Guest post by Brandon Shinder -- Smith v. United States (2023)

No Venue, No Problem: SCOTUS Unanimously Decides For Federal Government

By: Brandon Shinder

            First, I would like to thank David Oscar Markus and John R. Byrne for the opportunity to submit this guest post. This post will cover the Supreme Court’s recent decision in Smith v. United States, which entails a legal issue that was the subject of the 2023 Gibbons Criminal Procedure Moot Court Competition, where my partner, Gaby Pinzon, and I represented the University of Miami School of Law in winning First Place at the competition.  I would also like to thank our incredible coaches, Adam Stolz and Luis Reyes, for their guidance and support throughout the competition. 

(L to R) Gaby Pinzon, Adam Stolz (coach), Brandon Shinder; not pictured: Luis Reyes (coach).

            On Thursday June 15, 2023, the Supreme Court decided Smith and reaffirmed that—even in 2023—there are some things on which the Justices unanimously agree. In Smith, it was that the proper remedy for a criminal trial in the incorrect venue is not acquittal, but a retrial in the proper venue:

When a conviction is reversed because of a trial error, this Court has long allowed retrial     in nearly all circumstances. We consider in this case whether the Constitution requires a different outcome when a conviction is reversed because the prosecution occurred in the wrong venue and before a jury drawn from the wrong location. We             hold that it does not.

            The Court’s holding in Smith is the first time the Court has addressed the proper remedy for a violation of venue. Historically, when constitutional rights are violated during the trial process, the Court has held that the proper remedy is a retrial:

Therefore, the appropriate remedy for prejudicial trial error, in almost all circumstances, is simply the award of a retrial, not a judgment barring reprosecution . . . [i]n all other circumstances, we have found that retrial is the strongest appropriate remedy, and we   have applied this rule to every other      Clause of the Sixth Amendment [.]

However, the Court was careful to say “in almost all circumstances” because the Court reaffirmed that violations of the Speedy Trial Clause are categorically different from other Sixth Amendment violations, and as such require the remedy of acquittal.

            The Court rejected all three of Petitioner’s arguments. First, Petitioner argued that the Venue and Vicinage Clauses were incorporated into the Constitution to limit hardships in trial; however, the additional hardship of a retrial was not a reason to require acquittal, as the Court noted:

But any criminal trial, whether or not in the right venue, imposes hardship, and any retrial after a reversal for trial error adds to that initial harm … [and that] the mere burden of a second trial has never justified an exemption from the retrial rule . . . we have repeatedly rejected objections based on the serious hardship in . . . prosecutions in places distant from the [defendant’s] home.

            Second, Petitioner argued that the historical backdrop underlying the Clauses supports the remedy of acquittal. Under English common law, however, venue violations were remedied by retrial.  Nevertheless, Petitioner argued that the incorporation of the Venue and Vicinage Clauses into the Constitution elevated the right to proper venue in American law more so than in common law. The Court again disagreed:  

[A]lthough the Clauses depart in some respects from the common law—most notably by providing new specifications about the place where a crime may be tried—there is no meaningful evidence that the Constitution altered the remedy prescribed by common law for violations of the vicinage right.

            Lastly, Petitioner argued that the Double Jeopardy Clause likewise supports the remedy of acquittal. Petitioner argued that, when juries acquit for improper venue, “a judicial ruling that venue was improper on a motion to acquit should have the same result.” The Court rejected this argument and distinguished judicial decisions from a jury’s general verdict:

[B]ecause it is impossible for a court to be certain about the ground for the verdict without improperly delving into the jurors’ deliberations, the jury holds an unreviewable power . . . to return a verdict of not guilty even for impermissible reasons.

***

The reversal of a conviction based on a violation of the Venue or Vicinage Clauses, even when styled as a “judgment of         acquittal” under Rule 29, plainly does not resolve the bottom-line question of             criminal culpability . . . [i]nstead, such a reversal is quintessentially a decision that “the Government’s case against [the defendant] must fail  even though it might satisfy the trier of fact that he was guilty beyond a reasonable doubt.”

