Don't laugh! (UPDATE)

 UPDATE -- she was convicted.  No joke.

Apparently a woman is on trial for laughing during Jeff Sessions' confirmation hearing.  Are you kidding me?!  Sessions' prosecutors are going after a laugher.  For real (via HuffPost):

    The U.S. Capitol Police officer who decided to arrest an activist because she briefly laughed during Attorney General Jeff Sessions’ confirmation hearing in January is a rookie cop who had never conducted an arrest before nor worked at a congressional hearing. Nevertheless, prosecutors persisted this week in pursuing charges against the 61-year-old woman the rookie had taken into custody.
    Katherine Coronado of the U.S. Capitol Police was in her second week on the job when she was assigned to keep watch over Sessions’ confirmation hearing on Jan. 10. Coronado was involved in the arrest of Desiree Fairooz, an activist affiliated with the group Code Pink, after Fairooz laughed when Sen. Richard Shelby (R-Ala.) said that Sessions’ record of “treating all Americans equally under the law is clear and well-documented.” (Sessions had been rejected as a federal judge in the 1980s because of concerns about his views on race, and back when he was still a Democrat, Shelby himself actually ran an ad suggesting Sessions had called the Ku Klux Klan “good ole boys.”)
    Fairooz was seated in the back of the room, and her laugh did not interrupt Shelby’s introductory speech. But, according to the government, the laugh amounted to willful “disorderly and disruptive conduct” intended to “impede, disrupt, and disturb the orderly conduct” of congressional proceedings. The government also charged her with a separate misdemeanor for allegedly parading, demonstrating or picketing within a Capitol, evidently for her actions after she was being escorted from the room.
    A video shot by a HuffPost reporter that shows Fairooz being arrested was included as evidence in the trial, which will continue at Superior Court in D.C. on Tuesday. The video jurors saw Monday shows Coronado taking Fairooz into custody as she’s assisted by fellow officers.
    Jason Covert, one of the assistant U.S. attorneys trying the case, asked Officer Coronado on Monday whether the laughter was “loud enough to draw your attention” or if she recalled “seeing other people turning around.” Coronado claimed she had seen other people turn around and later said Fairooz had been laughing “very loudly.”
    Samuel Bogash, a lawyer representing Fairooz, showed a video of the audience laughing at another part of the hearing, when Sessions joked about disagreements with his wife. But Covert argued that it was appropriate for the audience to laugh when Sessions made a joke about his marriage but not when Shelby claimed Sessions had a long record of “treating all Americans equally.”

SCOTUS decisions

No decisions this morning on the cell-site data cases.  They will be relisted again.  But we do have a decision in this Miami case.  From SCOTUSBlog:

The Supreme Court handed a partial but significant victory to cities today, holding that the Fair Housing Act allows the city of Miami to bring a lawsuit alleging that two banks, Bank of America and Wells Fargo, violated the law when they issued riskier but more costly mortgages to minority customers than they had offered to white borrowers. But it was hardly a complete win for the city, as the court also ruled that the lower court should have applied a tougher test to determine whether the city can recover compensation for its losses. This means that the case will now return to the lower court for it to decide whether there is enough of a connection between the banks’ lending practices and the city’s economic injuries to hold the banks liable.

 That means that Judge D will get the case back. Fun times.

News and Notes (UPDATED)

1.  Congrats to the new Labor Secretary, Alex Acosta.  Great news.  Acosta got 60 votes, including Sen. Nelson.

2.  The Melgen jury is still out.  Today marks day 3 of deliberations.  Strong likelihood of a verdict today before the weekend.  After 7 weeks, they won't want to come back next week.

UPDATE -- Friday afternoon verdict -- GUILTY on all counts.

3. Federal agent acquitted of road rage, via the Sun-Sentinel.

4.  "The lipstick gang"?  Paula McMahon has the details:

Call them the gang that couldn’t put on lipstick straight.
When three men, wearing bright red lipstick, heavy makeup and women’s clothing, walked into a jewelry store and said they were shopping for an engagement ring earlier this month, workers quickly realized they were dealing with an unusual band of gun-toting robbers.
So far, authorities said they have identified two of the wanted men. Jerome Simmons, 29, of Fort Lauderdale, was arrested as he crawled out of a nearby bush sporting only his boxer shorts, socks, makeup and carrying a walkie-talkie in his hand. A pink sweatshirt, pink sweat pants, a wig and a pair of shoes were found under a nearby vehicle, police said.

Your government at oral argument

Have you ever had a judge (or Justice) respond to an argument by saying, "Oh, come on." (via the NY Times):

Chief Justice John G. Roberts Jr. tried to test the limits of the government’s position at a Supreme Court argument on Wednesday by confessing to a criminal offense.

“Some time ago, outside the statute of limitations, I drove 60 miles an hour in a 55-mile-an-hour zone,” the chief justice said, adding that he had not been caught.

The form that people seeking American citizenship must complete, he added, asks whether the applicant had ever committed a criminal offense, however minor, even if there was no arrest.

“If I answer that question no, 20 years after I was naturalized as a citizen, you can knock on my door and say, ‘Guess what, you’re not an American citizen after all’?” Chief Justice Roberts asked.

Robert A. Parker, a Justice Department lawyer, said the offense had to be disclosed. Chief Justice Roberts seemed shocked. “Oh, come on,” he said.

