Trump formally renominates 3 SDFLA judges

Good news for nominees Roy Altman, Rudy Ruiz, and Rodney Smith as Trump has renominated them for judgeships here in the Southern District of Florida.  It is unclear how long it will take for them to get their final hearings. 

In other news, thanks to Raychel Lean at the DBR for picking up the TB story here.

FDC Shutdown continues (UPDATED -- FDC BACK UP)

FDC-Miami is still shutdown due to a supposed TB scare.  That means no legal or social visits.  It also means that no defendants are being brought over to court.  At least one trial was cancelled today because of it.  There have been many TB outbreaks at FDC over the years, but that has never stopped visits and court for any lengthy period of time before.  This is definitely a first.

Here's an update from one of the Miami marshals:

This email is intended to provide an update regarding the current PRECAUTIONARY QUARANTINE status within the FDC-Miami facility. As you may be aware, last Thursday evening the USMS was informed by FDC leadership & medical managers of an inmate with a potentially active case of Tuberculosis. Given a number of concerns regarding this notification, to include: the inmate’s transport into S/FL, recent court appearances within the District, potential impact within his actual designated facility (FCI Yazoo – Mississippi), and work there as a facility cook, USMS management (in consultation with FDC medical managers) recommended to the Judiciary a cancelation of the scheduled Miami Division in-custody court matters for last Friday (1/18/2019).

At this time FDC medical managers still have not received the final test results which they are certain will provide a definitive Negative/Positive confirmation in this specific case, and are uncertain as to when they will receive those results (we’re hopeful that they are returned sometime tomorrow afternoon). As a result of the delay in receiving the test results and in an abundance of caution, it is very likely that FDC will need an additional day of inmate quarantine (Tuesday – 1/22/2019) to work through this matter. The USMS is well aware of the disruption(s) this causes all affected parties, however, given the involvement of the Florida Department of Health, CDC, & U.S. Public Health Service, the USMS & FDC (BOP) would be negligent in attempting to move forward without all of the proper clearances and authorizations to do so.

We are in direct contact with the Judiciary/Court, and will continue to provide any/all information received, in hopes of resuming District operations within the Miami Division as quickly as possible. Should you have any questions or concerns, please do not hesitate to contact me at any time. Thank you.

UPDATE -- BOP has determined that the TB is "not infectious" and is reopening.  Normal operations begin tomorrow.  From the Marshals office:

 Chief Cooper will be sending out a notice indicating that we got the “all clear” from FDC about 30 minutes ago.  The TB was determined “not infectious” so we will return to normal operating procedures as of tomorrow morning.

Shutdown at FDC-Miami

While TSA workers are calling in sick, the Bureau of Prison guards are cancelling visits, including attorney visits. They are saying that there “may be” a “recent inmate” who was “possibly” diagnosed with tuberculosis.

You can't really blame them for making up the TB scare.  The shutdown is absurd. 

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.