11th Circuit decides whether the "act of masturbating while sitting beside another person ... satisf[ies] the 'with another person' requirement of the statute."

It does not.  The Federal Public Defender's office deserves a hand for this win.

The facts of USA v. Randolph Scott:

In a one-count information, the government charged Scott with “knowingly
attempt[ing] to commit an unnatural and lascivious act with another person, that is,
masturbating while attempting to touch another person . . . .” Scott pleaded not
guilty and the parties consented to a bench trial before a magistrate judge. At trial,
the government called Lauren Wyscaver as its only witness. She testified that she
was sitting in a chair in the waiting room of Miami Veterans Affairs Hospital
when Scott approached her and asked if he could sit in the chair next to her. She
agreed, and the two began talking about their respective military service, why they
were at the hospital, and the weather. There were four or five other people in the
waiting room, which had approximately 20 chairs.
According to Wyscaver, within the first few minutes of their conversation,
Scott “tried to touch [her] ankle, but [she] pulled away.” Wyscaver became
uncomfortable and started to ignore Scott, but he continued talking to her. Scott
told Wyscaver that he thought she was pretty and offered to pay her to give him
her phone number. Wyscaver testified that Scott then, as “nonchalantly as you can
do it,” reached down into his pants and started masturbating. “Once he did that,”
she said, “I sat up and I walked into the nurse’s triage room because I was
frightened.” Wyscaver eventually reported Scott’s conduct to a security guard.
Based on that evidence, the magistrate judge concluded that Scott had
attempted to “masturbat[e] or fondl[e] himself with another person who is”
Wyscaver. For that reason, the magistrate judge ruled that Scott had violated the
Assimilative Crimes Act by attempting to commit an “unnatural and lascivious act
with another person” in violation of Fla. Stat. Ann. § 800.02. The magistrate
judge sentenced Scott to 68 days in prison, followed by one year of probation.
The district court affirmed his conviction and sentence, and Scott now appeals
only his conviction.

So what did the court decide:

The government argues that Scott was masturbating “with” Wyscaver
because “he was sexually attracted to her” and because he stared at her while
masturbating. But the “with another person” element of section 800.02 is not
satisfied simply because a defendant is sexually aroused or erotically inspired by
another person. If mere arousal or inspiration were enough, Conforti would have
come out the other way. Nor does the fact that a defendant stares at another
person while committing an act mean that the defendant committed that act with
another person.
Even viewing the evidence in the light most favorable to the verdict, there is
insufficient evidence to support the conclusion that Scott “knowingly attempt[ed]
to commit an unnatural and lascivious act with another person, that is,
masturbating while attempting to touch another person,” which is what the
information alleged. A reasonable factfinder could not have found that Scott was
masturbating “with another person” within the meaning of section 800.02.

Well, there you go -- staring at another person doesn't mean you committed an act with that person.

Putting aside all of the funny one-liners, can someone please explain to me why the feds brought this case in the first place, which is unlike the ICE chief, Anthony V. Mangione who is apparently set to plead guilty.

On a separate note -- GOOD LUCK TO ROBIN ROSENBAUM TODAY.

Where will you be this morning?

At the Heat Parade?

Or at ScotusBlog live blogging the Supreme Court opinions as they come out?

Should be a very exciting Monday morning.

If you are bored waiting for either, here's a good piece about Scalia's dissents.  Some highlights:

Morrison v. Olson (1988): The Court voted to uphold the Independent Counsel Act; Scalia was the only dissenter.

Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

PGA Tour, Inc. v. Martin (2001): A lawsuit brought by the disabled golfer Casey Martin, who wanted to be allowed to ride in a golf cart between shots, something that the P.G.A. prohibited at the time. The Court ruled in Martin’s favor.

If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf—and if one assumes the correctness of all the other wrong turns the Court has made to get to this point—then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf.

And here's a picture of the police in front of the federal courthouse this morning:

 I feel much safer!

Robin Rosenbaum's vote set for Tuesday

At 11:00am on Tuesday, June 26, the Senate will proceed to the consideration of Executive Calendar #652, the nomination of Robin Rosenbaum, of Florida, to be United States District Judge for the Southern District of Florida.  There will be 30 minutes for debate prior to a vote on confirmation of the nomination. Senators should expect the vote to begin at approximately noon on Tuesday.

