RIP Magistrate Judge Dave Lee Brannon

 Man, this is a sad one.  Judge Brannon was such a good guy.  I knew him back from his federal defender days.  Always willing to share a story or advice or his time.  And such a compassionate and nice judge.  Awful news.

There has been a ton of really nice comments on the CJA listserv.  Here's one from Richard Klugh:

I wanted to share one memory of working with Dave Lee Brannon when we were AFPDs.   We had adjacent offices in Miami (starting in June 1986) and then in Ft. Lauderdale four years later. It was in that later period that he and I wrote the first of what became an FPD staple—songs about our defense work. The song, The Christmas Guideline Song, performed at the FPD Holiday party by Celeste, Pat Hunt, and others, was eventually followed by the songs Pat Hunt, Jackie Shapiro, Celeste, Daryl, and Neison wrote for seminars. The guideline song was mostly Dave’s idea.  It went through each section of Chapter 2 of the manual from A to X, beginning with “‘A’ is for assaultive, mean behavior. ‘B’ is when you burgle steal or rob ...”   To paraphrase, put them all together they spell, ‘Dave was just a really great guy.’

 

Unanimous jury requirement non-retroactive

 So says the Supreme Court in the new 6-3 conservative lineup.  I don't get this one.  Here's ScotusBlog trying to explain it with other Supreme Court news:

The Supreme Court on Monday ruled by a vote of 6-3 that inmates whose convictions became final before last year’s decision in Ramos v. Louisiana, holding that the Constitution’s Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts, cannot take advantage of it on federal collateral review. The geographical impact of Monday’s decision is limited to Louisiana and Oregon – the only two states that have allowed non-unanimous jury verdicts in recent years. The decision means that hundreds of people who were found guilty by non-unanimous juries in those two states before Ramos will not get to seek to have their convictions overturned. Monday’s ruling, issued on the same day that the court announced it would take up a challenge to a Mississippi ban on abortion that could upend Roe v. Wade, also left the justices divided over the issue of respect for their prior precedent.
The dispute over nonunanimous jury verdicts dates back almost 50 years, to the court’s 1972 ruling in Apodaca v. Oregon, holding that although the Sixth Amendment guarantees a right to a unanimous jury in federal criminal cases, that right does not apply to defendants in state trials. The justices were deeply divided in reaching that conclusion: Four of them would have ruled that the Sixth Amendment does not require a unanimous jury at all, while four different justices would have ruled that the Sixth Amendment guarantees a right to a unanimous jury in both federal and state trials. That left the ninth justice, Justice Lewis Powell, to decide the outcome. He wrote that the Sixth Amendment protects the right to a unanimous jury for defendants in federal criminal trials, but not those in state criminal trials.
In 2020 in Ramos, the Supreme Court – by a vote of 6-3 – overturned its ruling in Apodaca. In an opinion by Justice Neil Gorsuch, the majority explained that there was a long history of a right to a unanimous verdict when the Sixth Amendment was adopted. Gorsuch also stressed that both Louisiana and Oregon had imposed the non-unanimous jury rule for racist reasons. But the Ramos opinion left open the question of whether the decision applied retroactively.
The case decided by the court on Monday, Edwards v. Vannoy, was that of Thedrick Edwards, who was convicted and sentenced to life in prison, without the possibility of parole, in Louisiana nearly 15 years ago for a series of crimes that included armed robbery, rape and kidnapping. The only Black juror at Edwards’ trial voted to acquit Edwards, who is also Black, on all counts. Edwards’ conviction became final in 2011.
In a decision by Justice Brett Kavanaugh that was joined by the court’s other conservative justices, the court explained that the ruling in Ramos announced a “new rule” because “many courts interpreted Apodaca to allow for non-unanimous jury verdicts in state criminal trials.” Under the Supreme Court’s case law, Kavanaugh wrote, a decision that establishes a new rule of criminal procedure generally does not apply retroactively to cases in which inmates are seeking federal post-conviction relief. The court has recognized an exception to this general presumption, Kavanaugh acknowledged, for rules that are so significant that they rise to the level of “watershed” rules. But, Kavanaugh observed, the court has not actually found such a rule in the last 32 years, and it has indicated that it is “unlikely” to recognize such a rule in the future.
“Continuing to articulate a theoretical exception that never actually applies in practice,” Kavanaugh suggested, “offers false hope to defendants, distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts.” Therefore, Kavanaugh concluded, it is “time — probably long past time — to make explicit what has become increasingly apparent to bench and bar over the last 32 years: New procedural rules do not apply retroactively on federal collateral review.”

And for those out there who don't understand the toll a federal indictment takes on a person, here's a sad story about a man who committed suicide after a federal verdict. 

Judge Ursula Ungaro leaving federal bench...

 ... for Boies Schiller.  Congratulations to Judge Ungaro and a bigger congrats to BS who land a fierce advocate for their firm.  

The news has been making the rounds for the past few days in local legal circles.  But it's finally official.  

From Reuters:

It’s never too late to blaze new trails. Just ask Senior U.S. District Judge Ursula Ungaro.
After 34 years on the bench in Florida, the Miami-based jurist submitted her resignation on Friday to join Boies Schiller Flexner as a partner on June 1.
She is 70 years old - and she’s not slowing down.
“I like the idea of a challenge,” Ungaro told me. “I wanted to see what it would be like with the credentials I have behind me, to see if I can build a practice and generate business and mix it up in court again.”

