11th Circuit rejects Don Siegelman again

Here's the opinion by visiting Judge Ebel, a senior 10th Circuit judge.  The Montgomery Advertiser has this report on the former Alabama Governor:

A federal appeals court Wednesday denied former Gov. Don Siegelman's bid for a new trial, saying he relied on arguments that judges rejected in an appeal from his co-defendant in their 2006 trial on bribery and corruption charges.
Siegelman argued that the district court should have considered whether then-U.S. Attorney Leura Canary, who recused herself from Siegelman's investigation in 2002, had honored the recusal. Former HealthSouth CEO
Richard Scrushy made the same arguments in his motion for a new trial, citing emails from a whistleblowers in which Canary suggested a gag order be placed on Siegelman during the trial; forwarded an email on its coverage and approved a staffing decision.
The three-judge panel rejected Scrushy's argument in 2013, writing "there is no evidence that Canary's emails influenced any decisions made by the U.S. Attorney's office in prosecuting Scrushy." In the former governor's case, the court wrote that it had to follow its decision on Scrushy.
"Regardless of whether Canary possessed a stronger conflict of interest with respect to Siegelman, our determination in Scrushy that there was no evidence that Canary influenced the prosecution team , , , binds Siegelman on this appeal," the opinion said.
The three-judge panel also rejected Siegelman's arguments that his sentence had been miscalculated, saying the district court made no error in sentencing him to 78 months in prison.

News & Notes

1.  Follow up on the "intactivist" post from yesterday.  The lawyer decided to voluntarily dismiss the lawsuit.  From the Sun-Sentinel:

A federal lawsuit concerning a circumcision fight between two South Florida parents suddenly ended Wednesday when the attorney for the 4 1/2-year-old boy and his still-jailed mom decided the case appeared hopeless.
Thomas Hunker, who represents mother Heather Hironimus, notified U.S. District Judge Kenneth Marra that the month-old case has been voluntarily dismissed, and the notice prevents the case from ever being filed again in the court.
In a message posted on a Facebook page dedicated to the boy and his mom and directed at circumcision opponents, Hunker wrote they decided to quit because, "Unfortunately, Judge Marra was not only not sympathetic, he seemed quite hostile toward our position."
Hunker added that proceeding with the federal lawsuit would surely result in "an unfavorable order which could potentially hurt the cause and future efforts to establish a child's right to object to circumcision. I hope you understand and agree that under the circumstances, this was our only available option."
Finally, the attorney said the focus must be to "conserve resources to help Heather get out of jail and preserve her custody rights. That is my mission now."

2.  District Judges like asking other district judges for help.  From the NY Times:

 Federal district judges are often described as the quintessential deciders, whether from the bench or in written opinions. But what happens when a difficult question arises, the parties are in sharp disagreement, and the answer is not obvious?

Turns out they often rely on a rarely discussed resource: the jurist-to-jurist lifeline.

Interviews with more than a dozen judges in Manhattan’s Federal District Court show that almost all have telephoned colleagues when they were puzzled by legal questions or other issues, or have been on the receiving end of the game-show-like call for help.

“I can tell you that everyone calls colleagues for advice, particularly when we get gnarly jury notes,” said Chief Judge Loretta A. Preska, a member of the bench for more than two decades.

The practice is longstanding: Judge Pierre N. Leval, a district judge for 16 years before he was elevated to the federal appeals court in 1993, said that shortly after he became a trial judge, he asked a colleague, “What do you do when you’re stumped?”

The colleague scribbled four digits on a scrap of paper and handed it to him — it was the phone extension for Judge Edward Weinfeld, a legal legend on the court.

“Put it on your desk in the robing room and call him when you’re stuck. We all do it,” Judge Leval remembers his colleague saying.

In a recent trial in Manhattan, Judge Katherine B. Forrest ruled against the government on the admissibility of a particular document, but after a break, she said she had changed her view.

“I spoke to three colleagues — judges here,” she explained.

The defense lawyer objected, but Judge Forrest indicated that it was important that she get it right, and drawing on the expertise and experience of fellow federal judges was sometimes useful “when one is pressed for time in dealing with these kinds of issues.”

“Indeed, a lot of us call each other,” she said. “People call me a lot, including more senior judges.”

Shocker -- her colleagues said to rule for the government!  Oy!

