Congrats to Judge Adalberto Jordan!

President Obama nominated him today to sit on the 11th Circuit. He will be terrific on the court of appeals but will be sorely missed on the district court where he was known for his smarts, his patience, for treating everyone with respect and for calling 'em right down the middle.

Here's the press release from the White House:
President Obama Nominates Judge Adalberto José Jordán to the United States Court of Appeals

WASHINGTON, DC – Today, President Obama nominated Judge Adalberto José Jordán to the United States Court of Appeals for the Eleventh Circuit.

“Judge Adalberto José Jordán will bring an unwavering commitment to fairness and judicial integrity to the federal bench,” President Obama said. “His impressive legal career is a testament to the kind of thoughtful and diligent judge he will be on the Eleventh Circuit. I am honored to nominate him today.”

Judge Adalberto José Jordán: Nominee for the United States Court of Appeals for the Eleventh Circuit
Judge Adalberto José Jordán has served as a District Judge on the United States District Court for the Southern District of Florida in Miami since 1999. He also teaches as an adjunct professor of law at University of Miami School of Law, where he has taught since 1990, and Florida International University College of Law, where he has taught since 2007. Judge Jordán was born in Havana, Cuba, and immigrated to the United States with his parents at the age of six. He received his B.A. magna cum laude from the University of Miami in 1984, and his J.D. summa cum laude from University of Miami School of Law in 1987. After graduating from law school, he served as a law clerk to the Honorable Thomas A. Clark of the United States Court of Appeals for the Eleventh Circuit from 1987 to 1988, and the following year he served as a law clerk to the Honorable Sandra Day O’Connor of the Supreme Court of the United States. In 1989, Judge Jordán joined the Miami law firm of Steel Hector & Davis LLP (now Squire Sanders & Dempsey) as a litigation associate, eventually specializing in appellate practice and becoming a partner in 1994. Later that year, he joined the United States Attorney’s Office in the Southern District of Florida, serving as an Assistant United States Attorney in the appellate division and handling criminal and civil appeals on behalf of the government. Judge Jordán became appellate division chief in the office in 1998, and also served as special counsel to the United States Attorney for legal policy. Since being appointed to the District Court bench in 1999, Judge Jordán has presided over nearly 200 trials on a wide range of civil and criminal matters. In addition, he has frequently sat by designation on the United States Court of Appeals for the Eleventh Circuit.

August in Miami

It's boiling outside and there's a hurricane that may slide by us this weekend, but at least there's no traffic.

Now that the debt deal is about done, the Senate has the rest of the week before the August recess to get Kathy Williams and Bob Scola confirmed. Let's see what happens.

Big reversal in the Second Circuit yesterday in US v. Ferguson. The AP summarizes the case this way:

Former executives of American International Group Inc. and General Re Corp. who were convicted in a $500 million fraud case deserve a new trial, because the judge at their 2008 trial wrongly admitted stock-price data into evidence and gave improper jury instructions, a federal appeals court ruled Monday.

The 2nd U.S. Circuit Court of Appeals threw out the fraud convictions for the five officials and sent the case back to U.S. District Court in Hartford.

Prosecutors had accused the executives of participating in a scheme in which New York-based AIG secretly paid Stamford-based Gen Re to take out reinsurance policies with AIG in 2000 and 2001 to boost AIG's falling stock price. Reinsurance policies are backups purchased by insurance companies to completely or partly insure risk they have assumed for their customers.

Ronald E. Ferguson, Elizabeth A. Monrad, Robert D. Graham and Christopher P. Garand, all former executive officers of Gen Re, and Christian M. Milton, AIG's vice president of reinsurance, were sentenced to prison in 2009 for their involvement in the scheme, which authorities estimate cost AIG shareholders more than $500 million.

Testimony from two cooperating witnesses associated with Gen Re helped convict the five executives of conspiracy, mail fraud, securities fraud and false statements to the Securities and Exchange Commission. They received sentences ranging from one to four years in jail, but remain free on bail pending the outcome of the appeal.

***

[Chief Judge Jacobs] said the verdicts had to be vacated because of how U.S. District Judge Christopher Droney handled stock-price evidence and because Droney gave jury instruction that influenced the verdict.

The lower court was inconsistent in its rulings on displaying stock-price charts, Jacobs said. One chart showing the full decline in stock price was excluded as overly prejudicial, but it was "functionally identical" to another chart shown during prosecutors' opening statement, he said.

"The court's solution, to allow only isolated ranges of stock-price data, did not mitigate the prejudice," Jacobs wrote. "Instead of a downward line, there were three dropping sets of dots; it is inevitable that jurors would connect them."

In instructing the jury, the trial judge erred by offering an ambiguous standard of conviction that allowed the jury to convict without determining what caused the fraud, Jacobs wrote.

Oh, and Rumpole is finally back from his vacation.

Justice Ginsburg is funny!

Here's a recent speech she gave to the Otsego County Bar Association, which I found to be a great read (One example: “I am now delighted to report that not once this term has an advocate called me Justice Sotomayor or Justice Kagan, and the same holds true for my junior colleagues.")

JoshBlackman.com summarized some of the questions Justice Ginsburg reviewed from this Term (Ginsburg: “From the foregoing samples, you may better understand why the court does not plan to permit televising oral arguments any time soon.”):

• “What [did] James Madison th[ink] about video games?” --Justice Samuel A. Alito Jr. in Brown v. Entertainment Merchants Association.

• “What do you think about Satan?” -- Justice Antonin Scalia in Matrixx Initiatives v. Siracusano.

