zzzzzzzzzzzzzzzzzzz (UPDATED -- WAKE UP!)

For the zzzzzzzzz posters out there, check out Justice Thomas during oral argument last week:

look at this drawing from SCOTUS oral arguments yesterday pic.twitter.com/eSTR9IiEfN

— sarah jeong (@sarahjeong) April 22, 2016

UPDATE -- WAKE UP!! -- Paul Rashkind, appellate guru from the FPD's office, is headed back to the Supreme Court. Cert granted this morning in Manrique v.United States. Here's the 11th Circuit opinion.

The QP is: Should the Court grant certiorari to resolve the significant division among the circuits concerning the jurisdictional prerequisites for appealing a deferred restitution award made during the pendency of a timely appeal of a criminal judgment imposing sentence, a question left open by the Court’s decision in Dolan v. United States, 560 U.S. 605, 618 (2010).

FBI does not trust prosecutors

For real.  Check out this USA Today article by Brad Heath, which says that the FBI did not want to share its tech secrets with prosecutors because they might become defense lawyers one day:

The FBI guards its high-tech secrets so carefully that officials once warned agents not to share details even with federal prosecutors for fear they might eventually go on to work as defense attorneys, newly disclosed records show.
A supervisor also cautioned the bureau’s “technically trained agents” in a 2003 memo not to reveal techniques for secretly entering and bugging a suspect’s home to other agents who might be forced to reveal them in court. “We need to protect how our equipment is concealed,” the unnamed supervisor wrote.
The records, released this year as part of a Freedom of Information Act lawsuit, offer a rare view of the extent to which the FBI has sought to keep its most sensitive surveillance capabilities secret, even from others within federal law enforcement. That secrecy remains a common feature of the FBI’s most sophisticated investigations, including recent cases in which it cracked the encrypted iPhone of one of the gunmen in last year’s San Bernardino terror attacks and breached the anonymous Tor computer network.

Meantime, John Pacenti and the PBP have continued to cover the zoo story.  The zoo has taken some very strange positions about what information it will release about the tiger and the zookeeper:

Zoo spokeswoman Naki Carter declined to answer questions about Konwiser’s death during a news conference Wednesday at which she announced the creation of a fund in her memory and the renaming of the zoo’s annual Save the Tigers 5K race in her honor.
The Palm Beach Post reported Tuesday that the tiger that killed Konwiser is a 13-year-old stud breeder named Hati, one of four at the zoo and one of 250 Malayans in existence. The zoo has declined to identify the tiger, saying that it could place the animal in danger.
Moments after The Post published an online story Tuesday naming Hati as the tiger that killed Konwiser, the zoo released a statement asking that media outlets refrain from identifying the animal.

Finally, Slate crushes the lawyering in the Supreme Court yesterday concerning DUI testing:

 The justices of the United States Supreme Court are at their best when united against a common foe. It’s much easier to put aside doctrinal differences and work together when an attorney at the lectern sounds like a clodhopping amateur trying out for the moot court team. On Wednesday, in a critically important Fourth Amendment case, not one but two advocates performed so terribly that the justices effectively gave up and had a conversation among themselves. The result was a deeply uncomfortable 70 minutes during which the clash between state power and individual autonomy took a back seat to jokes about night court and hillbilly judges.

Judge Martin rocks

She is so great.  Check out her concurrence today in U.S. v. Robinson:

I agree that Troy Robinson cannot benefit from Johnson v. United States, 576
U.S. ___, 135 S. Ct. 2551 (2015), because his sentence is valid even without the
residual clause. I write separately to note that Mr. Robinson is one of dozens of
prisoners who has tried to file similar applications based on Johnson. Prior to
yesterday’s decision in Welch v. United States, No. 15-6418, 2016 WL 1551144
(Apr. 18, 2016), all these applicants were turned away from our Court not because
Johnson wouldn’t benefit them but because our Court held that Johnson could not
apply in these cases. Some of those who filed applications in other courts have
already been freed because they were serving an unconstitutional prison sentence.
As best I can tell, all the prisoners we turned away may only have until June 26,
2016, to refile applications based on Johnson. See Dodd v. United States, 545 U.S.
353, 359, 125 S. Ct. 2478, 2482–83 (2005).
Although I have not taken the time to investigate the merits of these cases,
below is a list of every case I know of in which this court denied an application from
a prisoner seeking to file a second or successive 28 U.S.C. § 2255 petition based on
Johnson. I share this list in the hope that these prisoners, who filed their applications without a lawyer’s help, may now know to refile their applications. I
have separated out the cases that arise under the residual clause in the Armed Career Criminal Act (ACCA) and the cases that arise under the identical language in United States Sentencing Guidelines § 4B1.2 (which includes cases for which the
guidelines were mandatory together with those for which the guidelines were
advisory). I have also listed the district court in which each sentence was imposed,
to the extent Federal Public Defender and U.S. Attorney offices are monitoring these cases.

