Bueller? Bueller?

Should be an interesting few days in mag court... About 80 people were arrested for Medicare fraud over the last few days, and the PDs and CJA lawyers are having their annual conference in Naples. The PD's office always leaves behind an emergency lawyer, who is going to be very very busy. I wonder who drew the short straw this time. 

"Sometimes running a district court can be like a high-wire balancing act. But when it comes to ensuring the competence of defendants when they go to trial or plead guilty, the court takes on the role of a safety net."

That was Judge Rosenbaum today for a unanimous 11th Circuit in United States v. Wingo.  The rest of the intro is also really well done:

Sometimes running a district court can be like a high-wire balancing act. But when it comes to ensuring the competence of defendants when they go to trial or plead guilty, the court takes on the role of a safety net.
Our criminal-justice system depends on the exercise of, or knowing and intelligent waivers of, constitutional rights. But to engage in these activities, a defendant must first and necessarily have the abilities to understand the proceedings and to assist counsel. Because competence is the base upon which other constitutional rights balance, due process and Section 4241(a) of Title 18 of the United States Code demand that a hearing on a defendant’s competence be held whenever reasonable cause exists to believe that a defendant may not be competent to proceed to trial or to enter a guilty plea.
Here, no hearing occurred, despite evidence creating reasonable cause to believe that Appellant Andrew Wingo might not have been competent to proceed. We therefore hold that the district court did not satisfy its duty under 18 U.S.C. § 4241(a). We remand this case to the district court so that it can determine whether Wingo’s competency at the time of his guilty plea can be evaluated nunc pro tunc, and if so, for an assessment of his competency at the time of his guilty plea and sentencing. If Wingo is determined to have been incompetent, or if a nunc pro tunc evaluation cannot be made, Wingo’s conviction and sentence must be vacated, subject to the government’s right to try him should he become competent. On the other hand, if Wingo is determined to have been competent, his conviction and sentence must be affirmed.

Meantime, Justice Scalia referred to Justice Ginsburg as Justice Goldberg.  WHOOPS.

While delivering the decision in the immigration case Kerry v. Din on Monday, Scalia listed the justices who dissented from the opinion and, instead of saying “Ginsburg,” said “Goldberg.”

Chief Justice John Roberts leaned over and whispered in his ear, to presumably notify him of the error.

“What did I say?” he asked Roberts, drawing laughter from spectators and members of the press in the courtroom.

After his colleagues told him what he said, Scalia shook his head and apologized to Ginsburg.

“Sorry about that Ruth,” he said.

Scalia was of course quick to joke when Joe Klock famously messed up a bunch of names before the Supreme Court:

Arguing a case before the Supreme Court is a dream for many lawyers, a chance to shine before the nation’s highest court. But it seems attorney Joseph Klock could use a little more polish.

Klock, representing Florida Secretary of State Katherine Harris, stumbled responding to questions during the Bush vs. Gore case Monday morning, twice referring to justices by the wrong name.

First, Klock surprised everyone in the courtroom by referring to Justice John Paul Stevens as “Justice Brennan,” apparently referring to Justice William Brennan, who retired from the Supreme Court in 1990 and died in 1997.

“I was so tired that I was happy I didn’t call one of them Justice Gore,” Klock told Good Morning America today. “And I’m not really very good with names.”

And after his first mix-up Monday, Klock referred to David Souter as “Justice Breyer,” referring to another of the court’s justices, Stephen Breyer.

“I’m Justice Souter,” came the reply from the bench. “You’d better give that up.”

Then Justice Antonin Scalia got into the act, drawing a roar of laughter from the gallery by beginning his next question, “Mr. Klock, I’m Scalia.”

Enjoy:

Judge Huck's Federal Court Observer Program

It's become a big hit -- a capacity crowd on Friday for interns, law clerks, and young associates.  Here's a picture from the panel of judges (Huck, Jordan,Scola & Valle):

You should get on over to SCOTUSBlog for new opinions this morning.  The Term is just about over....

After that, you should grab a drink at lunch today.  That's what Justice Stevens (age 95) says to do!  From the Chicago Sun-Times:

Over the next 35 years, Stevens rendered more than 1,400 opinions in a career that defies summation, at least here.  He was liberal and, as such, his beliefs could actually mature and change. Williams highlighted the evolution of Stevens’ thought regarding death penalty, from finding it constitutional in Gregg V. Georgia in 1976, to  deeming it “cruel and unusual” — and thus banned by the Constitution — for people with mental handicaps in Atkins v. Virginia in 2002, to finding it morally wrong altogether in Baze v. Rees in 2008.

