Pleading of the year before Judge Ungaro

Oh this Webzilla pleading "Six Ways Buzzfeed has misled the Court (Number Two will amaze you) ... And a picture of a Kitten" is good.  Very good:

"In a somewhat remarkable Motion to Dismiss, Plaintiffs Buzzfeed, Inc. (“Buzzfeed”) and Ben Smith (“Mr. Smith”) intimate that their ties to Florida are so sparse that, collectively, they can barely find Florida on a map and that, as a result, the present case should be dismissed for lack of jurisdiction or transferred to the Southern District of New York," Gubarev's lawyers wrote. 

News & Notes

1. The Miami Herald covers Willy Ferrer's move to H&K here.

2. It's a busy criminal justice week in the Supreme Court.  SCOTUSBlog summarizes them this way:

Lee v. United States, No. 16-327, to be argued March 28, 2017

Issue: Whether it is always irrational for a noncitizen defendant with longtime legal resident status and extended familial and business ties to the United States to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation.

Argument preview: Immigration, ineffective assistance and plea bargaining

Turner v. United States, No. 15-1503 to be argued March 29, 2017

Issue: Whether the petitioners' convictions must be set aside under Brady v. Maryland.

Honeycutt v. United States, No. 16-142 to be argued March 29, 2017

Issue: Whether 21 U.S.C. § 853(a)(1) mandates joint and several liability among co-conspirators for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy.

Argument preview: Can a conspiracy defendant be ordered to forfeit proceeds he never obtained?

3.  Amy Howe covered the Lee argument here.  From the intro:

This morning the Supreme Court heard oral argument in the case of Jae Lee, a Korean immigrant who was charged with possession of ecstasy with intent to distribute it. Lee accepted a plea bargain after his attorney told him that he would not be deported. That advice turned out to be, as Justice Elena Kagan put it today, “supremely deficient”: In addition to the year and a day in prison to which he was sentenced, Lee’s conviction also carried with it the penalty of mandatory deportation. Lee asked a federal court to vacate his conviction, but the U.S. Court of Appeals for the 6th Circuit declined to do so. It reasoned that the evidence against Lee was so overwhelming that, even if he had received bad advice from his attorney that prompted him to plead guilty, Lee could not have suffered the kind of harm from that bad advice that would render his conviction unconstitutional. The justices today seemed more sympathetic to Lee than did the 6th Circuit, although it is not clear whether he can get the five votes needed to reverse the lower court’s ruling.

Fane Lozman wants back in the Supreme Court

You all remember him -- he's the guy who won the floating home case.  Well, he's back.  From Curt Anderson:

Four years ago, Fane Lozman won an improbable longshot victory when the U.S. Supreme Court agreed with him that his floating home was a house, not a vessel subject to seizure by a Florida city.

The justices set a new national legal standard: Not everything that floats is a boat.

It was far from certain that the nation's highest court would even take his case, and the verdict in January 2013 seemed a resounding victory for the little guy in battle with local officials. Now Lozman is asking the justices to enforce their ruling by forcing the city pay him legal fees and reimburse him for the home's value after it was seized and destroyed.

Lozman's 60-by-12-foot floating home had no engines, sails or rudder. It had to be towed to a Riviera Beach marina where Lozman took up residence in 2006 before becoming embroiled in a fight with that Florida city over its plans to turn the marina over to a developer. Lozman said the city's actions were in retaliation for his vocal opposition.

The city sought to evict him and, when that failed, sued under maritime law in federal court to have the floating home seized as a vessel. After a federal judge sided with the city in 2010, it had the home destroyed - launching the legal battle all the way to the Supreme Court.

Lozman contends in new filings that the city should reimburse him the estimated $165,000 value of the floating home destroyed, plus $200,000 in legal fees. The same district judge and appeals court whose rulings were overturned by the Supreme Court justices have essentially told Lozman to take a long walk on a short pier.

To Lozman, the rulings rejecting reimbursement fly in the face of the original Supreme Court decision, forcing him to return for a second longshot.

How would you answer this question?

While Gorsuch is being grilled on these important questions, Labor nominee Alex Acosta is quietly having his hearings.  From the Miami Herald:

“Why cut a non-prosecution deal despite your staff saying you shouldn’t?” Kaine asked. “That is not accurate,” Acosta responded, disputing reports that in cutting the plea deal with Epstein, he rejected the advice of his senior lawyers when he served as U.S. attorney for Southern Florida. “It was a broadly held decision,” Acosta said. The exchange was one of the more feisty moments in an otherwise relatively smooth hearing that Democrats and Republicans alike say will lead to easy confirmation for Trump’s second choice to lead the Labor Department. Republican Sen. Marco Rubio of Miami, a fellow Cuban-American, introduced Acosta to the Senate Labor Committee. “He is a brilliant legal mind, someone with deep knowledge of labor issues, and a proven leader,” Rubio said. Sen. Ted Cruz of Texas, like Rubio a 2016 Republican presidential candidate, said he and Acosta had bonded over the years as the sons of Cuban-American refugees. “Alex is a surprisingly good poker player and not nearly as good of a squash player,” Cruz said to laughter. The Senate in bipartisan votes previously confirmed Acosta for three positions: the prosecutor’s post in Miami, a senior Justice Department job and what became an eight-month stint on the National Labor Relations Board. And labor unions have already told their allies on the Hill that Acosta is a better choice than Trump’s first pick California fast food executive Andy Puzder.

