BREAKING -- Ariana Fajardo Orshan nominated to be the U.S. Attorney for the SDFLA

Here is the statement from the White House:

If confirmed, Judge Ariana Fajardo Orshan will serve as the United States Attorney for the Southern District of Florida. Judge Ariana Fajardo Orshan is currently a Circuit Court Judge of the Eleventh Judicial Circuit of Florida and an adjunct professor at Florida International University College of Law. She was appointed to the bench in 2012 by Governor Rick Scott. Prior to her appointment, Judge Fajardo Orshan was a partner in a boutique law firm where she specialized in litigation. She began her legal career as an Assistant State Attorney in Miami-Dade County, where she prosecuted a wide variety of crimes specializing in narcotics and organized crime. Judge Fajardo Orshan earned her B.S. from Florida International University and her J.D. from Nova Southeastern University Shepard Broad Law Center. Judge Fajardo Orshan is married to Robert D. Orshan and is the proud mother of a teenage son, Lucas.

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Seems pretty quiet in the District right now.

The Heritage Foundation's Podcast interviews CA11 Judge Kevin Newsom here.

In state court, the 4th DCA orders a new trial in this infamous murder case, showing how harmless error really should be applied.  From the Sun-Sentinel:

An appeals court gave new life to one of Broward’s most notorious murder cases on Wednesday, ordering a new trial for a man serving a life sentence for ordering the mob-style execution of the founder of Miami Subs in 2001.
Anthony “Big Tony” Moscatiello, 79. was convicted in 2015 — the third of three defendants to face justice for the February 2001 murder of Gus Boulis.
Moscatiello had been hired as a security consultant to protect one of the new owners of the SunCruz Casino boat fleet, which Boulis had been forced to sell in late 2000. But secretly, the hire was intended to telegraph to the underworld that Moscatiello’s new boss, Adam Kidan, was protected by the Gambino crime family, according to trial testimony.

 Here's the opinion on harmless error:

Given the substantial issues of credibility of all of the major witnesses in the case, we cannot say that the State has shown beyond a reasonable doubt that the error in admitting Gurino’s statement was harmless. See Shivers v. State, 900 So. 2d 615, 618 (Fla. 1st DCA 2005) (finding the erroneous admission of an affidavit was not harmless error where the State made it a feature of closing argument). We are mindful that there is plenty of evidence of Moscatiello’s guilt. But our supreme court has consistently stated that overwhelming evidence is not the test, particularly where the erroneously admitted evidence becomes a focal point of the trial. See State v. Lee, 531 So. 2d 133 (Fla. 1988). We are constrained by these rulings.
As to the remaining issues raised, we affirm. But, because we cannot conclude that the error in admitting Gurino’s statement regarding Moscatiello is harmless under DiGuilio, we reverse for a new trial.

SDFLA to get 6 new AUSAs...

...but we're still waiting to see who the Big Kahuna is going to be. It's been strangely quiet on that front.

Here's the list of new AUSA positions. There will be 2 new violent crimes prosecutors, 2 new immigration prosecutors, and 2 new civil enforcement prosecutors. Just what we need...

End of Term opinions (UPDATED)

UPDATED -- we have Cake but no Carpenter.

It’s June, and that means the Supreme Court will be issuing the last opinions of the Term.  There are some biggies, including the cell-site data case in Carpenter.  USA Today says it’s been a good Term so far for privacy, but that will all change if the Court rules for the Government in Carpenter.  Here’s the USA Today intro:

Terrence Byrd was arrested in Pennsylvania four years ago with body armor and 49 bricks of heroin in the trunk of a rental car he wasn't authorized to drive.

Ryan Collins was picked up a year earlier in Virginia with a stolen, orange-and-black motorcycle that twice had sped away from police.

Both men contested their arrests all the way to the Supreme Court, which last month ruled overwhelmingly in their favor for the same reason: Their privacy was breached.

In Byrd's case, the justices ruled 9-0 that his absence from the rental policy did not give police the right to search the car. Collins, they reasoned by an 8-1 margin, was protected because police invaded his girlfriend's private property without a warrant.

