So you want to be a Magistrate Judge?

 Well, the court is soliciting applicants for the two open spots.  A bulk email went out this morning:

The Judicial Conference of the United States has authorized the appointment of two full-time United States Magistrate Judges for the Southern District of Florida at Miami, Florida.  These appointments will succeed incumbents who were confirmed as United States District Judges.  The term of office is eight years.

A full public notice is posted on the Court's website at:  https://www.flsd.uscourts.gov/.

Interested persons may contact the Clerk of the District Court for additional information and application form.  The application form is also available on the Court's website  https://www.flsd.uscourts.gov/.  Applications must be submitted only by applicants personally to; FLSD_magistratejudgerecruitment@flsd.uscourts.gov no later than 11:59 p.m. on Sunday, March 31, 2024.

For many years, the culture in this District was that magistrate judges had little chance at becoming a district judge.  But that has changed.  Two of last three judges came from the magistrate bench. It will be interesting to see if that continues.

It's all about the Benjamins baby

 The Feds just raided Diddy's home in Miami, according to the Miami Herald.

Federal agents raided the Miami area home of rap mogul Sean Combs, better known as Diddy, reports say. Diddy owns a residence at 1 Star Island, which was previously owned by Gloria and Emilio Estefan and Diddy purchased for $35 million in 2021. The raid came weeks after a lawsuit alleged that Diddy was the leader of a criminal enterprise that could qualify as a “widespread and dangerous criminal sex trafficking organization.”

"Reading the Constitution: Why I Chose Pragmatism, Not Textualism."

 That's the title of Justice Breyer's new book, and he's making the rounds promoting it.  This morning he was on Meet The Press.  Here's the NBC report:

Former Justice Stephen Breyer described the 2022 leak of the Supreme Court’s decision to overturn Roe v. Wade as “unfortunate” and sidestepped questions about whether justices had been working on a compromise ruling behind the scenes.

In an interview with NBC News' "Meet the Press," Breyer didn't say he was upset about the leak while noting that in general he tried to "avoid getting angry" when he was on the bench.

"You try to avoid getting angry or that — you try in the job — you try to remain as calm, reasonable and serious as possible. I think it was unfortunate," he said of the publication of the draft decision in the Dobbs v. Jackson Women’s Health Organization case.

Asked directly whether the justices had discussed a potential compromise to limit access to abortion at 15 weeks, Breyer told "Meet the Press" moderator Kristen Welker, "Well, you know as much about that as I do."

“The normal situation is before something is written in the conference, people in some form or other will discuss what they’re thinking of writing, not always and not identical. But there’s usually some discussion,” Breyer said of the process leading up to court decisions.

“I usually hope for compromise,” he added.

 

Guest Post by Mark Royero – McElrath v. Georgia (2024)

Can’t Touch This: SCOTUS Unanimously Decides That Inconsistent Acquittals Bar Retrial.     

            First, thank you to David Oscar Markus and John R. Bryne for allowing me to submit this guest post. This post will cover the Supreme Court’s recent opinion in McElrath v. Georgia, the Court’s latest decision regarding the Double Jeopardy Clause and inconsistent verdicts. This issue was the subject of the 2024 Gibbons National Criminal Procedure Moot Court Competition, where my partner Kaitlin Prece and I represented the University of Miami School of Law. I would also like to thank our dedicated coaches, Adam Stolz and Luis Reyes, for their guidance and support throughout the competition.

What's going on with Judge Cannon's law clerks? (UPDATED)

UPDATE -- David Lat's original post has a number of updates and he has written "an epic" follow-up post about Cannon and her clerks here.

 The legal community is abuzz with this David Lat report that two of Judge Cannon's law clerks have resigned:

Judge Cannon has had at least two law clerks quit on her, according to multiple sources—including individuals who serve in the U.S. District Court for the Southern District of Florida, where she sits.

***

What does Judge Cannon have to say about clerks quitting on her? Over the past few days, I have sent multiple emails to the Public Information Office for the Southern District of Florida and to Judge Cannon’s chambers, requesting comment on reports that at least two of her clerks have departed before the scheduled end of their clerkships. I have received read receipts, but no responses (even though, in my experience, subjects are eager to warn me off bad information—for which I’m always grateful). If I do hear back, I will immediately update this post, of course.

I should be clear about what I don’t know. My sources have been circumspect so far, and despite my best efforts, I have been unable to determine precisely why these clerks quit, when they departed, and if they have already been replaced or the Cannon chambers is operating short-staffed.3

But based on my experience, I believe that once the fact of the clerks’ quitting becomes public, the floodgates will open. Details about the Cannon clerk departures will become more widely known, whether reported by me or others. Additional information about other personnel issues in her chambers—possibly involving employees other than clerks, such as judicial assistants or courtroom deputies—could emerge. So one reason I’ve decided to publish this post, despite lacking certain key details, is to prime the pump—to encourage sources to come forward with more information, and to encourage other journalists to follow up on my reporting.

BREAKING -- Detra Shaw-Wilder nominated to district bench

 CONGRATULATIONS.

Here's the WH Press Release:

Detra Shaw-Wilder has been an attorney in private practice at Kozyak Tropin & Throckmorton in Coral Gables, Florida since 1994, rising from associate to partner. From 2015 to 2017, Ms. Shaw-Wilder was managing partner of the firm and has served as general counsel for the firm since 2017. She received her J.D. from the University of Miami School of Law in 1994 and her B.S. from the University of Florida in 1990.

A New Hope

 You may remember the case of Irfan Khan.  He was indicted back in 2011 to a lot of publicity about terrorism charges (mostly as a result of numerous press conferences that the U.S. Attorney's office held).  His lawyers, the great Michael Caruso and wonderful Sowmya Bharathi, repeatedly said he was innocent.  And yet he was detained because the prosecutors beat the terrorism drum.  

Turns out, his lawyers were right -- Khan was innocent.  Before trial, the government dropped all charges.

Khan sued, saying there was no probable cause and that the prosecution was malicious.  He's been fighting for many many years, and the case was recently tried to the bench before Chief Judge Altonaga.  She ruled for Khan, that it was malicious prosecution. 

