What sentence should Michael Flynn get?

Once upon a time, the government said something other than prison.

But now it is asking for 6 months in this memo. From the Washington Post:

The government revoked its request for leniency weeks after Flynn’s sentencing judge categorically rejected Flynn’s claims of prosecutorial misconduct and that he had been duped into pleading guilty to lying to FBI agents about his Russian contacts after the 2016 U.S. election. “In light of the complete record . . . the government no longer deems the defendant’s assistance ‘substantial,’ ” prosecutor Brandon Van Grack wrote in a 33-page court filing. He added, “It is clear that the defendant has not learned his lesson. He has behaved as though the law does not apply to him, and as if there are no consequences for his actions.”

Flynn faces sentencing Jan. 28 before U.S. District Judge Emmet G. Sullivan in Washington. Flynn defense attorney Sidney Powell is scheduled to file his sentencing request Jan. 22.

The request marked the latest twist in the legal saga of the former Army lieutenant general and adviser to President Trump, whose rocky path after his candidate won the White House included serving the shortest tenure of a national security adviser on record — just 24 days — before resigning in February 2017. He then became a key witness in a probe into the administration, before breaking with the prosecutors who had credited him with helping them.

Flynn’s change of heart came after the end of special counsel Robert S. Mueller III’s probe of Russian election interference. Some Trump allies at that time pushed the president to pardon figures in the probe, particularly Flynn. A potential prison term could renew such calls.

Flynn, 61, pleaded guilty Dec. 1, 2017, to lying about his communications with then-Russian Ambassador Sergey Kislyak during the presidential transition, becoming the highest-ranking Trump official charged and one of the first to cooperate with Mueller’s office.

***

This year Flynn switched defense lawyers, and his new team asked Sullivan to find prosecutors in contempt, alleging Flynn had been entrapped into pleading guilty and prosecutors wrongfully withheld evidence. Flynn also broke with prosecutors in the July federal trial of his former business partner Bijan Rafiekian, on charges of illegally lobbying for Turkey. Flynn was set to be the star witness against Rafiekian. He told a grand jury he and Rafiekian campaigned “on behalf of elements within the Turkish government,” a project that included an op-ed under Flynn’s name on Election Day in 2016. But just before the trial, Flynn claimed prosecutors wanted him to lie. A jury convicted Rafiekian without Flynn’s testimony, but a judge threw out those convictions in part because he found “insufficient” evidence of a conspiracy between the two men or of the Turkish government’s role....

In withdrawing their request for leniency, Flynn’s prosecutors highlighted his hindrance of Rafiekian’s prosecution, the only cooperation they had initially deemed “substantial.” The government recommended zero to six months of incarceration for Flynn, citing “the serious nature of the defendant’s offense, his apparent failure to accept responsibility, his failure to complete his cooperation in — and his affirmative efforts to undermine — the prosecution of Bijan Rafiekian.”

Prosecutors backed their claim Tuesday by filing dozens of pages detailing Flynn and his lobbying firm’s misconduct, including grand-jury transcripts and FBI interview reports. Overall, prosecutors said Flynn participated in 19 interviews with federal prosecutors and turned over documents and communications. The substance of his cooperation was initially hidden, but most has come out in Mueller’s final report, subsequent trials or public records released as a result of lawsuits filed by news organizations.

Fascinating debate in the 11th Circuit about juror deliberations and divine intervention

Can a juror base his decision to vote not guilty because that's what "the Holy Spirit" told him to do?  This is a really interesting one because Judge Rosenbaum writes the majority opinion in which she says that the district court was justified in excusing the juror:

If the right to a jury trial means anything, it means a right to a verdict based on the evidence. Indeed, the entirety of our procedural mechanisms is geared to achieve this result: we have trials so we can ensure all jurors consider the same universe of evidence; we have an entire body of rules—the Federal Rules of Evidence—devoted to controlling the information on which jurors can rely in reaching their decision; and we expressly instruct the jurors that they must determine their verdict based on the evidence. Then, if a defendant loses at trial, on appeal, we review the record to be certain that sufficient evidence supports the verdict.
We do these things to try to ensure that only those proven guilty based on admissible evidence will be convicted and to try to prevent convictions that arise from prejudice or even ostensibly noble reasons—such as a juror’s belief that God has told him to convict, irrespective of the evidence. The consistent application of these practices underpins the public’s faith in the jury system and delivers due process of law, an ideal in which our system of justice is grounded.
So we must steadfastly insist that a deliberating juror who is incapable of reaching a verdict based on the evidence be dismissed, regardless of whether that juror intends to convict or acquit a defendant. If we do not, we guarantee that, under at least some circumstances, a juror who is unable to arrive at a verdict rooted in the evidence will nonetheless be allowed to convict a defendant. That is unacceptable.
Here, the district court became aware that during deliberations, Juror 13 in Defendant-Appellant Corrine Brown’s trial made remarks suggesting he might not base his verdict on the evidence adduced at trial. Specifically, Juror 13 informed the other jurors at the outset of deliberations that “[t]he Holy Spirit told [him]” that Brown was not guilty on all counts.
The district court questioned Juror 13 for a while, in the presence of the parties, to ascertain whether Juror 13 meant that he had prayed to the Holy Spirit for guidance and wisdom in reaching a verdict based on the evidence—which would not run afoul of the court’s instructions to return a verdict based on the evidence—or whether he meant instead that he believed the Holy Spirit had “told” him to return a certain verdict irrespective of what the evidence showed—which would violate the court’s instructions. Based on Juror 13’s responses and demeanor, the district court concluded that Juror 13 was not capable of rendering a verdict rooted in the evidence presented at trial but that, despite his best intentions, Juror 13 would instead arrive at a verdict based on his perceived divine revelation, uninformed by the actual evidence. For this reason, the district court dismissed Juror 13 from the jury.
We find no clear error in the district court’s factual findings. And for that reason, the district court certainly did not abuse its discretion in dismissing Juror 13 from the jury. To hold otherwise would undermine our system of justice by allowing jurors to return verdicts based not on the evidence or law, but instead on a juror’s perceived divine revelation, irrespective of the evidence. Though here, the juror’s perceived divine revelation might have worked in the criminal defendant’s favor had the district court not learned of it mid-deliberations, a contrary holding would allow criminal defendants to be convicted based on a divine revelation divorced from the evidence, rather than the evidence presented at trial—a troubling result, to say the least. And regardless of whether it works in favor of or against the defendant, a rule that would allow a juror to base his verdict on something other than the evidence would be antithetical to the rule of law and is contradicted by decades of precedent.
Brown also raises a challenge to the forfeiture order the district court entered. We find no error there, either. We therefore affirm Brown’s convictions.

