Interesting opinions from the 11th Circuit

1.  Judge Pryor doesn't like dissentals, which I know all too well.  His latest concurral is in Michael Morgan's case.  He starts this way:

I write to respond to the dissents filed by three of my colleagues about the
denial of a rehearing en banc. I continue to adhere to the view expressed by Judges Henry Friendly and Raymond Randolph that dissents from the denial of rehearing en banc, particularly where one did not participate in the decision, are “of dubious policy,” United States v. Shaygan, 676 F.3d 1237, 1238 (11th Cir. 2012) (Pryor, J., respecting the denial of rehearing en banc) (quoting United States v. N.Y., New Haven & Hartford R.R. Co., 276 F.2d 525, 553 (2d Cir. 1960) (Friendly, J., concurring in the denial of reh’g en banc, joined by Lumbard, C.J.), and that “denials of rehearing en banc are best followed by silence,” id. (alteration omitted) (quoting Indep. Ins. Agents of Am. v. Clarke, 965 F.2d 1077, 1080 (D.C. Cir. 1992) (Randolph, J.)). But my colleagues do not share that view, and their dissents should not go unanswered. Lest anyone doubt the correctness of our decision in this matter, I must respond to five misunderstandings in the dissents that follow. 

I disagree with Judge Pryor and think Judge Kozinski has it right:

“Cases arguably warranting en banc review are those in which the stakes are unusually high or the law is especially unclear.”⁶⁴ It does honor to the law, promotes justice, and serves the interests of an informed public when citizens learn that appellate judges have given difficult and important cases exacting scrutiny—not just one judge or even the three-judge panel, but an entire court of appeals.As Judge Clark put it in the case that started out this essay, “I do believe the court gains standing by encouraging free and thorough canvassing of these issues without the deadening influence of constraining restrictions.”⁶⁵Dissentals are here to stay. Get over it.

2.  The Court of Appeals also addressed some forfeiture issues in the Rothstein matter.  Judge Tjoflat starts off this interesting issue like this:

A number of criminal statutes within the Federal Code mandate that a
defendant, when convicted, forfeit to the United States as part of his sentence the lucre he acquired as a result of his criminal activity. In this case, the defendant, a lawyer, deposited the lucre in his law firm’s bank accounts, where it was commingled with the firm’s receipts from legitimate clients. The question this appeal presents is whether the money in the bank accounts at the time the defendant was charged is subject to forfeiture. We hold that it is not.

3.   OK, this isn't the 11th Circuit, but you gotta love how this Second Circuit opinion starts out:

In addition to the awesome cover art, Judge Chin has a cool intro:

In 1972, the Marvel Comics Group published a comic book featuring the "Ghost Rider" -- a motorcycle-riding superhero with supernatural powers and a flaming skull for a head. The issue -- which sold for twenty cents -- told the story of Johnny Blaze, a motorcycle stunt rider who promised his soul to the devil to save his adoptive father from cancer.
 

Go, Dore, Go!

There's a lengthy multi-defendant trial before Judge Rosenbaum right now. I've been hearing lots of interesting (and sometimes funny -- including Marc Seitles putting on a dress during a cross!) stories from the trial, and this one is worth sharing. Dore Louis filed a motion for phone records, which the government claims it doesn't have. But -- according to recent reports -- doesn't the government have all of our phone records? Judge Rosenbaum wants to hear from the government on this point:

Defendant Brown urges that the records are important to his defense because cell-site records could be used to show that Brown was not in the vicinity of the attempted robbery that allegedly occurred in July 2010. And, relying on a June 5, 2013, Guardian newspaper article that published a FISA Court order relating to cellular telephone data collected by Verizon,1 Defendant Brown now suggests that the Government likely actually does possess the metadata relating to telephone calls made in July 2010 from the two numbers attributed to Defendant Brown.

Under 50 U.S.C. § 1806(f), when an “aggrieved person”2 moves “to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance[3] under [FISA],” the Court must provide the Attorney General of the United States with an opportunity to file an affidavit under oath indicating whether disclosure or an adversary hearing on the defendant’s request would harm the national security of the United States. If the Attorney General files such an affidavit, the Court must conduct an in camera and ex parte review of the application, order, and other materials to determine whether the surveillance of the movant was lawfully authorized and conducted. If the Attorney General declines to file such an affidavit, however, the Court may conduct this inquiry in open court.

