Legal Awards Season

It's Legal Awards Season in Miami.

The Federal Bar Association has its big gala next Thursday, September 7 at the Four Seasons.  The big award is called "The Ned" after Edward B. Davis.  I have a soft spot for this award because it is named after the judge that I clerked for.  Judge Davis was simply the best.  Besides being an absolute awesome judge, he was a great man.  I am proud that the FBA is awarding this year's Ned to Donald L. Graham.  Judge Davis always loved Judge Graham and would be happy about this.

The Dade County Bar Association is also having its big party on September 9 at the JW Marriott.  The Presidential Award winners are: Sec. of Labor Alex Acosta, Judge Robert Luck, and Judge Lisa Walsh.  The David Dyer Professionalism Award is going to Judge Kathleen Williams, and the Johnnie Ridgely Award is for Judge Beth Bloom.

An all-star cast!

"We hold that neither robbery, armed robbery, nor use of a firearm in the commission of a felony under Florida law is categorically a 'violent felony.'"

"We hold that neither robbery, armed robbery, nor use of a firearm in the commission of a felony under Florida law is categorically a 'violent felony.'"  That was the 9th Circuit, acknowledging a split with the 6-5 en banc 11th Circuit case that the blog discussed last week.  HT: How Appealing.

I'm starting to think it would be more fun to practice out in California.

What do you all think about a judicial law clerk tweeting about a decision that his judge wrote while he was clerking.  Here's a string from Andrew Case about the Apraio trial and his thoughts on the pardon.

VW exec gets higher sentence than prosecutors request

Although prosecutors asked for 3 years, a federal judge sentenced VW exec James Liang to 40 months. If the executive branch is asking for a particular sentence, that should be the ceiling for judges... but that's not the law unfortunately.

From Law360:

A Michigan federal judge on Friday sentenced a Volkswagen AG engineer who pled guilty to charges stemming from the diesel emissions scandal to 40 months in prison, slightly longer than the three-year prison term sought by prosecutors.

After months of delays, U.S. District Judge Sean Cox sentenced James Liang to three years and four months in prison. Liang, accused of helping facilitate the installation of so-called defeat devices to skirt U.S. emissions testing in about half a million vehicles, pled guilty in September to a count of conspiracy to defraud the United States, commit wire fraud and violate the Clean Air Act.

Liang was also fined $200,000, due immediately, more than the $20,000 fine requested by prosecutors. He also agreed to be deported to Germany after finishing his prison sentence. Liang is a German citizen.

At the hearing on Friday morning, Judge Cox said that Liang was a member of a long-term conspiracy and that the scandal was “a stunning fraud on American consumers,” a courthouse observer told Law360.

Liang’s attorney, Daniel V. Nixon of Byrne & Nixon LLP, said at the hearing that Liang was the first person to accept responsibility for what happened and that he had cooperated with prosecutors and agreed to testify against another VW executive, Oliver Schmidt, if Schmidt’s case had gone to trial, according to the observer.

En banc 11th Circuit rules 6-5 that Florida felony battery is a violent felony under the Sentencing Guidelines

The en banc 11th Circuit ruled 6-5 that Florida felony battery is a violent felony under the Sentencing Guidelines.  The majority opinion was written by Judge Julie Carnes, which is significant because many were wondering whether she would end up siding with the older, conservative faction of the Court (E. Carnes, Tjoflat, Hull, Marcus, W. Pryor) on this issue, or the newer, moderate members (Martin, Jordan, Rosenbaum, J. Pryor).  The dissent was written by Judge Wilson and joined by those four Obama appointees. 

11th Circuit wades into social media and warrants

How does the warrant process work with social media accounts?  The 11th Circuit took a dive into this interesting issue in United States v. Blake.  Orin Kerr takes a closer look at the case here:

In Blake, two defendants, Dontavious Blake and Tara Jo Moore, were allegedly running a prostitution ring. The government obtained search warrants for Microsoft email accounts Blake and Moore used, as well as for the contents of Moore’s Facebook account. The email warrants required Microsoft to go through the accounts and find emails responsive to the warrant and turn only those over. The Facebook warrants required Facebook to hand over the full contents of the account and to then let the agents search it for the evidence of crime.

