Cert grant from the 11th Circuit on an important overcriminalization issue

In Yates v. United States, No. 13-7451, the Supreme Court granted cert on the following issue:

"Whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519, which makes it a crime for anyone who 'knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object' with the intent to impede or obstruct an investigation, where the term 'tangible object' is ambiguous and undefined in the statute, and unlike the nouns accompanying 'tangible object' in section 1519, possesses no record-keeping, documentary, or informational content or purpose."

The Federal Public Defender's Office for the Middle District represents Yates.  It said: "The important question presented to this Court boils down to whether a fish is a 'tangible object' under the 'anti-shredding' criminal provision of the Sarbanes-Oxley Act of 2002, entitled 'Destruction, alteration, or falsification of records in Federal investigations and bankruptcy.' 18 U.S.C. § 1519."

The NACDL amicus brief, written by Bill Shepherd of H&K, begins: "Before this Court is the case of a commercial fisherman and three missing grouper. At the heart of the issue presented is an unconstitutional expansion of federal law, resulting in Petitioner's wrongful conviction. Petitioner's conviction is but one more example of the overcriminalization epidemic."



The 11th Circuit didn't engage on the topic, writing only the following:

B. A fish is a "tangible object" within the meaning of 18 U.S.C. § 1519.

Yates contends the district court erred in denying his motion for judgment of acquittal as to Count II because the term "tangible object" as used in 18 U.S.C. § 1519 "only applies to records, documents, or tangible items that relate to recordkeeping" and "does not apply to . . . fish." [Appellant's Br. at 36.]

"In statutory construction, the plain meaning of the statute controls unless the language is ambiguous or leads to absurd results." United States v. Carrell, 252 F.3d 1193, 1198 (11th Cir.2001) (internal quotation marks omitted). "When the text of a statute is plain, . . . we need not concern ourselves with contrary intent or purpose revealed by the legislative history." United States v. Hunt, 526 F.3d 739, 744 (11th Cir.2008). Further, undefined words in a statute — such as "tangible object" in this instance — are given their ordinary or natural meaning. Smith v. United States, 508 U.S. 223, 228, 113 S.Ct. 2050, 2054, 124 L.Ed.2d 138 (1993). In keeping with those principles, we conclude "tangible object," as § 1519 uses that term, unambiguously applies to fish. See BLACK'S LAW DICTIONARY 1592 (9th ed.2009) (defining "tangible" as "[h]aving or possessing physical form"); see also United States v. Sullivan, 578 F.2d 121, 124 (5th Cir.1978) (noting that cocaine is a "tangible object" subject to examination and inspection under Rule 16(a) of the Rules of Criminal Procedure). Because the statute is unambiguous, we also conclude the rule of lenity does not apply here.

The White Collar Blog, by Ellen Podgor, posted about the case last week:

Perhaps the Supreme Court will agree that in the ocean of crime, this one is a bit fishy.  Following the filing of the Petition for Certiorari and a distribution for conference, the Court requested a response from the government. Amici filed a couple of briefs and it was again distributed for conference. It is now set for distribution a third time, April 25, 2014 (see here). It's a wonderful case for the Court to examine principles of statutory interpretation and how far afield the government can go in using a statute written and intended to stop one form of criminal conduct but being used in an unintended manner. This case also provides the Court the chance to step to the plate and express a view on overcriminalization. (see NACDL amicus brief of William Shepherd here - Download NACDLYATESAMICUS).  There are many other issues in the "fish case" that may also interest the Court, such as how a civil fishing citation became a criminal case with an indictment issued 985 days after the citation. (see Petitioner's Reply Brief - Download Yates Reply to Brief in Opposition). But the real question is whether the Court will order fish this coming Friday at their conference.  

Judges Bloom & Gayles set for Judiciary Committee vote on May 1

Calendar here.

Congrats to both.

