Happy blog birthday!

It’s 14 years of blogging... 14!

Thank you again for reading and for the tips. It’s been a fun run.

A lot has changed for the District in 14 years. For starters, the district and magistrate benches are a lot younger and more diverse.

Parties for the new judges are now hosted on the 13th floor of the Ferguson courthouse. When I was clerking 22 years ago, parties were hosted in the Dyer courtyard and were catered by Christy’s. Old school. If you were lucky, Judge Davis would invite you to the after party for scotch in his chambers.

More reminiscing later... for now, I’m going to take the week off from posting unless something really important happens. I’ll see you all next week.

“Justice Gorsuch channels his inner-Scalia, which is good news for criminal defendants”

That’s the title of my latest piece in the Hill. Please take a look here and tell me what you think. From the introduction:

The late Justice Scalia often joked that he was “the darling” of the criminal defense bar and the “poster child” for the National Association of Criminal Defense Lawyers.  He was right.  More than any other Justice on the Supreme Court with him, he ruled for criminal defendants on important cases dealing with the confrontation clause, sentencing issues, the right to a jury, and probable cause to name a few.   

When Justice Gorsuch replaced Scalia, many feared that he would not be nearly as friendly to criminal defense issues.  But Gorsuch has proved those critics wrong.  Like Scalia, Justice Gorsuch may also get his own poster from NACDL.  Some examples from this Term: 

1. Haymond v. United States.  Justice Gorsuch wrote the 5-4 majority opinion, which is joined by the 4 more liberal Justices, in favor of a defendant who was found guilty of possessing child pornography.  The question for the Court was whether judges had the power to sentence defendants to additional an additional term of imprisonment without a jury finding beyond a reasonable doubt.  Justice Gorsuch said no way: “Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty.”  There’s lots of other really good language in the opinion, explaining that the right to trial by jury, together with the right to vote, is “‘the heart and lungs, the mainspring and the center wheel’ of our liberties, without which ‘the body must die; the watch must run down; the government must become arbitrary.’” (Quoting letter from Clarendon to W. Pam (Jan. 27, 1766), in 1 papers of John Adams 169 (R. Taylor ed. 1977)).  Great stuff.

And the conclusion:

Justice Gorsuch is far from perfect.  He is pro-death penalty.  He dissented in Flowers v. Mississippi, the case where the prosecutor illegally struck black jurors. These decisions have led some to rightfully criticize Gorsuch, like the well-respected Leah Litman in this piece.  But Litman is wrong to minimize what Gorsuch has done, saying he only “sometime departs” from his conservative colleagues. The truth is that he’s been quite good for the rights of criminal defendants, as was his predecessor Justice Scalia.  He doesn’t knee-jerk vote for the government like Justices Alito and Thomas.  And as Litman rightfully points out, he even votes for criminal defendants when his more liberal colleagues (like Breyer) do not. Instead of criticizing Gorsuch for not doing the right thing on every single criminal justice issue, we should be optimistic that he will continue to channel Justice Scalia’s independent streak on these issues.    

Democratic Debates in Miami (UPDATED)

They start tonight with 10 candidates and another 10 tomorrow night. Seems like way too many to have any meaningful discussion.

Will the topic of judges be brought up?

Criminal Justice?

Meantime, the final decisions from the Supreme Court are coming out in a few minutes, and any stragglers will be tomorrow. Check SCOTUSblog for updates.

Finally, I haven’t heard anything about the Rubio JNC interviews on Monday. If you have any tips or intel, please let me know and I will post it anonymously.

UPDATE — Justice Gorsuch again rules with the 4 liberal Justices on a criminal justice issue, this time in a sex-offender case. Here’s the opinion. He’s channeling his inner-Scalia. Here’s how the opinion starts:

Only a jury, acting on proof beyond a reasonable doubt,may take a person’s liberty. That promise stands as one ofthe Constitution’s most vital protections against arbitrary government. Yet in this case a congressional statute compelled a federal judge to send a man to prison for aminimum of five years without empaneling a jury of hispeers or requiring the government to prove his guilt be-yond a reasonable doubt. As applied here, we do not hesitate to hold that the statute violates the Fifth and Sixth Amendments

11th Circuit reversed again in a criminal case (UPDATED with Davis opinion)

UPDATE -- The Supreme Court in United States v. Davis also reversed the 11th Circuit's en banc opinion in Ovalles. The Supreme Court, per Justice Gorsuch, held that Section 924(c)(3)(B) is unconstitutionally vague.

This time the issue is what level of proof is needed under 922(g), the illegal gun possession statute.  The Court held that in a prosecution under 18 U.S.C. §922(g) and §924(a)(2), the government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.

Here’s the Supreme Court opinion, written by Justice Breyer, with a dissent by Justice Alito.

And here’s the 11th Circuit opinion.

