Monster 11th Circuit opinion decided by no active 11th Circuit judges

Judges Sentelle (from the DC Circuit) and Fay (senior) are in the majority, reversing Judge Marra on the big Chiquita banana case. The only active judge, Martin, dissents. Here's the opinion. The AP has the background on the case:

A panel of the 11th U.S. Circuit Court of Appeals ruled 2-1 that federal courts have no jurisdiction over the Colombian claims. The lawsuits accused Chiquita of assisting in the killings by paying $1.7 million to a violent right-wing paramilitary group known as the AUC, the Spanish acronym for United Self-Defense Forces of Colombia.

Chiquita, based in Charlotte, North Carolina, formerly operated large banana plantations in Colombia through its Banadex subsidiary. Chiquita insists it was the victim of extortion and was forced to pay the AUC or face violence directed at its employees and assets in Colombia.

The majority cited a 2013 U.S. Supreme Court ruling known as Kiobel vs. Royal Dutch Petroleum that imposed limits on attempts by foreigners to use U.S. courts to seek damages against corporations for human rights abuses abroad. Chiquita had insisted that ruling meant the Colombians' lawsuit had to be tossed out.

"We are gratified that the U.S. Court of Appeals has now agreed with us and the claims have been dismissed," said Chiquita spokesman Ed Loyd in an email statement. "The decision reinforces what Chiquita has maintained from the beginning - that Chiquita is not responsible for the tragic violence that has plagued Colombia."

Attorneys for the estimated 4,000 Colombians could still ask the full 11th Circuit or the Supreme Court to review the case, but otherwise their only option would be to an uphill effort to seek damages through Colombian courts.

"It's another tragedy for the victims of the war, who have already been through so much," said Washington attorney Paul Wolf, who represents a large number of Colombian plaintiffs. "There is nowhere else they can go for justice."

The AUC was formed in 1997 to unite several right-wing militias to battle the leftist guerrilla group known as FARC, Spanish for Revolutionary Armed Forces of Colombia. The resulting campaign killed some 50,000 people, mostly civilians, according to Colombian prosecutors. Both the AUC and FARC are listed as terrorist organizations by the U.S.

Chiquita in 2007 pleaded guilty to U.S. criminal charges stemming from the payments and paid a $25 million fine to the Justice Department.

The Colombian lawsuits followed and were consolidated in 2008 before a West Palm Beach federal judge, who in 2011 rejected Chiquita's attempt to get them dismissed. But U.S. Judge Kenneth Marra also agreed to let the company take the cases to the appeals court before they went any further.

Writing for the majority, U.S. Circuit Judge David Sentelle said Congress would have to update a law dating to 1789 - known as the Alien Tort Statute, or ATS - for the Colombians to sue Chiquita in the U.S.

"There is no other statute. There is no jurisdiction," Sentelle wrote.

U.S. Circuit Judge Beverly Martin dissented, noting that Chiquita's decisions to pay the AUC were made at company headquarters on U.S. soil - enough to make the company liable.

Prosecutors reading lawyer-client emails

The New York Times had this front page article today about prosecutors reading emails between lawyers and their clients without a warrant or any judicial oversight.  For the past few years now, inmates have had access to an email system called Corrlinks. If they don't violate prison rules, they can email with family and friends, and also importantly, their lawyers.  There is a general warning that the email isn't private and may be monitored, but it's just outrageous that prosecutors are snooping on attorney-client privileged emails without even getting a warrant.

From the article:

While prosecutors say there are other ways for defense lawyers to communicate with clients, defense lawyers say those are absurdly inefficient.

A scheduled visit to see Syed Imran Ahmed, a surgeon accused of Medicare fraud who is being held at the Metropolitan Detention Center in Sunset Park, Brooklyn, took lawyers five hours, according to court documents filed by one of Dr. Ahmed’s lawyers, Morris J. Fodeman. The trip included travel time from Manhattan and waiting for jail personnel to retrieve Dr. Ahmed.

