Tuesday news and notes

• Although the Supreme Court didn't grant cert on this S.D. Fla. case, it's a pretty big attack of the 11th Circuit's waiver rule. Justices Kennedy and Sotomayor would have granted cert and Justice Kagan, joined by Ginsburg and Breyer, had this to say about the 11th Circuit's rule -- that issues not raised in the initial brief are waived, even if the defendant tries to file a supplemental brief based on a new Supreme Court case decided before the government even response:

And as the above citations show, the circuit courts—once again, bar the Eleventh—have routinely followed that practice in the wake of Descamps.
There is good reason for this near-unanimity. When a new claim is based on an intervening Supreme Court decision—as Joseph’s is on Descamps—the failure to raise the claim in an opening brief reflects not a lack of diligence, but merely a want of clairvoyance. Relying on that misprediction alone to deny relief to an appellant like Joseph while granting it to the defendant in Descamps ill fits with the principle, animating our criminal retroactivity law, of “treating similarly situated defendants the same.” Griffith v. Kentucky, 479 U. S. 314, 323, 328 (1987) (holding that new rules “appl[y] retroactively to all cases . . . pending on direct review”). And indeed, insisting on preservation of claims in this context forces every appellant to raise “claims that are squarely foreclosed by circuitand [even] Supreme Court precedent on the off chance that [a new] decision will make them suddenly viable.” Vanorden, 414 F. 3d, at 1324 (Tjoflat, J., specially concurring). That is an odd result for a procedural rule designed in part to promote judicial economy.
Perhaps for such reasons, even the Eleventh Circuitdoes not apply its default rule consistently when this Court hands down a new decision. Sometimes, as here, the court views its rule as pertaining “uniformly and equally to all cases,” so that a panel becomes simply “un-able to entertain” any claim not raised in an initial brief. United States v. Bordon, 421 F. 3d 1202, 1206, n. 1 (2005). But other times, the court abandons the rule without explanation—including, at least twice, for Descamps claims. See, e.g., United States v. Ramirez-Flores, 743 F. 3d 816, 820 (2014) (addressing a Descamps claim raised “for the first time at oral argument”); United States v. Estrella, 758 F. 3d 1239 (2014) (addressing a Descampsclaim raised first in a Rule 28(j) letter after all briefs were filed); United States v. Levy, 379 F. 3d 1241, 1244–1245 (2004) (per curiam) (acknowledging “a few decisions wherethis Court apparently considered a new issue raised in a supplemental brief ”). Thus, criminal defendants with unpreserved new claims may be treated differently within the Eleventh Circuit, just as they are as between theEleventh Circuit and every other court of appeals.
I nonetheless agree with the Court’s decision today to deny certiorari. We do not often review the circuit courts’ procedural rules. And we usually allow the courts of appeals to clean up intra-circuit divisions on their own, in part because their doing so may eliminate any conflict with other courts of appeals. For those combined reasons, I favor deferring, for now, to the Eleventh Circuit, in the hope that it will reconsider whether its current practice amounts to a “reasoned exercise[ ]” of its authority. Ortega-Rodriguez, 507 U. S., at 244.

•  The University of Miami Law Review will be hosting Justice Stevens and Miami State Attorney Kathy Rundle.  Here's the summary: The University of Miami Law Review Symposium, entitled “Criminalized Justice: Consequences of Punitive Policy,” will take a critical look at how our nation’s laws have been increasingly criminalized over the past 30 years, the negative consequences of this criminalization, and recent positive developments. We will explore this topic through a variety of subjects, including immigration, homelessness, sentencing policy, and race and social class. The Symposium will feature Keynote Speakers Supreme Court Justice John Paul Stevens and Miami-Dade State Attorney Katherine Fernandez Rundle. The Symposium is scheduled for Friday, February 6, 2015 and Saturday, February 7, 2015 on the University of Miami campus in Coral Gables, Florida.

"There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts."