No doubt she will be able to mix it up in court again!  I've always liked that Judge Ungaro tells you what's on her mind.  She doesn't hold back.  It's refreshing.  For example, in classic Judge Ungaro form, not pulling any punches, she said this about her new firm:

“I’m very aware - I’m not an ostrich - that the firm has had a lot of departures,” Ungaro said. Boies Schiller, as I previously reported, saw about 60 partners exit in 2020.

“I think they have a great base to restructure,” Ungaro said. “I have all the respect in the world for David Boies and the other lawyers” including her old friend Stephen Zack, a Miami-based partner and member of the executive committee, and Stuart Singer, a fellow executive committee member who is based in Fort Lauderdale.

“I’d like to be part of the restructuring,” she said, adding that “the chemistry should be right.”

Ungaro and Zack met in the mid-1970s, when both were associates at (now defunct) Frates Floyd Pearson Stewart Richman & Greer.

“We suffered together,” joked Zack, who previously served as president of the American Bar Association.

My first assignment as an assistant federal defender was with Judge Ungaro.  She pushed young lawyers and didn't suffer fools.  I am definitely a better lawyer after my stint as a new public defender in her division.  It will be fun to watch her deal with her former colleagues when they don't grant a continuance or agree on an evidentiary point.  I'll be there for that! :)

Congrats again to Judge Ungaro!

Breaking — Melissa Visconti is your new magistrate judge

 

Wonderful news.  She'll be great.  A former Judge Ungaro clerk and former AUSA, she knows the federal system well.  She's also practiced civil and appellate litigation.  Importantly, she's a nice and good person.  A graduate of Princeton and then UM law. Congratulations to Melissa!

Update: Judge Ungaro had this comment: “No one can be another John O’Sullivan. But Melissa will do the district proud. She is whip smart. But more important, she has heart and a deep and sincere desire to serve this diverse community. And, of course, she has great affection for the court. “

Jury has case in civil pilot trial (updated with verdict)

Well, that was quick.  A two day civil trial before Judge Ungaro.  I didn't hear of any issues... thank goodness.  

The only item that I did hear about was that lawyers were required to wear masks when speaking in court -- even when examining witnesses and doing openings/closings.  I think that certainly takes away from the ability to effectively examine a witness and from giving a moving opening/closing.  

Maybe it doesn't matter all that much in a short civil trial, but I don't see many criminal defense lawyers agreeing to trying a case with a mask on.  

Some folks in state court who have tried cases with masks on have said that everyone forgets about it pretty quickly, but I have my doubts... I suspect we will see criminal trials opened back up in the Fall.  My only request to judges is to be understanding with lawyers' schedules, which are going to be insane.

UPDATE— jury verdict before 5pm for Plaintiff for full amount of claim. Plaintiff was represented by Katie S. Phang and Jonathan S. Feldman, a husband and wife team trying their first case together.  It also happened to be their anniversary today. What a nice anniversary gift!! 

11th Circuit shows again that it is an outlier and the most conservative federal appellate court -- by a lot.

 This time the case is United States v. Thomas Bryant, a 2-1 decision, that holds -- contrary to 7 unanimous Circuit Court rulings -- although the First Step Act allows courts to decide compassionate release motions, they are not permitted to decide what compelling and extraordinary circumstances are.  Only BOP can do that, says the lone two judges in the country (Brasher wrote the opinion and Luck joined), who make up the majority opinion in this case.  

Judge Martin rightfully dissents and explains in her intro:

Today’s majority opinion establishes the Eleventh Circuit as the only circuit to limit an inmate’s ability to get compassionate release from incarceration solely to those “extraordinary and compelling” reasons that are pre-approved by the Bureau of Prisons (“BOP”). Our precedent now allows no independent or individualized consideration by a federal judge as plainly intended by the First Step Act. And this limitation on compassionate release is based on an outdated policy statement from a Sentencing Commission that has lacked a quorum since the First Step Act became law.1 The problems that arise from the majority’s reliance on the outdated policy statement are compounded by the majority’s express decision to strike (or ignore) language from the policy statement. Sadly, this result reinstates the exact problem the First Step Act was intended to remedy: compassionate release decisions had been left under the control of a government agency that showed no interest in properly administering it. With all respect due, I dissent. 

Let's see if the 11th Circuit takes the case en banc, which it obviously should when it is the one in a 7-1 split, or if the religious freedom issue is the only time a defendant will be able to get en banc review in the 11th.  

Blockbuster en banc opinion in U.S. v. Corrine Brown

If I had told you that an African American congresswoman convicted of fraud would obtain en banc review and win in the 11th Circuit by having her conviction vacated, you would tell me that I was crazy and that it was literally a million to one shot.  After all, the 11th Circuit is the most conservative appellate court in the country, it grants en banc review to defendants who lose once every decade (at most), and has never ruled for a defendant in an en banc opinion since I've been covering the court.  (Please correct me if I'm wrong!). But this wasn't any normal issue before the 11th Circuit.  It involved the religious beliefs of a juror who was told by the Holy Spirit to vote not guilty.  The district judge struck that juror.  Brown was convicted and then appealed.  The panel in a 2-1 decision affirmed the conviction (Rosenbaum for the majority and Pryor for the dissent).  The en banc court lined up as you would expect it, with the 7 conservative judges saying you can't strike a juror based on a religious vote, while the 4 moderate judges dissented (Jill Pryor recused and did not participate). 

