The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
With her parents leaving town to celebrate their 98th wedding anniversary, Justice Ruth Bader Ginsburg made plans Friday for a major house party, inviting all her Supreme Court colleagues to what she promised would be “a classic Ginsburg throwdown.”Yes, that's from the Onion....
Ginsburg, a Clinton appointee who traditionally votes with the court’s liberal wing and whose 120-year-old parents explicitly told her not to have any friends over, confirmed that she waited until her mother and father had pulled out of the driveway before texting “it’s on” to her fellow justices and telling them to “get ready to drink [their] asses off.”
“My dad is seriously crazy if he thinks I’m not going to throw an epic rager when I have the house to myself all weekend,” said Ginsburg, whose father, a furrier and haberdasher by trade, reportedly wrote down the mileage on his 1928 Ford Model A so he would know if his daughter took it out for a spin. “As far as I’m concerned, when the cats are away, the mice will play.”
“Besides, I’m 79,” she continued as she prepared a tray of Jell-O shots using the mix favored by her supercentenarian mother for its softness on her toothless gums. “They can’t tell me what to do anymore.”
According to sources, Justices Antonin Scalia, Anthony Kennedy, Samuel Alito, Stephen Breyer, and Clarence Thomas arrived first, catching a ride to the party in the open-backed Jeep Wrangler of Chief Justice John Roberts, who had earlier persuaded his older sister Kathy to buy beer. Justices Sotomayor and Kagan showed up shortly thereafter, having taken longer than expected to dupe their parents into thinking they were sleeping over at each other’s houses.
On trial starting Tuesday are four reputed associates, along with a Sunny Isles Beach investor who once dabbled in local politics. They’re accused of orchestrating a fraud scheme to run up the credit card bills of South Beach tourists by hundreds of thousands of dollars.What about the alleged victims? More from Jay:
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Among those standing trial: Stanislav Pavlenko, 41, Albert Takhalov, 31, Kristina Takhalov, 31, and Siavash Zargari, 48, who live in the Aventura and Sunny Isles Beach area. Longtime Sunny Isles real estate broker Isaac Feldman, 51, is the fifth defendant
In total, the B-Girls, who received 20 percent commissions for bringing in customers, ripped off about 90 patrons, mostly tourists or businessmen with telltale signs of wealth, such as expensive watches or shoes, authorities say.Myles Malman wants to be able to go after JB to show there was no crime here:
One victim from Philadelphia, who was approached by two B-Girls at the Delano Hotel, complained he was taken for $43,000 at Caviar Beach on Washington Avenue. His American Express bill included dozens of charges for booze.
In court papers, the victim is identified as “J.B.” According to lawyers in the case as well as published reports, the victim was John Bolaris, a former Philadelphia TV weatherman who gave an interview to Playboy magazine for an article on the case.
But Feldman’s lawyer, Malman, said his goal in questioning J.B. is “to establish that he consciously and intentionally tried to pick up two women at the bar at the Delano Hotel, spent large amounts of money on alcohol in an effort to impress them and/or to induce them to engage in physical relations with him, and is in reality no victim at all,” according to a court filing.
After battling for years to get a pay raise that they say Congress had once promised them, six federal judges finally won in a specialized federal court on Friday. If the ruling withstands a likely trip to the Supreme Court, those judges – and presumably others – will get annual cost-of-living increases that have been specifically vetoed by Congress. The ten-to-two decision by the Federal Circuit is here.
The Court ruled that, in a 1989 law upon which the judges have been relying, Congress triggered the judges’ right under the Constitution not to have their pay level diminished. The Compensation Clause itself, the decision said, creates “basic expectations and protections” on judges’ pay.
Thus, it concluded, “in the unique context of the 1989 act, the Constitution prevents Congress from abrogating that statute’s precise and definite commitment to automatic yearly cost of living adjustments for sitting members of the judiciary.”
In reaching its decision, the Federal Circuit overruled a decision it had reached in 2001 – one that the Supreme Court had refused to disturb in 2002– and it found that it was not bound by a 1980 decision of the Supreme Court. Both of those rulings had gone against judges claiming that they were unconstitutionally denied pay raises.
The nation's top drug and gun enforcement agencies do not track how often they give their informants permission to break the law on the government's behalf.4. REVOLUTION! Well, at least another potential sentencing revolution. The Supreme Court is taking another look at Harris, the case that says that prosecutors need not prove to a jury facts that increase minimum mandatories. From SCOTUSBlog:
U.S. Justice Department rules put strict limits on when and how agents at the FBI, Drug Enforcement Administration and Bureau of Alcohol, Tobacco, Firearms and Explosives can authorize their informants — often drawn from the ranks of the criminals they are investigating — to commit a crime. But both the ATF and DEA acknowledged, in response to open-records requests and in written statements, that they do not track how often such permission is given.
