Have a great Thanksgiving!

If felony-battery in Florida a crime of violence under 2L1.2 of the Sentencing Guidelines?

That's the question the en banc 11th Circuit will take up in U.S. v. Vail-Bailon.  Here's the panel decision by Judge Rosenbaum saying it is not a crime of violence:

When I was growing up, my parents told me not to judge a book by its
cover. The Supreme Court has expressed an analogous concern about concluding
that a crime qualifies as a violent crime under the Armed Career Criminal Act
(“ACCA”), based solely on the name of the crime. See Johnson v. United States,
___ U.S. ___, 135 S. Ct. 2551, 2560 (2015) (discussing whether Connecticut’s
offense of “rioting at a correctional institution,” a crime that the Supreme Court
characterized as “certainly sound[ing] like a violent felony,” qualifies as a violent
felony under the residual clause of the ACCA).1
This case raises the question of whether the Florida crime of felony
battery—a crime that, from its name, may sound like a crime of violence—actually
satisfies the definition of “crime of violence” under §2L1.2 of the Sentencing
Guidelines when it is committed by mere touching. Heeding the Supreme Court’s
warning, we have carefully compared the elements of felony battery under Florida
law to the “elements clause” of § 2L1.2’s definition of “crime of violence.” Based
on our review, we now hold that felony battery under Fla. Stat. § 784.041 does not
qualify as a “crime of violence” under § 2L1.2 when it is committed by mere
touching. For this reason, we vacate Vail-Bailon’s sentence and remand for resentencing.

Judge Jordan concurred, and visiting Judge Siler dissented.

The en banc order is here.

Will it be Justice Pryor?

It was the big Federalist Society meeting this weekend in which Justice Scalia was remembered and celebrated.  One of the takeaways is that 11th Circuit Judge William Pyror is quietly the favorite to get Scalia's seat. (Here's a short interview with him from the weekend.) He would be the first 11th Circuit judge to get the nod... 

It's hard to know exactly what PE Trump is thinking here though as he was busy this weekend tweeting about Hamilton.

In the meantime, I repost Judge Milton Hirsch's Constitutional Calendar today, which is really interesting:

On Nov. 21, 1864, in response to a request from Massachusetts Governor John A. Andrew asking him to express his condolences, President Lincoln wrote to Mrs. Lydia Bixby, a widow who was believed to have lost five sons during the Civil War.  Lincoln's letter was later printed in the Boston Evening Transcript.  Later still, it was revealed that two, not all five, of Mrs. Bixby's sons died in battle; one deserted, one was honorably discharged, and another either deserted or died a prisoner of war.

 

The authorship of the letter has been debated by scholars, some of whom believe it was written by John Hay, one of Lincoln's secretaries.  The original of the letter was destroyed by Mrs. Bixby, who was a Confederate sympathizer and disliked Lincoln.  Copies of an early forgery circulated for years, causing many people to believe that they had the original letter.

 

None of which matters.  The letter is the finest piece of epistolary prose ever written on this continent, and if Lincoln didn't write it, he meant to.  It serves to remind us that the highest function of political leadership in America's democracy is to inspire us with a regard for those principles that set this country apart.

 

As I do every year on the anniversary of its writing, I take pleasure in sharing this remarkable letter with my friends:

 

"Dear Madam,

 

"I have been shown in the files of the War Department a statement of the Adjutant General of Massachusetts that you are the mother of five sons who have died gloriously on the field of battle.  I feel how weak and fruitless must be any word of mine which should attempt to beguile you from the grief of a loss so overwhelming.  But I cannot refrain from tendering you the consolation that may be found in the thanks of the republic they died to save.  I pray that our Heavenly Father may assuage the anguish of your bereavement, and leave you only the cherished memory of the loved and lost, and the solemn pride that must be yours to have laid so costly a sacrifice upon the altar of freedom.

 

"Yours very sincerely and respectfully,

 

"A. Lincoln"

Bad cheese!

Yikes, this dude was selling cheese that had lysteria.  Judge Scola gave him 15 months:

Officials in Virginia took a sample of Oasis’ “Lacteos Santa Martha Quesito Casero Fresh Curd” in 2014 and found that it was contaminated with listeria.
The U.S. Food and Drug Administration conducted an inspection of Oasis’ Miami facility and reported finding more products contaminated with listeria and numerous unsanitary conditions, court documents said.
Inspectors reported finding black mold on the ceiling and a door frame and condensation dripping onto raw cheese-making materials, cheese in production and the finished product.
Rivas agreed to recall the cheese and stop production until the sanitary issues were fixed, court documents said.
He also told FDA inspectors that Oasis would not ship out any finished product that it had in its inventory, officials said.
During a follow-up inspection six weeks later, FDA officials found that Rivas had shipped 133 cases of contaminated cheese which they believe sickened several people, investigators said.
Rivas pleaded guilty to charges stemming from the case.

