Supreme Court rejects Gov. Scott's cert petition

This was in the drug testing case that Judge Ungaro had. From Curt Anderson:

The U.S. Supreme Court refused Monday to hear an appeal by Florida Gov. Rick Scott on his 2011 executive order that would have required random drug tests for as many as 85,000 state workers.

The ruling lets stand an appeals court decision that Scott's order was too broad. That decision also directed a Miami federal judge to oversee ongoing negotiations between the state and an employee union over which positions could be subjected to random drug tests.

The Supreme Court's refusal to hear the appeal follows a similar decision in late December by a federal judge in Orlando who struck down a Florida law requiring applicants for welfare benefits to undergo mandatory drug testing. Scott, a Republican, is also appealing that case.

The American Civil Liberties Union of Florida, which challenged both drug-testing plans as unconstitutional, said federal courts have clearly rejected blanket mandatory drug testing by the state.

"The question of whether the state has the power to compel all employees to submit to suspicionless searches without good reason is settled and the answer is no," said Shalini Goel Agarwal, the lead ACLU attorney in the state employees case.

Judge Hoeveler set to retire

It's been a good run.

John Pacenti covers the details:

Senior U.S. District Judge William Hoeveler said after more than three decades on the bench that he planned "to continue to work until they carry me out."
It may not come to that. Chief U.S. District Judge Federico Moreno in Miami sent a short memo last month reassigning Hoeveler's 21 cases effective April 1 "pending retirement later this year."
Appointed by President Jimmy Carter in April 1977, the World War II veteran quickly gained a reputation as a legal scholar. The 92-year-old judge oversaw landmark litigation on Everglades pollution, and he presided at the nine-month drug-trafficking and racketeering trial of Panamanian dictator Manuel Noriega.
Hoeveler also oversaw some of the 2000 hearings on whether 6-year-old Cuban refugee Elian Gonzalez should be returned to his homeland. A year earlier, he presided over a Port of Miami public corruption trial.
"The truth is he has left his fingerprints all across the district, not just on the Everglades, but on criminal, civil and environmental law," said former interim U.S. Attorney Guy Lewis, now a partner at Lewis Tein in Miami. "When the chips are down, Judge Hoeveler is the guy who comes through."
Compared to Lincoln
How well-regarded is Hoeveler among members of the Bar in South Florida? Several lawyers compared him to President Abraham Lincoln.
"He acted like Abe Lincoln," said attorney Aaron Podhurst, a partner at Podhurst Orseck in Miami. "He never raised his voice, and he was a fabulous lawyer, and he was a great trial judge."

Thursday's news and notes

1. The dude who disrupted the Supreme Court got time served. From the AP:

A demonstrator who interrupted arguments at the U.S. Supreme Court in February and whose group posted video of the protest online, a first for the court, has been sentenced to time served.

Noah Kai Newkirk of Los Angeles pleaded guilty Tuesday in connection with the Feb. 26 disruption, after which he served a night in jail. After Tuesday's hearing, a Supreme Court policeman gave Newkirk a piece of paper that notified him he is also barred from the court grounds for a year.

After video of his protest was posted online, the Supreme Court, which forbids cameras and all other electronic devices, tightened its security screening. Newkirk declined Tuesday to say how the video of his protest was shot.

Newkirk, a member of the group 99Rise, told a D.C. Superior Court judge overseeing his case that he spoke out to protest the "unprecedented amount of money" corporations are spending on elections. He said the Supreme Court played a role in "deepening that corruption."
...
Newkirk's attorney, Jeffrey L. Light, told the judge Newkirk has no intention of returning to the Supreme Court. But Newkirk said outside the hearing that "it's a hypothetical possibility there may be others."

2. While keeping the Court closed to cameras and punishing those who disrupt the Court, Justice Scalia told a student that he should consider revolting:. From the WSJ:

Supreme Court Justice Antonin Scalia, after delivering prepared remarks before a standing-room-only crowd at the University of Tennessee College of Law on Tuesday, was asked by a student about the constitutionality of the income tax.

Justice Scalia, according to the Knoxville News Sentinel, replied that the government has the right to take his money. “But if reaches certain point, perhaps you should revolt,” he reportedly told the young man.

The justice, who was invited by the law school to present its annual “Rose Lecture,” delivered what he described as his “stump speech.”

