11th Circuit judges speak their minds on Roe v. Wade (and it wasn't Judge Bill Pryor!)

The case is West Alabama Women's Center v. Williamson.

Chief Judge Carnes starts off his opinion this way:  "Some Supreme Court Justices have been of the view that there is constitutional law and then there is the aberration of constitutional law relating to abortion.* If so, what we must apply here is the aberration." (Footnote omitted).

If there is any question as to how he feels about abortion, you can see it here in the first paragraph of the intro section: "This case involves a method of abortion that is clinically referred to as Dilation and Evacuation (D & E). Or dismemberment abortion, as the State less clinically calls it. That name is more accurate because the method involves tearing apart and extracting piece-by-piece from the uterus what was until then a living unborn child. This is usually done during the 15 to 18 week stage of development, at which time the unborn child’s heart is already beating."

Judge Dubina concurs just to make sure that everyone knows that he personally disagrees with Casey and Roe too: 

I concur fully in Chief Judge Carnes’s opinion because it correctly characterizes the record in this case, and it correctly analyzes the law. I write separately to agree on record with Justice Thomas’s concurring opinion in Gonzales v. Carhart, 550 U.S. 124, 168-69, 127 S. Ct. 1610, 1639-40 (2007) (Thomas, J., concurring), with whom then Justice Scalia also joined. Specifically, Justice Thomas wrote, “I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey [Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992)] and Roe v. Wade, 410 U. S. 113, 93 S. Ct. 705 (1973), has no basis in the Constitution.” Id. at 169, 127 S. Ct. at 1639. The problem I have, as noted in the Chief Judge’s opinion, is that I am not on the Supreme Court, and as a federal appellate judge, I am bound by my oath to follow all of the Supreme Court’s precedents, whether I agree with them or not.

OK, Judge Dubina. You're on record now.

In other 11th Circuit news, the court addressed the Georgia state court bail system where an man was arrested and was too poor to post bail.  Therefore he was held for 6 days even though the misdemeanor he was arrested for could not be punished by a jail sentence.  Judge O'Scannlain (visiting from the 9th Circuit) along with Julie Carnes said as long as bail is addressed within 48 hours, all is OK.  Judge Martin started her persuasive dissent like this:

Maurice Walker was jailed by the City of Calhoun for six days because he was too poor to pay his bail. He challenges the City’s practice of jailing people before trial when they are too poor to make bond, arguing it violates the constitutional guarantees of due process and equal protection. The Majority rejects this claim, characterizing the pretrial jailing as “merely wait[ing] some appropriate amount of time to receive the same benefit as the more affluent.” Maj. Op. at 27. In this way, the Majority renders it unnecessary to review the City’s practice with heightened scrutiny. I believe the Majority rewrites this court’s binding precedent in Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) (en banc),2 which held that “[t]he incarceration of those who cannot [pay for pretrial release], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.” Id. at 1057. The Majority fails to recognize this infringement on the rights of indigents, so I dissent.

What does the Cohen plea agreement say? (Corrected)

Here is the Michael Cohen plea agreement to all 8 counts of the information.

The maximum sentence to these 8 counts is 65 years.

The government calculates the guidelines at level 24 (51-63 months) and the defense calculates a level 23 (46-57 months). The dispute is over grouping. I would love to hear the pundits (especially the ones who have never practiced in federal court) trying to explain the grouping guidelines. Most federal probation officers and judges can't figure out the grouping rules.

The guidelines were calculated as follows:

Base offense level 7
+16 for more than 1.5 million and less than 3.5 million under the fraud guidelines
+2 for sophisticated means (for use of the shell companies)
+2 for special skill (lawyer)
-3 for acceptance of responsibility
total: 24
(the defense believes it's 23 based on a complicated grouping argument)

CORRECTION.  I initially posted that the parties agreed that no variance arguments could be made, but this was incorrect.  The bottom of page 4 says that no *departure* arguments could be made, but the top of page 5 allows for variance arguments.  That means that Cohen is free to argue for a below-guidelines sentence based on personal characteristics, sentencing disparity, and just about anything he wants.  The prosecutor is free to argue for an above guideline sentence based on the seriousness of the crime, impact on the community and so on.  But an above guideline sentence is unlikely.