And in the coming weeks, the justices will decide whether police can track the past locations of suspects' cellphones for weeks or months in order to connect them to crimes under investigation. From the sound of oral arguments last November, the answer appeared to be no.

“They’re no longer disagreeing on whether there’s a right to privacy," says Marc Rotenberg, president of the Electronic Privacy Information Center, which seeks to protect privacy and civil liberties in the information age. "You're finding a high level of agreement on both wings of the court."

11th Circuit vacates unreasonable sentence and pot-soaked legal papers

This is pretty rare, and it's good to see that the 11th Circuit has taken the step of reversing a crazy-high sentence (100+ years) where the district judge said that he would not look at other similarly situated defendants.  From the opinion:

However, our careful consideration has led us to conclude that his sentence is substantively unreasonable. In imposing what amounted to a life sentence without parole, the District Court responded to Mr. Killen’s argument that his sentence was disparate by saying “sentencing disparity is not a recognized basis for a sentence to be imposed.”10 But to the contrary, § 3553(a) lists “the need to avoid unwarranted sentencing disparities” as a factor to be considered. 18 U.S.C. § 3553(a)(6). Indeed this factor requires particular attention in the context of child pornography offenses, in light of the wide range of conduct that can constitute this type of offense, as well as the breadth of sentences authorized under the child pornography guidelines. See United States v. Kapordelis, 569 F.3d 1291, 1317 (11th Cir. 2009) (collecting cases).
The significance of considering sentencing disparity is highlighted by a comparison of the defendant’s conduct in Kapordelis to that of Mr. Killen. In Kapordelis, we affirmed Mr. Kapordelis’s 35-year sentence, which was a variance above his guideline range, where he possessed more than 500 videos and 2,000 images of child pornography, had a 20-year history of drugging and molesting minors, and had traveled abroad to have sex with minor boys. Id. at 1318–19. Mr. Killen possessed a similar number of child pornography images. However, in contrast to Mr. Kaprodelis, Mr. Killen had no hands-on contact with a minor during the less than 2-year period of his criminal conduct, let alone a 20-year history of drugging and molesting them or traveling for the express purpose of having sex with a child. Also, there are potentially mitigating facts in Mr. Killen’s case, not present in the Kapordelis case. For example, despite the fact that Mr. Killen had reached the age of majority at the time of his offense, he was found to be very immature for his age. The Magistrate Judge made this finding after the suppression hearing, and the District Court adopted it. The District Court heard from both Mr. Killen’s parents and a neighbor during sentencing that Mr. Killen was a “special needs” child. The presentence report detailed his horrific childhood in a Romanian orphanage. And yet Mr. Killen’s sentence is four times that of Mr. Kapordelis.
Thus, we conclude that the District Court did not consider “the need to avoid unwarranted sentencing disparities,” 18 U.S.C. § 3553(a)(6), and we are left with the definite and firm conviction that the court committed a clear error of judgment in weighing the § 3553(a) factors. See United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (“A district court abuses its discretion when it [] fails to afford consideration to relevant factors that were due significant weight.”); Pugh, 515 F.3d at 1194 (“[A] sentence may be unreasonable if it is grounded solely on one factor, relies on impermissible factors, or ignores relevant factors.”). We therefore vacate Mr. Killen’s sentence.

The 11th Circuit also sent the case away from Judge Moore and to a different district judge for resentencing. 

In other news, and in an only in Miami story, the feds nabbed a guy soaking "legal" papers in synthetic marijuana and sending them to inmates.  Jay Weaver covers it here:

