Judge Middlebrooks dismisses Spence-Jones lawsuit

Hot off the presses, here's the 64-page order:

Middlebrooks Order Dismissing Spence Jones

Julie Carnes nominated to the 11th Circuit

From the AP:

President Barack Obama has nominated a federal judge from Atlanta to serve in the 11th Circuit Court of Appeals.
White House officials said in a statement Thursday that U.S. District Court Judge for the Northern District of Georgia, Julie E. Carnes, has been nominated to serve in the court of appeals.
Officials say Carnes has served as a federal judge in Georgia since 1992, and has been the District Court's chief judge since 2009.
Officials say Carnes was born and raised in Atlanta, graduated from the University of Georgia School of Law in 1975, and served on the editorial board of the Georgia Law Review.
White House officials say Carnes began her legal career as a clerk for a U.S. Court of Appeals judge in 1975.

Some additional facts:  She was an AUSA before becoming a judge.  She was nominated by President Bush to the district court.  She clerked on the 5th Circuit (Lewis Morgan) and also served on the Sentencing Commission. 

Nice appellate win for the Federal Defenders

It's not too often that the 11th Circuit sides with the defendant in an appeal involving the 4th Amendment.  But Judges Tjoflat, Pryor, and Fay issued United States v. Timmann yesterday, which discusses the emergency aid and protective sweep exceptions to the warrant requirement.  Here's one excerpt:

The situation the officers confronted in the instant case bears none of these indicia of an urgent, ongoing emergency. The officers here did not receive an emergency report regarding an ongoing disturbance, but rather a service call regarding what appeared to be a bullet hole, which circumstances known to the officers indicated had been made at least 39 hours prior to when the officers made entry.5
When Officer Martin first arrived at the apartment building, she did not encounter a tumultuous scene, nor were the officers met with chaos when they returned to the building the next day. The officers observed no violent behavior, nor did they see or hear evidence that a fight had taken place or that anyone had been injured, other than finding a single bullet hole.

Nor did the officers have any information that would lead them to suspect that Timmann might be suicidal, or that he might be home (in fact, the absence of his work vehicle indicated that he was likely not at home). Considering the totality of the circumstances, it was not reasonable for the officers to believe that someone inside Timmann’s apartment was in danger and in need of immediate aid. Therefore, we find that the District Court erred in holding that the emergency aid exception justified the officers’ warrantless entry into Timmann’s apartment.

Congratulations to AFPD Brenda Bryn for the appellate victory and AFPD Chantel Doakes for preserving the issue in the trial court.

Demonstration this morning outside of Sen. Rubio's office...

...re his unprincipled refusal to issue the blue slip for Will Thomas.  From the Miami Herald:

Thomas’ supporters in the legal community say Rubio is unfairly distorting the judge’s record to pander to the Tea Party and other Republican right-wingers.
Thomas would be the first openly gay African-American federal judge.
Tuesday’s rally is being led by Rev. Carl Johnson, of Miami’s 93^rd Street Baptist Church.
“He is well trained in the law. He has a good, honest and discerning character that makes him an outstanding judge,” Johnson said of Thomas, a longtime state court judge.
The group of between 30 and 40 supporters will rally Tuesday outside Rubio’s West Miami-Dade Office, 8669 NW 36th St., at 10:30 a.m.

Other news:

-- Lewis, Tein & Calli win.  Again.  This time it's Judge Thornton who issued the sweeping victory.

-- Judge Seitz orders kosher meals at state prisons by July 1 for "all prisoners with a sincere religious basis for keeping kosher."  I'd have a sincere belief in just about anything to get out of eating the slop they try to pass as food in state prisons.

-- A federal judge has blocked the NSA spying program because it violates the 4th Amendment.  From the NY Times:

A federal district judge ruled on Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution, describing its technology as “almost Orwellian” and suggesting that James Madison would be “aghast” to learn that the government was encroaching on liberty in such a way.       

The judge, Richard J. Leon of Federal District Court for the District of Columbia, ordered the government to stop collecting data on the personal calls of the two plaintiffs in the case and to destroy the records of their calling history. But Judge Leon, appointed to the bench in 2002 by President George W. Bush, stayed his injunction “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues,” allowing the government time to appeal it, which he said could take at least six months.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” Judge Leon wrote in a 68-page ruling. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment,” which prohibits unreasonable searches and seizures.