“The penalty really does not fit in our society anymore,’ Stevens said.

His advice to young lawyers ranged from the value of studying poetry — which he found “extremely valuable” on the bench because “it helped me in my work as a judge” — to the best way to counteract a bad day: “drink at lunch” (advice he couldn’t have taken too often, or he wouldn’t have made it to 95).

I'll certainly need one after that Game of Thrones last night.  

So you wanna be a judge?

Well, there are three openings -- two in the Middle District and one in the Northern District.  This notice went up today on the court's website, seeking applications for judge (due August 3). 

There is also a new slate of JNC members (see here).

And new JNC rules.

Melgen still being held

Apparently he can't get a letter from the Dominican Republic that they will extradite him to the U.S.  This all seems over the top to me.  A judge in New Jersey let him bond out without such a letter.  He knew about the investigation for many years and traveled back and for to the DR and always came back. What are we doing here?

In other news, a few judges had a smooth hearing with the judiciary committee yesterday.  It's very slow going... Hopefully Mary Barzee Flores will be up soon.

Still waiting on the Supreme Court to finish up the Term.  Linda Greenhouse talks about it.

American Pharoah’s stretch run in the Belmont Stakes was a beauty to behold. The Supreme Court’s stretch run in the closing weeks of its term? Not so much.

I can’t remember a second week in June during which the justices delivered only one opinion. This was Monday’s decision upholding the president’s prerogative in the Jerusalem passport case, Zivotofsky v. Kerry, issued more than seven months after the argument. At that pace, it would be Thanksgiving before the court issued its decision in the same-sex marriage cases that it heard at the end of April. But that won’t happen; one way or another, with 20 cases left to decide, the court will wrap up its term before the Fourth of July.

The justices’ silence doesn’t mean indolence, of course; a great deal is happening below the surface and behind closed doors. For example, it’s obvious that there is a struggle going on over whether the court should revisit Fisher v. University of Texas, which affirmative-action opponents have dragged back onto the court’s docket for another try at using this thoroughly moot case as a battering ram against considering race as a factor in college admissions. On Thursday the case goes to the justices’ closed-door conference for a fourth week. If the justices eventually deny the appeal, or even if they decide to hear it, we may never know what arguments were on the table during those weeks.

So we can thank Justice Clarence Thomas for pulling back the curtain a bit this week when he issued a public dissent from the court’s refusal to hear a challenge to a San Francisco gun control ordinance. This case, Jackson v. City and County of San Francisco, went to conference six times before the court issued an order on Monday denying review. Even without Justice Thomas’s dissenting opinion, which only Justice Antonin Scalia joined, it would have been obvious that something was afoot, but we wouldn’t have known exactly what.

And the 11th Circuit just granted a state habeas for a potential Miranda violation.  Enjoy the read.

Tuesday news and notes

1.  More on House Srebnick and the cert grant, from the DBR:

The U.S. Supreme Court agreed Monday to decide in a Miami case whether federal prosecutors can freeze untainted assets a criminal defendant needs to retain an attorney.
Miami attorneys and brothers Scott and Howard Srebnick filed a petition for writ of certiorari in the case of Sila Luis. Senior U.S. District Judge Paul Huck in Miami froze Luis' assets after she was indicted in a Medicare fraud scheme.
The defense attorneys believe the government violated Luis' Fifth and Sixth Amendment rights to due process and to counsel of her choice.
"Our view is that she's not yet been convicted, she's not yet had a trial, and under our Constitution she has the right to use her own legitimate assets to pay for defense," said Howard Srebnick of Black, Srebnick, Kornspan & Stumpf.