You can access the 98 pages of opinions here. 

The lineup:

WILLIAM PRYOR, Chief Judge, delivered the opinion of the Court, in which NEWSOM, BRANCH, GRANT, LUCK, LAGOA, and BRASHER, Circuit Judges, joined.

NEWSOM, Circuit Judge, filed a concurring opinion, in which GRANT, Circuit Judge, joined. 

BRASHER, Circuit Judge, filed a concurring opinion, in which BRANCH, Circuit Judge, joined. 

WILSON, Circuit Judge, filed a dissenting opinion, in which MARTIN, JORDAN, and ROSENBAUM, Circuit Judges, joined. 

ROSENBAUM, Circuit Judge, filed a dissenting opinion, in which WILSON and MARTIN, Circuit Judges, joined. 

I come out a little different than both camps.  I'm fine with a juror voting not guilty based on really whatever they want.  In my view, nullification should be permissible.  Jurors should be able to say no to the government at a jury trial for whatever reason they wish.  But I'm not okay with a conviction based on nullification. In other words, if Satan told a juror to convict even though the evidence was not there, that would be a reason to remove the juror.  If the Holy Spirit told a juror to acquit even though there was overwhelming evidence, that should be permitted.  

Let's get to the opinions.

From Pryor's introduction:

This appeal requires us to decide whether a district judge abused his discretion by removing a juror who expressed, after the start of deliberations, that the Holy Spirit told him that the defendant, Corrine Brown, was not guilty on all charges. The juror also repeatedly assured the district judge that he was following the jury instructions and basing his decision on the evidence admitted at trial, and the district judge found him to be sincere and credible. But the district judge concluded that the juror’s statements about receiving divine guidance were categorically disqualifying. Because the record establishes a substantial possibility that the juror was rendering proper jury service, the district judge abused his discretion by dismissing the juror. The removal violated Brown’s right under the Sixth Amendment to a unanimous jury verdict. We vacate Brown’s convictions and sentence and remand for a new trial.

More:

Juror No. 13’s vernacular that the Holy Spirit “told” him Brown was “not guilty on all charges” was no more disqualifying by itself than a secular juror’s statement that his conscience or gut “told” him the same. Of course, neither a religious nor secular juror may convict or acquit a defendant using his internal decision-making processes without regard to the evidence. But Juror No. 13 repeatedly explained that he was, in fact, reviewing and deliberating over the evidence. His statements are not proof that he “abandon[ed] his . . . judgment to what he . . . perceive[d] to be oracular signs.” DeMille, 756 P.2d at 84. And just as a juror may say at the beginning of deliberations that he “thinks” a defendant is “not guilty on all charges,” and perhaps later change his mind, Juror No. 13 could say that the Holy Spirit “told” him the same without violating his oath. There is no evidence that Juror No. 13 believed himself unshakably bound to his initial understanding of the Holy Spirit’s guidance, contrary to the district judge’s assumption that Juror No. 13’s “religious beliefs compelled him to disregard” the jury instructions. Cf. United States v. Salvador, 740 F.2d 752, 754– 55 (9th Cir. 1984) (affirming declaration of mistrial where juror stopped deliberating and refused to move from decision made through religious inspiration). Juror No. 13 may have, for instance, discerned upon further deliberation and review of the evidence, that his preliminary view was mistaken. See Luhrmann, When God Talks Back, at 41 (“These evangelical Christians . . . have to pick out the thoughts that count as God’s and . . . do so in a way that does not violate the realistic demands of the everyday world.”). Let us not forget that “[t]he very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves.” Allen v. United States, 164 U.S. 492, 501 (1896); see also PeñaRodriguez, 137 S. Ct. at 861 (“[E]xperience shows that fair and impartial verdicts can be reached if the jury . . . undertakes deliberations that are honest, candid, robust, and based on common sense.”). We must guard against the removal of a juror who, in vernacular commonly used by religious and racial minorities, expresses a view among jurors who “may well come to view the ‘holdout’ . . . not only as unreasonable, but as unwilling to follow the court’s instructions on the law.” Thomas, 116 F.3d at 622. And we must take care that judges, “who do not speak the language of ordinary people and may not understand or appreciate the way ordinary people live their lives,” Peña-Rodriguez, 137 S. Ct. at 875 (Alito, J., dissenting), do not remove a juror solely because his vernacular led the judge to the same conclusion. See Obergefell, 135 S. Ct. at 2629 (Scalia, J., dissenting) (observing the absence of “a single evangelical Christian” on the “select, patrician, highly unrepresentative panel of nine” that is the Supreme Court).