"There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it."

That's Ninth Circuit Chief Judge Kozinski dissenting from the denial of en banc review in U.S. v. Olsen.  He isn't happy with the panel:

"The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."

Or the prosecutor:

"Protecting the constitutional rights of the accused was just not very high on this prosecutor's list of priorities. The fact that a constitutional mandate elicits less diligence from a government lawyer than one's daily errands signifies a systemic problem: Some prosecutors don't care about Brady because courts don't make them care."

Ho hum. 

At Judge Kopf's blog, he recommends having prosecutors turn over everything to the defense to make sure these complaints can't be lodged.  I've never heard a good response to this proposal.

Some other notes:

• Albert Lichy, Judge Huck's former law clerk, wrote an op-ed in the DBR, titled: DOJ's Shift in Corporate Prosecutions: Too Big to Ignore.  The conclusion:

A retreat of any degree from federal prosecutors' reliance on DPAs to resolve corporate criminal investigations would be utterly misguided. The risk of another Arthur Andersen-style collapse is much too high to justify any added measure of deterrence a criminal conviction offers. While many are quick to criticize the Justice Department for maintaining a de facto policy that some institutions are too big to jail or take to trial, few have offered a convincing argument for why the perceived benefit of a conviction outweighs its potential costs. Corporate defendants, unlike their individual counterparts, can't go to jail—however big or small. They don't suffer the same reputational harm as a branded criminal. Nor do they lose any fundamental constitutional rights. A conviction is purely symbolic. But in pursuing this symbolic gesture, prosecutors are needlessly creating the risk of emitting a systemic shock through the financial system—one that's too big to ignore.
The cautionary note Attorney General Eric Holder sounded in 2002 in arguing against the indictment of WorldCom is as appropriate today as it was then: "to ensure that even more innocent Americans are not harmed, prosecutors must not give in to the pressures of the day and feel compelled to indict more corporations simply because they can."

• Alyson Palmer is doing a great job covering the 11th Circuit appointment process.  Here are recent articles here and here covering how the Judge Rosenbaum may be confirmed quickly and who is being interviewed for the open Alabama seat (Judge Dubina).

One last thing -- Thanks again to everyone for their kind words and emails over the past week.  I really appreciate it.

RIP Richard Sharpstein

Jeez, what an awful week.

We lose another giant today, Richard Sharpstein, who was only 63.

One of the most fun people I have ever known.

Sharpie and my Dad are up there exchanging jokes right now and telling war stories.  I smile thinking about the two of them.

Damn.

R.I.P. Dad (UPDATED WITH SCHOLARSHIP INFORMATION)

I really feel strange posting about my personal life on the blog, but I just wanted to take a second and thank everyone for their emails, calls and notes about my dad, Stuart Markus.  He was such a good man.  I really can't think of a person that didn't love the guy. 

I also want to thank Dave Ovalle for writing this obituary, which captures a lot of great stories about him.

He was almost 60 in this picture.  60!  I wish I looked that good now.



And here he is recently, in his 80s:

 UPDATED--WE ARE SETTING UP A SCHOLARSHIP IN MY DAD'S NAME AT THE UNIVERSITY OF MIAMI LAW SCHOOL WHERE HE GRADUATED IN 1958.  DONATIONS CAN BE MADE AS FOLLOWS:

Stuart Markus Scholarship

University of Miami School of Law

Office of Law Development & Alumni Relations

PO Box 248087

Coral Gables, Florida 33124-8087

Donations can also be made online at this link:

https://advancement.miami.edu/NetCommunity/SSLPage.aspx?pid=196

Donors should select "Other" from the drop-down menu and type "Stuart Markus Scholarship" in the field to earmark the funds.

Thursday News & Notes (UPDATED)

1. Attorney Anthony Livoti Jr. was convicted in the Mutual Benefits case after a lengthy trial before Judge Scola.  He was also acquitted of 20 counts, but that won't help him much at sentencing.

2.  Judge Mark Bennett is (rightfully) railing on the federal sentencing guidelines.  Via CNN:

 Nearly 30 years ago, Congress embarked on a remarkable and ultimately tragic transformation of criminal law. Through the establishment of mandatory sentences and sentencing guidelines, discretion in sentencing was shifted from judges to prosecutors. 

