Jill Pryor a step closer to the 11th Circuit (Updated)

Senator Reid has called for a cloture vote on Jill Pryor's nomination. It will be up for a vote on Friday morning, which means barring some craziness, she should be our newest 11th Circuit judge by early next week.

She will fill Judge Birch's seat which has been vacant for 1436 days!

HT Glenn Sugameli

Update-- the actual confirmation may by happen till September because the Senate takes its summer break this Friday. 

Judge Gleeson gets justice

He did it.  The blog previously covered his request to prosecutors to do the right thing and this New York Times piece covers the government's agreement at Judge Gleeson's urging:

Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts. But the fairness of the mandatory sentence has been a matter of dispute, not only for Mr. Holloway, but also for a surprising and most effective advocate: the trial judge, John Gleeson.

As Mr. Holloway filed one motion after another trying to get his sentence and his case re-evaluated, Judge Gleeson, of Federal District Court in Brooklyn, began to speak out against those mandatory sentences that he believed were unduly harsh. Mr. Holloway’s 57-year term was more than twice the average sentence in the district for murder in 1996, the year he was sentenced.

More recently, Judge Gleeson began his own campaign on Mr. Holloway’s behalf, writing to Loretta E. Lynch, who is the United States attorney for the Eastern District of New York, to request that she vacate two of Mr. Holloway’s convictions. The payoff from Judge Gleeson’s efforts will be apparent on Tuesday in a highly unusual hearing, when the judge is expected to resentence Mr. Holloway, who is 57, to time served.

“Prosecutors also use their power to remedy injustices,” Judge Gleeson wrote in a memorandum released on Monday. “Even people who are indisputably guilty of violent crimes deserve justice, and now Holloway will get it.”***

Mr. Holloway was charged in 1995 with three counts of carjacking and using a gun during a violent crime (even though it was an accomplice, and not Mr. Holloway, who carried the gun), along with participating in the chop shop. The government offered him a plea deal of about 11 years. He turned it down after his lawyer assured him he could win at trial. Mr. Holloway did not win.

For the first conviction on the gun count, the law required Mr. Holloway to receive five years. But for the second and third convictions, the law required 20 years for each one, served consecutively, a requirement known as “stacking,” which some judges and lawyers argue sounds like a recidivism provision, although it can be applied for crimes, like Mr. Holloway’s, committed hours apart that are part of the same trial.

None of Mr. Holloway’s co-defendants, who all pleaded guilty, received more than six years. At Mr. Holloway’s sentencing in 1996, Judge Gleeson said that “by stripping me of discretion,” the stacked gun charges “require the imposition of a sentence that is, in essence, a life sentence.” (The remainder of the 57 years was the 12 years required for the three carjackings.) ***

In his opinion issued last week, Judge Gleeson said that Mr. Holloway’s sentence illustrated a “trial penalty,” where those willing to risk trial could be hit with mandatory minimum sentences “that would be laughable if only there weren’t real people on the receiving end of them.”

Here's the opinion, which is worth reading.  We need to clone Judge Gleeson, who concludes this way:

It is easy to be a tough prosecutor. Prosecutors are almost never criticized for being aggressive, or for fighting hard to obtain the maximum sentence, or for saying “there’s nothing we can do” about an excessive sentence after all avenues of judicial relief have been exhausted. Doing justice can be much harder. It takes time and involves work, including careful consideration of the circumstances of particular crimes, defendants, and victims – and often the relevant events occurred in the distant past. It requires a willingness to make hard decisions, including some that will be criticized.

This case is a perfect example. Holloway was convicted of three armed robberies. He deserved serious punishment. The judgment of conviction in his case was affirmed on direct review by the Supreme Court, and his collateral attack on that judgment failed long ago. His sentence was far more severe than necessary to reflect the seriousness of his crimes and to adequately protect the community from him, but no one would criticize the United States Attorney if she allowed it to stand by doing nothing.  By contrast, the decision she has made required considerable work. Assistant United States Attorney Nitze had to retrieve and examine a very old case file. He had to track down and interview the victims of Holloway’s crimes, which were committed 20 years ago. His office no doubt considered the racial disparity in the use of § 924(c), and especially in the “stacking” of § 924(c) counts.  He requested and obtained an adjournment so his office could have the time necessary to make an extremely important decision....

This is a significant case, and not just for Francois Holloway. It demonstrates the difference between a Department of Prosecutions and a Department of Justice. It shows how the Department of Justice, as the government’s representative in every federal criminal case, has the power to walk into courtrooms and ask judges to remedy injustices....

A prosecutor who says nothing can be done about an unjust sentence because all appeals and collateral challenges have been exhausted is actually choosing to do nothing about the unjust sentence. Some will make a different choice, as Ms. Lynch did here.

Numerous lawyers have been joining pro bono movements to prepare clemency petitions for federal prisoners, and indeed the Department of Justice has encouraged the bar to locate and try to help deserving inmates. Those lawyers will find many inmates even more deserving of belated justice than Holloway.  Some will satisfy the criteria for Department of Justice support, while others will not.  In any event, there’s no good reason why all of them must end up in the clemency bottleneck.  Some inmates will ask United States Attorneys for the kind of justice made possible in this case, that is, justice administered not by the President but by a judge, on the consent of the Department of Justice, in the same courtroom in which the inmate was sentenced.  Whatever the outcome of those requests, I respectfully suggest that they should get the same careful consideration that Ms. Lynch and her assistants gave to Francois Holloway.