In an opinion by Judge Ed Carnes, the 11th Circuit concluded that the Microsoft warrants satisfied the Fourth Amendment but suggested that the Facebook warrants may not. Here’s the court rejecting Moore’s email warrant challenge:

The Microsoft warrant [for Moore’s e-mail account] complied with the particularity requirement. It limited the emails to be turned over to the government, ensuring that only those that had the potential to contain incriminating evidence would be disclosed. Those limitations prevented “a general, exploratory rummaging” through Moore’s email correspondence. The Microsoft warrant was okay.

In a footnote, the court added:

It is somewhat troubling that the Microsoft warrant did not limit the emails sought to emails sent or received within the time period of Moore’s suspected participation in the conspiracy. Nevertheless, the warrant was appropriately limited in scope because it sought only discrete categories of emails that were connected to the alleged crimes. As a result, the lack of a time limitation did not render the warrant unconstitutional.

The court then suggested that the two-stage Facebook warrants may have violated the Fourth Amendment, although the court did not rule on the issue because the good-faith exception to the exclusionary rule applied.

Total Eclipse ... of the Heart

I love that Bonnie Tyler is performing Total Eclipse of the Heart today.

But the eclipse isn't enough for Judge Merryday out of the Middle District to allow a continuance so that a government agent could go see it:

Judge Merryday denies motion to continue to allow federal agent to view eclipse. by David Oscar Markus on Scribd

Congratulations to Judge Robert Scola for being named to the Defender Services Committee.

Congratulations to Judge Robert Scola for being named to the Defender Services Committee.

Defender Services Committee
Chief Justice John G. Roberts, Jr. appointed the following new members to the Defender Services Committee.  Their terms begin October 1, 2017.

New Members:
Hon. Micaela Alvarez (5th Circuit representative - TX-S)
Hon. Judith Ellen Levy (6th Circuit representative - MI-E)
Hon. Robert N. Scola, Jr. (11th Circuit representative - FL-S)
Hon. Ketanji Brown Jackson (DC Circuit representative - DC)

There is another Miami connection to the committee -- Judge Brown Jackson is a Miami native and went to Palmetto High.

11th Circuit vs. then-Judge Gorsuch

The 11th Circuit, per Judge Dubina, issued an opinion today disagreeing with then-Judge Gorsuch in United States v. Games-Perez. 667 F.3d 1136, 1142 (10th Cir. 2012) (Gorsuch, J., concurring in judgment). The Gorsuch opinion was defendant friendly on the issue of mens rea. Unsurprisingly, the 11th Circuit opinion is not:

As Rehaif points out, the strongest argument in favor of requiring proof of mens rea with respect to the status element is laid out in then-Judge, now Justice Gorsuch’s concurrence in United States v. Games-Perez. 667 F.3d 1136, 1142 (10th Cir. 2012) (Gorsuch, J., concurring in judgment). Acknowledging that prior precedent dictated that the mens rea requirement does not apply to the status element, then-Judge Gorsuch concluded that the plain language of the statute compelled the opposite conclusion. Id. (“[Prior precedent] reads the word “knowingly” as leapfrogging over the very first § 922(g) element and touching down only at the second. This interpretation defies linguistic sense—and not a little grammatical gravity.”). In drawing such a conclusion, then-Judge Gorsuch noted that, “Congress gave us three elements in a particular order. And it makes no sense to read the word “knowingly” as so modest that it might blush in the face of the very first element only to regain its composure and reappear at the second.” Id. at 1144. He also pointed out that “[t]he Supreme Court has long held that courts should presum[e] a mens rea requirement attaches to each of the statutory elements that criminalize otherwise innocent conduct.” Id. at 1145 (quotations omitted) (alteration in original).
While then-Judge Gorsuch opined that § 922(g) “is a perfectly clear law as it is written, plain in its terms, straightforward in its application,” id., there is evidence to suggest otherwise. The fact that § 924(a)(2) only punishes defendants who “knowingly violate” § 922(g) begs the question “what does it mean to knowingly violate the statute?” Does the statute proscribe merely conduct, or both conduct and the surrounding circumstances that make the conduct a federal crime? See United States v. Langley, 62 F.3d 602, 613 (4th Cir. 1995) (en banc) (Phillips, J., concurring in part and dissenting in part) cert. denied, 516 U.S. 1083, 116 S. Ct. 797 (1996). While the defendant’s status might be inextricably tied to the violation, the actual violation occurs when the defendant knowingly possesses a firearm.