A look into some of Judge Kavanaugh's criminal justice opinions

There's a lot out there about Judge Kavanaugh's jurisprudence, but not much has been written about his views on criminal justice. Where will he fall on the spectrum of conservative Justices? A rule-for-the-government-Justice, like Alito? A more moderate approach, like Roberts? Or a more criminal defense friendly conservative, like Scalia? Here's a look:

1. Acquitted Conduct. Many people, lawyers and non-lawyers alike, are shocked that sentencing judges are permitted to use acquitted conduct in fashioning a federal sentence. Kavanaugh wrote about the practice here in a thoughtful concurrence (in denying en banc review) shortly after Blakely and Booker. He said that although the law currently permits it, district judges have the discretion NOT to use acquitted conduct and his advice is that they should NOT use it at sentencing.

Here's a portion:

Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial. If you have a right to have a jury find beyond a reasonable doubt the facts that make you guilty, and if you otherwise would receive, for example, a five-year sentence, why don’t you have a right to have a jury find beyond a reasonable doubt the facts that increase that five-year sentence to, say, a 20-year sentence?

2. Jury Instructions. Here, Kavanaugh writes a concurrence in a case that overturns a murder conviction because of faulty jury instructions. He explains that even though the crime is "heinous," the "vote to reverse Williams' murder conviction is not a hard call" because the jury was not instructed properly on mens rea:

In a criminal appeal where a mens rea-related jury instruction issue may have made a difference to the conviction and sentence, it is critically important to ensure that the jury had a correct understanding of the relevant law. See United States v. Burwell, 690 F.3d 500, 527 (D.C. Cir. 2012) (Kavanaugh, J., dissenting). That did not happen in this case, in my view. For that reason, I vote to reverse the murder conviction, and I fully join the majority opinion.

3. Sentencing. Here's a dissent in which Kavanaugh sides with the Government, calling the majoirty opinion "confounding." The majority opinion explains that the district judge did not adequately explain the upward variance. Kavanaugh disagrees: "Seizing on the Guidelines range as if it were talismanic (which it is not post-Booker), the majority opinion concludes that the District Court committed procedural error by failing to adequately explain Matthews’ above-Guidelines sentence. I disagree."


4. Terrorism and the 4th Amendment. Here's where some criminal defense lawyers may get anxious. Kavanaugh approvingly wrote about the NSA's collection of metadata in a concurrence to a denial of en banc review, citing the third party doctrine. (From this case, it looks like Kavanaugh would have sided with the dissenters in Carpenter.)

The Government’s collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment, at least under the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979). That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis.
***
The Government’s program for bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States. See THE 9/11 COMMISSION REPORT (2004). In my view, that critical national security need outweighs the impact on privacy occasioned by this program. The Government’s program does not capture the content of communications, but rather the time and duration of calls, and the numbers called. In short, the Government’s program fits comfortably within the Supreme Court precedents applying the special needs doctrine.
To be sure, sincere and passionate concerns have been raised about the Government’s program. Those policy arguments may be addressed by Congress and the Executive. Those institutions possess authority to scale back or put more checks on this program, as they have done to some extent by enacting the USA Freedom Act.

5. Basketball. The judge coaches his daughters' basketball teams, which is very cool. And he played basketball growing up. Sheldon Gilbert, a great follow on Twitter, covers the only opinion Kavanaugh wrote dealing where he cites basketball here. The defendant in that case stole almost 20,000 pieces of computer equipment, and Kavanaugh reversed the restitution payment, which included an internal investigation:

The statute authorizes restitution for “necessary . . . expenses incurred during participation in the investigation or prosecution of the offense.” We do not read that text to authorize restitution for the costs of an organization’s internal investigation, at least when (as here) the internal investigation was neither required nor requested by the criminal investigators or prosecutors. In our view, an internal investigation that is neither required nor requested by criminal investigators or prosecutors does not entail the organization’s “participation in the investigation or prosecution of the offense.” Id. (emphasis added). Our conclusion is supported by the existence of other restitution statutes – not applicable here – in which Congress provided for restitution in terms that plainly cover the costs of an internal investigation. Our conclusion is further buttressed by the statutory term “necessary”: The costs of an internal investigation cannot be said to be necessary if the investigation was neither required nor requested by criminal investigators or prosecutors.