In other news, Curt Anderson covers the 11th Circuit argument concerning cellphone tower data:

In the latest challenge over digital age technology and privacy rights, a federal appeals court wrestled Friday with the authority of law enforcement to obtain and use records from cellphone towers, which reel in a treasure trove of user information every minute and can link suspects to crime scenes.
In Quartavious Davis' case, authorities obtained from cellphone companies more than 11,000 tower location records spanning 67 days, some of which placed his phone near stores hit by a string of robberies in 2010. Davis, 22, is serving a 162-year prison sentence.
The American Civil Liberties Union and other groups say it's too easy for law enforcement officials to get cell tower records and argue that they should be protected by the Fourth Amendment's ban on unreasonable searches and seizures.
"This provides the government with a time machine it has never had before," ACLU attorney Nathan Wessler told the three-judge panel of the 11th U.S. Circuit Court of Appeals. "It's a great wealth of information about your private life."
Current law allows authorities to simply tell a judge the cellphone information is relevant to their investigation for a court order. The ACLU wants a higher legal standard, with investigators required to show probable cause that a crime was or is being committed and obtain a search warrant.
The case follows recent disclosures that U.S. intelligence agencies, including the National Security Agency, routinely scoop up cellphone communications across a broad spectrum of Americans. And cellphone-tower cases have resulted in split verdicts in two other federal appeals courts. It's likely one will wind up before the U.S. Supreme Court, which ruled in 2012 that global-positioning tracking devices attached to suspects' cars constituted a search subject to Fourth Amendment protections.
A judge at Friday's hearing said he sees similarities between that ruling and the cellphone case.
"Why isn't that at least as much an invasion of privacy as a GPS driving down the highway?" Circuit Judge David Sentelle, sitting as a guest judge, asked about cellphone data.
Assistant U.S. Attorney Roy Altman argued that the cellphone tracking is different because it is not collected in real time and because there is no expectation of privacy, with the records already in the hands of a third party: the cellphone company. People are generally aware their phones can keep track of their movements, Altman said.
"You don't have a reasonable expectation of privacy in that instance," he said.

Whoa Whoa Whoa, stop the clock!

Some stuff for you to read during the Bench & Bar conference today:


Retired Justice John Paul Stevens says marijuana should be legal.

Justice Alito says the LSAT counts for too much.

And Justice Scalia doesn't really get HBO.

Here's a picture of the breakfast with 700+ lawyers:

Robaina tax trial heating up

The blog hasn't really covered this tax trial involving the former mayor and his wife before Judge Ungaro, but it looks like there have been quite a number of interesting moments -- like the couple's previous criminal defense lawyer testifying.  And yesterday, the mayor's wife testified.  From the Herald:

The wife of former Hialeah Mayor Julio Robaina stood by her man Wednesday, taking the witness stand in the couple’s federal tax-evasion trial to say they did not cheat on their tax returns by hiding $2 million in income from the U.S. government.
Raiza Robaina, 40, said she was responsible for her family’s household finances and tax returns, including interacting with a certified public accountant who did their joint tax returns. She said that she and her husband relied on their accountant, Pelayo Vigil, for filing correct and accurate returns from 2005 to 2010 — the period covered in the couple’s conspiracy indictment.
The Robainas’ defense attorney, David Garvin, asked her whether there were mistakes on the couple’s tax returns.
“Yes, but they were just that — mistakes,” she testified.
Who made the mistakes? Garvin asked.
“The accountant that we trusted to give us the correct information,” she responded.
She then blurted out that the whole ordeal has been “upsetting” because when others make mistakes, nothing happens. “But when we make mistakes, we get indicted.”

Read more here: http://www.miamiherald.com/2014/04/23/4076606/robainas-wife-testifies-the-couple.html#storylink=cpy

RIP Myles Malman (UPDATE)

He was a good guy, who most recently tried the B-Girls case in Miami before Judge Scola.

I didn't realize he played baseball at Fairleigh Dickinson University.  From their webpage:

Malman graduated from FDU in 1967 and played baseball for three years. He was very active in the baseball alumni program. In 2010, Malman was presented The Pinnacle, the highest award the University bestows upon its alumni. Pinnacle recipients are chosen on the basis of success or distinction in their chosen fields; significant contributions to society and humanity through public or humanitarian service; and outstanding service to the University, or reflection of the unique character of Fairleigh Dickinson in their lives.

In presenting the award, his longtime friend and colleague Robert H. Silbering said, "You have been a dear friend to FDU over the years. As a former member of FDU's baseball team, you generously support a scholarship established in honor of the late baseball coach Harvey Woods. You also give back your time and energy through lectures and mentoring.

