News & Notes

1.  Interested in an en banc from the 11th on Twombly and the Sherman Act.  Look no further!  Here ya go.

2.  This is the kind of stuff that our former guest blogger Brian Toth likes to write about.  But he's busy making partner at his new gig with Gelber Schachter & Greenberg.

3.  It would be fun to practice in California.  Here's a white collar case that was Rule 29ed yesterday:

A federal judge in San Francisco took the rare step Monday of dismissing a market manipulation case against a Barclays trader before the jury rendered its verdict, a decision that will prevent federal prosecutors from filing an appeal.

The judge, Charles R. Breyer, found that prosecutors had not proved their case against Robert Bogucki after several days of testimony.

Defense lawyers routinely ask a judge to dismiss charges after the prosecution presents its case, but judges usually rule on the request, called a Rule 29 motion, only after the jury reaches a verdict. Doing so permits prosecutors to appeal in the event the judge does dismiss the case.

“It’s over, and there cannot be a retrial,” said Daniel Silver, a partner with Clifford Chance in New York who was previously a federal prosecutor in Brooklyn. “Very unusual result.”

4.  Boston, not so much.  There, a judge let in some pretty salacious testimony in the big Insys trial:

It’s an old marketing adage: Sex sells. So, Insys Therapeutics Inc. turned to a former exotic dancer, who once ran an escort service, to push sales of its highly addictive opioid painkiller.
Insys’s former vice president of sales and marketing Alec Burlakoff told a Boston jury Friday that he hired Sunrise Lee as a regional sales manager after meeting her at a strip club in Florida, even though she had no relevant experience.
“She met the criteria,” Burlakoff testified. “She was a PHD -- Poor. Hungry. Driven.”
Burlakoff, 45, is among the government’s star witnesses against Insys founder John Kapoor, 75, and other executives, including Lee, who are accused of conspiring to bribe doctors with phony speakers’ fees and duping insurers into covering prescriptions for the company’s Subsys opioid painkiller.
After Burlakoff hired Lee, she didn’t disappoint, he said. The jury had heard earlier she used her sex appeal, including performing a lap dance for a doctor, to persuade physicians to prescribe Subsys more often. The drug was approved only for cancer patients with “breakthrough” pain, but the jury has heard doctors prescribed it to people with arthritis, depression and back pain.
***
An anonymous tip claiming Lee had run an escort service and had posted topless photos of herself online, didn’t deter Insys’s executives. Kapoor’s response was “everybody has a right to make a living and put themselves through school,” Burlakoff said. Lee was asked to delete the photos and did so “swift and fast,” he added.
The salacious testimony also brought swift objections from Lee’s lawyer Peter Horstmann. He was on his feet objecting for most of the testimony. In a request for a mistrial Monday, Horstmann complained that Burlakoff wrongly characterized Lee as a “person with a proclivity to engage in morally questionable activity for financial gain.”
‘The highly prejudicial impact of this salacious propensity evidence cannot now be undone,” Horstmann wrote.
U.S. District Judge Allison Burrough instructed jurors that they were not to accept the claim about Lee’s escort service as true, only that the company investigated it.
The information was presented “in as unprejudicial a way as possible,” the judge said.

White Collar bar to descend on New Orleans this week

It's the big ABA White Collar conference in New Orleans, starting on Wednesday this week (right after Mardi Gras). To get you in the mood, here's the case of Huge Ass Beer fighting Giant Ass Beer in New Orleans:

Beer is big on Bourbon Street, and never bigger than now, as Mardi Gras' climactic weekend kicks into high gear.

The distinction between “Huge Ass Beers” and “Giant Ass Beer" may not matter to many thirsty revelers on their way to the bars, but it has sparked a federal lawsuit.

Huge Ass Beers is the trademarked name for a plus-sized pour of draft beer sold at a trio of related Bourbon Street businesses. With the term printed on their plastic cups and containers, on employees' T-shirts, doormats and huge signs brandished by street barkers, Bourbon Street is plastered with Huge Ass Beers marketing.
giantbeer

An image of Giant Ass Beer was included in court filings for a lawsuit alleging trademark infringement from the creator of Huge Ass Beers.

The three outposts for Huge Ass Beers — the Steak Pit, Prohibition and Cornet — are all owned by Nicholas S. Karno #1 Inc., a company run by Billie Karno, the operator and landlord for a number of businesses along Bourbon Street.

On Tuesday, that company filed a lawsuit in federal court against another string of Bourbon Street bars and clubs for marketing a rival extra-large draft beer as Giant Ass Beer.

