BREAKING -- JNC CUTS LIST TO 3 FOR OPEN DISTRICT SEAT (UPDATED)

And those three are:

Mary Barzee-Flores
Peter Lopez
Barry Seltzer

Congrats to the finalists.  Now it's up to Nelson/Rubio and Obama for the nomination.

Update -- Apparently, the Herald sat through the interviews and posted this editorial about the appointment process:

The three South Florida finalists advancing for consideration for a coveted opening on the federal bench in the Southern District are to be congratulated. They’ve earned it.

On Thursday, they, along with other aspirants to the prestigious, lifetime appointment, sat on the hot seat in a large conference room on the 14th floor of the Wilkie D. Ferguson Jr. U.S. Courthouse in downtown Miami.

A member of the Miami Herald Editorial Board was present as the 20-plus members of the Florida Judicial Nominating Commission quizzed and grilled the 15 candidates for 25 minutes each, the final phase of a long process that began in July for the privilege of having their names recommended to Florida’s two U.S. senators.

In this race, voters did not pick the winner; the blue-ribbon panel made up of local legal eagles and community leaders had the honor — and somehow that seemed right and how, perhaps, it should be done for all judicial races.

The different selection processes for state and federal judges — the first are generally elected, the latter selected — highlighted the anemic slate of judicial candidates and bitter races with plenty of mudslinging that played out in Miami-Dade and Broward last month. Judicial decorum was missing among a number of candidates.

Many of the eight contested circuit and county races in Miami-Dade were marked by the emergence of political committees supporting judicial candidates. Rival committees sent out biting attack mailers, unsavory in a judicial race, and scary — these are nonpartisan races in which candidates can only promise to follow the law. The most bitter contest pitted former Miami-Dade School Board member Renier Diaz de la Portilla against Veronica Diaz, an assistant attorney with the city of Miami. She eventually won.

Race and ethnicity also came into play, as has happened in the past. For example, the supporters of incumbent Miami-Dade Circuit Judge Rodney “Rod” Smith, who is black, accused unsuccessful challenger Christian Carrazana of running with the hope his last name appealed to voters in the heavily Hispanic county, a charge that Mr. Carrazana denied.

None of that took place Thursday in the conference room where committee members drilled down to gauge the smarts, temperament and dedication of each candidate.

11th Circuit grants en banc in cell-site case

Well, that was fast.  The government asked for en banc review in Quartavious Davis' case on August 4 (covered by the blog here). 

I've asked this before, and I'll ask it again here -- has the 11th Circuit ever granted en banc review when the defense has asked for it?

News & Notes

1.  JNC interviews are today for the open federal seat.  Will be interesting to see who makes the cut.

2.  The 11th Circuit granted en banc review in United States v. Roy.  This was the case authored by Judge Wilson in which the court granted a new trial for a defendant because the district judge conducted part of the trial without him and his counsel.  Chief Judge Ed Carnes dissented.  Now the whole court is going to hear the case.  Interestingly, the Carneses are using their first names now to distinguish themselves.  Here's the beginning line of the order: Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, PRYOR, MARTIN, JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.  Soon the Pyrors will be doing the same thing...


3. Judge Tjoflat, joined by Judge Ed Carnes and Judge Marra, has this new opinion in United States v. Campbell, which starts this way:

In this case, Maurice William Campbell, Jr., and several co-conspirators, created, and successfully executed, a scheme to defraud the State of Alabama to the tune of several million dollars. The scheme was ultimately uncovered, and the co-conspirators were separately indicted by a Northern District of Alabama grand jury. Campbell was charged with wire fraud, mail fraud, money laundering, engaging in monetary transactions in criminally derived property, and conspiring to commit those offenses.
Campbell pled not guilty and stood trial. Several of his co-conspirators, having pled guilty, testified for the prosecution. The jury believed what they had to say and found Campbell guilty as charged. At sentencing, the District Court departed downward from the sentence range the Sentencing Guidelines prescribed, 262 to 327 months’ confinement, and imposed prison sentences totaling 188 months. The court also ordered him to pay $5.9 million to the State of Alabama in the form of restitution.
Campbell appeals his convictions and sentences. He appeals his convictions on the ground that the Government failed to prove his guilt beyond a reasonable doubt.2 He appeals his sentences on the ground that they are procedurally and substantively unreasonable. See Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). We find no merit in Campbell’s challenges to his convictions, and therefore affirm them, because the evidence of guilt, which we set out in considerable detail infra, was overwhelming. We also affirm his sentences, finding no procedural or substantive error.

4.  Check out  the Dade County Defense Bar Association's Fall 2014 Ethics Seminar, which is being put on by Robert Kuntz.  Looks interesting!