Malman was the managing director of Malman, Malman & Rosenthal in Hollywood, Fla. He specialized in criminal and civil litigation, and maintained an extensive national white-collar criminal practice including securities and health-care fraud.

Malman served as Deputy First Assistant and Special Counsel to the United States Attorney of the Southern District of Florida during his lengthy career as a federal prosecutor, managing a 200-lawyer office. He was co-lead counsel in the successful prosecution of Gen. Manuel Noriega on drug and money-laundering charges. In 1992, he received the Attorney General's Award for Distinguished Service in recognition of his litigation skills. Malman handled the only successful federal Civil Rights Act prosecution in the Southern District of Florida and is the recipient of six Department of Justice Superior Achievement Awards for Outstanding Performance.

Over the years, he led and participated in high-profile civil cases, including class-action litigations against manufacturers of silicone breast implants, tobacco, General Motors pickup trucks and others. He also represented and negotiated contracts and business deals for professional players in the National Hockey League and the National Football League.

Malman served on the faculty of the National Institute of Trial Advocacy at Hofstra University Law School and taught in the Intensive Trial Advocacy Program at Widener University Law School. He lectured in criminal and civil trial practice and Florida criminal procedure for the WestBar Review Course. Malman also appeared on national television as an expert in legal matters, consulted on major Hollywood motion picture projects and testified before
Congress on criminal justice matters.

Malman was born in New York City and served as an Assistant District Attorney for 10 years as well as Senior Trial Counsel and adviser to longtime Manhattan District Attorney Robert M. Morgenthau. In the 1960s, he served in the U.S Army Military Police Corps in Vietnam.

Malman is survived by his wife, Jill, and their two children, Parker and Mallory.

UPDATE -- The Miami Herald has this obit:

Myles Malman may not have been a marathon man, but he sure lived like one.
As an attorney, he tried months-long cases, most notably the drug-trafficking prosecution of Panamanian strongman Manuel Noriega in Miami. For clients, he traveled to New York, Russia and Israel. And as an older father, he stayed in shape on the tennis court to keep up with his young son and daughter.
Malman, a New York native who worked for the city's legendary district attorney, Robert Morgenthau, before moving to South Florida in the 1980s to become a federal prosecutor, died of brain cancer on Sunday at his home in Hollywood.
Before his death at age 67, Malman had lived long enough to see a movie in which he appeared — American Hustle — nominated for a Best Picture Oscar. He got a nonspeaking part after he gave some advice to director David O. Russell, who conferred with Malman about a scene filmed on location in the Boston area.
But it was in the courtroom where Malman made his mark, gaining a reputation as a formidable but fair attorney.
Veteran Miami lawyer Norman Moscowitz praised Malman as an “effective and tenacious advocate” as both a prosecutor and defense attorney.
“He was a decent and honorable person and that always came across in court, which is why jurors liked him so much,” said Moscowitz, who worked with him in the U.S. attorney’s office and later on defense cases.

Justice Scalia issues dissent for a DUI criminal defendant

Yes, Rumpole... Justice Scalia is on the right side again. The case is Navarette v. California.

Here's the syllabus of Justice Thomas' opinion:

A California Highway Patrol officer stopped the pickup truck occupied by petitioners because it matched the description of a vehicle that a 911 caller had recently reported as having run her off the road. As he and a second officer approached the truck, they smelled marijuana.They searched the truck’s bed, found 30 pounds of marijuana, and arrested petitioners. Petitioners moved to suppress the evidence, arguing that the traffic stop violated the Fourth Amendment. Their motion was denied, and they pleaded guilty to transporting marijuana. The California Court of Appeal affirmed, concluding that the officer had reasonable suspicion to conduct an investigative stop.
Held: The traffic stop complied with the Fourth Amendment because,under the totality of the circumstances, the officer had reasonable suspicion that the truck’s driver was intoxicated.

From Justice Scalia's dissent, joined by Ginsburg, Sotomayor, and Kagan (Note that Breyer is again ruling in favor of the government):

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) tha tanonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and
(2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point hisword is as good as his victim’s.
Drunken driving is a serious matter, but so is the loss ofour freedom to come and go as we please without police interference. To prevent and detect murder we do notallow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving. I respectfully dissent.

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."