Those businesses include the bars Beerfest, Voodoo Vibe and Sing Sing and the strip club Stiletto’s, which are all run by Pamela Olano and Guy Olano Jr.

In the suit, the Huge Ass Beers creator alleges trademark infringement and seeks a restraining order barring the sale of Giant Ass Beer, as well as damages.

Return of Judge Jordan...

... to the District Court.

There's been a bunch of Judge Alaberto Jordan (CA11) sightings in the District Court over the past week, filling in for Judge Martinez. We wish Judge Martinez well and hope that he is okay.

We are also hoping that Judge Jordan continues to make appearances in the district court when judges are out for whatever reason. He has been missed as a trial and sentencing judge.

Here's a sentencing that Judge Jordan conducted yesterday:

Alexander Ros Lazo (Ros Lazo), 54, the owner of T.L.C. Health Services of Miami, was sentenced to serve 87 months in prison. Misleady Ibarra, 46, who performed home health therapy services without a license, was sentenced to serve 24 months in prison. The defendants were sentenced by U.S. Circuit Judge Adalberto Jordan sitting in the Southern District of Florida. Judge Jordan also ordered Ros Lazo to pay $8,603,859 in restitution and to forfeit the same amount, and Ibarra to pay restitution in an amount to be determined. Ibarra and Ros Lazo pleaded guilty in December 2018 to one count of conspiracy to commit health care fraud. Both defendants were charged in an indictment returned on June 21, 2018.

“[F]ederal judges are appointed for life, not for eternity.”

Just a friendly reminder from the Supreme Court that federal judges only get the gig for life. The reminder came from this per curiam opinion addressing the following issue:

May a federal court count the vote of a judge who dies before the decision is issued?

The answer, 9-0, was no.

"A small next step for criminal justice reform: Fix good time credit"

That's the title of my piece this week in The Hill.  Please click through and let me know your thoughts.  Here's the intro:

Both sides of the aisle have rightfully come together on criminal justice reform, including passing the First Step Act. The New York Times said this signature legislation addressing unfairness in the criminal justice system involved some of “the most significant changes to the criminal justice system in a generation.” Both sides also agree, however, that a lot still needs to be done to address a system that incarcerates more people than Russia and China.

The current federal system awards good time credit — 15 percent — for all prisoners who behave. That means for every year done in prison, you receive 54 days off in good time credit.

For a long time, the Bureau of Prisons only gave 47 days of credit, but the First Step Act told BOP that 15 percent was really 15 percent and prisoners should get the full 54 days. Even with this directive, BOP has refused to give this credit, saying that there is an error in the statute, and has asked for Congress to reiterate that it really wants the 54 days of credit applied. This is completely absurd, and both parties agree that this should be fixed immediately. In addition to fixing the 54-day issue, there is one additional modest (and hopefully non-controversial) proposal that should be included.

As it stands, federal prisoners only receive good time credit if they are sentenced to more than a year of prison. That means that if you are sentenced to a year and a day, you will receive 15 percent off with good time and serve about 10 months; however, if you receive a sentence of exactly one year in prison, no such good time credit will be applied, and you will serve that year day for day. That means that the prisoner who receives a longer sentence of a year and a day will serve less time than someone who is sentenced to a year or 11 months. It makes no sense.

El Chapo may get a new trial

Vice News drops this bombshell of an interview with a juror who said that the jury followed the media even though they had instructions not to.  This is big news:

For the first time since the trial of Joaquín “El Chapo” Guzmán ended on Feb. 12, a member of the jury has described what it was like be part of the historic case.

In an exclusive interview with VICE News, the juror claimed that at least five fellow jurors violated the judge’s orders by following the case in the media during the trial. The juror also shared details of the deliberations, the extraordinary security precautions that were in place, and the jury’s views on Chapo, his lawyers, the prosecution, and several key witnesses.

The juror requested anonymity “for obvious reasons” and declined to provide a real name, noting that the jurors didn’t even share their identities with one another. They did form friendships, though, and referred to one another by their numbers or used nicknames based on tastes and personalities. The cast included Crash, Pookie, Doc, Mountain Dew, Hennessy, Starbucks, Aruba, TJ, 666, FeFe, and Loco.

“We were saying how we should have our own reality TV show, like ‘The Jurors on MTV’ or something like that,” the juror said.

The juror reached out to VICE News via email a day after the guilty verdict came down, and we spoke for nearly two hours on a video chat the following day. The 12 jurors and six alternates were anonymous under orders from the judge, and cameras were strictly forbidden inside the courtroom. But they sat in open court for all 44 days of the trial, their faces plainly visible to Chapo and anyone from the press or public who chose to attend.