Getting confidential postal mail to inmates takes up to two weeks, Mr. Fodeman wrote. The detention center, like all federal jails is supposed to allow inmates or lawyers to arrange unmonitored phone calls. But a paralegal spent four days and left eight messages requesting such a call and got nowhere, Mr. Fodeman wrote.

Continue reading the main storyContinue reading the main s

Dr. Ahmed’s case includes 50,000 pages of documents so far, including “Medicare claim data and patient information that we need Dr. Ahmed’s assistance to understand,” Mr. Fodeman wrote. Especially since he is acting as a public defender in this case — meaning the government pays him at $125 per hour — Mr. Fodeman argued that having to arrange an in-person visit or unmonitored phone call for every small question on the case was a waste of money and time.

In Brooklyn and across the country, the issue is being decided case by case. A spokesman for the Bureau of Prisons declined to comment, citing the continuing litigation.

Robin Rosenberg confirmed

Congratulations to Judge Rosenberg who was unanimously confirmed today!

President Obama has really reshaped this District's bench:

Judges Williams, Scola, Gayles, Bloom and now Rosenberg.

Quick news and notes

1.  Julie Carnes was confirmed today to serve on the 11th Circuit.  The vote was 94-0.  We now have two Carneses on the 11th Circuit.  And when Jill Pryor gets confirmed, that will be two Pryors.

2.  But Robin Rosenberg is next up for a vote -- and this is for the District Bench here.  Robin Rosenbaum already got confirmed for the 11th Circuit and actually heard oral argument already a few weeks ago.  But this Robin (Rosenberg, not Rosenbaum) will likely be sitting in Ft. Pierce.

3,  Another 5 year sentence in the Rothstein case -- this time to former Broward Sherrif's Lt. David Benjamin.  Judge Cohn rejected his pleas for leniency and gave him the statutory max (from Paula McMahon's Sun-Sentinel article):

He was handcuffed behind his back and taken into custody in the courtroom — about three feet from Marcy Romeo, a woman whose illegal arrest on trumped-up drug charges he ordered in 2009.

"I think it's important that Ms. Romeo see the defendant taken into custody," U.S. District Judge James Cohn said as he ordered that Benjamin begin serving his prison term immediately.

"Mr. Benjamin, while wearing the cloak of BSO authority, engineered the arrest and incarceration of an innocent citizen," the judge said. "This was done purely for financial gain. This conduct is deplorable — it is unconscionable."

Romeo gave a powerful victim impact statement in federal court in Fort Lauderdale, turning and looking Benjamin in the eye as she spoke.

"I've never met you and I'm 'that bitch' you told [Jeff Poole] to arrest," Romeo told Benjamin, quoting former deputy Poole's account of what Benjamin told him to do.

"Well, my name's Marcy and I'm a mother and I'm a daughter and I'm an aunt and I'm a sister, I'm a cousin — I'm a human being," she said. Her voice shook a little with emotion, but she remained calm.

Benjamin, who was clearly flustered by her direct comments, attempted to apologize to her while she was speaking, but his lawyer, Mike Dutko, told him to let her speak.

Romeo said she has been diagnosed with post-traumatic stress disorder because of what happened to her. She was arrested, strip-searched a number of times and detained at the Broward County Jail for about 18 hours.

"It felt good," Romeo said later about seeing Benjamin handcuffed and sent to prison.

He spent his first night behind bars at the Broward County Main Jail in downtown Fort Lauderdale, records show.

•••

Benjamin, who now has a thick beard and longer hair than when he worked at the Sheriff's Office, apologized personally to Romeo in court and expressed regrets to everyone he harmed.

"First of all, I'd like to apologize to Ms. Romeo," Benjamin said. "All I can do is apologize for my actions."

He denied that he ever called her "that bitch," but acknowledged the depth of his criminal conduct.

"My actions were absolutely horrible," Benjamin said. "I take full responsibility. I've taken full responsibility from day one. All I can do is apologize."

