Judge Milton Hirsch finds Florida drug law unconstitutional

Milt Hirsch wrote a compelling (and very entertaining) order finding Florida's drug statute unconstitutional, following the decision in Shelton. The whole order is worth a read. Here is the intro and conclusion, and a link to the whole order at the bottom:

"[F]or there is nothing either good or bad, but thinking makes it so."

--William Shakespeare, The Tragedy of Hamlet, Prince of Denmark, Act II sc. 2


I. Introduction

The 39 defendants captioned above are similarly circumstanced in that all are charged with violation of Fla. Stat. § 893.13. In light of the recent decision in Shelton v. Department of Corrections, No. 6:07-cv-839-Orl-35-KRS, 2011 WL 3236040 (M.D. Fla. July 27, 2011), finding '893.13 unconstitutional, all defendants move for dismissal. I have consolidated these cases for purposes of these motions only.

Shelton has produced a category-five hurricane in the Florida criminal practice community. A storm-surge of pretrial motions (such as those at bar) must surely follow. It is, therefore, essential that I adjudicate the present motions promptly. This order has been written in great haste and under great time pressure. As Mark Twain is alleged to have said: "If I'd had more time, I could have written you a shorter letter."

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V. Conclusion

The immediate effect of the present order is the dismissal of charges against all movants – the overwhelming majority of whom may have known perfectly well that their acts of possession or delivery were contrary to law. Viewed in that light, these movants are unworthy, utterly unworthy, of this windfall exoneration. But as no less a constitutional scholar than Justice Felix Frankfurter observed, "It is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end." Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting).

Like the court in Shelton, I find that Florida Statute § 893.13 is facially violative of the Due Process Clause of the 14th Amendment to the United States Constitution; and, accordingly, that any prosecution brought pursuant to that statute is subject to dismissal.

In the comments the other day, there was a discussion about whether Shelton was binding. Judge Hirsch has a lot to say about that, including this conclusion:

In the absence of such particularization I am obliged as a Florida trial court to presume that Florida appellate courts relied upon a Florida-law-based guarantee of due process, whether constitutional or common-law. No Florida case has decided the issue presently before me: whether '893.13 is unconstitutional by operation of the 14th Amendment to the federal Constitution. The Shelton court reached the same conclusion: A[N]o Florida appellate [court] ... has addressed the constitutionality of ['893.13] under the federal Constitution,@ Shelton, 2011 WL 3236040, at *12; and the Florida cases that appear to give passing consideration to the issue of the constitutionality or not of the statute Acontain no analysis of or citation to the tripartite constitutional analysis@ required by Staples and other U.S. Supreme Court authorities, and employed in Shelton. Id. See also supra note 3. Accordingly, I am bound to follow Shelton=s holding that '893.13 violates the 14th Amendment=s due process guarantee.

Hirsch Order

11th Circuit discusses THUG MANSION

Per Judge Carnes:

This appeal stems from a violent drug conspiracy in South Florida that involved a number of criminals, most of whom have aliases or nicknames. The four whose joint trial led to this appeal were Daniel “D.V.” Varela, Liana “The Negra” Lopez, Ricardo “Rick” Sanchez, and Daniel “Homer” Troya. Showing a keen appreciation for their own character, they referred to the townhouse where they lived as the “Thug Mansion.” During their crime wave two of the self-styled thugs, Troya and Sanchez, carjacked a fellow drug dealer and shot him to death. What would have been unfortunate became triply tragic when they also gunned down the drug dealer’s wife and their two children, ages three and four. Troya and Sanchez left all four bodies on the side of the road.

The ensuing police investigation led to the Thug Mansion, which was located in a gated residential community. Officers executed a search warrant there and found evidence of the murder and the on-going drug conspiracy. An indictment and two superseding indictments followed, and then a trial at which the four defendants were convicted on all counts. Lopez and Varela, who brought this appeal, raise several issues, the primary one being that they should not have been jointly tried with Troya and Sanchez, who committed the murders. (Sanchez and Troya were convicted of those murders and sentenced to death, and they have filed appeals that are proceeding separately from this one.)

Who wants to guess how this one came out?

Here's Tupac discussing "Thugz Mansion" (NSFW):

Which one doesn't belong?

The Federalist Society is having a panel looking back at the last ten years after September 11, 2001. On the panel: Wilfredo Ferrer, Jeff Sloman, Alex Acosta, Marcos Jimenez, Guy Lewis and Michael Caruso.

Back to work

Thanks to Rick for his excellent blogging, as usual.

A few items to start the week:

1. Enjoy the last week before school starts on the 22nd. Then back to parking-lot traffic. Ugh. (btw, shouldn't school start after Labor Day?)

2. In case you didn't see it, the Eleventh Circuit held 2-1 that President Obama's healthcare legislation was unconstitutional. Judges Dubina and Hull wrote a "joint opinion" and Judge Marcus dissented. Let's see what the Supremes do.

3. Florida state judges are saying (via Miami Herald) that they aren't bound by a federal judge's decision that the Florida drug statute is unconstitutional. I'm hearing that the same thing is occurring with Judge Martinez's order on the Florida death penalty -- state judges are saying that they aren't bound by the decision. But aren't they under the Supremacy Clause? Isn't this what federal habaes is all about? If state judges can just respond -- well, that's nice, but we'll decide what our state law says -- then why have habeas at all?

Summer speaking

Lots of Supreme Court Justices speaking this summer in really nice places. The latest are Justices Roberts and Kagan.

Justice Roberts has a rule about not speaking while on vacation, but he broke it and spoke in Maine:

"When judges or justices speak in court, there's a good chance we will disappoint half of the people who appear before us. When we speak in public, we have a good chance of disappointing everyone," Roberts said. "Despite that clear and present danger, I was happy to accept your kind invitation to visit this afternoon."

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Roberts said that while he appreciates the efficiency of the information age, he worries that modern methods of legal research could make it easier to confuse the collection of information with the acquisition of knowledge.

"I hope that the generations that follow will get a chance to experience learning in the enriching environment of a real library and not just a virtual one – a library where you feel connected to knowledge in a very tangible way and also connected to those working alongside you in a similar pursuit for knowledge," he said, "even if they're representing an adversary or even if they're working for a judge who will decide your case."


And Justice Kagan spoke in Aspen:

“I think this comes as a surprise to many people when I talk about my experiences on the court, and to me as well,” Kagan said during a conversation in the Greenwald Pavilion at the Aspen Institute. “You know you read the court's decisions, and often there's some pretty sharp give-and-take: people accusing other justices on the other side [of the issue] of a wide variety of terrible conduct.”

“The truth is, it is an incredibly collegial and warm institution, with good friendships throughout the court and across whatever people think of as ideological divides, and that was the nicest feature of joining the court, was feeling that,” she said. “And how well and respectfully the members of the institution operate together.”

BREAKING -- Kathy Williams confirmed! Yes!

Wow, lots of great news today in the District. First, as discussed below, Judge Adalberto Jordan was nominated to fill Judge Susan Black's seat on the 11th Circuit. So we're losing one great judge, but we gain another -- the Senate just unanimously confirmed Kathy Williams to sit on the Southern District of Florida (Judge Hurley's seat).

I'm so happy for Kathy. It took wayyy too long, but that's a story that's been written about quite a bit and today is not the day to rehash it. Today is the the day to celebrate for Kathy. And yes, I'm biased -- I used to work for her at the Federal Public Defender's office, where she is known and respected around the country as running the model FPD office.

She's going to be a fantastic judge -- smart, hardworking, and compassionate. What else do you want from a federal judge?

The picture is Kathy from her confirmation hearings.

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.

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[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.