Thursday News & Notes

1.  N.D.Fla Judge John Richard Smoak Jr. has reassigned all of his cases.  Anyone know what's going on?

2.  Should DOJ be prosecuting Hastert and FIFA?  Here's an editorial from the Washington Post:

Not every bad act is a crime. Not every bad act that can technically be categorized as a crime should be pursued by prosecutors. And not every bad act that clearly amounts to a crime should be pursued by prosecutors in the United States.
Those thoughts are sparked by the recent indictments of international soccer officials on bribery and corruption charges and of former House speaker Dennis Hastert on charges of structuring hush money payments to avoid bank reporting laws and then lying to the FBI about his conduct.

Ruth Marcus is a columnist and editorial writer for The Post, specializing in American politics and domestic policy. 

For different reasons, I find both indictments unsettling — not necessarily wrong, but worth thinking through whether they ought to have been brought.
The indictment of FIFA officials raises questions about the exercise of U.S. authority to pursue international corruption whose chief harm does not seem to be to U.S. interests or citizens.
The Hastert indictment raises questions even more gut-wrenching: about the proper use of the criminal law; the degree to which technical statutes should be employed to punish alleged conduct that is offensive but uncharged; and the role that celebrity and prominence should play in making prosecutorial decisions.

3.  The 11th Circuit sides with jail officials in a lawsuit involving a suicide of an inmate.  From the Ocala Star Banner:

A federal appeals court on Wednesday found that seven Marion County jail officers cannot be held liable in the 2007 suicide of an inmate who hanged himself with a bed sheet.

Vivian Jackson, the mother of inmate Darius Johnell James, filed a lawsuit alleging that 10 officers violated James’ constitutional due process rights by failing to prevent his death. A U.S. district judge said three of the officers were shielded by what is known as “qualified immunity” but allowed the lawsuit to proceed against the other seven.
James, 22, was arrested in 2007 on robbery and home-invasion robbery charges and was initially assigned to a suicide-prevention section before being moved to another area of the jail, according to Wednesday’s ruling by the 11th U.S. Circuit Court of Appeals.
The 24-page ruling detailed a series of incidents involving James at the jail but found that the lawsuit failed to prove that the seven remaining officers showed “deliberate indifference” to the risk that he would commit suicide.
“This case is troubling,” said the ruling, written by appeals court Judge Beverly Martin and joined by judges Robin Rosenbaum and L. Scott Coogler.
“The Marion County Jail tragically failed to keep Mr. James safe while he was incarcerated. Under our precedent, however, an officer is liable … for the suicide of an inmate only if he had subjective knowledge of a serious risk that the inmate would commit suicide and he disregarded that known risk.”

4.  And we have this piece by Paula McMahon about a swallower.  I like the intro:

A spoonful of sugar makes the medicine go down, but it takes honey to swallow 54 pellets filled with nearly 1.5 pounds of cocaine, according to a Broward County drug mule suspect.
Regis Walker, 28, of Pembroke Pines, spent five days in a hospital "passing" the drug pellets after she was arrested last week at Fort Lauderdale-Hollywood International Airport.

containing nearly 1.5 pounds of cocaine before she boarded a flight to Fort Lauderdale from Jamaica.
(Sun Sentinel / Broward Sheriff's Office Handout)

"Walker said she used honey to swallow the pellets, an idea she learned by watching the movie 'The Mule' on Netflix," Homeland Security Investigations Special Agent Jeanne Neill wrote in court records.
Walker, a U.S. citizen, arrived last Thursday on a flight from Montego Bay, Jamaica. U.S. Customs and Border Protection officials took her aside for a baggage search and interview.
She told them she had spent four days in Jamaica visiting her husband. She was taken to Broward Health Medical Center in Fort Lauderdale after agreeing to be X-rayed.

"The X-ray revealed that Walker appeared to be a drug mule carrying drug pellets within her body," investigators wrote.

 

"One of the wonderful things about graduating the eighth grade is that you have a chance — the best chance that you will ever have in life — to become what you want to become."

That was Justice Sotomayor at Pompano Beach Middle School yesterday.  The Sun-Sentinel has the details:

Supreme Court Justice Sonia Sotomayor was greeted by a standing ovation and thunderous applause from students and parents as she took the stage at the Pompano Beach Middle School end-of-year award ceremony Monday evening.
Sotomayor spoke for about five minutes to an auditorium of about 1,000 students and families during the event at Pompano High.
Sotomayor briefly spoke of her childhood in the Bronx and of the decisions ahead for the Supreme Court this session. She closed her remarks by congratulating her niece, Michelle Zuniga, and wishing her and her fellow students "the happiest in life in reaching what you want to reach."
Principal Sonja Braziel said that Zuniga "told me that her aunt would be attending and asked if we would like her to say a few words. When she told me who it was, we thought of course. She was just coming to share in her niece's recognition. We are just so excited to have her."
Students did not know beforehand that Sotomayor would be attending the event.
"This was a big surprise for everyone," said Francesca Mundy, 62, whose granddaughter is a graduating eighth-grader. "This was something that I expect to be done in college, not at middle school.

