11th Circuit & SDFLA judicial happenings, including big opinion on cell site data

The Senate will be moving forward with the Georgia 11th Circuit nominees (Pryor & Carnes), but for now, the district nominee of Michael Boggs is stalled.  From HuffPost:

Sen. Patrick Leahy (D-Vt.), chairman of the committee, announced Wednesday that he is adding six of the seven pending nominees for federal court seats in Georgia to this week's agenda.
Georgia's two Republican senators, Saxby Chambliss and Johnny Isakson, "asked that I move forward with the Georgia nominees who were ready for a Committee vote," Leahy said in a statement. "I thank both of them for their willingness to move forward with these important nominations."
Boggs' nomination will remain pending before the committee.
"More time is needed to follow up on his recent testimony before his nomination will be scheduled for a vote," Leahy said.

 Also up for full consideration of the judiciary committee is Robin Rosenberg for our District.

While all of this is going, the 11th Circuit is still issuing opinions.  Here's an opinion of first impression from the court today on cell site data and the Fourth Amendment:

Before MARTIN, DUBINA, and SENTELLE,* Circuit Judges.
SENTELLE, Circuit Judge:
Appellant Quartavius Davis was convicted by a jury on several counts of Hobbs Act robbery, 18 U.S.C. § 1951(b)(1), (3), conspiracy, 18 U.S.C. § 1951(a), and knowing possession of a firearm in furtherance of a crime of violence, 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. The district court entered judgment on the verdict, sentencing Davis to consecutive terms of imprisonment totaling 1,941 months. Davis appeals, assigning several grounds for reversal. His principal argument is that the court admitted location evidence based on stored cell site information obtained by the prosecution without a warrant, in violation of his Fourth Amendment rights. He assigns other grounds of error going to prosecutorial misconduct, evidentiary sufficiency, and sentencing. For the reasons set forth below, we hold that there is no reversible error, although we do find merit in one argument that the sentence was improperly enhanced. We therefore affirm the judgment below in large part, but vacate a sentencing enhancement regarding “brandishing” a firearm.

 Although the reversal on the brandishing is important, the real discussion is regarding the cell site location data, which the Court holds is protected by the Fourth Amendment:

Having determined that the privacy theory of Fourth Amendment protection governs this controversy, we conclude that the appellant correctly asserts that the government’s warrantless gathering of his cell site location information violated his reasonable expectation of privacy. The government argues that the gathering of cell site location information is factually distinguishable from the GPS data at issue in Jones. We agree that it is distinguishable; however, we believe the distinctions operate against the government’s case rather than in favor of it.

Jones, as we noted, involved the movements of the defendant’s automobile on the public streets and highways. Indeed, the district court allowed the defendant’s motion to suppress information obtained when the automobile was not in public places. The circuit opinion and the separate opinions in the Supreme Court concluded that a reasonable expectation of privacy had been established by the aggregation of the points of data, not by the obtaining of individual points. Such a mosaic theory is not necessary to establish the invasion of privacy in the case of cell site location data.

One’s car, when it is not garaged in a private place, is visible to the public, and it is only the aggregation of many instances of the public seeing it that make it particularly invasive of privacy to secure GPS evidence of its location. As the circuit and some justices reasoned, the car owner can reasonably expect that although his individual movements may be observed, there will not be a “tiny constable” hiding in his vehicle to maintain a log of his movements. 132 S. Ct. at 958 n.3 (Alito, J., concurring). In contrast, even on a person’s first visit to a gynecologist, a psychiatrist, a bookie, or a priest, one may assume that the visit is private if it was not conducted in a public way. One’s cell phone, unlike an automobile, can accompany its owner anywhere. Thus, the exposure of the cell site location information can convert what would otherwise be a private event into a public one. When one’s whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts. Therefore, while it may be the case that even in light of the Jones opinion, GPS location information on an automobile would be protected only in the case of aggregated data, even one point of cell site location data can be within a reasonable expectation of privacy. In that sense, cell site data is more like communications data than it is like GPS information. That is, it is private in nature rather than being public data that warrants privacy protection only when its collection creates a sufficient mosaic to expose that which would otherwise be private.

The United States further argues that cell site location information is less protected than GPS data because it is less precise. We are not sure why this should be significant. We do not doubt that there may be a difference in precision, but that is not to say that the difference in precision has constitutional significance. While it is perhaps possible that information could be sufficiently vague as to escape the zone of reasonable expectation of privacy, that does not appear to be the case here. The prosecutor at trial stressed how the cell phone use of the defendant established that he was near each of six crime scenes. While committing a crime is certainly not within a legitimate expectation of privacy, if the cell site location data could place him near those scenes, it could place him near any other scene. There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute. Again, we do not see the factual distinction as taking Davis’s location outside his expectation of privacy. That information obtained by an invasion of privacy may not be entirely precise does not change the calculus as to whether obtaining it was in fact an invasion of privacy.