Newsom is concerned with how the case will be reported:

First, notwithstanding how it will likely be reported, this is not a case about the single statement, “[T]he Holy Spirit told me . . . that Corrine Brown was not guilty on all charges”—it’s a case about the context in which that statement was made and the entire record before us. And the entire record—which the Court meticulously traces over the course of 14 pages—establishes (at the very least) a “substantial possibility” that Juror No. 13 was rendering proper jury service, basing his decision on the evidence. See Maj. Op. at 5–18. Second, and again notwithstanding how it will likely be reported, this is not a case about religious jurors—it’s a case about all jurors. It would come out exactly the same way if Juror No. 13’s comments had touched on some other topic. See, e.g., United States v. Thomas, 116 F.3d 606, 611, 623–24 (2d Cir. 1997) (Cabranes, J.) (reversing a district court’s dismissal of a juror who reportedly had favored acquittal on the ground that “the defendants were his ‘people’” but who was also said to be discussing and evaluating the evidence).

Brasher says there should have been no inquiry at all here:

I agree with the way the Court applies our precedents to Juror 13’s testimony about why he preliminarily voted to acquit the defendant. But I write separately to explain that, in my view, this record should not have been created. There was no cause for Juror 13 to testify at an evidentiary hearing about his religious convictions, his view of the evidence, or his understanding of a juror’s role. The trial judge should not have inquired into Juror 13’s thoughts in the first place. A juror’s initial view of the case is not what matters. 

Wilson dissents:

On the majority’s reading of a cold transcript, there was a substantial possibility that Juror No. 13 was basing his decision solely on the evidence and the law. The district court—able to hear live testimony and observe the juror’s tone, inflection, and demeanor—came to the contrary conclusion. Because the district court was “uniquely situated” to make this determination, I would not supplant its judgment with my own. See United States v. Abbell, 271 F.3d 1286, 1303 (11th Cir. 2001) (per curiam); United States v. Godwin, 765 F.3d 1306, 1316 (11th Cir. 2014). District judges walk a tightrope when deciding whether to remove a juror mid-deliberations. A misstep in one direction—improperly removing a holdout juror—imperils the defendant’s Sixth Amendment right to a unanimous jury verdict. A misstep in the opposite direction—allowing a juror to vote without regard to the merits of the case—undermines each party’s right to a verdict based on the evidence and threatens the rule of law. See Robinson v. Polk, 444 F.3d 225, 227 (4th Cir. 2006) (mem.) (Wilkinson, J., concurring in the denial of rehearing en banc) (“Juries have legitimacy in a democracy because, despite the variety of jurors’ beliefs, they are united in the common endeavor of legal judgment. Any contrary perception threatens the most basic premise of the rule of law.”). 

And Rosenbaum's additional dissent:

Every judge of this Court agrees on this much: the same rule governs dismissal of both the juror who says his religious authority told him the defendant is not guilty on all charges and the one who says his religious authority told him the defendant is guilty on all charges. So let’s be clear about what we’re really doing today: we are holding that a district judge is powerless to dismiss a juror who, on a record like this one, says the Holy Spirit told him the defendant is guilty on all charges and he trusts the Holy Spirit—even though the judge finds after investigation that the juror is not capable of basing his guilty verdict on the evidence but instead will base his verdict on what he perceives to be a divine revelation.2 Just think about that. We are prohibiting district judges, on records like this one, from dismissing jurors they find beyond a reasonable doubt will return a guilty verdict that is not based on the evidence. Why bother with the trial? Yet while the Majority Opinion guarantees this result, it invokes the grandeur of the right to a jury trial, ironically dedicating an entire section to how its decision protects the rights of defendants to unanimous jury verdicts. See Maj. Op. at Section III.A. But a unanimous jury’s guilty verdict is worth less than nothing to a convicted defendant if the jurors who returned the verdict did not base it on the evidence. And even if only a single juror voted guilty because he believed his religious authority instructed him to do so, without regard to the evidence, the guilty verdict of the jury he sat on is not the unanimous verdict our Founders and the Constitution contemplated; in that case, at best, only eleven jurors, not twelve, based their verdict on the evidence presented at trial. See Ramos v. Louisiana, 140 S. Ct. 1390, 1395 (2020) (“A verdict, taken from eleven, [is] no verdict at all.”) (internal quotation marks omitted). So though the Majority Opinion’s take on the Sixth Amendment right to a unanimous jury verdict may leave a reader with the impression that our decision today is a soaring eagle, that is but an illusion. Today’s decision is in fact a skulking serpent: it dooms the Sixth Amendment right to a unanimous jury verdict in at least some critical circumstances—namely, when a jury returns a guilty verdict not unanimously based on the evidence.

FN2 To put it in even starker terms, at oral argument, Judge Jordan asked Brown’s counsel whether the rule the Majority Opinion adopts today would also prevent the district judge from dismissing a juror who, on a record like this one, says that Satan told him the defendant is guilty on all charges and he trusts Satan—even if the judge finds after investigation that the juror is not capable of basing his guilty verdict on the evidence but instead will base it on what he thinks is a Satanic revelation. Brown’s counsel conceded the rule would preclude the juror’s dismissal. And not a single judge of this Court disagrees; the same rule must govern whether the juror says he’s told by the Holy Spirit or by Satan and whether he says he’s told the defendant is not guilty or guilty on all charges.

 

Breaking -- Congressional JNC sets interviews

Below is the list for District Judge.  They also have set interviews for U.S. Attorney.  Good luck to all.

AFPD Andrew Adler in the Supreme Court

Congrats to AFPD Andy Adler for his Supreme Court argument today in Tarahrick Terry v. United States.  From Reuters:

U.S. Supreme Court justices on Tuesday seemed skeptical that low-level crack cocaine offenders can benefit under a 2018 federal law that reduced certain prison sentences in part to address racial disparities detrimental to Black defendants.