Pretty cool.

11th Circuit report says Judge Fuller's actions...

..."might constitute one of more grounds for impeachment."  Aly Palmer at the Daily Report has more:

When U.S. District Judge Mark Fuller of Alabama tendered his resignation on Friday, his fellow judges apparently were preparing to send his case to a national judicial body for consideration of possible impeachment by Congress.
On Monday the Judicial Council of the U.S. Court of Appeals for the Eleventh Circuit issued an order saying the conduct of Fuller, who was arrested on domestic abuse allegations in Atlanta last summer, "might constitute one or more grounds for impeachment." The order referred the matter to the Judicial Conference of the United States, which has the ability to send a judicial discipline matter to the House of Representatives for impeachment.
Friday's letter from Fuller to President Barack Obama, saying the judge would resign effective Aug. 1, would appear to moot the question of impeachment as a practical matter. But Monday's order signifies that judicial leaders within the Eleventh Circuit were willing to hand down the most significant disciplinary consequence within their arsenal.
The Judicial Council consists of all of the Eleventh Circuit's active members, minus its most junior member and Chief Judge Ed Carnes, who hasn't been participating in the Fuller matter, as well as the nine chief judges of the district courts within the Eleventh Circuit. The opinion noted that the chief judge of the Middle District of Alabama, where Fuller sits, did not participate either. Judge Gerald Tjoflat of the Eleventh Circuit acted as chief judge on the matter in Carnes' stead, and Tjoflat's signature appears on Monday's order.
An August police report said Fuller's then-wife accused him of assaulting her at the Ritz-Carlton hotel in downtown Atlanta. He later agreed to a domestic violence intervention program and alcohol and substance abuse assessment to resolve the resulting misdemeanor battery case against him. Fuller's Atlanta criminal defense lawyer has said that Fuller made no admission of guilt and that, upon completion of the program, the case against him would be dismissed and his arrest record expunged.

Why would the 11th tip Fuller off so he could resign on Friday?

Here's the one page order:

"It was, quite frankly, somewhat ingenious how he got the drugs into the jail"

That was AUSA Catherine Koontz to Judge Dimitrouleas about a man who mailed drugs into the prison.  Paula McMahon has more:

A onetime Broward County chemical engineer was sentenced to just over a year in prison Friday for mailing postcards laced with a hallucinogenic drug to inmates in the Broward CountyJail.

William Hahne, 57, pleaded guilty last month to two federal conspiracy charges for sending the synthetic hallucinogen NBOMe, which has a similar effect to LSD, to his pals in the Joseph V. Conte Jail in Pompano Beach.


Two men who received the extra special jail mail, disguised as artwork and tattoo designs, admitted they ran a popular drug-dealing business in the lockup. They tore the postcards into tiny squares they sold for $10 a "hit" or exchanged for treats from the commissary.

Hahne's lawyer, Glenn Kritzer, said his client has a long history of mental illness, including psychosis, that contributed to his track record of drug-related arrests. He asked the judge to consider sentencing Hahne to less than 15 months.

Assistant U.S. Attorney Catherine Koontz suggested Hahne receive the highest recommended penalty of one year and 11 months.

"It was, quite frankly, somewhat ingenious how he got the drugs into the jail," Koontz told the judge.

Hahne, handcuffed, shackled and wearing beige jail scrubs, apologized to U.S. District Judge William Dimitrouleas.

"I hope you'll believe me when I tell you I will never do this again," Hahne said.

The judge skeptically asked if Hahne said the same thing to another federal judge when he was sentenced to four years in prison for manufacturing the drug Euphoria in 2004 at a sophisticated drug lab in his home near Fort Lauderdale High School. That arrest got him fired from his county job.

"Yes, your honor. I mean, no, your honor," Hahne replied, clearly flustered by the blunt question.

"So maybe you figured you'd do it again so you didn't say that to Judge Hurley?" Dimitrouleas said.

"No, your honor, it just didn't enter my mind," Hahne said.

The judge said he weighed Hahne's history of mental illness and his criminal history and sentenced him to one year and three months in federal prison.

 Paula M. also had this interesting story about a fugitive over the weekend.  Good stuff.