Judge William Pryor dissents and says the conviction should be reversed:

Do each of you solemnly swear that you will well and truly try the case now before this court and render a true verdict, according to the law, evidence, and instructions of this court, so help you God?

Every juror who was empaneled in Corrine Brown’s criminal trial swore this oath. One of them was dismissed because he apparently meant it. By approving his dismissal, the majority erodes the “tough legal standard” governing the removal of deliberating jurors and imperils the sanctity of the right to trial by jury. United States v. Abbell, 271 F.3d 1286, 1302 (11th Cir. 2001) (requiring that juror misconduct be proven “beyond reasonable doubt” before dismissing a deliberating juror). And it does so in an especially troubling manner: after admitting that “one reasonable construction” of the record supports the view that this juror rendered proper service, it holds that the district court’s adverse reaction to the way this juror talked about God nevertheless proved “beyond a reasonable doubt” that the juror engaged in misconduct. Majority Op. at 29–31 (emphasis added).
Over an hour and a half on the third day of jury deliberations, the district court investigated a concern about a juror who, on the first day, reportedly twice used religious language to express his position. During that hour and a half, the suspect juror repeatedly affirmed that he was basing his decision on the evidence. He even explained that he considered it his religious duty to do so. The district court thought he meant what he was saying; in the district court’s words, the suspect juror was “very earnest” and “very sincere.” The other juror who had raised the concern agreed that the suspect juror was deliberating, and she implied that he had not said anything worrisome during the second day of deliberations. Indeed, she never even accused him of misconduct.
But none of these encouraging signs mattered once the suspect juror confirmed that, near the start of deliberations, he had said something to the effect of “the Holy Spirit told me that Corrine Brown was not guilty on all charges.” With next to no context—and no other evidence of misconduct—the district court deemed this statement “an expression that’s a bridge too far, consistent with jury service as we know it,” and conclusive proof that the juror was “using external forces to bring to bear on his decision-making in a way . . . inconsistent with his jury service and his oath.”
To be sure, the risk of juror misconduct in deliberations is one of the most sensitive problems that can arise in a criminal trial, and the district court took its responsibilities seriously. Alas, to err is human, to forgive divine, but forgiveness is not a comfort afforded to a court of appeals. And the district court’s error in this appeal is clear. If this devout juror’s religious language alone proved his misconduct “beyond reasonable doubt,” Abbell, 271 F.3d at 1302, then the phrase “reasonable doubt” has changed its meaning.
The majority opinion suffers from several flaws. Foremost, it fails to adhere to our precedents governing the dismissal of a juror. Our precedents impose a “tough” standard of proof—indeed, the highest standard of proof known to law, “beyond a reasonable doubt”—before a district court can purge a deliberating juror. After paying lip service to this standard, the majority ordains district courts with broad discretion to dismiss any juror who confesses receiving guidance from God. But the majority fails to view that discretion through the lens of the tough standard imposed by our precedents, and so it fails to appreciate why the limited record below does not satisfy our standard. The majority then compounds these errors by misconstruing the import of the juror’s religious statements—which were spoken in the vernacular of a substantial segment of our citizenry—and by failing to understand why these statements were not conclusively disqualifying. The upshot of these errors is that the majority’s decision makes it far more difficult for the citizens of our Circuit to be judged by juries that represent a cross-section of their communities. Indeed, it even provides discriminating lawyers with a tool to target and eliminate certain demographics from jury service. For example, African American and evangelical Christians are more likely than others to believe that God speaks to them, and the majority’s decision now requires that these eligible jurors be stricken for cause if a discriminating lawyer elicits during voir dire that God communicates with them. For these reasons, I must dissent.

For what it's worth, I think both opinions get it wrong. I think an acquittal can be based on anything, including one's conscience. Convictions, on the other hand, cannot be based on anything except the evidence beyond a reasonable doubt. So if God tells a juror to acquit, fine. It would be disqualifying, however, for a juror to convict based on some intuition and not the evidence. Jury nullification is permissible to acquit, but not to convict.

