Alex Acosta press conference

Watch here:



It's strange to me that people are just as angry with Acosta (the prosecutor) as they are with Epstein (the sex offender).  As I've written about here in the Miami Herald, Acosta ensured Epstein had to plead, register, and go to jail. Ten years later, the deal looks too lenient, but to say that he cut the deal for some nefarious reason is not fair.  Anyone who worked with or against Acosta knows that he would not have done that.  Some of the details in the piece are now dated because it was written back in December, but the main point is still the same.  I also wrote this piece for The Hill about Acosta, differentiating a bad deal from real prosecutorial misconduct.

This morning, the WSJ has a similar take here.

Alex Acosta tweets response re Epstein case

Here is the link. 

RIP Meenu Sasser

Very sad. Sasser was only 48. She had esophageal cancer. 

She was the first Asian American judge in Palm Beach. 

She was also a short lister for the district seat in Fort Pierce. 

The Palm Beach Post has the obituary here. 

Questions after Jeff Epstein charges

1. How does this affect the SDFLA civil litigation?

2. Will he get bond?

3. How will the SDNY get around Epstein’s previous non-prosecution agreement?  Is alleging different girls enough?

4. Will the case go to trial?

5. Will Epstein put the same defense team back together?

6. How will these charges affect other defendants considering pleading guilty if they might later be charged for the same conduct in a different district if that other district considers the sentence too lenient?

7. Why is the public corruption unit handling the case?

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.