Lighthouse = wet foot (UPDATED w opinion)

UPDATE -- here's the 35-page opinion. Some good stuff.  Here's the conclusion:

“We acknowledge, as a widely-accepted truth, that Cuba does violate human rights and fundamental freedoms and does not guarantee the rule of law to people living in Cuba.” Gonzalez I, 212 F.3d at 1353. “The principal human rights abuses include[] the abridgement of the ability of citizens to choose their government; the use of government threats, physical assault, intimidation, and violent government-organized counterprotests against peaceful dissent; and harassment and detentions to prevent free expression and peaceful assembly.” Bureau of Democracy, Human Rights & Labor, U.S. Dep’t of State, Cuba 2015 Human Rights Report 1, available at http://www.state.gov/documents/organization/253217.pdf. Twenty-four Cuban migrants boarded a boat slightly over a month ago in hopes of reaching the United States, the land of freedom and opportunity where their families and friends had ventured before them, a place where “all men are created equal” and where the “certain unalienable rights” of “Life, Liberty, and the pursuit of Happiness” are held sacred. The Declaration of Independence para. 2 (1776). There is no doubt that these Cuban migrants and their families have spent the pendency of this litigation dreaming of those opportunities in the spirit of the Cuban hero and poet José Martí: “I dream with open eyes both night and day; I always dream.”15
The Court neither approves nor disapproves the Executive Branch’s decision that the Cuban migrants in this case do not qualify for refugee processing as dry foot arrivals to the United States. Developments and revisions of immigration and foreign policy are left to the political branches of the government. However, the Coast Guard’s informal adjudication in this case does not contradict Congress’s policies in the INA nor the President’s executive actions in securing our borders. And Plaintiffs have not been deprived of any constitutional rights to which they are presently entitled.

 15 “Yo sueño con los ojos abiertos, y de día y noche siempre sueño.” Twentieth-Century Latin American Poetry: A Bilingual Anthology 21 (Stephen Tapscott ed., Elinor Randall trans., Univ. of Tex. Press 1996) (capitalization modified).

Interesting decision by Judge Gayles.  Via the Miami Herald:

After more than five weeks bobbing offshore in a Coast Guard cutter, 21 Cuban migrants are headed back to Cuban soil.
Federal Judge Darrin Gayles ruled Tuesday that the U.S.’s “wet-foot, dry-foot” policy does not extend to the American Shoal lighthouse six and a half nautical miles off Sugarloaf Key. The 21 migrants, two of which are women, fled Cuba and landed on the lighthouse, sparking an eight-hour standoff with the Coast Guard crews while they refused to climb off the 109-foot tall structure.
Once they climbed off the lighthouse and into the Coast Guard boats, the U.S. government said the structure didn’t count as American soil and tried to send the migrants back to Cuba.

 

Read more here: http://www.miamiherald.com/news/local/community/florida-keys/article86407227.html#emlnl=News_Alert#storylink=cpy

Supreme Court to end Term on a whimper (UPDATED)

It's partly because there's only 8 Justices (see, e.g., the immigration case).  It's partly because the Court didn't have as many cases as usual (and even that's been very low in recent years).  And it's partly because the Court just didn't have the blockbuster Term it's had in the past.

There are 3 cases left.  Mark Sherman from the AP has this:

- Abortion: Texas abortion clinics are challenging a state law and regulations that already have cut the number of abortion providers in half, to roughly 20. Fewer than 10 would remain if the 2013 law were allowed to take full effect. One positive sign for the clinics is that only Justices Stephen Breyer and Elena Kagan, who generally side with abortion rights advocates, have yet to write opinions from the session in late February and early March when the case was argued. Each justice typically writes at least one majority opinion from each argument session.
- Public corruption: The justices seemed likely to side with McDonnell, who is challenging his conviction for accepting gifts and loans from a wealthy businessman in exchange for promoting a dietary supplement. A ruling for McDonnell could make it harder to prosecute public officials.
- Guns: Two men from Maine are challenging their convictions for possessing guns under a federal law that is intended to keep guns out of the hands of people who have previously been convicted of domestic violence.