He said Benjamin has done everything in his power to cooperate with investigators who are still scrutinizing the enormous amount of misconduct by dozens of people linked to Rothstein.

Prosecutor Jeffrey Kaplan told the judge that Rothstein tried to corrupt and co-opt several law enforcement officers and "in the case of defendant Benjamin, he was successful."

Is our government be manufacturing crime?

One magistrate in Nevada has had enough and has recommended dismissal of an ATF case with outrageous facts.  Think Progress has the details:

An undercover agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) infiltrated Jeremy Halgat’s life for three years before he lured him into drug crimes “designed and engineered by the government.” He had Halgat’s home searched and found nothing. He tried to get Halgat to buy illegal guns and Halgat recited federal gun law. Finally, after many rejected requests and a heavy hand by the agent, ATF Task Force Officer Agostino Brancato got Halgat to play a role in a cocaine sale, in pleas that exploited their false friendship, and Brancato’s false claims of monetary desperation.A federal magistrate judge recommended this week that criminal charges against Halgat carrying a term of up to 20 years in prison be dismissed. 

“[T]he government’s investigation deployed techniques that generated a wholly new crime for the sake of pressing criminal charges against Halgat,” Judge Cam Ferenbach wrote.Brancato was investigating Halgat because he was in a suspected motorcycle gang that was the target of a mission known as “Operation Pure Luck.” But Halgat had no criminal record and appeared committed to abiding by the law. Although he was an occasional cocaine user, he stated many times that he had long ago disavowed cocaine trafficking. When Brancato repeatedly asked him over the course of five weeks to buy cocaine, invoking language that they were “familia” and monetary desperation, Halgat repeatedly refused, stating that “I had a wakeup call one day” and on another occasion, “I can’t fucking help. I can’t help.” 

Finally, Brancato got Halgat to play a minor role by asking him to introduce him to a friend he knew to be dealer, bringing Halgat along and coaxing Halgat to participate in the transaction Brancato had already scripted. He then falsified records about that first transaction, the court found, and a week later, got him to participate in an even bigger ruse. Brancato asked Halgat to come along to a fake major drug transaction set up to involve a drug courier for a Mexican cartel, an airplane rented by the government, and ten kilograms of cocaine from ATF’s own contraband supply. Brancato told Halgat he needed Halgat to “watch his back” and asked him to bring his guns to protect him. Halgat showed up, and he later accepted $1,000 for risking his life.  

ATF used all of this to file felony drug trafficking charges against Halgat. But Judge Ferenbech recommended this week that the charges be dropped, questioning how ATF has in any way furthered the two punishment goals — rehabilitation and deterrence — by actually convincing Halgat to relapse and return to criminal activity he had disavowed.

In the biggest trial in the SDFLA right now, the Miami Herald raises covers the defense's strategy to argue that Michael Pizzi was also targeted:

Shohat repeatedly revealed through his line of questioning that Pizzi was interested in the federal grant program only if it would generate money and jobs for Miami Lakes and Medley and would not cost those towns any administrative costs.He pointed out that after Pizzi met with the two undercover agents and Kesti for dinner at the upscale Miami Beach steakhouse, Smith & Wollensky, on Feb. 29, 2012, the mayor got upset because the agents used such blunt language about the nature of the scam for the first time. 

As the undercover agents sat in a car with Pizzi in the parking lot, Durkacz told the mayor: “I just want to be clear with you mayor, so that there are not any hard feelings down the road. But, you understand a lot of this s--- is just bogus. What we are doing here is just grabbing money.”Pizzi’s recorded response: “I can’t do it if it’s just bogus. That I can’t do.” 

Later, Pizzi emailed Kesti, the lobbyist and FBI informant, to call him. In a recorded phone conversation the next day, the mayor told Kesti that he thought the undercover agents’ language was “over the top” and he wanted to “hold off” on going forward with the federal grant application in Medley.Kesti tried to vouch for the undercover agents, saying he had worked with Durkacz in the past on other grant deals. He also said they just wanted to “share the wealth” with him.

