Awesomeness

Really funny, especially Larry David as Bernie.

If you want some local news, check out Paula McMahon's article about this courtroom deputy who got 8 years for child pornography.  Or about this guy who didn't have the best flight.

If you are interested in the cell-site data case we are working on, Forbes covers it here.  We are filing our reply in support of cert tomorrow.

"The Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta alleges that the Florida Priory of the Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, the Ecumenical Order is infringing its registered service marks in violation of the Lanham Act, 15 U.S.C. § 1114, and Florida law."

Oh they're at it again... This is the latest in the running dispute between these parties. Judge William Pryor reverses again: "On remand, the district court misapplied several factors in its analysis of likely confusion, incorrectly assessed the Florida Priory’s defense of prior use, relied on historical testimony that we previously deemed inadmissible, and misinterpreted our instructions about consulting facts outside the record. Because the district court erred again, we reverse again. But we deny the Sovereign Order’s request to reassign the case to a different district judge."

This makes me happy.

Harvard debate team loses to NY inmates, via the AP:

Months after winning a national title, Harvard's debate team has fallen to a group of New York inmates.

The showdown took place at the Eastern New York Correctional Facility, a maximum-security prison where convicts can take courses taught by faculty from nearby Bard College, and where inmates have formed a popular debate club. Last month, they invited the Ivy League undergraduates and this year's national debate champions over for a friendly competition.

The Harvard debate team also was crowned world champions in 2014. But the inmates are building a reputation of their own. In the two years since they started a debate club, the prisoners have beaten teams from the U.S. Military Academy at West Point and the University of Vermont. The competition with West Point, which is now an annual affair, has grown into a rivalry.

At Bard, those who help teach the inmates aren't particularly surprised by their success.

"Students in the prison are held to the exact same standards, levels of rigor and expectation as students on Bard's main campus," said Max Kenner, executive director of the Bard Prison Initiative, which operates in six New York prisons. "Those students are serious. They are not condescended to by their faculty."

Students on the Harvard team weren't immediately available for comment, but shortly after the loss, they posted a comment on a team Facebook page.

"There are few teams we are prouder of having lost a debate to than the phenomenally intelligent and articulate team we faced this weekend," they wrote. "And we are incredibly thankful to Bard and the Eastern New York Correctional Facility for the work they do and for organizing this event."

SCOTUS debates Florida death penalty post Ring

I'm sure it was more interesting than the snoozer of a debate last night in which the Supreme Court didn't come up.

The DP case before the Supreme Court was Hurst v. Florida. SCOTUSBlog has coverage of the interesting oral argument:

The case is about a brutal murder in a fast-food restaurant in Pensacola, but it reaches the Court as a clear-cut test of what the Justices had in mind in the 2002 decision in Ring v. Arizona. That ruling seemingly enhanced the role of the jury in capital punishment cases, assigning them the crucial task of deciding the facts that make a person accused of murder eligible to be put to death.

The Florida Supreme Court has taken the position that the Ring decision does not even apply to its death penalty system — a position that its lawyer — state Solicitor General Allen Winsor — did not repeat on Tuesday, even as he argued that the system fully satisfies that ruling. It would be Winsor who would, before the hearing ended, face the hardest questions about moral responsibility.

Hurst’s lawyer, Washington, D.C., attorney Seth P. Waxman (a former U.S. Solicitor General), left no doubt from the outset that he was aiming to put Winsor on the defensive on the jury question. “Under Florida law,” he began, “Timothy Lee Hurst will go to his death despite the fact that a judge, not a jury, made the factual finding that rendered him eligible for death.”

Under Florida law, no one can be put to death unless there is a finding of one “aggravating factor” — usually, some fact about the crime or the way it was committed that would justify the ultimate penalty. The jury, Waxman noted, only offers an advisory opinion to the judge about such factors, and then suggests either life or death.

Waxman quoted from Florida law, noting that the judge makes the crucial finding of aggravating factors “independently, and, quote, ‘notwithstanding the jury’s recommendation as to sentence.'” For most of his argument, he never strayed far from that point or from his secondary point that Florida is the only state to do it in that way. The Justices, as usual, tried a few hypotheticals to test the way the Florida arrangement actually works, but the sidelining of the jury was almost always a part of Waxman’s answers.

From the moment that Florida’s Winsor took the lectern, arguing at first that his state’s system was constitutional before and after Ring v. Arizona, he was almost constantly bombarded with probing questions about what juries actually did under that system. Justice Sonia Sotomayor was perhaps the most aggressive questioner.

Winsor sought to show that the task given to Florida juries was a serious one, but the questions from the bench continued to suggest that, no matter what the jury did or recommended, it could be overridden by the final choices that are assigned to the judge. At some points, it appeared that the state’s lawyer was making at least some concessions that part of the system would not satisfy the Ring precedent.