Although it's not specifically mentioned in the plea agreement, it is obvious that Cohen is cooperating. He said as much during his colloquy today and his lawyer, Lanny Davis, has been all over the news saying the same thing.

If he gets cooperation credit, the defense will be asking for a significant reduction below the guidelines -- probably all the way to probation.  It is too difficult to speculate what the prosecution would ask for at this time, although the SDNY is known for giving large cooperation reductions. The judge will be permitted to do whatever he wants, from 0 to 65 years in prison.  But he will likely start with the guidelines and then go lower depending on how much Cohen cooperates and based on the variance arguments he makes.

The plea agreement was not signed by the U.S. Attorney for the SDNY as he is recused. So Robert Khuzami was on the signature block as Acting U.S. Attorney. Guy Petrillo signed for the defense.

Tough day for the White House, to say the least.

Manafort guilty of 8 counts in trial #1. He still has trial #2 in DC.

Waiting is the hardest part

Trial lawyers know that the worst part of the case is waiting for the jury to return a verdict. You can’t do other work. You just sit around stressed to the max, filled with both hope and anxiety. And the longer the jury is out, the more that anxiety builds.

It’s funny listening to the talking heads explaining what short deliberations mean and what the lengthy Manafort jury deliberations mean. No one knows, obviously. They just finished day 3 without a verdict. It may mean that they are going slowly through the evidence. It may mean that they are fighting. It may mean that they want another lunch. It may mean that there is one holdout. Or more. Or an even split.

I’ve had juries out 9 days and juries out 15 minutes and everything in between. It’s just impossible to know what they are thinking.

Good story about my 9 day jury — It was a trial in Savannah, GA with 10 defendants. My middle daughter was born on a Friday and we started the 6 week trial on the following Monday. When the trial was over, I was looking forward to getting home and spending time with my new baby. But the jury wouldn’t reach a verdict. Day after day. Finally on day 9, my wife decided to travel up to Savannah so that I could see the baby. You know what happened 5 minutes after she boarded the flight and turned off her phone... Of course... VERDICT. Happily for me and my client, it was a not guilty. That was a fun celebration...

“If you don’t have the right equipment for the job, you just have to make it yourself.”

What does that MacGyver quote have to do with the FTCA? CA11 Judge Rosenbaum, known for her awesome intros, is here to tell you:

The fictional Angus MacGyver’s defining talent is his ability to cobble together a solution when the precise tools he needs to solve a problem are not available.1 As “Mac” has explained, “If you don’t have the right equipment for the job, you just have to make it yourself.” MacGyver: Out in the Cold (ABC television broadcast Feb. 16, 1987). So synonymous with improvising has the name “MacGyver” become that the Oxford Dictionaries added the name to their collection as a verb meaning to “[m]ake or repair (an object) in an improvised or inventive way, making use of whatever items are at hand.” https://premium.oxforddictionaries.com/us/definition/american_english/macgyver.

The Federal Tort Claims Act’s (“FTCA”) directive making the federal government liable “in the same manner and to the same extent as a private individual under like circumstances,” 28 U.S.C. § 2674, requires courts to MacGyver a remedy in fashioning tort-damages awards against the United States, where the unique aspects of the federal government make it difficult or impossible to strictly apply a state damages statute to the government. In those situations, courts must approximate the statutory remedy as closely as they can to achieve the ends required by the FTCA.

