Stokeling is decided 5-4 for the Government

The Supreme Court affirmed the 11th Circuit in an odd 5-4 lineup in which Chief Justice Roberts (along withe Kagan and Ginsburg) joined Justice Sotomayor in dissent.  Justice Thomas held for the majority: The Armed Career Criminal Act’s elements clause encompasses a robbery offense that, like Florida’s law, requires the criminal to overcome the victim’s resistance.

It used to be mildly surprising when Justice Breyer voted against criminal defendants, but that is the norm now.  He is among the worst justices on criminal justice issues.  In this case, one friend put it this way:  Breyer literally snatched victory from Stokeling's hands, violently.

This case is a pretty good example of how Scalia's death really affected the Court on criminal justice issues.  Scalia wrote the Johnson decision on which Stokeling's argument was based.  He likely would have sided with the defense here, where his replacement sided with the government.

Congrats to Robert Luck (updated with pictures)

This morning Gov. DeSantis will appoint Robert Luck to the Florida Supreme Court.  Luck currently serves on the 3rd DCA and was an AUSA in this District before that.  He will serve with another former AUSA and former 3rd DCA judge, Barbara Lagoa.

Luck is 39 and after graduating from UF law school, clerked for Ed Carnes on the 11th Circuit.

Congrats to Robert Luck!

UPDATE — here are some pictures from the swearing in, where newly appointed Florida Supreme Court Justice Barbara Lagoa swore in Robert Luck:

Congrats to Robert Watson

Former AUSA and Kobre Kim partner Robert Watson will be joining the county bench on Monday. His appointment was one of Gov. Scott's last actions on Monday. Robert is a friend of the blog and we wish him well.  

Barbara Lagoa named to Florida Supreme Court

Really cool news ... former SDFLA AUSA, current 3rd DCA judge, and local Miamian Barbara Lagoa has been named to the Florida Supreme Court.  She’s a really good person and I know her family (including her husband Paul Huck, Jr., her three girls, and her father-in-law Paul Huck, Sr.) is very proud.

More prosecutorial misconduct...

...and yet again, another court finds no consequences.

The numerous instances of prosecutorial misconduct have been well-documented in this district (and around the country). Again and again, there have been no consequences for the prosecutors who have engaged in the misconduct or in the cases in which the misconduct occurred.

Another example is found in this unpublished opinion from the 11th Circuit, United States v. Foster.

In Foster, the district court found that there was insufficient evidence to support the jury’s verdict and granted a post-trial Rule 29 motion because the defendant withdrew from the conspiracy. The 11th Circuit reversed and reinstated the jury’s verdict. In Foster’s second appeal, decided today, the 11th Circuit found quite a bit of prosecutorial misconduct (without naming the prosecutor) in how it cross-examined a defense witness that was central to the withdrawal defense. Nevertheless, the court found that the misconduct was harmless:

On balance, we conclude that the prosecutor’s improper comments did not prejudicially affect Ms. Foster’s substantial right to a withdrawal defense. There is no doubt that Mr. Danzig supported Ms. Foster’s withdrawal defense; he testified that she refused to cooperate with his internal investigation of Hollywood Pavilion when he called her in 2008.

But hold on, the case was close enough that the district judge found that — without a finding of misconduct — that the evidence was insufficient.  So more misconduct and nothing happens.  No consequences for the prosecutor.  And the conviction remains intact.  I understand that people make mistakes and that generally we should give others the benefit of the doubt.  But I wonder how a defense attorney would be treated if he or she did the same thing.  Or better yet, how do judges treat defendants who ask for second chances?  If we want the misconduct to stop, courts need to start taking some action — dismiss cases, exclude evidence, and so on.  Otherwise, it will just keep happening over and over again.

Welcome Back!

It’s been a quiet two weeks in the District, but now it’s back to work. I hope everyone had a happy holiday break.

Let’s start off with the new state prosecutors who have been elected around the country. They haven’t gotten a ton of press but they are making lots of important changes. Here’s a story from St. Louis:

On his second day in office, St. Louis County Prosecutor Wesley Bell fired the veteran assistant prosecutor Kathi Alizadeh, who was primarily responsible for presenting evidence to the grand jury that declined to indict a Ferguson police officer in the 2014 shooting death of Michael Brown.