He talked about the time he joined with the majority in 1989 in declaring that flag-burning was constitutionally protected speech.

“You’re entitled to criticize the government, and you can use words, you can use symbols, you can use telegraph, you can use Morse code, you can burn a flag,” he said, according to the News Sentinel.

Justice Scalia also said that he and his colleagues on the bench don’t care which party controls the White House, saying the clash of opinions among the justices isn’t partisan.

And he, naturally, offered a defense of his theory of originalism, the belief in a Constitution that’s fixed and unchangeable.

“The Constitution is not a living organism for Pete’s sake,” the justice said, according to the report. “It’s a law. It means what it meant when it was adopted.”

3. Another Rothstein indictment. This time it's Irene Stay. From the Sun-Sentinel:

Federal prosecutors filed a criminal charge Wednesday against Scott Rothstein's former bookkeeper, who became the chief financial officer of his law firm, court records show.

Irene Stay, now Irene Shannon, 50, of Miami, was charged with a lone count of conspiracy to commit money laundering and bank fraud. Prosecutors said she is the 18th Rothstein accomplice to be held accountable.

Shannon played a vital role in Rothstein's $1.4 billion Ponzi scheme, which he operated from 2005 to 2009, according to investigators.
Her job involved overseeing all of the law firm's accounting work from the secured inner sanctum that Rothstein had built in his Las Olas office, according to investigators from the IRS and FBI.

Some of Rothstein's investors alleged in a civil lawsuit that when Rothstein's law partners confronted Shannon after he fled to Morocco in late October 2009, she began crying and repeating the phrase, "I don't want to go to jail."

Fort Lauderdale jeweler Patrick Daoud gets house

Another Judge Marra/Fred Haddad matchup. From Paula McMahon:

Well-known Fort Lauderdale jeweler Patrick Daoud was sentenced to ten months of house arrest and two years of probation on Friday for helping to hide a huge 12.08 carat yellow diamond that Ponzi schemer Scott Rothstein's wife was attempting to conceal from federal authorities.

Daoud, 55,the owner of Daoud's Fine Jewelry in Fort Lauderdale, pleaded guilty to obstruction of justice last year.
***
His crime, prosecutors said, was lying about the diamond under oath when he was summoned to a deposition in federal bankruptcy proceedings in November 2011. He testified that he never received or kept the diamond and later, in June 2012, returned it to Weisman.

"He had the opportunity to do the right thing and chose not to," Assistant U.S. Attorney Lawrence LaVecchio said in court.

Daoud's lawyer, Fred Haddad, said that Daoud was "deliberately kept in the dark" and knew nothing of Rothstein's attempt to hide jewelry and other assets to try to keep her financially afloat after her husband's $1.4 billion investment fraud scheme was exposed in October 2009.

Daoud panicked when he figured out what was going on and got involved in a "misguided attempt to protect" Weisman – who he knew from attending charitable events – and his investment, Haddad said.

"Aside from losing a large sum of money in purchasing the ring, the embarrassment in a community where he is so well-known, [Daoud] has also been branded a felon, with a resultant loss of business," Haddad wrote.

When U.S. District Judge Kenneth Marra asked Daoud if he wanted to say anything before he was sentenced, Daoud hesitantly replied: "I'd rather not."

Judge Pryor says judicial branch disrepected by AG Holder

Some fireworks from the Sentencing Commission last week when 11th Circuit Judge Pryor said that AG Holder disrespected the judicial branch by not opposing the proposed two level decrease in the drug guidelines. More from NLJ:

The United States Sentencing Commission Thursday unanimously approved an amendment to revise sentencing guidelines for non-violent drug offenders, but not before one commissioner accused Attorney General Eric Holder of having “disrespected” the judicial branch’s role in sentencing reform.

“I regret that, before we voted on the amendment, the Attorney General instructed Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” Judge William Pryor, Jr. said at a public hearing in Washington. “That unprecedented instruction disrespected our statutory role, ‘as an independent commission in the judicial branch,’ to establish sentencing policies and practices under the Sentencing Reform Act of 1984.”

Nevertheless, Pryor voted with the seven other Republican and Democratic judges to reduce sentencing guidelines involving drug offenders.

