First Monday in October

The Justices are back to work. I wonder if they had Sunday night blues...

Anyway, here's the first order of the Term. Nothing really interesting except that the Court denied cert in an important insider trading case (More on that here).

The USA Today has a good article previewing the Term:

The Supreme Court embarks on a new term Monday that would make Yogi Berra proud: It truly is déjà vu all over again.

The justices will rule on affirmative action for the third time in four years. They will rule on public employee union fees for the third time in five years. They will deliver verdicts on class-action lawsuits and death penalty appeals, as they do virtually every year.

Before the term is out next June, they likely will consider the Affordable Care Act's so-called "contraceptive mandate" for the second time in three years and update what they meant a generation ago in ruling that states could not place an "undue burden" on women seeking abortions.

"It's kind of a term of sequels," says John Elwood, an appellate lawyer who argues frequently before the court. "There are many cases or questions presented from past terms ... that weren't decided the first time, and they're back now to be answered, hopefully, this upcoming term."

Other issues that could reach the court this term or next include President Obama's effort to shield millions of illegal immigrants from deportation, challenges to voter-identification laws and other restrictions, and efforts by merchants such as bakers and florists to turn down same-sex weddings.

So far, the cases granted for oral argument this fall point the court led by Chief Justice John Roberts back in a conservative direction after a year heralded by liberals — for the landmark gay marriage and Obamacare rulings as well as others on housing and employment discrimination, judicial fundraising, and the way legislative and congressional districts are drawn.

Interesting interstate commerce case before the Supreme Court

Cert was granted in Taylor v. United States — Whether, in a case under the Hobbs Act, the government must prove that robbery of a drug dealer does actually affect interstate commerce.

From Courthouse News:

David Anthony Taylor was indicted on July 26, 2012, on multiple charges of affecting interstate commerce when he robbed a drug dealer, identified in court documents as Whitney Lynch, of marijuana, drug proceeds and a cellphone in August 2009.
At the time, the documents said, Taylor was a member of the "Southwest Goonz," a gang that specialized in robbing drug dealers, who in knew both kept drugs and drug proceeds in their homes, and, because of their activities, would be reluctant to report the robberies to the police.
Taylor's first trial resulted in a hung jury. But a second jury convicted him on July 25, 2013, and he was sentenced to 28 years in prison, three years supervised release and a $1,000 fine.
Taylor appealed, contending both that the government failed to introduce sufficient evidence to establish that his robberies affected interstate commerce, and that the district court erred by preventing him from showing that the particular drugs he tried to steal did not affect interstate commerce.
But the Fourth Circuit held that because drug dealing in the aggregate necessarily affects interstate commerce, the government was simply required to prove that Taylor deplete or attempted to deplete the assets of such an operation.
It also held that "sufficient evidence was adduced at trial for a rational jury to find that Whorley was a drug dealer and that Taylor depleted or attempted to deplete his assets during the August 27 robbery."
"This is not to imply that the reach of the Hobbs Act is without limits," the Fourth Circuit said. "All robberies are disruptive, but not every disruption is an obstruction of commerce."
The court noted that the Sixth Circuit has held that the jurisdictional element of the Hobbs Act was not satisfied when the defendant stood convicted of robbing "private citizens in a private residence" of money, some of which just happened to "belong to a restaurant doing business in interstate commerce."

13 new cert grants

The Order is here. More to follow on the cases shortly.

Meantime, there is some sentencing reform bouncing around Congress. Let's see what happens. This will be a minor, but important and good, step forward. We still need the judges to step up... From the NY Times:

A long-awaited bipartisan proposal to cut mandatory prison sentences for nonviolent offenders and promote more early release from federal prisons is scheduled to be disclosed Thursday by an influential group of senators who hope to build on backing from conservatives, progressives and the White House.

The comprehensive plan, which has the crucial support of Senator Charles E. Grassley, the Iowa Republican who heads the Judiciary Committee, is the product of intense and difficult negotiations between Republicans and Democrats who hope to reduce the financial and societal costs of mass incarceration that have hit minority communities particularly hard.

The push has benefited from an unusual convergence of interests in an otherwise polarized Washington and has become a singular issue that usually warring groups have rallied around. Progressive advocacy groups have embraced the possibility of less jail time and better preparation for offenders when they are released; conservatives have championed the potential savings in reducing prison populations and spending on the strained criminal justice system.

According to those familiar with the still-secret agreement, the legislation proposes an extensive set of changes in federal sentencing requirements. Those changes include a reduction in mandatory minimum sentencing to five years from 10 for qualified cases; a reduction in automatic additional penalties for those with prior drug felonies; and more discretion for judges in assessing criminal history.