That was Anthony Elonis on Facebook talking about his wife.  He got convicted for making threats over the internet and was sentenced to 3 years in federal prison.  This morning, the Supreme Court will hear his case.  From the AP:

The case has drawn widespread attention from free-speech advocates who say comments on Facebook, Twitter and other social media can be hasty, impulsive and easily misinterpreted. They point out that a message on Facebook intended for a small group could be taken out of context when viewed by a wider audience.
"A statute that proscribes speech without regard to the speaker's intended meaning runs the risk of punishing protected First Amendment expression simply because it is crudely or zealously expressed," said a brief from the American Civil Liberties Union and other groups.
But so far, most lower courts have rejected that view, ruling that a "true threat" depends on how an objective person perceives the message.
For more than four decades, the Supreme Court has said that "true threats" to harm another person are not protected speech under the First Amendment. But the court has been careful to distinguish threats from protected speech such as "political hyperbole" or "unpleasantly sharp attacks."
Elonis claims he was depressed and that his online posts under the pseudonym "Tone Dougie" were a way to vent his frustration after his wife left him and he lost his job working at an amusement park. His lawyers say the posts were heavily influenced by rap star Eminem, who has also fantasized in songs about killing his ex-wife.
But Elonis' wife testified that the comments made her fear for her life.
After she obtained a protective order against him, Elonis wrote a lengthy post mocking court proceedings: "Did you know that it's illegal for me to say I want to kill my wife?"
A female FBI agent later visited Elonis at home to ask him about the postings. Elonis took to Facebook again: "Little agent lady stood so close, took all the strength I had not to turn the bitch ghost. Pull my knife, flick my wrist and slit her throat."
Elonis was convicted of making threats of violence and sentenced to nearly four years in federal prison. A federal appeals court rejected his claim that his comments were protected by the First Amendment.
The Obama administration says requiring proof that a speaker intended to be threatening would undermine the law's protective purpose. In its brief to the court, the Justice Department argued that no matter what someone believes about his comments, it does not lessen the fear and anxiety they might cause for other people.
"The First Amendment does not require that a person be permitted to inflict those harms based on an unreasonable subjective belief that his words do not mean what they say," government lawyers said.
The National Center for Victims of Crime, which submitted a brief supporting the government, said judging threats based on the speaker's intent would make stalking crimes even more difficult to prosecute.
"Victims of stalking are financially, emotionally and socially burdened by the crime regardless of the subjective intent of the speaker," the organization said.

I posted earlier about Judge Rakoff's article about innocent people pleading guilty.  There's an interesting exchange between Judge Baylson and Judge Rakoff in the New York Review of Books.  Baylson concludes:

No judge wants to see an innocent person prosecuted, convicted, or sent to prison. A criminal justice system must ensure that fundamental principle. Pretending that plea bargains or sentencing guidelines have led to the imprisonment of the innocent is not just incorrect, but impugns the honesty of prosecutors and the diligence of judges.

 And Rakoff's intro from his reply:

Barely a month goes by without someone who pled guilty being exonerated and released from prison. For example, the National Registry of Exonerations recently established by the University of Michigan Law School currently lists 162 such persons, or nearly 11 percent of the 1,476 post-conviction exonerations that have been publicly reported since 1989. If Judge Baylson’s views of the current system were correct, these figures would be zero. Instead, they are just the tip of the iceberg.

To say, as Judge Baylson does, that “most” defendants who plead guilty are in fact guilty simply dodges the issue of how many innocent people are being coerced into pleading guilty by the potential for draconian sentences effectively controlled by the prosecutor. And it is ironic that Judge Baylson should seek to justify federal prosecutors’ prior policy of charging the most serious provable crime as “truth in charging” when, as the Aaron Swartz case mentioned by his father and described below illustrates, the policy often has served not as a reflection of what everyone understood was the true nature of the alleged crime, but as a device to help extract a guilty plea to a lesser offense. Indeed, it was partly this effect that led the current attorney general to abandon the policy, stating that in many cases such a policy was not “appropriate.”

This is an important point:

Judge Baylson suggests both that the defendant has a strong weapon in the form of the presumption of innocence and that the prosecutor has a high burden of proof. But this suggestion really only comes into play if the defendant is willing to take the risk of going to trial and likely suffering a huge sentence if he loses. At the plea bargain stage, moreover, the prosecutor not only credits the un-cross-examined evidence received from his police force but also knows that, since 97 percent of the cases will be resolved by pleas, the prosecutor’s own risk of losing is minimal.

Happy Turkey Day

Hope everyone has a wonderful Thanksgiving.

If you are working today and need a break, check out Judge Martin's 20-page dissent from an en banc denial (another example of no rehearing where the government won).