Spy vs. Spy

There seems to be quite a bit of spying going on in South Florida.

There are the Mar-a-Lago spies.

Palm Beach police say they are conducting an “open and active criminal investigation” at the club, also President Donald Trump’s South Florida home, following an unspecified incident.

The Secret Service is leading the investigation and no arrest has been made, according to the Palm Beach Police Department.
***
While law enforcement officials would not discuss the nature of the investigation, Mar-a-Lago security has been breached repeatedly since Trump became president. The private club and mansion has witnessed several high-profile trespassing incidents.

And there are the Key West spies:

Since the fall of 2018, a total of four Chinese nationals have been arrested on charges of shooting pictures of military facilities in Key West, drawing the sharp interest of U.S. counterintelligence investigators who have been probing suspected Beijing-led spying activities in South Florida, including visitors to President Donald Trump’s private club, Mar-a-Lago, in Palm Beach.

On Saturday, Yuhao Wang and Jielun Zhang, both 24, were arrested after they approached the guard station at Sigsbee Annex in the Naval Air Station, were told to turn around and instead drove onto the restricted property at 8:30 a.m. After a half hour, U.S. Navy Security Forces located the students in their blue Hyundai car and found they were carrying cellphones and a Nikon camera.

“U.S. Navy Security Forces obtained consent to look at the devices and observed photographs taken on the Sigsbee Annex property, including U.S. military structures on Fleming Key,” according to an FBI complaint affidavit.

After they were stopped, both acknowledged they were told by a guard at the Sigsbee Annex gate to make a U-turn and leave the area. Instead, Wang admitted that they drove onto the U.S. Naval property and parked their car. Wang voluntarily showed the agents photos that he took with his cellphone, the affidavit says.

Zhang gave a similar statement, indicating that he provided his Michigan driver’s license to the guard. He also voluntarily showed the agents photos that he took with his camera and videos with his cellphone, according to the affidavit.

Raag Singhal sworn in.

Some pictures from the really nice ceremony in Ft. Lauderdale.

The official investiture has not yet been set. But in the meantime, Judge Singhal will be hearing cases.  Congrats!

Will Trump pardon Latin music mogul Rich Mendez?

That's the question posed by David Ovalle in this article. If anyone can get it done, it's Mendez's lawyer Phil Reizenstein:

Federal prosecutors said that between early 2009 and late 2010, Mendez’s co-defendants made “unsolicited calls to owners of resort time-share properties,” convincing them to pay fees for the “bogus sales of their property.” The owners, thinking the sales were legit, would shell out thousands in alleged “closing costs.”

Mendez says he fired his sales staff when he discovered they were using “scripts” to lure people into paying money. He reopened, but when the shady conduct continued, Mendez closed shop.

“He shut down his business before the police were ever involved,” Reizenstein said.

His legal team says local state and federal prosecutors both passed on taking the case. But in 2015, a grand jury in Dallas indicted the case because one of the credit-card processing companies was based in Texas. At least eight people wound up indicted on allegations they stole millions.

Mendez pleaded guilty to one count of conspiracy to commit wire fraud and cooperated with investigators, paying over $300,000 in restitution. Still, Dallas Assistant U.S. Attorney Candida Heath insisted on up to 9 years in prison, and possibly even more.

“You can’t buy your way out of a sentence of incarceration based on the amount of restitution you pay,” Heath said at his July 8, 2019, sentencing hearing.

His other defense lawyer, former Dallas U.S. Attorney James Jacks, shot back: “I don’t really understand the aggressiveness — maybe is the word — of the government’s efforts to put him in prison for what I think would be an incredibly long period of time.”

U.S. Judge Sam Lindsay praised Mendez’s work employing people through his rising music business, but still imposed the five years because he wanted to avoid “unwarranted sentencing disparities” between him and the co-defendants who got similar sentences.

A U.S. Attorney’s spokeswoman, Erin Dooley, noted that Mendez pleaded guilty because he was faced with “overwhelming evidence” In a statement Friday, she added: “Sentencing was at the discretion of a U.S. District Judge. “

Mendez has been free on bond since July.

His defense attorneys won’t say what, if any, behind-the-scenes efforts have been made to grab the White House’s attention about Mendez’s case.

Trump, who has long raged against criminal investigations into his own conduct, hasn’t shied away from granting clemency.

Famously, Trump pardoned former Arizona sheriff Joe Arpaio, who earned a criminal contempt charge while leading a high-profile and divisive crackdown on undocumented immigrants. In November, critics blasted Trump for issuing clemency to three military men convicted of war crimes.

Less controversially, Trump last year pardoned Ronen Nahmani, an Israeli-born ultra-Orthodox Jewish man who was convicted in South Florida in 2015 of selling synthetic marijuana. A federal judge had sentenced him to 20 years, and Nahmani got out after serving four years.

At the urging of celebrity Kim Kardashian West, the president also pardoned Alice Marie Johnson, a 63-year-old grandmother who’d been locked up for life for cocaine trafficking.

Mendez’s plight has also been taken up by Bernie Kerik, the New York police commissioner who served more than three years in prison for federal tax fraud, and now serves as conservative commentator and advocate for justice reform.

“His case is a demonstration of why we need real criminal justice reform within the Department of Justice today,” Kerik said. “We take a guy like Rich Mendez out of the work force, destroy his life, destroy his family. It’s complete insanity.”