I was a regular at the trial, and I recognized the juror from my time in the courtroom. The juror shared detailed notes taken during the trial, which were kept against the instructions of the court. Information from the jury selection process provided further corroboration about the juror’s role in the case.

***

Part of my coverage of the trial included sharing news, analysis, and observations from the courtroom on Twitter. The juror said they routinely checked my personal Twitter feed and tweets from other journalists. “We would constantly go to your media, your Twitter… I personally and some other jurors that I knew,” the juror said.

The juror reached out to another juror at the request of VICE News but said nobody else wanted to speak on the record. VICE News agreed to withhold personal details at the juror’s request. To further protect the juror’s identity, gender-neutral “they” pronouns are used throughout this story, and VICE News is not disclosing whether the juror was an alternate or one of the 12 people involved in deliberations.

Judge Cogan informed the jurors after the verdict was handed down that they are allowed to speak to the media, though he cautioned them against it. No other jurors have spoken out publicly, and because they are anonymous and not reachable for comment, parts of this juror’s account could not be independently verified.

If multiple jurors were indeed reading about the case in the media, Chapo’s defense team could seek a new trial.

“Obviously we're deeply concerned that the jury may have utterly ignored the judge's daily admonitions against reviewing the unprecedented press in the case,” said defense attorney Jeffrey Lichtman, who also noted concern that jurors may have seen “prejudicial, uncorroborated and inadmissible allegations” about Chapo during the trial. “Above all, Joaquin Guzman deserved a fair trial.”

Judge Moreno terminates Pottinger agreement

That's the famous agreement protecting the homeless in Miami entered over 20 years ago, named after the lead plaintiff Michael Pottinger.  Judge Moreno held an evidentiary hearing and wrote this 40-page order saying the agreement was no longer necessary.

Here is the conclusion:

Heroes for the Homeless

Although the Plaintiffs have opposed the termination of this agreement, in a very real sense, they are the victors. Their lawsuit, and the work of their excellent and capable counsel,under the guidance of the Americans Civil Liberties Union and the Florida Justice Institute,engendered a revolution in this community as to the treatment and care of persons experiencing homelessness. Twenty years ago, the undersigned could not have predicted the myriad of services made possible by the efforts of the Homeless Trust and Mr. Ronald L. Book. The Court could not have envisioned the dedication of people, like Dr. Pedro Joe Greer and Dr. Edward Suarez, who have taken medicine to the streets of Miami to help people and gain their trust to improve their care. The lifetime of work by Camillus CEO Hilda Fernandez is commendable as he has worked in a variety of roles to assist the homeless and better their lives in a truly compassionate way. The work of Constance Collins at the Lotus House has also contributed to aiding homeless women and children and helped them find solutions to homelessness. lt goes without saying that this community owes a debt of gratitude to Judge Steve Leifman, who has implemented sustainable programs to help the mentally ill, which will continue to improve their circumstances. Sim ply put, Judge Atkins would be proud of the results.

Accordingly, it is ADJUDGED that the Court terminates the Consent Decree and denies the motion to hold the City of Miami in contempt

The New Times covers it here:

One of the nation's landmark homeless-protection laws is now gone.
Since May 2018, the City of Miami has been trying to invalidate a 1998 legal decision that prevented city cops from arresting homeless people for living their lives outside. The so-called Pottinger Agreement, named for homeless Miamian Michael Pottinger, prevented police from, say, arresting homeless people for sleeping outside or placing their items on the sidewalk.
Even with those protections in place, the American Civil Liberties Union of Florida said Miami cops were blatantly harassing the homeless — including spraying them with power washers and arresting a woman who was in dire need of medical care and likely died due to the detainment. The ACLU also argued the City of Miami was trying to terminate the agreement as a way to sweep homeless residents out of the rapidly gentrifying downtown area.
But U.S. District Judge Federico Moreno today terminated the Pottinger consent decree. The ACLU had filed a competing motion to hold the city in contempt of the Pottinger Agreement, but Moreno threw it out.

Jeff Sloman writes op-ed in support of Alex Acosta

The Herald published it here.

It starts this way:

By now, you have probably formed some views on the Jeffrey Epstein case. You are, like me, repulsed by Epstein’s conduct. You probably also believe, as I do now that more facts have emerged, that Epstein deserved harsher punishment than he ended up getting. No one will argue seriously against these views.

But based on the Miami Herald’s “Perversion of Justice” series and the ensuing news coverage, you may also believe that well-connected lawyers corrupted now-Secretary of Labor and then-U.S. Attorney Alex Acosta and his team into giving Epstein a sweetheart deal. They did not. I would know. I was there.