Rodney Smith appears before Senate committee today

Judge Rodney Smith had his committee hearing today before the Senate.  According to CNN:

The committee considered the nominations of Allison Jones Rushing to become a US Circuit Judge for the Fourth Circuit, Thomas P. Barber and Wendy Williams Berger to become US District Judges for the Middle District of Florida, Corey Landon Maze to become US District Judge for the Northern District of Alabama, Rodney Smith to become US District Judge for the Southern District of Florida and T. Kent Wetherell II to become US District Judge for the Northern District of Florida.

Our other two nominees, Rudy Ruiz and Roy Altman, came out of committee a few months ago and are waiting for their final vote.

"We do not speak for the people; we speak for the Constitution."

That was Chief Justice Roberts last night at the University of Minnesota.  The Star Tribune has the details:

Roberts' advice to lawyers who submit briefs to the court: Keep it short. When he gets a brief shorter than the 50-page limit, Roberts joked that he'll pause, look to see who the lawyer is and say to himself, "Whoa, I like her." Shorter briefs also tend to be better written and focused.

When lawyers come for oral arguments, he urged dispassion: Don't push back against hypotheticals from the justices. That way, he said, the lawyers and justices can figure out the issues together.

Stein asked Roberts why he put a Bob Dylan quote in an opinion: "Was it just to make the opinion more interesting?"

Roberts said, no, but it was to make a point understandable for those who aren't lawyers. The line: "When you have nothing, you've got nothing to lose." He was explaining that to file a lawsuit against someone, you must have something at stake in the fight.

Stein asked Roberts if he heard from Dylan, but the chief justice said no. Roberts, however, did get into a dispute with the New York Times over his polishing the line from Dylan's singing, "When you ain't got nothing."

The audience, packed with dignitaries including former Vice President Walter F. Mondale and the entire state Supreme Court, was warm to Roberts. During the question-and-answer session from college students, he faced inquiries about how he stayed motivated in law school, what he thought of the Socratic method and "what is race?"

“Brett Kavanaugh would not have been treated fairly had he been a defendant in federal criminal court”

That’s the title of my latest op-ed in The Hill.  Please check it out.  Here’s the introduction:

Throughout the confirmation process of Justice Brett Kavanaugh, the President and the GOP have trumpeted how important it is for our society to value the presumption of innocence. Many criminal defense lawyers smiled as they heard conservatives champion this principle.

The sad truth, however, is that if Kavanaugh had been criminally charged in federal court, he would not have been treated so fairly.

Our criminal justice system is set up crush defendants, even innocent ones.

Here are two of the points:

Brett Kavanaugh would not be entitled to witness statements or to take depositions. The discovery process in federal criminal court is a joke. Remember those witnesses called before the grand jury? The defense is not entitled to see their statements until the witness testifies at trial. And if one of the grand jury witnesses does not testify at trial, then the defense is not entitled to review that statement. So too with other statements taken by law enforcement. They aren’t discoverable until after the direct examination of the witness at trial.

Forget about taking those witnesses’ depositions. Depositions do not exist in federal criminal trials, which may make you wonder how Kavanaugh would know what the witnesses were going to say. He wouldn’t, and he would find out at the same time the jury heard it.

***

On appeal, the court of appeals would be required to accept as true the accuser’s claims. If Kavanaugh proceeded to trial and challenged the sufficiency of the evidence, the court of appeals would be obliged to accept the accuser’s claims in the light most favorable to her.

As for the other issues — like disclosure of favorable information or admission of prior bad acts — the appellate court would only reverse if Kavanaugh could show prejudice: that the trial would have ended in a different result absent the mistake.

These standards make it almost impossible to win an appeal after a guilty verdict.

Great FBA event honoring Judge Alan Gold

The Federal Bar Association put on a lovely event last night honoring Judge Gold.  His remarks, as well as George Knox's, were really touching.  Here are some (bad) pictures from the back of the room as Judge Gold began his speech and as Chief Judge Moore swore in the new board of directors:

Justice Sotomayor pinches Justice Gorsuch during oral argument

For real!  During Brenda Bryn's argument yesterday in Stokeling (concerning what amount of force constitutes a violent felony), the following exchange occurred:

JUSTICE SOTOMAYOR: I'm sorry, we used
the example of a tap on the shoulder not being
sufficient force. So can you answer Justice
Alito's hypothetical?
MS. BRYN: Right.
JUSTICE SOTOMAYOR: Is a pinch, an
ordinary pinch -- let's not talk about an
extraordinary -(
Laughter.)
JUSTICE SOTOMAYOR: -- pulling of the
ears that a parent might sometimes do. Let's
talk about just a pinch.
(Laughter.)
JUSTICE SOTOMAYOR: Is that sufficient
force? If we said a tap on the shoulder
couldn't be, why could a pinch be?
MS. BRYN: I -- I think the -- the
answer is looking at the -- the other side of
the equation from what a substantial degree of
force is. And Your Honor mentioned force
capable of -- of causing pain or injury. And I
think the only way to read that explanation of
violent force is as force that's -- a degree of
force that's reasonably expected to cause pain
or injury.
JUSTICE SOTOMAYOR: You've -MS.
BRYN: I don't think a pinch -JUSTICE
SOTOMAYOR: -- you've said the
reasonable -- and I do understand your point,
which is, from personal experience, if you tap
an injured shoulder, it could cause injury.
It's capable of causing physical pain and
injury.
But we said, in the normal course of
circumstances, a tap on the shoulder would not
-- is not capable of producing injury. So -MS.
BRYN: Nor would a pinch.

Although you can't see it in the transcript, Sotomayor pinched Gorsuch where the laughter line occurs.  Pretty funny.

Justice Kavanaugh also asked his first questions:

JUSTICE KAVANAUGH: But -- but,
counsel -- counsel, in Curtis Johnson, you rely
heavily on the general statements of the Court,
but the application of those general statements
was to something very specific: Battery and a
mere tap on the shoulder. And all Curtis
Johnson seemed to hold was that that was
excluded.
So why don't we follow what Curtis
Johnson seemed to do in applying those general
statements to the specific statute at issue
here and why wouldn't that then encompass the
Florida statute, which requires more than, say,
a tap on the shoulder?
MS. BRYN: Because what the Court did
before applying the standard to the statute -to the Florida battery statute was to
definitively construe the words that -
JUSTICE KAVANAUGH: Well, but it -but it's -MS.
BRYN: -- Congress used in the
elements clause.
Go ahead.
JUSTICE KAVANAUGH: But it -- as you
point out, it's -- it's a bit general, those
statements, that language. And so how do we
understand what the Court meant by that? You
look at how it applied it, and it was to a
battery statute, and it was a case where the
government argued that the mere tap on the
shoulder was okay. And the Court said no,
that's not enough. But all it seemed to carve
out was that kind of statute. At least as I
read page 139 of the Curtis Johnson opinion, it
seemed to very carefully distinguish those two
situations.

Well, there ya go.

If you're looking for a good event and a chance to mingle with the local judges, please come to the Federal Bar Association's function tomorrow night at the Four Seasons at 5:30.  Tickets here.  The FBA is honoring Judge Alan Gold, one of the District's heroes.

It's Armed Career Criminal Act day at the Supreme Court

Two criminal cases about the Armed Career Criminal Act greet new Justice Brett Kavanaugh at the Supreme Court this morning. (Our own Brenda Bryn will be arguing one of the cases.) Last night President Trump and Justice Kennedy had the ceremonial swearing in at the White House. All 8 Justices came to support their new "teammate." All of them looked uncomfortable while Trump spoke, except Justice Thomas who "vigorously" clapped throughout.

Looks like the protestors are out this morning before the argument.

There’s always a Miami connection, even for Justice Kavanaugh’s first SCOTUS argument

Justice Kavanaugh’s first oral argument sitting will be Tuesday. And the first argument is Stokeling v. United States, a case out of the Southern District of Florida. Assistant Federal Defender Brenda Bryn will be arguing for Mr. Stokeling. The issue is:

Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

Rory Little at SCOTUSblog has more:

Questions arising under the Armed Career Criminal Act have plagued the Supreme Court since the statute was enacted in 1984 and amended in 1986. The statute imposes a 15-year mandatory-minimum imprisonment sentence on federal firearms offenders who have three prior “serious” drug or “violent” felony convictions, even if the prior convictions were under state law. But there is a remarkable variety among the 50 states regarding precisely how state criminal statutes are written, and how exactly those statutes are then interpreted by state courts across the nation. On October 9, the court will spend two hours considering three cases (two are consolidated for the second hour) that reveal, once again, the vagaries of the ACCA. It seems likely that the justices will have all three cases (as well as their prior expressions of unhappiness with the ACCA) in mind during the arguments. So the preview in United States v. Stitt and Sims, as well as this one, should be read for a full picture of the justices’ perspectives.