 

            The Court’s opinion, however, leaves unanswered public policy concerns as posed by the NACDL Amicus Brief, co-authored by our very own David Oscar Markus, which explains how the remedy of retrial “invites prosecutors to engage in even more creative endeavors because it fails to associate any consequence with incorrect choices.”

Addict in possession of a firearm?

 While everyone debates whether the charges against Hunter Biden are too aggressive or too lenient, I was wondering if anyone had ever seen a similar charge -- addict in possession of a firearm -- in our district before.  I have not.

Meantime, Justice Alito took to the WSJ opinion pages in an attempt to preempt this ProPublica story:

In early July 2008, Samuel Alito stood on a riverbank in a remote corner of Alaska. The Supreme Court justice was on vacation at a luxury fishing lodge that charged more than $1,000 a day, and after catching a king salmon nearly the size of his leg, Alito posed for a picture. To his left, a man stood beaming: Paul Singer, a hedge fund billionaire who has repeatedly asked the Supreme Court to rule in his favor in high-stakes business disputes.

Singer was more than a fellow angler. He flew Alito to Alaska on a private jet. If the justice chartered the plane himself, the cost could have exceeded $100,000 one way.

In the years that followed, Singer’s hedge fund came before the court at least 10 times in cases where his role was often covered by the legal press and mainstream media. In 2014, the court agreed to resolve a key issue in a decade-long battle between Singer’s hedge fund and the nation of Argentina. Alito did not recuse himself from the case and voted with the 7-1 majority in Singer’s favor. The hedge fund was ultimately paid $2.4 billion.

Alito did not report the 2008 fishing trip on his annual financial disclosures. By failing to disclose the private jet flight Singer provided, Alito appears to have violated a federal law that requires justices to disclose most gifts, according to ethics law experts.

Experts said they could not identify an instance of a justice ruling on a case after receiving an expensive gift paid for by one of the parties.

“If you were good friends, what were you doing ruling on his case?” said Charles Geyh, an Indiana University law professor and leading expert on recusals. “And if you weren’t good friends, what were you doing accepting this?” referring to the flight on the private jet.

FOR THE DEFENSE, SEASON 5 PREMIERE: MILTON HIRSCH FOR PEDRO GUERRERO

We're back!  Season 5 of For the Defense launches today and I'm very excited. For those of you who are new followers, For the Defense is a podcast that I started with Rakontur about three years ago with the idea of conducting in depth interviews with the best criminal defense lawyers about their most fascinating trials.

This season starts with Milton Hirsch for World Series MVP Pedro Guerrero. When he was trying cases, there was no better trial lawyer than Milt Hirsch (that's him with the books below).  Now, he's a sitting trial judge in Miami.  You're going to love the stories Judge Hirsch tells about his defense, which included arguing that Guerrero was too dumb to have entered into the drug conspiracy. 

  Season 5 will continue with new episodes every other Tuesday, and there are some wonderful guests coming up, including Jerry Lefcourt, Lisa Wayne, Barry Scheck, Matt Menchel, Craig Albee, and others.  

 As always, you can catch these episodes on all podcast platforms including Apple, Spotify and Google,  All other platforms can be accessed on this website. 

 

Please send me your feedback -- and of course, subscribe, like and comment!  If you have a friend that would like to receive these updates, please have them sign up here. 

 Thank you! --David

 

Hosted by David Oscar Markus and produced by rakontur
 

CONTACT: info@rakontur.com, dmarkus@markuslaw.com 

Transcript from Trump's initial appearance

 Here.

There's also been some reporting on the number of trials Judge Cannon has had: 4 out of a little more than 200 cases (or about 2%).  Folks are criticizing the low number of trials.  That's fine, but it shouldn't be a criticism of Judge Cannon.  That's the percentage of cases that go to trial nationwide.  Judge Cannon is no different.  So feel free to criticize our system (which is fair!), but the low number of cases that have proceeded to trial before Judge Cannon is not a fault of hers.  

Trump's bond paperwork

 Here's the ROR bond paperwork.