Upon review of the application, order, and other materials, if the Court concludes that Defendant Brown was an “aggrieved person” and that the surveillance was not lawfully authorized or conducted, it must grant Defendant’s Motion and preclude the Government from using the evidence. See 50 U.S.C. § 1806(g). And, even if the Court determines that the surveillance was lawfully authorized or conducted, it must order discovery or disclosure to the extent that due process requires it, although the Court must otherwise deny the motion. Id. Here, Defendant asserts that, under Brady v. Maryland, 373 U.S. 83 (1963), due process requires the production of the July 2010 telephone records because they are anticipated to be exculpatory in that they are expected to show that Defendant Brown was not physically located at the scene of the alleged attempted Brink’s truck robbery in July 2010.

In view of Defendant Brown’s Motion and the requirements of FISA, it is hereby ORDERED and ADJUDGED that the Government shall respond to Defendant Brown’s Motion and, if desired, shall file an affidavit of the Attorney General of the United States, as contemplated by Section 1806(f), by Wednesday, June 12, 2013. The Court regrets the short deadline for compliance but notes that the evidence that Defendant Brown seeks pertains to a trial that has been underway since May 31, 2013,4 and any order requiring the production of any materials sought would become meaningless if such items were not produced in sufficient time for the defense to use them in its case.5

Fascinating. The rest of the order, including the footnotes, are also worth reading.

Any predictions on how the government will respond?  Will we get an affidavit from General Holder?

Is sentencing out of whack?

A number of people sent me interesting emails about sentencing philosophy after reading yesterday's post. One reader sent me this link to Judge Laurie Smith Camp's posted philosophy on sentencing, which ends this way:

As a judge, I do not consider my role to be that of an instrument of public vengeance. In the words of Clint Eastwood in “Unforgiven,” – “We all have it coming.” In the words of Dustin Hoffman in “Papillon” – “Blame is for God and small children.”

Meantime, another judge found that the meth guidelines make no sense:

Sioux City-based U.S. District Judge Mark Bennett on Friday became one of a handful of U.S. judges to declare public opposition to federal sentencing guidelines for methamphetamine dealers.

He wrote that he considers them to be “fundamentally flawed,” not based on empirical data and too harsh for lower-level drug figures.

Bennett — declaring in a 44-page ruling that he has a “fundamental policy disagreement” with the methamphetamine portion of guidelines that federal judges are supposed to consider in sentencing criminals — cut the sentence of Sioux City drug dealer Willie Hayes to six years and three months from a possible 15 years, eight months.

And yesterday, the Supreme Court ruled that applying a new version of a guideline violated the ex post facto clause if that guideline called for a higher sentence, even though the guidelines are now advisory.

What a mess.

The guidelines, and sentencing in general, has become a lot like the tax code.  No one likes them, but no one has any really good ideas on how to fix them.

Sometimes, I think the solution is the state system, but then I see that Chad Ochocinco was sentenced to 30 days today even though the plea agreement called for no jail time because he congratulated his lawyer for the result by slapping his behind.

Maybe it's the Texas system where the jury issues the sentence...

A wonderful essay by Judge Kopf.

Here.

The whole thing is really worth a read.  But here is the intro:

If, over a long career, you sentence a lot of people to prison, several things can happen to you.   Most of them are bad.  Here’s a short list of some of the bad things:
*  You can begin to see offenders only in numerical terms.  ”What’s the base offense level, criminal history score and sentencing range?  Next!”
*  Unless you are very careful, you may become inured to the horrific impact that prison sentences have on offenders and their families.  ”You say your parental rights will be terminated if you go to prison, well, they’ll be better off anyway.”
*  You begin to suppress the anger that naturally flows from the horrific crimes you are forced to study.  Unless you struggle mightily to resist, you will then allow that anger to boil up to the point of an inner rage.  That rage in turn fuels a righteous indignation that, metaphorically speaking, permits you to sentence Satan while thinking of yourself as the Archangel Michael.
*  With a despair akin to that found in the best of Richard Pryor’s stand-up routines, you may find yourself making jokes with punch lines about the futility of rehabilitation.   “Say, did you hear about the guy who went to prison, was rehabilitated and came out an even better monster?”
All of these things are unconscious. If they weren’t, you would be one sick puppy.
Now, this must not become a pity party.  I have a hell of good gig.  I get paid decently, and the pension is great. People call me “judge” and the bowing and scraping I get with a snap of my fingers is a nice extra perk.  That said, if you care about doing a good job when you sentence people, you better try to find an antidote for the creepy things I have just described.
For my (partial) antidote, I realized that I needed a mental image of a physical object that would evoke a sense of balance.  The image that I settled on derives from a gift given to me by a fellow named David Tommy Gene Suggett.