The first case on the October 9 docket is Stokeling v. United States. The question is what state law crimes of “robbery” should count as prior “violent felonies” under the ACCA. Denard Stokeling was convicted of an unarmed robbery in Florida in 1997; then in 2016 he was convicted federally for being a “felon in possession” of a firearm. If Stokeling’s 1997 prior robbery conviction counts as a “violent felony,” then his federal prison sentence in the current case would increase dramatically, from a 10-year maximum to the ACCA’s 15-year minimum.

***

The U.S. Court of Appeals for the 11th Circuit ruled in Stokeling’s case that the Florida state robbery crime does categorically meet the ACCA definition. But the U.S. Court of Appeals for the 9th Circuit recently ruled to the contrary (in United States v. Geozos, in 2017), finding that only “minimal” force is required under Florida law. Because Florida robbers apparently travel all across the country, the ACCA is invoked wherever they may subsequently commit a federal firearms crime. Certiorari was granted to resolve the circuit split.

At this point, lawyers may recall differing cases and hypotheticals from their 1L Criminal Law class: Does snatching a purse or chain or cash constitute “robbery”? Cases and definitions on this question of “how much force?” are split across the country. The answer is necessary in most states to distinguish simple theft from robbery, which can elevate a misdemeanor to a felony as well as make the difference between probation and prison time. Moreover, the ruling will apply to any other states that define “robbery” as Florida does. Thus the question presented in Stokeling is nationally important, and will affect the administration of the ACCA in federal courts around the country.

For his part, Stokeling points to a number of Florida state-court robbery cases that he says involved “only a slight degree of force.” He argues that the 11th Circuit’s view ignored not only the words but also the definitional spirit of Justice Antonin Scalia’s 2010 Curtis Johnson opinion, in which the “violent” in the ACCA’s “violent felony” was emphasized. He points out that in a subsequent decision (United States v. Castleman, in 2014), the court cited Johnson for the proposition that “the word ‘violent’ … standing alone ‘connotes a substantial degree of force.’” He argues that he should prevail on “a straightforward application of Curtis Johnson.”

Friday news and notes

1. Justice Stevens says NO to Kavanaugh. From the Palm Beach Post:

Retired U.S. Supreme Court Justice John Paul Stevens on Thursday said that high court nominee Judge Brett M. Kavanaugh, who Stevens once lauded in one of his books, does not belong on the Supreme Court.

Speaking to a crowd of retirees in Boca Raton, Stevens, 98, said Kavanaugh’s performance during a recent Senate confirmation hearing suggested that he lacks the temperament for the job.

Stevens, a lifelong Republican who is known for falling on the liberal side of several judicial rulings, praised Kavanaugh and one of his rulings on a political contribution case in the 2014 book “Six Amendments: How and Why We Should Change the Constitution.”

“At that time, I thought (Kavanaugh) had the qualifications for the Supreme Court should he be selected,” Stevens said. “I’ve changed my views for reasons that have no relationship to his intellectual ability … I feel his performance in the hearings ultimately changed my mind.”

2. In the WSJ, Kavanaugh says, but I was just emotional at the hearings. I won't be like that as a judge:

I was very emotional last Thursday, more so than I have ever been. I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said. I hope everyone can understand that I was there as a son, husband and dad. I testified with five people foremost in my mind: my mom, my dad, my wife, and most of all my daughters.

Going forward, you can count on me to be the same kind of judge and person I have been for my entire 28-year legal career: hardworking, even-keeled, open-minded, independent and dedicated to the Constitution and the public good. As a judge, I have always treated colleagues and litigants with the utmost respect. I have been known for my courtesy on and off the bench. I have not changed. I will continue to be the same kind of judge I have been for the last 12 years. And I will continue to contribute to our country as a coach, volunteer, and teacher. Every day I will try to be the best husband, dad, and friend I can be. I will remain optimistic, on the sunrise side of the mountain. I will continue to see the day that is coming, not the day that is gone.

I revere the Constitution. I believe that an independent and impartial judiciary is essential to our constitutional republic. If confirmed by the Senate to serve on the Supreme Court, I will keep an open mind in every case and always strive to preserve the Constitution of the United States and the American rule of law.