SCOTUSblog explains the impact of the decision here:

Petitioner Hamid Rehaif will be among those who get a hearing on whether he actually knew he was out of immigration status. He had come to the United States on a student visa to study at a university in Florida, but he was academically dismissed. In informing him about his dismissal, the university’s email notified him that his immigration status would be terminated if he did not transfer to another school or leave the United States, neither of which he did. Instead, he stayed in Florida. During that stay, he went to a firing range, purchased ammunition and fired weapons. Hotel staff tipped off the FBI that Rehaif was engaging in suspicious behavior.

At the ensuing trial, the district court instructed the jury that it need not find that Rehaif knew he was out of immigration status, and the jury convicted. The U.S. Court of Appeals for the 11th Circuit affirmed, noting substantial agreement among its fellow circuits that the term “knowingly” in 18 U.S.C. § 924(a)(2) applies to possession of the weapon, but not to the status category of the possessor.

Breyer’s majority opinion rejected that position. “In determining Congress’ intent, we start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding ‘each of the statutory elements that criminalize otherwise innocent conduct,'” wrote Breyer. “Here we can find no convincing reason to depart from the ordinary presumption in favor of scienter [requirement of guilty mind].”

The phrase “otherwise innocent conduct” strongly echoed concerns voiced by Justices Neil Gorsuch and Brett Kavanaugh at oral argument. They had noted that possession of a gun alone is not blameworthy and therefore that one’s membership in a prohibited status category is all that stands between innocent and criminal conduct under Section 922(g). If the status divides innocent from criminal conduct, then the defendant should have to know of that status in order to be convicted, they suggested. Along those lines, the majority opinion acknowledged that the statute’s “harsh” maximum punishment of 10 years played a role in its decision.

Now that the court has decided that knowledge of status is required for a conviction under Section 922(g), prosecutors must think about what kinds of tangible evidence can be used to show that state of mind, and those looking to challenge their convictions must scour their records to find some evidence casting doubt on the existence of such knowledge. These tasks are complicated greatly by the fact that there are nine different status categories. While reminding prosecutors that they may prove state of mind through circumstantial evidence, the majority refused to get too specific, saying, “We express no view … about what precisely the Government must prove to establish a defendant’s knowledge of status in respect to other Section 922(g) provisions not at issue here.”

However, the majority opinion did mention two hypothetical fact scenarios in which there could be reasonable doubt that the defendant knew his status. Echoing a remark by Justice Sonia Sotomayor at argument, the majority pointed out that a failure to require knowledge would criminalize firearm possession by “an alien who was brought to the United States unlawfully as a small child and was therefore unaware of his unlawful status.” The court made the same observation about “a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is ‘punishable by imprisonment for a term exceeding one year.'” This would seem a particularly important scenario, given that the vast majority of convictions occur by plea bargain, where the lawyer, not the defendant, does the negotiating. Moreover, the average defendant’s curiosity only extends to the prosecutor’s actual offer, not to the theoretical maximum punishment that the prosecutor could have sought under the statute.

Breyer noted that the mens rea requirement for each element is important, especially in a case where there was such a severe maximum sentence of 10 years. 10 years. Of course he’s right, but I wonder whether the Justices are really aware that sentences over 10 years are handed out every day for non-violent first time offenders. It’s really insane. Rehaif is another message to judges in this Circuit to consider novel arguments, instructions, and so on that criminal defense lawyers raise. The only way to combat our overcriminalization and overincarceration problem is to grant some defense motions so that prosecutors are not so quick to charge, object, ask for such high sentences, and so on.

**Full disclosure — I was part of a team that filed an amicus brief for NACDL in support of the defendant.

Who makes up Senator Rubio's "JNC"?

Unlike the former and fairly transparent process that used to be in place with a public JNC, public interviews, and public list of candidates, there is quite a bit of secrecy surrounding how the Fort Pierce district court seat is being picked. 

Here's what I've been able to put together.  As reported on the blog a few days ago, Senator Rubio has put together his own group to interview a slate of six candidates.  Those candidates are:

Aileen Cannon (AUSA, Fort Pierce)
John Couriel (former AUSA, partner at Kobre Kim)
David Leibowitz (former AUSA, general counsel Braman)
Migna Sanchez-Llorens (former AFPD, state judge, Miami)
Meenu Sasser (state judge, West Palm Beach)
Michael Sherwin (AUSA, Miami)

Thanks to a bunch of great tipsters, I now have the list of Rubio's interviewers:

Co-Chairs:

Carlos Lopez-Cantera and Manny Kadre

Other members:

Georgina Angones
Kendall Coffey
Renier Diaz de la Portilla
Albert Dotson
Robert Fernandez
Jillian Hasner
Eduardo Lacasa
Jon Sale
Steve Waserstein

Breaking: six candidates to be interviewed for Fort Pierce slot

There has been a lot of speculation over the fifth and final open district court seat in this District,* which is slated for Fort Pierce.  I have multiple sources confirming that there will be no JNC for this opening.  Instead, Sen. Rubio has put together a group to interview six candidates.  Rubio's group will then recommend someone for that position, and it will be up to Rubio and Scott to see if they can agree on that person to recommend to the White House.

