An Unusual Decision Not to Publish - by Guest Blogger Brian Toth

An Unusual Decision Not to Publish - by Brian Toth

 

Earlier this year, Justice Thomas, joined by Justice Scalia, dissented from the court’s decision not to review a ruling by the Fourth Circuit reviving a habeas petitioner’s claim that he was sentenced too harshly by a vindictive judge. The dissent in Plumley v. Austin was notable mostly for its sharp criticism of the Fourth Circuit’s choice to label its decision “unpublished”—that is, without precedential effect. The Fourth Circuit’s decision was 40 pages long, rendered after oral argument, contained a dissent, and, in Justice Thomas’s view, satisfied three criteria for publishing decisions. “It is hard to imagine,” Justice Thomas wrote, “a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the Circuit.”

Yesterday, the Eleventh Circuit issued a decision in United States v. Rivero affirming a 30-year sentence for a 56-year-old defendant who pleaded guilty to possession with an intent to distribute cocaine and marijuana. Because Mr. Rivero qualified as a career offender, his advisory-guidelines range was 188 to 235 months. The government recommended that Mr. Rivero be sentenced toward to bottom of that range, but the district court, citing his lengthy criminal history, sentenced him to 360 months in prison—the statutory maximum. The Eleventh Circuit’s decision was rendered after oral argument and over a forceful dissent by the panel’s only active judge, Judge Martin, who addressed not just Mr. Rivero’s case but also the court’s precedents on sentencing. The Eleventh Circuit’s decision in Rivero, like the Fourth Circuit’s in Austin, was unpublished. Why?

In certain respects, the panel’s choice not to publish Rivero seems sound, and might even, to some, be preferable. Mr. Rivero’s first argument on appeal—was he a career offender?—was foreclosed by precedent, and applying precedent to new cases rarely justifies publication alone. And the majority disposed of Mr. Rivero’s challenge to the reasonableness of his sentence by carefully hewing to the court’s precedents and to its highly deferential standard of review. Plus, the decision doesn’t create binding precedent for imposing on other defendants, in Judge Martin’s words, “an extraordinary sentence for what seems to be an ordinary crime.” The court metes out tough justice for Mr. Rivero, but only for Mr. Rivero. 

But for those who closely follow the Eleventh Circuit, that yesterday’s decision is unpublished may seem unusual. The Eleventh Circuit takes special interest in sentencing, and nearly always seems to publish decisions involving large variances (only death-penalty cases get similar automatic-publication treatment). Further, because we want similarly situated defendants to be sentenced similarly—and because, presumably, we want the process in which they are sentenced to be similar, too—publishing decisions involving sentencing is important. The court, moreover, publishes many decisions where, as in Rivero, there has been oral argument. And although it’s common for the Eleventh Circuit to dispose of an appeal in an unpublished decision after oral argument where the result is clear, it’s not common to do so where there has been a strong dissent by the only active judge on the panel. And the facts of this case are compelling: Mr. Rivero, a 56-year-old man, indeed has a long criminal history, but he was given a tough sentence for, according to the majority, an “unremarkable” current offense. And the government recommended a bottom-of-the-guidelines sentence as well. In short, this is not your run-of-the-mill sentencing case. 

Courts don’t say why they publish their decisions; per the Eleventh Circuit’s internal operating procedures, the choice is up to the majority of the panel. Thus, why Rivero is unpublished is anybody’s guess. But I suspect that a principal reason was, as Justice Thomas observed in Austin, “to avoid creating binding law for the Circuit.” If so, then the question still remains, Why?

I don’t know and, to be clear, I’m not criticizing the majority’s choice not to publish Rivero. But one by-product of its decision seems clear: the likelihood of en banc review is greatly reduced, for there is little reason for the full court to undertake the arduous process of reviewing a decision that doesn’t bind it or lower courts. In dissent, Judge Martin observed that she was “aware of no published opinion in which we have held that an above-Guidelines sentence was substantively unreasonable.” If Rivero had been published, her observation would remain true. But it would also be true that the likelihood of en banc review—and therefore the likelihood of a published opinion in which an above-guidelines sentence was held to be substantively unreasonable—would have been greater.

