Stone sentenced to 40 months

The criminal justice world, as well as the political world, are all talking about the Roger Stone sentence.  40 months...

Rumpole has a nice post about it here, calling the sentence too harsh.  He's right of course.  The problem is that so many people see it as lenient because the sentence was below the Sentencing Guidelines.  And that's the problem.  Over 3 years (YEARS!) in prison for a first-time non-violent and elderly offender is not lenient by any stretch.

We've become so accustomed to the Sentencing Guidelines that people -- including judges -- see downward variances as some sort of break.  But once we realize that the guidelines are just made up numbers, which are not based on anything, and that they have completely warped our system into jailing more people for longer amounts of time than any other country in the world, then we will see that downward variances are no break and 3+ years is lenient. 

Maybe we should not call them "downward variances."  That implies that the judge should start off with the guidelines.  Any ideas?

Trump commutes sentence of Judith Negron

In one of the worst examples of the trial tax in this District and around the country, Judith Negron -- a first-time non-violent offender -- was sentenced to 35 years (35 years!!!) in prison for Medicare fraud.  President Trump commuted her sentence yesterday to time served (8 years).  Most people are asking what her connection is to the President, and that's the problem with his commutations.  They are being viewed as individual driven instead of being driven by the unfairness of the system (which is the same criticism of his Stone tweets).  I just wish Trump would use this opportunity to grant more commutations and make some broader statements about the issues with our system.  Let's fix the trial tax and the Sentencing Guidelines.

Here's the WH press release on Negron:

Judith Negron is a 48-year-old wife and mother who was sentenced to 35 years in prison for her role as a minority-owner of a healthcare company engaged in a scheme to defraud the Federal Government.  Ms. Negron has served 8 years of her sentence and has spent this time working to improve her life and the lives of her fellow inmates.  Her prison warden and her counselor have written letters in support of clemency.  According to her warden, Ms. Negron “has always shown herself to be a model inmate who works extremely well with others and has established a good working relationship with staff and inmates.”  This grant of clemency is supported by the Clemency for All Non-Violent Drug Offenders Foundation, Dan Schneider, Matt Whitaker, Adam Brandon, Kevin Roberts, Brett Tolman, John Hostettler, and Alice Johnson, among others.

Roberto Martinez takes on his former colleagues in this Miami Herald op-ed

There are a bunch of former prosecutors calling for AG Bill Barr to resign in light of the recent change in Roger Stone's sentencing recommendation. Former U.S. Attorney Roberto Martinez -- who worked under Barr during the Bush presidency -- did not sign the letter even though he disagreed with Trump's public statements about the Stone sentencing, and he explained why in this Miami Herald op-ed:

Neither the signers of the letter — nor I — have any first-hand knowledge of the facts, the law and the various policy considerations involving the appropriate punishment that were considered by the DOJ and Barr regarding Stone’s sentencing. Neither the signers — nor I — know what conversations took place, when or where they took place, who participated in them, who said what and what issues where considered.

Yet, the letter makes a lot of assumptions and accusations about Barr and his decision that no lawyer or prosecutor (former or current) should ever make without knowing the details. Certainly, none of us would want a prosecutor to make accusations about one of our clients similarly uninformed. And yet, the letter’s signers demand that Barr resign. It is dangerous to make accusations about anyone without fully knowing the facts. Former prosecutors, some of whom are now in the private sector representing clients before the DOJ, probably know that better than anyone.

Meantime, the Federal Judges' Association has called an emergency meeting to address the Stone affair.  From the USA Today:

A national association of federal judges has called an emergency meeting Tuesday to address growing concerns about the intervention of Justice Department officials and President Donald Trump in politically sensitive cases, the group’s president said Monday.

Philadelphia U.S. District Judge Cynthia Rufe, who heads the independent Federal Judges Association, said the group “could not wait” until its spring conference to weigh in on a deepening crisis that has enveloped the Justice Department and Attorney General William Barr.

“There are plenty of issues that we are concerned about,” Rufe told USA TODAY. “We’ll talk all of this through.”