Here, we review the district court’s efforts in improvising application of Florida’s medical-malpractice-damages statute, section 768.78(2) of the Florida Statutes, to Appellant-Cross-Appellee United States. Following a bench trial, the United States was held liable upon the district court’s finding that a doctor at a federal health facility caused Plaintiffs-Appellees-Cross-Appellants’ son E.R.T., Jr. (“E.R.T.”), to suffer severe and life-altering injuries at the time of his birth. On appeal, the government challenges the district court’s application of section 768.78(2) to the method of payment the district court chose for the government to satisfy the judgment against it. Plaintiffs, meanwhile, cross-appeal the district court’s jerry-rigging of section 768.78(2)’s bond requirement as the court found it pertains to the United States. The district court did an admirable job of MacGyvering a solution in this case, and we affirm much of what it did. Nevertheless, for the reasons that follow, we must reverse discrete portions of the district court’s judgment and remand for further proceedings consistent with this opinion.

1. Angus MacGyver is the lead character in the television series MacGyver, a show that centers on MacGyver’s use of scientific knowledge to solve problems and to extricate himself and his team members from danger. The original version of MacGyver, starring Richard Dean Anderson, ran from 1985 through 1992. MacGyver(original), IMDb, https://www.imdb.com/title/tt0088559/?ref_=nv_sr_2 (last visited Aug. 13, 2018). In 2016, the series was rebooted, this time with Lucas Till playing the name character. MacGyver (reboot), IMDb, https://www.imdb.com/title/tt1399045/?ref_=nv_sr_1 (last visited Aug. 13, 2018).

District updates

1. The incoming U.S. Attorney Ariana Fajardo Orshan will be up for a final vote shortly. She will be confirmed and is expected to be in the office in the next few weeks. She has been well liked everywhere she has gone (the State Attorney’s Office, Circuit Judge, and leader in the Federalist Society), and this should be no different.

2. The two open magistrate positions are still open. Applications are due Wednesday. From the email blast that just went out:

The Judicial Conference of the United States has authorized the appointment of two (2) 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.

11th Circuit updates

A bunch of interesting decisions coming out of CA11:

1. Another Johnson fight, this time in an en banc denial. Judge Martin dissents from the denial and explains the makes-no-sense position o the 11th. Julie Carnes defends that position in a concurrence to the denial. Martin’s conclusion is very powerful:

The Supreme Court recently reminded us of our crucial duty to “exhibit regard for fundamental rights and respect for prisoners as people.” Rosales- Mireles v. United States, 585 U.S. ___, 138 S. Ct. 1897, 1907 (2018) (quotation omitted). This duty encompasses thorough review of sentences we now know are longer than the law permitted, because “[t]o a prisoner, th[e] prospect of additional time behind bars is not some theoretical or mathematical concept[;] . . . [it] has exceptionally severe consequences for the incarcerated individual and for society which bears the direct and indirect costs of incarceration.” Id. (quotations omitted and alterations adopted). When considering claims like Mr. Beeman’s, “what reasonable citizen wouldn’t bear a rightly diminished view of the judicial process and its integrity if courts refused to correct obvious errors of their own devise that threaten to require individuals to linger longer in federal prison than the law demands?” Id. at 1908 (quotation omitted).
Mr. Beeman was sentenced in 2009. With a ten-year maximum sentence, he could be nearing his release date. Instead, he will spend another seven-and-a-half more years behind bars. And not only does this Court sanction his unconstitutional sentence, we will prevent him—and many other prisoners like him—from arguing the full merits of his case in court. Our Court is now daily presented with pleadings from prisoners who are barred from our Court because of the rule created in the Beeman panel opinion. In my view, it is the role of the courts to hear these claims. I therefore register my dissent about this court’s failure to do so.

2. The 11th had to decide what to do with a cell-site case post-Carpenter. Sadly, the court finds that the good faith exception applies and holds that even though there was a 4th Amendment violation (grudgingly), no need to suppress anything (yay):

The Government has maintained throughout this case that it acted in good faith and that the Leon exception therefore applies; neither Sturgis nor Joyner presented any argument or evidence to either the district court or this Court to counter that proposition. They have instead relied on their assertion of a warrant requirement and their hope that Carpenter would come down in their favor,5 but the fact that the Carpenter Court agreed with their Fourth Amendment theory does not affect the applicability of the Leon good faith exception in this case.