But the mayor warned Kesti: “In our position, you have to be f---ing careful because people might get the wrong impression. … We’re the good guys.”

But the prosecution is arguing that it didn't have to push:

After winning his second term, Pizzi allegedly accepted these cash bribes:• $1,000 paid by Candia at a Starbucks in Miami Lakes, for the Medley deal. The cash was allegedly tucked inside a newspaper.• $2,000 paid by the two FBI undercover agents at the billiard hall, for the Miami Lakes grant application.• $3,000 paid by Candia in the storage closet of Pizzi's town attorney office in Medley, for the Miami Lakes deal.Just before making the final payoff last July, Candia was confronted by FBI agents about the alleged scheme. He agreed to cooperate by wearing a wire for the last sting against the mayor.Candia, a critical witness, is expected to testify later this month.

Read moere: http://www.miamiherald.com/2014/07/19/4244739/alleged-bribe-at-miami-lakes-pool.html#storylink=cpy

Read more here: http://www.miamiherald.com/2014/07/19/4244739/alleged-bribe-at-miami-lakes-pool.html#storylink=cpy

Judge Kopf comments on Lebron leaving for Cleveland

You thought his STFU post was noteworthy?  Well, the good judge has something to say about LBJ bolting Miami, and he did it on this blog.  The blog posted Judge Kopf's decision to continue blogging, and an anonymous poster asked about Lebron's decision: "What does Judge Kopf say about Lebron leaving for Cleveland?" 


Judge Kopf answered (which he often times does on his blog to comments, which is really cool):

Anon.,

I was born in Toledo, and I grew up in NW Ohio for a part of my childhood. What do I say about Lebron leaving for Cleveland? You have got to be kidding.

I truly love Miami. I spent part of my growing up years in the '50s on the other side of Florida in a magical place called Pass-a-Grille. I connected with my absent grandfather on my mother's side in Miami. I had never met him before. I will never forget that experience.

All of that said, Lebron 's heart is in Cleveland, and I'm glad he followed it.

All the best.

RGK

Thanks for posting here Judge Kopf.  The blogosphere is better off for your participation!

Cloture filed on Julie Carnes and Robin Rosenberg (UPDATED)

Last night Senator Reid filed cloture on Carnes (candidate for the 11th) and Rosenberg (candidate for the SDFLA).  Glenn Sugameli tells me that this means a final vote on these two judges is likely to occur early next week.  (Note that no cloture filed on Pryor or Boggs).

UPDATE -- The full Senate vote for Carnes will be Monday and then the District Judges on Tuesday.  Also my statement above re Boggs is a bit off.  He has not yet been voted  out of committee.

Some fireworks in an 11th Circuit case

More specifically, a death penalty case.  Judge Wilson's opinion (joined by Judge Martin) is here, and he frames the issues:

Derrick Anthony DeBruce, an inmate on Alabama’s death row, appeals the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 challenging his death sentence. DeBruce contends that he received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution in both the guilt and the penalty phases of his capital murder trial.
DeBruce was convicted of fatally shooting a customer during the robbery of an AutoZone store which he committed with five other men.1 DeBruce argues that his retained trial attorney, Erskine Mathis, was constitutionally ineffective in failing to cross-examine state witness LuJuan McCants, a co-participant in the robbery who identified DeBruce as the shooter at trial, with McCants’s earlier allegedly contradictory statements. He also argues that Mathis was ineffective in failing to investigate and present evidence about DeBruce’s mental capacity and background during the penalty phase of his trial.

