3-0

That's the defense record in Chinese importation trials. The latest was by AFPDs Sowmya Bharathi and Bunmi Lomax before Judge Seitz. There was also another January not guilty casting shade on Rumpole's "no-trials-in-January" mandate. Bottom line -- we need more trials! 

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article54763750.html?ppRandom=0.12800472962753218&pp_u=EpszNZmQZ2sGUh1MEMIQCA#storylink=cpy

Anthony Bosch's sentenced reduced

From the Herald:

Anthony Bosch, the fake doctor who sold illegal muscle-building steroids to Major League Baseball stars including Alex Rodriguez, had the goods on his partners in crime.
Once Bosch’s Coral Gables anti-aging clinic shut down and baseball’s biggest doping scandal erupted in early 2013, it wasn’t long before Bosch began assisting baseball and U.S. authorities to save his neck.
On Thursday, the 52-year-old Bosch received his benefit for snitching when a Miami federal judge reduced his four-year prison sentence by one-third for helping federal prosecutors convict other defendants who participated in his steroid-distribution racket. His sentence was lowered to two years and eight months.
Prosecutors recommended that Bosch, 52, former owner of the anti-aging clinic Biogenesis of America, be given lesser punishment because of his “substantial assistance” in the investigation. His parallel cooperation with baseball authorities resulted in lengthy suspensions of Rodriguez, the New York Yankees star, and 13 other professional ballplayers who purchased banned performance-enhancing drugs from Bosch.
“He provided us with viable information that led to the prosecution of various defendants,” said prosecutor Sharad Motiani, noting that Bosch met with criminal investigators more than a dozen times for lengthy interviews and reviewed hundreds of medical, phone and text records that contributed to the successful prosecutions of at least four other defendants.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article54650210.html#storylink=cpy

CJA hearings in Miami conclude

Celia Ampel for the DBR covers it here:

Lawyers appointed to represent federal defendants who can't afford an attorney sometimes have trouble securing expert witnesses, wading through voluminous e-discovery and persuading judges to approve their expenses, according to testimony at a public hearing Monday and Tuesday in Miami.
The Criminal Justice Act, which provides a system for compensating those attorneys, is under a two-year review by a committee appointed by U.S. Supreme Court Chief Justice John Roberts. The committee's stop at the Wilkie D. Ferguson Jr. U.S. Courthouse was the second of seven hearings in cities from Portland, Oregon, to Philadelphia.
Attorneys and judges from across the Southeastern U.S. testified at the hearing, including the Southern District of Florida's Federal Public Defender Michael Caruso, U.S. Attorney Wifredo Ferrer and U.S. District Judges Robert Scola Jr., Donald Graham and Kathleen Williams.
The committee questioned the witnesses on whether the authority to approve CJA panel attorney compensation should rest with the judiciary, the public defender's office or an independent body. The group also discussed the challenges of e-discovery.

***

But regardless of their independence, CJA panel attorneys have far fewer resources than federal defenders and the U.S. attorney's office, lawyers testified.
That inequality extends to discovery, which in a multidefendant case can amount to three terabytes of data — or 6,000 filing cabinets of documents, Caruso said.
"You can imagine the CJA lawyer who's a solo practitioner trying to make sense of 6,000 filing cabinets," particularly in a trial-heavy and fast-paced district like the Southern District of Florida, he said.

Judge Graham was really strong on this point saying that prosecutors should be required to hand over hot documents to defense lawyers as a matter of proportionality and basic fairness.  Seems like a no-brainer.

Florida Death Penalty found unconstitutional

The case, 8-1 per Justice Sotomayor, is Hurst v. Florida:

A Florida jury convicted Timothy Lee Hurst of murdering his co-worker, Cynthia Harrison. A penalty-phase jury recommended that Hurst’s judge impose a death sentence. Notwithstanding this recommendation, Florida law required the judge to hold a separate hearing and determine whether sufficient aggravating circumstances existed to justify imposing the death penalty. The judge so found and sentenced Hurst to death.

We hold this sentencing scheme unconstitutional. The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.

Kudos to Judge Jose Martinez who was way ahead of this issue and found Florida's scheme unconstitutional many years ago.