Ironically, Rich Music blossomed during the years the legal case was hanging over his head.

***

Sitting back in the studio, Mendez is unruffled by what’s to come. When he gets out, Mendez wants to work in the area of criminal-justice reform.

For now, he’ll report Tuesday to Miami’s Federal Correctional Institution, a low-security facility. He’s already been briefed on how to survive in prison, and make the most of rehabilitation programs.

“I want to get this part over with already,” he said.

Chief Justice Roberts' New Year's Card

It's here.

Okay, fine... it's his year end report. And it's a doozy with lots of people saying that it's a pointed message to the executive and legislative branches. It's short, so click through and read the whole thing. Here's the conclusion:

I ask my judicial colleagues to continue their efforts to promote public confidence in the judiciary, both through their rulings and through civic outreach. We should celebrate our strong and independent judiciary, a key source of national unity and stability. But we should also remember that justice is not inevi-table. We should reflect on our duty to judge without fear or favor, deciding each matter with humility, integrity, and dispatch. As the New Year begins, and we turn to the tasks be-fore us, we should each resolve to do our best to maintain the public’s trust that we are faith-fully discharging our solemn obligation to equal justice under law.

New Year, new judges

Happy new year everyone!

Here are some updates on the local judgeships:

1. The Fort Pierce seat is still open. It's been pretty quiet since the last update back in July, where we learned that 3 candidates were being vetted:

Aileen Cannon (AUSA, Fort Pierce)
David Leibowitz (former AUSA, general counsel Braman)
Michael Sherwin (AUSA, Miami)

2. Raag Singhal has been confirmed and is sitting in Ft. Lauderdale. Congrats again to him.

3. President Trump has nominated John Badalamenti to be a district judge in the Middle District of Florida. He is currently a state judge and formerly an assistant federal public defender.

4. The Florida Supreme Court has two open seats. An update on the 32 applicants here (Miami applicants in bold):

Judge Kimberly Bonner of the 12th Judicial Circuit, which is made up of DeSoto, Manatee and Sarasota counties,
Judge Hunter Carroll also of the 12th Judicial Circuit.
Judge Howard Coates Jr. of the 15th Judicial Circuit in Palm Beach County.
John Couriel, an attorney with the Miami firm Kobre & Kim.
Jack Cox, an attorney with the Hobe Sound firm Jack Schramm Cox, Chartered.
Judge Fabienne Fahnestock of the 17th Judicial Circuit in Broward County.
Manuel Farach, an attorney in the Fort Lauderdale office of the firm McGlinchey Stafford.
Judge Renatha Francis of the 15th Judicial Circuit in Palm Beach County.
Judge Jonathan Gerber of the 4th District Court of Appeal in Southeast Florida.
Judge Jamie Grosshans of the 5th District Court of Appeal in Central Florida.
Judge Jeff Kuntz of the 4th District Court of Appeal in Southeast Florida.
Judge Bruce Kyle of the 20th Judicial Circuit, which is made up of Charlotte, Collier, Glades, Hendry and Lee counties.
Judge Norma Lindsey of the 3rd District Court of Appeal, which hears cases from Miami-Dade and Monroe counties.
Judge Howard McGillin of the 7th Judicial Circuit, which is made up of St. Johns, Putnam, Flagler and Volusia counties.
Judge Bronwyn Miller of the 3rd District Court of Appeal, which hears cases from Miami-Dade and Monroe counties.
Judge Anne-Leigh Moe of the 13th Judicial Circuit in Hillsborough County.
Belinda Noah, a Tampa attorney and CEO of Belinda Noah Productions, Inc.
Judge Virginia Norton of the 4th Judicial Circuit, which hears cases from Duval, Clay and Nassau counties.
Judge Timothy Osterhaus of the 1st District Court of Appeal in North Florida.
Eliot Pedrosa, a Miami attorney and U.S. representative on the Board of Executive Directors of the Inter-American Development Bank.
Judge Carol-Lisa Phillips of the 17th Judicial Circuit in Broward County.
Judge Cymonie Rowe of the 15th Judicial Circuit in Palm Beach County.
Judge Lori Rowe of the 1st District Court of Appeal in North Florida.
Judge Samuel Salario of the 2nd District Court of Appeal in Southwest Florida.
Judge Tatiana Salvador of the 4th Judicial Circuit, which hears cases from Duval, Clay and Nassau counties.
Judge Meredith Sasso of the 5th District Court of Appeal in Central Florida.
Judge Ed Scales of the 3rd District Court of Appeal, which hears cases from Miami-Dade and Monroe counties.
Judge Elijah Smiley of the 14th Judicial Circuit, which hears cases from Bay, Calhoun, Gulf, Holmes, Jackson and Washington counties.
Judge Adrian Soud of the 4th Judicial Circuit, which hears cases from Duval, Clay and Nassau counties.
Judge William Thomas of the 11th Judicial Circuit in Miami-Dade County.
Judge Daryl Trawick of the 11th Judicial Circuit in Miami-Dade County.
Judge Thomas Winokur of the 1st District Court of Appeal in North Florida.

Judge Moore closes courts on December 24

Here’s the Administrative Order.

Happy Holidays!

Happy Festivus for the rest of us.