Judge Tjoflat dissents:

Derrick DeBruce’s lawyers may or may not have been ineffective. I don’t know, and my colleagues don’t either. We can’t know—despite two decades of litigation in state and federal court—because DeBruce failed to develop a record of what his attorneys did (or did not do) in preparation for the penalty phase1 of his capital murder trial. Without a thorough record, it is impossible for DeBruce to overcome the “strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance,” Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984), and impossible for this court to say—as it must to grant relief under § 2254—that the State court’s application of Strickland was “objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409, 120 S. Ct. 1495, 1521, 146 L. Ed. 2d 389 (2000).
***
But now our court, evidently possessed of special insight, reverses and grants habeas relief. My colleagues do so by inventing a theory of the case that is both factually unsupported and facially implausible: that DeBruce’s seasoned capital-defense lawyers walked into the penalty phase of trial without knowing anything about the man they were defending. That claim would be dubious standing alone, but here it must overcome the “doubly deferential” standard of review federal courts apply when Strickland and AEDPA operate in tandem. Yarborough v. Gentry, 540 U.S. 1, 6, 124 S. Ct. 1, 4, 157 L. Ed. 2d 1 (2003). To grant relief under this demanding standard, the majority needs unambiguous evidence that DeBruce’s attorneys were incompetent. There is no such evidence, so instead the majority embellishes the record, disregards AEDPA, and succumbs to the “all too tempting” impulse “for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission . . . was unreasonable.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

 Judge Martin concurs because she: "feel[s] [she] must respond to the dissenting opinion, and specifically Judge Tjoflat’s repeated statements that Judge Wilson and I 'invent[ed] some facts,' 'embellish[ed] the record,' exhibited a 'lackadaisical relationship with the evidence,' and 'disregard[ed] AEDPA' in deciding this case."

The whole concurrence is worth a read (I left out the footnotes):

 After thorough consideration of this difficult case, Judge Wilson and I have come to the view that Derrick Anthony DeBruce is entitled to habeas relief. This is quite a serious thing, as Mr. DeBruce has been sentenced to death by the State of Alabama. The federal statutory scheme put in place by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was intended to, and does give great deference to the judgment of a State court decision that adjudicated a federal claim on the merits. See 28 U.S.C. § 2254(d). As it should. “AEDPA recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights.” Burt v. Titlow, ___ U.S. ___, ___, 134 S. Ct. 10, 15 (2013). At the same time, the Supreme Court has admonished federal judges that, “[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041 (2003).

None of the three judges on this panel takes this case lightly. On the one hand, Mr. DeBruce was convicted of killing an innocent man named Doug Battle, who did nothing more than happen by the AutoZone Store in Talladega, Alabama on August 16, 1991. On the other hand, Mr. DeBruce is himself set to die as a result his conviction for killing Mr. Battle. None of the cases involving inmates who are sentenced to death are easy, and Mr. DeBruce’s case is no exception. It was filed in our court about three and one-half years ago on April 6, 2011. Four judges of our court have considered the case during the time it has been pending here. It came from the Northern District of Alabama, where it was filed on September 7, 2004, and stayed pending for more than six years.

I write separately because I feel I must respond to the dissenting opinion, and specifically Judge Tjoflat’s repeated statements that Judge Wilson and I “invent[ed] some facts,” “embellish[ed] the record,” exhibited a “lackadaisical relationship with the evidence,” and “disregard[ed] AEDPA” in deciding this case. See Maj. Op. at 2, 3, 40, 81. Judge Tjoflat is a nationally known and admired judge who has served as a member of the federal judiciary since 1970, and as a judge for the State of Florida before that. He is not only admired nationally, he is also admired by Judge Wilson and me. Our work would be much quicker, easier and happier if Judge Wilson, Judge Tjoflat and I all agreed on how the law applies to this case—and every other case, for that matter. But if we do our jobs properly, it is inevitable that we will have disagreements. And we disagree here. That being the case, it is incumbent upon each of us, as a part of this difficult process, to lay out how we understand the law to apply to the specifics of Mr. DeBruce’s case. Each of us has honestly assessed this case to the best of our ability, and the opposing views expressed in our respective opinions were reached through a sincere effort to properly perform the role required of us as judges of this Court.