The legislation would also ban solitary confinement for juveniles in nearly all cases, and allow those sentenced as juveniles to seek a reduction in sentencing after 20 years. Many of the new rules could be applied retroactively to people now serving time.

Not sure the new laws will help the creative drug dealers here:

Investigators seized a sweet stash that looked like it was ready to be stuffed into a piñata earlier this summer, but drug testing proved it was more than nine pounds of methamphetamine, disguised to look like candy.

On Wednesday, Jorge Maldonado, 24, pleaded guilty to one count of conspiring to distribute the drug in Broward County. The charge carries a maximum punishment of life in federal prison.

Maldonado, of Okeechobee, was arrested July 7 in Lauderhill and admitted he was being paid $2,000 to deliver the methamphetamine to South Florida. Pieces of the drug were individually packaged in brightly-colored candy wrappers labeled with Spanish words.

Investigators have issued warnings in recent months about street drugs that have been disguised as hard candy. They say it is particularly dangerous because children and adults could unwittingly consume the drug.

A Bradenton man, Jesus Castellano, 53, who was arrested on related charges, is scheduled to plead guilty next week in federal court in Tampa. Authorities seized about another 19 pounds of the "meth candy" from his home in July.

Weeds or native plants?

Judge Posner discusses and uses pictures!

Good times.

It's an 8th Amendment Term from SCOTUS. From Rory Little at SCOTUSblog:

Last June, the Supreme Court’s Term ended not with the same-sex marriage opinions (announced three days earlier), but rather with Justice Stephen Breyer’s surprising and comprehensive opinion (joined by Justice Ruth Bader Ginsburg) in Glossip v. Gross, which announced that both Justices now “believe it highly likely that the death penalty violates the Eighth Amendment.” Justice Antonin Scalia responded that if the Court were to grant merits review on that question, then he correspondingly “would ask that counsel also brief whether” longstanding Eighth Amendment precedents, “beginning with Trop [v. Dulles (1958)], should be overruled.” Meanwhile, in the Glossip argument, Justice Samuel Alito had candidly described the many aspects of capital litigation as “guerilla war against the death penalty,” while Justices Sonia Sotomayor and Elena Kagan had remarked that the Court was being asked to approve an execution method akin to “being burned alive.” Needless to say, the Justices are deeply divided about the meaning and application of the Eighth Amendment’s “cruel and unusual punishment” clause.

Which makes it all the more interesting that in the Term that will open on October 5, five of the thirty-four cases in which the Court has granted review involve Eighth Amendment issues, four of them the death penalty. All five cases will be argued in the first three argument weeks of the Term (four in October, and the fifth on November 2). One can expect that the smoldering embers of the Glossip debate will be quickly reignited. This Term may be the biggest Eighth Amendment term in forty years (since Gregg v. Georgia in 1976).

...

After the Justices’ “long Conference” on September 28, at which they will address hundreds of cert. petitions that have piled up since the summer recess began, the Court will announce review in a number of new cases of great import. Some may well divert attention from what appears to be an unusual focus on Eighth Amendment cases and questions. But the granting and argument of five Eighth Amendment cases to open the Supreme Court’s 2015 Term signals, I think, the deep cultural (as well as economic and federalism) concerns that Americans in general seem to have regarding capital punishment. In at least some of these cases – with that of the Carr brothers being the best example – there seems to be no doubt about guilt. The horrific character of multiple rapes and murders is undeniable. Yet in Carr, while affirming the defendants’ guilt, the Kansas Supreme Court nonetheless found reason to vacate their death sentences. Such cases thus starkly showcase the divergent views on the Eighth Amendment – and a nine-Justice Court is not different in this regard from much of America. So stay tuned for what may be the most dramatic Supreme Court discussion of Eighth Amendment values since its re-affirmation of capital punishment statutes long before the Justices’ law clerks were born.

And locally, former TD Banker Frank Spinosa is going to plead guilty.

Supermoon Sunday

It's more exciting than watching the Dolphins.  Yikes.  SO bad.

ICYMI, Friday night was the big Federal Bar shindig.

The Clerk, Steve Larimore, won the Ned Davis award.  It's a really important honor and I'm glad we remember Judge Davis and his wife Pat every year.  Congrats to Steve!

We also welcome the new President of the organization, Oliver Ruiz, and wish outgoing President Candace Duff well.  She did a great job and the organization is in good hands with Oliver.

Finally, no jail for this former secret service agent who used counterfeit money.  From Paula McMahon:

Cynthia LaCroix, 51, former office administrator for the Secret Service's West Palm Beach branch, eventually admitted she had been stealing forged bills that were supposed to be burned or shredded. Though the agency is best known for protecting the president and other dignitaries, it also investigates financial crimes, fraud and counterfeiting.