Some light reading for those working on Columbus day

1. Diveroli v. U.S. starts this way (per Judge W. Pryor):

Efraim Diveroli’s story is so outlandish that it has inspired an article in Rolling Stone, a book, and a forthcoming comedy film. See Guy Lawson, How Two Stoner Kids from Miami Beach Became Big-Time Arms Dealers—Until the Pentagon Turned on Them, Rolling Stone, Mar. 31, 2011, at 52; Guy Lawson, Arms and the Dudes: How Three Stoners from Miami Beach Became the Most Unlikely Gunrunners in History (2015); Borys Kit, Jonah Hill to Star in Crime Comedy ‘Arms and the Dudes,’ The Hollywood Reporter (Dec. 3, 2014, 4:56 PM), http://www.hollywoodreporter.com/news/jonah-hill-star-crime-comedy-753760. By age 21, Diveroli started his own company, became an international arms dealer, and won a $298 million contract with the United States Army to provide ammunition to Afghanistan. But his meteoric rise would not last. The contract prohibited Diveroli’s company, AEY, from acquiring ammunition from Chinese manufacturers. When Diveroli learned that his primary supplier obtained its ammunition from China, he and his cohorts concealed the origin of the ammunition and falsely attested that it was from Albania. A grand jury indicted Diveroli, AEY, and his coconspirators on 85 counts of major fraud, wire fraud, and conspiracy to commit fraud. After Diveroli’s attorney advised his client about the charges and estimated that he faced a sentence of 168 to 210 months if convicted, Diveroli pleaded guilty to one count of conspiracy for which the district court sentenced him to 48 months of imprisonment.
Diveroli moved to vacate his sentence, 28 U.S.C. § 2255, on the ground that his attorney miscalculated his potential sentencing exposure, which Diveroli argues was only 70 to 87 months. Diveroli argues that he would have proceeded to trial but for his counsel’s error. The district court denied his motion without an evidentiary hearing. Because the record establishes that Diveroli faced overwhelming evidence of guilt and had no viable defenses, we affirm.

2. If you are interested in the "rarely charged" crime of misprision of a felony, there is a lot to be said about it here (with a lengthy concurrence by Judge Martin). The background:

The misprision charge brought against Brantley stems from tragic events that occurred on June 29, 2010. Brantley was pulled over in a routine traffic stop. Brantley’s boyfriend, convicted felon Dontae Morris, was a passenger in her car. Upon questioning by the police, he emerged from the car and shot and killed two officers. He then fled on foot as Brantley sped away. Within minutes, Brantley spoke with Morris on a cell phone, and thereafter hid the car and exchanged texts with Morris. The traffic stop itself -- including the shootings -- was recorded by the dashboard video camera in a police car. The video was played for the jury.
At trial, the jury ultimately found that Brantley knew about a federal felony (her convicted-felon boyfriend’s possession of the firearm which he used to shoot the officers), did not report that crime to the authorities, and, in the aftermath of the murders, took affirmative steps to conceal Morris’s felony from the authorities.

3. Or if you are really desperate, you can check out my op-ed in the Jamaican Gleaner about the juror misconduct in Buju Banton's case. The conclusion:

US District Judge James S. Moody, rightfully outraged that a juror would disregard his instructions, found Wright guilty of criminal contempt and even ordered her to write a report about the cost of Buju's expensive six-day trial.

Although Wright will never get to fulfil her dream of being a professional juror, she will get to move on with her life. She won't have to do one day in jail. Buju, on the other hand, isn't set to be released from federal prison until 2019. Our system failed him.

The Times, They Are A Changin

That's the Bob Dylan song that Justice Scalia sang to Justice Ginsburg after the same-sex marriage case was decided. I'm not kidding.

Former AUSA, current Broward state judge resigns

The Sun-Sentinel has all of the details:

Broward Circuit Judge Lynn Rosenthal, who was facing a disciplinary hearing over her conduct following her arrest on a DUI charge last year, has resigned effective Oct. 31.

Her decision was confirmed on the same day the Judicial Qualifications Commission (JQC) announced a schedule of hearings in her misconduct case, which are now likely to be canceled.

"She called me and told me she's chosen to resign, effective the end of this month," said Broward Chief Administrative Judge Peter Weinstein. "This gives us enough time to decide who will replace her in her division."

Rosenthal has mostly handled foreclosures since her arrest on May 27, 2014. On that morning, Rosenthal arrived outside the courthouse showing signs of being impaired. She sideswiped a parked patrol car and repeatedly drove into the gate of the judicial parking lot between the courthouse and the Broward Main Jail.

According to police reports, she told investigators that she had taken an accidental overdose of the prescription sleep aid Ambien the night before. A breath test showed she was not under the influence of alcohol, but Rosenthal refused to submit to a blood or urine test that would have indicated whether she was affected by any other drug.

Prosecutors said there was a bottle of Xanax in her car.

During a JQC investigation that followed, Rosenthal admitted that she had recorded a video using her cellphone as she was driving to work. The video, police said, showed her driving erratically on Interstate 595. Rosenthal's husband deleted the video after police had seen it.

The JAABlog broke the story.

Narcos are still cooking

And shipping... here, in coffee (via New Times):

Officers were screening the package when they decided to send it through an x-ray. Something seemed funny, and officers found odd clumps in the coffee grounds. Further testing revealed those clumps were in fact cocaine — 4.1 pounds of it.

The shipment was being sent from Peru to an address in New Jersey.

“We’re extremely proud of our CBP officers and their ability to detect and seize narcotics,” Miami International Airport port director Christopher Maston said in a statement. "They remain dedicated to protecting the American people from dangerous drugs.”

Smugglers often try all sorts of crazy ways to sneak cocaine through customs at the airport. In August, CBP reported it had found 80 pounds of cocaine and heroin hidden in shipments of flowers traveling from Colombia and Ecuador since January 2014. CBP claims it seizes more than 10,000 pounds of drugs daily throughout its operations in the U.S.

Are you guys watching Narcos on Netflix? It's really good.

By the way, if you haven't seen Marc Caputo's daily "Florida Playbook" on Politico, you should check it out. It's fantastic.