UPDATE -- I'll leave the abortion and gun decisions for someone else to write about.  For this Blog's readers, check out the McDonnell opinion.  A unanimous Court vacated the convictions because the government, district court, and appellate court read the statutes at issue way too broadly and didn't give defense requested jury instructions.  It's worth noting that the appellate court did not even grant McDonnell a bond pending the cert proceedings and the Supreme Court had to step in.  I think this is a good reminder from SCOTUS that district judges and appellate judges need to really step up their role as a check on the government.  There should be more dismissals granted (the government can always appeal), more defense instructions given, and more bonds granted (no one suffers any harm here if there is a bond, but if not, the case may become meaningless because the defendant will have served his sentence).  It's so much harder to get the Supreme Court to review a conviction (as was done here, perhaps because the defendant was the Governor) than the other way around. 

En banc argument in Docs v. Glocks

You remember the case.  It's the law Judge Cooke struck down and then the 11th Circuit reversed 2-1 (the opinion was amended 3 times before the court took the case en banc).  The AJC covers it here:

Several of the 11 judges on the federal appeals court in Atlanta were skeptical — and at times perplexed — about the purpose of a Florida law that prohibits physicians from asking patients about guns in their households.The occasion for the unusual “en banc” hearing — in which all the judges on the 11th U.S. Circuit Court of Appeals hear a case rather than the usual three-judge panel — was a law that has infuriated doctors and pleased gun-rights advocates. The measure, nicknamed “Docs v. Glocks,” was not well-received by the crowd of jurists at Tuesday’s hearing.
The hourlong proceeding included a striking exchange among the judges and Rachel Nordby, the deputy solicitor general of Florida, who was representing the state. The court questioned why the law seems to contradict itself, at one point evoking a strict prohibition and at another seeming to say the law is more of a suggestion.
Nordby said the law allows doctors to ask questions about guns if they believe that information is “relevant. They are the gate keepers.”
Are you telling us we should assume the law is totally ineffective?” Judge Charles Wilson asked Nordby.
“All of these provisions are illusionary? They have no legal effect?” Judge William Pryor asked.
“How is this enforceable?” Judge Robin Rosenbaum asked. “There’s no objective standard by which a physician can know.”
Nordby paused for several seconds before answering and then said, “The legislative intent was to express its views on an important public policy,” she said. “These provisions were not meant to be enforced.”
That briefly stirred the spectators, who grumbled audibly at Nordby’s reply.

Alrighty then...

More from the AP:

Circuit Chief Judge Ed Carnes asked Douglas Hallward-Driemeier, a lawyer for the doctors, whether the state has the right to prohibit a doctor from discriminating against a patient based on gun ownership. Hallward-Driemeier replied that there would be no problem if that was all the law said.
The main problem is that the effectively stops many doctors from asking relevant questions about guns because they fear a patient will take offense and file a complaint with the Florida Board of Medicine, Hallward-Driemeier said.
The law also violates doctors' First Amendment right to free speech by targeting speech on a specific topic, Hallward-Driemeier argued.
Florida is the only state that has enacted such a law, according to the National Conference of State Legislatures.

Copy-gate resolved (UPDATED)

The parties worked out their differences in the middle of the litigation (background here).  The defense already had presented Rossana Arteaga-Gomez as a witness, but before the prosecutors and agent could be called as witnesses, a plea agreement was reached -- the defendant would plead guilty to an information charging a false statement and be sentenced to time served.  Case over. 

UPDATE -- At the plea hearing, the defense made the following statement:

