News & Notes

1.  Akerman lawyer and Mignonette owner Ryan Roman (along with good guy Danny Serfer) had a lot of fun with Munch Madness, making it to the Finals against Flanigans. Here's the Herald piece:

Co-owners Ryan Roman and chef Danny Serfer decided to visit every Flanigan’s, from Kendall to Stuart, all in one day — a 13 1/2 hour road trip on April 1, and no, it wasn’t an April Fool’s joke. They posted a picture on Instagram and Twitter from each location, eating their way down the east coast of Florida. They chronicled their trip with the hash tags #YourBiggestFlans and #FlanClub.

2.  Here's a nice piece about Bankruptcy Judge Jay Cristol:

The life and career of A. Jay Cristol has been full of ups and downs, but that’s not surprising for a pilot with seven decades of flying experience.
In fact, to speak with Judge Cristol of the U.S. Bankruptcy Court for the Southern District of Florida, it’s clear there were a lot more ups than downs.
He’s not only been a Navy aviator and a jurist, but he’s also a scholar, teacher and philanthropist.

3.  Many of you sent me this piece by Judge Kopf about his observations about criminal defense lawyers (thanks for sending it!).  It's a fun read.  Many Miami CDLs won't like this one:

 If you became a criminal defense lawyer because you like Rolex watches, then you are an asshole.

RIP James C. Hill

Eleventh Circuit Judge James Hill passed away last Friday at 93.  Here's the 11th Circuit's memoriam page:

James Clinkscales Hill, a senior judge on the 11th Circuit Court of Appeals, died on March 31, 2017 in Stuart, FL. He was 93. Born in Darlington, SC on Jan. 8, 1924, Hill attended the University of South

Caro lina for three years before joining the Eighth Air Force in England during World War II, serving in the 390th Bomb Group as a cryptographer. After the war, he entered Emory University Law School,

graduating in 1948 and joining the Atlanta firm of Smythe Gambrell. He founded Hurt, Hill andRichardson in 1963 and worked primarily as a defense trial lawyer until he was appointed a federaldistrict judge in 1974 by President Richard Nixon. President Gerald Ford elevated Hill to what was then the Fifth Circuit in 1976. In 1946, he  married Mary Black of Simpsonville, SC, then a chemist with the Food and Drug Administration who went on to a career dancing and teaching ballet in Atlanta. Mary and Jim were active in Atlanta's cultural, legal, political and social scene for the next 45 years. Many weekends were spent in their houseboat on Lake Lanier. Every April meant a trip to the Masters. World travelers, they went far beyond the usual tourist destinations -

climbing up Kilimanjaro, rafting down the Grand Canyon, trekking in the Himalayas, cruising on the Yangtze, sailing along the Nile --visiting everycontinent but Antarctica. For some years, Jim flew his own Beechcraft Bonanza and then learned to scuba dive. A dedicated golfer who played Augusta National and St. Andrews, he recorded three holes

in-one. Two of those came at the Golf Club of Amelia Island, FL where Jim and Mary moved in 1991 after he took senior status on the court, maintaining chambers in Jacksonville and living on the ocean. Jim,

who celebrated his 80th birthday with a parachute jump, heard cases until after his 90th. Among his many honors was membership in the American College of Trial Lawyers. In Atlanta, Jim and Mary were

members of Wieuca Road and Northside Drive Baptist Churches, joining the Amelia Plantation Chapelwhen they moved there. Services will be held there on Saturday, April 8 at 11 a.m. Jim's ashes will be

placed in the Chapel's columbarium next to those of Mary who died in 2010. He is survived by his sister Jean Ballentine of Mt. Pleasant, SC; his sons, James C. Hill, Jr. (Dorothy) of Stuart, FL, and A. Michael Hill

(Patty Dann) of Baltimore, MD; seven grandchildren and six great -grandchildren. Memorial contributions may be made to the Judge James C. Hill scholarship at Emory University Law School.

Instagram trial

Oh, this is too fun. David Ovalle covers the Judge Seitz trial with lots of funny Instagram pictures and arguments:

"The heater would be a reference to the AK47 on the seat there,” U.S. Homeland Security Agent Kevin Selent testified.

Garcia’s trial began Tuesday with digital era evidence: prosecutors pored over his Instagram account, which they argue confirms he was a big-time doper, selling weed, Xanax and the potent cough syrup drink known as “lean,” “sizzurp” or “drank.”

Jurors will have to decide whether Garcia was doing real business or just image-building on social media – his lawyers insist the 26-year-old supposed music producer was more addict than kingpin, a wannabe hanging with celebrities.

“On Instagram, Harrison was a baller, if you will, taking photos with Chris Brown and Lil’ Wayne,” lawyer Percy Martinez told jurors in opening statements. “In real life, he was a big kid with kids of his own.”

Should Dems oppose Gorsuch

Judge Nancy Gertner says he's extreme.  But of all the picks that Trump could make, he's seems pretty moderate to me.  Here's Gertner:

He sounds so judicial. He talks about neutrality, raising plain vanilla issues about deference to the expertise of administrative agencies. It is boring, hardly likely to engender indignation. He says his decisions are required by the law — not affected by his own background. He is Judge Neil Gorsuch and he may soon be on the Supreme Court. Don’t be fooled. His approach is not neutral, not required by the law, and far out of the mainstream. Quite apart from social issues like abortion or gay rights, his approach could gut health and safety and antidiscrimination laws.

Back to Blogging

Sorry the blogging has been slow for the past 3 weeks.  My partner, Margot Moss, and I were in Frankfort, KY trying a 3-week federal fraud case.  But we're back, just in time for the Gorsuch vote.  But strangely, the ABA will have no role going forward in vetting judges. 

Meantime, closer to home, I checked the 11th Circuit for any new criminal opinions and we have just one published opinion from that time.  We did get an order granting en banc oral argument in U.S. v. Stein.  That was the case that Judge Jordan concurred (with Judge Pryor) and asked for en banc argument:

We are bound by our decision in Mays v. United States, 763 F.2d 1295, 1297 (11th Cir. 1985), a summary judgment case holding that self-serving statements in a taxpayer’s affidavit, without more, are insufficient to genuinely dispute the presumption that the government’s tax assessment is correct. I therefore reluctantly agree that we must affirm the district court’s grant of summary judgment.
I write separately, however, because the cases upon which Mays relies arise in the post-trial context, where the standard of review is much more deferential than at the summary judgment stage. The principle articulated in Mays has no place in a summary judgment posture. And I believe that the single precedent supporting Mays’ analytical leap, Heyman v. United States, 497 F.2d 121 (5th Cir. 1974), was itself wrongly decided.

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.