The nine justices heard their final arguments of the court's nine-month term that began last October in a case involving a Florida man named Tarahrick Terry that tests the scope of the First Step Act signed into law by former President Donald Trump.

The provision in question made retroactive a 2010 law called the Fair Sentencing Act that reduced a disparity that made sentencing for crack cocaine crimes more severe than for powder cocaine crimes.

Black defendants were far more likely to face crack cocaine charges than white defendants, who were more apt to face powder cocaine charges. Terry, scheduled to be released from prison in September, is Black.

***

Liberal Justice Stephen Breyer indicated sympathy toward the idea that lower-level offenders should have benefited from the law, but said its language did not appear to support that interpretation.

"I mean I think they were much too high. I understand that," Breyer said of the long sentences. "But I can't get away from this statute."

Federal public defender Andrew Adler, representing Terry, told conservative Chief Justice John Roberts that the law unambiguously applies only to low-level crack offenders, not those convicted of other drug offenses.  

Even though the Government joined Adler's position, the Court appointed amicus to take the other side and sadly seemed inclined to rule against the defendant.  No matter how it comes out, what a cool accomplishment to argue in the High Court.

May the 4th be with you!

 After Festivus, this is my favorite holiday.

Things are starting to open back up with courts around the country.  Here in SDFLA, we will have the pilot trial before Judge Ungaro next week.  It's a short civil case, but it will be a big test to see if we can get going again.  Good luck to Judge Ungaro and the litigants.  

RIP Judge Joseph Hatchett

 What a life.  The first African American to serve on the Florida Supreme Court and the first to serve as a Circuit Judge (the former 5th and then the 11th) in the South.  

Former Florida Supreme Court Justice Joseph W. Hatchett died in Tallahassee on Friday, April 30, 2021. Hatchett was 88 and was the first African American appointed to the Court. Read more: https://t.co/4VhgApr0NJ pic.twitter.com/CHxQuPl1VL

— FloridaSupremeCourt (@flcourts) May 1, 2021

From the Miami Herald:

When a young Joseph W. Hatchett took the Florida Bar exam in 1960, he could not stay in the Miami hotel in which the test was given because of Jim Crow regulations.

Within 15 years, Hatchett would become the first African American to serve on the Florida Supreme Court.

Former Florida Supreme Court Justice Hatchett died in Tallahassee on Friday, April 30, Florida Supreme Court spokesman Craig Waters said in a post Saturday morning. Hatchett was 88 and Florida’s 65th justice since statehood was granted in 1845.

Hatchett was appointed to Florida’s highest court by Gov. Reubin Askew in 1975. In 1979, President Jimmy Carter named him to the U.S. Fifth Circuit Court of Appeals, where, the Florida Supreme Court notes, “he became the first African American to serve in a federal circuit that covered the Deep South at the time.”

Twenty years later, after retiring in 1999, Hatchett took on another challenge when he joined with the NAACP to be lead attorney in the fight to preserve statewide preference programs for minorities and women in Florida.

“This is to continue to ensure that all Floridians have an equal opportunity to succeed, and that’s affirmative action,” Hatchett told the Miami Herald at the time.

That earlier indignity at the Miami hotel during his bar exam endured. Hatchett was determined that other promising young Black law students could one day not only eat lunch in the same dining room as their white counterparts — something he was warned not to do when he took the test — but that they, too, could one day ascend as he had.

“I can remember when I became a young lawyer he pulled me aside and told me, basically, that what other people thought of my dreams were none of my business,” said attorney H.T. Smith, the founding director of the Trial Advocacy Program at Florida International University College of Law.

“His whole philosophy was that group of Black lawyers in Florida in the 1960s and 1970s, we had a responsibility to open the vaults of opportunity for ourselves and for people coming behind us,” Smith said. 

Judge Altman interviews Judge Singhal at Federal Bar Association event

 It was a wonderful interview.  Two great guys just talking.  Relaxed and interesting.  What makes them both great is that they are real people.  We learned lots about Judge Singhal -- his love of trials, comics, Presidents, and the law.  His unbelievable background and parents.  We need more judges like him.  I'm glad so many of you were able to see it as I am told it was the best attended event of the pandemic.

How are federal judges and U.S. Attorney going to be selected?

 

No one knows. Jay Weaver covers a lot of the competing interests in this piece. The article starts this way:

When Joe Biden won the presidency, Florida’s congressional Democrats thought they might finally get a chance to serve up his picks for federal judges.

But they had a significant hurdle: Florida’s two Republican senators still dominated the commission that scrutinizes judicial candidates to be nominated by the Democratic president.

So, in an unprecedented move, longtime Democratic Reps. Alcee Hastings and Debbie Wasserman Schultz created their own Florida judicial nominating commission earlier this year to compete with the GOP-controlled Senate panel — even though the House of Representatives has no authority to confirm federal judges for lifetime appointments. The Senate has that power.

The shifting political landscape has caused confusion for judicial candidates seeking to fill two openings for federal judges in the Southern District of Florida and a new vacancy for the U.S. attorney’s job in the same region. Some said it is not clear who will have the last word in recommending finalists for each of the coveted positions.