Good for him.  And good for our Chief Judge, who isn't afraid to do the right thing.

Here's the press release about the victory:

Today, MLFA received an historic court ruling in the case of Khan v. United States as to government liability for malicious prosecution of an American Muslim.  Irfan Khan was arrested and indicted for Material Support of Terrorism in May of 2011. He spent more than 317 days in solitary confinement while his wife and children were sleeping on floors as they were forced out of their apartment due to the false allegations of terrorism against Mr. Khan.  After almost 11 months in custody, the government released Mr. Khan and dropped the charges – with no explanation or apology.   

In 2015, MLFA partnered with Morgan & Morgan, the largest plaintiff’s law firm in the country, which had brought a civil action against the United States on Mr. Khan’s behalf to hold the government accountable for their actions against Mr. Khan.  After a twelve-year fight over classified discovery and continuous obstruction by the government, in February of 2024, this case finally went to trial before Chief Judge Altonaga in Miami, Florida (1:13-cv-24366-CMA, FLSD).  Over a four-week trial, MLFA supported and participated with Morgan & Morgan’s trial lawyers to demonstrate the government’s liability.  Today, in an historic court ruling, Chief Judge Altonaga found that the government lacked probable cause in all stages of the prosecution of Mr. Khan, and that the actions of the F.B.I. agents constituted legal malice.  This is the first time in more than 20 years since 9/11 that the government has been held civilly liable for their actions in prosecuting American Muslims.  A hearing to determine the amount of financial damages awarded to Mr. Khan will be set for late summer, 2024.

 And this wouldn't be a Khan post, if I couldn't post this all-time great clip:

Trump sues ABC and George Stephanopoulos

The Complaint is available at this link. The case has been assigned to Chief Judge Altonaga.  Lisa Willis, from the DBR, covers the lawsuit here:

Former President Donald Trump sued ABC and network host George Stephanopoulos on Monday in Miami federal court after Stephanopoulos said on the air the former U.S. president had been found liable for rape.

Trump’s Miami legal team plans to prove the statements were defamatory.

“President Trump was never found liable for rape,” said Alejandro “Alex” Brito, of Brito PLLC.

Brito’s firm filed the defamation lawsuit in the Southern District of Florida against ABC, ABC News, and Stephanopoulos on behalf of Trump.

“[Trump] was accused [on the program] of engaging in rape, and that is, from our estimation, a clear defamatory statement that would meet the requirements of serving as a basis for a defamation per se claim,” Brito said.

The two counts in the complaint are defamation per se and defamation per quod.

During last Sunday’s show, Stephanopoulos questioned Rep. Nancy Mace on her stance as a rape victim supporting the Republican party presidential candidate and former president in light of the May jury verdict in his recent civil trial brought by E. Jean Carroll.

“Why are you supporting someone who has been found liable for rape?” Stephanopoulos asked Mace, who said she was “offended” that the host was trying to “shame me as a rape victim.”

Mace previously revealed she was raped at 16.

“We reached out to ABC and ABC News on Sunday immediately following the news reporting and asked for an apology and a retraction,” Brito said. “And rather than acknowledge that Stephanopoulos crossed the line and made a mistake and provide us with such a retraction, all ABC did was change the headline of a print of this story.”

Missing Justice Scalia

 SCOTUS ruled that "and" means "or." It's pretty wild.

The 11th Circuit, apparently more honest and less conservative than SCOTUS, previously held that and means and.

The Supreme Court case is Pulsifer and it demonstrates that today's Court is one of the most prosecution friendly in a long long time.  I'm sure Scalia would have ruled for the defendant here and I bet he would have carried a majority.   Instead, Justice Kagan takes the government's position that and means or, which is pretty devastating to thousands of prisoners who would have received relief under the First Step Act. 

Justice Gorsuch, who is trying to take over the Scalia mantle as willing to rule for a criminal defendant if that's what the text says, wrote an incredible dissent.  It's worth a read.  

Here's SCOTUSblog's take:

Justice Elena Kagan’s opinion for a sharply divided court in Pulsifer v. United States resolves an ambiguity in the provisions added to federal sentencing law in the First Step Act of 2018, coming down firmly on the side of the government. The problem involves how to read a “safety valve” in federal criminal sentencing laws, which allows defendants to avoid the often lengthy mandatory minimum sentences scattered throughout the federal criminal code. The safety valve requires the defendant to satisfy a laundry list of each of five separate rules.

This case involves the first of those rules, which assesses the defendant’s criminal history. Generally speaking, the point of the provision is that defendants with a serious criminal history are not eligible for the safety valve, and thus must serve the normal mandatory minimum sentence. Before the First Step Act, the criminal history provision excluded all defendants with more than one criminal history point; the First Step Act relaxed that provision, adopting the view that it made the safety valve unreasonably narrow. What the 2018 law substituted was a rule that involves three separate tests, which Kagan describes as testing for “more than 4 criminal history points,” a “3-point offense,” and a “2-point violent offense.” Treating those three tests as A, B, and C, Kagan quotes the statute’s limitation of the safety valve to a defendant who “does not have” A, B, “and” C.

The dispute in the case turns on the meaning of the “and” between subparagraphs B and C. For its part, Kagan explains, “the Government contends that the phrase … creates a checklist with three distinct conditions. [Thus], a person fails to meet the requirement … if he has any one of the three.” In contrast, the defendant contends that the phrase ‘does not have A, B, and C’ sets out a single, amalgamated condition for relief, [which] a defendant … fails … only when he has all three of A, B, and C.” Kagan ultimately agrees with the government’s harsher view: Defendants lose the safety valve if they have A, they lose if they have B, and they lose if they have C.

Federal Judges, including Altman and Scola, head to Israel

 Looks like it’s an amazing trip.  The Jerusalem Post covers it here:

A delegation of 14 US federal judges arrived in Israel on Sunday for a week-long educational tour on the impact of the October 7 massacre and its challenges to the Israeli legal system and the laws of war.