Here's the (fun) basketball stuff:

We disagree with the Government’s effort to equate the terms “assistance” and “participation.” In common parlance, the two terms are not equivalent. The company that provides electricity to power the sound system at our oral arguments assists the proceedings, but its employees are not ordinarily said to have participated in the oral argument. Engineers who design soldiers’ weapons aid the war effort, but the engineers are not thought to participate in the war; rather, they are said to provide support. Fans at a basketball game might help the home team win the game (and earn the title “sixth man”), but even the fans who wear jerseys and are given the choke sign by the opposing team’s star player do not participate in the game. See http://www.youtube.com/watch?v=UrtVZftjbhk. A health insurance company may pay for a patient’s operation, but the insurer does not participate in the operation at the hospital. The hardy Bostonians who hold cups of water on the side of the road help runners in the marathon, but they do not themselves participate in the race. The officers who provide security at a Taylor Swift show certainly assist, but no one would say that they participate in the performance.

It's worth noting (as a helpful reader pointed out) that Kavanaugh's limited-statutory-language take on the restitution statute was vindicated this Term in Lagos v. United States in a unanimous opinion by Justice Breyer.

***

So after reading these opinions, my take is that Kavanaugh appears to be more in line with Roberts. He won't be a Scalia and he won't be an Alito. But he'll probably be more sympathetic to criminal justice issues than Kennedy was.

Andddddd it’s Kavanaugh

I’m surprised more wasn’t made of the fact (in all the prediction stories) that he’s a former Kennedy clerk. Many did report early on that Trump promised Kennedy that he would appoint another one of his clerks (first was Gorsuch). So Kavanaugh (with Kethledge second) should have been the favorite.

Kavanaugh will get confirmed and he will be very conservative. The one area that he hasn’t written a lot on is criminal justice. Will he be another Alito (just rule for the government every time no matter what) or will he more of a moderate like Roberts. No one expects him to be as good as Scalia was on criminal justice.

Big SCOTUS reveal tonight at 9pm

I'm looking forward to some new, fresh, and smart blood on the Supreme Court.  Justice Kennedy was no friend of 4th, 5th, 6th Amendment rights.  Hopefully that will change.

Here's a quick snapshot of the 4 finalists (Kavanaugh, Kethledge, Hardiman, and Barrett) by the AP.  There are great, more in depth reports at Above the Law and SCOTUSblog.

Meantime, Trump already has reshaped the 11th Circuit.  The AJC has a lengthy piece on this transformation:

President Donald Trump’s plan to quickly reshape the nation’s federal appeals courts has taken hold in Atlanta, with the infusion of two conservative jurists and another one on the way.

Trump’s imprint on the 11th U.S. Circuit Court of Appeals all but guarantees it will remain one of the nation’s more conservative courts for years to come. The 11th Circuit, which presides over Georgia, Alabama and Florida, often takes on some of the most hotly contested issues of the day: abortion, police brutality, gun control, immigration, the death penalty, gay rights, and discrimination and harassment in the workplace. ***
Of the 13 federal appeals courts, the 11th Circuit is the second or third most conservative in the country, said Tobias, the Richmond law professor who tracks judicial nominees. “And now, Trump is replacing conservative judges on the 11th Circuit with even more conservative judges,” he said.

When SCOTUS shortlister Amul Thapar visited CA11

Sixth Circuit judge Amal Thapar visited the 11th Circuit a number of times when he was a district judge in EDKY.  Back in 2016, he wrote a notable opinion in a criminal case, U.S. v. Takhalov.  A quick recap of that case here since Thapar is being considered for the Supreme Court.

In Takhalov, the 11th Circuit reversed criminal convictions in an only in Miami case, known locally as the "B-girls" trial. B-girls are bar girls who were tasked with getting guys drunk and running up their tabs at bars.  The B-girls and bar owners were charged with various counts of fraud and money laundering.

The 11th Circuit, per Thapar, reversed and held that the court should have instructed the jury as follows: that they must acquit if they found that the defendants had tricked the victims into entering a transaction but nevertheless gave the victims exactly what they asked for and charged them exactly what they agreed to pay.

The opinion is such a fun read and includes all sorts of fun references (to the Bible, Star Trek, Whiskey, Holmes and more).  Here's the intro:

The wire-fraud statute, 18 U.S.C. § 1343 does not enact as federal law the Ninth Commandment given to Moses on Sinai.* For § 1343 forbids only schemes to defraud, not schemes to do other wicked things, e.g., schemes to lie, trick, or otherwise deceive. The difference, of course, is that deceiving does not always involve harming another person; defrauding does. That a defendant merely “induce[d] [the victim] to enter into [a] transaction” that he otherwise would have avoided is therefore “insufficient” to show wire fraud. See United States v. Starr, 816 F.2d 94, 98 (2d Cir. 1987).
Here, the defendants feared that the jury might convict them of wire fraud based on “fraudulent inducements” alone. Hence they asked the district court to give the jurors the following instruction: that they must acquit if they found that the defendants had tricked the victims into entering a transaction but nevertheless gave the victims exactly what they asked for and charged them exactly what they agreed to pay. The district court refused to give that instruction, and the jury ultimately convicted the defendants of wire fraud and other crimes, most of which were predicated on the wire-fraud convictions. The question presented in this appeal is whether the district court abused its discretion when it refused to give the requested instruction.