3.  Judge Altonaga did not need to call her colleagues on this one where the government isn't complying with its discovery obligations in the civil terrorism case.  From the AP:

A federal judge sternly blamed the U.S. government Tuesday for lengthy delays in a lawsuit filed by a Pakistani-American man accusing the U.S. of malicious prosecution in a terror financing case.
U.S. District Judge Cecilia M. Altonaga agreed with Irfan Khan's lawyer that the Justice Department's tactics have caused months of unnecessary delays. Altonaga said much FBI evidence released about its investigation into Khan's alleged ties to the Pakistani Taliban is heavily redacted and useless.
"It's virtually like providing nothing," Altonaga said at a hearing. "It's sort of like shooting in the dark."
...Altonaga decided Tuesday to suspend various deadlines until the classified material is sorted out, likely scrapping the current October trial date as well.
"This is a very old case, gentlemen. I fault the government," she said. "You let me know when you're good and ready."

Intactivists!

Ah, Florida (via the Sun-Sentinel):

A federal judge will get 10 days advance notice before a 4 1/2-year-old boy at the center of a circumcision battle is set to have the procedure, the father's attorney promised Monday.
U.S. District Judge Kenneth Marra — hearing an emergency request from an attorney for the boy and his now-jailed mom, Heather Hironimus, to block the surgery already cleared by two state courts — had inquired about the child's whereabouts and the status of the circumcision.
"The child is healthy and well," said Ira Marcus, attorney for father, Dennis Nebus. He told the court the boy is staying with his dad in a "safe and secure" location, has not yet been circumcised, and would not be operated on before telling Marra first.

"Mr. Nebus is entitled to some finality," Marcus said, arguing the boy's parents' legal fight has gone on long enough. "And you know what? The child is entitled to some finality."
But Thomas Hunker, hired by Hironimus to represent the child, urged Judge Marra to step in and protect the boy from "physical harm," brain damage or worse from an elective procedure that is not medically necessary for him and violates his Constitutional rights.
"This is a potentially life and death situation," Hunker said, contending that the child doesn't respond well to general anesthesia and is prone to scarring that could further harm his genitals if he survives. He further argued the procedure to remove the foreskin from the boy's penis is not "reversible" and violates his right to bodily "integrity."
Marra concluded a 75-minute hearing without ruling on the bid for a temporary restraining order against the circumcision — or Nebus' motion to throw the case out of federal court.
Several times, Marra peppered Hunker with questions about why he should hear a case that had already been decided in the father's favor by state circuit and appellate courts. "So you want me to take a fresh look at what was already done by the state court?" Marra asked.
***
On Friday, the attorney filed for the restraining order until the resolution of a federal lawsuit that was filed on the boy's behalf on April 13. The lawsuit states the boy's rights were violated because he hasn't had a psychological examination or an independent guardian to speak on his behalf in court as the mother requested, along with other claims.
The lawsuit lists as defendants his father, Judge Gillen, and Palm Beach County Sheriff Ric Bradshaw. Attorneys for Gillen and Bradshaw urged Marra to remove them from the case.
Meanwhile, Hunker also filed in state court Friday an emergency motion on behalf of Hironimus to freeze all state judicial orders and court proceedings in the long-running custody battle while the matter is pending in federal court.
In March, Gillen ruled Hironimus had committed a "direct, contemptuous violation" of court orders by continuing work with circumcision opposition groups — called "intactivists" — that have "plastered" the child's photos and name "all over the Internet."
During Monday's hearing, a small group of the mother's supporters stood outside the courthouse in West Palm Beach.
"I've been an advocate for all human beings to have bodily autonomy," said Rebecca Boni, a mother of two young children from Boca Raton. "To me it's so obvious it blows my mind the [state] judge decided to side with the father."

Supreme Court reverses 11th Circuit in Henderson v. United States

9-0.

SCOTUSblog has the details:

After oral argument, the outcome in Henderson v. United States wasn’t really in doubt. The entire Court had expressed skepticism of the idea that a firearm owner convicted of a felony couldn’t lawfully sell his weapons on the open market, or transfer them to an independent third party. Today, in a crisp eight-pager by Justice Elena Kagan, the Court unanimously ruled in favor of the firearm owner. Along the way, the Court ironed out some significant legal wrinkles. Of special note, the Court clarified that felons can be entitled to the benefits of equity in federal court.
When an individual surrenders his firearms to police and is later convicted of a felony, what happens to the firearms? The weapons can’t go back to the felon, because federal law prohibits felons from possessing firearms. Yet the felon still owns the weapons, which could have considerable financial, sentimental, or historical value. Understandably enough, many felons in this situation would like to sell or transfer their firearms, rather than let Uncle Sam indefinitely possess them. The question before the Court in this case was whether federal law gave felons that right to transfer.
In the decision under review, the U.S. Court of Appeals for the Eleventh Circuit had ruled against transfer based on a broad view of “constructive possession” – roughly, the idea that someone can lack physical possession of an object but still exert enough control over it to count as possession for purposes of law. The court of appeals had also seemed to say that a convicted felon lacked “clean hands” and so could not take advantage of any form of equitable relief, including equitable transfers of property.
Today, however, the Supreme Court unanimously ruled in favor of the firearm owners by allowing them to transfer their weapons to independent third parties, including to have the weapons sold on the open market. As Justice Kagan succinctly explained, this is a pragmatic solution that accords with the statute’s text and purpose, and also has the benefit of fitting snugly with common sense.

zzzzzzzzzzzzzzzzzz

In the 11th Circuit, you can find out your oral argument panel two weeks before the argument.  But it's not like that in every circuit.  Zoe Tillman covers the interesting differences here:

Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit prefers the element of surprise. At least for oral arguments.
The Seventh Circuit, based in Chicago, doesn't reveal the identities of the judges assigned to a case until the morning of oral arguments. Lawyers, Easterbrook said, should "prepare to face the circuit as a whole."
"Even with this policy, many lawyers try to make judge-specific arguments ('You wrote the opinion that said…') and have to be reminded that opinions speak for the court, not for their authors," the judge said in an email to The National Law Journal. "Ad hominem arguments are out of place."
The Seventh Circuit is in the minority. Of the 13 federal appeals courts, only three — the Fourth, Seventh and Federal circuits — wait to disclose the three judges assigned to a case on the day it is argued. The other circuits reveal their panels days or weeks in advance.
In the First Circuit in Boston, lawyers get a week's notice. In the Eighth Circuit in St. Louis, one month. The D.C. Circuit, until recently, had the most generous policy: The court announced the panel when it set a date for arguments — several months ahead of the hearing. Last year, the court switched to notifying counsel 30 days out. It formalized the change this month in its handbook.

OK, OK, it's a slow news day.  But not as slow as the Herald, which is covering how bad traffic is on the front page.  

If you are looking for something to watch, check out the new movie by Billy Corben and Alfred Spellman, Dawg Fight, which is now on Netflix.  The Hollywood Reporter covers it:

Dawg Fight, director Billy Corben’s new film about the backyard bare-knuckle fight scene, debuts on Netflix this weekend. But for Corben and his producing partner Alfred Spellman, best known for their 2006 doc Cocaine Cowboys, an online bow proved the right fit for their particular brand of street-smart filmmaking.
“As we started looking at how we wanted to release it, theatrical was just not a very appealing option,” says Spellman, who along with Corben founded their Rakontur banner in 2000. Explains Corben, “The whole purpose of this subculture is these guys uploading this footage to the Internet. So the audience for this type of content is already on line — the gamer crowd, the fight fan crowd. So it seemed just kind of obvious to go where they were.”
Since first meeting up in high school more than 15 years ago, Corben and Spellman have forged a unique career by focusing on what Carben admits is often “more pulpy, pop-culture-oriented subject matter” and then riding the successive waves through which such movies have been delivered to eager audiences. “We’ve watched the business shift now through four incarnations,” says Spellman. “We started out going to Sundance. At Sundance, we realized your audience is the seven or eight people who are the acquisition execs. And then we went through the DVD boom, catching the last wave with Cocaine Cowboys. After the recession and the technological upheaval, we did a lot of TV commissions — we’ve done now three 30 for 30s for ESPN and a four-hour miniseries for VH1.” And with Dawg Fight, they’ve moved on to streaming-on-demand. “We’ve kind of been early adopters in figuring out new media trends, some that work out and some that don’t,” adds Corben.

En banc Berry v. Leslie case settles before opinion

This is a weird one -- the case involving the SWAT team storming the barbershop for licensing violations was settled after oral argument but before the opinion issued.  Here's the en banc order dismissing the case.

The panel decision by Judge Rosenbaum (her first published opinion) was a good one, which 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.