The judicial openings in South Florida have been created by two U.S. District Court judges assuming “senior status,” Federico Moreno and Ursula Ungaro. The U.S. attorney’s post became vacant with the recent resignation of Trump-appointed U.S. Attorney Ariana Fajardo Orshan.


Among the several candidates who have expressed interest in applying for the judges’ two seats: U.S. Magistrate Judge Jacqueline Becerra, Federal Public Defender Michael Caruso, Miami-Dade Circuit Judge Lisa S. Walsh, Miami-Dade Circuit Judge Tanya Brinkley and Miami-Dade County Judge Ayana Harris.

The U.S. attorney’s post has drawn the interest of former South Florida federal prosecutors Jacqueline Arango, Andres Rivero, David Buckner and Markenzy Lapointe, along with Palm Beach County State Attorney Dave Aronberg.

In the end, President Biden has the sole authority to nominate whomever he wants to be a federal judge or U.S. attorney. But as senators, Florida’s two Republicans, Marco Rubio and Rick Scott, have the unique power to block anyone from being confirmed by the Senate. During the Obama administration, Rubio refused to issue a “blue slip” for two of the Democratic president’s nominees for federal judges in South Florida, Miami-Dade Circuit Judges William Thomas and Mary Barzee, preventing them from going through Senate confirmation hearings. As a result, their nominations stalled.

Breaking -- Court to interview 5 applicants for Magistrate Judge

 Well, the pool of 49 applicants has been narrowed to 5:

Melissa Visconti

Randy Katz

Lornette Reynolds

Erica Zaron

Reginald Corlew

The district court judges will be conducting interviews on May 13.  Good luck to all.

Third Circuit raises interesting issue on loss in fraud case

 Defense attorneys make the argument all of the time -- hold the client responsible for the actual loss in the case, not the "intended" loss.  The Third Circuit raised this interesting point about the issue in a case where a defendant made about $30,000 but the "intended" loss, according to the district court, was $36 million:

Under a Guidelines comment, a court must ... identify the greater figure, the actual or intended loss, and enhance the defendant’s offense level accordingly.  Only this comment, not the Guidelines’ text, says that defendants can be sentenced based on the losses they intended.  By interpreting “loss” to mean intended loss, it is possible that the commentary “sweeps more broadly than the plain text of the Guideline.”  United States v. Nasir, 982 F.3d 144, 177 (3d Cir. 2020) (en banc) (Bibas, J., concurring).  But Kirschner assumes the comment is correct, and so we will too.

I haven't seen this argument before, which I'm sure will be making its way into all sentencing briefs and appeals going forward.  Let's hope some more sensibility comes around for these crazy loss calculations. By the way, the 3rd Circuit reversed the loss finding on other grounds and remanded to the district court for a fuller hearing and analysis.

Weekend news and notes

 1.  Amy Comey Barrett finally got to meet her colleagues in person.  From CNN:

2.  Can Chauvin win on appeal?  From the AP:

The defense has said it was impossible for Chauvin to get a fair trial in Minneapolis because of pretrial publicity and community pressure on jurors to convict. That claim is sure to underpin any appeal.

As they arrived at and left the courthouse each day for testimony, jurors passed clear signs that the city was preparing for renewed protests. The courthouse downtown was encircled by razor wire and guarded by armed troops. Most storefront windows were boarded up.

A prime target of an appeal would be key rulings by trial Judge Peter Cahill, including that the trial should remain in Minneapolis rather than be moved and that jurors should be sequestered only for deliberations.

Cahill also refused to delay the trial after Minneapolis announced a $27 million settlement with Floyd’s family during jury selection. The defense says that suggested guilt before jurors even heard evidence.

The defense has decried as prosecutorial misconduct remarks by the state during closings, including that aspects of the defense case were “nonsense.” That claim could make its way into an appeal.

3.  Is it a federal crime to inflate your law schools U.S. News rankings?  Orin Kerr has this thread looking at this interesting question.  The 11th Circuit's Takhalov opinion will be a hurdle...

4.  Yours truly was in SDNY this week.  Here's some coverage from Ghislaine Maxwell's arraignment.

"Chauvin verdict: Don't hate his lawyer"

 That's the title of my latest article in The Hill.  Below is the introduction.  Let me know your thoughts.

Hate mail. Distancing from friends and family. Criticized and second-guessed by the media. All criminal defense lawyers can feel for attorney Eric Nelson and what he has gone through during his high-profile representation of a deeply unpopular client, former Minneapolis police officer Derek Chauvin, who was convicted on all charges Tuesday in the killing of George Floyd.

It’s hard to fight any case at trial. Defense lawyers often face hostile prosecutors, judges, prison guards, and probation officers every day — but in a high-profile case, add to that a hostile media, public, and even popular movements.

CNN’s Jake Tapper said Nelson was gaslighting the jury during the closing. While the jury was deliberating, the President of the United States said he was praying for the victim and that the evidence was overwhelming. A congresswoman said that if the jury returned a verdict of not guilty, protestors should become more confrontational. And I’m sure closer to home, Nelson’s friends and family asked him “How can you represent that person?”

There’s no other profession in America where everyone is rooting against you.