The delegation, facilitated with the help of the World Jewish Congress, also saw the judges visit the Supreme Court of Justice and meet with Justice Ofer Grosskopf.

"We came to learn about how the Israeli legal system works," said Florida Southern District Court Judge Roy Altman, one of the organizers of the trip.

The Jewish Venezuelan-born judge—the youngest federal judge appointed in the US—wanted to know how the legal system managed to address terrorism in general and post-October 7. He noted that the United States saw a lot of new security legislation introduced since the September 11 terrorist attacks, and the discourse centered around the balance of individual rights against safety concerns.

Altman said he was interested in learning "How is Israel managing that balance?"

***

Florida Southern District Court Senior Judge Rober Scola said that he and the entire world were hoping for peace in the Middle East and hoped that Israelis and Palestinians would one day cease fighting over the land and achieve harmony.

On Monday, the delegation spoke to a Palestinian activist, who Scola said impressed upon him the needs required to achieve peace. He hoped that the activist was not a lone voice in the Palestinian community but represented a broader consensus.

Altman said that the judges were there to learn from all sides; in addition to hearing from the Palestinian activist, they also "heard from the acting American ambassador at the time of October 7, so we also heard the American perspective."

While he hoped to see advancement toward peace, Scola said that trust and the quest for peace were going to require the return of hostages, and it had to be appreciated that it was going to take a while for Israelis to process the trauma of October 7.

"One thing that is palpable is how devastating this attack has been to the people here," said Scola.

News & Notes

1.    FACDL-Miami calls for reform at the Miami SAO.  Their statement is here.

2.    There's a new federal rule to prevent forum shopping.  The NYT story:

When anti-abortion activists sued the Food and Drug Administration in 2022 seeking to overturn the approval of the abortion drug mifepristone, they filed their suit in the federal court in Amarillo, Texas, where it was all but assured that the case would be heard by Judge Matthew J. Kacsmaryk, an outspoken opponent of abortion.

Judge Kacsmaryk, the sole federal judge in Amarillo, wound up agreeing with the plaintiffs that the drug was “unsafe.” In his ruling, he invalidated the F.D.A.’s 23-year-old approval of the drug and opened a new front in the post-Dobbs reckoning over abortion rights.

The suit — and the role of Judge Kacsmaryk, who handles 95 percent of the Amarillo civil caseload — was one of the most striking recent examples of “forum shopping,” where plaintiffs to try to cherry-pick sympathetic judges.

Now, forum shopping is about to get harder.

The panel of federal judges who set policy for the rest of federal judiciary on Tuesday announced a new rule intended to curb the practice in civil cases with nationwide implications, like the mifepristone suit.

In such cases, where plaintiffs are seeking a sweeping remedy, like a nationwide injunction, the judge will be assigned at random from across the district instead of defaulting to the judge or judges in a particular courthouse.

3.    Justices Sotomayor and Barrett discuss relationships on the Court (also via the NYT):

A week after Justice Amy Coney Barrett chastised Justice Sonia Sotomayor for choosing “to amplify disagreement with stridency” in a Supreme Court decision on former President Donald J. Trump’s eligibility to hold office, the two women appeared together on Tuesday to discuss civics and civility.

They gave, for the most part, a familiar account of a collegial court whose members know how to disagree without being disagreeable.

“We don’t speak in a hot way at our conferences,” Justice Barrett said, referring to the private meetings at which the justices discuss cases. “We don’t raise our voices no matter how hot-button the case is.”

Justice Sotomayor, who usually gives a sunny description of relations between the justices, registered a partial dissent.

“Occasionally someone might come close to something that could be viewed as hurtful,” Justice Sotomayor said. When that happens, she said, a senior colleague will sometimes call the offending justice, suggesting an apology or other way of patching things up.

Similar interactions can happen if a draft opinion is too sharp, she said. “There is dialogue around that, an attempt to find a different expression,” she said.

4.    The U.S. Marshals want more $$ to protect the Justices.  Via Bloomberg:

The US Marshals Service is seeking $28 million to staff permanent protective details for the Supreme Court justices’ homes, a task it says is straining agency resources nationwide, according to a Justice Department fiscal 2025 budget proposal.

The Marshals Service—which provides protection for members of the federal judiciary—has been temporarily deploying deputy US marshals from each of the country’s 94 judicial districts to handle the 24/7 security for the justices’ nine main residences, plus one vacation home, according to budget documents published Monday.

In fiscal 2023, 23% of deputy US marshals supported at least one residential protection rotation at a justice’s home lasting two to three weeks, according to the budget document. The request says that the service currently sends each new graduating class of deputy US marshals “immediately” to the justices’ homes, where they work for 75 days.

The around-the-clock protection began at the request of Attorney General Merrick Garland in May 2022, after the leak of a draft opinion ahead of the court’s overturning of the constitutional right to abortion, the Marshals said.

The Marshal Service said that, as it deals with other security requests tied to “high-visibility” cases, it needs permanent staff to secure the homes. The service said that full-time personnel is preferred, especially those with specific training who can work toward “the best outcome if an attack or other threat event should occur.” It also cites “the extreme level of impact to the government and the nation if the Justices are not properly safeguarded” in making the request.

What should happen to prosecutors who commit misconduct?

The blog has addressed this question a bunch of times and it's time to ask it again in light of what happened before Judge Wolfson in state court.  Here's the AP coverage, and Rumpole covers it here.  

Although it is an epidemic in both systems, my sense is that prosecutorial misconduct happens less frequently in Florida state court than in federal court, mostly because Florida has depositions and more open discovery.  Do you agree?

Also, when it does happen, judges are more likely to call it out in state court and there are more immediate consequences.  In this case, the prosecutor resigned.  And Kathy Rundle issued a statement.  When does that happen in fed-land?

Much more needs to be done in both systems if there's going to be a real deterrent. 

Your Friday moment of Zen

 Judges are always proud of their law clerks.  But imagine the pride when you hear that your two former clerks are arguing against each other in the 11th Circuit.  Here's Ariel Lett and Zach Vosseler, who both clerked for Judge Gayles, after their argument before the appellate court.

