Yikes

From the yikes department, here's the introductory paragraph from Chief Judge Carnes in Winn-Dixie v. Dolgencorp:

After we have remanded a case with specific instructions, attorneys rarely attempt to have the district court defy our mandate. And even if they try it, a district court is seldom misled into that kind of error by them. This is one of those rare cases where the attorneys representing one side successfully urged the district court to act contrary to our mandate. Of course, we reverse that part of its judgment.

More:

Needless to say (or maybe not), a district court cannot amend, alter, or refuse to apply an appellate court’s mandate simply because an attorney persuades the court that the decision giving rise to the mandate is wrong, misguided, or unjust. A district court can, of course, wax eloquent about how wrong the appellate court is, but after the waxing wanes the mandate must be followed.

***

There is no imprecision in those instructions, no room for evasive interpretation, in short, there is no legitimate basis for applying what we said only to a subset of the 41 Florida stores. We don’t know what else we could have said other than, perhaps, “and we really mean it.” Well, we really did mean it. And we still do.

The district court did not do what we instructed it to do because it was led astray by the defendants’ attorneys.

Rant: Bond pending appeal

Rant: Bond pending appeal

Everyone knows the dirty little secret in federal criminal cases -- everything is stacked against the criminal defendant.  That's why so many defendants plead.  Even innocent defendants.  It takes a ton of courage to fight the government because the stakes are impossibly high.

One tactic the government uses against criminal defendants is opposing reasonable bail.  In many cases, the government tries to keep defendants behind bars during pretrial litigation.  But lately, judges have been much better about releasing white collar defendants on bond during pretrial litigation.  This trend has not reached appellate bonds though.

If a defendant is convicted at trial, it is nearly impossible to get an appellate bond -- even for white collar defendants who are not a risk of flight or danger to the community.  This is maddening because defendants who end up prevailing in the court of appeals end up serving time unnecessarily.  And it's not because the law is bad... it's just because there is a culture of denying such motions. 

Yesterday, our firm had a sweet appellate win in the 5th Circuit (we were not the trial lawyers) for a 68-year old doctor who was improperly and unjustly convicted of medicare fraud (here's the opinion).  The conservative court of appeals found that the evidence against her was insufficient.  But her motion for bond pending appeal was denied, so the doctor sat in prison for almost 10 months waiting for the appeal to be decided.  Even though that is relatively quick, she will never get those 10 months back.  In a recent 11th Circuit case, the poor client had to spend 3 years in prison before being vindicated in a published order saying that she was actually innocent. Now, that woman is seeking to be compensated for her time in prison.

There is nothing more sacred than our liberty.  If a person has the courage to stand up to the government and fight the charges, and if they are not a danger to the community or a risk of flight, then courts should be willing to say that they have "close" issues on appeal (which is a pretty low standard) and grant them bond pending appeal.  I'm sure that there are a handful of cases over time where someone has fled on an appellate bond, but I have never seen such a case. The harm in denying such a bond is irreversible if the defendant wins on appeal.  If she loses, then the government has lost nothing.

I'm happy to debate any prosecutor or judge on this issue.  Let me know and we will set up a back and forth on the blog.

Thank you Florida Supreme Court!

Thank you Florida Supreme Court!

That's what two different 11th Circuit panels said last week. Pruco Life Ins. Co v. Wells Fargo Bank, N.A. and Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co. are per curiam decisions returning to the Eleventh Circuit after the Florida Supreme Court answered the certified questions in each case. In both per curiam decisions, the panel explicitly thanked the Florida Supreme Court.

From Pruco: We thank the Florida Supreme Court for its guidance. In light of its response, we AFFIRM the entry of judgment for U.S. Bank as to the Guild policy, Appeal No. 13-15859, District Court No. 1:12-cv-24441-FAM.

From Altman: Given the benefit of this answer to our certified question, we reverse the grant of summary judgment in favor of C&F, vacate the final judgment, and remand this case to the district court for further proceedings. We thank the Florida Supreme Court for accepting, and answering, the certified question.

Thanks to the tipster for this interesting find.  According to him, this is a pretty rare occurrence, but it happened twice in one week before in our appellate court.

CNN covers Key West sting

UPDATE--And in other news, here's some shameless promotion for my daughter who is performing in a professional show, Ride, tonight (Thursday) at 7:30 (and Saturday at 7:30) at Area Stage on US1 in South Miami (the old Riviera movie theatre). Come check it out!



***

CNN covers the Key West sting to "bring down an ISIS-supporting weightlifter" here. The pepper eating seems weird:

Harlem Suarez grabbed a jalapeno pepper from his plate and took a big bite. The heavily tattooed Cuban-American crepe-maker was eating dinner with two new friends, Shariff and Mohammed, at a Denny's in Key West on a warm June night. Suarez wanted to impress them but they laughed instead, joking in Arabic that he seemed suicidal.
"You've got nothing to prove, man," said Mohammed, as Suarez's eyes welled up with tears from the heat of the pepper.
Suarez did have something to prove. He wanted to convince Mohammed and Shariff that he was a devout jihadist with a grand plan to rain hell on Key West.
Never mind that Suarez had tried and failed repeatedly to make contact with ISIS recruiters abroad, according to court documents. He spent most of his downtime lifting weights at the gym and partying at kitschy bars on Duval Street.