The six candidates are:

Aileen Cannon (AUSA, Fort Pierce)
John Couriel (former AUSA, partner at Kobre Kim)
David Leibowitz (former AUSA, general counsel Braman)
Migna Sanchez-Llorens (former AFPD, state judge, Miami)
Meenu Sasser (state judge, West Palm Beach)
Michael Sherwin (AUSA, Miami)

*Raag Singhal is being vetted for the open 4th slot.

Rodney Smith was sworn in and Lisette Reid had her investiture

Congrats to them both!

Judge Graham did the swearing in for Judge Smith.

And it’s Miami, so the judges were in their summer uniforms.

“I want everyone who looks at this matter to get to the bottom of it to make sure these proceedings are not tainted in any way."

1.  That was Judge Scola after learning that two snitches at FDC hatched a plot to pay a defendant to go to trial so that they would get a longer sentence reduction.  Jay Weaver covers the story here:

The potential payoff for her: From $1 million up to $10 million in bribes, according to her defense attorney, but with the downside that she might spend more time in prison herself if she was convicted.

The strange snitching twist came to light in a massive narcotics distribution case that has already seen nine of the 10 defendants plead guilty. Bravo and Belalcazar are cooperating with the feds after both pleaded guilty to conspiring to transport hundreds of kilos of cocaine into the United States — loads that were confiscated at sea by the U.S. Coast Guard. They now face up to life in prison — though the scheme described in open court and court documents suggests they were angling for far more lenient punishment.

The payoff plan could now backfire on them: the sole defendant, Yina Maria Castaneda Benavidez, who was supposed to face trial alone on Friday, was clueless about their plot to bribe her, according to her lawyer, Erick Cruz. And her intention was to go to trial anyway to fight the trafficking-conspiracy charge, Cruz said.

“She had no idea that this was going on,” he told the Miami Herald after the federal court hearing. “It caught her and everybody else by by surprise.”

Cruz and his client, whose trial has now been postponed until September, said they learned about the alleged bribery plot from federal prosecutors. They recently found out about it from a Drug Enforcement Administration agent, who got a tip from a paralegal, who somehow picked up on the scheme at the Federal Detention Center in downtown Miami. That is where the two Colombian cooperating witnesses, Bravo and Belalcazar, are in custody — along with Castaneda.

The FDC, a towering concrete building that mainly holds defendants who are awaiting trial or have pleaded guilty with cooperation deals, is notorious for inmates swapping dirt on one another to gain some ground against a long sentence.

In a court filing, Cruz said the two Colombian witnesses in the drug-trafficking case discussed their planned testimony about his client with other FDC inmates, and that they agreed to deposit money in her commissary account for the rest of her incarceration if she went to trial, was convicted and they received a sentence reduction.

Cruz has asked U.S. District Judge Robert Scola to disallow their appearances as government witnesses because “their desperation” to obtain a sentence reduction by testifying against Castaneda “impairs” her due process rights.

“The court should sanction [Bravo] and [Belalcazar] by not permitting them to testify at [Castaneda’s] trial,” Cruz wrote in the court filing. “Their conspiracy to devise a scheme in which they would bribe [Castaneda] to go to trial so that they could testify against her and receive a sentence reduction is novel, even by South Florida standards.”

Initially, prosecutors Joseph Schuster and Brian Shack said they still wanted to use the two Colombians as cooperating witnesses against her, but Judge Scola warned them that it may not be possible under the circumstances.

“I don’t know how you can come to that conclusion,” the judge said, raising the obvious problem of the two witnesses’ credibility and integrity.

2.  In other news, Rumpole covers Judge Altman's announcement that it is his policy to remand defendants at sentencing.  Rumpole rightfully says that the better practice is to allow self-surrender. 

One thing Rumpole didn't touch on was the enormous cost to the system and the defendant by requiring surrender at sentencing instead of to the prison where the sentence will be served.  A remand means that the defendant will go to FDC (if he's lucky; since Altman is in Broward, his defendants may go to the county jail before being moved to FDC) and then will wait there for 4-6 weeks until he is moved to another holding facility.  After spending time there, the defendant will then be moved to the ultimate prison at thousands of dollars of cost to the system for no reason.  And that doesn't account for the terrible conditions to the defendant during the transfer.  Talk to most defendants and they will tell you that the worst time they did was the movement from FDC to the holding prison to the final prison.  It's much worse than diesel therapy.  It's countless nights in the Special Housing Unit or sleeping on the floor of a county jail, all the while being cut off from being able to speak to your family.  Many times defendants are transported to Oklahoma or Atlanta even if their designated prison is somewhere in Florida.  It's just absurd. 

Most judges give defendants time after sentencing to self-surrender to their designated prison.  This way, the defendant bears the cost of the travel.  Marshals are able to focus on their jobs instead of transporting defendants.  And defendants can humanely go to the prison instead of being treated in ways which we wouldn't wish on our enemies. 

So I hope Judge Altman reconsiders a policy that greatly burdens the system, taxpayers, and defendants with no countervailing benefit.