Some interesting portions of the Manafort plea agreement

Here is the entire agreement.

Some interesting parts:

1. The Government believes that the sentencing guidelines yield a sentence of 210-262 months, even after acceptance of responsibility. That means that if Manafort had gone to trial and lost, the prosecution would have suggested that the guidelines were higher than 20 years for the 69-year old.

2. The agreement limits the sentence to a maximum of 10 years. If he successfully cooperates, that sentence will be greatly reduced. If he gets 40-50% cooperation credit, he wil be looking at 5-6 years. If he can convince the Virginia judge to give him a similar sentence and those sentences are run concurrent, he would be released in the 4 year range. He would get credit for the time he has been in.

3. The Special Counsel agreed not to bring any other charges. But this does not bind any state prosecutors (should there eventually be a pardon).

4. The guidelines as set forth in the agreement say that the laundered funds were in excess of $25 million, it involved sophisticated means, he led 5 or more criminal participants, and that he obstructed justice. Interestingly, Manafort carved out the ability to argue that he was not the leader of 5 or more criminal participants.

5. Manafort agreed that he would not profit off of this case through books, speeches, and the like. (As an aside, there is a debate in the law about whether this provision is enforceable).

Pushups, dice, and Chinese restaurants on Christmas

This isn't Page 6 material, but for SCOTUS gossip fans, it's fun stuff.

First up is Notorious RBG who gave a speech yesterday.  Lots of reports about how she said the confirmation hearings need to go back to the way they used to be.  But the great line was that she can do more pushups than anyone on the Court other than Gorsuch "who rides his bike to work" or "possibly" the Chief.  Love it.

Next up is SCOTUS nominee Brett Kavanaugh.  After the hearings last week, the Dems submitted lots of written questions.  There was a whole section about gambling as there have been lots of rumors about him playing cards, dice, and sports.  One specific set of questions centered around an email about a dice game.  He answered that he did play dice, but not for money.

Finally, is Justice Kagan, who spoke last night t Hannah Senesh Community Day School in Brooklyn.  Steven Mazie tweeted about it and has some gems, including her eating at a Chinese restaurant on Christmas like other Jews:

Justice Kagan is in dialogue with Dahlia Lithwick at Hannah Senesh Community Day School in Brooklyn tonight. I'll be tweeting.

— Steven Mazie (@stevenmazie) September 12, 2018

Incoming U.S. Attorney Ariana Fajardo Orshan to start Monday

It's official.  House Fajardo takes the throne on Monday. 

If you could have one policy change at the USAO, what would it be?  Please make your request in the comments, and do so respectfully.

Judge Newsom does not like the Establishment Clause jurisprudence in CA11 or SCOTUS

He really doesn’t like it.

Last week, a per curium panel (Newsom, Hull and visiting district judge Royal) of the 11th Circuit addressed an appeal by the City of Pensacola of “a district court decision ordering it to remove a 34-foot Latin cross from a public park on the ground that the City’s maintenance of the cross violates the First Amendment’s Establishment Clause.”  It affirmed “conclud[ing] that [it was] bound by existing Circuit precedent.”

Fine and dandy.

But Judge Newsom didn’t like being so bound.  He concurred and had lots to say.  He’s a great writer, so agree or disagree, you’ll enjoy the read, where he explains that “[t]he Court’s Establishment Clause jurisprudence is, to use a technical legal term of art, a hot mess.”  He urges en banc review: “Given the inconsistency—er, uncertainty—in the Supreme Court’s own Establishment Clause precedent, I would leave it to the en banc Court to chart the next move for this Circuit.”