The better portion of the essay, in my opinion, is the story that follows about Suggett.

Friday news and notes

1.  People were worried about DNA collection....  now our government is mining our telephone calls with secret court orders.  James Clapper, the Director of National Intelligence, responds here.

2.  In lighter news, AUSA Mike Garofola is still on the Bachelorette. Reality Steve has this summary of him from the first episode:

Michael: He takes her back to the fountain to try and retrieve the coin she threw in with Sean since it’s defective now cuz’ he didn’t choose her. Which she said 5 months ago was the biggest mistake he’s ever made, but now she’s over it. I don’t think I’d be dipping my hand in that fountain water anytime soon. I’m sure drunk PA’s probably use that as their toilet during the late night hours. So in addition to his diabetes, I’m guessing we can expect Michael to contract Hep C this season.

And in the second episode, the gang raps. Mike G. comes in at the 1:43 mark:



3. While you are watching video, apparently this hearing on kosher meals in the prisons will be posted at this link soon.  In the meantime, Curt Anderson has this:

Florida is moving ahead with a plan to offer kosher meals in all state prisons by the end of the year, a corrections official testified at a hearing Tuesday on a U.S. Justice Department lawsuit demanding such a program.
James Upchurch, assistant Department of Corrections secretary for institutions, said food following the strict Jewish dietary rules would be served beginning in July at the 2,000-inmate Union Correctional Institution in north Florida and then would expand through the fall to 60 facilities across the state.
"We will make the policy work," Upchurch told U.S. District Judge Patricia Seitz at the hearing. "When you run a prison, there are security problems with everything you do. We don't see any that are insurmountable at this point."
Florida previously offered kosher meals at selected prisons for three years until 2007, then began a pilot program at a South Florida prison in 2010. The Justice Department's Civil Rights Division filed a federal lawsuit last year demanding that the state be required to offer kosher food at all prisons.
A Justice Department lawyer, Michael Songer, said that despite the state's assurances, the U.S. wants the judge to issue a kosher food order so that the policy couldn't simply be changed in the future. Kosher diets and other tenets of religious faith are protected for prisoners by the 2000 Religious Land Use and Institutionalized Persons Act, he said.
"The state is not willing to make an enduring commitment to providing kosher meals," Songer said. "We believe Florida has been refusing to provide kosher meals in violation of the law for years."
The judge did not immediately issue a ruling, nor did she decide on a motion by attorneys for Muslim inmates seeking to join the case so they can get halal or kosher meals in prison. Seitz said Florida and the U.S. should be permitted to respond to that motion in writing before she rules.

Iowa judge to prosecutors: "You won't like me when I'm angry."

And this Obama appointee is angry because prosecutors weren't arguing for a high enough sentence:

One of Iowa's most prominent federal judges is accused of improperly playing the role of "prosecutor-in-chief" in criminal cases by ordering the U.S. Attorney's Office to provide evidence that can result in longer prison sentences, court records show.

