Downtown Miami update

Downtown Miami Update:

It looks like downtown Miami is mostly back up and running.  The Flagler Starbucks is open.  Many restaurants are also now open.  It is unclear when magistrate court will reopen.

If you are still home and looking for more reading, check out this Judge Rosenbaum opinion about the Dark Web from last week, snuck in right before Irma:

The Dark Web. For many, the name conjures images of a suspect shadow internet world where virtually anything can be bought for the right price.* Indeed, Bureau of Alcohol, Tobacco, Firearms & Explosives (“ATF”) Special Agent Tully Kessler described the Dark Web as “another side of the Internet . . . access[ible] through your Internet provider . . . [but only using] special software.” He opined that it “allow[s] the sale and trade of all kinds of things that you would never find on a regular website open to the public.” And the Dark Web—on, in one case, a site called Black Market Reloaded—is where Defendant-Appellant Michael Albert Focia chose to sell firearms domestically and internationally.
A jury convicted Focia of dealing in firearms without a federal firearms license, in violation of 18 U.S.C. § 922(a)(1)(A), and selling firearms to unlicensed residents of states other than his own without having a license to do so, in violation of 18 U.S.C. § 922(a)(5). He now challenges the sufficiency of the evidence to convict him, the jury instructions, the constitutionality of the criminal statutes of which he was convicted, and his sentence. After careful consideration, and with the benefit of oral argument, we affirm Focia’s conviction and sentence.

*In fact, the Dark Web also has a different side. Because of its layered encryption system, it plays an important role in providing safe fora for, among others, whistleblowers and journalists.

Back at it

Here's hoping everyone came out of the storm okay.  I have no power and limited cell service at home, but the office is operational with power and internet.  Although it's a ghost town, it looks like many of the buildings in downtown Miami have power.  Some are still blocked off though, so you should check first before trekking down here.  If you are coming from the south, US1 is moving along but at many spots, there are no lights and there are trees blocking the road (sometimes making US1 into one lane). 

If you are looking for something to read, check out this opinion by Judge Marcus, which came out just before the storm.  The government finds critical evidence -- a video of the crime -- and discloses it on the morning of trial.  The defense moves for a continuance.  The government does not object.  The district judge decides to go forward with the case.  Conviction affirmed because the court says that the defense cannot show prejudice.  To me, this is simply wrong:

 After closely reviewing the entire record, we cannot say that the trial court abused its discretion in denying Jeri’s motion for a new trial. Although we think it would have been wiser to allow Jeri time to view the video before starting the trial, the tape was not exculpatory and Jeri has not come close to establishing specific and substantial prejudice from this omission. We can discern no other errors in this record, and, therefore, affirm the judgment of the district court.

What effect will "wiser" have on district courts?

Good luck during the storm

Good luck to all during the storm.  I will try to keep up the blog if possible with updates.  Downtown Miami is a ghost town right now.

One 11th Circuit update -- Trump has nominated  Elizabeth Branch to the 11th Circuit for Judge Hull's seat.  She is currently a Georgia state appellate judge.  She is an Emory law grad and clerked for Judge Owen Forrester (N.D. Ga.).

Irma

The SDFla courthouses will be closed Thursday and Friday. The award banquets on Thursday night and Saturday night have also been cancelled. Stay safe!

All rise!

As you get ready for Irma... here is your moment of Zen: Judge Sotomayor in her Yankees' robe sitting in "Judge's Chambers":

Judge’s Chambers: Supreme Edition. pic.twitter.com/64JJ4kMNfz

— MLB GIFS (MLBGIFs) September 1, 2017

— #NFL 0 For Sale 🏈⚽️ (@NFL_0) September 1, 2017

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.