Before long he'd be one of only two Americans sentenced to life in prison by the US government for plotting terror attacks on behalf of ISIS.
***
One Facebook user accepted Suarez's friend request because he saw they had a mutual friend. He was alarmed by the images and rhetoric on Suarez's page, so he notified the Palm Beach County Sheriff's Office and gave screen grabs to the FBI. Within weeks of the initial tip from the Facebook friend, the FBI had a surveillance team following Suarez around the clock. At least 20 agents surveilled Suarez each day and sometimes 10 to 20 extra FBI employees were brought in to help keep tabs on him, according to court testimony. Mohammed, one of Suarez's dining companions at Denny's, was a paid FBI informant who specialized in terror cases. Shariff was an undercover agent posing as an ISIS supporter who knew a bomb-maker. They were both wired for sound and video as they joked about spicy peppers at the chain restaurant that calls itself "America's diner," famed for its big breakfasts and epic menu.
Mohammed said, "Eating those jalapenos is a struggle, it's a jihad."
As the three laughed, Shariff praised Suarez, "He said he didn't know any Arabic (but) he knows 'jihad.' "
Suarez didn't know Arabic. Nor did he recognize the name of ISIS' leader, Abu Bakr al-Baghdadi. Mohammed taught him about al-Baghdadi and introduced him to the terror group's handbook, "How to Survive in the West." Mohammed told Suarez he had camera gear and said they should make a recruiting video. The two wrote the script at Burger King and filmed it in a roach-laden room at a Knights Inn in Florida City.

SDFLA is #1!!

We’re #1! The Southern District of Florida is #1 ...

... in health care fraud. According to a just-released report by the Sentencing Commission, our District had 131 health care fraud defendants in 2016. The next closest district, the Eastern District of Michigan, had 40 defendants.


The Top Five Districts Health Care Fraud Offenders FY 2016
Southern District of Florida (N=131)
Eastern District of Michigan (N=40)
Central District of California (N=27)
District of Puerto Rico (N=23)
Southern District of Texas (N=20)

News & Notes

News & Notes

1. The Supreme Court is still open for business, and it was issuing opinions and cert grants this morning.

2. Is Chief Justice Roberts moving towards the center? This BuzzFeed article suggests that he is.

3. The 11th Circuit tossed this lawsuit by a Dolphins' coach against the NFL and Ted Wells.

4. Justice Ginsburg says #MeToo.

Justice Alex Acosta?

Justice Alex Acosta?

Politico has an interesting article this morning that Labor Secretary Alex Acosta may be in line for a federal judgeship. The questions is whether it would be on the 11th Circuit or the Supreme Court:

Business representatives now see these ambitions as possibly driving Acosta’s risk-averse approach to the DOL, even as several of his executive branch counterparts are moving to aggressively disrupt other agencies. A stalled Senate confirmation process for department leadership posts below Acosta has also contributed to the pace.

Whether the White House actually has Acosta on its radar to fill a potential Supreme Court or appellate vacancy is unclear. But Bloomberg Law interviews with those who know the secretary and a review of his public comments dating back to the 1990s demonstrate Acosta’s undeniable passion for the judicial system. What’s more, he is close friends with Leonard Leo, the Federalist Society vice president credited for orchestrating the selections of the last three Republican-appointed Supreme Court justices.

Acosta is “certainly somebody who has a lot of credentials that you would look for in appointing judges,” Ronald Cass, a past chair of two Federalist Society practice groups and former member of the American Bar Association committee that screens judicial appointments, told Bloomberg Law. “He’s got a broad academic background, a broad legal background, he’s somebody who is clearly bright and thoughtful.”

Acosta would make an excellent Judge. I hope this story has legs.

News & Notes

News & Notes

1. Marc Caputo is saying that its Judge Ariana Fajardo's job to lose for U.S. Attorney in the Southern District of Florida:

A Miami family-law judge has taken a major step closer to being the next U.S. Attorney in South Florida now that her leading rival for the post has taken a job with a top Florida lobbying firm with close ties to President Donald Trump.

The behind-the-scenes contest for the job as top prosecutor in the district that encompasses Trump’s so-called “Winter White House” of Mar-a-Lago has raged for about a year and appeared to come down to Miami-Dade Judge Ariana Fajardo Orshan and former state Rep. José Félix Díaz, a former contestant on Trump’s show, “The Apprentice.”
***
Fajardo, backed by both Sen. Marco Rubio and Gov. Rick Scott, was considered for the post after the Trump administration, Rubio and the Justice Department deadlocked on other choices for the post. Soon after her name surfaced, insiders considered her the front-runner for the job.

“With Díaz out, it unclogs the drain,” said one source familiar with the White House’s decision-making over the U.S. attorney post.

Said another: “As long as Judge Fajardo passes her background checks, she should be the next U.S. attorney in South Florida.”

2. Mickey Munday was convicted today. And immediately remanded. No more Cocaine Cowboy interviews... (prior coverage here).