And in your moment of Zen, indicted defendant Jack Warner cited to the Onion to support his claim that the U.S. is picking on him.  Too good:

Friday news & notes

1.  Welcome guest blogger turned more-regular-contributor Brian Toth.  Here's a post of his from yesterday.  You'll be seeing more of this about once a week.

2. Is this the most ridiculous federal indictment ever?  A guy can't pull out his own money now?  Oy.

3.  I've said it a bunch on this blog -- Judge Gleeson is a shining star on the district bench.  Check out his most recent order expunging a federal conviction.  This is justice.  This is what our district judges were meant to do.  We need more Judge Gleesons, who recognize the power that a lifetime appointment affords to do justice and to be a check on the executive branch.  For too long judges have thought that ruling for the prosecutors is the way to go.  This is an example of a former prosecutor doing right where the government took an unjust position.  How many other judges would have just said -- I don't have the power to do this; I have to defer to the feds or the marshals or BOP or whatever.

Big ups to Judge Gleeson.  Here are a few excerpts from the order:

Jane Doe filed an application on October 30, 2014, asking me to expunge her thirteen-year old fraud conviction because of the undue hardship it has created for her in getting — and especially keeping — jobs.  Doe gets hired to fill home health aide and similar positions only to be fired when her employers learn through subsequent background checks about her conviction.  Since the conviction was for health care fraud, it’s hard to blame those employers for using the conviction as a proxy for Doe’s unsuitability.
However, even if one believes, as I do, that employers are generally entitled to know about the past convictions of job applicants, and that their decisions based on those convictions are entitled to deference, there will nevertheless be cases in which all reasonable employers would conclude that the conviction is no longer a meaningful consideration in determining suitability for employment if only they had the time and the resources to conduct a thorough investigation of the applicant or employee.
I have conducted such an investigation, and this is one of those cases.  In addition to presiding over the trial in Doe’s case and her subsequent sentencing, I have reviewed every page of the extensive file that was created during her five years under probation supervision.  I conclude that the public’s interest in Doe being an employed, contributing member of society so far outweighs its interest in her conviction being a matter of public record that the motion is granted and her conviction is expunged....
Doe is one of 65 million Americans who have a criminal record and suffer the adverse consequences that result from such a record. Her case highlights the need to take a fresh look at policies that shut people out from the social, economic, and educational opportunities they desperately need in order to reenter society successfully.
The seemingly automatic refusals by judges to expunge convictions when the inability to find employment is the “only” ground for the application have undervalued the critical role employment plays in re-entry. They are also increasingly out of step with public opinion. The so-called “ban the box” practice, in which job applications no longer ask the applicant whether he or she has been convicted of a crime, is becoming more prevalent. There is an increasing awareness that continuing to marginalize people like Doe does much more harm than good to our communities.
Accordingly, Doe’s application for an order expunging her conviction is granted. It is hereby ordered that the government’s arrest and conviction records, and any other documents relating to this case, be placed in a separate storage facility, and that any electronic copies of these records or documents and references to them be deleted from the government’s databases, electronic filing systems, and public record. Doe’s real name is to be removed from any official index or public record. It is further ordered that the records are not to be opened other than in the course of a bona fide criminal investigation by law enforcement authorities and only when necessary for such an investigation. The government and any of its agents may not use these records for any other purpose, nor may their contents be disseminated to anyone, public or private, for any other purpose.
Finally with respect to the relief granted here, I welcome the input of the parties. My intention is clear: no inquiry of the federal or state government by a prospective employer should result in the disclosure of Doe’s conviction. Effectuating that intent without unduly burdening those governments or impairing their legitimate law enforcement interests is not so clear, at least not to me. Thus I welcome any proposed modifications to the relief set forth above, and of course any such proposals by the government would not be regarded as a waiver of its opposition to my decision to expunge the conviction.

An apt observation on word choice by the Eleventh Circuit

Today, the Eleventh Circuit issued an unpublished opinion in Fuentes-Rangel v. Woodman, which affirmed an order granting a petition asking that a child be returned to Mexico under the Hague Convention on the Civil Aspects of International Child Abduction and its implementing legislation, the International Child Abduction Remedies Act of 1988, or ICARA. The treaty and its implementing legislation command courts to return children to their countries of habitual residence if the children were wrongfully removed from their country or wrongfully retained in the United States. But there are narrow exceptions to this command, and lawyers who practice in this area most often describe these exceptions as "affirmative defenses." The lawyers in the Fuentes-Rangel case did so as well, which prompted the second footnote in the opinion. Here it is, in its entirety:

The parties describe Article 12 of the Hague Convention as an "affirmative defense." In ICARA, Congress described Article 12 as an "exception." See 22 U.S.C. § 9001(a)(4) ("Children who are wrongfully removed or retained within the meaning of the Convention are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies."); id. § 9003(e)(2)(B) ("[A] respondent who opposes the return of the child has the burden of establishing ... by a preponderance of the evidence that any other exception set forth in article 12 ... applies."). We do not decide whether Article 12 is properly categorized as an "affirmative defense" or if instead it is an "exception." We accept the parties' characterization.

