits are doing on the ground,” said Co-Founder Ben Cohen. “We bring every resource we have to support them—our business voice, our connection with fans, our Scoop Shop community and of course, ice cream. Somehow, it’s easier to talk about difficult issues over a scoop or two.”

“Our country needs to invest in services that build up communities rather than those that tear them down,” said Advancement Project National Office Executive Director Judith Browne Dianis. “That means ending a wealth-based pre-trial detention system that locks people up because they are poor, Black or Brown. It means dismantling the school-to-prison pipeline, divesting from criminalizing students, and investing in the creation of high-quality education and services. It’s time to reimagine safety and justice.”

SDFLA Federal Courts Closed Tuesday

Courtesy of Hurricane Dorian.

The feds follow the school system. Since schools have closed, the feds have followed suit. So much for the Supremacy Clause.

No news on the magistrate interviews yet

I’m working on getting the list of 5 names being sent to the judges.  If you have a tip, please email me.

In the meantime, if you’d like some hurricane reading, check out these two opinions by Judge Newsom.  He is such a good writer that sometimes you forget that he is issuing some crushing opinions for criminal defendants.  The first is USA v. Baptiste, where even the prosecution couldn’t defend the trial court’s admission of hearsay with a straight face.  But the 11th won’t come out and say that it’s hearsay, instead holding that it doesn’t matter because ... you guessed it: harmless. After saying that, the court goes on to allow the hearsay at sentencing because it’s reliable hearsay.  Hmmmm:

Although Baptiste raises a number of issues on appeal, we focus primarily on two questions related to the hearsay testimony of a government witness. The abridged version of the story: Francesse Chery was one of Baptiste’s key witnesses. The government countered with her brother, Anael Chery, who testified (among other things) that Francesse had told him that, in exchange for her (false) testimony supporting Baptiste’s narrative, Baptiste would give her a Mercedes. Baptiste argues that Anael’s testimony was inadmissible hearsay and that the district court’s error in allowing the jury to hear it tainted both his conviction and his sentence.
Baptiste’s challenge presents two questions. First, was Anael’s testimony indeed inadmissible hearsay? The district court admitted the testimony pursuant to the statement-against-interest exception to the general prohibition on hearsay evidence, and on appeal the government has offered a smattering of additional theories of admissibility. We conclude that we needn’t decide whether Anael’s testimony was inadmissible hearsay because even if the district court did err in allowing it, the error was harmless. There was more than enough compelling—and undoubtedly admissible—evidence to support Baptiste’s conviction.
Second, and (sort of) relatedly, did the district court err in relying on Anael’s testimony when it imposed a sentencing enhancement for obstructing justice? If you’re saying, “Didn’t they just say they weren’t going to decide whether the testimony was admissible?”—we hear you. As it turns out, though, thanks to a doctrine called (somewhat oxymoronically) “reliable hearsay” we can answer the second question without deciding the first. Under the reliable-hearsay doctrine, so long as certain preconditions are met, a sentencing court can rely on evidence that would be off-limits in the guilt phase. For Baptiste, this means that even if Anael’s description of his sister’s supposed deal was inadmissible hearsay (and we aren’t saying either way) the district court might not have erred in relying on that testimony for the obstruction enhancement—again, so long as the preconditions are met.
So, what are they? Well, our case law has arguably sent mixed signals about that. There is, though, a synthesis. We hold (and clarify) today that the Sentencing Guidelines permit use of hearsay testimony so long as the overall record provides “sufficient indicia of reliability”—and we conclude that the indicia of reliability here are sufficient.

Next up is United States v. Taylor, which involves some really interesting 4th Amendment issues and NIT warrants. Judge Newsom finds that the warrants were illegal, but no suppression is warranted because... you guessed it: good faith. I’ll post more about this case later, but the takeaway from these two cases — the doctrines of harmless error and good faith are being used in extremely aggressive ways by the 11th Circuit to send a clear message to district judges: don’t worry, we have your back if you rule for the prosecution, even if you err.  Don’t worry about bad warrants in pretrial proceedings. Don’t sweat the hearsay at trial.  Appellate review weighs heavily in favor of affirming convictions even where there are big problems with the ways in which prosecutors and judges are obtaining these convictions.

We're #5...

...on this ranking for best places to practice law.  Number 1 is Illinois:

Our top state for lawyers based on the six metrics we considered is Illinois. Lawyers in Illinois have had high earnings growth over the past five years resulting in high average incomes. Between 2014 and 2018, average annual earnings for lawyers rose 22.70%, bringing the 2018 mean income for a lawyer in Illinois to $152,980.

Re Florida:

Florida ranks third on two of our density measures, the number of lawyers per 1,000 employees and law offices as a percentage of total establishments. In 2018, there were 5.49 lawyers in Florida for every 1,000 workers, and in 2016, law offices made up 3.04% of total establishments in the state. In fact, Florida has the second-highest law office density of any state in our top 10, following only the District of Columbia.
Lawyers’ earnings growth in Florida lags behind eight of our other top-10 states. In 2014, the average annual income for lawyers was $122,020 and it grew to be $128,920 in 2018. While this is an increase of almost $7,000, in percentage terms it is only 5.65%, which falls below the average earnings growth across all states of 6.58%.

  Kim Kardashian won't be practicing here as she is studying for California.  And studying hard:

In her interview with West, she opened up about how difficult it has been to be taken seriously as a student of law due to her wealth and celebrity.

“There is a misconception that I don’t actually have to study and that I’ve bought my way into getting a law degree – that’s absolutely not true,” she explained in an excerpt from the interview. “Being underestimated and over-delivering is my vibe.”