3. Finally, the court vacated a plea and sentence where there was no transcript of the plea and the lower court could not adequately reconstruct the record:

Because the reconstructed record does not allow for effective appellate review of Elmore’s change-of-plea hearing, we vacate her convictions and total sentence, and remand her case to the District Court for further proceedings.

Why do some judges like "rocket dockets" and "rocket trials"?

I have yet to find a lawyer who likes them.  And most judges don't act this way.  But the E.D.V.A. is known for having a rocket docket.  And there are a handful of judges here and around the country who have them.  The Atlantic covers the rocket Manafort trial here:

There is no dillydallying in the trial of Paul Manafort.

Jury selection lasted but a few hours. The federal judge presiding over the case has repeatedly reminded the lawyers of his impatience and routinely interrupts their questioning of witnesses to speed them up. The most dramatic part of the trial has quickly come and gone. The whole thing could be over in three weeks, leaving plenty of time before Donald Trump’s former campaign chairman has to stand a second trial on separate charges in September.

High-profile trials of deep-pocketed defendants can often drag on for months. But Special Counsel Robert Mueller’s initial prosecution of Manafort on charges of financial fraud is moving briskly along, and its speedy pace is largely due to the particular federal district court where the case is being tried.

The Eastern District of Virginia is famous in the legal community for being the nation’s original “rocket docket”—a jurisdiction where strict rules and a deeply embedded judicial culture help move cases to trial more rapidly than almost anywhere else. In civil cases, the court has been ranked first for speed year after year, but the reputation extends to criminal prosecutions as well.

Here's a more reasonable judge (in Houston) who now has a standard order granting automatic stays where one of the lawyers is pregnant:

Pregnant litigators already have enough to worry about without trial dates getting in the way of due dates.

So Houston state district Judge Ravi Sandill recently issued a standing order that grants expecting lawyers an automatic continuance of a trial setting in his court for up to 120 days before the birth or adoption of a child.

“We did it for a couple of reasons,” said Sandill, judge of Harris County’s 127th District Court. “For one, it’s the right thing to do. And secondly — I think most judges do this already — but it alleviates anxiety for lawyers.”

Sandill said he came up with the idea after reading about Christen E. Luikart, a pregnant Florida lawyer whose motion for continuance sparked controversy last month after her opposing counsel objected to it — just as the Florida Supreme Court is weighing a proposed rule that would create a presumption that pregnant lawyers should get three-month continuances.

“After reading about that, I thought if we could push this, leading by example is not a bad thing for the practice,’’ Sandill said of his order.

"However, when it comes to whether or not the president should agree to a voluntary interview, the usual rules apply."

That's Jon Sale in his op-ed for The Hill.  Here's the intro to the piece:

For months now, pundits have propagated the myth that special counsel Robert Mueller and his team must interview President Trump to complete their investigation. This misconception is based on the belief that Mueller requires and is entitled to an interview to determine the president’s knowledge and intent. Mueller is not so entitled, and the president should not do it.

Government prosecutors conduct white-collar investigations every day. Usually, prosecutors complete their investigations without the benefit of interviewing the person under investigation.

Like all white-collar investigations, Mueller’s investigation requires an analysis of the president’s knowledge and intent. The allegations involving obstruction and foreign meddling in our election are no exception.

Knowledge and intent determinations are necessary in most white-collar investigations. Typically, prosecutors determine whether they can prove criminal intent based on the facts uncovered in their investigation, including relevant witness testimony and documentary evidence such as emails.

The prevailing view, based on legal opinions from the Justice Department’s Office of Legal Counsel, is that Mueller cannot seek an indictment of the president from the grand jury and, thus, his recourse is to write a report. That report can address the president’s knowledge and intent based on the evidence, without the benefit of a voluntary interview of the president.

While it is “typical” for a prosecutor to conclude an investigation without interviewing the person under investigation, this investigation is anything but typical. However, when it comes to whether or not the president should agree to a voluntary interview, the usual rules apply. The president’s legal team is wise in recommending that he not agree to an interview; all it could do is help Mueller’s team advance an arguable case against the president.