It’s going to be a quiet two weeks in the District.  But the powers that be have made the deadline for applying to the Florida Supreme Court on December 24.  Fun times.  Here’s an article about the applicants for the two open seats (Lagoa/Luck) so far:

As of Friday evening, 12 applicants had already handed in their paperwork in a process that stems from President Donald Trump naming former Florida Supreme Court justices Robert Luck and Barbara Lagoa to the 11th U.S. Circuit Court of Appeals. The Atlanta-based court handles cases from Florida, Alabama and Georgia.

The openings offer Gov. Ron DeSantis an opportunity to appoint two more justices to a Supreme Court he’s already reshaped.

Shortly after taking office in January, DeSantis named three conservative jurists --- Luck, Lagoa and Carlos Muñiz --- to replace three liberal-leaning justices who were forced to step down after reaching a mandatory retirement age.

The applicants as of Friday evening included lawyer Belinda Noah, along with five Florida appellate judges and six circuit judges from across the state.

Judges Ed Scales and Norma Lindsey of the 3rd District Court of Appeal, Judge Samuel Salario of the 2nd District Court of Appeal and Judge Thomas “Bo” Winokur of the 1st District Court of Appeal had applied. They were all appointed to their current jobs by former Gov. Rick Scott.

Also in the running were circuit judges Cymonie Rowe, of the 15th Judicial Circuit in Palm Beach County; Daryl Trawick, of the 11th Judicial Circuit in Miami-Dade County; Howard McGillin, of the 7th Judicial Circuit, which is made up of Flagler, Putnam, St. Johns and Volusia counties; Elijah Smiley, of the 14th Judicial Circuit, which is made up of Bay, Calhoun, Gulf, Holmes, Jackson and Washington counties; Tatiana Salvador, of the 4th Judicial Circuit, which is made up of Duval, Clay and Nassau counties; and Hunter Carroll, of the 12th Judicial Circuit, which is made up of Sarasota, Manatee and DeSoto counties.

Raag Singhal confirmed!

The vote was 76-17.  Congratulations to our newest federal judge!  Woohoo!

Raag Singhal to be confirmed today (UPDATED)

Most of the country will be focused on the impeachment vote today. But the Trump judge machine is still operating and another slate of district judges will be confirmed today, including our own Raag Singhal this afternoon. Judge Singhal is great, so say what you will about Trump, but we are getting a good one!

UPDATE -- looks like it will actually be tomorrow (Thursday).

Breaking: Gov. DeSantis Appoints SDFL AFPD and AUSA to State Court Bench, Elevates Former AUSA

Assistant Federal Public Defender Ayana Harris and AUSA Miesha Darrough are joining the state court bench, two of four new County Court judges named today by Gov. Ron DeSantis. Former AUSA and current County Court Judge Robert Watson is being elevated to the Circuit Court, along with two other County Court judges. The Governor just made the announcement at a press conference at the University of Miami, where he presented his latest seven judicial appointees.

Harris is a Howard Law grad and has been a member of the Florida Bar since 2002. She first served as a state public defender and since 2008 has been an Assistant Federal Public Defender.

Darrough is also a graduate of Howard University Law School and has been a member of the Florida Bar since 2005. She served as an Assistant State Attorney from 2005 to 2014, including as a felonies Division Chief. Darrough then joined the U.S. Attorney’s Office, where she is currently Special Counsel to U.S. Attorney Ariana Fajardo Orshan.

Watson is a Stanford Law grad and has been a Florida lawyer since 2003. He practiced at Steel Hector & Davis and Holland & Knight before serving as an AUSA from 2011 to 2016. After two years at Kobre & Kim, he was appointed to the County Court by then-Gov. Rick Scott in January 2019.

Congratulations to all of the appointees!

In defense of former Kentucky Gov. Matt Bevin

So the outgoing Kentucky Governor did the right thing and issued a bunch of pardons as some of  his last acts in office, and the local prosecutors are not happy about it.  From the Washington Post:

Former Kentucky Gov. Matt Bevin (R) on Friday night defended his controversial pardons as reflections of America’s foundational “support for redemption,” a statement that followed a Republican state leader’s call for a federal investigation into Bevin’s actions.
The former governor, who lost his bid for reelection in November, made national headlines this week after he pardoned hundreds of people during his final days in office, including a man convicted of reckless homicide, a child rapist and a woman who threw her newborn in the trash. In one case, Bevin pardoned a man convicted of homicide who was the brother of one of the former governor’s campaign donors.
The pardons outraged local attorneys and prosecutors, who said they were not consulted during the process. As the backlash continued to build Friday, Republicans in the Kentucky state Senate issued a statement blasting Bevin.

He responded:

On Friday, Bevin responded to his critics in a series of 20 tweets. He said he spent “hundreds of hours” reviewing pardon applications and made each decision based on the “set of facts, evidence, lack of evidence, supporting documents, reasons and unique details.”
Bevin added it was “highly offensive and entirely false” for anyone to suggest “political or financial considerations” played a role in his decisions.
“The criminal justice system is intended to find the proper balance between justice for the victims and rehabilitation for the offenders. When it is not possible to guarantee more of either being accomplished by further incarceration, it is reasonable for a person to be considered for either a commutation or a pardon,” Bevin wrote. “This is never an exact science. … The entire criminal justice system hinges upon the judgment of third parties.
Bevin, a devout Christian, also strongly defended himself from charges he endangered public safety.
“Not one person receiving a pardon would I not welcome as a co-worker, neighbor, or to sit beside me or any member of my family in a church pew or at a public event,” he wrote. “No community is either more or less safe now, than it was before the pardons and commutations given over the past four years.”