Earlier this year, LaCroix pleaded guilty to possessing counterfeit notes and lying to federal investigators when they questioned her.

Authorities said LaCroix spent the phony money at local malls and pocketed authentic change. Federal prosecutors recommended she serve 12 months in federal prison.

But Friday, LaCroix's previously clean record and her tragic motive convinced U.S. District Judge Kenneth Marra to sentence her to six months of house arrest and two years of probation. He said imprisonment was unnecessary.

Sobbing as she apologized profusely in federal court in West Palm Beach on Friday afternoon, LaCroix said she stole the money so she could help her son, who struggled with drug addiction for years before dying from a drug overdose. She is now raising his two young children.

"Ad hominem attacks, irrespective of how effective they may be, cannot obfuscate the requirement that the government must prove its case beyond a reasonable doubt. While this Court, and even John Adams, might have concurred with the government’s characterization of McLean, in order to obtain a conviction the government must present evidence as to each element of an offense—and that is precisely what it failed to do here."

That was visiting district judge Harvey Schlesinger for a unanimous 11th Circuit, affirming the judgment of acquittal for David McLean in this interesting opinion.

R.I.P. Yogi

He was an original. How many originals are left?







What's going on in the District?  Any trials or interesting hearings?  Email me!  You too judges!

In the meantime, Trump or Colbert?



Here is SCOTUSBlog's first Petitions to Watch on the Long Conference.

And the feds brought this child porn case, with a guy who was encrypting his data, via Paula McMahon.

Tuesday News & Notes

1. Is Justice Alito the best or worst Justice on the Court? The best... Just ask him. Here's what he said about the 4th Amendment:

Alito moved onto privacy and the 4th Amendment. “Another change in the past decade has been constitutional protection for privacy. During the past ten years, the Court has applied the 4th amendment’s prohibition against unreasonable search and seizure to modern technology. I think this is going to be a very big issue moving forward. The 4th amendment was adopted with traditional property law in mind. What was once new technology (wiretap and eavesdropping), it was difficult to apply old property based standards to the new technology. The Court adopted a new test, and looked to reasonable expectation of privacy on the part of the individuals. That standard worked for a while, but with the development of new technology, it has become very difficult
The first case was “United States v. Jones, which involved placing a GPS tracking device on someone’s car. How do you apply the 4th amendment standard to that situation? What government has done is to take the precedents developed during the pre-digital error and apply them mechanically to the new issues. It has not worked in the Jones case. The Court decided the case on a ground I did not agree with. The Court looked back to common law trespass law–there was a trespass for law enforcement to place electronic device on a car. The placement of the device did not harm–that missed what was really the important issue. That missed the important issue which was the surveillance of the device on the car.
The “second case was Riley v. California–whether police can search the contents of cell phone. In the pre-digital era, police could search the person of someone who is arrested, and if that person has stack of letters, that could be searched. But what do you with a smartphone at the time of arrest. We held that content could not be taken without a warrant or probable cause.”
Alito closed with a call for Congress to address these issues, not the Court. “These are just some of the issues that may come up. The problem is that in making determinations we are put in a position of determining what is a reasonable expectation of privacy. We are very ill-positioned to make these determinations. We are older than the average person. This may come up as a surprise–We are not up on all the latest technology. If privacy is to be protected in the future, that balances the interests of law enforcement and the interest of privacy, legislatures should take the lead. They are in a better position that the courts.”

2. The Detroit Free Press says that the Presidential candidates should have a real debate about the Court. The conclusion:

And in fact, the same impulses that have driven his contempt for discrimination against gays shape his opposition to race-conscious policies like affirmative action. Kennedy doesn’t care whether the government is treating people different in the name of expanding their liberty or confining it; his point is that the government ought not be in the business of treating people differently.

Roberts, too, is a conservative rock, even when he’s voting in favor of preserving the Affordable Care Act. In both rulings, he was exercising deference to Congress’ lawmaking abilities, and the court’s responsibility to carve wide berth — and avoid nitpicking defeatism — in interpreting what the popularly elected branches want or intend to do.

Sounds pretty conservative to me. I doubt Roberts, or Kennedy for that matter, is rushing off to join even the most conservative wings of the Democratic party.

I know the Republican candidates were poking at Roberts only by way of jabbing at Obama; this is primary season, and they know there are votes to be mined in the opposition to just about anything the current president has done.

And I know that, in office, the brash calculations of a debate-stage performance almost always give way to more considered, thoughtful decision-making. Especially when it comes to the high court.

3. Joseph Zada is trying to get an appellate bond from Judge Marra, via the PB Post.

4. The 11th Circuit has rejected a vagueness challenge to the career offender guidelines based on Johnson, via SL&P.