How about this passage:

So where does all that leave us? As I’ve already confessed, I don’t pretend to know—as I’m sitting here—exactly how the questions surrounding the constitutionality of the Bayview Park cross should be analyzed or resolved. Here, though, is what I do know: 

1. That the Supreme Court’s Establishment Clause jurisprudence is a wreck; 

2. That as a lower court, we are nonetheless obliged to do our best to discern and apply it; 

3.That in the last decade, the Supreme Court has increasingly emphasized the centrality of history and tradition to proper Establishment Clause analysis, culminating in its statement in Greece that “the Establishment Clause must be interpreted ‘by reference to historical practices and understandings.’” 134 S. Ct. at 1819 (quoting Allegheny, 492 U.S. at 670 (Kennedy, J., concurring in judgment in part and dissenting in part)); 

4. That there is a robust history—dating back more than a century, to before the time of the adoption of the Fourteenth Amendment, by which the First Amendment would eventually be applied to state and local governments—of cities, states, and even the federal government erecting and maintaining cross monuments on public land; and
5. That our now-35-year-old decision in Rabun—which invalidated a cross situated in a state park and, in so doing, summarily dismissed “historical acceptance” as a reliable guide for Establishment Clause cases—is irreconcilable with intervening Supreme Court precedent.

Federal Bar Association to honor Judge Alan Gold

I am very pleased to announce that the South Florida Chapter of the Federal Bar Association will be honoring Judge Alan Gold with the "Ned" Award, named after our beloved Edward B. Davis.

The  Annual Awards and Installation Dinner will be held at the Four Seasons Hotel, Brickell, on Thursday, October 11, 2018, at 5:30 pm. You can purchase tickets here.

Judge Davis would have been thrilled that Judge Gold is receiving this award.  Gold is a UF grad and then attended Duke for law school.  He served as a state judge and then President Clinton nominated him in 1997 to fill Jose Gonzalez's seat.  He took senior status in 2011.  Judge Rosenbaum filled his seat.

District updates

While Supreme Court nominee Judge Brett Kavanaugh is proceeding with his confirmation hearing (follow live Scotusblog here), our District is also undergoing some changes:

1. New U.S. Attorney Ariana Fajardo Orshan has been confirmed. She will be taking the reigns shortly.

2. District judge nominees Roy Altman and Rudy Ruiz have not yet been set for final hearings. That may happen sometime in October. The other nominee Rodney Smith has not yet had his initial judiciary committee hearing so it is unclear when he will be confirmed. The other two open slots remain open and there is no pending action on them.

3. The magistrate judge committee will be interviewing 15 candidates for two slots on October 1. The district judges will then vote on the slate at the judges' meeting on October 4.

4. There is one constant in the District, Federal Defender Michael Caruso.

So you wanna be a magistrate judge?

We will have two new magistrate judges in the beginning of 2019.  The magistrate judge committee is set to interview 15 of the applicants.

I don’t have the whole list, but I am hearing that there are some favorites emerging to get the two slots (in alphabetical order):

1.  Jacqueline Arango (Akerman, former AUSA)
2.  Jacqueline Becerra (Greenberg Traurig, former AUSA)
3.  Sowmya Bharathi (AFPD)
4.  Steven Petri (AUSA)
5.  Erica Zaron (County Attorney’s Office)

Good luck to everyone!

How do the Cuban courts work?

Local South Florida prosecutors caught a glimpse during a murder trial.  The whole article is worth a read, but here’s the intro from the Miami Herald:

A witness box occupies the center of the courtroom. Five judges in long black robes listen to testimony. The defendant watches from the front row of the gallery with an armed guard at his side. There is no jury.

This is how justice operates in Cuba’s socialist system. Or at least that is what Florida prosecutors gleaned from a murder trial in Havana that was groundbreaking on several fronts: The star witness was a detective from the Palm Beach Sheriff’s Office; the defendant was a Cuban national accused of shooting a Jupiter Farms doctor in the head before he fled to the island, and a Florida prosecutor helped prepare the Cuban prosecution team for trial.

“It was fascinating. I was impressed how much it resembled our courtroom process,” said Assistant State Attorney Aleathea McRoberts, who was part of the team that made arrangements for the defendant, Marcos Yanes Gutierrez, to be tried in Cuba and watched the trial from the gallery. “There were opening statements, the presentation of evidence and closing arguments.”