 And the signature page:

Two orders issued in Trump's case

1. The first is by Magistrate Judge Goodman, who will be handling the initial appearance.  He denied a motion by a bunch of press organizations who wanted to take pictures insider or outside the courtroom.  Here's the order, written in Judge Goodman's style -- including this line: "I follow the 'stay in your lane' philosophy."  I understand why Judge Goodman denied the motion, but I wish the public had greater access to the courtroom.  In fact, I wrote this piece today saying we should have cameras in the courtroom.

2. The second is by Chief Judge Altonaga, who issued an order saying that journalists cannot bring their cell phones into the courthouse.  Wow, it's going to be a very long day for them inside waiting for the 3pm hearing.  I love the Chief, but I don't think this is right.  We rely on our cell phones. We need to be in touch with our families, our offices, and so on.  Journalists are people too!

All things Trump

 From the SDFLA clerk's office:

First Appearance in this case will be held at 3:00 p.m. on Tuesday, June 13, 2023, in Courtroom 13-3 of the Wilkie D. Ferguson Jr. United States Courthouse, 400 North Miami Avenue Miami FL 33128. Entry into the courtroom will be permitted on a first come, first served basis. Overflow viewing will be provided.

---

Southern District of Florida Local Rule 77.1 and Administrative Orders 2018-79 and 2019-87A limit the use of electronic devices in buildings housing federal courthouses. If authorized, news reporters are limited to use their electronic device inside the District’s courtrooms only in text function mode consistent with these Administrative Orders. News reporters are not authorized to record or transmit in any way audio, still photography, or video from anywhere inside courthouses nor from inside courtrooms, including any lobby areas, of any building housing a federal court, and agree to not transmit a live feed of any of the aforementioned at any time. Nor may reporters create a verbatim record of any proceeding. This applies to hearings held telephonically or using any video platform such as a live feed, Zoom or WebEx. A knowing or willful violation of the agreement will result in contempt of court.

District and Magistrate Judges retain the discretion to maintain order in their courtrooms should the entry and exit of news reporters become disruptive in a particular proceeding.

---

Court security will begin allowing members of the press and the public into the Wilkie D. Ferguson Courthouse at 8:30 a.m. Tuesday morning. All individuals planning to attend the initial appearance scheduled to take place in courtroom 13-3 at 3:00 p.m. will be directed to the central jury room on the 5th floor. Rows will be reserved for the public. There will be open seating for all media. The central jury room will serve as overflow space where the proceedings will be available for viewing.

The 13th floor will be sealed until the U.S. Marshals Service opens courtroom 13-3. Anyone attempting to access the 13th floor will be turned away. Seating for approximately 20 people will be reserved in the courtroom for media and members of the public. Once the U.S. Marshal advises that courtroom seating is available, press outlets will be selected to occupy those seats. Please be mindful that other Court proceedings may be taking place in the Ferguson Courthouse.

"We Need Cameras in Trump’s Courtroom"

This is the title of my latest piece.  Here's the intro:

Donald Trump is about to make his first appearance in federal court in Miami. It’s an historic case, and there is wall-to-wall coverage of it. And yet, the public will not see any of the proceedings from inside the courtroom; instead, we will have to rely on the few reporters who are able to get seats inside and a sketch artist, who may have all the talent in the world, but will not be able to do it the justice that a cellphone camera would.

We will not be able to see the former president’s expression when the charges are read. We won’t be able to hear him if he speaks. We won’t be able to view the judge when she releases Mr. Trump on bail. And that’s too bad. We have a right to see it all.

Forget about cameras, reporters won’t even be permitted in the courtroom with their phones, tablets or computers. That means no live reporting on Twitter and no emails to the newsrooms with updates. In a world focused on information and news as it happens, this is unacceptable.

