"How ritual chicken sacrifices in Miami helped halt Trump’s travel ban"

That's the Miami Herald headline from David Ovalle's article about the unique Miami connection to the Trump travel ban.  Fun times:

In ruling against President Donald Trump’s “Muslim travel ban,” a trio of federal judges relied in part on a distinctly South Florida court case — one that granted religious protections for the ritual sacrifice of chickens and goats.
The unanimous ruling Thursday night upholding a halt to the White House executive order cited a famous 1993 U.S. Supreme Court decision that overturned a Hialeah law banning Santería animal sacrifices. Justices found that the city ordinance infringed on constitutionally protected freedoms.

Pablo Martinez Monsivais AP

The ruling by the U.S. Court of Appeals for the Ninth Circuit court made clear that judges can consider outside statements made by elected leaders — in this case, President Donald Trump himself — in trying to figure out if the intent of a government action was to discriminate against a religious group.
“In Hialeah in the 1990s, it was Santería. With Trump, it’s Muslims,” said University of Virginia law professor Douglas Laycock, an expert on religious liberties who successfully argued the Hialeah case.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article131983429.html#storylink=cpy

News and Notes

1.  Former Carnes clerk, former AUSA and current Circuit Judge Robert Luck was named today to the 3rd DCA.  From the DBR:

In an earlier interview, Luck told the Daily Business Review that Carnes taught him "lawyers and judges, both orally and when we write, should speak in a way that the everyday person can understand."

During Luck's time at the U.S. Attorney's Office, he handled 19 jury trials — a rarity for a young lawyer. Luck secured a guilty plea in the largest student visa fraud to date. He also persuaded a court to impose a 20-year prison sentence on a doctor who ran a $50 million Medicare fraud scheme, and he got a guilty plea from a boat captain who tried to smuggle dozens of Dominicans into the U.S.
Luck became a circuit judge the first time he applied. In August's judicial election, he kept his seat in the circuit's criminal division by a margin of 53.5 percent to challenger Yolly Roberson's 46.5 percent.

2. Tonight is the big shindig for the Federal Bar Association at the Hyatt.  It's the "36th Annual Federal Judicial Reception" from 5:30-8:30.  Enjoy!

3.  And tomorrow is the DCBA's Bench and Bar conference. Lots of interesting panels.  They stuck mine during the lunch hour... I'll be moderating a panel at noon on "Trends in Criminal Law" with some great speakers including Judges Milton Hirsch and Nushin Sayfie, Federal Public Defender Michael Caruso, State Public Defender Carlos Martinez, State Attorney Kathy Fernandez Rundle, and U.S. Attorney Willy Ferrer.

“My life is over.”

That was Akin Gump lawyer and former prosecutor Jeffrey Wertkin after being arrested in disguise trying to sell a sealed complaint to an informer. Sad. From Bloomberg:

A Washington lawyer at a prominent firm was arrested in a disguise while trying to sell a copy of a secret lawsuit involving a company that was under investigation by the U.S. Justice Department.
Jeffrey Wertkin was picked up Jan. 31 in the lobby of a hotel in Cupertino, California, where he believed he was about to collect $310,000 for selling the lawsuit, according to the Federal Bureau of Investigation.
Wertkin, who worked in Washington for Akin Gump Strauss Hauer & Feld LLP, believed he would hand a copy of a complaint to an employee of the company, which was accused in the complaint by a whistle-blower of falsely billing the government. Wertkin, who was wearing a wig and using the name of Dan, was met instead by an FBI agent, according to arrest documents unsealed on Feb. 6.

Here's the criminal complaint, courtesy of Above the Law.

"Are you arguing then that the President's decision in that regard is unreviewable? A. Yes."

Alrighty then.  That was August Flentje, special counsel to the assistant attorney general at the Justice Department, answering questions during yesterday's oral argument, which was live-streamed (take note, 11th Circuit and Supreme Court!). Here's the argument.

Meantime, Trump was tweeting:

If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!

— Donald J. Trump (@realDonaldTrump) February 8, 2017

And Sen. Warren was being silenced:




Fun times!

The Falcons won the popular vote.

And other funny memes:

Lots of funny ones zooming around the internet. Meantime, Jason Pierre-Paul settled with ESPN in his suit about the disclosure of his medical records. The case was before Judge Cooke. From the AP:

 New York Giants defensive end Jason Pierre-Paul and ESPN have settled a lawsuit over the network's disclosure of his medical records from a 2015 fireworks accident.

ESPN announced the settlement on Friday, saying it believes that the network's reporting about the injury was newsworthy and journalistically appropriate.

Giants spokesman Pat Hanlon declined comment.

The network said despite their different points of view, the parties agreed to resolve their dispute amicably.

The case was set for trial in August after a Miami federal judge rejected ESPN's motion to dismiss the lawsuit.

Pierre-Paul was hospitalized in Miami after the July Fourth accident, which caused serious injuries to his right hand. The lawsuit claimed ESPN and a network reporter violated his privacy and Florida medical confidentiality laws by posting the records on social media.