Judge Melissa Damian has been sworn in (UPDATED)

That's her with her children and Chief Judge Altonaga.

That means all three new judges are in and working.  Congratulations again to all three!

Cases will now start getting transferred.

Let the fun begin.

Update with a picture of the swearing in of David Leibowitz, with his wife and son, by Judge Marcus.  Judges Altonaga, Moreno, and Jordan were also present  

You won't believe this total screw up in the Trump case yesterday from SCOTUS

UPDATE -- check out Robert Kuntz' comment in the comment section, theorizing that the metadata debacle wasn't incompetence but was intentional.  I doubt it because it would not surprise me for a second that SCOTUS just does not understand basic tech issues.  Your thoughts?

 It's really hard to believe, but the Supreme Court forgot to wipe the metadata from the Trump opinion that came out yesterday.  Internet sleuths found that the three liberal Justices' "concurrence" actually started out as a partial dissent by Justice Sotomayor.  Slate tells the story here:

The Supreme Court’s decision on Monday to keep Donald Trump on Colorado’s ballot was styled as a unanimous one without any dissents. But the metadata tells a different story. On the page, a separate opinion by the liberal justices is styled as a concurrence in the judgment, authored jointly by the trio. In the metadata of the link to the opinion posted by the court, however, this opinion is styled as an opinion concurring in part and dissenting in part, authored not by all three justices but by Sonia Sotomayor alone. Even a techphobic reader can discern this incongruity through careful copying and pasting, piercing the facade of unanimity that the conservative justices sought to present.

What happened? Most obviously, the Supreme Court rushed out this opinion and forgot to check the metadata. The court, after all, scheduled the opinion’s release only one day earlier, on Sunday afternoon, evidently to hand it down before Tuesday’s Colorado primary. Moreover, the justices did not take the bench to announce the opinion, as they usually do—probably because they had not all planned to be in D.C.—further proving that it was a last-minute release. The deeper question remains, of course: Why was an opinion originally authored by a lone justice as a partial dissent transformed into a concurrence authored by all three liberals together?

In other news, the 11th Circuit bench-slapped DeSantis and Florida for passing a law called the Stop W.O.K.E. Act that prohibited woke mandatory workplace training.  It obviously violated the First Amendment.  Per Judge Grant, joined by Wilson and Brasher:

 This is not the first era in which Americans have held widely divergent views on important areas of morality, ethics, law, and public policy. And it is not the first time that these disagreements have seemed so important, and their airing so dangerous, that something had to be done. But now, as before, the First Amendment keeps the government from putting its thumb on the scale. The State of Florida seeks to bar employers from holding mandatory meetings for their employees if those meetings endorse viewpoints the state finds offensive. But meetings on those same topics are allowed if speakers endorse viewpoints the state agrees with, or at least does not object to. This law, as Florida concedes, draws its distinctions based on viewpoint—the most pernicious of dividing lines under the First Amendment. But the state insists that ordinary First Amendment review does not apply because the law restricts conduct, not speech.

We cannot agree, and we reject this latest attempt to control speech by recharacterizing it as conduct. Florida may be exactly right about the nature of the ideas it targets. Or it may not. Either way, the merits of these views will be decided in the clanging marketplace of ideas rather than a codebook or a courtroom.  

Eleventh Circuit Votes En Banc to Consider Forum Designations

By John R. Byrne

For you First Amendment scholars out there, the Eleventh Circuit just granted re hearing en banc in McDonough v. Garcia, 90 F.4th 1080, 1086 (11th Cir. 2024). The case involved a community gadfly-type who was barred from attending Homestead city council meetings. 

 

In the opinion, Judge Grant surveyed Supreme Court and Eleventh Circuit cases discussing the four types of forums--traditional public forums, designated public forums, limited public forums, and non-public forums. The panel, seemingly begrudgingly, ruled that city council meetings fell into the more speech friendly "designated public forum" category, reversing the district court's grant of summary judgment to Homestead. But it seems like the Eleventh Circuit may be interested in moving those meetings into the less speech friendly "limited public forum" bucket (meaning the city can restrict speech so long as those restrictions are viewpoint neutral and reasonable).

 

Attached is the panel opinion, which is a must read if you're a law student about to take the final in your First Amendment class.

McDonough by John Byrne on Scribd

Friday news

 First, a big congrats to our three new judges.  Jackie Becerra, David Leibowitz, and Melissa Damian were all confirmed this week.  And Judge Becerra was sworn in yesterday, which means she will take the Miami seat.  The next judge who is sworn in will spend a short amount of time in Ft. Lauderdale and then to Miami.  The third judge to be sworn in will be in Ft. Lauderdale for a while.  Current judges: get your transfer orders ready!

In case-related news, Manuel Rocha, the Cuban spy, announced yesterday that he would be pleading guilty.  That was FAST.  From the AP's Joshua Goodman:

A former career U.S. diplomat told a federal judge Thursday he will plead guilty to charges of working for decades as a secret agent for communist Cuba, an unexpectedly swift resolution to a case prosecutors called one of the most brazen betrayals in the history of the U.S. foreign service.

Manuel Rocha’s stunning fall from grace could culminate in a lengthy prison term after the 73-year-old said he would admit to federal counts of conspiring to act as an agent of a foreign government.

Prosecutors and Rocha’s attorney indicated the plea deal includes an agreed-upon sentence but they did not disclose details at a hearing Thursday. He is due back in court April 12, when he is scheduled to formalize his guilty plea and be sentenced.

The brief hearing shed no new light on the question that has proved elusive since Rocha’s arrest in December: What exactly did he do to help Cuba while working at the State Department for two decades? That included stints as ambassador to Bolivia and top posts in Argentina, Mexico, the White House and the U.S. Interests Section in Havana.

“Ambassador Rocha,” as he preferred to be called, was well known among Miami’s elite for his aristocratic, almost regal, bearing befitting his Ivy League background. His post-government career included time as a special adviser to the commander of the U.S. Southern Command and more recently as a tough-talking Donald Trump supporter and Cuba hardliner, a persona friends and prosecutors say Rocha adopted to hide his true allegiances.