Trump isn't the only one making news in South Florida

 Soon-to-be presidential hopeful and current Mayor Francis Suarez is under investigation.  From Jay Weaver:

The FBI and Securities and Exchange Commission have opened parallel investigations into developer Rishi Kapoor’s business dealings in South Florida, focusing separately on his hiring of Miami’s mayor as a consultant on local projects and his raising of funds from investors, the Miami Herald has learned. Sources familiar with both probes say the FBI’s criminal investigation centers on $10,000 monthly payments made to Mayor Francis Suarez from a subsidiary of Kapoor’s company, Location Ventures. Special agents with the FBI’s public corruption squad began questioning witnesses this week, according to sources, zeroing in on whether the payments constitute bribes in exchange for securing permits or other favors from the mayor for Location Ventures’ mixed-use project in Coconut Grove. Meanwhile, the SEC confirmed that it is also looking into Location Ventures in a response denying the Herald access to public records related to the agency’s inquiry. Sources say its investigators are digging deeper into whether Kapoor and his company were selling investment contracts without registering them as securities, misrepresenting potential profits to investors or misappropriating funds for personal expenses. The regulatory agency’s probe has been under way since early this year. The heightened federal interest in Kapoor’s business and his relationship with the mayor comes after the Miami Herald exposed Location Ventures’ consulting payments to Suarez and detailed internal corporate records that indicated the mayor and his office helped Kapoor overcome a significant permitting hurdle threatening his $70 million Coconut Grove development. The Miami-Dade Commission on Ethics and Public Trust and the State Attorney’s Office have also opened inquiries.

Trump indictment unsealed

 Here it is.

Judge Cannon assigned to Trump case, ABC reports

 Here's the article:

The summons sent to former President Donald Trump and his legal team late Thursday indicates that U.S. District Judge Aileen Cannon will be assigned to oversee his case, at least initially, according to sources briefed on the matter.

Cannon's apparent assignment would add yet another unprecedented wrinkle to a case involving the first federal charges against a former president: Trump appointed Cannon to the federal bench in 2019, meaning that, if Trump is ultimately convicted, she would be responsible for determining the sentence – which may include prison time – for the man who elevated her to the role.

A federal grand jury voted to indict Trump on at least seven federal charges late Thursday as part of an investigation into his handling of classified documents, sources familiar with the matter told ABC News. The indictment comes after more than 100 documents with classified markings were found at Trump's Mar-a-Lago resort in August 2022.

Trump Indicted

By John R. Byrne

The shoe has officially dropped. CNN covers it here. Initial appearance will be next Tuesday. Going to be a busy courthouse. No word yet on judge assignment. 

Judge Raag Singhal shows us what real judging is like... issues sentence of time served.

 Check out the sentencing transcript below.  We need more judges like Judge Singhal, who recognizes that not every conviction requires jail or even probation:

It's the judgment the Court that on this particular

case Mr. Cherenfant not be placed in custody, be technically

sentenced to a sentence of time served.

With regard to probation, what I'll do just for record

purposes, I'm going to place him on one day probation with no

special conditions. And I'm going to automatically early

terminate it once I finish what I have to say.

So Mr. Cherenfant, the other people in this courtroom

have heard this before, but you come to me, and I'm in a

position where I've presided over just about 10,000 sentencing

hearings. That's a lot more sentencing hearings than most

people. Between being a lawyer and a judge, I've been in the

criminal court system every day since June 5th, 1990. So this

is actually my 33rd anniversary of being in a criminal court.

And you did something wrong, but I've never had a

defendant appear before me who has had such an exemplary past.

And one thing that criminal lawyers know is that you try to

take the full measure of a man when you sentence them, and you

don't judge them by their worst day. And frankly, that

argument's designed for people that have had a lot of bad days.

And so that's why they talk about the worst day. You don't

even have a lot of bad days. I mean, I'm stretching to find

another bad day. I don't think the traffic ticket's

necessarily a bad day. I mean, it caused you to make positive

changes in your life.

But, you know, you did a lot of things here to try to

help you. You worked with the government in the sense that

this case came before the Court via an information, not an

indictment, and you worked with your lawyer, and you admitted

your guilt. And I know that you and your children and your

wife will be very successful going forward. You just have to

keep doing the things that you've been doing. And, of course,

if you travel to Haiti again, you know what these requirements

are. And I do wish you the best of luck. 