2.    Justice Scalia gives a funny graduation speech on platitudes.  From the Washington Post:

Supreme Court Justice Antonin Scalia delivered an off-the-bench opinion on graduation addresses Thursday, drawing laughter and applause as he criticized cliches that don’t work during a commencement speech at an all-girls Catholic school.
“My problem with these platitudes is not that they are old and hackneyed, but that a lot of them are wrong,” Scalia said, standing before 79 graduates and hundreds of relatives and friends in the main gymnasium at Bethesda’s Stone Ridge School of the Sacred Heart.
***
As they and others listened, Scalia parsed a litany of stock phrases, melding them with his own advice. He first took issue with the oft-expressed sentiment that “we face unprecedented challenges.”
“Class of 2015, you should not leave Stone Ridge High School thinking that you face challenges that are at all, in any important sense, unprecedented,” he said. “Humanity has been around for at least some 5,000 years or so, and I doubt that the basic challenges as confronted are any worse now, or alas even much different, from what they ever were.”
Scalia — dressed in a suit and tie — took on other bits of advice, too, including, “To thine own self be true.”
“Now this can be very good or very bad advice, depending on who you think you are,” he said, as laughter rippled through the crowd.
He also turned some age-old sayings on their head.
“Never compromise your principles,” Scalia said, “unless of course your principles are Adolf Hitler’s, in which case you would be well advised to compromise them as much as you can.”

 3.  When does counsel need to raise suspicions about jurors?  The Second Circuit issued an interesting opinion about juror misconduct but didn't address the question head on.  Here's Alison Frankel:

The 2nd U.S Circuit Court of Appeals undid an injustice Monday when it ordered a new trial for David Parse, a one-time Deutsche Bank broker who was convicted in 2011 for his alleged participation in a tax shelter scheme supposedly masterminded by the now-defunct law firm Jenkens & Gilchrist. In an opinion by Judge Amalya Kearse, the appeals court said Parse’s conviction was tainted by a biased juror who admitted after trial that she had told a series of breathtaking lies during voir dire. Even though Parse’s former lawyers at Brune & Richard had turned up Internet evidence before and during trial that raised suspicions about the juror, the 2nd Circuit said, Parse had not waived his right to an impartial jury.

But the appeals panel refused to define exactly when lawyers are obliged to inform judges that prospective jurors might be lying in order to preserve their clients’ constitutional rights. Parse’s counsel, Alexandra Shapiro of Shapiro Arato, and the New York Council of Defense Lawyers, in an amicus brief, had asked the 2nd Circuit to establish a bright-line rule that defense counsel need not report concerns unless they are sure of jurors have done something wrong. Judge Kearse and the other members of the 2nd Circuit panel, Judges Richard Wesley and Chester Straub, said they doubted “that such a sweeping and absolute rule is appropriate,” and that, in any event, they didn’t need to devise a broad rule to resolve Parse’s appeal.

That’s a missed opportunity to clarify the implications of juror research that has become commonplace in white-collar cases. The Parse opinion seems to imply that judges should not construe defense counsel’s failure to alert the court of their suspicions as a waiver of their client’s Sixth Amendment right to an unbiased jury. I doubt, however, that any lawyers want their clients to go through Parse’s ordeal of four years of post-trial and appellate proceedings before securing a new trial. Defense lawyers in the 2nd Circuit will probably have to err on the side of disclosure if their investigation of prospective jurors turns up anything untoward: Tattling to judges may invade jurors’ privacy and annoy the court, but that’s preferable to risking a defendant’s constitutional rights.

Salomon Melgen granted bail on appeal by Judge Marra (and breaking news re a cert grant from the SDFLA)

New judge, new lawyers, new bond hearing.  Judge Marra did the right thing here and reversed the detention order by the magistrate judge.  From the Palm Beach Post:

North Palm Beach ophthalmologist Salomon Melgen will be allowed to post bond and leave jail pending his trial on charges that he bilked Medicare out of $105 million, a federal judge decided Friday.
But the wealthy 61-year-old physician won’t be released before a hearing Monday for U.S. Magistrate James Hopkins to set the size of the bond. U.S. prosecutors are asking that he be required to pay $20 million to secure his release from the federal detention center in Miami.
While leaving that task up to Hopkins, U.S. District Judge Kenneth Marra said Friday he was putting conditions in place to help reduce prosecutors’ fears that Melgen would flee to his native Dominican Republic or seek refuge elsewhere on the globe.
Melgen, who has been held in custody without bond since his April arrest on charges that he falsely diagnosed and treated hundreds of patients for macular degeneration to illegally inflate his Medicare billings, will be held on house arrest with electronic monitoring once he has posted bond, Marra ruled. But, he said, Melgen won’t be staying at his $2.3 million waterfront home in Captain’s Key near Juno Beach.
“Defendant shall not reside at a location adjacent to or with access to a waterway,” he said in the four-page ruling. Melgen will also will be stripped of any ability to use his boat or private jet.
Marra also ordered the doctor to provide a written declaration from Dominican government leaders, pledging that they won’t block his extradition should he seek safe harbor in his homeland.
...“The court concludes that nature and notoriety of the charges (Melgen) is facing in New Jersey, and the fact that he is a co-defendant with a United States Senator, makes it unlikely that any attempt to flee would be successful,” he wrote. “Great diplomatic and political pressure would be brought to bear on any country that might consider shielding (Melgen) from extradition.”
In addition, he said, Melgen’s wife, son and daughter will be required to pledge their assets to guarantee his return. The possibility that he would leave his family “financially devastated” should curb any desire to escape prosecution, Marra wrote.
Melgen, he said, has had months, if not years, to flee. For at least two years, he has been under investigation for health-care fraud and for his relationship with Menendez. Weeks before he was alerted by prosecutors in New Jersey that his indictment there was imminent, he traveled to the Dominican Republic for a wedding and returned, Menchel said.
“Certainly,” Marra wrote, “if (Melgen) intended to flee, he had his chances.”