Judge William Pryor concurred and dissented from the opinion, with this intro:

I agree with the majority opinion that the search of the barbershop exceeded the scope of a reasonable administrative inspection and that the barbers presented evidence that Corporal Keith Vidler, as the supervisor, violated their clearly established constitutional rights. I also agree that Brian Berry presented evidence that Deputy Travis Leslie, who handcuffed Berry and patted him down, violated his clearly established constitutional rights. But Edwyn Durant, Reginald Trammon, and Jermario Anderson presented no evidence that Deputy Travis Leslie violated their constitutional rights. Even though the inspection of the barbershop appeared to be “a scene right out of a Hollywood movie” (Majority Op. at 1), we cannot bend the law to resolve this appeal with a feel-good ending from a boxoffice hit. The law entitles Leslie to qualified immunity against any barber who failed to present evidence that Leslie personally deprived him of a clearly established constitutional right. Durant, Trammon, and Anderson failed to prove an affirmative causal connection between their specific injuries and Leslie’s conduct. For that reason, I respectfully concur in part and dissent in part. 

News & Notes

1.  Gang members arrested in Broward, via Paula McMahon.

2.  @_FloridaMan is the subject of this fun NY Times article by Lizette Alvarez.  A bunch of other Florida men are quoted -- Billy Corben, Roy Black, Dave Berry, and Carl Hiaasen:

California’s kumbaya vibe is absent here, and so is Texas’ ideological fervor. With so many transplants, allegiances lie elsewhere. New arrivals are often shocked to find that South Florida is segregated, cliquish, brazenly rude and typically indifferent to most annoyances, including its maniacal drivers.

“That’s the most common misconception about Florida — that we are a melting pot,” said Billy Corben, who has made several Florida-esque documentaries, including “Cocaine Cowboys,” about the rise of cocaine violence and capitalism here in the 1970s and 1980s. “We are more akin to a TV dinner, where sometimes the peas spill over into the mashed potatoes.”

“As long as the Champagne is flowing and the checks are clearing,” he added, “nobody asks a lot of questions here about anything.”

Drugs and the weather are also culprits. The steaminess adds to the seaminess. And outdoor living makes for easy viewing and recording. As Mr. Barry put it, people do drugs and act erratically elsewhere. “But it’s not warm outside all the time everywhere,” he said. “In Ohio, they stay indoors.”

Here, reinvention remains the national pastime, which is why hucksters and criminals do quite nicely.

“As they say,” Mr. Corben remarked, “Los Angeles is where you go when you want to be somebody. New York is where you go when you are somebody. Miami is where you go when you want to be somebody else.”

3.  The Steve Chaykin ethics seminar is this Friday at U.M.  Looks to be a good conference in spite of the fact that yours truly will be speaking on social media.  

4.  Bernie Roman is out as the Miccosukee's lawyer.  Via the DBR:

"We have been notified this morning … that we no longer represent the Miccosukee tribe and that I am no longer their tribal attorney," Roman said, according to a transcript of Thursday's hearing.

Salomon Melgen denied bail

 From the Palm Beach Post:

Despite claims by Melgen’s attorneys that he had no intention of fleeing to his native Dominican Republic, U.S. Magistrate James Hopkins denied their request to allow the 60-year-old doctor to post a sizable bond, secured by property worth millions, so he can help them prepare for his trial, now scheduled for Feb. 22.
“There are no combination of conditions that will reasonably assure the appearance of the defendant,” Hopkins ruled. “I will order that he be detained as a risk of flight.”
Not only does Melgen face a possible life sentence if convicted of 76 charges of health-care fraud but he, along with his longtime friend Sen. Robert Menendez, D-N.J., is charged in New Jersey with operating a bribery scheme, Hopkins noted.
Further, he said, an extradition treaty between the U.S. and the Dominican may not cover health-care fraud. If Melgen decides to flee to his island homeland — where he has luxury homes, bank accounts and links to top government officials — prosecutors may never be able to bring him back to stand trial, he said.
Melgen, who federal prosecutors said earned $1 million a month treating patients at clinics in West Palm Beach, Wellington, Delray Beach and Port St. Lucie, smiled weakly at his wife, son and daughter as he was led from the courtroom in shackles. His wife, Flor, collapsed against the couple’s daughter Melissa in tears.

Seems hard to imagine that Melgen should be detained.  He's a 60-year old doctor with no criminal history.  I would expect that he gets bail from the district judge, especially since he already got bond in New Jersey where the judge found that he was not a risk of flight.