Cherenfant Sentencing by David Oscar Markus on Scribd

um.... legal writing?

 

Grand jury in *Florida* to hear document case against Trump

 Interesting that the special counsel has chosen Florida instead of D.C.  From NBC:

A federal grand jury will meet this week in Florida to hear evidence in special counsel Jack Smith's investigation of former President Donald Trump’s handling of classified documents, according to sources familiar with the investigation.

It is not clear how the court proceedings in Florida relate to the work of a separate grand jury in Washington, where prosecutors had been presenting evidence and witness testimony for months. The development was first reported by The Wall Street Journal.

Why prosecutors are using multiple grand juries, and whether they are ready to seek an indictment in either jurisdiction is unknown. The Justice Department declined to comment on the investigation.

Even Donald Trump deserves the protections of Attorney-Client Privilege

An open letter to my liberal criminal defense lawyer colleagues:

I know, I know -- you really don't like Donald Trump.  And even though you are a criminal defense lawyer, you don't mind him being charged or even convicted.  

I'm not going to try to change your mind on any of that.

But... what prosecutors and judges are doing in order to obtain that charge and conviction should give you great concern.  Specifically, according to this New York Times article, the government has forced one of Trump's lawyers, Evan Corcoran, to testify before the grand jury and to give up his work product, including written and voice notes.

This is absolutely insane.

From the Times:

Government investigators almost never obtain a clear lens into a lawyer’s private dealings with their clients, let alone with such a prominent one as Mr. Trump. A recording like the voice memo Mr. Corcoran made last year — during a long drive to a family event, according to two people briefed on the recording — is typically shielded by attorney-client or work-product privilege. Some details of the notes were reported earlier by The Guardian.

But in March, a federal judge ordered Mr. Corcoran’s recorded recollections — now transcribed onto dozens of pages — to be given to the office of the special counsel Jack Smith, who is leading the documents investigation.

The decision by the judge, Beryl A. Howell, pierced the privilege that would have normally protected Mr. Corcoran’s musings about his interactions with Mr. Trump. Those protections were set aside under what is known as the crime-fraud exception, a provision that allows prosecutors to work around attorney-client privilege if they have reason to believe that legal advice or legal services were used in furthering a crime.

But using crime fraud to obtain Corcoran's lengthy voice memos to himself about his interactions with the former president is a huge stretch of that doctrine and may be used in the future to get your notes with your clients.  We should all be pissed.  

 Unfortunately, the order by Judge Beryl Howell (a former narcotics prosecutor, who helped create and defend the Patriot Act) is sealed so we can't see the reasoning.  But the Times has this:

Judge Howell’s memorandum compelling Mr. Corcoran to answer questions in front of a grand jury and to produce his notes described the lawyer as essentially a casualty of Mr. Trump’s months of gamesmanship with investigators and National Archives officials about returning the documents, according to a person familiar with the memo’s contents.

As The New York Times reported in April, Judge Howell wrote in the memorandum, according to the person familiar with its contents, that Mr. Trump’s earlier actions and “misdirection” of archives officials’ efforts to retrieve what turned out to be more than a dozen boxes of records were a “dress rehearsal” for the May subpoena.

 If prosecutors can get a criminal defense lawyers' notes and impressions every time a client offers some misdirection, then get ready for a flood of motions asking for our privileged files.  

This isn't the way, even if the target is Donald Trump.

Jury Out in Carollo Trial

 By John R. Byrne

A few weeks back, the blog covered courtroom photograph-gate from the Joe Carollo trial. It's now in the jury's hands. The plaintiffs, businessmen William "Bill" Fuller and Martin Pinilla, allege that Carollo used City machinery to target their businesses because they supported his political opponent. Plaintiffs are seeking $100 million. According to records obtained by the Herald, before trial began, the City had already paid $2 million in attorneys' fees to Carollo's lawyers.

There were some unusual happenings during the trial and the Herald covers some of the highlights here. 

UPDATE: Jury found Carollo liable. Owes $60M in compensatory and punitive damages.

Go Heat.