Or if you want a more fun read, the Miami Herald covered Judge Cooke's book club:

Marcia Cooke, a U.S. district court judge, recalls a Sunday Book Brunch Bunch meeting in which the members met for brunch and stayed past dinnertime.
“We ended up ordering brunch and dinner that time,” she said.
The group of women, which includes an editor, an Urban League of Broward director and an acquisitions manager, meets once a month at different brunch spots to have a book discussion and girl talk.
“These are nice, intelligent, accomplished women who know a lot about literature, education and the community,” said Khamisi Grace, director of programs at the Urban League. “It’s a powerful thing.”
Grace doesn’t always finish the books and doesn’t feel pressured to. She likes having the freedom to admit when she didn’t like a book and debate with other members.
“The best conversations are on books people are in disagreement about,” she said.
When Grace would choose a book for herself, she never used to go with books that had heavy themes. No longer.
“To me, reading is supposed to be a relaxing thing, like watching TV,’’ she said. “I think the books you pick for a book club are different from the books you would pick for yourself because they launch a discussion in a different kind of way.’’
Sandra Seals, an acquisitions manager, said she would have never picked up Fever by Mary Beth Keane, a novel about the first healthy carrier of Typhoid Fever in America.
The group reads anything and everything, but tries to avoid books that depict harm to animals and children. Last month was the exception. They read We Need to Talk About Kevin by Lionel Shriver, about a fictional school massacre and a mother’s attempt to come to terms with the murders her teenage son committed.
“The book was intense,” Cooke said.

Read more here: http://www.miamiherald.com/entertainment/books/miami-book-fair-international/article4060227.html#storylink=cpy

"I'm kind of just fading away."

That's current 11th Circuit Clerk of Court John Ley on his retirement. 

If you are interested in becoming the new 11th Circuit Clerk, check out the announcement here.  Salary is in around $165k.  Alyson Palmer covers the story in this article.

Or if you are interested in becoming the court's Chief Mediator, click here.

More en banc new from the 11th Circuit

This time it's from Judge Rosenbaum's barbershop case, which the blog covered here.  The order granting hearing en banc is just a one-liner vacating the panel decision.




The panel decision started this way:

It was a scene right out of a Hollywood movie.  On August 21, 2010, after more than a month of planning, teams from the Orange County Sheriff’s Office descended on multiple target locations.  They blocked the entrances and exits to the parking lots so no one could leave and no one could enter.  With some team members dressed in ballistic vests and masks, and with guns drawn, the deputies rushed into their target destinations, handcuffed the stunned occupants—and demanded to see their barbers’ licenses.  The Orange County Sheriff’s Office was providing muscle for the Florida Department of Business and Professional Regulation’s administrative inspection of barbershops to discover licensing violations.   We first held nineteen years ago that conducting a run-of-the-mill administrative inspection as though it is a criminal raid, when no indication exists that safety will be threatened by the inspection, violates clearly established Fourth Amendment rights.  See Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995). We reaffirmed that principle in 2007 when we held that other deputies of the very same Orange County Sheriff’s Office who participated in a similar warrantless criminal raid under the guise of executing an administrative inspection were not entitled to qualified immunity.  See Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007).  Today, we repeat that same message once again.  We hope that the third time will be the charm.

This continues the 11th Circuit's en banc history of only granting rehearing when the government loses.  

Sorry for the slow blogging

It's been a crazy week, but we've had some great guest posts.  Thanks for those!

We'll end the week with a post about judges starting to question these fake stings.  From the NY Times:

“Stash-house stings” like this one in 2013 have sent more than 1,000 of the country’s most “violent, hardened criminals” to prison, sometimes for terms of decades, according to the bureau, which has made a specialty of the ruses. The agency says it has conducted about 365 of these stings over the last decade, removing from the streets career criminals who are “willing to kill and be killed,” with less risk to agents and neighbors than raids on real stash houses.

But this year, the judge in this Los Angeles case dismissed the charges against two of the defendants on the rarely invoked grounds of “outrageous government conduct.” Judge Otis D. Wright II of Federal District Court described the bureau in his March decision as “trawling for crooks in seedy, poverty-ridden areas — all without an iota of suspicion that any particular person has committed similar conduct in the past.”

Similar prosecutions have nearly always held up in court, and the agency strongly defends its methods and choice of targets. But over the last year, a growing number of federal judges have questioned the tactic.

A second judge in Los Angeles dismissed similar charges in May. The federal appeals court in Chicago last week mandated a new trial to allow evidence of possible entrapment. Other judges have demanded data from the bureau to help them explore whether the stings, which nearly always land black or Hispanic defendants, involve illegal racial targeting.