Anthony Bosch set to plead guilty before Judge Gayles

From the Miami Herald:

Anthony Bosch, the South Florida clinic operator suspected of selling banned steroids to suspended Major League Baseball players, plans to plead guilty in October to illegally distributing the performance enhancement drugs.
“We’ve resolved the case,” Bosch’s defense attorney, Guy Lewis, told U.S. District Judge Darrin Gayles on Wednesday in Miami federal court. “It’s going to be resolved with a [guilty] plea.”
Bosch, who initially pleaded not guilty after he surrendered last month, has signed a plea agreement admitting to his criminal activity at a Coral Gables anti-aging clinic that allegedly sold testosterone to New York Yankees star Alex Rodriguez and other players. He was scheduled for trial on Monday, but the agreement precludes it.
...In recently filed court papers, the U.S. attorney’s office revealed that 122 electronic surveillance recordings — audio and video — were made of Bosch and the other defendants during the federal investigation. It gained momentum early last year after the Miami New Times broke the story about Bosch’s alleged sale of steroids to Major League ballplayers and others.
None of Bosch’s customers have been charged in the federal case.
The federal investigation is shrouded in secrecy. Prosecutors Pat Sullivan and Sharad Motiani and defense attorneys Lewis and Susy Elena Ribero-Ayala have agreed that no evidence -- including the names of customers -- can be shared with outside parties, including Major League Baseball. The clinic’s customers also included Miami-Dade high school ballplayers.
Gayles, the federal judge, has granted a protective order restricting the sharing of the evidence.

Read more here: http://www.miamiherald.com/2014/09/03/4324946/suspected-of-selling-steroids.html#storylink=cpy

8th Circuit affirm sentence of probation where guidelines were 135-168 months

District judges, I think, are still fearful of giving large variances in white-collar cases (especially after trial), but this 8th Circuit case should give some more comfort:

A jury found Abby Rae Cole guilty of conspiracy to commit mail and wire fraud, tax evasion, and conspiracy to commit tax fraud.  The district court sentenced Cole to three years probation, a downward variance from the advisory Guidelines range of 135 to 168 months imprisonment.  The government appealed the sentence as substantively unreasonable, and Cole cross-appealed her convictions.  We affirmed the convictions but declined to reach the issue of whether the sentence is substantively unreasonable, finding procedural error in the lack of an adequate explanation by the district court for the sentence and the substantial downward variance.  We remanded the case to afford the district court a chance to supply an adequate explanation....
In our previous opinion, we noted that before reaching the substantive reasonableness of a sentence “‘[w]e must first ensure that the district court committed no significant procedural error,’” such as “failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Id. (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)). We noted that Cole and her co-conspirators’ convictions were based on the theft of approximately $33 million from Best Buy over a four-year period and the evasion of over $3 million in taxes, Cole’s sentencing Guidelines range was 135 to 168 months imprisonment, and Cole’s co-conspirators, her husband and a Best Buy employee, received sentences of 180 and 90 months respectively. Despite these facts, the district court provided scant explanation for the profound downward variance to a sentence of probation.
On remand, the district court received additional briefing from the parties, conducted a hearing in which it heard additional argument with respect to sentencing, and then announced its reasons for the downward variance and the probationary sentence in a lengthy and comprehensive analysis concluding with the observation that this is an “unusual, extraordinary case in which a sentence of three years probation was appropriate.”  In the additional analysis, the district court touched on all of the section 3553(a) factors in explaining the rationale behind the sentence it imposed upon Cole. The district court recognized the numerous restrictions Cole endured while on probation and the “lifelong restrictions” she faces as a federal felon, see 18 U.S.C. § 3553(a)(2)(A)&(B); the court stressed that, with the probationary sentence, Cole would be less likely to commit further crimes as she “has a far greater likelihood of successful rehabilitation with family support and stable employment,” see 18 U.S.C. § 3553(a)(2)(C). The court also explained that while “[t]his was one of the largest corporate frauds in Minnesota history and was also a significant tax fraud,” Cole served a more minor role as, in the court’s judgment, she was “mostly a passive, although legally responsible, participant.” See 18 U.S.C. § 3553(a)(1).  The court focused on Cole’s history and characteristics, emphasizing that she had no prior contact with law enforcement and was “markedly different” than “most of the fraudsters who appear before th[e] Court” in that Cole “is not a consummate fraudster, she is not a pathological liar.” See 18 U.S.C. § 3553(a)(6). Finally, the district court explained that the probationary sentence would allow Cole to work and earn money to make restitution to the victims of the fraud.  See 18 U.S.C. § 3553(a)(7).
The United States persists in its appeal, contending that the district court improperly based the sentence on Cole’s socioeconomic status, her restitution obligations, and her loss of criminally derived income.  However, the facts of Cole’s fall from an industrious and highly successful entrepreneur to convicted felon and the loss of the bulk of her legitimately acquired assets cannot be denied.  We find no error in the district court’s reference to these events....
While we do not minimize the seriousness of the crimes perpetrated by Cole and the staggering nature of the fraudulent scheme in which Cole was a participant, the district court here, unlike in Dautovic, has adequately explained the sentence and appropriately considered the section 3553(a) factors in varying downward to a probationary sentence, making “precisely the kind of defendant-specific determinations that are within the special competence of sentencing courts.”  Feemster, 572 F.3d at 464 (quotation omitted).  For instance, the district court noted that Cole’s role in the offense was mostly as a passive participant and Cole was not the typical white collar defendant the court had observed in similar criminal schemes.  We find no error in the weighing of the section 3553(a) factors, and thus the district court did not abuse its substantial discretion in sentencing Cole to probation.