In August, Holder revealed his “Smart on Crime” initiative, which includes recommendations for reduced sentencing, without consulting with the Sentencing Commission—an independent agency within the judicial branch tasked with setting such policies. Although the sentencing reforms themselves were not controversial, Holder’s cavalier approach to separation of powers, including a March memo in which he “instructed the Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” irritated commissioners and alarmed supporters of constitutional separation of powers.

The amendment approved Thursday, aims to reduce federal prison overcrowding by reducing non-violent drug trafficking offenders’ sentences by 17 percent.

Holder did not attend the meeting. Instead, Commissioner Jonathan Wroblewski responded to what he called Pryor’s “very, very, very serious charge.” Wroblewski insisted that what the Attorney General did was “not only lawful, but in the greatest respect of the Justice Department,”

Chief Judge Ricardo Hinojosa stated that he was “surprised” by Wroblewski’s statement. He concurred with Pryor that Holder is setting a “dangerous precedent,” noting that two years ago, the Justice Department testified that it was not ready for reductions in sentencing, but that “all of a sudden, because the Attorney General says so” the DOJ has changed its course.

The meeting concluded with Chief Judge Patti Saris applauding the commission for its unanimous vote. But observers joined Pryor and Hinojosa in condemning Holder’s high-handed approach to constitutional boundaries.

“For those committed to the rule of law, the question now goes beyond whether reducing sentences for dealers in dangerous drugs is wise. It’s whether the Attorney General, the chief law enforcement officer in the United States, is committed to following the law as it exists, or, instead, as he wants and speculates it might become,” William G. Otis a professor at Georgetown University Law Center, said in a statement. “One way to consider this question is to ask whether, if the Attorney General ordered prosecutors to seek increased sentences that were, at the time, only preliminary, those applauding Mr. Holder’s actions would be as enthusiastic as they are today.”

I'm not sure I see the disrespect or the separation of powers issues. The Attorney General can tell his prosecutors what sentences to seek; in fact, he can even go so far as to pick and choose what cases to prosecute. I see the judges' role as a check on the prosecution power in seeking sentences that are too high, not too low. This is an adversary system, so if the executive branch says that a particular sentence is too high, I'm not sure how that is disrespecting the judicial branch. As an aside, the guidelines aren't even based on any empirical data; they are simply made up numbers -- and the Commission voted unanimously to reduce those made up numbers. Had Holder not told his prosecutors to stop seeking the higher sentences, we'd see a flood of 2255s, along with appeals, and I'm sure the judicial branch wouldn't be happy about that.

Judge Marra's sentencing of Christopher George last week demonstrated how the judiciary rightly checks the government. The prosecution asked for a third off of George's sentence for cooperation and the defense asked for way more. Judge Marra correctly said no and gave much less -- about 20%. From Paula McMahon the Sun-Sentinel:

Christopher George, whose highly successful pill mills in Broward and Palm Beach counties made about $40 million, was hoping Friday that his cooperation with prosecutors would earn him a big break on the prison term he is serving.

Though the inmate wasn't in court to witness it, prosecutors formally recommended that he should get close to six years shaved off his 17 1/2 year federal prison sentence and told the judge that they wouldn't object to him getting as much as a 50 percent sentence reduction.

But U.S. District Judge Kenneth Marra was not going for anything even close to that.

"I'm not sure that I want him back out on the streets as quickly as everyone here seems to want — he's a dangerous person," Marra said.

Recalling George's boastful testimony last summer in the trial of two doctors he hired to prescribe massive amounts of painkillers to addicts and other drug, the judge said the former Wellington twin was "proud of being a criminal."

"He was proud of what he did. He was just upset that he got caught," Marra said.

The judge, who has granted sentence reductions for several other co-defendants who helped the prosecution, reminded prosecutors and defense attorney Fred Haddad that he could refuse to reduce George's sentence by even one day.

But mindful that prosecutors investigating tough cases often need the help of cooperating criminals — who will only do the right thing if they know they will receive some kind of reward — Marra said it would be "unwise and damaging to the criminal justice system" to give George no credit at all.

After a long silence, Marra ruled that it was appropriate to take 3 1/2 years off George's prison term – which cuts his punishment to 14 years. Federal inmates usually serve about 85 percent of their sentences, with time off for good behavior.