• “Does al-Qaida know all this stuff?” --Justice Antonin Scalia in NASA v. Nelson. (after a lawyer for the employees said they worked in a “campus atmosphere” and they posed little or no security risk).

• “Where is the 9,000-foot cow?” --Justice Stephen G. Breyer in AT&T Mobility v. Concepcion, involving Breyer’s hypothetical involving a Swiss law only allowing the purchase of milk from cattle grazing in pastures higher than 9,000 feet.

Bob Barr and I agree!

Here's an op-ed he just wrote on the over-criminalization problem in America. From the piece:

[F]ailure to address the overcriminalization of America is turning us into a society in which the average citizen is at the mercy of the federal government for fear of running afoul of some criminal law or regulation on any given day, despite having no intention whatsover of doing so.

The explosive growth in the number of federal crimes in recent decades has been nothing short of phenomenal. Three crimes — three — were considered of sufficient importance and of a unique federal nature, to be included specifically in the Constitution. Those three uniquely federal crimes are treason, piracy and counterfeiting. Over the decades, of course, other crimes were added, usually pegged to the infamous “commerce clause.” By 1980, the federal criminal code had mushroomed to about 3,000 separate criminal offenses. What has happened since 1980, however, has been nothing short of phenomenal — the list of federal criminal offenses has exploded to nearly 4,500 offenses; as noted most recently by Gary Fields and John Emshwiller in the Wall Street Journal. This figure does not even include the many more thousands of federal regulations that can be enforced by the government as criminal offenses.

***

The list of such unfair and outrageous instances of abusive federal prosecutions is depressingly long; with many the result of the explosive growth of “environmental crimes” since the birth of the EPA four decades ago. Yet Congress after Congress continues to add crime after crime to the burgeoning federal criminal code, based often on pressure from interest groups and federal agencies themselves.

Finalists for U.S. Marshal

They are: James S. Higgins, Eben Morales and Amos Rojas Jr..

Many of you will remember Jaime Higgins, who is an ATF agent, currently on assignment in Vancouver, Canada. His wife is Celeste Higgins, a former AFPD in Miami.

Florida drug laws ruled unconstitutional

Today Judge Mary Scriven from the Middle District granted a writ of habeas corpus and declared Florida’s drug law unconstitutional. The case is Shelton v. Dept. of Corrections. NACDL filed this amicus brief . Here's the intro to the order:

On May 13, 2002, the Florida Legislature enacted changes to Florida’s Drug Abuse Prevention and Control law, FLA. STAT. § 893.13, as amended by FLA. STAT. § 893.101. By this enactment, Florida became the only state in the nation expressly to eliminate mens rea as an element of a drug offense. This case, challenging the constitutionality of that law, was filed following Plaintiff’s conviction for delivery of cocaine without the jury being required to consider his intent in any respect and the subsequent imposition of an eighteen year sentence following his conviction. Upon consideration of all relevant filings, case law, and being otherwise fully advised, the Court GRANTS Petitioner’s request for habeas relief (Dkt. 1), and finds that FLA. STAT. § 893.13 is unconstitutional on its face.

Full disclosure: I was one of the co-signors of the amicus brief for NACDL, authored by Todd Foster.

BREAKING -- JNC sends 4 names to Senators

Your next federal judge will be one of these four people:

Jerald Bagley
John O'Sullivan
Robin Rosenbaum
John Thornton

Two State Circuit judges and two Federal Magistrates. I'm picturing a cage match -- Bagley and Thornton vs. O'Sullivan and Rosenbaum. Who wins that one?

Update-- happy to report that Judge Moreno's letters were cited yesterday in the Senate. Hopefully they will have some impact. Here's the link: http://www.gpo.gov/fdsys/pkg/CREC-2011-07-25/pdf/CREC-2011-07-25-pt1-PgS4860.pdf#page=1

HT: SFL

"Characterizing a government as a pimp is far from advocating violence."

That was Irfan Khan's lawyer Sowmya Bharathi, challenging the strength of the evidence against her client who is accused of helping to finance part of the Pakistani Taliban terror group. Love the quote! Plus it gave me some inspiration for the morning:



More on the case from Curt Anderson's article:

The son of a Muslim cleric in South Florida was a key part of his father's alleged finance network for the Pakistani Taliban terror group and shared the older man's support for violent attacks, an FBI agent testified Tuesday.
Agent Michael Ferlazzo said at a bail hearing that 37-year-old Irfan Khan appears to advocate violence repeatedly on some of the more than 1,000 phone calls the FBI recorded between him and his father, brother and other alleged conspirators.

On one call, Ferlazzo said, Irfan Khan referred to Pakistan's government as “big pimps.”

“They're talking about violent opposition to the government,” Ferlazzo said. On another call, the agent said, Irfan Khan seemed pleased that people feared the Pakistani Taliban “because of how lethal they had become.”
***
But Irfan Khan's attorney, Sowmaya Bharathi, said most of his comments could be chalked up to passionate political talk about Pakistan's government and its troubles, not evidence of support for terrorism.

“There is absolutely nothing wrong with people exchanging information about horrible events in a part of the world they have a connection to,” Bharathi said. “Characterizing a government as a pimp is far from advocating violence.”

She said nearly two dozen people, including members of Irfan Khan's cricket team, were willing to put up cash and property to secure his release on bail. She noted that he has a wife and two young children in Florida and would be able to get a job driving a taxi if released.

“He is going to stay here and fight the charges,” Bharathi said.
Jordan has not said when he will rule on bail for Izhar Khan, who is imam at a mosque in suburban Margate. Hafiz Khan is imam at Miami's oldest mosque.