She then goes on to list 110 cases.  

State shenanigans

Rumpole and Ovalle cover Jackie Schwartz's bar issues.  Here's Ovalle:

“You are a f---ing idiot, you don’t know who I am,” County Judge Jacqueline Schwartz yelled at a waiter at a Miami Greek restaurant after she was refused more alcohol, according to a state investigative report released on Monday. It also quotes the judge calling police officers “pigs” when they were were summoned to the restaurant on March 18.
 The investigation for the Florida Judicial Qualifications Commission on Monday recommended that Schwartz be suspended. Ultimately, the Florida Supreme Court will decide what, if any, punishment she deserves.
 Her lawyer, Jeffrey Feiler, told the commission this month that she was not drunk but under the influence of a new prescription medication.
Schwartz has been on “paid medical leave” since she was sent home from the bench on March 28.

It’s the second time that a state judicial oversight board has questioned Schwartz’s behavior and salty language.
In December, the Florida Supreme Court scolded Schwartz after she told a store owner to “go f--- yourself” during a heated re-election campaign in June 2014. She was angry over an oversized campaign sign posted at the story for her opponent. She was suspended for 30 days and had to pay a $10,000 fine.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article72521987.html#storylink=cpy

Sad story.  Here are the formal charges.

Meantime, I miss John Pacenti on our beat.  He's now with the PBP and does a great job covering the awful zoo story:

The timeline of when and how the tiger encountered Konwiser remained hazy on Monday as a spokeswoman for the zoo did not return a phone call to answer questions after chastising the media on Sunday for speculation that the tiger in question would be euthanized. It remains at the zoo and has not been identified other than its sex.
What is known is Konwiser was mauled while performing routine tasks in the “night house,” which is not viewed by the public but is adjacent to the new tiger exhibit.
The area was monitored by video cameras and the zoo has not said how Konwiser died, whether she was in the enclosure with the big cat or if a latch malfunctioned on the door.
The energetic lead keeper was minutes away from giving a “tiger talk” to the patrons in what would have been one of her last official acts for the zoo. A spokesperson for the U.S. Food & Drug Administration told the Palm Beach Post’s news partner, WPTV News Channel 5, that she was to begin as consumer safety officer with the FDA in Maitland on May 1.

SCOTUS happenings (UPDATED)

Everyone is wondering why SCOTUS decided to announce an opinion this morning when it wasn't previously scheduled.  Whisper is that it might be Welch, the retroactivity case on the ACCA.  Check in with SCOTUSblog for more.

Update 10:14am -- Yup, it was Welch.  7-1 decision per Kennedy saying Johnson is retroactive, reversing the 11th Circuit (which had denied the certificate of appealability).

Clarence Thomas is coming to HBO.  Apparently it isn't going to be flattering.

Former Broward Teacher's Union president Pat Santeramo was sentenced Friday to five years by former federal prosecutor Jeffrey Levenson. From the Sun-Sentinel:

Santeramo, who had asked Broward Circuit Judge Jeffrey R. Levenson for leniency, faced a maximum penalty of 55 years after he was convicted in January of money laundering, organized scheme to defraud and violating campaign contribution laws.

"I ask you when making your final decision to consider the good that I have done throughout my life and not just this snapshot in time," Santeramo said.
But prosecutor David Schulson said while Santeramo doesn't deserve the maximum sentence, his actions weren't a momentary lapse of reason.
"Santeramo made the choice to steal from BTU funds," Schulson said, citing trial evidence that the union head received 30 payments from 2006 until 2011 from general contractor David Esposito, who testified against Santeramo in exchange for immunity. "It is crystal clear based on the evidence that not a single dollar of BTU funds would have been stolen without the knowledge and participation of Pat Santeramo."
Santeramo was a music teacher from 1978 until 1995, when he began working for the union full time. He became president of the union in 2001 after the previous president, Tony Gentile, was arrested on child pornography charges. Santeramo served as president for 11 years.