*See Exodus 20:16 (“Thou shalt not bear false witness against thy neighbor.”) (KJV).

Some other good stuff:

• The question before us, however, is not whether the proposed instruction was “logically entailed” by the given instruction, but whether it was “substantially covered”; and those are meaningfully different concepts. After all, the average juror is not Mr. Spock. If he were, then a trial-court judge’s job would be much easier. He could instruct the jury in broad strokes—instructing only as to the bare elements of the crime, perhaps—and be confident that the jury would deduce all of the finer-grained implications that must logically follow. As it stands, however, the vast majority of American juries are composed exclusively of humans. And humans, unlike Vulcans, sometimes need a bit more guidance as to exactly what the court’s instructions logically entail.
• Now imagine another, more common scenario: a young woman asks a rich businessman to buy her a drink at Bob’s Bar. The businessman buys the drink, and afterwards the young woman decides to leave. Did the man get what he bargained for? Yes. He received his drink, and he had the opportunity to buy a young woman a drink. Does it change things if the woman is Bob’s sister and he paid her to recruit customers? No; regardless of Bob’s relationship with the woman, the businessman got exactly what he bargained for. If, on the other hand, Bob promised to pour the man a glass of Pappy Van Winkle** but gave him a slug of Old Crow*** instead, well, that would be fraud. Why? Because the misrepresentation goes to the value of the bargain.  
  
  ** “Pappy’s,” as it is often called, is a particularly rare bourbon varietal: nearly impossible to find, and nearly impossible to afford when one finds it.
  
  ***Although Old Crow has a venerable pedigree—reportedly the go-to drink of Mark Twain, Ulysses S. Grant, Hunter Thompson, and Henry Clay—it is not Kentucky’s most-expensive liquor. Its “deluxe” version, “Old Crow Reserve,” retails for approximately $15 per bottle.
  
  Thus, a “scheme to defraud,” as that phrase is used in the wire-fraud statute, refers only to those schemes in which a defendant lies about the nature of the bargain itself. That lie can take two primary forms: the defendant might lie about the price (e.g., if he promises that a good costs $10 when it in fact costs $20) or he might lie about the characteristics of the good (e.g., if he promises that a gemstone is a diamond when it is in fact a cubic zirconium). In each case, the defendant has lied about the nature of the bargain and thus in both cases the defendant has committed wire fraud. But if a defendant lies about something else—e.g., if he says that he is the long-lost cousin of a prospective buyer—then he has not lied about the nature of the bargain, has not “schemed to defraud,” and cannot be convicted of wire fraud on the basis of that lie alone.
• Similarly, in Hill, the court instructed the jury that the defendant was guilty of credit-application fraud only if he made false statements to the bank knowingly and willfully. The defendant asked the court to instruct the jury that he was not guilty if he believed the statements were true. United States v. Hill, 643 F.3d 807, 852–54 (11th Cir. 2011). Thus, to get from the given instruction to the requested one, the jury needed to infer only one thing: that a person cannot lie “knowingly and willfully” if he speaks what is in his view the truth. That inference, too, hardly requires Holmesian feats of deduction.****
****Sherlock or Oliver Wendell: either Holmes will do here.

Happy 13th Birthday to the Southern District of Florida Blog

This blog's first post was July 2, 2005, and we've been going strong ever since -- thanks to you!  Thank you for stopping by and reading.  When the blog first started, there were only a handful of legal blogs (How Appealing, SCOTUSblog, and Underneath the Robes were the main ones).  Since then, many have come and gone.  This blog has had 3,778,606 page views since then.  Pretty cool.

Still, many blogs have moved over to Twitter, and I am thinking about doing the same thing.  I'm interested in your comments.  Would you rather have the blog as a set place to come see posts, or is Twitter more convenient.

Thanks again for reading.

--David

Shortlisters

Most experts are saying that Trump will interview 3-5 candidates for Kennedy's seat.  And most say that those include Brett Kavanaugh, Raymond Kethledge, Amul Thapur, and Amy Coney Barrett.  All highly qualified candidates.

But what about a Floridian?

Trump's list includes two Floridians: Florida Supreme Court Justice Charles Canady and former chief of the Southern District of Florida, Federico Moreno.  When Judge Moreno's name first surfaced on this last back in November, the blog covered it here.