Good for Bevin and shame on the critics. We put way too many people in jail for way too long. The fact that the Governor used his pardon power as it was intended should be applauded. If we are serious about criminal justice reform, we should be encouraging this sort of behavior.

A new hope

There's been a lot of talk about how the new judges (both district and circuit) will be on criminal justice issues.  One of those judges, Roy Altman, is already distinguishing himself as independent, smart, and not just another government rubber-stamp.  Here's his latest order (which demonstrates those qualities), dismissing a hung count after trial. 

Federal courts are now used to prosecute cheating in class

We all know of the high profile, and controversial, prosecutions of Felicity Huffman and Lori Loughlin.  But now, the "Varsity Blues" prosecutors have expanded their case to go after parents who have engaged in simple cheating.  The latest case (and plea deal!) involves a charge of wire fraud for a parent who paid $9,000 for another person to take an online class for her son.  Immoral, yes.  Federal criminal wire fraud... come on!  From USA Today:

In a different twist in the nation's college admissions scandal, a woman from Newport Beach, California, was charged Monday and agreed to plead guilty to paying $9,000 to have someone take online classes for her son so he could graduate from Georgetown University.

Karen Littlefair is the 53rd person charged with crimes in the nation's sweeping college admissions case involving Rick Singer, but her case stands out from the other 35 parents charged. She is the first parent charged in the "Varsity Blues" scandal in a cheating plot involving a student already enrolled in college rather than one seeking admission.

In a deal with prosecutors, Littlefair, 57, agreed to plead guilty to one count of conspiracy to commit wire fraud. The date of her plea hearing in Boston federal court was not set.

She is the wife of Andrew Littlefair, president and CEO of Clean Energy Fuels. He was not charged in the case.

Whenever there are challenges to broad statutes, you hear prosecutors say in defense: "Don't worry; you can trust us; we would never abuse the statute." But this case is an example of why judges cannot accept those sorts of defenses. This case is just absurd.

Should the jury see a cooperating witness' factual proffer?

Justice Sotomayor isn't so sure. Here's a statement she issued today in a case where cert was denied:

For his alleged role in a group beating, petitioner Calmer Cottier was charged with, among other things, second-degree murder by an Indian in Indian country. Two other participants accepted plea deals with the Government; as part of their pleas, the participants signed statements— known as factual-basis statements—that implicated Cot-tier in the murder. A federal prosecutor also signed those inculpatory statements to vouch for their veracity. Then, that same prosecutor offered those same incriminating statements as evidence at Cottier’s trial. On appeal, the Court of Appeals for the Eighth Circuit observed that the court in which Cottier was prosecuted “routinely” sends unredacted factual-basis statements into the jury room. 908 F. 3d 1141, 1149 (2018). I agree with the Eighth Circuit that this practice is “troubling.” Ibid. By presenting the jury with a factual-basis statement signed by the Government, the prosecution improperly ex-presses its “‘personal belief ’ ” in the truth of the witness’ statements—a stamp of approval, an assurance from the Government itself, that the witness is to be believed. United States v. Young, 470 U. S. 1, 7–8 (1985). In this case, however, Cottier’s attorney did not object to the statements’ admission and used them as part of Cottier’s defense. For that reason and others expressed by the Eighth Circuit inaffirming Cottier’s convictions, I do not dissent from the denial of certiorari but instead echo its admonition that the admission of such statements “is not a favored practice.”908 F. 3d, at 1149.

Judge Barbara Lagoa sworn in

Here are some lovely pictures from the swearing in.  Congratulations to Judge Lagoa!

All around good-guy Ben Greenberg jumps to Greenberg Traurig

Great get for GT.  He's the former U.S. Attorney and a South Florida guy. 

The SDFLA U.S. Attorney's office is undergoing a lot of change in the past year.  It will be interesting to see what direction it goes without people like Ben.

Congrats to him and GT.

Meantime, in unrelated news, the government will have to deal with a huge lawsuit of women prisoners against Coleman (a federal prison for women outside of Orlando) for repeatedly raping its inmates.  Story by the Herald here:

Fourteen women, ranging in age from 30 to 56 and nearly all first-time offenders, have banded together to sue the United States, not under pseudonyms but under their real names, over the abuse they say they’ve endured at the Bureau of Prisons-operated camp. Seven of the women are still incarcerated.

Who is Andrew Brasher?

So who is Andrew Brasher, the new 11th Circuit nominee. The Vetting Room has the details here.  Below is the introduction and conclusion, but there is quite a bit of interesting information in the entire post, which you should check out.

Six months ago, Judge Andrew Brasher was narrowly confirmed to be a U.S. District Court Judge.  Now, the 38-year-old Brasher is ready to move on from the position to the U.S. Court of Appeals for the Eleventh Circuit.

Background

Andrew Lynn Brasher was born in Milan, TN on May 20, 1981.  Brasher moved to Alabama to attend Samford University, a private Christian University in Homewood, where he graduated summa cum laude in 2002.^[1]  Brasher went on to Harvard Law School, graduating cum laude in 2006.

Upon graduation, Brasher clerked for Judge William Pryor on the U.S. Court of Appeals for the Eleventh Circuit.^[2]  He then joined the Birmingham office of Bradley Arant Boult Cummings LLP as an Associate.