"Was Dzhokhar Tsarnaev trial necessary?"

That's the provocative headline to this Nancy Gertner op-ed.  If Tsarnaev would have pleaded guilty to life without parole and where Massachusetts doesn't have the death penalty, should we have used all of these federal resources on a trial?  A snippet:

Perhaps Attorney General Eric Holder wanted to show that the government does not need Guantanamo or military tribunals to secure the death penalty for those accused of terrorism. Perhaps he believed that any lesser punishment would expose the administration to criticism about the softness of the civilian system and reopen the floodgates to military tribunals. But that political calculation hardly justifies what the government seeks here, its costs, its emotional toll on the victims and on the city, the likelihood of extensive appeals, even the risk of error, particularly when there was another alternative — a plea of guilty in exchange for life without parole.
Following such a plea, the victims would have spoken at length at a sentencing proceeding, directly confronting Tsarnaev. Their narratives would have been no less compelling than what we have heard the past few weeks. The focus would have been on them, and only them. And once life without parole was imposed, the case would have been over, completely and totally. There would have been no appeals.

***
In some ways, this phase may be more difficult than the first phase. At this point, the focus necessarily shifts to Tsarnaev and away from the victims. More troubling, the jury’s life-and-death decision could be taking place at the same time as the second anniversary of the bombing. Boston is gearing up for the Marathon, and jurors will be passing the banners, the familiar sights of Marathon Monday, coupled with the city’s commemoration of the tragedy. Jurors are supposed to tune out the press. While it is difficult in a high-profile case, here their efforts will have to be extraordinary. And any juror’s exposure to the emotional and intense coverage could put the entire trial at risk on appeal.
The choices for the government should not be a death finding in a civilian court, or a death finding in a military tribunal, lethal injection or a firing squad. Countless others accused of heinous crimes have pled guilty to a life without parole. There was another way. There still is.

Accusations against Dersh stricken

A justified win for Professor Dershowitz before Judge Marra.  Via the AP:

A federal judge rejected a bid by two women to join a high-profile sexual abuse lawsuit and ordered scandalous sex allegations against Britain's Prince Andrew and a prominent U.S. lawyer removed from the court record.

U.S. District Judge Kenneth Marra's ruling Tuesday came in a case involving wealthy financier Jeffrey Epstein. The two women, identified as Jane Does No. 3 and No. 4, claim to be among dozens of women Epstein sexually abused as teenagers at locations ranging from a Palm Beach mansion to a private Caribbean island to a sprawling New Mexico ranch.
The women wanted to join a lawsuit filed by other alleged victims. The lawsuit against the U.S. government seeks to reopen a non-prosecution agreement Epstein reached with federal prosecutors. Epstein pleaded guilty more than six years ago to state sex offenses and served a 13-month jail sentence, but could have gotten a much longer prison term if the Justice Department had brought charges.
Federal prosecutors opposed allowing the two Jane Does to join the lawsuit, which was filed in 2008, and Marra agreed.
"Justice does not require amendment in this instance," the judge wrote.
Marra also ordered sensational allegations against Prince Andrew and well-known lawyer Alan Dershowitz, a former Harvard Law School professor, stricken from the court record. Both denied any wrongdoing, with Dershowitz contending in his own court filings that Jane Doe No. 3 made up sex abuse stories involving him. Buckingham Palace stood by Prince Andrew, the second son of Queen Elizabeth II who is also known as the Duke of York.
Marra said the sex abuse details had no bearing on the lawsuit's goal of reopening the Epstein non-prosecution agreement.
"The factual details regarding with whom and where the Jane Does engaged in sexual activities are immaterial and impertinent to this central claim," the judge wrote. "These unnecessary details shall be stricken."
Buckingham Palace had no comment Tuesday, referring to its past denials. Dershowitz, in a statement, called the decision "a vindication of my position" and said it should serve as a warning to attorneys against making unsupported allegations.