Of course there's no reversal on this issue because it is governed by the good faith exception.... 
 

"Pull your pants up!"

That's what a sign in Judge Wayne Maura's courtroom says.  And for violating the too low pants rule, one defendant was fined $50. 

Here's the Morning Call:

Maura recounted the incident that prompted the citation, saying the waistband of Dennis' pants was "completely below his buttocks," leaving only a "very thin layer" of fabric between his posterior and the courtroom bench.
..."I think Mr. Dennis is old enough to understand when he's in a public courtroom, there's a reason he was told to leave and fix the way he's dressed," Maura said.
Maura said he routinely sees people in court wearing low-slung pants, calling them a sign of disrespect for the courts and taxpayers.
After the hearing, Makoul called the judge's ruling "disappointing" and said she likely will appeal the sentence after she speaks to Dennis.
In several places in Maura's courtroom and office, a sign is displayed that has a cartoon drawing showing the backsides of three people all wearing pants well below waist level with their underwear exposed. The sign says, "Pull your pants up!"
Maura's Bethlehem office also includes a second sign warning that visitors may not appear in the courtroom or be waited on by staff if they are wearing baggy pants with "exposed undergarments" or "excessive exposure of any private body areas."
Maura declined to comment after Monday's hearing. When asked about the signs in his courtroom, he would only say "they speak for themselves."

Below is the offensive sign at issue:

“There is very little heart and soul in Judge Breyer’s opinions. Quite clearly, he is a rather cold fish.”

Yikes, that's Ian Gershengorn, now deputy Solicitor General, who helped then President Bill Clinton vet then 1st Circuit Judge Breyer.  From the WSJ:

“Nothing in Judge Breyer’s opinions suggests that he would be a great Supreme Court justice,” Mr. Gershengorn, then fresh out of Harvard Law School, and another attorney, Tom Perrelli, wrote in a June 1993 memo to White House lawyer Joel Klein. “There is very little heart and soul in Judge Breyer’s opinions. Quite clearly, he is a rather cold fish.”
The memo was released Friday in the fifth batch of documents from the Clinton Presidential Library, along with 2,000 pages of material that had been previously withheld for legal reasons that no longer apply.
The memo assesses then-Judge Breyer’s opinions in the areas of civil rights, privacy and national security law. It finds it “most remarkable that virtually none” of his rulings turned on substantive issues, instead being decided on administrative or procedural grounds.
“Nonetheless, the dearth of commentary about the substantive issues at stake indicates that Judge Breyer has no real interest in the area of civil rights; it is all but impossible to imagine him being an innovator on the Supreme Court on these issues.,” the memo said.
His decisions are “often reasonable and perhaps legally correct, but there is such a lack of vigor in his jurisprudence that one suspects he does not have (or refuses to utilize) any innate sense of justice,” the memo went on.
“Conservatives will be thrilled if Judge Breyer is appointed,” while “liberals would be very upset at this selection,” the memo concludes
“Everyone has regrets from his 20s,” Mr. Gershengorn said Friday. “Suffice to say, I have the highest respect for Justice Breyer and believe he has proven to be a terrific justice. As Earl Weaver once said, ‘It is what you learn after you know it all that counts.’”
His co-author, Mr. Perrelli, said the 1993 memo shows “why you don’t have second-year associates writing evaluations of potential Supreme Court nominees.” Mr. Perrelli spent three years as associate attorney general in the Obama administration, and now is back in at his old law firm, Jenner & Block.
Justice Breyer couldn’t be reached for comment.
Mr. Perrelli said that in 1993 he was a young lawyer at Jenner, where Mr. Gershengorn worked with him as a summer associate. The two were among a group of private attorneys recruited by the Clinton White House to assess candidates for the high court, he said.
President Clinton passed over Justice Breyer for a 1993 vacancy, instead selecting another federal appeals judge, Ruth Bader Ginsburg, for the slot. The following year, however, Mr. Clinton gave him the nod when another court seat came open.

You know who is not a cold fish?  Lebron.  Go Heat.

