So you want to be a magistrate judge?

The Judicial Conference of the United States has authorized the appointment of two full-time United States Magistrate Judges for the Southern District of Florida at Miami.  The term of office is eight years.

A full public notice for the magistrate judge positions is posted on the Courts Internet website at: http://www.flsd.uscourts.gov.   One position initially will be assigned for a period not to exceed three years to supervise the Court's Pro Se Prisoner Division.  

Interested persons may contact the Clerk of the District Court for additional information and application forms.  The application form is also available on the Courts website http://www.flsd.uscourts.gov. Applications must be submitted only by applicants personally to: Flsd_magistratejudgerecruitment@flsd.uscourts.gov by 5:00 p.m. on Wednesday, August 22, 2018.

Why aren't there more written decisions on sentencing?

For as long as I can remember, the culture in this District is for sentencing decisions to be announced and discussed in open court at sentencing. This isn't the case in other Districts, where judges frequently write lengthy orders explaining their decisions.

 Here is a recent example from the District of Colorado where the judge rejected the prosecutor's request for a 15-year sentence for a person who wrote a $300 check intended for a terrorist organization. The judge also rejected the guidelines and sentenced the defendant to time-served (which was a significant amount of time). He had some interesting lines in the Order:

In over forty years of judging I have never imposed a harsher sentence because a defendant asserted his right to trial by jury or to testify at that trial. I am not about to do so now or in the future. I consider any trial “tax” or penalty to be contrary to the ages-long values and standards of our legal system. It is more closely associated with the jurisprudence of Russia, as described by Dostoyevsky, than our own tradition as described by Benjamin Cardozo. In that vein, application of the Obstruction of Justice Enhancement here would be a violation of the concepts of justice and of ordered liberty.

Kudos to Judge Kane for this thoughtful order.  After all, the judiciary is meant to be a check on the executive branch, who never requests a sentence under the guidelines except in cooperation cases.  Section 3553 calls for the guidelines to be just one factor at sentencing. But prosecutors, all these years after Booker, still see that as the only factor. 

Nominations of Judges Ruiz, Altman, and Grant moving forward

Each one had a different vote out of the judiciary committee. Justice Grant (nominated to the 11th Circuit) moved forward with a vote of 11-10 on party lines. Rudy Ruiz (SDFLA) moved forward with a unanimous yes vote. And Roy Altman (SDFLA) had a 17-4 vote to go ahead. From Courthouse News:

Roy Altman, a partner at the Miami firm Podhurst Orseck who is up for a seat on the U.S. District Court for the Southern District of Florida, was the only federal district court nominee to receive any opposition from senators on Thursday.

In questions submitted in writing after his nomination hearing, Altman faced questions about public statements he made and articles he published regarding hot-button political and legal issues from the Fourth Amendment to the Iran nuclear deal.

In one article, Altman argued a cell phone should not be treated differently than a briefcase when a court considers whether a search was appropriate, “simply as a result of the amount of information they are capable of storing.” When Feinstein asked him about the article, Altman said a recent Supreme Court decisions showed him he was wrong.

“After the Supreme court’s decision in Riley [v. California], it is now clear that the amount of information stored by a cellphone is relevant to a determination of how much protection is afforded by the Fourth Amendment,” Altman wrote. “If I were fortunate enough to be confirmed, I would fairly and faithfully apply this precedent.”

Altman cleared the committee 17-4 on Thursday.

The committee also unanimously approved Jude Rodolfo Ruiz, who is nominated to a seat on the U.S. District Court for the Southern District of Florida, and Raul Arias-Marxuach, who is up for a seat on the U.S. District Court for the District of Puerto Rico.

All of the judges the committee approved on Thursday must still be voted on by the full Senate before they are confirmed.

News & Notes.