Full Disclosure -- I'm quoted in this article in support of the decision.

Update -- Dersh is on the record with ATL:

This isn’t the end of all Epstein-related litigation for Professor Dershowitz. He’s still a defendant in that libel action filed against him by Paul Cassell and Bradley Edwards, counsel to Jane Doe #3 aka Virginia Roberts. But Professor Dershowitz might actually welcome the continuation of that case. With his involvement in the Jane Doe case now over, the defamation case may be the best avenue for completely disproving the allegations against him.
UPDATE (2:45 p.m.): I just raised this possibility in email correspondence with Professor Dershowitz, and he agreed: “Right. I won’t rest until she admits she made it up.”
In his 1982 memoir, The Best Defense (affiliate link), Professor Dershowitz wrote, “Sometimes the public has to be reminded that the word criminal in criminal lawyer — like the word baby in baby doctor — is a description not of the professional, but rather of the clientele.” Alan Dershowitz might represent criminals, but he’s no criminal himself — and those who allege otherwise do so at their peril.

WSJ covers SDFLA as "most productive court"

The blog reported on this previously, and today the WSJ has the numbers:

The Administrative Office of the U.S. Courts, the front office of the federal judiciary, has done the legwork to figure out which of the 94 federal trial courts cut through its caseload most efficiently in the fiscal year that ended in September 2014.
The AO ranked U.S. district courts by hours on the bench, hours in trial, and number of civil and criminal trials. At the top of the 2014 list is the U.S. District Court for the Southern District of Florida.
The Miami-based court was No. 1 in trial hours, No. 2 in hours on the bench, No. 15 in civil trials and No. 5 in criminal trials.
The “America’s Most Productive” rankings don’t include court-specific data. The average judge, nationally, spent 364 hours on the bench and 182.7 hours in trial, and conducted four civil trials and 3.5 criminal trials in 2014.
A disclaimer: These numbers are likely inflated, because they don’t account for the work of senior U.S. district judges, who opt to work a reduce caseload instead of retiring.
Chief Judge K. Michael Moore of Florida’s Southern District said civil cases that go to trial in his court take about 16 months from start to finish, while cases that settle prior to trial resolve themselves, on average, in six months.
In fiscal 2014, the number of civil and criminal cases filed per judge in the Southern District, which also encompasses Fort Lauderdale and West Palm Beach, was 695, compared to the national average of 533.
Judge Moore, whose court ranked No. 2 overall in 2013, said his aim is to promote a culture in which lawyers know that “you’re going to have to complete your task in a defined amount of time.”
“Holding lawyers to a trial date is the biggest incentive for them to do the work that they need to do,” he said. “The days of judges sitting back and being passive participants in the case-management system are gone.”

Still, judicial vacancies are growing and the Senate isn't doing anything.  Sen. Leahy is pissed:

We are now three months into the new Congress with Republicans in the majority.  The Republican reign thus far has been defined by an attempt to shut down the Department of Homeland Security; a refusal to even allow a floor vote on an eminently qualified nominee for Attorney General; and the decision to inject a partisan abortion fight in what is otherwise an uncontroversial bill to build on our efforts to combat human trafficking.  On top of all of this, the Senate Republican Leadership has been unwilling to bring up for a vote any of the judicial nominees pending on the Executive Calendar.  Not one.   
The refusal by the Senate Republican leadership to schedule votes on any Federal judges is completely contrary to historical precedent.  This is also in stark contrast to the way Democrats treated President Bush’s judicial nominees.  During the Bush administration we were able to reduce overall judicial vacancies from 110 down to 28.  In the 17 months I chaired the Senate Judiciary Committee during President Bush’s first two years in office, the Senate confirmed 100 Federal circuit and district court judges.  I also served as Chairman of the Judiciary Committee during the last two years of the Bush administration and continued to hold regular hearings on judges and we confirmed 68 district and circuit court judges in those last two years.
The Senate must continue to fulfill its constitutional obligation of advice and consent.  The fact that we are in the last two years of this presidency does not mean our work is done.  In the last two years of the Clinton administration, 73 judges were confirmed, and in the last two years of the Reagan administration, 83 judges were confirmed.  I have heard Senate Republicans state that 11 of the judges confirmed in the lame duck last year should count towards confirmations this year.  That is a bizarre claim.  Prior Congresses have always confirmed consensus nominees prior to long recesses.  And Senate Democrats were only forced to do so because Republican obstruction had left judicial vacancies close to or exceeding 90 through the first six years of this President’s tenure.