The duo's primary trick involved creating legal packets with the names of seven legitimate criminal defense attorneys in South Florida and fabricating logos, cover letters and business envelopes to give them the appearance of professionalism. They created an email address, legalguideservices@gmail.com, and a website, www.helterblackerdorchaklawfirm.com, featuring photos of actual attorneys in their offices.
"Once the packets were created, the documents were impregnated [soaked] with the narcotic and mailed to numerous federal inmates throughout the United States," the affidavit says. "Rodriguez often mailed the packages himself, and Mendez accepted payment and laundered those payments through personal business bank accounts."
During the 2017 investigation, FBI agents said they seized 33 packages sent to prison inmates by Rodriguez, most of which tested positive for the drug at the time the affidavit was filed in December by federal prosecutor Cristina Maxwell. At that time, the rest of the packets were still being tested for the narcotic.
Rodriguez also penetrated the Federal Bureau of Prisons' mailing system by creating packets of pot-soaked funeral announcements and obituary notices.
"These mailings consisted of photographs and obituaries of individuals purporting to be related to the inmate receiving the mail," the affidavit says. "The packages appeared to have been mailed from 'Christ Fellowship Church, Miami, Florida.' ''
FBI agents seized two of these packages, which also tested positive for Adb-Fubinaca.
During the investigation, agents said they also collected video and photographic evidence of Rodriguez at South Florida post offices while he was sending packages marked as "legal mail" with the return addresses of four different criminal defense attorneys.

Read more here: http://www.miamiherald.com/news/local/article212257759.html#storylink=cpy

Read more here: http://www.miamiherald.com/news/local/article212257759.html#storylink=cpy

Are Justices Alito and Thomas "activist" judges?

Yesterday, the Supreme Court decided 8-1 (per Justice Sonia Sotomayor) that the automobile exception does not justify police officers intruding onto the curtilage of one's home to conduct a search of a motorcycle. The majority:

This case presents the question whether the automobileexception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parkedtherein. It does not.

***

Given the centrality of the Fourth Amendment interest in the home and its curtilage and the disconnect between that interest and the justifications behind the automobile exception, we decline Virginia’s invitation to extend the automobile exception to permit a warrantless intrusion on a home or its curtilage.

According to 8 of the Justices, this was a pretty straightforward application of existing law.  Justice Thomas concurred, saying just that.  But he also said that the Court should reconsider whether the exclusionary rule applies to the States (a rule that has been in existence since 1961, when the Court decided Mapp v. Ohio) because: "[he is] skeptical of this Court’s authority to impose the exclusionary rule on the States."

Alito, the most anti-defendant anti-4th Amendment Justice on the Court, is the lone dissenter.  He goes so far as to call the 8 Justice majority unreasonable, assinine, and idiots:

An ordinary person of common sense would react to the Court’s decision the way Mr. Bumble famously responded when told about a legal rule that did not comport with thereality of everyday life. If that is the law, he exclaimed, “the law is a ass—a idiot.” C. Dickens, Oliver Twist 277 (1867).
The Fourth Amendment is neither an “ass” nor an “idiot.” Its hallmark is reasonableness, and the Court’s strikingly unreasonable decision is based on a misunderstanding of Fourth Amendment basics.

Back at it

Hope everyone had a nice and relaxing weekend. We’re nearing the end of the Supreme Court Term, with lots of big and interesting decisions left (like Carpenter). In the meantime, check out this NYT article about a study of Republican vs. Democratic judges. The GOP judges are tougher on black defendants but more lenient with women:

Judges appointed by Republican presidents gave longer sentences to black defendants and shorter ones to women than judges appointed by Democrats, according to a new study that analyzed data on more than half a million defendants.

“Republican-appointed judges sentence black defendants to three more months than similar nonblacks and female defendants to two fewer months than similar males compared with Democratic-appointed judges,” the study found, adding, “These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.”

The study was conducted by two professors at Harvard Law School, Alma Cohen and Crystal S. Yang. They examined the sentencing practices of about 1,400 federal trial judges over more than 15 years, relying on information from the Federal Judicial Center, the United States Sentencing Commission and the Transactional Records Access Clearinghouse at Syracuse University.

Douglas A. Berman, an authority on sentencing law at Ohio State University, said the study contained “amazing new empirical research.”

11th Circuit laments inability to address Brady violations; asks for en banc review; UPDATED — 11th also decides important border search issue of cell phones, noting circuit conflict

This entire Judge Rosenbaum opinion (Scott v. U.S.) is worth reading.  The intro goes like this:

Prosecutors are “servant[s] of the law” and should “prosecute with earnestness and vigor.” Berger v. United States, 295 U.S. 78, 88 (1935). But though the prosecutor “may strike hard blows, he is not at liberty to strike foul ones.” Id.