The stash-house stings are a prime example of thespreading federal use of undercover agents in many fields, a trend that law enforcement officials say is efficient and safe but that raises unease among civil liberties advocates.

On Thursday, a federal appeals court in California heard the government’s motion to reinstate criminal charges in the case that Judge Wright criticized, and itscall that the judge be removed from the case for bias.

“The conspiracy was real; the guns were real; the defendants’ intent to use them to violently rob a cocaine stash house was real; and the defendants’ criminal histories were real,” the federal prosecutors argued in their brief. The supposed stock of cocaine had to be set high, they said, to make the proposal credible.

Continue reading the main story

In May, also in Los Angeles, Judge Manuel L. Real of Federal District Court dismissed charges against three other men, saying the government “steers too close to tyranny.” He said that the agents initially knew little about the defendants except that “they were from a poor neighborhood and minorities.” The government has appealed.

And last week, in another setback for federal agents, the United States Court of Appeals for the Seventh Circuitmandated a new trial for a defendant in a Chicago suburb who said he had been pressured into planning the robbery for which he was sentenced to nearly 27 years. The trial judge had erred, the circuit court ruled, by not allowing an entrapment defense.

In a separate line of attack on the drug stings, defendants in Chicago and elsewhere have filed motions to require the bureau to provide data on the racial makeup of sting targets, and information on how the agency selects its targets.

In one case, the agency asked the court to dismiss charges rather than be required to comply. In several others, after judges found at least suggestive evidence of racial targeting and approved the data request, the agency has complied, though the information remains under seal.

Judge Robin Rosenberg Invested as District Court Judge by ADAM RABIN

Adam Rabin, the author of this post, is a partner at McCabe Rabin.  Photo credit to Daniel Portnoy Photography.

On November 14, Southern District of Florida Chief Judge Michael Moore swore in Judge Robin Rosenberg as a District Court Judge before many federal and state court judges, bar leaders, family and friends.   The ceremony was moving and captured the personal side of Judge Rosenberg.

The investiture led off with Jonathan Paine, the son of the late U.S. District Judge James C. Paine, whom Judge Rosenberg clerked for after graduating from Duke Law School.  Jonathan spoke of how life comes full circle sometimes with Judge Rosenberg’s getting sworn in the same court room as Judge Paine had presided back when Rosenberg was clerking for him.

Past President of The Florida Bar, Scott Hawkins, presented the Bible and spoke of the nearly 75 hearings that he had before Judge Rosenberg in a hotly contested state court case over the last few years and how she never raised her voice once or lost her composure during the proceedings.

Fourth DCA Judge Robert Gross, with whom Judge Rosenberg occasionally sat as an associate judge, spoke of her work ethic and legal acumen.  Judge Gross also told a story on how his clerk performed an appellate review of a case that Judge Rosenberg handled as a trial court judge and had to enter a separate order on 70 different motions.  One by one, she did not just enter granted or denied.  Instead, she engaged in a separate, individualized legal analysis on each motion with findings and conclusions. The law clerk commented to Judge Gross that he had never seen anything like it.

Judge Rosenberg’s husband, former Palm Beach County State Attorney, Michael McAuliffe, also spoke on Judge Rosenberg’s accomplishments. In talking about the Senatorial judiciary confirmation process, McAuliffe analogized a common expression when mountaineering (a hobby for McAuliffe who re-climbed Kilimanjaro this summer) that “It’s always further than it looks.  It’s always taller than it looks.  And it’s always harder than it looks.”

The show was stolen, however, when Judge Rosenberg and McAuliffe’s elder daughter, Sydney Rosenberg McAuliffe, a freshman at Duke, took the podium.  She spoke of the accomplishments and role-modeling that her mother had provided for her and her younger brother and sister as a professional.  More significantly though, Sydney spoke of their close, best-friend relationship and that while her “mom accomplishes more than most by dawn,” it is her love for and unyielding investment in her children that was her most laudable accomplishment.  Most of the audience had to brush off the tears.

Judge Rosenberg closed with thanking her parents, children, family, friends, state-court judicial colleagues, the federal judges who have welcomed her, President Obama, and Senators Nelson and Rubio.

If you have never been to a federal-court (or state-court) judicial investiture, you should attend one.  They always remind me of how fortunate we are to practice law, re-instill the importance of professionalism and civility in our profession, and reinforce how family and friends contribute greatly to one’s success.