If Chauvin had been shot on his way to the courthouse, it’s hard to imagine anyone sending hate mail to or criticizing the surgeon who operated in an attempt to save his life. No one would protest outside of the surgeon’s office or home. That’s not the same for the criminal defense lawyer.

Sen. Rubio announces competing JNC

 There's the Congressional JNC.  And now there's the Rubio JNC.  Scott is not participating.  So it's unclear how Biden will go about selecting judges and U.S. Attorneys.  Here is the list from Rubio, which includes some prominent Democrats (like Dan Gelber and Seth Miles):

Southern District JAC:
Carlos Lopez-Cantera – Statewide Chair
Manny Kadre – District Chair
Georgina A. Angones
Nelson Diaz 
Renier Diaz de la Portilla 
Albert E. Dotson, Jr. 
Robert H. Fernandez 
Dan Gelber 
Jillian Hasner
Jorge Hernandez-Toraño
Yolanda Cash Jackson 
Seth Miles
Bernie Navarro 
Ed Pozzuoli 
Steve L. Waserstein

News & Notes

1. Any thoughts on the closing arguments yesterday? It looked to me that the prosecution's rebuttal was the best of the three. Lots of good rhetoric. For example: "You were told, for example, that Mr. Floyd died because his heart was too big... the truth of the matter is that the reason George Floyd is dead is because Mr. Chauvin's heart was too small."

2. Joe DeMaria is rightfully fighting the mask protocols in Miami for trials. It's impossible to cross examine a witness wearing a mask. Here's his petition in the 3rd DCA (Law360 subscription necessary) and the article in the DBR (subscription necessary). The argument section starts out like this:

The constitutional right to due process in judicial proceedings requires that a party be allowed to examine a witness in a form that allows the factfinder to fully assess the witness’s credibility. Under the circumstances of this case, the process due to Dresser includes the right both to testify unmasked, and to require to her witnesses to testify without a mask.

3. Who is the greatest Supreme Court Justice of all time? SCOTUSblog ran a pool and your winner is... Earl Warren. Here's the intro to the post:

Forget Ali vs. Frazier, Celtics vs. Lakers, or Evert vs. Navratilova. It’s time for Marshall vs. Warren.
After three rounds of the first-ever SCOTUS bracketology tournament, only two justices remain. Both held the title of chief justice. Both reshaped American law and society. Both are legal titans who defeated a string of worthy contenders to reach the championship. But only one can be chosen by SCOTUSblog readers as the greatest justice in the court’s history.
To see how we got here, you can review the first-round results, the second-round results and the semifinals. We explained our original seeding and selection criteria here. Of course, no March Madness tournament is without controversy, and a few malcontents have sneered at ours. Too triumphalist? Lousy seeding? Skewed in a liberal direction? Skewed in a conservative direction? We heard those complaints and more. Our bracket even inspired a rival tournament with a slightly different agenda – an event premised on underachievement that no one should be proud of winning. Kind of like the NIT.
But enough with March Madness melodrama. This is the final round of the Big Dance, and it’s time to vote. Here’s the championship match-up.

Race and criminal justice

Closing arguments today in Chauvin. And you can feel the tension around the country as we head toward a verdict. Politico has this article saying that the Supreme Court is to blame for "driving while black."

The reason Brooklyn Center police pulled over Daunte Wright is unclear and largely irrelevant. The Department’s chief of police said the car he was driving had expired tags. His mother said he thought he was pulled over because he had air fresheners hanging from the rearview mirror. Regardless of the reason, 20-year old Wright was shot to death by a police officer minutes after the traffic stop began.
Traffic stops figure prominently in some of the most high-profile police killings of Black people. We remember many of their names—Walter Scott, Sandra Bland, Philando Castile —but they are just a few of the many people who have been killed or died as the result of law enforcement’s expansive authority to enforce traffic laws.
Traffic stops might seem like a local matter, or a subjective police decision, but actually the practice is built on five decades of Supreme Court precedent, a set of decisions that has successively opened the door to — and given police an incentive to — use traffic stops as an invasive tool of policing aimed mostly at people of color, primarily Black people.
As a result, reckoning with police violence must include a reckoning with how U.S. Supreme Court precedent has enabled it through its decades-long campaign to empower law enforcement in the so-called War on Drugs. Litigators must continue to push the Court to revisit these damaging decisions with the goal of overturning or weakening the precedents that have put too much power and discretion in the hands of police. Federal, state, and local policymakers, meanwhile, must recognize that these precedents provide a constitutional floor for police behavior; laws and policies can and should be adopted to hold police to a higher standard.
“Driving While Black” is a tongue-in-cheek expression that describes a frightening reality—police can, and often do, find any reason to pull over Black drivers. Given the glut of traffic rules, police rarely have to concoct a reason to pull over any driver they choose. Their job as traffic enforcers enables police officers to pull over Black drivers whenever their implicit or explicit biases tell them that a Black driver is “up to no good.” Harassment, intimidation, violence, and sometimes death, too often ensue.
The Supreme Court opened the door to legally permissible racialized policing with the 1967 case Terry v. Ohio, by allowing police to conduct certain cursory searches, now known as stop-and-frisks, based on the low legal standard of “reasonable suspicion.” As our country’s experience with stop-and-frisk vividly demonstrates, however, for police, reasonable suspicion is too often synonymous with being a Black or brown person in public.
The practice of racially profiling Black drivers was effectively endorsed by the Court in the 1996 ruling in Whren v. United States, which decided that police are allowed to use minor vehicle infractions as a pretext to initiate traffic stops with the goal of investigating other possible unrelated crimes.
According to an analysis of over 100 million traffic stops, Black drivers are about 40 percent more likely to be pulled over than their white counterparts. This analysis also reveals that Black and Hispanic drivers are twice as likely as white drivers to have their cars searched after being pulled over.

