Will the 11th Circuit hear the cell-site case en banc?

The government has asked for rehearing en banc in Quartavious Davis' case, which held that acquiring historical cell-site data is a Fourth Amendment search.  The government frames the issue this way in its petition:

Whether the government’s acquisition of historical cell site records from a cellular telephone service provider pursuant to a court order authorized by the Stored Communications Act, 18 U.S.C. § 2703(c)(1)(B), (d), constitutes an unreasonable search or seizure in violation of the Fourth Amendment.

Orin Kerr thinks that the panel got it wrong and that the Court should take the case en banc.  I disagree with my old classmate.  It will be interesting to see what the Court does here.

Judge Gold taking inactive senior status

Judge Gold just announced that as of October he will be an inactive senior judge, take no more cases and close his chambers.  This is very sad as Judge Gold is one of the finest judges, not only in the District, but in the country.  I wish him well.


Meantime the District is busy as ever.  Our new Chief Judge, K. Michael Moore, tried 3 cases in a week.  Judge Altonaga just tried a case with two juries.  And Judge Scola interestingly had a trial with a deaf juror. 


Of course, the marathon trial involving former Mayor Pizzi is slogging forward.  The Herald has the update on that trial.  I wonder how much this trial -- about a supposed bribe of $6,000 -- is costing.  Anyway, here's the update:

Candia testified that he gave the $1,000 bribe to Pizzi in December 2012, arranged another $2,000 payoff at a Miami Lakes billiard club in Feburary 2013 and, after he flipped for the feds, gave the mayor a final $3,000 bribe in a storage closet at Medley Town Hall in July of last year.
Pizzi’s defense team claims the mayor never received the $1,000; accepted the $2,000 in a cigar bag but gave it away without realizing the money was stuffed inside; and took the $3,000 as a reimbursement for a personal expense on behalf of a Miami Lakes political action committee.
Pizzi’s defense strategy has been to raise critical doubts about his accepting the bribes in return for political favors. It has also aimed to discredit Candia and the lead FBI undercover agent. Both admitted on the witness stand that the mayor had not been involved in any actual corrupt activity before the undercover operation was launched against Pizzi and numerous other South Florida mayors and officials in 2011.
The sting operation originated when the FBI retained a Miami-Dade lobbyist, Michael Kesti — code name “Stingray” — as an informant. Kesti directed them to Candia, who was close to Pizzi and other small-town mayors.
Last week, Candia testified in detail about his role in the three alleged bribes. The lobbyist said that Pizzi, after getting “spooked” when the undercover agents described the federal grant program as a “money grab” in February 2012, agreed to reconnect with them after his re-election victory that November.
Candia, who had raised thousands of dollars for Pizzi’s campaign through the lobbyist’s own political action committee, testified that the mayor approached him about getting involved again in the grant program.
“Mr. Pizzi brought it up with me,” Candia testified.
That led to a dinner at Shula’s steakhouse on Dec. 13, 2012, where Candia, Kesti, the FBI informant, the undercover agents and Pizzi discussed the federal grant scheme. It was pitched as a no-cost way for municipalities to obtain government funds for a jobs study and economic development.At dinner, Pizzi told the lobbyist and the undercover agents posing as the Chicago businessmen that he wanted them to donate money to his upcoming Christmas toy drive that weekend. FBI recordings of the meal revealed that they did not take the mayor seriously.
Later that night at the nearby billiard club, Pizzi told Candia that he wanted $1,000. And the lobbyist relayed that message to the undercover agents.
Candia told them that Pizzi wanted the money to “buy toys for kids,” according to the undercover recordings.
Pizzi’s attorney, Shohat, confronted the lobbyist about his statement on the tape, saying it showed that the mayor did not want anything for himself.
Although Candia admitted saying that, he testified he meant it “sarcastically.”
The next day, Candia, still a target of the probe, met with the undercover agents at a Holiday Inn in Miami Lakes. They gave him 10 $100 bills in a white envelope to give to Pizzi, the lobbyist testified. He also said they gave him an endorsement letter for the federal grant application in Medley, so Pizzi could sign it.
According to the undercover recordings, Candia later spoke with the FBI informant, Kesti, who asked: “Was [Pizzi] happy with the, uh, the gift?”
Candia’s response: “Abso-, absolutely.”

Cloture invoked for Jill Pryor...

...but the Senate is now in recess till September.  So her final vote will happen then.

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