Election impact on SDFLA

With the Republicans picking up seats in the Senate and Rick Scott flipping Florida to a two-GOP Senate state, it will be that much easier for Trump to push his judiciary picks.  The three pending district court judges should be confirmed shortly.  And it will be interesting to see how quickly those two open seats get nominees.

Florida amended its constitution to allow for restoration of felon voting rights.  Republicans aren't happy about that one and are promising litigation. But that will likely be in state court. 

Two House seats in the SDFLA flipped blue (Shalala and Mucarsel-Powell).  Barzee-Flores couldn't flip the third seat though.

In non-election news, here's a federal judge who allowed jury nullification arguments in a child porn prosecution:

"This is a shocking case. This is a case that calls for jury nullification."
Many have had similar reactions when confronting cases involving authorities running roughshod over people with bad laws, punitive sentences, and ill-considered prosecutions. But this time, the person invoking jury nullification was a federal judge—District Judge Stefan R. Underhill of the District of Connecticut—and he spoke in court about a case over which he presided.
The prosecution that shocked Underhill involves Yehudi Manzano, a 30-something man charged with producing and transporting child pornography after saving, and then deleting, a video of his teenage sex partner to and from his own phone and its associated Google cloud account. "The only people who ever saw it were the guy who made it, the girl who was in it, and the federal agents," Norman Pattis, Manzano's attorney, told me.

But that, prosecutors say in the indictment, was enough for the federal government to proceed with charges under the assumption that Manzano acted "knowing and having reason to know that: such visual depiction would be transported and transmitted using any means and facility of interstate and foreign commerce." And that's important, because the mandatory minimum sentence under federal law for recording video of sex with an underage partner is 15 years.
That draconian sentence—independent of what was in store in the entirely separate state trial for sex with a minor—was too much for Judge Underhill. "I am absolutely stunned that this case, with a 15-year mandatory minimum, has been brought by the government," he said in court. "I am going to be allowed no discretion at sentencing to consider the seriousness of this conduct, and it is extremely unfortunate that the power of the government has been used in this way, to what end I'm not sure."
Judge Underhill acknowledged that he's not allowed to encourage jury nullification, but "if evidence comes in about the length of the sentence, or if Mr. Pattis chooses to argue, I do not feel I can preclude that. I don't feel I'm required to preclude that. And I think justice requires that I permit that."
The judge's appeal to jury nullification as a remedy for runaway prosecution didn't come out of the blue. Defense counsel and prosecutors had already sparred over the case's rather tenuous connection to interstate commerce, by which the federal government claimed jurisdiction.
"Apparently, the mere fact that the recording equipment was manufactured outside Connecticut is sufficient to meet the interstate commerce requirement of the statute," Judge Underhill noted in surprise. They also tussled over the extent to which jurors should be informed of the long years in prison that awaited Manzano upon conviction.
"Juries exist for a reason," Pattis argued in court. "They stand between the government and the accused, and they provide the accused with an opportunity to hold the government to its burden of proof. And in certain trials in our history, juries have done more than that. They've said the law is wrong, and we, the people, say it's wrong."
In response to that, Neeraj N. Patel bluntly told the court on behalf of the U.S. Attorney's office, "you should take steps to prevent jury nullification and not inform the jury of the sentencing consequences."

I'm not sure why the judge did not just Rule 29 the case after the government rested.  There's no appeal and it's a way for the judiciary to check the executive on absurd prosecutions.

El Chapo trial expected to last 4 months

So absurd.

No trial should last that long.

It's not fair to the jurors.

If the prosecutors can't prove that case in 2-3 weeks, then something is wrong.

Here's Reuters with the background:

U.S. prosecutors say that as the head of the Sinaloa Cartel since 2003, Guzman directed the movement of multi-ton shipments of drugs including heroin, cocaine, marijuana and methamphetamine across borders and into the United States. If convicted, Guzman faces life in prison.

According to court filings, prosecution witnesses will include former Sinaloa Cartel members and others involved in the drug trade who are now cooperating with the U.S. government. Prosecutors have so far avoided naming the witnesses, saying that doing so would put them in danger. Some are expected to testify under aliases.

Although the charges in the case all relate to drug trafficking, prosecutors are also expected to introduce evidence that Guzman was involved in multiple murder plots in the course of his career, including in wars with rival cartels.

Guzman’s lawyers have so far given few hints about their planned defense. Eduardo Balarezo, one of the lawyers, said in a court filing that he will seek to prove that Guzman was merely a “lieutenant,” acting at the direction of others.

For a local case in the news, the WSJ covers the Andres Arias extradition appeal here. (Disclosure: I am handling that appeal with Professor Ricardo Bascuas). The title of the piece is: Will the U.S. Extradite an Innocent Man?

If Secretary of State Mike Pompeo doesn’t get involved, an innocent man with young children could end up serving a 17-year sentence in a Colombian prison for a crime he didn’t commit.

Forget that murderers in Colombia don’t get 17 years. Forget too that the Arias criminal case was heard only by a politicized Colombian Supreme Court with no chance for appeal—a violation of international human-rights law.

The crux of this matter rests on whether Washington has an extradition treaty with Bogotá. The countries signed one in 1979 but, as the Colombian Supreme Court has said, Colombia never ratified it.

President Santos refused to extradite multiple suspects wanted by the U.S., citing the lack of a treaty. One was Venezuelan drug kingpin Walid Makled, who Colombia captured in 2011 but sent to Venezuela where his secrets would be kept. Mr. Santos said he had no choice but “to comply with the Constitution and with the laws,” adding “we have an extradition agreement with Venezuela, not with the United States.”

Former Colombian President Álvaro Uribe also has stated, in a sworn affidavit presented in court, that there’s no treaty. Colombia uses domestic law to send suspects to the U.S.