"She got life in a drug case. Decades later, Colombian woman free, thanks to Florida supporters"

That's the title of this Herald story.  From the story:

Married in her early teens, Evelyn Bozon Pappa says she was abused for years by her husband, a former helicopter pilot for the Medellin cartel kingpin, Pablo Escobar.
The husband would move on to direct his own drug-smuggling operation from a Colombian seaside city, pressuring his wife to manage a ring of passengers who carried suitcases packed with cocaine on commercial flights to Miami.
“If you don’t help me, you know what will happen to your mother,” he threatened her.
The couple, Carlos Horacio Romero-Paez and Bozon, would later both be charged with drug trafficking by U.S. authorities. He would never be caught. Her life would be destroyed. She was arrested in Miami, convicted and sentenced to life in prison in the mid-1990s, when the Cali cartel dominated the world’s cocaine trade.
But 26 years later, in a turn of fate, Bozon has finally attained her freedom. It took a village, as the saying goes, with collaborative support from her four grown children in Colombia, a team of former prisoners, a Florida State University law professor, two former federal prosecutors and a retired Customs Service agent, who recently came to her defense after putting her behind bars.

 

***

Bozon, now free and reunited with her family in Colombia, is mindful of all the people who helped guide her through her legal odyssey. “They all fought for me,” she said.

Now back in Colombia after a couple of weeks of freedom, Bozon says she is slowly adapting to her new life — just being with her four children, a medical doctor, architect, clothing designer and logistics coordinator. She said several members of her extended family have been infected with the coronavirus but that she has been vaccinated.

“My priority right now is to be with my family, make them happy and feel comfortable with them,” Bozon said.

In the long run, she said she hopes to join an organization that helps other women who have suffered from abuse and battery. “I want to get involved in that because I have the spirit now,” Bozon said. “I can give to them a lot of positive things and make them free.”

Interesting en banc opinion

 It's not every day that you see an en banc opinion authored by two judges on the 11th Circuit.  Even rarer is for that combination to be Chief Judge Pryor and Judge Martin.  But they team up in this case, with Judge Newsom dissenting.

From the joint en banc intro:

WILLIAM PRYOR, Chief Judge, and MARTIN, Circuit Judge, delivered the opinion of the Court, in which WILSON, JORDAN, ROSENBAUM, JILL PRYOR, GRANT, LAGOA, BRASHER, and BLACK, Circuit Judges, joined. 

WILLIAM PRYOR, Chief Judge, and MARTIN, Circuit Judge:

In 2013, Conraad Hoever was incarcerated at the Franklin Correctional Institution (FCI) in Carrabelle, Florida. According to Mr. Hoever’s complaint, correctional officers there subjected him to harassment and threats of physical violence in retaliation for his filing grievances about his mistreatment. Proceeding on his own (without counsel), Mr. Hoever successfully defended against the officers’ attempts to dismiss his case, and he was ultimately able to present his claim of First Amendment retaliation to a jury. After a three-day trial, during which the jury heard testimony from Mr. Hoever, the defendant officers, and witnesses who corroborated the threats, the jury returned a verdict in Mr. Hoever’s favor. But vindication of Mr. Hoever’s constitutional rights was limited. That is because this circuit has interpreted the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(e), as barring punitive damages for a prisoner’s civil action where no physical injury is shown. The jury, therefore, awarded Mr. Hoever only one dollar in nominal damages.

Our circuit stands alone in enforcing § 1997e(e) as a complete bar to punitive damages, no matter the substantive claim, in the absence of physical injury. Because our interpretation runs counter to the text of the statute, today we correct our course. We now recognize that §1997e(e) permits claims for punitive damages without a showing of physical injury. 

And here's how the dissent starts:

NEWSOM, Circuit Judge, joined by BRANCH, Circuit Judge, and joined in Parts I and III by LUCK, Circuit Judge, concurring in the judgment in part and dissenting in part:

There is a subtle but important difference in how the Court and I read 42 U.S.C. § 1997e(e). In the phrase “civil action . . . brought . . . for mental or emotional injury suffered while in custody,” the Court sees a distinction between requests for compensatory damages, which it says are covered, and requests for punitive damages, which it holds are not. I can’t find that compensatory-punitive divide in the statutory text. As I read it, § 1997e(e) doesn’t distinguish between different forms of monetary relief, but rather between different forms of harm. In particular, the dispositive question, to my eye, is simply whether an inmate-plaintiff ’s action concerns “mental or emotional injury,” as opposed to some other kind of injury. To the extent that it does, I would hold—contra the Court—that § 1997e(e) precludes him from recovering either compensatory or punitive damages unless he has made the statutorily required showing of “physical injury.” To the extent, by contrast, that the inmate’s suit alleges injuries that are not“mental or emotional,” I would hold that § 1997e(e) permits him to seek both compensatory and punitive damages.