"Not many people want to be locked up in a federal penitentiary serving a life sentence." (UPDATED)

But Harlan Salmona does, according to this opinion by Chief Judge Carnes.  The intro:

Not many people want to be locked up in a federal penitentiary serving a life sentence. Harlan Salmona does because it beats the alternative, which is being locked up in a state penitentiary that he believes is less safe. The problem for Salmona is that his life sentence was imposed by a Florida state court, not by a federal court. Salmona claims that because of a promise made to him by the United States Attorney’s Office in a long ago plea agreement the federal government is required to get him transferred from state to federal custody for the remainder of his state sentence. This is his appeal from the district court’s order denying his “Motion to Compel Compliance” with that plea agreement.

The conclusion:

Because the district court lacked subject matter jurisdiction over Salmona’s claim, its judgment is VACATED and the case is REMANDED with instructions to dismiss for lack of jurisdiction.

UPDATE -- from a tipster: The back story on him is fascinating. He is ex U.S. Coast Guard who was arrested by Feds for drug smuggling. He then decided to work off his case by informing on the marijuana organization he worked with. The Government indicted members of the organization based upon the anticipated testimony of Salmona and another informant.  Salmona then murdered the other Government informant in order to enhance his importance to the Government and become the sole key witness.  His state sentence of life was for that murder.

Meantime, it's CJA day at the federal courthouse.  Here's the live-stream of the committee hearings if you are interested.

The district bench is losing one of its stars

Judge John Gleeson is leaving the EDNY bench to go into private practice.  A huge bummer.  He was one of the best judges we had.  We wasn't afraid to rule against the government.  He wasn't afraid to do what was right.  And he wasn't afraid to write opinions explaining his reasoning.  We need more like him.

From the NY Law Journal:

Eastern District Judge John Gleeson is stepping down from the bench after more than 20 years to practice law.
In an email sent Monday to fellow judges, magistrate judges, bankruptcy judges and others, Gleeson wrote, "as difficult as it is to leave the work I love and the colleagues I love, this is the right decision for me and my family."
The email did not give specifics on his next move but said he would be leaving on March 9. The judge, through his chambers, declined to comment Monday.
...
As a judge, Gleeson has been vocal in his rulings about matters like sentencing law and judicial discretion.

"[T]he singer in “Margaritaville”—seemingly far from suffering embarrassment over his tattoo—considers it “a real beauty.”

That was the 11th Circuit last week in Buehrle v. Key West.  The whole footnote:

Jimmy Buffett’s song “Margaritaville” was referenced twice in the record, once by Mr. Craig in his deposition and once by the City’s attorney in oral argument before the district court, to support the claim that inebriated tourists are likely to get and then regret tattoos if more tattoo establishments operate in the historic district. But the singer in “Margaritaville”—seemingly far from suffering embarrassment over his tattoo—considers it “a real beauty.” Jimmy Buffett, “Margaritaville,” on Songs You Know by Heart (Geffen Records 1985).

Here's the intro to the opinion by Judge Jill Pryor:

The City of Key West, Florida has barred Brad Buehrle from opening a tattoo establishment in the City’s designated historic district, pursuant to an Case: 14-15354 Date Filed: 12/29/2015 Page: 1 of 14 2 ordinance strictly limiting the number of tattoo establishments permitted to operate there. Mr. Buehrle contends that the act of tattooing is entitled to First Amendment protection and that the ordinance is an unconstitutional restriction on his freedom of expression. The district court granted summary judgment to the City, agreeing with Mr. Buehrle that tattooing constitutes artistic expression protected by the First Amendment but nevertheless finding the ordinance to be a reasonable time, place, and manner restriction. We agree with the district court’s conclusion that tattooing is protected artistic expression, but we reverse the summary judgment because, on the record before us, the City has failed to show that the ordinance is a reasonable time, place, and manner restriction.

The AP covered the case here:

A Virginia man who wants to open up a tattoo parlor in Key West can thank Jimmy Buffett's "Margaritaville" for helping him with his latest court case.
City officials twice referenced the song in opposition to Brad Buehrle's proposal for a new tattoo shop, saying drunken tourists would be more likely to get tattoos and then regret it if more ink shops were open in Key West's historic district.
But the 11th Circuit Court of Appeals said the city misunderstood the song lyrics in which the languorous narrator reflects on a brand new tattoo - but how the "Mexican cutie" got there, "I haven't a clue."
The judges wrote in a footnote to their ruling that the character in the song deems his new tattoo "a real beauty" and seems far from embarrassed about it.
The appeals court ruled last week that the city failed to show that more tattoo shops would erode the historic district's "character and fabric," The Key West Citizen (http://bit.ly/1R73FIK) reported.
According to the ruling, the city feared that "rash tourists will obtain regrettable tattoos, leading to negative association with Key West."