I'm not sure I understand sending it back for a determination by the magistrate judge to set the actual bond amount, but I am sure that the new defense team is thrilled that their client is getting out.

Meantime, check out this article in the Washington Post about sentencing.  What has happened to our system?

And in breaking news, the Supreme Court this morning granted cert in Sila Luis v. United States, Howard Srebnick's follow up case to Kaley. This time he paired up with brother Scott Srebnick.  Here is the 11th Circuit unpublished opinion, which affirmed Judge Huck.  The question will address whether the pretrial restraint of forfeitable substitute assets needed to retain counsel of choice violates the Fifth or Sixth Amendment. 

Early coverage from the AP:

The Supreme Court agreed Monday to decide whether the government can put a hold on untainted money and property that a criminal defendant needs to hire a lawyer.

The justices said that they will review the case of Sila Luis of Miami-Dade County, Florida, who has been indicted on fraud charges involving $45 million in allegedly improper Medicare payments. On the same day Luis was indicted in 2012, federal prosecutors froze her assets.

Luis said the freeze includes money with no ties to the charges against her and that she has a constitutional right to use the funds to hire a lawyer to mount a defense. Lower courts ruled against her.

...The new case goes to whether untainted money can be frozen when the defendant needs it to hire a lawyer. The Justice Department said the assets can be frozen even if they are untainted. In this case, the government said it sought to freeze substitute assets that would be forfeited after a conviction because Luis already has spent the ill-gotten gains on luxury items and travel.

Did the Eleventh Circuit Just Make It Harder to Attain Summary Judgment in Diversity Cases?

Last week, the Eleventh Circuit handed a major victory to Florida FedEx drivers who brought claims for back pay against FedEx. The claims of these and of other FedEx drivers around the country were consolidated as an MDL, and the MDL court certified a Florida-driver class. But the court then granted FedEx’s motion for summary judgment, concluding that the drivers were independent contractors and not -- as the Florida drivers alleged -- employees. After a few of the Florida drivers lost their individual claims, the Florida drivers appealed from the grant of summary judgment, and the Eleventh Circuit reversed, concluding that the question whether the drivers were employees or independent contractors under Florida law was for the jury to decide.

Judge Jordan’s comprehensive opinion for the court in Carlson will surely serve as the go-to source for employee–independent contractor questions under Florida law. But -- even outside the employment context -- it may also serve as a principal source for how close summary-judgment questions are resolved in cases by district courts sitting in diversity. Not only did the court apply Florida substantive law on determining when somebody’s an employee, but the court also appeared to defer quite heavily to how Florida courts would make that determination on summary judgment -- an apparently procedural inquiry.

Here’s the first full paragraph on page 7 of the opinion:

The claims of the Florida drivers stand or fall on the common question of whether FedEx properly classified them as independent contractors. In Florida, “[i]t is well-established that the question of an employer/employee relationship is generally a question of fact, and therefore a question for the trier of fact.” Pate v. Gilmore, 647 So. 2d 235, 236 (Fla. 1st DCA 1994). Accord Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 853 (Fla. 2003) (“The existence of an agency relationship is normally one for the trier of fact to decide.”). Nevertheless, the general default rule does not always apply, and Florida courts have not hesitated to grant summary judgment on the employee/independent contractor question when the circumstances warrant. See, e.g., Miami Herald Pub. Co. v. Kendall, 88 So. 2d 276, 279 (Fla. 1956).