New judge update (NUMEROUS UPDATES)

1. Jackie Becerra is up for a full vote at 11am. UPDATE -- Becerra has been confirmed 56-40. 

Thursday update -- Judge Becerra was sworn in today after President Biden signed her commission. 

2. David Leibowitz is expected to be up for a full vote at 2pm. UPDATE -- Leibowitz has been confirmed 64-33.

3. Melissa Damian is expected to get a cloture vote next week. UPDATE -- Actually, it will be this week.  Debate ends Wednesday, and full vote Thursday. SECOND UPDATE -- the Senate is moving quickly. Damian is scheduled for final floor vote at 5:30 today (Wednesday)

Third Update -- Damian has been confirmed 77-20. 

Congrats to all three new judges!!

“As Hyman Roth said, ‘This is the business we have chosen.’‘’

 That was Judge Bob Scola at the plea and sentencing of Philip Esformes.  The Herald covers it here:

A South Florida businessman pleaded guilty on Thursday to stealing millions of dollars from the taxpayer-funded Medicare program, capping a long-running healthcare fraud case marked by a commutation of his initial 20-year sentence by President Donald Trump in late 2020. 

Philip Esformes, who formerly lived in Miami Beach while running a chain of skilled-nursing and assisted-living facilities, showed no emotion as a federal judge spared him from going back to prison but imposed tens of millions of dollars in financial penalties reflecting his ill-gotten gains. 

Other than acknowledging his criminal activity as a healthcare operator who paid and received bribes in exchange for Medicare patients, Esformes said little during his change of plea hearing in Miami federal court and didn’t respond to a reporter’s question afterward. 

The plea agreement was reached earlier this month between the Justice Department and Esformes in one of the nation’s biggest Medicare fraud cases. Despite Trump’s commutation of his initial prison term, Esformes faced a potential retrial on the main healthcare fraud conspiracy count and five related charges from his first trial in 2019 because a Miami federal jury deadlocked on those offenses while finding him guilty on 20 others. The Justice Department vowed to retry Esformes as prosecutors negotiated a plea deal behind the scenes with his defense lawyers.

U.S. District Judge Robert Scola highlighted the “unusual” circumstances of Esformes’ healthcare fraud case, revealing for the first time what he thought about President Trump’s commutation of Esformes’ sentence after he had only served 4 1/2 years, including his time in detention after his arrest in July 2016. 

“I can’t say that I was not disappointed when his sentence was commuted by the president,” Scola said, while pointing out that under the Constitution a president has the prerogative to grant clemency petitions. 

Then, referring to a mob boss’ famous line in the Godfather II movie, the judge noted: “As Hyman Roth said, ‘This is the business we have chosen.’"

Two new Magistrate Judge positions opening (hopefully!)

 From the court's website; applications are due 3/31.

The Judicial Conference of the United States has authorized the appointment of two full-time United States Magistrate Judges for the Southern District of Florida at Miami, Florida.  These appointments will succeed incumbents who are expected to be confirmed as United States District Judges.  The term of office is eight years.

A full public notice is posted on the Court's website at:
https://www.flsd.uscourts.gov/.

Interested persons may contact the Clerk of the District Court for additional information and application form.  The application form is also available on the Court's website https://www.flsd.uscourts.gov/.  Applications must be submitted only by applicants personally to; FLSD_magistratejudgerecruitment@flsd.uscourts.gov no later than 11:59 p.m. on Sunday, March 31, 2024.

Update on new judges

 I'm told that Jackie Becerra and David Leibowitz will get floor votes as early as next week. They should both get sworn in shortly afterwards. Whoever is sworn in first will get the open Miami seat with the other judge starting out in Ft. Lauderdale. I'm also told that Melissa Damian will be in the next batch right behind them, maybe a few weeks away. Those transfer orders will be flying across CM/ECF! 

Maduro, Pardons, and Sentence Reductions

By John R. Byrne

President Biden may have pardoned Alex Saab, a Venezuelan businessman and Maduro supporter who conspired with others to inflate the price of food and medicine during a hunger crises in Venezuela. But some of his co-conspirators were left behind. Judge Ruiz recently granted one of those co-conspirators a hefty sentence reduction, noting his cooperation and contrasting his situation with others like Saab who had "skipped town." The Associated Press covers it here.

Apparently the pardon of Saab was part of a goal "to improve relations with the OPEC nation and pave the way for freer elections." 

Bonus Podcast Episode -- Judge Nancy Abudu

Judge Nancy Abudu being sworn in as our newest 11th Circuit judge I am very excited to share this bonus episode with you -- an interview with our newest 11th Circuit Judge, Nancy Abudu. I think you will be impressed with how open and humble Judge Abudu is, not to mention how smart and quick-witted.  I had never met or spoken to her before, and it struck me how likable and nice she was! You can access it on Apple, Spotify, or any other platform from our website here. You'll recall we've had other 11th Circuit judges on the show before, including Chief Judge Pryor and Judge Rosenbaum, as well as district judges Charles Breyer, Jed Rakoff, and former judge John Gleeson. If I was putting together a Supreme Court, these six would be a pretty good start. Anyway, I hope you enjoy the episode with the terrific Judge Nancy Abudu. Thank you! --David   Hosted by David Oscar Markus and produced by rakontur

Some questions about Fani Willis and the defense motion:

1.  What did you think about Fani Willis' demeanor on the stand?

Fani Willis: "I probably had some choice words about some of the things that you said that were dishonest within this motion. I don't know that it was a conversation, as you know, Mr. Wade is a southern gentleman, me not so much." @Acyn pic.twitter.com/SDiwAD6GRs

— The Intellectualist (@highbrow_nobrow) February 15, 2024

2.  What, if anything, should the Court order as a result of her affair with special prosecutor Nathan Wade?

Nathan Wade admits to having had sexual relations with Fani Willis while trying Trump in court. WATCH pic.twitter.com/UyttJzGA0F

— Simon Ateba (@simonateba) February 15, 2024

3.  If Trump wasn't the defendant, would you answer to #2 be different?

Will Second Thoughts Unwind Verdict? (UPDATES WITH BREAKING NEWS)

Breaking News Update:  Looks like we will have some new judges pretty soon as the Senate is moving forward.  From its Twitter account this morning:

Vote scheduled: At 5:30pm, on Monday, February 26th, the Senate will proceed to a roll call vote on the motion to invoke cloture on Executive Calendar #468 Jacqueline Becerra to be United States District Judge for the Southern District of Florida.