In 2011, Brasher was appointed by Luther Strange, then the Attorney General of Alabama, to be Deputy Solicitor General.  Brasher served in that capacity until 2014 when he was appointed Solicitor General of Alabama.^[3] 

In April 2018, Brasher was nominated to the U.S. District Court for the Middle District of Alabama, filling a longstanding vacancy opened by the resignation of Judge Mark Fuller.  Brasher was confirmed by the Senate in a 52-47 vote on May 1, 2019, and has served on the Middle District since then.

***

Overall Assessment

Despite Brasher’s significant experience with litigation, his youth and strongly conservative writings and experience made him a controversial nominee at the district court level and caused his nomination to sit for over a year before confirmation by a narrow vote.  Now, as an appellate nominee, Brasher may well have a faster confirmation, simply because Republicans tend to prioritize appellate nominees.  Nonetheless, Brasher’s brief tenure as a district court judge, as well as his youth and conservative ideology, is likely to make him a controversial nominee.

Welcome back

It's the first Monday in December... the year is just about over.  And the Supreme Court has decided to hear a big gun case, the first in 10 years.  From the AP:

For years, the National Rifle Association and its allies had tried to get the court to say more about gun rights, even as mass shootings may have caused the justices to shy away from taking on new disputes over gun limits. Justice Clarence Thomas has been among members of the court who have complained that lower courts are treating the Second Amendment’s right to “keep and bear arms” as a second-class right.

The lawsuit in New York began as a challenge to the city’s prohibition on carrying a licensed, locked and unloaded handgun outside the city limits, either to a shooting range or a second home.

Lower courts upheld the regulation, but the Supreme Court’s decision in January to step into the case signaled a revived interest in gun rights from a court with two new justices, Neil Gorsuch and Brett Kavanaugh, both appointees of President Donald Trump.

Officials at both the city and state level scrambled to find a way to remove the case from the justices’ grasp. Not only did the city change its regulation to allow licensed gun owners to transport their weapons to locations outside New York’s five boroughs, but the state enacted a law barring cities from imposing the challenged restrictions.

“There is no case or controversy because New York City has repealed the ordinance and the New York state Legislature has acted to make sure it remains repealed,” said Jonathan Lowy, chief counsel and vice president of the gun control group Brady’s legal action project.

But those moves failed to get the court to dismiss the case, although the justices are likely to ask at arguments about whether there’s anything left for them to decide.

Paul Clement, who represents three New York residents and New York’s National Rifle Association affiliate challenging the transportation ban, said in an email that among the reasons the case remains alive legally is that the court frowns on tactical moves of the sort employed by the city and state that are meant to frustrate the justices’ review of an issue.

Happy Thanksgiving

Some things I’m thankful for:

1.  United States v. Booker.
2.  Judges who downward vary and don’t have trial penalties.
3.  Brady v. Maryland.
4.  Prosecutors who have open files and turn over witness statements.
5.  Judges who order prosecutors to turn over witness statements and exhibit lists before well in advance of trial.
6.  Self-surrender for initial appearances and for serving sentences.
7.  Magistrate judges who issue reasonable bonds.
8.  Appellate judges who are not afraid to reverse.
9.  Defense lawyers who fight and the wonderful criminal defense bar in SDFLA.
10.  Clients who have the guts to fight.

Keep up the list in the comments.

“The Case of the Polite Bank Robber.”

The introduction to this per curiam opinion (clearly written by Judge Rosenbaum), United States v. Roberto Perez, is entertaining:

If this were an Encyclopedia Brown mystery, it might be called The Case of the Polite Bank Robber.1 Without any weapons, Defendant-Appellant Roberto Arturo Perez calmly walked into two different banks. He handed a teller at each bank a note with instructions using words like “please” and “thank you,” made no reference to any type of weapon, bargained pleasantly with one teller for $5,000, and allowed another teller to leave the teller’s post and report the robbery while it was ongoing.
Of course, there’s no such thing as a good bank robbery. But from the perspective of the Sentencing Guidelines, there are certainly less bad ones. All bank robberies charged under 18 U.S.C. § 2113(a) necessarily involve implicit or explicit threats of some type, since they must all occur by “force and violence” or “intimidation” to qualify as bank robberies under that statute.2 But the Guidelines more harshly punish defendants who use implicit or explicit threats of death to accomplish bank robberies than those who employ lesser threats in their crimes.
Here, we decide whether the district court clearly erred in concluding that Perez’s conduct and choice of language would have instilled in a reasonable person a fear of death, justifying application of the Guidelines’ threat-of-death enhancement. In other words, we must evaluate whether Perez’s bank robberies were of the less bad variety, by Guidelines standards. After careful consideration and with the benefit of oral argument, we hold that they were. We therefore vacate Perez’s sentence and remand for resentencing.

1. For the uninitiated, the Encyclopedia Brown children’s book series, written by Donald J. Sobel, follows the adventures of Leroy Brown (not the Leroy Brown of Jim Croce notoriety). Brown was a fictional, highly intelligent, boy sleuth who solved mysteries.

Congrats to Tracy Dreispul of the FPD's office and to UM Law Professor Ricardo Bascuas for the win.

Judge Roy Altman does the right thing and sentences Yujing Zhang to time served

The prosecutors asked for 18 months on this trespass case even though the guidelines were 0-6. From the Miami Herald:

On a spring afternoon, a Chinese businesswoman wearing a gray evening gown was so determined to meet President Donald Trump that she bluffed her way into his private Palm Beach club, saying at first she wanted to go to the pool, but later insisted she was on a mission to attend a gala event at Mar-a-Lago.