In addition, as part of this plea, we are hereby
withdrawing the motion to dismiss and/or disqualify the
prosecution team, and I make the following representations as
to the reasons why we are prepared to withdraw the motion:
I and my colleague, Rossana Arteaga-Gomez, we have met
with the Government since the last court session, and we make
the following statements in support of withdrawing the motion:
First, we know that the allegations in the motion to
dismiss regarding that the practice was a long-standing
practice over the last 10 years of the U.S. Attorney's Office
to receive CD roms with electronic copies of the defendant's
selected document request were based solely on the statements
and e-mails of the owner of the copy service, whose
credibility, at a minimum, has come into question during this
litigation.
I, and Rossana Arteaga-Gomez, have met with the Chief
of the Criminal Division of the U.S. Attorney's Office, we've
met with the trial attorneys, who are the ones who informed us
of their results of their own internal investigation after
reviewing the matter, and neither Ms. Rossana Arteaga-Gomez or
I have any information, aside from the copy service, that the
U.S. Attorney's Office has ever engaged in any pervasive
practice or pattern of receiving copies of CD roms and
potential defense work product in criminal cases in this
District.
Second, as I've stated on a number of occasions in open
court, but I reiterate again today, that the prosecutors in
this case, Mr. Hayes, Ms. Miller, they acted appropriately and
ethically by immediately disclosing to Rossana and myself that
the Government had received duplicate CDs from the copy service
of the materials selected for copying by the defense.
We have no information that these prosecutors ever
looked at the CDs or even knew that the CDs were being given to
the Government. I so stated before, and I reiterate that point
again. And, of course, we credit these prosecutors for
disclosing the issue to us.
And we finally note that the prosecutors in this case,
frankly, they've been the most forthcoming and responsive
prosecutors in providing discovery, in my experience, and it's
my hope that the U.S. Attorney's Office would adopt that
practice of providing early discovery to us, including FBI 302
reports, well in advance of trial.
And as a result of our satisfaction of the statements I
just made, we are hereby withdrawing the motion to dismiss or
disqualify.
THE COURT: Thank you very much.

 And the prosecutor made this statement:

Your Honor, I'd like to thank Mr. Srebnick
for his statement to the Court. I'd like to reiterate, defense
counsel's not agreeing with this, but that's not what the
Government's saying, but the Government's investigation to date
has indicated that copying of defense selections was not
pervasive practice in this United States Attorney's Office.
What was a practice was one copier. The copier in this
case would provide a copy of what was provided to the defense
to the Government on CD, and it's the Government's position
that he can't differentiate between what a defense selection is
and what regular discovery is.
Our investigation to date has revealed that any copying
of defense selections as part of the discovery process, which
is fluid and it changes case to case, was exceedingly rare; and
that the Government is not in the practice of surrepetitiously
copying defense selections, and that, in some cases, defense
lawyers knew that this copying was being done and in other
cases they did not.
In any case, the Government is aware of no cases where,
other than, unfortunately, this one, where these copies were
accessed by an agent or a lawyer otherwise and, thus, our
position is that this was not a regular and pervasive practice.
THE COURT: Thank you very much.

You gotta read this dissent

It's by Justice Sotomayor in Utah v. Strieff.  It's a good reminder of why the Supreme Court really needs diversity so that it different perspectives are represented.  The opinion is also a good reminder that after Justice Alito, Justice Breyer may be the most government friendly Justice in criminal defense cases.  (Orin Kerr points out on Twitter that the last time a criminal defendant won an exclusionary rule case in the Supreme Court was 1990 (!!) in James v. Illinois).  Here's a snippet:

Although many Americans have been stopped for speed­ ing or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. Whren v. United States, 517 U. S. 806, 813 (1996). That justification must provide specific reasons why the officer suspected you were breaking the law, Terry, 392 U. S., at 21, but it may factor in your ethnicity, United States v. Brignoni-Ponce, 422 U. S. 873, 886–887 (1975), where you live, Adams v. Williams, 407 U. S. 143, 147 (1972), what you were wearing, United States v. Sokolow, 490 U. S. 1, 4–5 (1989), and how you behaved, Illinois v. Wardlow, 528 U. S. 119, 124–125 (2000). The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambigu­ ous. Devenpeck v. Alford, 543 U. S. 146, 154–155 (2004); Heien v. North Carolina, 574 U. S. ___ (2014).
The indignity of the stop is not limited to an officer telling you that you look like a criminal. See Epp, Pulled Over, at 5. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. See Florida v. Bostick, 501 U. S. 429, 438 (1991). Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” Terry, 392 U. S., at 17. If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’ ” Id., at 17, n. 13.The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fas­ tened.” Atwater v. Lago Vista, 532 U. S. 318, 323–324 (2001). At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” Flor- ence v. Board of Chosen Freeholders of County of Burling- ton, 566 U. S. ___, ___–___ (2012) (slip op., at 2–3); Mary- land v. King, 569 U. S. ___, ___ (2013) (slip op., at 28). Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check. Chin, The New Civil Death, 160 U. Pa. L. Rev. 1789, 1805 (2012); see J. Jacobs, The Eternal Criminal Record 33–51 (2015); Young & Petersilia, Keeping Track, 129 Harv. L. Rev. 1318, 1341–1357 (2016). And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future. A. Goffman, On the Run 196 (2014). 