After the changes, prosecutors largely controlled sentencing because things like mandatory sentences and guideline ranges were determined by decisions they made.

This change ignored the fact that federal judges are chosen from the ranks of experienced members of the bar precisely because their long legal careers have shown the ability to exercise discretion.

It also ignored the contrasting truth that many federal prosecutors are young lawyers in their 20s and 30s who have little experience making decisions as weighty as determining who will be imprisoned and for how long.

The primary reason for the changes was well-intended, though: Members of Congress wanted more uniformity in sentencing. That is, they wanted a term of imprisonment to derive from the crime and the history of the criminal rather than the personality of the person wielding discretion.

After nearly 30 years, we know how Congress' experiment turned out, and the results are not good. Federal judges have been relatively lenient on low-level drug offenders when they have the discretion to go that way. Turning discretion over to prosecutors via mandatory sentences and guidelines not only resulted in a remarkable surge in incarceration, it does not seem to solve the problem of disparities.

3.  Didn't the AG say that he was trying to fix the sentencing problem?  Yes, but apparently, he is saying the right things but not actually doing much.  According to the Atlantic:

When the justices of the United States Supreme Court confer Friday morning to consider new cases they will have the opportunity to accept for review a dispute that tests not just the meaning of their own recent Sixth Amendment precedent but the viability of a major new policy initiative implemented this summer by the Justice Department to bring more fairness to federal sentencing while reducing the terrible costs of prison overcrowding.
In Gomez v. United States, a Massachusetts case, the justices have been asked to determine whether they meant what they wrote about juries and drug sentences in Alleyne v. United States, decided just this past June, and at the same time whether Attorney General Eric Holder meant what he said, in August, when he promised to curb the ways in which his federal prosecutors abuse "mandatory minimum" sentences in drug cases to obtain guilty pleas (or higher sentences).
The justices should accept this case for review. And the Court should affirm the just principle that a man cannot constitutionally be sentenced based upon charges that are not brought or upon facts a jury does not even hear. But even if the justices aren't willing to muster up that level of indignation, they ought to at least take the opportunity to call out federal prosecutors for saying one thing in front of the microphones and another in court papers.

4.  Here's a great story about how a reporter was able to break the Bonds grand jury testimony.  Right place, right time.  If you were the reporter's lawyer, would you have had the guts to tell him to go forward?

5.  Irfan Khan is suing the federal government for malicious prosecution.  Any chance to play this:




6.  Texas Rangers Leonys Martin Tapanes was apparently kidnapped and extorted, leading to federal charges.  The Herald has the details:

Leonys Martin Tapanes seemed like yet another Cuban baseball player with tremendous promise when he signed a $15.5 million contract with the Texas Rangers in 2011.
But there apparently is a darker story behind Martin’s climb from poverty to Major League Baseball success.
The U.S. attorney’s office in Miami on Wednesday charged three people — Eliezer Lazo, 40, formerly of Miami Lakes, Joel Martinez Hernandez, 37, formerly of Miami-Dade, and Yilian Hernandez, 30, of Hialeah — with conspiring to smuggle, kidnap and extort the 25-year-old Rangers outfielder.
The trio are also charged with smuggling 13 other Cuban baseball prospects to the United States — all of them going from Cuba into Mexico and then into the United States.
Yilian Hernandez, arrested Wednesday by Homeland Security and FBI agents, will have her first appearance in Miami federal court Thursday. Lazo and Martinez are currently serving respective prison sentences of five and seven years for 2012 money-laundering convictions related to Medicare fraud.

7. Finally, the blog gets a little shout out in the DBR for breaking the story yesterday on the two new federal judges being vetted:

The White House is vetting Miami-Dade Circuit Judges Beth Bloom and Darrin Gayles for two open positions on the federal bench in Miami, a legal blog reported.

The Southern District of Florida blog, which is associated with the Daily Business Review, said the judges were picked from among four finalists selected by the Florida Federal Judicial Nominating Commission in August. Miami-Dade Judges Peter Lopez and John Thornton rounded out those on the short list.

Both Bloom and Gayles are serving in the civil division.

The openings were created when U.S. District Judge Patricia Seitz took senior status last November and plans by U.S. District Judge Donald Graham to take senior status this month.