H/T Glenn Sugameli

Mikhail Gorbachev sentenced to 6 years to lottery scam

Okay, okay -- not that Mikhail Gorbachev.  Actually this guy's name is Mikhail Gorbachev George Williams.  Paula McMahon has the story:

Assistant U.S. Attorney Bertha Mitrani said Williams squandered a second chance he was given in 2010 when investigators from the U.S. Postal Inspection Service warned him that money he received was part of a lottery or sweepstakes scam. Williams, a Jamaican citizen, was warned he could face prosecution if he continued to participate.
U.S. District Judge Beth Bloom rejected a request from defense lawyer John Cotrone to go easy on Williams.
"You had an opportunity to walk away from this criminal activity and you did not," the judge told Williams. She reminded him he had admitted taking money from elderly people who were deceived by him and his cohorts in South Florida and Jamaica.
Though Williams apologized, he tried to split hairs with the judge during his sentencing in federal court in Fort Lauderdale. He claimed he had no direct contact with the victims, did not realize how old they were and only took a percentage of the money before sending on the rest to Jamaica.
"That might be an attempt to minimize your conduct, sir, but I don't see it that way," the judge politely told him. The victims' lives were destroyed by the fraud and his punishment had to be "meaningful" and deter him and others, she said.

Meantime, there's a trial going on where a witness is wearing a disguise in a closed courtroom -- and this isn't in Russia.  It's right here in Miami:

Two FBI undercover employees can testify at a terrorism trial in a Miami federal courtroom closed to the public, a judge ruled Friday, citing national security concerns.
***In court papers, Miami attorney Silvia Piñera-Vazquez argued the prosecution’s demands would deprive her client of a fair trial under the U.S. Constitution. She asserted the “government's actions in this case are eerily similar" to the prosecution described in Franz Kafka's The Trial.
In the classic novel, the attorney noted, “a bank teller was arrested and prosecuted by a remote, unidentified authority, of an unidentified crime, by unidentified witnesses, and eventually executed.”

Read more here: http://www.miamiherald.com/news/local/crime/article17342588.html#storylink=cpy

“So much for post racial America.”

That was Judge Marcia Cooke on her Facebook page after a run-in with Bay Harbor Islands town council candidate Kenneth Eskin.  The Herald has the story here.  And here is the Judge's Facebook post describing the incident:

My Facebook posts are pretty neutral, and rarely personal. Today's post is personal and I doubt it will evoke neutral response(s).
It is approximately 9:30 am. I am leaving for work. Hence I am dressed in the female legal eagle/corporate attire: navy blue suit, pearls and pumps. I am carrying a coordinating bag and briefcase. As I approach my car, a man approaches me with leaflets. Our town elections are in a few weeks and I assume he is a candidate for one of the vacant council seats. Many candidates come to the condos and do the meet and greet. As I approach my car, the conversation:
He: ‘What family do you work for?’
Me: ‘Excuse me, I live here.’
He: ‘Oh’
Me: ‘Yes, for over twenty-years.’
He: ‘Oh.’
As he tries to hand me campaign literature, I get in my car and drive away.
Yes, Kenneth Eskin, I live in Bay Harbor Islands.
So much for post racial America.