GOOD LUCK!

Hat Tip -- Glenn Sugameli.

Crack, Fines, & the Supreme Court

No health care opinions, but two criminal law opinions today, both favoring the defense.  From ScotusBlog:

We have the opinion in Dorsey and Hill, the Fair Sentencing Act cases.  The opinion is by Breyer.  The Seventh Circuit is vacated and remanded.  The vote is 5-4.  Justice Scalia dissents, joined by the Chief and Alito and Thomas.
The Court holds that the FSA's new mandatory minimums applies to sentences for crack cocaine imposed after the Act for pre-Act crimes.  Dorsey and Hill have the more traditional line-up that we have come to expect in 5-4 cases.

The full opinion is at this link.

Re Fines and Apprendi:

Justice Sotomayor has opinion. The rule of Apprendi v. NJ applies to the imposition of criminal fines. The First Circuit is reversed. The vote is 6-3. Justice Breyer dissents, joined by Kennedy and Alito.

The full opinion is available at this link.

Don't drink the Thallium

From the 11th yesterday in Trepal v. Florida, a death penalty case:

In 1991, a Florida jury convicted Trepal, a sophisticated chemist and Mensa member, of murdering his neighbor Peggy Carr and attempting to murder six other members of Carr's family. Trepal poisoned the victims by adding the toxic element thallium to bottles of Coca-Cola in the Carrs' home.

Trepal’s trial lasted a month, with more than 70 witnesses together providing overwhelming evidence of Trepal’s guilt. For example, several independent witnesses chronicled Trepal’s long-running conflicts with and animosity toward the Carr family. Evidence established Trepal’s extensive
knowledge of chemistry, as well as his possession of chemistry laboratory equipment, a number of toxic chemicals, and a homemade journal on poisons and poison detection in human organs. Finally, multiple experts uniformly testified that (1) the victims were poisoned by thallium, (2) thallium was found in both the empty and unopened Coca-Cola bottles in the victims’ home, and (3) thallium was found in a brown bottle in Trepal’s garage. Thallium is a heavy metallic element that is both rare and toxic to humans. When dissolved, it is odorless and tasteless. A lethal dose of thallium is approximately 14 milligrams per kilogram of body weight, which for an average person is around 1 gram of thallium.

The appeal involves fascinating Giglio claims regarding the FBI chemist, but in the end, the court finds them harmless.  Harmless error regarding a lying chemist in a death penalty case seems like a hard (thallium?) pill to swallow.

Roger Clemens acquitted

Congrats to Rusty Hardin and his team for this great result.  I wonder if the Feds are starting to get the message that these sorts of cases (Clemens, John Edwards, etc) are a waste.  The federal government used to bring the biggest and most serious cases and leave the rest to the discretion of the States.  Now, it seems, the feds bring anything they can bring -- big or small, important or not.  If Republicans are as serious about small government as they claim to be, then I would think they should push to reduce the machinery of the federal criminal justice system. 

Heat

For all the credit Lebron is getting this post-season, he's not getting enough.  He's put the Heat on his shoulders in the playoffs.  Wade has been average.  Bosh has been hurt and hasn't been 100% since he's been back.  Miller can't hit the side of a barn.  The only role player doing anything is Battier.  Lebron has really been unstoppable. 

My personal email account (Hotmail) got hit with a virus this weekend.  What a pain.  How does that happen anyway?  I'm trying to figure out how to stop it in the future, but the advice on the net (change your password often and check your computer for viruses) doesn't seem like it will prevent the hack.

We're nearing the end of the SCOTUS Term.  Here are the remaining cases to be decided, which obviously includes the health care cases.  I'm betting that Michael Caruso gets cert in the Padilla case.  We'll see...

Rajat Gupta was convicted pretty quickly.  The over-under line on his sentence is ten years.  Any bettors?

For those who are bored and looking for some summer reading, check out this NY Times article about a guy who crossed Niagra on a wire.  If you are looking for a good beach book, try Ender's Game, which I just finished and recommend. 

Willie and Ben answering questions from Michael Caruso and the CJA lawyers