The court then reviewed Florida case law, the facts before it, and concluded that although the material facts were “largely undisputed,” the “inferences that can be drawn from those facts are not.” Summary judgment, the court held, was inappropriate.

The court -- relying squarely on established circuit precedent that all inferences are drawn in the non-movant’s favor -- could’ve stopped the opinion there and reversed. But it went on:

After all, employee/independent contractor cases are necessarily fact-intensive, and the general rule in Florida is that whether a worker is an employee is usually a question of fact. Factually speaking, Del Pilar [where an appellate court reversed a grant of summary judgment] is the closest Florida opinion we have, and we cannot say that the Florida Supreme Court would have decided that case different…. Although we recognize that Del Pilar is not binding in the Rule 56/summary judgment sense -- because federal law determines whether the evidence suffices to entitle a party to summary judgment -- it is nevertheless highly informative given that it involves the same package delivery industry and that Florida’s summary judgment standard is very similar to that of Rule 56.

Erie and its progeny have opted for vertical uniformity in diversity cases, so that with respect to substantive law a case filed in federal court will be handled in the same way as it would be in the courts of the state where the federal court sits. By ruling consistently with Del Pilar, we ensure that this case is decided in a Florida federal court as it would be in a Florida state court, and thereby discourage forum shopping as between federal and state courts in Florida and prevent the inequitable administration of the law.

Federal courts exercising diversity jurisdiction must “apply state substantive law and federal procedural law.” Hanna v. Plumer, 380 U.S. 460, 465 (1965). And in Carlson the court certainly did that -- it applied Florida substantive law to whether the drivers were employees and it applied federal procedural law to whether summary judgment was properly granted. But the court appeared to apply that federal procedural law with a healthy dose of Florida procedural law, too.

For example, the court accepted -- if not outright adopted -- Florida courts’ characterizations that the employee–independent contractor issue is “generally a question of fact” “for the trier of fact,” and referred to this as a “general default rule” and a “general rule.” Whether it should have done so is unclear. On the one hand, a recent decision of the Ninth Circuit seems to support this approach. See EncompassIns. Co. v. Coast Nat’l Ins. Co., 764 F.3d 981, 984 (9th Cir. 2014) (“Whether an issue is a question of law or a question of fact is a substantive question, to which state law applies. Once we determine whether an issue is a question of law or a question of fact, however, the proper standard of review is a question of federal procedure and is governed by federal law.” (citation omitted) (internal quotation marks omitted)). But a treatise leans in the other direction: “[c]haracterization as fact or law is governed by federal law, because it implicates the relationship between judge and jury.” 19 Charles Alan Wright et al., Federal Practice and Procedure § 4511 (2d ed. Apr. 2015). The Seventh Circuit, too, has stated that “the fixing of the boundary between questions of law and questions of fact[] is a matter of federal procedural law and therefore governed by federal rather than state law in diversity as in other federal suits.” Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 1996). In the light of the Carlson court’s statements, a judge who might otherwise conclude that no genuine dispute exists about whether a plaintiff is an employee might instead leave that question to the jury.

Further, although the panel in Carlson stated it wasn’t bound by a Florida court’s decision in the “Rule 56/summary judgment sense,” it nonetheless found desirable ruling consistently with it (that is, against summary judgment) to discourage forum shopping. But other authorities suggest -- at least in broad language -- that similar cases might indeed be decided differently on summary judgment depending on the forum in which the case was brought. See McEwen v. Delta Air Lines, Inc., 919 F.2d 58, 60 (7th Cir. 1990) (“Erie does not require a federal court to employ the state’s rules on the allocation of issues between judge and jury.... Federal courts may grant summary judgment under Rule 56 on concluding that no reasonable jury could return a verdict for the party opposing the motion, even if the state would require the judge to submit an identical case to the jury.”).

Carlson is an important employment-law decision. But it might be an even more important summary-judgment decision, and it could influence -- it arguably requires -- lower courts sitting in diversity in the Eleventh Circuit to consider how state courts would handle motions for summary judgment. Most of the time, to be sure, the result will unquestionably be the same. But given how many issues Florida courts regard as questions of fact for the jury to decide (according to a quick Westlaw search in the Florida state database, courts have characterized as fact issues intent, causation, whether touching is “offensive” so as to make it a tort, the value of property, and the existence of a partnership, to name a few), summary judgment in some diversity cases may now be harder to attain.