Congratulations to Judge Rosenberg on an investiture that had most attendees smiling through the weekend. 

A 'humble giant' by Bill Cooke

Bill Cooke, the author of this post, is a Miami photojournalist and publisher of the Random Pixels blog.

I first met Judge William Hoeveler sometime around 1990, right after he'd been assigned to preside over the trial of Panamanian dictator Manuel Noriega.

A writer for the Los Angeles Times wrote this after he was picked: 

"He stands 6-feet-3, his hair is silver-gray, he speaks in a rich baritone, and his bearing is nothing less than magisterial....

"If you went to Central Casting and said, 'Give me a judge,' " says top Miami defense attorney Roy Black, "you couldn't get someone better than William Hoeveler.

"But he not only looks like a perfect judge," adds Black. "He is."

Back then, I was a freelance photographer shooting news assignments for the Associated Press.

There were lots of stakeouts at the federal courthouse as the trial date neared. Stuff that usually involved taking pictures of attorneys entering and leaving the courthouse. Not very exciting. 

In 1991, one newspaper reported there were "more than 250 pretrial pleadings, motions, responses, memorandums and court orders" in the months leading up to the trial.

At some point, I decided to approach the major players involved in the case and ask them if I could shoot their portraits in a formal setting: Noriega's defense attorney, the prosecutors, and of course, Judge Hoeveler.

This was, after all, going to be what some would call the Trial of the Century.

Frank Noriega, Myles Malman, Guy Lewis and Pat Sullivan all agreed to give me some time.

And then I called Judge Hoeveler. I'd been introduced to him some weeks before by a mutual friend.

"Would you mind if I shot a portrait of you in your chambers, Judge? You know...for history?"

"Of course," was his response, "When would you like to do it?"

A date was set and I lugged my equipment up to the ninth floor. As I shot pictures in his chambers, I soon became fascinated with this man who treated me - a somewhat disheveled and unrefined news photographer - with genuine respect. The judge didn't judge or criticize. He even laughed at my corny jokes.

I soon learned that I wasn't alone. Judge Hoeveler, I found out, had a reputation for treating everyone the same way. With respect. 

Finally, in September 1991, as the trial was about to get underway, I found myself back at the courthouse. I was assigned to get a picture of the judge when he arrived for the first day's proceedings

I decided to stake out the entrance to the courthouse's underground garage - joined by a few TV cameramen - in the hope of getting a shot or two before he disappeared into the garage.

It wasn't long before the judge drove up to the guard shack.

But instead of driving in, he rolled down the window and chatted with us for a bit. He seemed genuinely bewildered, but nevertheless amused, by all the attention he was getting. As we chatted, the judge's equally bewildered Akita, Nisei, peered at us from the back seat of the car.

Here was a judge arriving for perhaps the most important trial of his career, but he still found the time to talk with some scruffy news photographers. Respect. 

Over the years, I found myself back in his chambers for various reasons. I always looked forward to those visits. And when I couldn't visit, I picked up the phone just to say hello and to chat for a few minutes. His secretary, Janice, never told me that he was too busy to talk.

Almost 25 years later, I still call Judge Hoeveler a friend.

I revere the man.

A few months ago, I read that he was finally going to retire.

I made a mental note to go downtown and see him, but I kept putting it off, afraid perhaps, that I might become too emotional.

A few weeks ago, the judge's daughter, Margaret, posted something on Facebook about a going away party that had been held  in his honor. 

I decided to call her.

"I'd like to visit with your dad. Do you think that's possible?"

"Sure," she said, "why don't you call him?"

Last week, I called him. But because it was 8 p.m., I was sure his wife, Christine, would answer.

Not a chance. A strong, clear, familiar voice answered.

"Hi," I said, "this is Bill Cooke."

"And this is Bill Hoeveler," came the answer.

"I'd like to come see you," I said.

"You're welcome to come anytime," he said.

On Saturday, Michael Putney and I dropped in on the judge and Christine. Shortly after we arrived, Margaret popped in. 

We shared some stories, laughed a lot, and someone - I'm not sure who - may have even shed a tear or two.

After our visit, I posted some pictures on Facebook. I noted that I wasn't proficient enough in the English language to adequately describe Judge Hoeveler. 

In my opinion, the word "great" isn't descriptive enough. 

A few hours after I posted on Facebook, the Miami Herald's federal courts reporter, Jay Weaver, left a comment on my post calling the judge "a humble giant."

Indeed, Jay. Indeed.