Go Heat & other SDFLA News & Notes

1.  Lewis Tein and Paul Calli are dominating the proceedings before Judge Cooke.  The latest victory -- disqualification of the Tribe's lawyer -- is reported in the DBR:

She said Cortiñas as Lehtinen's former law partner would be familiar with all of the small firm's business with the tribe and agreed with Lehtinen that it amounted to an "unfair informational advantage."She said this perceived conflict was reason enough to disqualify Cortiñas. "How does it look for those on the outside who are not lawyers?" Cooke asked. "How do we police ourselves?"Cooke ruled Cortiñas did not violate ethics rules by representing the tribe after hearing similar issues while an appellate judge. Though she added his appearance "disturbs me."As a result, she ruled the Gunster firm was not disqualified from representing the tribe or its attorneys at the evidentiary hearing on sanctions.Cortiñas told Cooke before his disqualification that the tribe's former attorneys were afraid of his legal prowess. "The reason they really don't want me here is I know fraud cases very well," Cortiñas said.Cooke said the comment somewhat indicated the tribe may have had incompetent counsel in Roman and his associates.

2.  Check out this order from the 11th. The defendant's lawyer challenged (on rehearing) the fact that the panel had two visiting district judges.  The same panel consisting of only one active 11th Circuit judge said no problem.  Well, the court is getting Judge Rosenbaum now.  I wonder if the order allowing two visiting judges still applies.


3.  Meantime, Judge Rosenbaum's elevation has caused an emergency on the district court....

How's it looking for the new Georgia judges?

Not so good.  The Democrats might block Obama's deal.  From District Chronicles:

Democrats and civil rights advocates continue to express concerns over two of President Obama’s federal judicial nominees for Georgia’s northern district, who have suspect civil rights backgrounds.

 In a package deal with Republican United States Sens. Saxby Chambliss and Johnny Isakson from Georgia, President Obama nominated Julie Carnes and Jill A. Pryor to the United States Eleventh Circuit Court, Leslie Abrams to the United States Court of the Middle District of Georgia, and Michael Boggs, Mark Cohen, Leigh May, and Eleanor Ross to the Court of the United States Northern District of Georgia.

 If confirmed, Abrams and Ross would become the first Black women to serve lifetime appointments as federal judges in Georgia.

 However, Democrats and some progressive groups object to the nominations of Boggs and Cohen.

 The United States Senate Judiciary Committee held a hearing for the nominees where Democratic senators grilled Boggs, who is currently a judge on Georgia’s appeals court, over his voting record while he served in the Georgia state legislature.

 When questioned about his votes against removing the Confederate battle emblem from the Georgia state flag, Boggs said that although he found the Confederate symbol personally offensive, his constituents wanted the opportunity to vote on any changes to the state flag.

 Boggs also voted for legislation requiring doctors to list how often they provided abortion services. When senators questioned him about the public safety concerns associated with publishing such a list following decades of violence against doctors who performed abortions, Boggs said that he was unaware of that history at the time of the vote.

 A day before the hearing, Rep. David Scott (D-Ga.) said on the Tom Joyner Morning Show, “Here you have the architect and the attorney that defended photo ID voter suppression laws in Georgia, the very same laws the president is fighting all across the country” nominated to the federal bench in Atlanta where most of the Black people are.

 To have this being done by the first African-American president is shameful, it’s painful, and it hurts deeply.”

 Scott continued: “The president should have stood up to those Republicans and said, ‘No, I can’t do this to my people. You wouldn’t do it to George Bush. You wouldn’t have done it to Bill Clinton. Why are you doing it to me?’”

 When white students sued the University of Georgia over the school’s freshman admissions policy that used race as factor, Cohen scored a court victory in 2001 for affirmative action proponents who supported the university’s program, according to Brooks.

 Nearly a decade later, then-Georgia state Attorney General Thurbert Baker, asked Cohen to defend Georgia’s photo identification law for in-person voting that many voter’s rights advocates say discriminates against Blacks and the poor. Brooks said it was a move that likely provided Baker, who is Black, political cover.

 Brooks called Boggs and Cohen friends and said that he had no reason to oppose their nominations.

 “This isn’t the perfect deal, but I trust the president,” said Brooks. “If [the president] had a different hand of cards, the package would look different, but he’s doing the best that he can do under these circumstances.”

 Mary Frances Berry, former chair of the U.S. Commission on Civil Rights, says that President Obama held his ground and nominated Boggs and Cohen, assuming that the civil rights groups and Democrats in the Senate would go along with his decision.

 “The problem with that is that the advocacy groups believe that the president should fight harder to get the nominees that he wants. The president has a lot of power to make horse trades with people on things other than appointments,” said Berry. “There are always things that Senators want.

 Obama made the deal but some think the price is too high, said Berry.

Stay out of Brevard county!

This story is insane:

A judge allegedly struck a public defender Monday after a verbal confrontation in a Brevard County courtroom.

Judge John Murphy is accused of hitting Andrew Weinstock, according to the public defender's office.

During a court session, Murphy asked Weinstock to waive his client's right to a speedy trial, but Weinstock refused, the public defender's office said.

The confrontation leading up to the fight was captured on video.

"If I had a rock, I would throw it at you right now," Murphy said. "Stop pissing me off. Just sit down. I'll take care of it. I don't need your help. Sit down."