 Eskin responded to the Herald:

“I’m not going to deny it. It wasn’t malicious, I asked a question,” Eskin said. “If I offended her, I would apologize to her. I certainly meant nothing by it. There was nothing racially inspired.”
Eskin, 69, is running for a seat on the Bay Harbor Town Council. The election is April 21.
He said he approached Cooke on Tuesday morning while she was putting things away in her car and asked what family she worked for. He said he was trying to pass out campaign leaflets in the parking lot because he was not allowed inside the condo building.
Eskin said that he had no idea who Cooke was and that he had made an assumption because of the town’s racial makeup. Bay Harbor Islands is home to 5,854 people, 92 percent of whom are white.
“It’s a quick thing when you introduce yourself to strangers. You only have five seconds. I don’t know if that’s an excuse,” Eskin said. “There is like 3 percent of people of color on this entire island. You never know who you are talking to.”

Yikes.

"She shrieked with joy."

That was Federal Public Defender Michael Caruso after learning that his clemency petition for 48-year old Valarie Bozeman was successful.  Paula McMahon covers this great story:

Broward woman who is serving life in federal prison for a crack cocaine conviction is one of 22 people whose prison terms were commuted Tuesday by President Barack Obama.
Valarie Bozeman, 48, of Pompano Beach, who was also known as Theresa Brown, was sentenced to life in prison for a 1993 drug case. She has served more than 20 years in prison.
"She shrieked with joy," said Federal Public Defender Michael Caruso of the phone call when he told Bozeman the president was giving her a second chance. "This is a woman who is completely reformed. She is ecstatic that she can get back to South Florida. She just wants to be reunited with her family and be a productive member of society."

Bozeman's appeal and several attempts to get her life term reduced were all rejected by the courts. She is currently an inmate in Dublin, Calif., and is now scheduled to be released July 28.
Bozeman had some unlikely supporters: U.S. District Judge Ursula Ungaro, the trial and sentencing judge, advocated for her early release, according to her defense team.
"[Valarie] wanted me to thank Judge Ungaro for her support all these years and for not forgetting her. She said that this only happened because Judge Ungaro has been her champion," Caruso said.
Ungaro had an aide respond to a request for comment Tuesday. The aide said the judge would "like to comment but she doesn't think it would be appropriate to do so."
Several officials from the U.S. Bureau of Prisons also wrote letters of recommendation for Bozeman and said she worked hard in prison and became a mentor to many other prisoners.
***
Bozeman's petition to have her prison term commuted was handled by Caruso, the Federal Public Defender for the Southern District of Florida, and Assistant Federal Public Defender Abigail Becker.
In an August 2008 letter to the trial and sentencing judge, Bozeman wrote that she had already served a lengthy punishment.
"I've done my time for the crime; it doesn't take me coming out of prison in a body bag to make the government succeed … I am rehabilitated. I won't fail myself, you or society. I have children and grandchildren," Bozeman wrote.
"I would like for you to grant me mercy and allow me to help society with the programs that are out there for the youth of today … How would they know there's a better way? How would they know unless someone is sent to tell them?"
Her mother, Nancy Bozeman, 72, of Pompano Beach, said her family is grateful to God, the president, her daughter's lawyers and Judge Ungaro.
"I do believe my daughter is one changed person and that I know in my heart," she said. "It's a very small house we live in but, praise God, we are going to have one very big party for her."

Congratulations to Michael Caruso and Abby Becker.  Well done.

Also a big shout out to Judge Ungaro for stepping up on this case.  Judges can make a difference.

Judge Mark Fuller Strikes Back...

...and claims that his drunk wife was faking it on the 911 call.  The "Brad Blog" has all of the details:

The Birmingham attorney for U.S. District Court Judge Mark Fuller says that, despite 911 audio which seems to suggest otherwise, his client "never hit, punched, slapped or kicked" his wife Kelli in an Atlanta hotel room last year. The federal judge was simply defending himself from the "hysterical" rage of his wife who, the attorney now tells The BRAD BLOG, blatantly lied to police about the entire incident before his client was subsequently arrested on charges of domestic battery.
Moreover, Barry Ragsdale tells us, Kelli Fuller was "drunk" when she called 911. He says "slap" sounds heard clearly on the audio tape as she told the 911 dispatcher she was being beaten and needed an ambulance were either an attempt by Judge Fuller's wife to "imitate the sounds of slapping" or just "random background noises produced by someone who was intoxicated and hysterical."