Jurors took eight hours over two days to find Santeramo guilty of all charges against him except for one – an allegation that he misused his union-issued gasoline card for personal business.

"It confounds the court and I must ask why," Levenson said. "Why over these years did you abuse the trust of the union that you were so devoted to and that you so loved?"
Former Broward Teachers Union president Pat Santeramo found guilty of corruption
Former Broward Teachers Union president Pat Santeramo found guilty of corruption

Schulson asked Levenson to sentence Santeramo to a 10-year term; Levenson decided on half that. "Hopefully this will be a note for those who are in those positions of trust to take those positions of trust seriously" Levenson said.

Another pitch for cameras

David Ovalle has taken up using Periscope in state court, posting short video clips of court proceedings on Twitter. It's actually a great service to court watchers and it's very interesting. Of course the feds are way too crusty to allow anything like that, which is a shame. Just to get into the federal courthouse has become a burden, with people being turned away for random reasons. Instead of a courthouse, it's beginning to feel like a fortress.

Some news from the 6th, 7th & 8th Circuits:

Add the 6th Circuit to the list of courts getting the cell-site data case wrong.

The 7th Circuit addresses strip club ordinances: "This case requires us to visit the world of strip clubs—establishments that no one seems to want, officially, but that are somehow quite lucrative."

And the 8th Circuit discusses Halliburton and securities laws.  It's a pretty interesting read.  Here's the Reuters analysis:

After several years of litigation, U.S. District Judge Donovan Frank of St. Paul, Minnesota, certified a class of Best Buy shareholders. Investors could not bring fraud claims based on the Sept. 14 press release, the judge said, because it was a forward-looking statement covered by the safe-harbor provision in securities laws. But he ruled statements during the analyst call about the company’s present performance were not protected by the safe-harbor provision. Judge Donovan found that lead counsel from Robbins Geller Rudman & Dowd had established the price impact of the alleged misrepresentations by showing the sharp drop in Best Buy’s stock price when the supposed fraud was revealed in December.
On Tuesday, a divided three-judge panel at the 8th U.S. Circuit Court of Appeals reversed that class certification decision. The court’s opinion is the first federal circuit court analysis of the U.S. Supreme Court’s 2014 ruling in Halliburton v. Erica P. John Fund – and it’s quite a boon for defendants in securities class actions. Best Buy’s lead counsel, Joseph McLaughlin ofSimpson Thacher & Bartlett, called the decision “a blueprint” for securities defendants hoping to capitalize on the Supreme Court’s decision.

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"I barely have clout in my own court as a senior judge, much less clout in somebody else's court."

That was Judge Huck commenting on whether he would get any special breaks in small claims court.  The DBR has more:

Small claims court might not be the place you'd expect to see a host of heavy hitters in the Miami legal community.
But a Miami-Dade County Court tussle over a $75 fee at the exclusive Riviera Country Club has a "who's who" list of plaintiffs, including a federal judge, a state appellate judge and high-profile attorneys.
U.S. Senior District Judge Paul Huck and Third District Court of Appeal Judge Frank Shepherd are the first two named plaintiffs on the lawsuit against the Coral Gables club.
The judges and the four other plaintiffs, all self-represented, are suing the club to resolve a dispute about senior membership, which is available to club members over 70 who have been members for at least 25 years. The complaint seeks a declaratory judgment and seeks no damages.
...The other plaintiffs, who are or expect to be senior members, include attorneys Raul Valdes-Fauli of Fox Rothschild in Miami, Abigail Watts-Fitzgerald of Devine Goodman Rasco Watts-Fitzgerald in Coral Gables and solo practitioner Philip Brawner of Coral Gables.
Senior members of the club are not allowed to vote on club matters, but the club agreed to freeze their dues and never charge them future assessments, according to the Feb. 1 complaint.
The club is calling the $75 monthly charge a capital fee, but the plaintiffs contend it's an assessment and they shouldn't have to pay it.