Ouch.

Meantime, Alex Acosta will soon by in Trump's Cabinet.  Hopefully he won't be forced to make such silly arguments.

En banc 11th Circuit decides U.S. v. Roy

At long last, the en banc 11th Circuit today decided United States v. Roy.  The opinions span 287 pages.  Judge Carnes wrote the majority opinion, finding harmless error in conducting trial without counsel present during a portion of the trial.  From the conclusion:

We end, as we began, by acknowledging that although Alexander Roy received a fair trial he did not receive a perfect one. Whatever the circumstances surrounding it, and regardless of who knew what and when they knew it, we do not condone the taking of any inculpatory testimony in the absence of defense counsel. It is constitutional error, which should be avoided. But neither would we condone, much less participate in, scuttling the harmless error rule. As we have explained, the rule plays an important role in, and serves vital interests of, our judicial system. To reverse Roy’s conviction based on his counsel’s brief absence during initial presentation of only a small part of the overwhelming evidence against his client would require us to enlarge exceptions to the harmless error rule to the point where they would be large enough to consume much of the rule. Doing that would run counter to decisions of the Supreme Court, this Court, and the better reasoned decisions of other circuits.
The dissent expresses the view that “we must vigilantly ensure we are adhering to our obligation” and “commitment to the Constitution” where the defendant has committed “disturbing” crimes. Dissenting Op. at 257. And it espouses the view that the more disturbing the crimes the defendant committed the greater our obligation to adhere to the law because “the constitutional processes that the Framers put into place are there to protect everyone, including people accused of the gravest and most serious crimes.” Id. We disagree with any suggestion, if it be such, that someone charged with sexual crimes against minors is entitled to more constitutional protections than someone charged with kiting checks. The constitutional protections are the same for all regardless of their crimes.
We do agree, of course, that “[t]he Sixth Amendment guarantee of the right to counsel does not apply on a sliding scale based on the gravity of the defendant’s offense.” Id. at 258. But neither does the application of the harmless error rule vary inversely with the seriousness of the crime. Countless other convicted defendants whose trials were less than perfect have been denied automatic reversal and a presumption of prejudice. This defendant, although he is entitled to the full protections of the law, is not entitled to special treatment. Because the Sixth Amendment violation that occurred during his trial was harmless beyond a reasonable doubt, his conviction is due to be affirmed.
The judgment of the district court is AFFIRMED.

 Judges Tjoflat, Pryor, Jordan, and Rosenbaum each filed concurring opinions.

Judges Wilson, Martin, and Pryor each filed dissenting opinions.

More to follow...

Mistakes or Fraud?

The issue has been framed as "mistakes vs. fraud" in the Melgen trial, which is now with the jury.  From the PBP:

Acknowledging Dr. Salomon Melgen made some mistakes as he struggled to treat more than 100 patients a day at clinics from Delray Beach to Port St. Lucie, his attorney spent more than three hours Tuesday trying to overcome what federal prosecutors called “staggering” evidence that the ophthalmologist bilked Medicare out of as much as $105 million.

The 62-year-old Harvard-educated retinal specialist should not be found guilty of 76 charges of health care fraud for sloppy record-keeping, attorney Matthew Menchel told a federal jury in closing arguments. Further, he said, the doctor shouldn’t be sent to prison for trying innovative measures to help patients who were told their vision loss was hopeless.

While nationally renowned ophthalmologists testified during the nearly two-month trial that they were appalled by Melgen’s methods, Menchel insisted they had “agendas.” The people the jury should listen to are the patients, he said.

“It’s the patients who are experts in blindness,” Menchel said “It’s the patients, not the doctors, who are experts.”

Patients who testified — both for and against the wealthy physician who faces corruption charges in New Jersey with Democratic U.S. Sen. Robert Menendez — didn’t hold any animosity toward Melgen, he said. “Patients smiled warmly at him for a reason,” he said.

The reason, Assistant U.S. Attorney Roger Stefin countered, was that they that they had no idea he was using them as “props” to rake in millions from the federal insurer.

“He wasn’t just aggressive,” Stefin said, using Menchel’s word for Melgen’s tactics. “He was abusive. He took advantage of patients in many cases — people who were elderly, people who were sick, people who were trusting.”

Melgen subjected patients — some who had prosthetic, blind or shrunken eyes — to dozens of unnecessary and sometimes painful tests to “line his pockets with millions and millions of dollars,” agreed fellow Assistant U.S. Attorney Alexandra Chase.

Gotta love this story

Justice Breyer's cell phone went off in Court today. Of course it's no big deal and things happen.  But can you imagine if that happened to a lawyer instead of a judge.  Woah, the sky would fall.  Here's the WP on the incident:

Some questions about today’s incident remain unanswered. Breyer’s ringtone was not the usual sounding one, but reporters couldn’t make out exactly what it was. And it is unclear whether a justice’s black robe has pockets.

In local courts, the Melgan trial is wrapping up with closings today. 

Federalists and privacy

The Federalist Society will be discussing cell tower data and privacy this Friday.  I will be debating the Florida Solicitor General, Amit Agarwal, who was my opponent in the en banc cell tower case of U.S. v. Quartavious Davis.  It's being moderated by Judge Raag Singhal.  Should be fun: