Tony Gonzalez named First Assistant at U.S. Attorney's Office

Ariana Fajardo Orshan shook up the office last week, making lots of changes, including naming Tony Gonzalez as her First Assistant. 

Ben Greenberg, who had that role under Willie Ferrer, and then again under Orshan (while serving as Acting U.S. Attorney in between), is moving to Ft. Lauderdale as senior litigation counsel. 

Four years is the right sentence for Manafort

That’s the title for my piece this morning in The Hill. Here’s the intro:

“Too light.”  “Lenient.”  “A slap on the wrist.” “Perverted.” There’s quite a bit of hand-wringing about the 4 year sentence that Judge T.J. Ellis handed down Thursday to Paul Manafort.But Judge Ellis should be commended for doing the right — and hard — thing despite the enormous amount of pressure by the Special Counsel’s Office, the media, and the public to sentence Manafort to 20 years in prison. Judges are meant to be a check on the executive and not just a rubber stamp for oppressive government requests.
Twenty years would have been absurd for a 69-year-old, first time, non-violent offender.  The sentencing guidelines, which came out to 19.5-24.5 years in this case, are deliberately draconian to induce pleas and discourage trials. They are so over-the-top that when a judge issues a fair sentence as Judge Ellis did, it is viewed as too low even though it isn’t. The system is skewed on purpose, to burden the right to trial.
No one will complain when Rick Gates, who pleaded guilty and is cooperating in the same case, is sentenced to far less than 4 years (and very possibly no jail).  And no one will complain when Michael Flynn receives little to no jail.  
Judge Ellis had to balance many competing issues in issuing a fair sentence.  But one factor that thankfully did not come into play was jacking up Manafort’s sentence simply for proceeding to trial.  Those out there calling for 20 years can’t articulate any good reason for giving Manafort such a lengthy sentence while no one else from the Special Counsel’s investigation has received anything even remotely close.  
Four years in prison for a 69-year old unhealthy defendant is not going to be easy by any stretch.  That’s real time.  

U.S. Attorney’s Office recuses from Epstein case

Interesting move.  It’s now assigned to the Atlanta U.S. Attorney’s Office.  The Herald has more:

Just days before a Friday deadline, the Justice Department has reassigned the Jeffrey Epstein victims’ rights case to the U.S. Attorney’s Office in Atlanta, the attorneys representing Epstein’s victims said Tuesday.

Miami federal prosecutors, in a letter to attorneys for the victims on Monday, said they had recused themselves from the case, according to Bradley Edwards and Jack Scarola, representing Epstein’s victims.

The reassignment means that the U.S. attorney for the Northern District of Georgia, Byung J. “BJay” Pak, will oversee the case for the government. Pak, a former Georgia lawmaker, was appointed Atlanta’s chief federal prosecutor by President Donald Trump in October 2017.

The Justice Department is still under a Friday deadline for prosecutors to confer with the victims’ attorneys in an effort to settle the case. On Feb. 22, U.S. District Judge Kenneth A. Marra in Palm Beach County ruled that federal prosecutors, under former Miami U.S. Attorney Alexander Acosta, broke the law when they concealed a plea agreement from more than 30 underage girls in Palm Beach who had been sexually abused by Epstein, a multimillionaire New York hedge fund manager.

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.