We often characterize concepts embodied in statutes different from how the statutes actually characterize them. For example, most of our district judges adopt reports and recommendations. But the governing statute doesn't give them that option; instead, "[a] judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) (emphasis added). We also eagerly await the results of en banc decisions of the Eleventh Circuit, rather than in banc decisions of the Eleventh Circuit. See 28 U.S.C. § 46(c) ("A court in banc shall consist of all circuit judges in regular active service ...."). Common usage often carries the day.

So the Eleventh Circuit's observation on the lawyers' choice of words in Fuentes-Rangel was an interesting one. But -- for those of us who are into this kind of thing -- it was disappointing that the panel didn't ultimately weigh in. (I'm partial to exception. Not only does this have the benefit of tracking the language of the statute, but it seems to work better with how the Hague Convention and ICARA are designed to work.) Correcting usage isn't normally a reason to publish a decision. But there are always exceptions. See, e.g., In re UNR Indus. Inc., 20 F.3d 766, 769 (7th Cir. 1994) (Easterbrook, J.) ("There is a big difference between inability to alter the outcome (real mootness) and unwillingess to alter the outcome ('equitable mootness'). Using one word for two different concepts breeds confusion. Accordingly, we banish 'equitable mootness' from the (local) lexicon.").

Facebook comments calling judges "dumbasses" cost JNC appointment

Whoops.  The Tampa Tribune has the story about "Republican kingmaker Sam Rashid":

Valrico businessman and Republican kingmaker Sam Rashid has never been known to pull his punches.

But the outspoken Rashid managed to go a rant too far in a Facebook posting last week, referring to three unnamed Hillsborough County Circuit Judges as “dumbasses.”

Though he later edited the statement - replacing the word with “dumb mothers” - the posting cost Rashid a U.S. senatorial appointment to the Florida Federal Judicial Nominating Commission. The commission nominates candidates for federal judgeships, U.S. Attorneys and U.S. Marshals.

The posting also could prove an embarrassment to the presidential campaign of U.S. Sen. Marco Rubio, a longtime friend of Rashid who appointed him to the commission.

After accepting Rubio’s appointment on Friday, Rashid had to formally decline it a day later. In a Saturday letter to the senator’s general counsel, Gregg T. Nunziata, Rashid said he was clearly not the appropriate person to fill the commission post.

“I appreciate the Senator’s confidence,” Rashid wrote, “but I actually pre-judged some un-named Circuit Judges in Hillsborough County.”

Rashid credited Chris Ingram, a Republican consultant and columnist for The Tampa Tribune’s editorial page, for calling him out on the potential bias in his comments about the judges. Those same judges Rashid disparaged could someday come before him to seek an appointment to the federal bench, Ingram said.

“What Chris said made a lot of sense to me,” Rashid said. “I sent an e-mail to the senators saying, ‘You know what guys, I am biased. When it comes to these judges in Hillsborough County, I have a really strong bias.’”

HT Glenn Sugameli

FIFA = Racketeering Enterprise?

That's what the Eastern District of NY is alleging in this sweeping indictment against nine FIFA executives. The NY Times has this front page coverage:

Swiss authorities conducted an extraordinary early-morning operation here Wednesday to arrest several top soccer officials and extradite them to the United States on federal corruption charges.

As leaders of FIFA, soccer’s global governing body, gathered for their annual meeting, more than a dozen plainclothes Swiss law enforcement officials arrived unannounced at the Baur au Lac hotel, an elegant five-star property with views of the Alps and Lake Zurich. They went to the front desk to get room numbers and then proceeded upstairs.

The arrests were carried out peacefully. One FIFA official, Eduardo Li of Costa Rica, was led by the authorities from his room to a side-door exit of the hotel. He was allowed to bring his luggage, which was adorned with FIFA logos.

The charges, backed by an F.B.I. investigation, allege widespread corruption in FIFA over the past two decades, involving bids for World Cups as well as marketing and broadcast deals.

Several hours after the soccer officials were apprehended at the hotel, Swiss authorities said they had opened criminal cases related to the bids for the 2018 and 2022 World Cups — incidents that, more than any others, encapsulated FIFA’s unusual power dynamic. “In the course of said proceedings,” the Swiss officials said, “electronic data and documents were seized today at FIFA’s head office in Zurich.”