1. 11th Circuit Judge Robin Rosenbaum, known for her fun writing style, starts an opinion this way:

To say that the 1980 United States Men’s Olympic Hockey Team had the odds stacked against it would be an understatement. With a roster of amateur players whose age averaged 22, the U.S. team had been routed 10-3 by the Soviet team less than two weeks before the Olympics began.1 And that was not surprising since the Soviet team was filled with seasoned professionals, had won the past four Olympic gold medals, and had not even lost an Olympic game since 1968.2 Beating the Soviet team seemed impossible. Yet on February 22, 1980, the U.S. team—led by Coach Herb Brooks—did exactly that, scoring a 4-3 “Miracle” win.3
Our history contains many such stories of triumphs over long odds. This, however, is not one of those.
Plaintiffs-Appellants—a lawyer, his law firm, and associated parties—urge creative arguments to avoid their bank’s compliance with Internal Revenue Service (“IRS”) summonses for their account records. But forget about tough odds the U.S. hockey team faced, Plaintiffs face-off with something even more formidable: the Supreme Court’s holdings long ago in United States v. Miller, 425 U.S. 435 (1976), and United States v. Powell, 379 U.S. 48 (1964). Those cases completely foreclose Plaintiffs’ arguments. For this reason, neither Plaintiffs nor their law-firm clients whose interests Plaintiffs attempt to invoke have a viable Fourth Amendment objection to the IRS’s collection of Plaintiffs’ bank records from Plaintiffs’ bank. We therefore affirm the district court’s order denying the quashing of the IRS’s summonses.

2. Trump is getting appellate judges confirmed at an incredibly fast clip. From the Hill:

Senate Republicans broke a record on Wednesday for the number of appeals court judges confirmed during a president's first two years.

Senators voted 50-49 on Andrew Oldham's nomination to be a judge on the 5th Circuit, making him Trump's 23rd circuit court judge confirmed since he took office last year.

That breaks the previous record set by President George H.W. Bush, who got 22 appeals court judges confirmed during his administration's first two years.

These are young, smart, and conservative judges who will make a real change in our judiciary.

An only in Miami story covered by an only in Miami reporter

Dave Ovalle has the only-in-Miami story about men being promised anonymous sex with a bored housewife only to end up appearing on a porn site for cross-dressing men.  The Feds have arrested Bryan Deneumostier, 32, also known by the screen name “susanleon33326," on charges that he surreptitiously produced pornographic audio and video recordings of himself engaging in sexual activity with multiple men and then caused the videos to be posted on one or more subscription-based pornography websites without their knowledge or consent.

I'll let Ovalle tell you the story:

The men thought they were going to a South Miami-Dade house for a casual and clandestine tryst with a bored housewife.

Once there, the men agreed to be blindfolded, and for sex acts to be performed on them. What the victims did not know, federal agents say, is that the supposed housewife was a cross-dressing man named Bryan Deneumostier — and he was uploading the videos to a porn website and charging users to view them.

Federal agents late Tuesday arrested Deneumostier, 33, of Homestead and charged him with five charges related to the operation of “StraightBoyz,” which promised gay men videos of real straight men being conned into accepting sex acts, all while blindfolded or wearing blacked-out goggles.

Investigators believe Deneumostier ran the site for at least four years. It featured at least 600 videos. Although the website is no longer in operation, many of the videos are still viewable on other adult websites. Agents are still trying to figure out how many of the people depicted on the site may be victims, never knowing their rendezvous were being recorded and uploaded to the web.

From the USAO press release:

The indictment, which was unsealed July 18, references three victims whose identities are being withheld to protect their privacy. Without two of the referenced victims’ knowledge or consent, Deneumostier allegedly recorded his sexual encounters with them, and then caused these videos to be posted on one or more websites. These two allegedly nonconsensual recordings form the basis of the surreptitious-recording charges. The indictment further alleges that Deneumostier was a producer of pornography, used performers portrayed in a visual depiction of sexually explicit conduct, and did not ascertain the performers’ identification or age, as required by federal law.

Sasha Baron Cohen is back

The new show is Who is America?

It reminded me of Ali G talking to Judge Pickles about the 5th Amendment and also to Dick Thornburgh.