Tax fraud trial starts for former Hialeah Mayor Julio Robaina

The case is before Judge Ungaro.  The Herald has these details from the start of the trial:

The tax-evasion trial of former Hialeah Mayor Julio Robaina and his wife got underway Friday with opening statements.
A 12-person Miami federal jury, which was picked Thursday, will hear allegations that Robaina and his wife, Raiza, conspired to defraud the federal government by failing to report more than $1 million in income — including $300,000 in cash payments allegedly collected from now-imprisoned investment scammer Luis Felipe Perez. The trial, presided over by U.S. District Judge Ursula Ungaro, could last three weeks.
Before trial, prosecutors Richard Gregorie and Michael Davis argued that the couple had a conflict of interest with being represented by one defense attorney. They claimed that Robaina arranged to be paid in cash by Perez so he could use the money for his alleged mistress and keep it a secret from his wife.
But the Robainas stood united, insisting that the issue would not pose a conflict at trial because Perez and another witness who made the allegation were “liars.”

"I am handcuffed! I am not allowed to do the nasty conservative things I want to do to the country."

That was Justice Scalia during this recent talk at Brooklyn Law School.  More from the WSJ:

If the framers didn't think flogging was cruel or unusual, he continued, then it couldn't, therefore, violate the constitution they wrote.

Before an audience, the sharp bite of Mr. Scalia's imposing demeanor was leavened with a self-deprecating wit. Because of the inviolability of the Constitution's original meaning, he joked, "I am handcuffed! I am not allowed to do the nasty conservative things I want to do to the country."

This answer, like many others, elicited a round of delighted laughter and applause from the law students, who seemed to be cheering Mr. Scalia's clever and occasionally confrontational replies more than they were applauding the substance of his positions. When Mr. Napolitano asked him a question about privacy from government intrusion into the bedroom, he began, "Bedroom is polite language for intercourse—is that right?"

After an hour of interrogation from Mr. Napolitano, Mr. Scalia fielded questions from the audience. The questions didn't seem prescreened, but a few were notably pointed.

"There have been many calls for Justice Ginsburg to retire," one student asked. "Would you take some of the pressure off her and retire instead?"

Amid a roar of laughter, Mr. Scalia gave a teasing response. "I said I would take questions—I didn't say I would answer them."

When another student asked, referring to Mr. Scalia's originalism, "Why should society be bound by laws that were passed only by white male property owners," he hesitated for a few seconds, longer than he had all evening. "That's a reasonable position," he smiled. "You people wanna make a revolt? Do it!"

Should Supreme Court Justices be more tech savvy?

After reading Michelle Olsen's post on the Facebook case coming up, where the briefs have to describe what FB is, query whether these Justices know enough to be ruling on such questions:

The petition includes a rudimentary description of Facebook, a subtle recognition of the justices’ admitted lack of online savvy: Users have “a home page on which the user can post comments, photos, and links to other websites.” They “may become ‘friends’ with other users.”

Justice Elena Kagan has said that the justices do not even use email.

Here's the question involved in this specific case:

A man convicted of making threats using Facebook has asked the U.S. Supreme Court to resolve a circuit split over what constitutes a “true threat.”

Under the pseudonym “Tone Dougie,” Anthony Douglas Elonis posted violent content on Facebook about his wife and others, often in the form of rap lyrics.

Elonis was convicted under 18 U.S.C. § 875(c), which makes it a federal crime to transmit “any threat to injure the person of another” in interstate commerce. There are comparable state laws.

The U.S. Court of Appeals for the Third Circuit rejected Elonis’ appeal.

In February, the University of Virginia School of Law’s Supreme Court Litigation Clinic filed a petition for certiorari on behalf of Elonis. John Elwood, a Vinson & Elkins partner and clinic instructor, is the counsel of record. Elwood is also a former assistant to the solicitor general and clerk to Justice Anthony Kennedy.

The brief in opposition is due April 21, so the justices could act soon on the petition.

Virginia v. Black, a 2003 Supreme Court opinion about cross burning, held that when a “speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,” that is a true threat (emphasis added). Such threats are not protected speech under the First Amendment.

The petition outlines a split among federal courts of appeals and state high courts over Black’s true threat definition. One interpretation focuses on the speaker, while the other focuses on the speaker and the listener.

Does the phrase “means to communicate” require that the speaker subjectively intend a threat, or is it enough that the message sent comes across objectively as a threat?