 

RIP Minnette Massey

She was the fierce civil procedure professor who taught scores of Florida lawyers to "READ THE RULE!"  In many ways though, she was a rule-breaker, shattering old restrictions for women lawyers. She passed away at the age of 89 (via UM Law):

M. Minnette Massey, an original glass ceiling shatterer and leading advocate for diversity, decades before the word entered the popular vernacular, died Sunday at the age of 89. 

M. Minnette Massey

The fair-haired, green-eyed spitfire was one of the “First Wave,” of fourteen woman pioneers who elbowed their way into the male-dominated world of American law school professors. (Miami Law supplied two others – Soia Mentschikoff and Jeanette Ozanne Smith.) Massey began teaching legal research as an assistant law librarian but rapidly asserted her dominance in the machinations of Florida civil procedure.
Massey would catch the attention of U.S. Supreme Court Justices Hugo Black and William O. Douglas, who admired her dazzling intellect and skills as a raconteur. Think Shirley MacLaine, only loads smarter. She ascended to assistant dean, then first woman dean, all the while imprinting armies of young lawyers as masters of the intricacies of litigation and the rightful leaders of their profession. She was a force to behold and used her powers to lead the law school into the integration of both the faculty and student body.
"The University of Miami Law School has lost perhaps its greatest champion," said Charlton Copeland, holder of the first M. Minnette Massey Chair in Law. "She believed in the excellence of this law school. She believed in the excellence of her students. She believed that together they might build a more excellent future.
"But she was not taken with nostalgia or bygone days. Her commitment was a commitment to a more inclusive, more relevant excellence. If that is not the mark of a great institutional and, and civic, champion, I don't know what is. I mourn Minnette's passing, but I also mourn something of the passing of Minnette's vision for Miami Law, for our law students, and for our collective civic lives," Copeland said

How much time is appropriate for a lawyer who laundered money for criminals?

 Judge Dimitrouleas sentenced Alan Koslow to a year and a day in federal prison, taking into account his cooperation and other good works.  Seems like the appropriate result.  Hopefully other judges will see that lengthy sentences for first-time non-violent offenders isn't the solution.  From Paula McMahon:

Koslow admitted in August that he accepted $8,500 from undercover agents as payment for laundering cash, which he thought was linked to drug dealing and illegal gambling, through his friend Susan Mohr's bank account in 2012 and 2013.

Mohr, 57, of Delray Beach, pleaded guilty to a related charge and is scheduled for sentencing next month.

Prosecutor Neil Karadbil told the judge that Koslow had two personas — one was the high-powered successful attorney who raised money for charities and advised clients on legal matters.

"But the other Alan Koslow is the one who got him here," Karadbil said. "The other Alan Koslow is the one who likes to take short-cuts, likes to party, is kind of hedonistic."

Karadbil said Koslow discussed laundering $50,000 per month for two years in exchange for a 5 percent commission. Koslow said the money "was peanuts" but he wanted extra spending money to party with his friends, agents said.

Agents said he told them: "I do favors for clients" and he "liked to be cool."

Breathe.

So, how about some happiness for your blog pleasure this week...

Judge Scola is celebrating five years on the federal district court bench. To honor the occasion, the Judge and his wife, Judge Jacki Hogan Scola, gathered with over a dozen of his former and current law clerks and staff during the weekend of October 29-30. That Saturday evening, his law clerks held a dinner in his honor at a former clerk's home in Coconut Grove, and on Sunday the Judge hosted a lunch for everyone in Coral Gables.

In 2011, President Obama nominated Judge Scola to fill the seat on the Southern District of Florida made available when Judge Paul C. Huck took senior status.  Judge Scola had previously served for over a decade on the state court bench.  He was confirmed as a federal district judge on October 19, 2011 and received his commission the following day.

Happy fifth anniversary, Judge Scola! Let's hope President Trump gives us more like him!

Here are some pictures from the event.  Check out this cake!

How will a Trump presidency affect the SDFLA and the Supreme Court

• Trump will select between 2-4 Justices.  William Pryor stands a good chance of being Justice Pryor. Federico Moreno also made Trump's short list.
• Who will be Attorney General?  Rudy Guliani? (I think it's less likely it will be Christie after the Bridgegate convictions, but who knows).
• If HRC had won, there was talk that U.S. Attorney Ferrer would stay on (or that Joan Silverstein would become U.S. Attorney), but that won't happen now. Any thoughts on who Trump names?  Jon Sale? (he would be great).
• There are going to be a bunch of open district court seats in the District.  Who gets those slots?