If you came here looking for some real law, here's a 6th Circuit opinion, affirming a conviction where the prosecution used a selfie of a defendant with a gun (via Courthouse News):

The Sixth Circuit ruled Tuesday that a Tennessee man is not entitled to a new trial for being a felon in possession of a firearm because Facebook photos apparently showing him with guns were properly admitted into evidence.
In a 40-page ruling penned by U.S. Circuit Judge Karen Nelson Moore, the Cincinnati-based appeals court rejected Malik Farrad’s challenge to his conviction and 15-year sentence as an armed career criminal.
Tuesday’s ruling upheld a federal jury’s verdict finding him guilty of being a felon in possession of a Springfield Model XD .25 caliber semiautomatic pistol based on Facebook photo evidence and expert analysis.
According to court records, Farrad was released from prison in January 2013 for a previous felony and within months, local law enforcement was notified by confidential informants and concerned citizens that Farrad possessed one or more firearms while living in Johnson City, Tennessee.
A Johnson City police officer used an undercover account to send a friend request to a Facebook account purportedly created by Farrad, where he came across a photo uploaded by the account in October 2013 that showed what appeared to be three handguns “sitting on a closed toilet lid in a bathroom.”
The officer used the photo to get a search warrant of Facebook records associated with the account. The search revealed other photos that showed “a person who looks like Farrad holding what appears to be a gun” and others depicting “a closer-up version of a hand holding what appears to be a gun,” according to the Sixth Circuit’s ruling.
“While none of the photos shows a calendar, date, or one-of-a-kind distinguishing feature, the person in the photos has relatively distinctive tattoos, and some of the photos show, as backdrop, the décor of the room in which they were taken,” the opinion states.

Summer

It's pretty quiet in the District right now.  Anyone interested in guest-blogging?  If so, email me directly.

In the meantime, here's a crazy story about a judge ordering a newspaper to delete the publication of a plea agreement:

A federal judge ordered The Los Angeles Times to remove information from a published article on Saturday, a step that legal experts said was extremely unusual and conflicted with the First Amendment. The newspaper said it was appealing the order.

The article, published Saturday morning, described a plea agreement between prosecutors and a police narcotics detective in Glendale, Calif., who was accused of colluding with a Mexican crime syndicate.

The detective, John Saro Balian, 45, pleaded guilty on Thursday to federal charges that he had accepted a bribe, obstructed justice and lied to federal investigators about his involvement with organized crime. Judge John F. Walter of United States District Court for the Central District of California ordered the plea agreement sealed, but a reporter found it posted online on Friday in a public database of federal court documents.

Before the article was published, a lawyer for Mr. Balian told editors at the newspaper that doing so would put his family at risk. The newspaper decided to publish, and a few hours later, it received the court’s order. By 5 p.m. Saturday, it had complied by removing any references from the sealed document, although the article still made clear there had been a plea agreement with federal prosecutors.

The order will get reversed and the paper will be permitted to publish the papers.  But it does say something that a judge really thought he could do such a thing. 

News & Notes

1.  Sen. Flake is going to drop his judicial holds.  This means that Judge Britt Grant will move forward with her nomination to the 11th Circuit.  Expect that to happen quickly.

2.  NACDL has released a fascinating report about the trial penalty and recommendations on how to breath life back into the 6th Amendment.  From the intro:

The ‘trial penalty’ refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial.  To avoid the penalty, accused persons must surrender many other fundamental rights which are essential to a fair justice system
This report is the product of more than two years of careful research and deliberation. In it, NACDL examines sentencing and other data underlying the fact that, after a 50 year decline, fewer than 3% of federal criminal cases result in a trial. With more than 97% of criminal cases being resolved by plea in a constitutional system predicated upon the Sixth Amendment right to a trial, the fact of imbalance and injustice in the system is self-evident.  The report identifies and exposes the underlying causes of the decline of the federal criminal trial and puts forth meaningful, achievable principles and recommendations to address this crisis. With its release, NACDL intends to launch a sustained effort to rein in the abuse of the trial penalty throughout federal and state criminal justice systems.  The Trial Penalty report, and the principles and recommendations it puts forward, seeks to save the right to a trial from extinction.

Really, we need trial judges to step up and not crush people for going to trial.  It's just not right.  Judges publicly complain that there aren't enough trials.  But if they wouldn't punish people for exercising their trial rights, you'd see a big uptick in people challenging the government.