Former U.S. Attorneys rise up! (UPDATED)

Well, well, well... what do we have here?  35 former prosecutors, including 3 former U.S. Attorneys from the S.D. Florida, have penned this open letter concerning Trump's executive order, which led to Sally Yates' firing.  The whole thing is worth a read, and it's interesting to look at all of the signatories, but here is the conclusion:

In short, the Executive Order is inimical to the values of the Justice Department and the United States, most significantly, that individuals may not be treated more harshly under the law solely on account of their religion. In our view that is exactly what the Executive Order does, and is intended to do. It would be our job, if we were representing the United States today, to say, no, this Executive Order is wrong and should not be defended.

UPDATE -- Jay Weaver from the Herald covers the letter here:

 Three dozen former federal prosecutors — many Democrats, but some Republicans — issued a statement Thursday denouncing President Donald Trump's executive order temporarily banning people from the predominantly Muslim countries of Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen from entering the United States.
“If we were called upon to defend the executive order, could we do it within the guidelines we learned and lived by as lawyers for the United States?” said the statement signed by 36 former federal prosecutors who worked in South Florida, including three U.S. attorneys in Miami. “We could not. ...
“It would be our job, if we were representing the United States today, to say, no, this executive order is wrong and should not be defended,” the statement reads.

Read more here: http://www.miamiherald.com/news/local/article130316814.html#storylink=cpy

"At all times relevant to this lawsuit, Donald J. Trump was a private citizen. As a result the Court will refer to him as such in this decision. In doing so, the Court means no disrespect to him or the esteemed position he now holds."

That was Judge Marra in this 21-page order finding against Trump after a bench trial.  From Politico:

A federal judge has ordered a golf club owned by President Donald Trump to refund nearly $6 million to members who said Trump's team essentially confiscated refundable deposits after taking over the country club in 2012
U.S. District Court Judge Kenneth A. Marra ruled that the Trump National Jupiter Golf Club violated the contracts with members by retaining the fees and locking out many members who had declared their plans to resign.
"The Court concludes that the Plan documents, as properly interpreted, were intended to provide club members of the resignation list with a continuing right to use the Club facilities until their membership was reissued to a new member, provided the club member was otherwise in good standing with the Club," Marra wrote.

While that bigly trial came to a close, another one, involving allegations of smuggling Cuban baseball players, led off with opening statements before Judge Kathy Williams.  H. Ron Davidson opened for the government, and the two defendants, Bart Hernandez and Julio Estrada, are represented by Jeff Marcus/Dan Rashbaum and Sabrina Puglisi/Dianne Carames.  Curt Anderson from the AP on openings:

 Florida-based sports agent and a trainer ran legitimate businesses aimed at getting Cuban baseball players to sign U.S. major league contracts but were not involved with smuggling players from the communist island or falsifying travel documents, their lawyers told a federal jury Wednesday.
Opening statements were held Wednesday in the case against agent Bartolo Hernandez and trainer Julio Estrada, both of whom have been charged with conspiracy and alien smuggling. Both face lengthy prison sentences if convicted.
***
Hernandez attorney Jeffrey Marcus said the agent's only involvement with the players was to negotiate their contracts with professional teams through his company, Global Sports Management, and that his percentage was relatively small at less than 5 percent.
"His business is baseball. It's not smuggling," Marcus told jurors. "This case, I think, is a stretch in many ways, in fact and in law."
Likewise, Estrada lawyer Sabrina Puglisi said her client's role was operating training facilities in Mexico and the Dominican Republic so players could stay sharp while they awaited permission to come to the U.S.
Under Major League Baseball rules, Cuban players who establish residency in a third country can sign lucrative deals with teams as free agents, but would have to submit to the baseball draft and get paid less if they come directly to the U.S.
"Julio has nothing to hide. He did everything above board. He's running a legitimate business," Puglisi said.
No players are accused of wrongdoing. Several Cuban-born players are likely to testify, including Yoenis Cespedes of the New York Mets, Jose Abreu of the Chicago White Sox and Adeiny Hechevarria of the Miami Marlins. Puglisi said more than 20 players were trained by Estrada.
Assistant U.S. Attorney Ron Davidson said in his opening statement that some players came to the U.S. with falsified passports or used other forms of deception to establish residency in Mexico and other countries. One tactic, he said, was to submit documents to the Mexican government claiming the players had actual jobs such as a welder, mechanic, even as an "area supervisor" for a jet ski company.
"It was just made up," Davidson said.

"A judge who likes every result he reaches is very likely a bad judge."

That was SCOTUS nominee Neil Gorssch during his speech tonight and in a dissent last year, which may give criminal defense lawyers some optimism (he found strip searches unconstitutional):

"Often enough the law can be 'a ass — a idiot,' Charles Dickens, Oliver Twist 520 (Dodd, Mead & Co. 1941) (1838) — and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people's representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands — and in that I see the best of our profession and much to admire. It's only that, in this particular case, I don't believe the law happens to be quite as much of a ass as they do. I respectfully dissent."

And there's this:

Like Scalia, he has shown a willingness to occasionally side with defendants on criminal law matters. He sided with a Albuquerque middle schooler who was strip-searched by his school, dissenting while his colleagues ruled that the school police officer and other employees are immune from lawsuits. In one 2012 dissent, he argued against applying the federal law banning felons from owning firearms to a defendant who had no idea he was a felon. And he's expressed concern with overcriminalization, saying that states and the federal government have enacted too many statutes forbidding too much activity. But on other matters, he has been, like his would-be predecessor, harsher. He has taken a limited view of a defendant's right to competent representation, and tends not to view death penalty challenges favorably.

I guess we will see soon enough.