— Senate Cloakroom (@SenateCloakroom) February 13, 2024

It also shows that Schumer filed cloture for David Leibowitz.  I assume all three will be moving forward on the same timeline but I will update that as I get information.

Second update -- Looks like Becerra and Leibowitz re up for unanimous consent this Friday, and all three nominees are still listed on the Senate calendar here.

Original post: By John R. Byrne

You'd think this fact pattern has come up a few times in SDFLA given the sheer number of criminal trials that are held here. Jury renders verdict. Court polls jurors who all confirm verdict. Then juror (or jurors) contact Court after rendering verdict saying they really didn't believe in their verdict. 

Judge Williams is currently dealing with just such a fact pattern. Last Thursday, a jury convicted a former British Virgin Islands premier--Andrew Fahie--of conspiring to import cocaine. Then two jurors contacted the Court to express misgivings. Herald covers it here.

News & Notes

 1.  Did the Special Counsel's office overreach by saying that Joe Biden has a bad memory?  From Politico:

The special counsel investigating President Joe Biden’s handling of classified documents has concluded that no criminal charges are warranted in the matter and said they wouldn’t be even if the Department of Justice didn’t have a policy barring the prosecution of sitting presidents.

That conclusion was revealed in a 345-page report that the Justice Department released on Thursday.

But while the report withheld condemnation of Biden on legal grounds, it presented a harsh portrait of his conduct and mental faculties. Biden improperly took classified material related to the 2009 Afghanistan troop surge and shared classified information with the ghostwriter of his 2017 memoir. The report also includes photos of classified documents in insecure places, including a cardboard box in Biden’s garage and a filing cabinet under his TV.

In the report, Special Counsel Robert Hur, a well-respected former U.S. Attorney, explained the president’s “lapses in attention and vigilance demonstrate why former officials should not keep classified materials unsecured at home and read them aloud to others, but jurors could well conclude that Mr. Biden’s actions were unintentional.”

But he said that Biden would make a defense that many jurors would find sympathetic.

“[A] trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory,” reads the report.

2.  Is Justice Jackson going to side with President Trump in the Colorado case?  From Slate:

If there was any surprise on Thursday, it was Justice Ketanji Brown Jackson’s embrace of Mitchell’s main theory that the president is not an “officer” of the United States, so Section 3 does not apply to him at all. Jackson pointed out, correctly, that the amendment lists specific positions (like senator) from which insurrectionists are disqualified and does not mention the president. “Why is that?” she asked Murray. “And if there’s an ambiguity, why would we construe it … against democracy?” Jackson suggested that the amendment was “about preventing the South from rising again” and was intended to prevent Confederates from prevailing in “local elections” involving “local concerns.” Doesn’t it seem, she mused, that the Framers excluded the presidency because of the “troubling potential disuniformity of having different states enforce Section 3 with respect of presidential elections”?

To be clear, Jackson’s argument mirrored that of professor Lawrence Lessig in Slate, not the bizarre fringe hypothesis about a secret constitutional code distinguishing office and officers. (Only Justice Neil Gorsuch poked at that idea, and even then with little enthusiasm.) Jackson’s fundamental concern mirrored that of Roberts and Kagan: Letting states disqualify federal candidates would create a patchwork of 50 wildly different regimes, handing a few swing states the authority to decide each presidential election. Sotomayor eventually gestured toward this fear as well, though she sounded genuinely torn, more so than her left-leaning colleagues. She pummeled Mitchell over his reliance on Griffin’s Case, his departure from the constitutional text, and his distortions of history. If any justice dissents, it will be Sotomayor. Yet she, too, can be a team player when called upon. And it is easy to envision the justice signing on to an opinion for Trump to create the impression of consensus.

 3.  Is the federal prison system in crisis?  From the Hill:

Due to officer shortages, other BOP employees including nurses, teachers, maintenance workers, and counselors are regularly pulled away from their main duties to fill in for officer vacancies. This practice, known as augmentation, affects the safety of both staff and inmates. The added workload and stress can lead to burnout, as individuals are managing multiple responsibilities without proper support. Pulling employees away from their regular duties also reduces inmate access to medical staff, education programs, and rehabilitation services and hampers our ability to fulfill the requirements of the First Step Act, which Congress passed in 2018 to improve an inmate’s eligibility for early release.

Ensuring everyone’s safety inside the prison walls is a major factor behind the use of special housing units, also known as restrictive housing. These units serve various purposes in prisons, including protecting vulnerable inmates and isolating dangerous ones. As BOP Director Colette Peters acknowledged while testifying before a House subcommittee in November, a large portion of inmates assigned to special housing units are there voluntarily for their protection. The pressure to limit or eliminate the use of these housing units has had a negative effect on prison security, making it even harder to retain officers.

Outside of staffing shortages, another major challenge facing BOP is the failing condition of its facilities due to lack of investment in maintaining them.

Hawaii Supreme Court says U.S. Supreme Court doesn't know what it's talking about

 Oh, you gotta like it when the states say the feds are messing things up.  This time it's about guns.  From Reuters:

The Hawaii Supreme Court has upheld the state's laws that generally prohibit carrying a firearm in public without a license--and in the process criticized the conservative-majority U.S. Supreme Court's rulings that have expanded gun rights.
Justice Todd Eddins wrote in a unanimous 5-0 decision on Wednesday that under the U.S. Constitution's Second Amendment, "states retain the authority to require individuals have a license before carrying firearms in public."