This strikes me as strange.  I bet Judge Amy Berman Jackson does not like the idea that the association is having an emergency meeting about a pending case before her.

It will be interesting to see what happens at the Stone sentencing now, as well as the Michael Avanetti sentencing (which is scheduled for June). In both cases, I'm for a sentence way under the made-up Sentencing Guidelines. I just don't think we need to be sentencing non-violent first-time offenders to prison simply because they decided to go to trial (or really for any other reason). My take on the Stone sentencing is here.

Valentine's Day news and notes

1. The SDFLA Court will be celebrating Black History Month with a presentation on "Effective Legal Activism" on February 24 at 11:30 at the Ferguson Courtroom, 13th Floor. RSVP by 2/18/20 to: FLSD_Program@flsd.uscourts.gov

2. The 11th Circuit judges went at it in a student loan case this week. Judge Martin called Judge Pryor's reading of the statute at issue as "a grammatically incoherent reading." From Law.com:

An opinion affirming that one of the nation’s leading federal student loan guaranty agencies isn’t liable for aggressive tactics it employed over a nonexistent debt has ignited the second textualist split this week at the U.S. Court of Appeals for the Eleventh Circuit.

The ruling published Friday and written by Judge William Pryor Jr. of the U.S. Court of Appeals for the Eleventh Circuit provoked a strong dissent from fellow Judge Beverly Martin of the U.S. Court of Appeals for the Eleventh Circuit. Martin chastised Pryor and Judge Gregory Katsas of the U.S. Court of Appeals for the D.C. Circuit, who joined with Pryor in affirming dismissal of the case, arguing that their findings could “only be achieved by a grammatically incoherent reading” of the statute.

Pryor took issue with Martin’s critique in his majority opinion, writing, “Our dissenting colleague is wrong.”

Katsas was appointed by President Donald Trump in 2017. Pryor, a George W. Bush appointee, has twice been on Trump’s short list for the U.S. Supreme Court. Martin was appointed by President Barack Obama.

3. Last week, Judge Robin Rosenberg was assigned the Zantac MDL, one of the largest in MDL history. It's a big deal in civil circles. The MDL panel said Rosenberg was “an able jurist who has not yet had the opportunity to preside over an MDL.”

“Let's use Roger Stone's case to fix our broken justice system“

The the title of my latest piece in The Hill, which you can access here.  Please let me know your thoughts.  Here’s the intro:

Every day in courthouses around the country, federal prosecutors ask for grossly outrageous and offensively high sentences. The United States puts more people in prison for longer amounts of time than any other country in the world. And it’s not just violent, repeat offenders who are getting the monster sentences. Those whopping sentences are also doled out like candy to first time, non-violent defendants.

That’s why it should have come as no surprise when the prosecutors handling Roger Stone’s case (involving an elderly first-time non-violent defendant) recommended a sentence of 7-9 years.

As wrong and over the top as that recommendation was, it was not unusual in the slightest. What was unusual was President Donald Trump’s Department of Justice coming in and saying that the recommended sentence was “excessive and unwarranted” and that the sentencing guidelines do not “serve the interests of justice in this case.”

People are rightly upset that DOJ is saying that the sentencing guidelines apply to everyone — except the president’s friends. That’s a huge problem, and it’s no wonder that the prosecutors handling the case resigned. How can they go into court every day and ask for monster sentences across the board except for FOT (Friends of Trump)?

Breaking -- Andrew Brasher confirmed to the 11th Circuit

Another lighting fast confirmation.  The vote was 53-43.

BREAKING -- Judge Federico Moreno to take senior status.

Wow, this is big news.

Judge Moreno has been the heart and soul of this Court for 30 years.  He's been the Chief and on Trump's short list for the Supreme Court. 

He gave his notice today that he will take senior status when his replacement is confirmed or on July 17, 2020 (he has thirty years of service as of July 16), whichever comes first.

Here is the official letter:

I will write more about Judge Moreno shortly, but a big shout out to him for his service to the bar and the community.

54 cellphones, 47 amphetamine pills...