Happy New Year from the Chief Justice

Here's his year end report.  He starts with a story about dueling, including this gem:

Public opinion ultimately turned against dueling as a means of settling quarrels. By 1859, eighteen of the 33 States of the Union had outlawed duels. Following the Civil War, a public weary of bloodshed turned increasingly to other forums, including the courts, to settle disputes. But reminders of the practice persist. When Kentucky lawyers are admitted to the bar, they are required, by law, to swear that they have not participated in a duel. Today, Wilson’s pamphlet stands on the bookshelf as a largely forgotten relic of a happily bygone past. But it is also a stark reminder of government’s responsibility to provide tribunals for the peaceful resolution of all manner of disputes. Our Nation’s courts are today’s guarantors of justice. Those civil tribunals, far more than the inherently uncivilized dueling fields they supplanted, must be governed by sound rules of practice and procedure.  

The Chief highlighted changes in the Rules of Civil Procedure that attempt to get rid of some of the bickering:

Rule 26(b)(1) crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” 7 The amended rule states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of a case. Specifically, the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery. The key here is careful and realistic assessment of actual need. That assessment may, as a practical matter, require the active involvement of a neutral arbiter—the federal judge—to guide decisions respecting the scope of discovery.

And the conclusion:

As for the lawyers, most will readily agree—in the abstract—that they have an obligation to their clients, and to the justice system, to avoid antagonistic tactics, wasteful procedural maneuvers, and teetering brinksmanship. I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics. The test for plaintiffs’ and defendants’ counsel alike is whether they will affirmatively search out cooperative solutions, chart a cost-effective course of litigation, and assume shared responsibility with opposing counsel to achieve just results. I am hardly the first to urge that we must engineer a change in our legal culture that places a premium on the public’s interest in speedy, fair, and efficient justice. 

But I am motivated to address the subject now because the 2015 civil rules amendments provide a concrete opportunity for actually getting something done. In the nineteenth century, a change in culture left dueling by the wayside and left us with lessons learned. Joseph Conrad’s novella “The Duel” tells the tale, taken from fact, of two gallant French cavalry officers, D’Hubert and Feraud. Estranged by a trifling slight, they repeatedly duel over a 15-year period. According to newspapers of the era, the real-life antagonists, Dupont and Fournier, would cross swords and draw blood whenever their military service brought them near to one another. Conrad’s characters, like the real ones, relentlessly persist in their personal feud through the rise, fall, reemergence, and ultimate exile of Napoleon, as the world transforms around them. In the end, these soldiers, who should have been comrades in a patriotic cause, spent much of their adult lives focused on a petty squabble that left them with nothing but scars. We should not miss the opportunity to help ensure that federal court litigation does not degenerate into wasteful clashes over matters that have little to do with achieving a just result. 

Another year has quickly passed, and once again, I am privileged and honored to be in a position to thank all of the judges, court staff, and judicial personnel throughout the Nation for their continued excellence and dedication. Best wishes to all in the New Year.

Speaking of the new rules and proportionality, there are no rules helping the criminal defense bar with discovery. It used to be that prosecutors would give so little to the defense that most of the pretrial litigation would be focused on getting important documents and information to help prepare a defense.  Now the government has taken the opposite tack -- drown the defense with every possible piece of paper out there.  When the defense attorney complains to the judge, the prosecutor will say, "but judge, I gave them everything." (Many judges have caught on to this tactic and are now ordering the prosecution to disclose discovery indexes and exhibit lists well in advance of trial, as well as Jencks material and witness lists. But some judges still refuse to do so.) Providing terabytes of data, of course, is not much better than providing nothing at all because most of these documents are completely irrelevant and impossible to wade through.

This costs the judiciary lots and lots of money when the CJA panel lawyer, who has no choice but to go through all of the paper because the prosecution refuses to narrow the discovery to important documents, bills for all of this time.  This is one of the issues that will be discussed at the public hearing to address the Criminal Justice Act Program on January 11 and 12 in Miami. Here is the agenda.

I will be testifying.  So will Judge Graham.  Judge Graham has asked that if you have any issues that you'd like him to address to please let him know.  Feel free to email me at dmarkus@markuslaw.com and I will forward your email to him.