 In local news, Fane Lozman made the front page of the Palm Beach Post this weekend.  You remember Lozman -- he's the guy who went to the Supreme Court on the floating boat/house issue and won!  Here's the intro to the new piece:

Ducking under mangroves to reach the Intracoastal Waterway, Fane Lozman spreads his arms wide as he contemplates living on a narrow strip of land on Singer Island that most believed would never be developed.
“How can you beat his view?” he asks with a grin, gesturing toward the open blue water.
His grin is more than a little bit impish.
More than a year after he clobbered Riviera Beach by persuading the U.S. Supreme Court that the city illegally seized and destroyed his so-called houseboat, the 53-year-old self-made millionaire is back rattling city cages, trying to put that landmark decision into action.
He plunked down $24,000 this year for 29 acres of submerged land and about a third-acre of upland on the western shore of Singer Island. The pristine, mostly underwater property, will one day be home to a 60-foot-long floating home - a famous one that served as Frank Sinatra’s base of operations in the forgettable 1960 detective movie, “Lady in Cement,” he says.
But there’s more. Lozman wants neighbors. “My plan is to develop this into an upscale floating home community,” he says.
To the further chagrin of city officials, the man who has been a thorn in their sides since he moved to Riviera Beach roughly eight years ago is no longer a one-man wrecking crew.
Daniel Taylor, a 53-year-old Riviera Beach native, has recently reignited his family’s decades-long battle with the city for the right to use his submerged land as well. He, too, says it would be the perfect spot for a floating home.
With a nod to Lozman’s successful seven-year legal battle with the city, Taylor recently attached a name to his patch of land along the Intracoastal Waterway. He calls it “Lozman’s Cove.”
“I thought it was a heroic deed and I like the underdog,” he said, explaining why he honored Lozman by posting the street sign inside a fenced in area he turned into a picnic area for occasional parties.
Like Lozman, he said the U.S. Supreme Court’s decision paves the way for him to use the 2 acres of submerged land he owns that extends from his private picnic area.

Justice Kennedy was at UM Law to welcome new students

Miami in August?  He needs to schedule this trip for beginning of the Spring semester...

Anyway, Justice Kennedy had this to say (via UM News):

He had expected answers such as The Verdict, To Kill a Mockingbird, or A Few Good Men—Hollywood films related to the legal profession that had strong messages and profound meaning.

But when U.S. Supreme Court Justice Anthony Kennedy saw the movie that many of the students applying to China’s first school of law based on the American law school model had cited as the Hollywood picture that most inspired them to want to become an attorney, he was shocked: Legally Blonde, a 2001 comedy that stars Reese Witherspoon as a sorority girl who struggles to win back her ex-boyfriend by earning a law degree.

Kennedy would later learn more about the film and understood why the students related to it. “For them it [law school] was a new and daring adventure,” he said Monday to about 250 first-year University of Miami School of Law students. “This was a risk, a different world…and I want you to feel that way about law school.”

What about Vinny?!

This is an incredible story

What happened here?

The jury agreed with the defense and had reasonable doubt about whether the dad did it..

The jury believed that the dad did it and the jury excused his behavior.

The jury didn't know and didn't care.

 

pollcode.com free polls

The USA Today covers this trial in which a man was accused of killing the man who killed his two sons in a DUI.  The jury acquitted him:

A jury has acquitted a southeast Texas man of murder in the fatal shooting of a drunken driver who had just caused an accident that killed the man's two sons.
David Barajas cried when the verdict was read Wednesday. He faced up to life in prison, if convicted.
Prosecutors had alleged that Barajas killed 20-year-old Jose Banda in a fit of rage after Banda plowed into Barajas and his sons while they were pushing a vehicle on a road near their hometown of Alvin. Twelve-year-old David Jr. and 11-year-old Caleb were killed.
Defense attorney Sam Cammack says Barajas didn't kill Banda and was only focused on saving his sons. The gun used to kill Banda wasn't found and there was little physical evidence tying Barajas to the killing.
After the trial was adjourned, the acquitted father spoke with reporters.
"I thank God. This has been hard on me and my family," he said, surrounded by his wife, lawyers and loved ones.
Barajas explained that he is bitter about be prosecuted, but is praying for that the Banda family get their justice.
Barajas said he is not sure who killed Banda.
***
Legal experts said prosecutors would likely have to overcome jury sympathy for Barajas, who had the support of many residents of Alvin, which is about 30 miles southeast of Houston. Further complicating their case was that there were no witnesses who identified Barajas as the shooter and gunshot residue tests done on Barajas came back negative.
Investigators testified that a bullet fragment found in Banda's car could have come from a .357-caliber gun, and that ammunition for such a gun was found in Barajas' home, along with a holster. Cammack said his client never owned a gun and that tests showed the bullet fragment also could have come from another weapon.
A forensic scientist testified that blood found on the driver's side door and driver's arm rest of Banda's car was consistent with that of Barajas.
The defense called only three witnesses to testify during the trial, which began last week.
But prosecution witnesses told jurors during questioning by Cammack that more gunfire had taken place well after Banda was shot - pointing to the possibility that the actual shooter was still at large - and that a search of Barajas' home failed to find any evidence that directly or indirectly linked him to the crime scene.
Cammack also suggested that Banda could have been shot by his own cousin or half-brother, who told investigators that they witnessed the crash but fled the scene. Both testified that they did not shoot Banda.
Cammack also used 911 calls to create a timeline that suggested Barajas would not have had enough time to shoot Banda.

Daily Report investigates how 11th Circuit handles complaints against judges

Alyson Palmer has this great article about her research into the complaints about judges filed with the 11th Circuit.  The very public suspension of Judge Fuller because of his arrest for domestic violence led her to investigate.  Some of her findings:

None of the orders found in the court's public files going back to 2006 refer to any discipline meted out to the judges. Generally the names of the judges whose conduct was being challenged, as well as those who were complaining, are redacted. Most were dismissed by the circuit's chief judge or someone acting in the chief's stead on the basis that the complaint amounted to an attack on the merits of a judge's decision or was not supported by enough evidence.Based on a complaint filed in 2009, a special committee was appointed to investigate an allegation that an unnamed district court judge had accepted a cash bribe for the promised release of a federal prisoner. According to an order signed by then-Chief Judge Joel Dubina dismissing the complaint, the investigation found no credible evidence to support the charges.In handling a similar allegation of bribery brought against an unnamed magistrate judge a few years later, Dubina simply rejected the complaint on his own as "facially incredible and lacking in indicia of reliability."Complaints from litigants often include allegations of racism. Those are usually brushed aside, but in 2007, then-Chief Judge J.L. Edmondson asked an unnamed magistrate judge to respond to such a complaint. According to Edmondson's order, the magistrate judge said in reference to a courtroom clock that was not working, "The Koreans can put a missile in the air, but the clock doesn't work in the courtroom." Identifying the complaining litigant as black and Asian, Edmondson said, "Judges must be guarded in their remarks, especially when touching on nationality and so on," but he concluded the remark was not derogatory about Asians and dismissed the complaint.A chief judge can conclude a misconduct case if he believes the judge in question has voluntarily remedied the problem raised by the complaint. Dubina in this way resolved a 2010 complaint about a judge's failure to include an expense-paid trip on a required financial disclosure form.The Eleventh Circuit also occasionally receives complaints from lawyers who say a judge is treating them unfairly. Dubina referred to a special committee for investigation a 2010 complaint by an attorney that alleged an unnamed bankruptcy court judge had engaged in an improper ex parte conversation and also told the attorney that if he did not change his phone system—which the judge said made it difficult to reach anyone in the office—the judge would "make things bumpy" for him.An order signed by Dubina later said the special committee, after an investigation that included witness interviews and document subpoenas, determined there was insufficient evidence to support the allegations.???Last year, the circuit received a complaint from an attorney about an unnamed district judge who allegedly had criticized the lawyer on more than one occasion. The attorney said the judge had acted erratically, and the lawyer was concerned that the judge suffered from a mental or physical health problem. Carnes' order dismissing the matter said he had interviewed 16 people, including judges, court staff and lawyers who regularly appear before the judge, and all stated the judge was not suffering from any kind of disability.In 2009, an attorney general of an unnamed state—presumably from Georgia, Florida or Alabama, the states in the circuit—filed a complaint regarding a senior district judge, saying the judge's use of "disrespectful and contemptuous language" suggested a bias against the AG, as well as a lack of respect for his state. Then-Eleventh Circuit Judge Stanley Birch dismissed the complaint in a one-page order saying that even if the judge acted as alleged, his conduct would not indicate a disability or be "prejudicial to the effective and expeditious administration of the business of the courts."