Judge Rosenbaum Update -- Full Senate Vote Likely Within the Week

Judge Robin Rosenbaum is FINALLY nearing a full Senate vote.  Senate Majority Harry Reid laid the groundwork today by calling for a cloture vote on Judge Rosenbaum's nomination to occur no later than this Thursday. The timing of the actual final vote is unclear as Republicans can demand up to 30 hours of post-cloture delay. The Senate Judiciary Committee unanimously approved Judge Rosenbaum’s nomination in March and both Florida Senators are supporting her nomination.  Her confirmation cannot come soon enough.  Normally a court of twelve, the 11th Circuit currently only has eight full-time judges -- a fallout of the judicial confirmation gridlock.

Happy Cinco De Mayo

Happy Cinco de Mayo (aka DUI lawyer day)!  The Amigos are excited to be guest blogging this week (and looking forward to an early margarita happy hour on DOM’s expense card).  As we commemorate the Mexican army’s unlikely victory over the French at the Battle of Puebla in 1862 (more here), you might be surprised to learn who (Mexican drug cartels?) is behind the rising cost of a quality lime.  From CNN.

Cartel members have demanded a certain percentage of orchard owners' lime shipments . . . .  The violence in the region and threats from criminal organizations has made it all but impossible for the U.S. Food and Drug Administration to certify the limes that are emerging from Mexico are being grown in a sanitary way.

The fallout has jacked up prices for U.S. and Mexican consumers and businesses accustomed to celebrating Cinco de Mayo with limes in their beers, margaritas and mojitos.  A case of limes now goes for close to $100, up substantially from reports of $15 to $20 last year. 

Stay thirsty my friends  . . .

In other news, some Scalia clerk needs a stiff drink right about now.  Last week, Nino penned one of his trademark blistering dissents denouncing regulatory overreach, only to have overreached himself by misstating the facts of a prior unanimous Supreme Court decision -- that he himself authored.  Oops. The blogosphere has been having fun with this one.    The latest here.

   

Guest Bloggers

Please join me in welcoming Jeff Marcus, Jeff Neiman, and Dan Rashbaum as my guest bloggers next week.  The three amigos just started their own law firm MNR.

Republicans hold over vote for Judges Bloom & Gayles

Ho hum... more of the same... and for no reason.  Just because:



Sen. Leahy: “Florida nominees backed by Senators Rubio and Nelson to fill judicial emergency vacancies but I understand Republicans want to hold them over, as is their right … I hope we can vote them out next week; I don’t think there is any controversy about any of them. We should be able to get them confirmed before the recess.”



People for the American Way aren't happy with Sen. Rubio on this.


I wish voters knew more about this wasteful and silly process. 


Good luck to Judges Bloom and Gayles next week!


HT: Glenn Sugameli

Bethany Bandstra selected for inaugural Stuart A. Markus Award

Thank you to the many friends and readers of the blog who have donated to the scholarship that we have set up in my dad's name at the University of Miami School of Law. The Stuart A. Markus Award recognizes an individual student each year for outstanding work in one of the School of Law’s in-house clinics. The winner is selected by vote of the in-house, live-client clinic directors.

Bethany Bandstra, an outstanding member of the 2L class, is the inaugural recipient of the Markus Award. Bethany has done superlative work in Prof. JoNel Newman's Health Rights Clinic. On the first day of school last fall, Bethany was assigned a difficult hearing before a federal administrative law judge that was scheduled for early September. She immediately and without once complaining immersed herself in the client's factual circumstances and the law relevant to the case. She was an excellent advocate at the hearing, presenting both her client's testimony and that of a psychiatric expert witness. She has, throughout her tenure in the Clinic this year, been handled the most difficult cases and clients with great alacrity. This spring she has completed two extremely well researched and well written appellate briefs while continuing to represent all her individual clients whose cases are in a variety of procedural postures. She has also taken a leadership role in one of the Clinic's three policy advocacy projects this spring, working on an access to justice initiative. Bethany is so accomplished that she also served as a mentor and expert to many of her classmates. 

Stuart A. Markus (BED ’54, J.D. ‘57) practiced law in Miami for over 50 years.  Throughout his career, Stuart fought hard for his clients in every area of the law.  He never turned away a person in need, and helped countless people with practical, hands-on advice and representation that went far above and beyond the norm.  The Markus Award is given annually to a student who shares that caring spirit, and who has made a meaningful difference in someone’s life – which is something Stuart did every day.

Congratulations to Bethany!

 

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.

Not Guilty across the board for former Hialeah Mayor Julio Robaina and wife on tax charges

Wow, a big not guilty today before Judge Ungaro on a lengthy tax trial.  From the AP:

Former Hialeah Mayor Julio Robaina and his wife were acquitted Tuesday of all charges following a federal trial on accusations they filed false tax returns and lied to federal agents.

Jurors reached the not guilty verdicts for Julio and Raiza Robaina after about six hours of deliberations.

Prosecutors claimed the couple failed to report about $2 million in income between 2005 and 2010. Some of it was cash payments on high-interest personal loans they made to friends and associates, including a convicted Ponzi schemer.

Testifying for the couple, Raiza Robaina blamed many of the problems on mistakes by the couple's accountant. She insisted they did not submit false tax returns or lie to investigators, and their lawyer said the federal case rested heavily on testimony of the jewelry investment Ponzi scheme operator, Luis Felipe Perez.

It should have been handled through an Internal Revenue Service audit rather than a criminal indictment, defense attorney David Garvin said in closing arguments.

"Each and every one of these issues should have been in the civil audit that never occurred," he said.

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.