Yujing Zhang was let in by the Secret Service and club security staff after they confused her last name with that of a member, but was arrested soon after her mysterious arrival on March 30.

On Monday, the 33-year-old Chinese woman appeared in a Fort Lauderdale federal courtroom, where she was sentenced to eight months behind bars — essentially time served. She had been found guilty in September of entering a restricted area and lying to federal agents about it.

In handing down the sentence, U.S. District Judge Roy Altman rejected a request by the U.S. attorney’s office that he sentence her to 18 months.

The sentence, likely to be followed by Zhang’s deportation to China, writes an end to a bizarre court case in which the defendant, a woman with limited English skills and no legal training, represented herself — clumsily and ineffectively, for the most part.

She had fired the public defender’s office, though was still receiving advice on the side.

There is a lot of pressure on new judges to give guideline sentences even though the experiences judges rarely give guideline sentences anymore. And the government has a new strategy with the new judges to ask for high-end sentences or above-guideline sentences to dissuade them from giving downward variances. Credit to Judge Altman for rejecting the government's request.

President Trump officially nominates Andrew Brasher to the 11th Circuit

It's hard to imagine a court going through more change than the 11th Circuit. Here's the link to the WH press release. Brasher will fill Ed Carnes' seat if he is confirmed. He will have a tougher time than Luck and Lagoa, who were easily confirmed.

Judge Barbara Lagoa confirmed to the 11th Circuit

The vote was 80-15

Congratulations Judge Lagoa!

The 11th Circuit has now technically “flipped.” But both Luck and Lagoa are much more down the middle than their predecessors.

Judge Robert Luck confirmed to the 11th Circuit

The vote was 64-31.

Congrats Judge Luck!

Up tomorrow, Barbara Lagoa.

Bruce Bagley charged with money laundering

Yes, that Bruce Bagley. The professor of drug cartels and dirty money. Oh boy.

From the Herald:

A University of Miami professor who studies organized crime and drug cartels was accused Monday of engaging in a plot to launder millions in dirty money from Venezuela.

Federal prosecutors in New York announced Bruce Bagley, 73, was charged with money laundering and conspiracy after he “opened bank accounts for the express purpose of laundering money for corrupt foreign nationals.”

Bagley is a longtime UM international relations professor who wrote the book “Drug Trafficking, Organized Crime, and Violence in the Americas Today.” Over the years, Bagley has been a go-to quote for the media on topics including the failures of the U.S. war on drugs, violence in Haiti and, yes, corruption in Venezuela.

Federalist Society

The Federalist Society in Florida is known as the King & Queen maker... or more accurately, the judge makers, not only here in South Florida but across the state and nationally.  They had their big shindig in Washington, DC last week and over the weekend.  And although the Federalist Society strives to appear non-partisan, everyone knows that it is a deeply conservative organization.  This weekend, some of this speeches were over-the-top partisan, so I wonder how those who are going to these events as a way to launch their judicial careers feel about these speeches.  Here’s a New York Times article about AG Bob Barr’s speech attacking the left:

His forceful defense of the president came after some of Mr. Trump’s allies have in recent weeks accused Mr. Barr of failing to vociferously back the president. Mr. Trump was said to be frustrated that Mr. Barr urged him to release a reconstructed transcript of the July call with President Volodymyr Zelensky of Ukraine at the center of the impeachment case. The president also wanted Mr. Barr to hold a news conference to say the president had violated no laws, only to have Mr. Barr rebuff the request. Mr. Trump has denied that account.

Speaking for an hour at the upscale Mayflower Hotel a few blocks from the White House, Mr. Barr hit back at the president’s critics on an array of fronts as he argued that Mr. Trump, in his capacity as president, has not overstepped his authority.

While Mr. Barr never uttered the word impeachment, he castigated those he sees as stalling Mr. Trump’s agenda. He defended the president’s right to set policies, steer the country’s diplomatic and military relations and keep executive branch conversations confidential from congressional oversight.

“In waging a scorched-earth, no-holds-barred war against this administration, it is the left that is engaged in shredding norms and undermining the rule of law,” Mr. Barr said.

He noted that opponents labeled themselves “the resistance” immediately after Mr. Trump was elected and accused them of “using every tool and maneuver to sabotage the functioning of the executive branch and his administration.

“Resistance is the language used to describe insurgency against rule imposed by an occupying military power,” Mr. Barr said. He added that it connotes that the government is not legitimate. “This is a very dangerous and indeed incendiary notion.”

Mr. Barr spoke as the second public impeachment hearing wrapped up on Capitol Hill, where Democrats have accused Mr. Trump of abusing the power of his office for personal gain.

Marie L. Yovanovitch, the former ambassador to Ukraine, testified that she was the target of a smear campaign engineered to get Mr. Trump to remove her; she was recalled from Kiev in the spring. She said that her dismissal from the post put national security at risk by opening the door for Russia to further influence Ukraine, a strategic American ally.

Judges Lagoa & Luck to be confirmed next week

Sen. McConnell has filed cloture, which means that they should receive the final confirmation vote next week.  According to those in the know, that should be Tuesday or Wednesday.  Congrats to both of them, really good people. 

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?