The court, comprised of three appointees of Democratic governors and two Republican-appointed judges, said it disagreed with the U.S. Supreme Court's recent rulings interpreting the right to keep and bear arms under the Second Amendment.

It expressed that disagreement as it interpreted a near-identical provision of the state's constitution which says: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

Here's the opinion, which even has a quote from The Wire:

As the world turns, it makes no sense for contemporary society to pledge allegiance to the founding era’s culture, realities, laws, and understanding of the Constitution.  “The thing about the old days, they the old days.”  The Wire: Home Rooms (HBO television broadcast Sept. 24, 2006) (Season Four, Episode Three).

And the Court explains how the feds interpretation "clashes with Aloha spirit:"

In Hawaiʻi, the Aloha Spirit inspires constitutional interpretation.  See Sunoco, 153 Hawaiʻi at 363, 537 P.3d at 1210 (Eddins, J., concurring).  When this court exercises “power on \behalf of the people and in fulfillment of [our] responsibilities, obligations, and service to the people” we “may contemplate and reside with the life force and give consideration to the ‘Aloha Spirit.’”  HRS § 5-7.5(b) (2009). The spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities. 

Being a Supreme Court Justice in Hawaii seems like a pretty good gig.

Trump heads to SCOTUS

Big argument at 10am this morning for the future of our country. Politico dives into the six actual legal questions that are presented here:

Just 109 words.

Whether Donald Trump can legally return to the White House will come down to how the Supreme Court interprets two rarely-invoked sentences written more than a century and a half ago as a battle-torn nation sought to recover from the Civil War.

Those two sentences make up Section 3 of the 14th Amendment, known colloquially as the insurrection clause. And on Thursday, the justices will publicly grapple with their meaning, as the court hears oral arguments on whether the provision disqualifies Trump from holding office again.

Colorado’s top court, in a bombshell decision in December, said Trump is indeed ineligible because of his efforts to subvert the 2020 election and his role in inciting the violent attack on the Capitol on Jan. 6, 2021. Scores of similar challenges are pending around the country.

Most legal experts expect the court — which is controlled by a six-justice conservative majority, including three of Trump’s own nominees — to overturn the Colorado decision and keep him on the ballot. But it’s far from clear what route the court might take to reach that result.

The justices have many options, ranging from a broad declaration that Trump is not an insurrectionist to a hyper-technical interpretation that a key phrase in the insurrection clause does not apply to Trump at all.

The argument begins at 10 a.m. EST, and live audio (but no video) will be available. Here are the key questions the justices will likely grapple with.

Does the insurrection clause apply to Trump?

Trump’s leading argument in the politically charged case is a semantic one: The president, he says, is not “an officer of the United States.” The reason that’s important is that the insurrection clause applies only to certain types of officeholders who took an oath to “support the Constitution” and then engaged in insurrection. In Trump’s case, the only way for the clause to apply is if he took such an oath as an “officer of the United States” when he was sworn in as president.

“I’ll be 70 years old in a few months and it just seemed like the perfect time for me to step aside and make room for someone younger to have an opportunity to serve on the Eleventh Circuit.”

 That's Judge Charles Wilson in his interview with the DBR, available here, about taking senior status (which this blog broke at this post).  Here's a snippet of the interesting article:

Following law school, Wilson served as a law clerk for Judge Joseph Hatchett, the first Black judge on the U.S. Court of Appeals for the Fifth and Eleventh circuits. Around that time, he also met his wife, with whom he would have two children. From there, he engaged in private practice in Tampa for five years and earned accolades such as the most productive young lawyer by the Hillsborough County Bar Association.

“I practiced whatever paid the rent,” Wilson recalled. “I hung out my shingle and it was probably the best thing I could do in my career. I tried civil and criminal cases to conclusion before juries in federal and state courts. I had a general practice. I provided representation to clients in just about any case. It was a great background for a judicial career.”

Wilson went on to devote himself to public service and was later appointed as a U.S. magistrate judge in the Middle District of Florida. Then, following his recruitment by Janet Reno, the U.S. attorney general, Wilson was appointed by President Bill Clinton to serve as the U.S. attorney for the Middle District of Florida.

In September 1999, Wilson was sworn in as an Eleventh Circuit judge following his appointment by Clinton to fill the vacancy created by Hatchett’s retirement.

Wilson said that one of the lessons he imparts to his law clerks is how to conduct themselves as young lawyers. Wilson said he applied three times to serve as a federal district court judge, landed an interview the third time, but was ultimately not selected.

“I just kept my head down and worked hard and earned a reputation in the community,” Wilson said. ”Several years later I was selected to serve as a judge on the U.S. Court of Appeals. And there I was reviewing decisions by the district judges who were appointed when I was not selected as a district judge.”

Both Parties in Ball & Chain Litigation Claim Victory

By John R. Byrne

The City of Miami has been dealing with quite a bit of litigation in recent years, including defending against claims that the City helped Commissioner Joe Carollo exact revenge against political opponents and critics. The latest lawsuit, filed by businessmen Bill Fuller and Martin Pinilla, named a bunch of City employees as defendants, including City Attorney Victoria Méndez and City Manager Arthur Noriega. 

Judge Moreno held a status conference on Friday, ultimately ordering the Plaintiffs to file an Amended Complaint. After the Court's order, both sides claimed victory to the press, with the City asserting that the Court suggested that "plaintiffs stick to the facts instead of making jury arguments in their complaint" and counsel for Fuller/Pinilla highlighting that Judge Moreno was "helpful and supportive" and had given him the opportunity to include more specific allegations against the City.

A lot more to come in this one. Herald covers it here.

DeSantis Beats Disney Retaliation Suit

By John R. Byrne

Governor DeSantis scored a victory yesterday in the Northern District of Florida. Judge Allen Winsor dismissed Disney's First Amendment retaliation lawsuit against the Governor and the directors of the newly constituted Central Florida Tourism Oversight Board.