He would be the first Supreme Court Justice to be a Floridian, Venezuelan, former practicing criminal defense lawyer, former assistant federal defender, and UM law grad.

Another name that is not on any of the lists, but should not be counted out is Secretary of Labor, Alex Acosta.  Acosta is the former U.S. Attorney for the Southern District of Florida.  More on that later.

Appoint a Floridian to the Supreme Court.

Thirteen years ago (July 2, 2005), this blog was born with the following post. In light of Justice Kennedy’s retirement, it seems right to repost it now:

Saturday, July 02, 2005

Appoint a Floridian

What better way to start the Southern District of Florida blog than with a post suggesting that the next Supreme Court Justice come from sunny South Florida. A couple months ago, I wrote an op-ed for the Miami Herald suggesting just that. I reproduce it below. Although the op-ed suggests a Floridian in general, the Southern District should be a fertile place for President Bush to look if he is looking (as the rumors suggest) for bright young Hispanic conservative jurists. It was Justice O'Connor, in fact, who suggested that diversity benefited the institution. Here it is:


Appoint a Floridian
BY DAVID OSCAR MARKUS
http://www.markuslaw.com

The nine justices on the U.S. Supreme Court have served together longer than any other nine justices in recent history.

Nevertheless, President Bush may have the opportunity to appoint up to four justices to the court during his second term. Speculation has been increasing ever since Chief Justice William Rehnquist was diagnosed with thyroid cancer, requiring him to work from home and to participate only on a limited basis. The pundits have also pointed to Justices John Paul Stevens, Sandra Day O'Connor and Ruth Ginsburg as potential retirees.

There has been a great deal of discussion about whom Bush should appoint. But perhaps an equally important question is where this jurist should come from. Florida is the best choice.
No Floridian has ever been appointed to the Supreme Court. True, 18 other states are also unrepresented, but Florida's population is more than three times the size of the next largest of the 18, Wisconsin.

The current court is made up of justices from Arizona (Rehnquist and O'Connor), Illinois (Stevens), New York (Ginsburg), Massachusetts (Stephen Breyer), California (Anthony Kennedy), Georgia (Clarence Thomas), Virginia (Antonin Scalia) and New Hampshire (David Souter). Certainly there is a place for a Floridian. Consider the fact that we have produced some of the major cases to go before the court (Bush vs. Gore) and that we have more than 75,000 lawyers and judges to choose from. Only California (55), New York (31) and Texas (34) have more electoral votes than Florida (27).

In 1978, William J. Daniels attempted to discuss why the 19 states were not represented on the court, saying: ``The 19 states which have not yet had a person appointed to the court have tended to be the least populated of their region.''

O'Connor tried to explain it this way: ''The Supreme Court and other appellate courts benefit by having judges from diverse backgrounds and experiences.'' Unfortunately, ``there are fewer people of rural backgrounds to go around, on the bench or elsewhere.''

With all due respect to Idaho and the Dakotas, Florida seems to have bucked the rural label quite some time ago. And as for diversity, there is no more diverse state than Florida.
Back in 1978, Daniels concluded by saying, ``One can reasonably expect that presidents will continue to be concerned with the geographic factor, and that officials from the as yet unrepresented states will continue to call attention to their status when vacancies occur on the court.''

So here's an issue that all Floridians -- Republican, Democrat or independent -- can support: The next Supreme Court justice should come from our great state.

Judge Branch issues first CA11 opinion (we think).

GUEST POST BY STEPHEN E. LUDOVICI

In other news today, it looks like our newest Eleventh Circuit judge has written her first published opinion. In a very short nine-page opinion in Wilcox v. Corrections Corp. of America, Judge Branch affirmed the trial court’s entry of judgment as a matter of law after a jury trial. Other than the fact that the opinion is her first—and a footnote about spelling the appellant’s name—the opinion’s not particularly interesting. Given it’s short length by Eleventh Circuit standards (only nine pages), you’d think that was an “easy case” for the court’s newest member, but Judge Branch’s experience in the Georgia appellate system might suggest otherwise. However it was for Judge Branch, Ms. Wilcox didn’t fare so well, with the Court holding that because her employer had taken prompt remedial action, no damages were available to her under Title VII. Given that Ms. Wilcox won at the Eleventh Circuit on her first go around, see Wilcox v. Corr. Corp. of Am., 603 F. App’x 862 (11^th Cir. 2015), this must feel a little bitter.

As David covered back in March, Judge Branch is the newest member of the Eleventh Circuit bench, taking Judge Hull’s seat. While Judge Branch has issue a few orders in her new position, as far as we can tell, this is her first published opinion that I personally recall. A quick search seems to confirm this, but please drop a tip to David if you know otherwise.