Shaniek Maynard is your new Ft. Pierce Magistrate

It's not official yet because she is undergoing her FBI background check.  But that should happen soon.  She grew up in Ft. Pierce and went to Yale Law School.  Seems like an excellent choice.

"Respectfully, and reluctantly, I dissent."

That was Judge Jordan, dissenting in a death penalty case (Madison vs. Alabama DOC) in which Judge Martin writes for the majority (Wilson joined) that Vernon Madison is incompetent and therefore cannot be executed. Jordan says that's not the place of a federal court on a habeas petition to make that determination (even though he agrees with the majority that Madison is incompetent).

From the majority:

Because the Alabama trial court unreasonably determined the facts relevant to Mr. Madison’s claim and unreasonably applied controlling federal law, we do not owe the state court’s finding that Mr. Madison is competent to be executed deference under AEDPA.

From the dissent:

After reviewing the record, I believe that Vernon Madison is currently incompetent. I therefore do not think that Alabama can, consistent with the Constitution, execute him at this time for his murder of a police officer three decades ago. See generally Panetti v. Quarterman, 551 U.S. 930, 958 (2007) (explaining that a state cannot put to death a prisoner who “cannot reach a rational understanding of the reason for the execution”). But Congress has chosen to generally prohibit federal courts from adjudicating constitutional claims anew on habeas review, so Mr. Madison’s competency (or lack thereof) is not our initial call to make. Under the restrictive standards we are required to apply, see 28 U.S.C. § 2254(d), and given the way we interpreted Panetti in Ferguson v. Secretary, 716 F.3d 1315 (11th Cir. 2013), I do not think Mr. Madison can obtain habeas relief.

Baseball case ends in convictions

It was a very long trial and today the jury found both Bart Hernandez and Julio Estrada guilty. From the AP:

MIAMI (AP) — A Miami jury on Wednesday convicted a Florida sports agent and a baseball trainer on charges they smuggled Cuban baseball players to the U.S. in search of big profits from professional free agent contracts.

The verdict came after jurors heard about six weeks of testimony in the trial of Bartolo Hernandez and Julio Estrada, who were indicted on conspiracy and alien smuggling charges for an operation that began in 2009 and involved a number of high-profile Major League Baseball players.

Trial evidence showed an existing Cuban smuggling operation that brought people from the communist-run island to Mexico became the platform in 2009 for the much more lucrative trade in elite ballplayers. People involved in that operation testified it was ultimately overseen by Hernandez and Estrada.

The players would be whisked from Cuba to Mexico or Haiti in a speedboat, sign papers claiming residency in their new country and eventually be cleared to sign with MLB teams. Prosecutors showed jurors how many of those documents contained false information, such as made-up jobs for players, and some travel documents were forged.

In one of the trial's memorable moments, Chicago White Sox star Jose Abreu testified that he ate a piece of his phony Haitian passport while flying to the U.S. in 2013 because he feared repercussions if he landed in Miami with a fake document. Abreu soon after signed a $68 million deal with Chicago.

Prosecutors behaving badly

This time it's in the Salomon Melgen trial in WPB, where the prosecutors elicited false testimony about uncharged conduct.  Although Judge Marra struck the testimony and instructed the jury, the defense's motion for mistrial was denied.  From the PBP:

The judge in Palm Beach County eye doctor Salomon Melgen’s Medicare fraud trial on Monday threw out the testimony of a witness who wrongfully claimed the doctor had billed her for a surgery he never performed.

Attorneys for Melgen had asked U.S. District Judge Kenneth Marra to declare a mistrial over the testimony that came up Thursday during the first day of testimony in a trial that is expected to last through next month.

Also Monday, federal jurors heard testimony from one of the FBI agents who pored over thousands of patient records and photographs from Melgen’s practice going back to the 1990s, and began hearing from an expert on macular degeneration — an eye illness that federal prosecutors say Melgen falsely diagnosed and treated in scores of patients at his offices in West Palm Beach, Delray Beach and Port St. Lucie to collect Medicare payouts of more than $108 million.

Before testimony began for the day, however, defense attorney Matthew Menchel told Marra that he and other defense attorneys for the 62-year-old doctor were completely blindsided by accusations from witnesses Thursday that Melgen had never performed an operation on patient Delores Griffiths for which he billed Medicare.

Menchel said that records showed that Melgen had done the procedure. But even if the allegations were true, Menchel said, federal prosecutors have never claimed in indictments against Melgen that he billed Medicare for procedures he never performed. Menchel said prosecutors were reckless and irresponsible for bringing up the allegations during the trial without prior notice.

“This was completely new, completely different, and completely out of left field,” Menchel said. “That’s like charging someone with robbery and then coming to trial and accusing them of rape.”

Menchel had asked Marra to either declare a mistrial in the case or to throw out the witness testimony. The judge chose the latter, telling jurors that records show the procedure had been done and instructing them to disregard the witness testimony.