... 25 grams of an amphetamine infused leafy substance, two syringes filled with liquid amphetamine, one opiate-infused paper strip, at least nine cellphone chargers and one 11.5-inch, dagger-like shank fashioned from a piece of copper pipe.

That’s what was found during a recent 30-day sweep at FCI-Miami, according to the Sun-Sentinel. More:

On Jan. 24 this year, unrest broke out in the camp. According to corrections officers who work at the facility, the discovery of more than 50 prohibited cellphones in a single day triggered a lockdown, which in turn led to an inmate strike.
The labor strike, according to corrections officers, included a mass refusal by inmates to eat in the facilities’ food hall.
A Jan. 25 police report of a possible escaped inmate, documented in Federal Bureau of Prison’s documents, only increased tensions. A headcount showed there was no escape, but corrections officers suspect it was someone actually breaking into the compound to deliver contraband.

There have been lots of reports about the lockdown at FCI-Miami. Inmates thinking they were serving time at a low or a camp have been subjected to conditions more like a medium or high.

“Do you have a lot of trouble answering questions in life or just when you come to the court?”

That was Federal Circuit Judge Raymond Clevenger to a DOJ lawyer when she wouldn't answer hypotheticals during oral argument on PACER fees. From Politico:

A lawsuit accusing the federal court system of treating nearly a billion dollars in online access fees like a slush fund got a favorable reception on Monday from an appeals court, where the main question that judges seemed interested in debating was how to calculate the extent to which the public was bilked.

A three-judge panel of the U.S. Court of Appeals for the Federal Circuit heard arguments on a class-action lawsuit filed in 2016 that picked up on federal judges’ claims that the user fees from the so-called PACER system were being used to broadly subsidize the courts’ information technology budget, rather than being used solely to cover costs related to making court records available online.

At issue is about $145 million in fees that users pay each year to search for and download federal court filings. The courts typically charge 10 cents a page for electronic copies of those filings. It’s a meager amount, but the bills can add up to hundreds or thousands of dollars a month for law firms, electronic publishers, news organizations and nonprofit groups that use the records for a wide variety of purposes.

Two of the judges, Raymond Clevenger and Todd Hughes, sounded inclined to allow the lawsuit to continue over the objections of the Justice Department, which argued for dismissal of the case.

A Justice Department attorney, Alisa Klein, told the judges that Congress’ directions about what costs could be recovered through user fees were too vague to be the basis for a suit. She also said the alleged overcharges were impossible to calculate because surpluses in the accounts were carried from year to year, with the courts requesting appropriations to make up for shortfalls.

“That’s unknowable,” she said.

Clevenger asked, incredulously, whether the Justice Department was contending that PACER users couldn’t get refunds even if the courts incurred “knowingly, blatantly illegal” expenses on the accounts, like new curtains for the Supreme Court or “gold-plated toilets” for judges. He also raised the possibility that, under the government’s broad interpretation of the law, courts could use the PACER funds to publicize the menu in the Supreme Court cafeteria.

Klein initially resisted those hypotheticals, prompting a barbed response from the judge: “Do you have a lot of trouble answering questions in life or just when you come to the court?”

We really need judges to step up prosecutorial misconduct...

...because no one else will.  The legislature in New York tried, setting up a commission on prosecutorial misconduct.  But it was struck down!  From the AP:

A New York judge has struck down a law that would have created a state commission tasked with investigating prosecutorial misconduct.

Justice David Weinstein declared the law unconstitutional in a decision issued Tuesday, marking a win for a prosecutors’ association that sued over the statute.

The law would have set up an 11-member commission to probe misconduct claims against New York state prosecutors. The panel would have been appointed by the governor, Legislature and New York’s chief judge.

Gov. Andrew Cuomo, a Democrat, first signed the law in 2018 and later approved amendments after constitutionality concerns were raised.

Supporters say the law would set up a new way of stopping prosecutors who abuse their power. Cuomo’s office has touted the commission as the nation’s first and said prosecutorial misconduct can lead to wrongful convictions.

