"Open the Federal Courthouses"

That's the title of my op-ed, which was just published in Law360. 

Please click the link above to read the whole thing.  Here's the intro:

In the era of instantaneous 24-hour news, two of the most important and newsworthy events of the year just occurred: The president’s former campaign manager went to trial, and on the same day that the jury split its verdict, the president’s former personal lawyer pleaded guilty to federal crimes and implicated the president in the process. Shockingly, the public did not see any of it.

We were not able to see the government’s main cooperating witness, Rick Gates, and judge for ourselves whether he was telling the truth or lying. We were not able to see the lawyers debate about important legal issues related to the special counsel’s office. We were not able to see Michael Cohen’s expression as he told the judge that he broke the law at the instruction of the president of the United States.

Forget about cameras, reporters in the Paul Manafort trial were not even permitted in the courtroom with their phones, tablets or computers. That meant no live reporting on Twitter and no emails to the newsrooms with updates. In a world focused on information and news as it happens, this is unacceptable.

If this trial or the plea hearing took place in any state court in the country, or if related hearings were held by Congress, the public would have the benefit of watching what was happening, either live or on their DVRs or on the nightly news. They would be able to follow instant reports on social media. In other words, the public would have access to the courtrooms, as guaranteed by the Constitution. And there could be no allegation that the reporting was “fake.”

If there was a vote on whether cameras should be allowed in our federal courthouses, it would pass — overwhelmingly. In fact, the only group of people who seem to be against cameras in the courtroom are federal judges.

"It's called flipping and it almost ought to be illegal."

That was the President of the United States this morning, according to this CNN article:

Trump's latest attempt came in a friendly taped interview with Fox News, which was conducted on Wednesday but aired a day later. Trump sought to put distance between himself and his former lawyer Michael Cohen, who admitted to campaign finance crimes in federal court on Tuesday and implicated the President by saying he'd directed the action.

And he sharply decried those who testify against former confidants to ease legal troubles, bemoaning the longstanding practice.

"It's called flipping and it almost ought to be illegal," Trump said in the interview, adding he's witnessed similar scenarios over his decades in public life. "I know all about flipping, 30, 40 years I have been watching flippers. Everything is wonderful and then they get 10 years in jail and they flip on whoever the next highest one is or as high as you can go."

Suspects cooperating with prosecutors in exchange for a reduced sentence is a central feature of the criminal justice system, but Trump has long valued loyalty over legal precedent or practice.

Actually, there was a short period of time back in the late 90s where courts found that federal prosecutors' use of 5K and Rule 35 were illegal because it was bribery under 18 U.S.C. Sec. 201.  In other words, it encouraged false false testimony (which is very different than the claim that snitching should be illegal because its disloyal).

The main case was U.S. v. Singleton out of the 10th Circuit. Judge Zloch followed suit in U.S. v. Lowery, 15 F. Supp. 2d 1348 (S.D. Fla. 1998).  From his conclusion:

The Court's finding herein, although lengthy, may be reduced to one simple principle: it is not this Court's Constitutional function to engage in legislation. By invoking the theory that "settled expectations" demand exclusion of the Executive Branch from the reaches of Section 201(c) (2), the Executive Branch requests that this Court usurp the function properly left to the United States Congress. Moreover, the Executive Branch's theory amounts to nothing more than this: it has always been done this way, so it must be right. Such reasoning has never been the proper basis for a legal ruling and this Court refuses to make it the basis for one now.
Further, if, as the Executive Branch asserts, Section 201(c) (2) obviously excludes the Executive Branch, the Court feels compelled to question the need for legislation, hurriedly introduced in the wake of Singleton on July 15, 1998, to amend the Statute. See S. 2314, 105th Cong. (1998). By such action, Congress has reinforced the conclusion that Section 201(c) (2) presently includes the Executive Branch.
Finally, the Court notes that the testimony of cooperating witnesses and cooperating defendants is a valuable resource for law enforcement in the investigation and successful prosecution of criminal activity. Any exclusion, however, of the Executive Branch from Section 201(c) (2) must come from the Legislative Branch, and not the Judicial Branch. A judge's authority has limits and outside those limits or designated areas, the democratic institutions govern. Thus, if any changes are to be made to Section 201(c) (2), or if more appropriate, the substantial assistance provisions, it is solely for Congress, and not for the courts or the Executive Branch, to make them.
Accordingly, after due consideration, it is
ORDERED AND ADJUDGED that the Defendant, Oslet Franklin Lowery, Jr.'s Motion To Suppress (DE 134) be and the same is hereby GRANTED.

Singleton, Lowery, and other cases didn't last long.  They were all reversed.  

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.