3. Meantime, the 11th Circuit had 153 pages of en banc-ness yesterday in another Johnson follow up case, called Ovalles. One of our newer judges, Newsom, wrote the majority opinion. (Strangely it doesn't say who joined the opinion). Bill Pryor wrote a concurrence (joined by Ed Carnes, Tjoflat, Newsom, and Branch). Martin wrote a dissent. Jill Pryor wrote a dissent (in which Wilson, Martin, and Jordan joined).

Newsom's opinion explains:

The question before us is whether one of the key provisions of an important federal criminal statute, 18 U.S.C. § 924(c), is unconstitutionally vague. As relevant to our purposes, § 924(c) makes it a federal offense—punishable by a term of imprisonment ranging from five years to life—for any person to use, carry, or possess a firearm in connection with a “crime of violence.” 18 U.S.C. § 924(c)(1)(A). The provision challenged here—§ 924(c)(3)’s “residual clause”—defines the term “crime of violence” to mean a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Id. § 924(c)(3)(B).
***
The obvious (and decisive) question, then: Which is it here—categorical or conduct-based? Because we find ourselves at this fork in the interpretive road—the categorical approach imperiling § 924(c)(3)’s residual clause, a conduct-based reading saving it—we invoke the canon of “constitutional doubt.” Pursuant to that “elementary rule,” the Supreme Court has long held, “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.” Hooper v. California, 155 U.S. 648, 657 (1895). The pivotal issue, therefore, is not whether § 924(c)(3)’s residual clause is necessarily, or even best, read to incorporate a conduct-based interpretation—but simply whether it can “reasonabl[y],” see id., “plausibl[y],” Clark v. Martinez, 543 U.S. 371, 381 (2005), or “fairly possibl[y],” I.N.S. v. St. Cyr, 533 U.S. 289, 300 (2001), be so understood. Joining the Second Circuit, which recently came to the same conclusion, see United States v. Barrett, __ F.3d ___, 2018 WL 4288566 (2d Cir. Sept. 10, 2018), we find that § 924(c)(3)(B) can be read to embody the conduct-based approach—and therefore, under the constitutional-doubt canon, that it must be.
Accordingly, we hold that § 924(c)(3)(B) prescribes a conduct-based approach, pursuant to which the crime-of-violence determination should be made by reference to the actual facts and circumstances underlying a defendant’s offense. To the extent that our earlier decision in United States v. McGuire, 706 F.3d 1333 (11th Cir. 2013), holds otherwise, it is overruled.

Pryor's concurrence starts out this way:

How did we ever reach the point where this Court, sitting en banc, must debate whether a carjacking in which an assailant struck a 13-year-old girl in the mouth with a baseball bat and a cohort fired an AK-47 at her family is a crime of violence? It’s nuts. And Congress needs to act to end this ongoing judicial charade.

Martin:

As United States Circuit Judges, we have been given great power and privilege. And our positions call upon us to decide the fate of many people who have neither. In a nation that incarcerates a larger percentage of its population than almost all others, federal judges devote much time to examining (and reexamining) the sentences imposed on people serving time in our federal and state prisons. The interpretation the majority of this en banc Court gives to the sentencing statute at issue here, which gives no relief for Irma Ovalles, presents the opportunity to review the development of this Circuit’s sentencing jurisprudence in recent years. My review reveals a body of law that has relentlessly limited the ability of the incarcerated to have their sentences reviewed. Decisions of this Court have left only a narrow path to relief for those serving sentences longer than the law now allows. Yet this narrow path is not mandated by decisions of the Supreme Court or by Acts of Congress. Indeed, this Court has withheld relief from prisoners even when precedent counsels otherwise.

This paragraph struck me:

My final observation about the majority’s en banc ruling against Ms. Ovalles is to note that the majority opinion makes much of the fact that the government has asked us to abandon the categorical approach in interpreting § 924(c)(3)(B). See Maj. Op. at 29–30. Judge Jill Pryor’s dissent explains why this consideration should not factor into our analysis of the statute at issue. Jill Pryor Dissent at 144–45. I would add that, when deciding whether Johnson was retroactive, we paid no heed to the government’s concession that it was. See supra at 1–2. If we are going to defer to the government’s view, we should do so whether it advocates for or against relief for the prisoner.

And finally, here's Jill Pryor:

This case—with all its textual analysis, discussion of canons of statutory construction, and parsing of precedent—may come across like a purely academic exercise. In reality, it is anything but. People who are serving sentences of five years to life under § 924(c) will get no relief from this Court even though the Supreme Court held that an identically-worded statute was so vague that its enforcement violated the right to due process under law. For the reasons I explain in more detail below, I respectfully dissent.