Will Amy Comey Barrett be the next Supreme Court Justice?

If there is an opening during Trump's tenure, my money is on her.  The 46-year old judge on the 7th Circuit just wrote this dissent, arguing that felon-in-possession laws are unconstitutional as applied to non-dangerous felons.  It starts this way:

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun. In 1791—and for well more than a century afterward—legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.
18 U.S.C. § 922(g)(1) and Wisconsin Statute § 941.29(1m) would stand on solid footing if their categorical bans were tailored to serve the governments’ undeniably compelling interest in protecting the public from gun violence. But their dispossession of all felons—both violent and nonviolent—is unconstitutional as applied to Kanter, who was convicted of mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and billing Medicare accordingly. Neither Wisconsin nor the United States has introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe. Nor have they otherwise demonstrated that Kanter himself shows a proclivity for violence. Absent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment.

The conclusion:

If the Second Amendment were subject to a virtue limitation, there would be no need for the government to produce—or for the court to assess—evidence that nonviolent felons have a propensity for dangerous behavior. But Heller forecloses the “civic right” argument on which a virtue limitation depends. And while both Wisconsin and the United States have an unquestionably strong interest in protecting the public from gun violence, they have failed to show, by either logic or data, cf. Skoien, 614 F.3d at 642, that disarming Kanter substantially advances that interest. On this record, holding that the ban is constitutional as applied to Kanter does not “put[] the government through its paces,” see Williams, 616 F.3d at 692, but instead treats the Second Amendment as a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality opinion). I therefore dissent.

Meantime, in local news, Riverside House is trying to help recently released defendants reintergrate into the community.  In that vein, it is holding its 1st Annual Recognition Ceremony where AFPD Helaine Batoff and AUSA J.D. Smith are being honored for their work in Care Court.  Very cool!  Get your tickets here.

Review of Confessions of a Cocaine Cowboy

Friend of the blog Billy Corben is known for his uniquely Miami documentaries: The Cocaine Cowboys series, The U series, Dawg Fight, Screwball, and on and on.  They are all must-watch.  So too with his new venture — a play at the Colony Theatre in Miami Beach called Confessions of a Cocaine Cowboy.

The play tells the story of 80's Cocaine Traffickers Rivi (Jorge Ayala) and Griselda Blanco through the eyes of Rivi (played by Yancey Arias).  You’ll also get some of the story told by Detectives Singleton  (Stephen Anthony) and Diaz (Nicholas Richberg), as well as Blanco and Kathy Rundle (both played by Zilah Mendoza). All of the actors were really great, and Mendoza seamlessly goes back and forth between two leading parts.  Billy makes clear that he views both her characters as the villains in the story.  

Billy’s fast-paced persona jumps off the script: the play is funny, smart, and history lesson all at the same time. 

And in an only-in-Miami opening night, the audience included the actual detectives Singleton and Diaz, Blanco’s son (named Michael Corleone), Blanco’s lawyer, a former U.S. Attorney, a federal judge, and the mayor of Miami Beach.  The detectives and Corleone were recognized towards the end of the show to the crowd’s delight.  

Billy loves telling Miami stories and is at his best when he’s doing so.  When he and partner Alfred Spellman were first researching for Cocaine Cowboys and came across the Rivi depo, they joked about turning it into a play. You couldn’t make up some of the stories that Rivi tells, including the insane sex-phone scandal with some of the secretaries at the State Attorney’s office.  

Government rests in Esformes trial

I’m trying to stay away from blogging about this case, but it’s the biggest case going on in the District so here’s a little news. Five weeks in, the government rested. Judge Scola kicked some of the counts, but most will be going to the jury. But not just yet. The defense listed 150 witnesses.

So you wanna be a Magistrate Judge?

Well, step right up.  Judge Barry S. Seltzer is retiring on January 3, 2020, opening up a slot in Ft. Lauderdale.

Chief Judge K. Michael Moore has selected Jon Sale to lead the Magistrate Selection Committee.  That Committee will recommend 5 applicants to the District Court for the final selection.

Although this has not been made public yet, in the near future, the application will be available on the court website and then forward it to FLSD_MagistrateJudgeRecruitment@flsd.uscourts.gov

Good luck all.

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.