The law would have allowed the commission to censure or admonish a prosecutor. It also gave the panel the ability to recommend to the governor that a prosecutor be removed,

Prosecutors have called the law unconstitutional.

In their lawsuit, the District Attorneys Association of the State of New York argued the measure violated the separation of powers and gave state lawmakers too much oversight over independent district attorney’s offices.

Sigh.

Patrick Mahomes is going to Disney World.

And so are all the federal and state judges (and lawyers who want to be judges) to attend the Federalist Society meeting, which was this weekend in Orlando.

.@PatrickMahomes is going to Disney World. And he's bringing everybody. #ChiefsKingdom #SBLIV pic.twitter.com/D4VgzQw9Yx

— NFL (@NFL) February 3, 2020

But should they?  There's a proposal to limit judicial membership in the organization.  Justice Thomas, who was at the meeting, spoke out against the proposal (via WSJ):

Supreme Court Justice Clarence Thomas questioned a proposed ethics rule that would discourage federal judges from belonging to the conservative Federalist Society and its liberal counterpart, the American Constitution Society.

Justice Thomas has long participated in events sponsored by the Federalist Society, which has groomed many of President Trump’s judicial nominees.

“And now I think they’re about to silence the Federalist Society. So I guess I can’t come back,” Justice Thomas quipped Friday at Federalist Society convention at Walt Disney World.

“Some of us are fighting back,” responded U.S. Circuit Judge Gregory Katsas, a former Thomas law clerk who interviewed his former boss before the audience.

The ethics proposal, circulated last month by the federal judiciary’s policy-making body, the Judicial Conference of the U.S., would tighten existing guidance that lets judges belong to the two groups but not take leadership roles.

My summer trial schedule is more important than your family summer vacation

That was a NY federal judge to a defense lawyer in the Epstein BOP guard case. So ridiculous. Would it have been so terrible to set the trial either before or after the trial? From the NY Post:

A lawyer for one of the corrections officers accused of falsifying records the night Jeffrey Epstein died got into a shouting match Thursday with a Manhattan federal judge — because she set a trial date that landed right in the middle of a trip to Italy.
Tova Noel’s lawyer Jason Foy objected when Judge Analisa Torres scheduled trial for his client and Michael Thomas to begin June 22, saying his daughter would be in Italy and his family was planning to join her, but hadn’t actually booked anything yet.
“Counsel, use Skype,” Torres told him curtly after Foy expressed displeasure at the trial date.
“No, no, no,” he responded, his voice rising. “I will not use Skype.”
The back-and-forth escalated, with Torres repeatedly telling Foy to “sit down” while he argued over her, saying “this is not just about vacation.”

"Agents seized this mom’s $15,000 in a raid. Now the Supreme Court may weigh in to help her."

That's the title of this Sun-Sentinel piece on a cert petition that has a lot of appeal:

A mom was saving up money for her daughter’s 15th birthday, planning an unforgettable coming-of-age celebration. Imagine the mother’s surprise when federal agents raided her home and seized the $15,000 in cash she was planning to use to pay for the party.

Miladis Salgado is a 54-year-old Colombian immigrant who splits her time working at an airport duty-free store and Subway sandwich shop. It was heartbreaking to lose the funds: “That was money I’d saved for my daughter’s quinceanera,” she said.

The agents raided Salgado’s suburban West Kendall home in May 2015 because they were acting on a bogus tip from a confidential narcotics informant, according to court records. But the lead agent on the case would later admit the cash was clean, federal records show.

Still, it took almost two years and a legal battle for the government to give Salgado back her cash, and according to her court filings, federal authorities refused to pay her attorney’s fees, which means she’s still out $5,000.

Now, the U.S. Supreme Court has been asked to weigh in and decide if the government has a responsibility to repay Salgado for all her costs. The Supreme Court has yet to agree to hear the case, but the court has taken the step of asking the U.S. Solicitor General to prepare a response, which, according to Salgado’s attorney Justin Pearson, is a good sign that the court may hear Salgado out.