Monday morning (UPDATED)

UPDATE -- the Court decided Taylor.  Not such a biggie after all: "The prosecution in a Hobbs Act robbery case satisfies the Act’scommerce element if it shows that the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds."

Here we go:

1.  The Tony Villegas murder trial starts today.  From NBC:

Prosecutors and investigators do not believe that the murder [of Rothstein partner Melissa Britt Lews] had anything to do with the $1.6 billion scheme, but that [Tony] Villegas blamed Lewis for the breakup of his marriage.
Lewis was found dead in a canal near Plantation after her SUV was found nearby. Investigators said a struggle took place inside her garage, using DNA and pings from her cell phone to allegedly connect Villegas to the crime.Villegas was declared incompetent to stand trial in 2010 and avoided a trial until he was cleared by the state.
Debra Villegas, who has been released following a federal prison term for her role in one of the largest Ponzi schemes, is expected to testify. It is unknown if Rothstein, who is currently serving a 50 year term, will be called.

2.  The Supreme Court Term is coming to an end.  SCOTUSblog has all of your updates for the 13 remaining cases.  There will be some announced today.  Here's one of the criminal cases left that may be a biggie:

Taylor v. United States (argued February 23, 2016).  The petitioner in this case, David Taylor, was part of a Virginia gang that robbed drug dealers.  The two robberies that led to this case, however, did not yield any drugs – only cellphones, jewelry, and a small amount of money.  Taylor was indicted on federal charges that he had violated the Hobbs Act, which punishes robberies and extortion but applies only when the defendant “obstructs, delays, or affects commerce or the movement of any article or commodity in commerce.”  The question before the Court is whether the federal government is required to prove facts to show that the defendant’s conduct actually affects commerce.

3.  Apparently Clarence Thomas is mulling retirement:

 Justice Clarence Thomas, a reliable conservative vote on the Supreme Court, is mulling retirement after the presidential election, according to court watchers.Thomas, appointed by former President George H.W. Bush and approved by the Senate after a bitter confirmation, has been considering retirement for a while and never planned to stay until he died, they said. He likes to spend summers in his RV with his wife.

Get those Johnson motions in!

If you don't know what I'm talking about, then you probably don't have a client who has been enhanced under the Armed Career Criminal Act or the Career Offender guidelines.  Many of these clients may get their sentences reduced -- by a lot -- because of Johnson v. United States, 135 S. Ct. 2551 (2015).  But the one-year limitation period to file your Johnson motion expires a week from today, June 24, 2016.*

Here is Judge Martin's recent, helpful concurrence on the issue:

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 never 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 offices are monitoring these cases.

*Some, including Judge Martin, think it expires June 26.  But to be safe, file it next Friday.

In other news, the "terror" trial of Harlem Suarez is running into some snags.  From the Miami Herald:

Attorneys for the Key West terror suspect charged with trying to buy a bomb he planned to set off in South Florida have asked a judge to let them leave the case, saying their client refuses to take their advice as he approaches trial.
They also want the trial of Harlem Suarez, 24, who is accused of being an Islamic State sympathizer, postponed due to the flood of news coverage in the aftermath of the weekend Orlando nightclub massacre in which the gunman pledged allegiance to ISIL. Forty-nine people died, the worst mass shooting in U.S. history.
Suarez, who faces life in prison if convicted of planning to detonate a weapon of mass destruction at a beach filled with people, is scheduled to stand trial July 11.
“A continuance is in the interests of justice until such time as the heated reporting on the Orlando incident has subsided,” attorneys Richard Della Fera and Joshua Entin of Fort Lauderdale wrote in a motion filed Tuesday at U.S. District Court in Key West .
At the same time, the lawyers have asked to withdraw from the case, saying Suarez won’t listen to an “extreme extent.”
“Counsel believes that the attorney-client relationship with defendant has deteriorated to the point that it is best that defendant have new counsel,” the lawyers wrote in a motion filed Friday in U.S. District Court.
They asked Judge Jose Martinez for a hearing at which they can make their case that Suarez needs a new legal team. On Monday, Martinez referred the motions to Magistrate Judge Lurana Snow. Prosecutors hadn’t responded as of midday Tuesday.
In another filing by Della Fera and Entin, they ask the court to not let testify at trial Daniel Byman, who the government calls an expert on terrorism and the Islamic State known as ISIL, saying it flies in the face of fairness for Suarez.
“Clearly, the very mention of terrorism and the Islamic State invokes fear and worry in hearts and minds of every American citizen,” Suarez’s attorneys wrote. “It will be difficult enough for defendant to get a fair trial in the present climate where the media’s constant reporting and commentary on terrorism and terrorist attacks is omnipresent.”