Bell also issued new policies, such as no longer prosecuting marijuana possession and failure to pay child support cases.

***

The policy changes issued Wednesday included:

• No longer prosecuting marijuana possession cases of fewer than 100 grams. Prosecution of more than 100 grams will be pursued only if evidence suggests the sale or distribution of marijuana. (St. Louis Circuit Attorney Kim Gardner announced in June that possession of fewer than 100 grams would not be prosecuted unless there are aggravating circumstances.)

• Not prosecuting people who fail to pay child support. Current cases will not be dropped, however; they will be on hold. Not seeking to revoke probation solely on the basis of failure to pay child support.

• Not seeking charges against those who fail to pay restitution without a court order establishing someone’s “willful nonpayment” of child support.

• Not requesting cash bail on misdemeanor cases; issuing summonses instead of warrants on class D and E felony cases.

• Not seeking to “overcharge” defendants “to pressure the accused to admit guilt.” Prosecutors are barred from adding more counts to increase the range of punishment or threatening to route cases back to a grand jury if a defendant has exercised his or her pretrial constitutional rights.

• Evaluating a defendant’s “prior conditions of release when there has been a failure to appear on an open case” and not asking for cash bail if there is no evidence someone has tried to elude police or used an alias “in a police encounter.”

• Requiring prosecutors to share “the entire contents” of a criminal case file to the defense except for work product to fulfill Supreme Court rules for disclosing evidence.

• Barring prosecutors from threatening witnesses “in an effort to force them to participate in prosecutions.”

Some really important and positive changes here. Kudos to Bell and the other new District Attorneys around the country implementing change. Here’s to 2019.

Happy New Year from the SDFLA Blog

Best wishes headed into 2019!

It’s been slow going over the break, but the blog will be back in action next week.

Happy new year!

Judge Ungaro rules for BuzzFeed

Details here:

A district court judge ended a two-year battle over the Steele dossier Wednesday, ruling on the side of press freedom and the online news outlet BuzzFeed.

Published in January 2017, the now well-known dossier was a 35-page collection of memos with “unverified, and potentially unverifiable allegations” about President Trump and Russian interference in the 2016 presidential election, according to court filings.

The dossier claimed at one point that Russian Internet entrepreneur Aleksej Gubarev’s companies, Webzilla and XBT Holding, played a role aiding the Russian government’s effort to hack documents from Democratic Party officials.

Gubarev filed a lawsuit in February 2017 alleging his reputation had been damaged by false statements included in the dossier. In addition to BuzzFeed, Gubarev sued its author, former British spy Christopher Steele, who had turned the reports over to researchers working on behalf of Hillary Clinton’s presidential campaign.

On Wednesday, U.S. District Court Judge Ursula Ungaro for the Southern District of Florida held that the dossier dealt with a matter of public concern and reporting the details of an ongoing government investigation was made in the public interest.

“The press acts as the agent of the public, gathering and compiling diffuse information in the public domain. The press also provides the public with the information it needs to exercise oversight of the government and with information concerning the public welfare,” she wrote in the opinion, noting that the “fair report privilege” exists to protect the press in its watchdog efforts.

Roy Black represented BuzzFeed. Here is the order.

In other news, Magistrate Judge Reinhart has this interesting order on pen registers. The intro:

This matter came before the Court on a sealed Application by the Department of Justice,
pursuant to 18 U.S.C. §§ 3122 and 3123, for an order directing a cellular telephone company to
install a pen register and a trap and trace device (collectively "pen-trap devices") on the cellular phone of a person suspected of being involved in violations of the federal money laundering laws ("the Application"). The undersigned rejected the Application because it requested "that the Court order the service provider identified above and any other person or entity whose assistance may facilitate execution of this Order to notify the applicant and the law enforcement agency identified above of any changes relating to the cell phone number, including changes to
subscriber information, and to provide prior notice to the applicant and the law enforcement
agencies identified above before terminating or changing service to the cell phone number." I
write to explain the basis for my finding that the relevant statutes do not authorize the Court to
impose this duty on the cellular telephone company.