Jane Raskin for the President

Whether you are for or against the POTUS, it's pretty impressive that Miami lawyer Jane Raskin is on the legal team representing him. She is the one lawyer on the President's team that has stayed below the radar, which is also impressive.  She's doing much better than Starr, who made the absurd argument that this is the age of impeachment.  That may be, but Starr gets all the credit for that.  How did they let him of all people make that argument?

Florida Supreme Court is now a political body

Rumpole is covering the stunning reversal by the Florida Supreme Court on the issue of the death penalty and unanimity.  So are all of the major news outlets. The Court just a few years ago ruled X, and then there was some turnover with new justices, and then two went to the 11th Circuit, and a new 5-justice majority now ruled Y.  It's jaw-dropping.  Here's a piece by Slate:

The Florida Supreme Court has become a laboratory of judicial conservativism since 2019, and now the justices have given themselves a new tool to clear away remaining obstacles. On Thursday, they issued a decision of extraordinary breadth, overturning a landmark precedent and letting judges once again impose the death penalty without the unanimous recommendation of a jury. Their decision authorizes the legislature to revive a scheme that empowers judges to issue a death sentence when the jury does not recommend it.

At the same time, the court effectively overruled precedents that limited its ability to reverse past decisions. In all, the decision announces an aggressive new campaign to toss out liberal precedents and move the court far rightward.

Thursday’s decision in State v. Poole overturns a momentous ruling, State v. Hurst, handed down in October 2016. Hurst dealt with Florida’s capital sentencing scheme, a notorious outlier even among states that retained the death penalty. Like these other states, Florida required a jury to determine whether “aggravating circumstances” exist that justify a sentence of death.

Unlike almost every other state, however, the jury’s determination was not binding. Instead, jurors issued an “advisory verdict”—approved by a bare majority—for the judge to consider. But the judge could then hold a separate hearing, analyze the facts independently, and issue a sentence regardless of the jury’s advice.

The U.S. Supreme Court invalidated this system in January 2016. It reiterated that the Sixth Amendment requires a jury, not a judge, to find all facts that increase the maximum punishment. Since Florida allowed a judge to find “aggravating circumstances” that justified a capital sentence, it ran afoul of this rule. The justices returned the case to the Florida Supreme Court to implement their decision, which, at that point, had a 5–2 liberal majority.

But the Florida Supreme Court did more than apply Hurst. The court also considered its state constitution, which declares that the “right of trial by jury shall be secure to all and remain inviolate.” Interpreting this guarantee, the majority expanded the role of the jury in capital trials beyond the federal minimum. It declared that a judge may not impose death unless the jury unanimously found all aggravating factors to be proven beyond a reasonable doubt, “sufficient to impose death,” and not outweighed by any “mitigating factors.” Moreover, the majority held that a jury must “unanimously recommend a sentence of death” before a judge “may consider imposing” it.

The Florida legislature begrudgingly updated state law to reflect these new rules and bring Florida in line with other death penalty states, which placed these decisions in the hands of the jury long ago. Their revisions left just one state, Alabama, that allowed a non-unanimous jury to impose capital punishment.

On Thursday, though, a reconstituted court gave the legislature the greenlight to repeal these reforms and expand judges’ control over death sentences. In a caustic opinion, the majority blithely threw Hurst—a 5–2 decision—out the window.

A lot has changed since October 2016: Four justices in the Hurst majority were forced to step down under Florida’s mandatory retirement law. Former Republican Gov. Rick Scott replaced one with the ultra-conservative C. Alan Lawson, who previously served as a lower court judge. Current Republican Gov. Ron DeSantis replaced the other three with conservatives selected by Leonard Leo, head of the Federalist Society, a partisan organization that elevates Republicans to the judiciary. Donald Trump has already placed two of DeSantis’ three justices on the 11th U.S. Circuit Court of Appeals. So Thursday’s decision in Poole was decided by a five-member court that split 4–1. The one remaining liberal was the lone dissenter.