That routine, if controversial, tactic has come under renewed scrutiny in the wake of the bungled "Fast and Furious" gun-trafficking investigation, which allowed 2,000 weapons to fall into the hands of Mexican drug cartels and other criminals. A report by the Justice Department's Inspector General found that ATF agents failed to get authorization from their superiors before they allowed gun dealers to sell weapons to suspected cartel operatives.
The report, delivered in September, is the latest internal probe to find agents ignoring the rules. And the department continues to face accusations that its agents overlook crimes by their informants, including one case this year involving an alleged Boston mob captain who was working for the FBI.
"The way we use confidential informants is a huge aspect of the daily operation and also the legitimacy of the criminal justice system," said Alexandra Natapoff, a professor at Loyola Law School Los Angeles. "It's insane that even the law enforcement agencies that actually carry out this policy may not always know how their operatives are doing it."
Just as the Supreme Court set off a revolution in criminal sentencing with its 2000 ruling in Apprendi v. New Jersey, on Friday it set the stage for another — tied directly to the Apprendi precedent. The Court agreed to consider overruling one of its own precedents that allowed judges, rather than juries, to rule on facts that would allow more than a minimum sentence to be imposed. Until now, the “Apprendi rule” had only insisted that juries find the facts to raise a sentence beyond a maximum, not a minimum.
At issue is the continuing validity of the 2002 decision in Harris v. United States, in which the Court was widely splintered. The strength of that ruling as a precedent now appears to depend upon whether the Justice who cast the fifth vote to make a majority for the result there – Justice Stephen G. Breyer — has changed his mind. There have been signs that he may have done just that. In any event, there were at least four votes to face the issue anew.
The one facet of this issue that might limit the scope of an overruling of Harris is whether a decision that a jury must find the facts necessary to raise a sentence only applied to an enhancement of a minimum that was mandatory, but not necessarily to any increase in the floor sentence within a range. The Court might have to confront, if it were to cast Harris aside, whether such a ruling would apply across the board to enhanced sentencing, above any floor even if not mandated as the minimum. The new case does involve a mandatory minimum.
The newly granted case is Alleyne v. United States (docket 11-9335), growing out of the robbery of a convenience store owner in Richmond, Va. Allen R. Alleyne got eighty-four months added to his basic sentence for the robbery, on the theory that he would have known that his accomplice in the robbery would wield a gun as they carried out the robbery. The added sentence was based upon the finding by the judge, not the jury, that Alleyne would have known about the plan to “brandish” a gun — a factor that leads to a mandatory minimum sentence beyond a basic sentence for the crime itself.
It used to be said that the way to identify whether a stream was navigable was whether a log would float in it. Seems a bit old-fashioned. Perhaps it now could be said that the way to know whether a floating structure is or is not a “vessel” is to ask whether, if it were a styrofoam sofa, would it float? Seems a bit silly, but that is sometimes the way it goes when the Supreme Court Justices try to outdo each other in imagining homely illustrations in order to make legal points. It was Justice Stephen G. Breyer (usually to be counted upon to go from the ridiculous to the sublime with homely examples) who wondered on Monday about that lightweight sofa bobbing on the surface, perhaps with a retiree sitting back and enjoying being carried along. At least it was funnier than Chief Justice John G. Roberts, Jr., wondering if an inner tube is a boat.
Breyer and the Chief Justice were reacting to Washington lawyer David C. Frederick, who had urged the Court in Lozman v. Riviera Beach to rule that a floating structure is a “vessel” in a legal sense “if it floats, moves, and carries people or things on water.” Frederick was going for the purest of simplicity as the Court tried to untangle the case of a Florida floating home that wound up in a maritime court on the theory that it was a “vessel,” legally speaking — even though the only way it could move was to be towed, like a garbage scow. (A garbage scow did not actually get into the oral argument, but Justice Anthony M. Kennedy made it clear, with abundant sarcasm, that this lowly structure was far from a mansion: said he, it was “a magnificent structure” that had been “mercifully destroyed.”)