U.S. District Court Judge Stephanie Rose has complained to U.S. Attorney for the Southern District of Iowa Nicholas Klinefeldt that his prosecutors aren't providing her with information that can be used to extend prison sentences, according to a Des Moines Register review of emails that are part of a court case and were recently unsealed.
Court transcripts show Rose, a former prosecutor who is now in her first year on the bench, has clashed with prosecutors over that issue in at least three criminal cases this year.
In a case involving convicted drug dealer Bryan Holm, Rose ordered prosecutors to provide evidence that could extend Holm's prison sentence on a weapons charge. When they refused, citing a plea agreement they had signed, Rose called a police officer to the stand, questioned the officer herself and imposed a sentence that was two to three years longer than what prosecutors had contemplated.
Rose then sent prosecutors an email comparing herself to the comic book superhero the Hulk, saying there was "a lesson" there for attorneys: "You won't like me when I'm angry."
Holm's attorney, Dean Stowers, says in court papers his client was "caught in the crossfire" between Rose and federal prosecutors who refused to do her bidding. Stowers, who is appealing Holm's sentence, says the Hulk email "tends to support the view that there is a price to be paid" if prosecutors don't take her advice.
"Any defendant, including Mr. Holm, would be particularly alarmed by such judicial advocacy in seeking to enhance his sentence," Stowers wrote in court filings.
"Most defendants have a hard enough time defending against the prosecuting attorney. … They at least should expect the judge will not be assuming the role of prosecutor-in-chief," wrote.

Judge Scola says no to unsafe courthouse

Thanks to a great tipster, I am able to report that Judge Scola said in a recent scheduling order that he will not be holding trials or hearings in the flooded courthouse.

From the order: "Until the unacceptable, unsafe, and unaddressed flooding and water-intrusion issues affecting the Fort Lauderdale courtroom assigned to this Judge are remedied, no trials or hearings will be held in Ft. Lauderdale.  Trials of Fort-Lauderdale-Division cases will be held in the Wilkie D. Ferguson, Jr. Federal Courthouse in Miami, Florida."

Trial lawyers will love the use of the trilogy.

Fun writing today in the 11th Circuit

It's Judge Pryor vs. Judge Jordan in this bank robbery case (USA v. Lonnie Whatley), and Judge Pryor starts off this way:

When asked why he robbed banks, legend has it that famed American bank robber Willie Sutton replied, “Because that’s where the money is.” Bryan Burrough, Books: The Robber’s Last Ride, Wall St. J., Sept. 29, 2012, at C6. Lonnie Whatley may have taken this advice to heart when he robbed four banks in the greater Atlanta area during 2003 to 2006 and attempted to rob another in 2007. In this appeal of his convictions for the robberies, Whatley asks us to resolve four
issues: (1) whether the admission of 14 in-court identifications of Whatley by bank employees violated his right to due process; (2) whether the district court abused its discretion when it admitted evidence of Whatley’s conviction for the attempted bank robbery as evidence of a modus operandi; (3) whether the district court abused its discretion when it declined to grant Whatley a new trial after the parties discovered that the jurors had considered extrinsic evidence during their deliberations; and (4) whether the district court erred when it applied a four-level sentencing enhancement for abduction of the bank employees because Whatley ordered the bank employees to move around to different areas within the banks. 

We conclude that, based on the recent decision of the Supreme Court in Perry v. New Hampshire, __ U.S. __, 132 S. Ct. 716 (2012), which requires no preliminary examination for an identification not arranged by law enforcement officers, the admission of the in-court identifications of Whatley did not violate his right to due process. We also conclude that the district court did not abuse its discretion when it admitted evidence of Whatley’s conviction for the attempted bank robbery and that the district court did not abuse its discretion when it denied Whatley a new trial. But we also conclude that the district court erred when it applied the enhancement for abduction. We affirm Whatley’s convictions, vacate his sentence, and remand for resentencing with instructions to apply the two-level enhancement for physical restraint of the employees instead of the four-level enhancement for abduction.

Judge Jordan concurs in part and dissents in part, and has some great quotes and references in his opinion:

Procrastination is not generally seen as a good character trait, but in constitutional adjudication it can often be a virtue. In my opinion, we need not and should not decide the effect of Perry here because Mr. Whatley cannot prevail on his due process claim even under our pre-Perry precedent.
***
Nor does the evidence on Count 1 allow the government to discharge its burden. It is true, as the majority writes, that three bank employees identified Mr. Whatley as the perpetrator of the June 2003 robbery at trial. But these in-court identifications cannot be considered in a vacuum. To begin with, the identifications were made in 2010, seven years after the bank robbery in question, and it does not take a Nobel laureate in medicine to understand that “[t]ime’s the thief of memory.” STEPHEN KING, THE GUNSLINGER 161 (Signet rev. & exp. ed. 2003).