More than fifty years ago, Brady v. Maryland, 373 U.S. 83, 87 (1963), established that a prosecutor’s suppression of material evidence favorable to the accused amounts to a foul blow. An actionable Brady violation—where the government withholds evidence that reasonably probably changes the outcome of a defendant’s trial—deprives the defendant of a fundamentally fair trial. Yet because of the nature of a Brady violation, a defendant, through no fault of his own, may not learn that such a violation even occurred until years after his conviction has become final and he has already filed a motion for post-conviction relief concerning other matters.
Meanwhile, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes limitations on post-conviction relief a prisoner may obtain. This case examines whether under those limitations, a Brady claim can ever be cognizable in a second-in-time post-conviction motion under 28 U.S.C. § 2255 if it does not meet the criteria under the statute’s “gatekeeping” provision, 28 U.S.C. § 2255(h). And that presents a question of first impression in this Circuit.

But that the case involves an issue of first impression does not necessarily mean we are writing on a clean slate. As it turns out, our Circuit has already written all over this slate. Indeed, we decided this issue’s fraternal twin—whether a Brady claim can ever be cognizable in a second-in-time 28 U.S.C. § 2254 petition if it does not meet any of the criteria under 28 U.S.C. § 2244(b)(3)(A)—in Tompkins v. Secretary, Department of Corrections, 557 F.3d 1257 (11th Cir. 2009). Because we cannot distinguish Tompkins’s reasoning from the facts or law at issue here, our Circuit’s prior-precedent rule binds us to apply Tompkins’s rule: a second-in-time collateral motion based on a newly revealed Brady violation is not cognizable if it does not satisfy one of AEDPA’s gatekeeping criteria for second-or-successive motions.
Though we have great respect for our colleagues, we think Tompkins got it wrong: Tompkins’s rule eliminates the sole fair opportunity for these petitioners to obtain relief. In our view, Supreme Court precedent, the nature of the right at stake here (the right to a fundamentally fair trial), and the Suspension Clause of the U.S. Constitution, Art. I, § 9, cl. 2, do not allow this. Instead, they require the conclusion that a second-in-time collateral claim based on a newly revealed actionable Brady violation is not second-or-successive for purposes of AEDPA. Consequently, such a claim is cognizable, regardless of whether it meets AEDPA’s second-or-successive gatekeeping criteria.

Petitioner-Appellant Gino Scott’s Brady claim may or may not be an actionable Brady violation. But we think that the district court in the first instance should have the chance to address that question by determining whether Scott’s Brady claim is, in fact, actionable—a question the district court never had reason to reach. Tompkins’s rule precludes this from happening because it prohibits second- in-time collateral petitions based on all types of Brady claims—actionable and inactionable, alike—simply because they are Brady claims.

Establishing the correct rule and framework for determining whether any particular second-in-time collateral motion based on a Brady claim is cognizable is critically important to maintaining the integrity of our judicial system. No conviction resulting from a fundamentally unfair trial should be permitted to stand.1 And when a petitioner could not have reasonably been expected to discover an actionable Brady violation before filing his first federal collateral- review motion, precluding the filing of a second-in-time petition addressing the newly discovered violation is doubly wrong. It rewards the government for its unfair prosecution and condemns the petitioner for a crime that a jury in a fair trial may well have acquitted him of. This not only corrodes faith in our system of justice, but it undermines justice itself, and it cannot be allowed. So we urge the Court to rehear this case en banc to establish the rule that our Constitution and Supreme Court precedent require.

1. See generally Angela J. Davis, The Legal Profession’s Failure to Discipline Unethical Prosecutors, 36 Hofstra L. Rev. 275, 279-80 (2007) (collecting studies finding alarming rates of Brady violations resulting in criminal convictions).

UPDATE — It’s important decision day at the 11th Circuit. On the other end of the spectrum, Judge William Pryor writes this opinion in U.S. v. Toucet, holding that no reasonable suspicion is required to search a cell phone at the border. Pryor acknowledges that his opinion conflicts with the 4th and 9th Circuits on this issue. Looks like it will be headed up to the Supreme Court as the next big case dealing with cell phones. Meantime, we are still waiting for Carpenter.