The definition of a “vessel,” for purposes of maritime law is, indeed, a very big deal for the maritime industry, for the Coast Guard, and for lawyers who practice in the arcane field of admiralty law. While the Justices were having boatloads of fun with the Lozman case, they knew that the outcome of it will shape maritime commerce in a very important way. Because the Court’s precedents on the point seem to meander like so many leaves on a brook, it would be quite important if the Court could say — once and for all — what the word “vessel” means. That’s why the Court reached out and took the case of the eccentric South Florida millionaire, Fane Lozman, and his floating home — of which, it was said Monday, there was not another like it in all of Florida.
Professors Epstein and Martin have also brought up to date their annual analysis of the justices’ ideologies—their relative conservatism or liberalism based on their voting records. The news is that Justice Samuel Alito Jr. moved even farther to the right.
It’s no surprise that the upcoming presidential election could be very significant for the court. But Epstein-Martin’s ideology analysis allows us to measure how different it would likely be if Mitt Romney gets to replace Ruth Bader Ginsburg compared with President Obama replacing Antonin Scalia or Anthony Kennedy. A Roberts-Alito-like replacement for Justice Ginsburg would move the court dramatically to the right. But a Kagan-Sotomayor-like replacement for Justice Scalia or Justice Kennedy would move the court to the moderate left, with the center somewhere around Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer.
As this term begins, however, the line-up’s the same as last year, and there’s every reason to expect the court to continue along its conservative path.
Fane Lozman made a boatload of money off the tech bubble and appropriately decided to live the good life with his dachshund Lady on a houseboat at a Riviera Beach marina.
The city, though, had a $2.4 million redevelopment plan for the public marina with its easy access to the ocean. Lozman stood in the city's way and was determined to fight the city's use of eminent domain.
Now the former Chicago financial trader is a cause celebre for fellow houseboat residents around the country, fighting his eviction all the way to the U.S. Supreme Court. The high court opens its fall session today by hearing arguments in the case.
The question for the nine justices is a simple one: whether a houseboat is a house or a boat. Their answer could have wide-ranging consequences for houseboat owners, floating casinos and government agencies.
"I think it's amazing this little landlord-tenant dispute made it all the way to the Supreme Court," said renowned appellate attorney Jeffrey Fisher, a Stanford University law professor handling the case for Lozman.
Amicus briefs have been filed in favor of Lozman's position by the U.S. solicitor general's office, the American Gaming Association and the floating home associations of Seattle and Sausalito, California.
Suppose, though, that police use a dog to check for narcotics on the exterior of a home that they suspect is being used for drug trafficking. Does the fact that the site of the search is a private home make a constitutional difference? That is one of the new factual situations that the Supreme Court is now preparing to confront. In the case of Florida v. Jardines, Florida’s state supreme court ruled that the U.S. Supreme Court’s past rulings on the use of drug-sniffing dogs did not apply at all when a dog was used at a home, even if the dog only sniffed exterior surfaces of a house. Nowhere is the right of privacy stronger than in a private home, the state court said.
That case originated when police in Miami got a tip from a “crime stopper” source that the home of Joelis Jardines was being used to grow marijuana. Police went to the home, based on that tip alone, and used a trained detection dog named Franky to check out the front porch of the house. After circling for a few minutes, Franky sat down, near the front door. That indicated to his police handler that the dog had detected an odor of marijuana coming from under the front door. At that point, the officers obtained a search warrant, which the officers then carried out, finding a marijuana-growing operation inside the house. Jardines was charged with growing illegal marijuana plants, but his lawyer contended that the search was unconstitutional because it intruded on the privacy of the home.
The state’s highest court relied primarily upon a 2001 Supreme Court decision, in the case of Kyllo v. United States, a ruling that it is unconstitutional for police to use a heat-sensing device aimed at the outside walls of a house, to check to see if marijuana was being grown inside with the use of high-intensity lamps. When the government uses a device that the general public does not employ, and the police use it to explore the details of a home, the state court said, that is a “search” under the Fourth Amendment. A trained dog’s sniff test fits into that category, it concluded, adding that such a test reveals not only the presence of something illegal, but it also is capable — when carried out in public view — of exposing the homeowner to public humiliation and embarrassment, and further is capable of being used in a discriminatory way. Before police may conduct such a sniff test, it ruled, they must be able to show in court — after the fact — that they had more than mere suspicion that a crime was being committed in the crime; they had to have information indicating that it was ”probable” that there was such criminal wrongdoing taking place in the home. The bottom line of the ruling: the use of Franky at the Jardines home was “unreasonable,” so the marijuana evidence could not be used against him.
That ruling is being challenged by state officials of Florida in their appeal to the Supreme Court. They have the support of the federal government for their challenge. Their basic claim is that a sniff test by a drug is not a search at all, at a home or elsewhere.