In a motion for a stay of extradition pending appeal filed Tuesday in the 11th Circuit Court of Appeals in Atlanta, Mr. Arias’s lawyers argued the point again. “The legality of the order sought to be stayed depends on whether a Treaty that Colombia insists it never ratified and never observes is in force. The Treaty itself states” in article 21(1) “that it is ‘subject to ratification.’ ”

U.S. v. Bruce Wayne [Harrison]

You thought you knew who Bruce Wayne was.  But you were wrong.

He also goes by: Hopper, Grasshopper, and ...

... of course ...

Loose Bruce.

Don’t tell me that this blog never gave you important information.

(And shame on you clerks for Marcus, Pryor, and Rosenbaum, for not including any Batman references).

Trevor Noah from the Daily Show visits Miami Beach

He’s here all week.  Good stuff.  He explains how the news has followed him here to Miami with the bomb case (clip from YouTube here). Here are some other clips from last night including Miami Beach Mayor Dan Gelber presenting Noah with the key to the city:

Here’s the intro to the show:

SDFLA peeps in the news

1. Cesar Sayoc will make his initial appearance today in magistrate court in the Southern District of Florida. The rumor mill says that Jaime Benjamin has been hired to represent him, at least for the SDFLA proceedings. He will certainly be held no bond and will be transferred to the SDNY for further proceedings.

2. Two (really great) former assistant federal defenders in Miami, now FPDs in San Diego, have been named judges. Linda Lopez has been appointed as a magistrate judge in the Southern District of California. And Shereen Charlick (the acting FPD in San Diego) has been appointed to a San Diego County Superior Court judgeship.

3. Jon Sale has been named to the Practitioners Advisory Group for the Sentencing Commission. He is the only member representing the 11th Circuit and will serve a 3-year term. It is a very prestigious position.

4. AUSA Jonathan Colan and AFPD Andy Adler just battled it out in the en banc 11th Circuit in U.S. v. Johnson on whether a police officer was entitled to seized ammunition and a holster from Johnson's pocked after he felt something during a Terry frisk. Here's the OA.  It was Britt Grant's first en banc argument.  The Court now has 12 active members.

Slow blogging.

Sorry for the very slow blogging lately. I’ve been traveling and under water at work. Please send tips if you have them and I will post. Also, please let me know if you want to guest post about the SDFLA.

Meantime, an arrest has been made in this District (it’s always this District!) in connection with the bombs being sent all over the place. His name is Cesar Sayok. AG Sessions will be having a press conference shortly (2:30 EST) to discuss the developments. He will likely be represented by the Federal Public Defender’s office at his initial appearance. It’s not clear where he will be indicted but rumor is that it won’t be here in South Florida. More to come.

“Almost nobody knows that James Madison wrote the Constitution, they all think it was Thomas Jefferson … and he was in France!”

That was Justice Gorsuch speaking on the public's lack of knowledge about government and the judiciary. SCOTUSblog has more:

The justice noted that even law clerks who come to his office fail to recognize a portrait of Madison hanging above a fireplace.

Gorsuch spoke passionately about the benefits and importance of an independent judiciary. He said, “as difficult as our times sometimes seem, we are very blessed.” He asked rhetorically, “how many places in the world can you go where you can rest assured that you can have an independent judge decide your case?” Gorsuch singled out North Korea for having an expansive bill of rights that promises its citizens a right to free education, free medical and relaxation. He joked that he would enjoy a right to relaxation, but he argued that those North Korean rights are “not worth the parchment they’re written on because you don’t have judges to enforce them.”

Gorsuch then moved on to the second concern he has noticed during his time as a judge. He listed civility, human decency and kindness as “under assault in our society right now, and in our profession.” He criticized civil litigation specifically for its lack of civility and expressed concerns about civility becoming a bad word or passé. He wrapped up his point by stressing to the audience that people they may disagree with “love this country as much as you do.”

Just last week, Chief Justice Roberts said it wasn't the Court's job to educate the public. But perhaps opening up the Court to cameras would help with Justice Gorsuch's concerns and not at all detract from the Court's role.

11th Circuit affirms conviction where portion of trial occurred without the defendant and her lawyer

The case is U.S. v. Lourdes Garcia. It is the follow up to U.S. v. Roy, where the trial proceeded without the defendant present and was affirmed by the en banc 11th Circuit. Both cases involve the same district judge. Here’s how Garcia starts out, by Judge Marcus:

This is a troubling case. There can be no doubt -- and the government does not contest the point -- that constitutional error occurred. It is also clear that the error was plain and obvious. The decision to allow the government to introduce inculpatory evidence while both the defendant and her lawyer were absent for three to ten minutes in a trial that lasted more than 49 hours violated the defendant’s right to counsel, her right to confront the witnesses arrayed against her, and her right to be present at trial under both the Due Process Clause and Fed. R. Crim. P. 43. The only question is whether Garcia’s convictions should be reversed on account of the error.
We hold that Garcia’s convictions must be affirmed because the errors did not affect Garcia’s substantial rights. There can be no question that Garcia failed to preserve the errors at trial even though she had ample opportunity to do so. She was given every chance to object and to secure some remedial relief from the trial court but expressly declined to act. As a consequence, under well-established law we must review the constitutional violations that occurred for plain error, not for harmlessness beyond a reasonable doubt. What’s more, there is good reason in this case to be punctilious in selecting the proper standard of review. The prejudice analysis is by no means clear-cut and the standard by which we measure it could well make all the difference.

Even though the defendant didn’t object, this is an absurd result. The problem started in Roy where the en banc court found that this wasn’t a structural issue. Hopefully the Supremes take a look.