Winsor held that Disney lacked standing to sue DeSantis, reasoning that Disney's asserted injury--lack of control over the special improvement district--is not "redressable" because the Court cannot give Disney that control back. Windsor wrote: "That injury would exist whether or not the Governor controlled the board, meaning an injunction precluding the Governor from influencing the board would not redress Disney’s asserted injury."

As to the Board, including its Vice Chair Charbel Barakat, Winsor held that Disney failed to allege a cognizable First Amendment retaliation claim. In short, where, as here, a statute was facially constitutional, it is irrelevant what motivated its passage. Because the Florida legislature has the power to determine the structure of Florida's special improvement districts, Winsor explained, it may exercise that power however it sees fit (retaliatory motives or not). The Court acknowledged exceptions for statutes involving race, religion, or those designed to regulate speech. But this wasn't such a statute.

The order, which Disney plans to appeal, is excerpted below.

De 114_Disney Dismissal Order by John Byrne on Scribd

Testimony Concludes in Racial Gerrymandering Case Brought against City of Miami

By John R. Byrne

Update on the racial gerrymandering case brought against the City of Miami. Trial testimony concluded yesterday. At issue are now "updated" voting maps, which have been challenged as unconstitutional. If the plaintiffs win, another map would be drawn.

Although a number of expert witnesses testified on statistical analyses and Miami's demographics, Judge Moore came back to statements made during public commission hearings. Judge Moore said that, in light of those statements, "it's really hard to get around the conclusion that race was" involved in the map drawing process.

Back in 2022, Commissioner Joe Carollo said the point of creating single-member districts was to ensure “there would be an African American sitting in this commission and there would be an Anglo” and “that there were three Hispanic districts.”

Commissioner Manolo Reyes also said “yes, we are gerrymandering to preserve those seats,” apparently referencing the five-person Commission. 

“The problem that I have been confronted with," Judge Moore said, is "not so much the statistical or circumstantial evidence that we’ve heard a lot about in the past two days. It was the direct evidence in those commission hearings that we’re well familiar with.”

The Herald covers it here.

No New Trial for Murdaugh

By John R. Byrne

Not SDFLA news or even news from the federal court world. But still worth covering. The judge in the Alex Murdaugh murder trial denied Murdaugh's request for a new trial. Murdaugh's team moved for a new trial, arguing that the Clerk of Court influenced the jury. The clerk, who wrote a book after the trial that was pulled because of plagiarism issues, apparently told jurors to watch Murdaugh closely when he testified.  

One juror testified that "She made it seem like he was already guilty." Asked whether this influenced her vote to find him guilty, she said "Yes ma'am."

A wild case gets wilder. I have to think an appellate court may see this issue differently. 

NPR covers it here.

Was Judge Kaplan too involved in the Trump case?

Most judges will tell you that they don't want to be the story and don't want to make news.  Especially federal judges.  Yet Judge Lewis Kaplan was front and center in the Trump case... 

Here's an ABA article detailing some of his quips.  Too much?

“Mr. Trump, I hope I don’t have to consider excluding you from the trial,” Kaplan said.

Trump protested by throwing up his hands and saying, “I would love it! I would love it.”

Kaplan responded by telling Trump: “You just can’t control yourself in these circumstances apparently.”

Jurors are considering damages in the lawsuit by Carroll, who obtained an earlier verdict and $5 million in damages against Trump for sexually abusing—but not raping—her in a Bergdorf Goodman dressing room in New York City in the 1990s and then denying the incident in October 2022.

The new trial claims that Carroll was defamed in denials by Trump before October 2022 and after the May 2023 verdict.

Kaplan also chastised lawyers in the case—on more than one occasion. CNN, Salon and the Washington Post have these examples:

  • Kaplan reined in Trump lawyers when several lawyers objected all at once. “Let’s just get this clear for both sides right now,” Kaplan said. “The first lawyer who says anything when a witness is on the stand says everything there is to be said for that side. This is not a tag-team lawyering.” (The Washington Post)

  • When Trump lawyer Alina Habba cross-examined Carroll using a 2022 deposition, Kaplan said he needed a copy and wanted to know what portion that Habba would be reading. “Now look, Ms. Habba,” Kaplan said. “We’re going to do it my way in this courtroom, and that’s all there is to it.” (CNN)

  • Kaplan called a recess after Habba read harassing social media posts about Carroll before entering them into evidence. “You should refresh your memory about how it is you get a document into evidence,” Kaplan said. (CNN)

  • When Habba asked Kaplan again to postpone the trial to allow Trump to attend his mother-in-law’s funeral, Kaplan said he would “hear no further argument on it. None. Do you understand that word? None. Please sit down.” (CNN)

  • Kaplan criticized a lawyer for Carroll for seeking exhibits in advance to consider potential redactions. “When the document is authenticated and offered, that’s when you say objection, and that’s when we deal with it,” Kaplan said. (CNN)

  • Habba asked Carroll whether she “makes a good amount of money” from her Substack posts. Kaplan stopped her, asking, “What’s ‘a good amount of money?’ Evidence 101.” (Politico reporter Erica Orden on X, formerly known as Twitter, via Salon)

Nice piece about AFPD Andrew Adler

 The University of Miami has a great article about Andy Adler here:

Assistant Federal Public Defender Andrew Adler sat third chair in a Supreme Court case back when he was an attorney at Boies, Schiller & Flexner LLP in a class action securities fraud case against Haliburton. After joining the appellate division of the Federal Public Defender's Office for the Southern District of Florida in 2015, he would second-chair two more Supreme Court cases before his first-chair hat trick in 2021, 2022, and 2023. 

Adler, a criminal law expert, is aware of only a couple of public defenders in history who have argued three U.S. Supreme Court cases over the course of long careers, but he is unaware of any who have done so in three calendar years. 

The 2007 Miami Law grad's first appearance was early in the pandemic and was conducted by telephone from his home. "Obviously the Court was doing the best it could under extraordinary circumstances, but the experience felt a bit artificial," he said. "Each Justice had a three-minute segment to question so if, hypothetically, Justice Breyer talked for 2-and-a-half minutes, I only had 30 seconds to respond. And of course, the lawn guys decided to come that morning!"