H/T Professor Berman's Sentencing Blog

"We are very gratified by the Eleventh Circuit's opinion, which is a tribute to the hard work and skill of our appellate counsel, Miguel Estrada. It is also a well-deserved compliment to U.S. District Judge Marcia Cooke, before whom we tried this extremely complex, difficult and hard-fought case."

That was David and Nina Mandel, after their enormous win today before the 11th Circuit in the Coquina case. Here's the opinion.  Congrats to the Mandels on their victory.

I've been posting quite a bit lately on the fact that major opinions are being decided without any active 11th Circuit judges. This is another one, written by Senior Judge Anderson and joined by two visiting judges.

I'm sure that won't put a dent in the well-deserved victory party that the Mandels will be having!

Former president of local labor union found not guilty...

...in Judge Gayles' first trial.  From the Sun-Sentinel:

Darryl Brice "Mike D" Payne, 47, was found not guilty Thursday by a 12-person jury following a trial of more than two weeks."This is an awesome day for me, and proof that God is alive and in control," said Payne, of Sunrise. "At the end of the day, this was never about fraud or corruption. It was an organized attack on democracy and free speech."During his three-year term as president of International Longshoremen's Association, AFL-CIO, Local Union No. 1526, Payne was accused of using union money to pay for personal travel expenses to Las Vegas, Baltimore, St. Louis and other cities, as well as to buy sports memorabilia.Among the charges alleged in the 55-page federal indictment were conspiracy to steal union assets, stealing union assets, endeavoring to obstruct justice, mail fraud and making false statements.Had he been convicted on the charges, Payne could have faced penalties of between five and 20 years in prison, as well as substantial fines.Payne, who still works as a crane operator at Port Everglades, testified in his own defense. Over a day and a half on the stand, he denied any misconduct."Every trip he took he was authorized to take," said Bruce Zimet, his attorney. "His defense was that what the government claimed had happened was never proved to have happened."

In other news, the Pizzi trial is still going.  From the Herald:

Many months would pass after Miami Lakes Mayor Michael Pizzi wigged out when a couple of sketchy Chicago businessmen bluntly pitched him on a “money grab” for some “bogus” federal grants.After initially backing away, however, prosecutors say Pizzi agreed to rejoin their supposed scam after he was elected to a second term in November 2012.The man who pulled the politician back in was Richard Candia, a likable lobbyist who had raised thousands of dollars for Pizzi’s re-election campaign. 

Candia was an unwitting target of an FBI sting operation aimed at the Miami Lakes mayor. After he was confronted by agents last summer, the lobbyist assisted in the undercover probe of Pizzi, who was arrested in August. Candia — convicted himself after confessing to taking bribes — will be in the hot seat this week as the prosecution’s star witness in the suspended mayor’s corruption trial in Miami federal court. 

Throughout trial this month, Candia has been described as either a “bag man” or a “liar,” depending on which side is arguing in court. For the 49-year-old Candia, who once moved in Anglo and Hispanic political circles with equal ease, taking the witness stand will probably be the roughest role of his life.If there was any doubt about the high stakes of his testimony, consider what a prosecutor and Pizzi’s defense attorney said about him during opening statements in early July.“He will tell you that he was the insider with Mr. Pizzi,” Assistant U.S. Attorney Jared Dwyer told the 12-person jury. “He will tell you that he and Mr. Pizzi agreed to use Pizzi’s power so that they could get [campaign] contributions and cash.”“And no doubt there will be cross-examination of Mr. Candia, and the allegation will be made that he is just making this up to save himself, to save his own skin and to get out of jail.”Indeed, defense attorney Ed Shohat told the same federal jury: “I will suggest that you are going to find in this case for a variety of reasons that Rich Candia and the truth are estranged. They don’t know each other.”

And the 11th Circuit decided the Docs v. Glocks case, reversing the district court and finding that the statute is constitutional.  Here's the case (Tjoflat for the majority and Wilson in dissent).  Again, the 11th Circuit issues a major decision without a majority from the 11th Circuit, as Judge Tjoflat was joined by a visiting judge.  Below is a summary from the Daily Report:

An Atlanta-based federal appeals court on Friday handed a major defeat to doctors who say they are concerned about gun safety, rejecting their challenge to a Florida law that limits their ability to talk to their patients about firearms.Adopted in 2011, the Florida law among other things forbids health care providers from asking about gun ownership by a patient's family unless the health care provider believes that the information is "relevant to the patient's medical care or safety, or the safety of others." The law says providers may not "discriminate" against patients on the basis of gun ownership. Violations subject the practitioner to possible discipline, including loss of a medical license.***"The act simply codifies that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient's care," wrote Tjoflat.Tjoflat said individual doctors could assert a First Amendment defense in any actions brought against them. "But we will not, by striking down the act, effectively hand plaintiffs a declaration that such a defense will be successful," he said.

Judge Robin Rosenberg sworn in

Congratulations!

Photog credit: Adam Rabin

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.

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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.