Read more here: http://www.miamiherald.com/news/local/community/florida-keys/article84094017.html#storylink=cpy

Read more here: http://www.miamiherald.com/news/local/community/florida-keys/article84094017.html#storylink=cpy

Jack Utsick pleads guilty

There was a lot of trial talk at the beginning of this case, but now we are headed to sentencing.  From the Miami Herald:

On the eve of trial, a once-powerful Miami Beach concert promoter pleaded guilty Friday to ripping off a single investor — though his federal plea deal still leaves him vulnerable to prison for the rest of his life.
Jack Utsick, who produced tours for Fleetwood Mac, Michael Jackson and other superstars, faces up to 17 years in prison and must repay more than $169 million to thousands of his investors, many of whom were retired commercial airline pilots like him.
But Utsick’s defense attorneys said their 73-year-old client is ailing and broke, factors that could help him obtain lighter punishment at his sentencing Aug. 23 before U.S. District Judge Cecilia Altonaga.
“We will be asking for a substantially lower sentence,” said Washington, D.C., lawyer Eric Lisann, who is working on the defense with Miami attorney David Weinstein.

Meantime, there is a lot of debate about whether the Orlando shooter's wife committed a crime.  From the Sun-Sentinel:

The wife of Orlando massacre shooter Omar Mateen, Noor Zahi Salman, is talking to the FBI, a law enforcement official said, speaking on condition of anonymity to discuss the investigation.
Among other things, investigators are looking at whether Salman helped Mateen plan or scout out the rampage at the Orlando nightclub, or knew about his plans.
Mateen visited a number of Disney properties since April, and was most recently spotted early this month in Disney Springs, an outdoor shopping and entertainment complex inWalt Disney World, according to a U.S. law enforcement official briefed on the investigation.
It's possible that Mateen's visit overlapped with Gay Days Orlando, which went from May 31 to June 6 this year. The annual event brings thousands of LGBT individuals and families to Central Florida.
 The organizers of Gay Days arrange some ticket packages at Disney parks during the annual event and designate parks to attend on certain days.Another U.S. official said that information provided to the FBI by Disney made it clear that Mateen was not simply acting as a tourist during a visit to Walt Disney World two or three months ago.
***
Mateen's wife, Salman, has told FBI agents that she drove with him to the Pulse nightclub on at least one occasion before Sunday's shooting, and that she accompanied him to shop at a firearms dealer.
Mateen bought a Glock handgun and an AR-15-type semiautomatic rifle during two separate visits this month to the St. Lucie Shooting Center, several miles from PGA Village, a gated community where he worked as a security guard.
The FBI is investigating whether Salman also had knowledge of his plan to attack and kill patrons at the gay nightclub.
If Salman knew of her husband's intent to commit terrorist acts and didn't report it to law enforcement, she could face criminal charges. But a federal law enforcement official said the Justice Department is in no rush to file charges because no evidence has emerged to suggest the gunman had accomplices, and there is no imminent threat of another attack.
Mateen was the target of a 10-month FBI investigation in 2013 and 2014, but the case was closed when a confidential informant, surveillance and eavesdropping did not turn up evidence of illegal activity. At that point Mateen's name was taken off the FBI Terrorist Screening Center's watchlist.
Had his name been in the watchlist when he bought the firearms he used in the shooting, an FBI agent working the case would have been notified.
Schiff said he told Comey during Tuesday's briefing that the FBI should change its procedure to ensure that an agent is notified when a former terrorism suspect buys a gun.
If the FBI can't make that change on its own, Schiff said, he will consider drafting legislation to do it.

Read more here: http://www.miamiherald.com/news/local/crime/article83118357.html#storylink=cpy