Michael Avenatti should not be in solitary confinement

That's the title of my latest piece in The Hill.  Please let me know your thoughts.  From the introduction:

Imagine being held by yourself in a small, freezing cold cell 24 hours a day. Not allowed to go outside. Not allowed to make a phone call. Not allowed to go to the bathroom without being watched. Not allowed to shave. Not allowed to visit with a family member. Shivering and alone, day after day.
This is bad enough for a hardened convicted criminal who cannot safely be housed with others. But imagine being held in these conditions when you have not been convicted of any crime. And when the only crime of which you have been accused is a non-violent financial crime.
This is no crazy, off-the-wall hypothetical. It is a strategy too often used against accused first-time non-violent offenders in an attempt to crush them and coerce them into pleading guilty.
This is what is happening right now to Michael Avenatti.
And it is wrong.

Brrrrr!

It's finally winter!

And it's impeachment talk all the time.

But while everyone is talking impeachment, there are two big trials starting up in New York.

The first is Harvey Weinstein, where he won a motion to be able to show the jury in opening the "dozens and dozens" of loving emails from his accusers:

"What we will counter with are their own words, where they describe loving relations, sensual encounters with Mr. Weinstein," defense attorney Damon Cheronis said during oral arguments Tuesday. "Mr. Weinstein is described as someone they care about both before and after the alleged sexual assault."

"Another complaining witness who claims Harvey Weinstein sexually assaulted her sent him an email wanting to introduce him to her mother," Cheronis argued at another point, though he never specified to whom among the six he was referring.

Of course he should be able to do so, and it's weird that it was even a question. 

For the other big NY trial, we move to federal court where Scott Srebnick and Jose Quinon are representing Michael Avenatti.  The big fight right now is trying to get Avenatti out of the SHU, where it is impossible to prepare for trial.  Here's Scott's letter and the Warden's response. It's absurd to keep a first-time accused white collar defendant in solitary conditions like El Chapo.  Let's hope this doesn't break Avenatti into pleading as the government is trying to do.

Slow blogging

Sorry for the slow blogging over the long weekend. I’ll be back at it tomorrow (Wednesday). See you then.

Should we have a "Defender General?"

Daniel Epps and William Ortman make the pitch for a Defender General in this forthcoming piece:

The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients—even when they conflict with the interests of criminal defendants as a whole. The prosecution’s advantages likely distort the law on the margins.
If designed carefully, staffed with the right personnel, and given time to develop institutional credibility, a new Office of the Defender General could level the playing field, making the Court a more effective regulator of criminal justice. In some cases—where the interests of a particular defendant and those of defendants as a class align—the Defender General would appear as counsel for a defendant. In cases where the defendant’s interests diverge from the collective interests of defendants, the Defender General might urge the Court not to grant certiorari, or it might even argue against the defendant’s position on the merits. In all cases, the Defender General would take the broad view, strategically seeking to move the doctrine in defendant-friendly directions and counteracting the government’s structural advantages.

I haven't thought through all the pros and cons of a DG, but if we are going to have one, I nominate Michael Caruso.

News & Notes

1.  Fane Lozman, of Supreme Court fame, has settled his case against Riviera Beach to the tune of $875,000.  Good for him!

2.  Michael Munday's case was affirmed by the 11th Circuit.  No issues with playing clips from Cocaine Cowboys at trial.

3.  Should Apple be forced to open an iPhone from accused defendants?  The NY Times covers this recurring debate here.

4. Michael Avenatti was supposed to start trial next week in New York (with Miami criminal defense lawyers), but he was arrested last night in connection with his California case.  The feds allege that he was violating his bond conditions. 

5.  Mike Flynn wants to withdraw his guilty plea.  I've never understood judges who deny these motions.  (There are some judges in this District who always grant them, which seems like the right move.)  If he wants a trial, let him have his trial!

RIP Magistrate Judge Barry L. Garber

A good man, he will be missed.

Garber was a no-nonsense judge on the bench.  Off the bench, he was a tall teddy bear.  He was appointed back in 1991, and died last night at 89.  RIP.

UPDATE -- services will be held on January 15 at 10:30am at Riverside Mount Nebo Kendall (5900 SW 77th Avenue).

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.