"I'm the public defender, I have the right to be here and I have a right to stand and represent my clients," Weinstock said.

"Sit down," Murphy said. "If you want to fight, let's go out back and I'll just beat your ass."

"Let's go right now," Weinstock said.

The two went into a hallway and Murphy allegedly grabbed Weinstock by the collar and started hitting him, according to the public defender's office.

Although off camera, the two can still be heard yelling at each other, with one of them saying, "You want to (expletive) with me?"

A Brevard County sheriff’s deputy stopped the fight.

The participants refused to press charges, and no arrests were made.

Video also shows the judge being applauded as he returned to the courtroom.

It's not known if the judge or public defender will face any disciplinary action.

Meantime, let's go HEAT:

Feds can't prosecute "unremarkable local offense"

That's what the Supreme Court said today in a very interesting opinion, Bond v. United States.  From Chief Justice Roberts' majority:

The horrors of chemical warfare were vividly captured by John Singer Sargent in his 1919 painting Gassed. The nearly life-sized work depicts two lines of soldiers, blinded by mustard gas, clinging single file to orderlies guiding them to an improvised aid station. There they would receive little treatment and no relief; many suffered for weeks only to have the gas claim their lives. The soldiers were shown staggering through piles of comrades too seriously burned to even join the procession.
     The painting reflects the devastation that Sargent witnessed in the aftermath of the Second Battle of Arras during World War I. That battle and others like it led to an overwhelming consensus in the international community that toxic chemicals should never again be used as weapons against human beings. Today that objective is reflected in the international Convention on Chemical Weapons, which has been ratified or acceded to by 190 countries. The United States, pursuant to the Federal Government's constitutionally enumerated power to make treaties, ratified the treaty in 1997. To fulfill the United States' obligations under the Convention, Congress en-
acted the Chemical Weapons Convention Implementation Act of 1998. The Act makes it a federal crime for a person to use or possess any chemical weapon, and it punishes violators with severe penalties. It is a statute that, like the Convention it implements, deals with crimes of deadly seriousness.
     The question presented by this case is whether the Implementation Act also reaches a purely local crime: an amateur attempt by a jilted wife to injure her husband's lover, which ended up causing only a minor thumb burn readily treated by rinsing with water. Because our constitutional structure leaves local criminal activity primarily to the States, we have generally declined to read federal law as intruding on that responsibility, unless Congress has clearly indicated that the law should have such reach. The Chemical Weapons Convention Implementation Act contains no such clear indication, and we accordingly conclude that it does not cover the unremarkable local offense at issue here.

ScotusBlog has this summary:

The Court appeared to bring to an end a case that even the Justices acknowledged was a “curious” one:  a federal criminal prosecution, with a potential life sentence, of a Pennsylvania woman because she sought revenge by spreading poison chemicals on surfaces that her husband’s paramour would touch — a door knob, a car door handle, the mailbox.  The other woman did touch one of those surfaces, and got a minor burn on a thumb – dealt with by rinsing her hand with water.
Although the prosecuted woman, Carol Anne Bond, may have violated a number of laws in her state, she actually was charged under state law only for making harassing telephone calls and letters, and state officials refused to accuse her of assault.  She had pleaded guilty to the federal crime of using a “chemical weapon,” on condition that she could later challenge the prosecution. She was convicted under the 1998 law, but Monday’s decision wiped out that result because the law did not even apply to what she did, according to the Court majority.
Aside from its own unusual facts, the case had attracted wide notice because it seemed to pose the ultimate question of just how far Congress could go, in regulating activity entirely inside the U.S., when it was enacting a law to carry out a global obligation that the federal government had assumed under a treaty.  In particular, the case raised a question about the continuing validity of a 1920 precedent, Missouri v. Holland, that had seemed to endorse sweeping congressional power to implement treaty promises.
But Chief Justice John G. Roberts, Jr., writing for himself and five other Justices, invoked the traditional practice of avoiding constitutional issues if not necessary to a decision, and chose to deal only with the question of whether Congress had meant to pass a law that was so nearly limitless that it would reach “a purely local crime” growing out of “romantic jealousy.”
‘The global need to prevent chemical warfare,” the Chief Justice wrote, “does not require the federal government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.   There is no reason to suppose that Congress — in implementing the Convention on Chemical Weapons — thought otherwise.”
Among other reasons that the majority felt driven to read the 1998 law narrowly was its view that, as applied to Carol Anne Bond’s case, the law meant a deep intrusion into the traditional authority of states to enforce criminal laws within their own jurisdictions.  The decision did not in any way seek to absolve her of criminal behavior, but stressed that this was a matter that state law could handle.

Your moment of Zen for Monday morning