Breaking -- Greg Craig found NOT guilty

This was the big white collar case that everyone was following very closely over the past month.

Craig never should have been charged.  One count was dismissed and one count quickly rejected by a jury.  Sad!

From the Government's closing:

“No matter how many great things he has done in this country, no one is above the law in this country,” he went on. “The truth matters. Facts matter. And now that you have heard the evidence, it is time for you to hold this man accountable for that scheme, and that truth, and find him guilty as charged.”

And from the defense:

In the defense’s closing, Craig attorney William J. Murphy implored jurors to scrutinize the law and a 2013 letter from Craig to the Justice Department explaining to investigators that Craig had his own reasons to speak to the Times, namely to defend himself, his firm’s and his colleagues’ work, and that he was not paid for his media outreach.

Government allegations that Craig was part of Ukraine’s media rollout of the report relied on the words of a “congenital liar,” Murphy said, naming Manafort deputy Rick Gates, who testified and awaits sentencing after cooperating in Mueller’s probe and as a witness against Craig and Manafort.

Murphy said Craig was truthful in saying that in responding to the Times, Craig did not inform or consult with Ukraine or act as its agent.

Murphy spoke of the reputation Craig had built over 50 years and urged jurors to “salvage” it for him, saying, “We ask you to apply the evidence with the law and find him not guilty and prevent this prosecution from sounding a horrible, false note at the end of an incredible career of honor, service and integrity.”

There really should be consequences when the Government loses at trial.

Still no word on the mags

Tipsters welcome!

Meantime, go buy some Ben & Jerry’s Justice Remix’d, their new ice cream flavor:

We are flipping our lids over our newest flavor! Meet Justice ReMix’d, a new flavor featuring cinnamon and chocolate ice creams, gobs of cinnamon bun dough, and spicy fudge brownies. And the best part? Justice ReMix’d also has a sweet swirl of justice under the lid.

Justice For All? 

We launched Justice ReMix’d in partnership with The Advancement Project National OfficeOpens a new window, a multi-racial civil rights organization that works with local grassroots organizers on racial justice issues. We believe justice should be for everyone, not just the white and wealthy. So we’re speaking out in the best way we know of — with a euphoric ice cream flavor — for an end to structural racism in our broken criminal legal system.

We started in Washington, DC, by announcing the new flavor one day before the Miami-Dade County School Board is expected to address issues that impact the school-to-prison pipeline.

Systemic racism and criminal justice reform are big issues for a business to take on, but we’ve been advocates for social justice and equity throughout our 40 year history. “Our approach to creating social change is to raise up the work non-profits are doing on the ground,” said Co-Founder Ben Cohen. “We bring every resource we have to support them—our business voice, our connection with fans, our Scoop Shop community and of course, ice cream. Somehow, it’s easier to talk about difficult issues over a scoop or two.”

“Our country needs to invest in services that build up communities rather than those that tear them down,” said Advancement Project National Office Executive Director Judith Browne Dianis. “That means ending a wealth-based pre-trial detention system that locks people up because they are poor, Black or Brown. It means dismantling the school-to-prison pipeline, divesting from criminalizing students, and investing in the creation of high-quality education and services. It’s time to reimagine safety and justice.”

SDFLA Federal Courts Closed Tuesday

Courtesy of Hurricane Dorian.

The feds follow the school system. Since schools have closed, the feds have followed suit. So much for the Supremacy Clause.

No news on the magistrate interviews yet

I’m working on getting the list of 5 names being sent to the judges.  If you have a tip, please email me.

In the meantime, if you’d like some hurricane reading, check out these two opinions by Judge Newsom.  He is such a good writer that sometimes you forget that he is issuing some crushing opinions for criminal defendants.  The first is USA v. Baptiste, where even the prosecution couldn’t defend the trial court’s admission of hearsay with a straight face.  But the 11th won’t come out and say that it’s hearsay, instead holding that it doesn’t matter because ... you guessed it: harmless. After saying that, the court goes on to allow the hearsay at sentencing because it’s reliable hearsay.  Hmmmm:

Although Baptiste raises a number of issues on appeal, we focus primarily on two questions related to the hearsay testimony of a government witness. The abridged version of the story: Francesse Chery was one of Baptiste’s key witnesses. The government countered with her brother, Anael Chery, who testified (among other things) that Francesse had told him that, in exchange for her (false) testimony supporting Baptiste’s narrative, Baptiste would give her a Mercedes. Baptiste argues that Anael’s testimony was inadmissible hearsay and that the district court’s error in allowing the jury to hear it tainted both his conviction and his sentence.
Baptiste’s challenge presents two questions. First, was Anael’s testimony indeed inadmissible hearsay? The district court admitted the testimony pursuant to the statement-against-interest exception to the general prohibition on hearsay evidence, and on appeal the government has offered a smattering of additional theories of admissibility. We conclude that we needn’t decide whether Anael’s testimony was inadmissible hearsay because even if the district court did err in allowing it, the error was harmless. There was more than enough compelling—and undoubtedly admissible—evidence to support Baptiste’s conviction.
Second, and (sort of) relatedly, did the district court err in relying on Anael’s testimony when it imposed a sentencing enhancement for obstructing justice? If you’re saying, “Didn’t they just say they weren’t going to decide whether the testimony was admissible?”—we hear you. As it turns out, though, thanks to a doctrine called (somewhat oxymoronically) “reliable hearsay” we can answer the second question without deciding the first. Under the reliable-hearsay doctrine, so long as certain preconditions are met, a sentencing court can rely on evidence that would be off-limits in the guilt phase. For Baptiste, this means that even if Anael’s description of his sister’s supposed deal was inadmissible hearsay (and we aren’t saying either way) the district court might not have erred in relying on that testimony for the obstruction enhancement—again, so long as the preconditions are met.
So, what are they? Well, our case law has arguably sent mixed signals about that. There is, though, a synthesis. We hold (and clarify) today that the Sentencing Guidelines permit use of hearsay testimony so long as the overall record provides “sufficient indicia of reliability”—and we conclude that the indicia of reliability here are sufficient.

Next up is United States v. Taylor, which involves some really interesting 4th Amendment issues and NIT warrants. Judge Newsom finds that the warrants were illegal, but no suppression is warranted because... you guessed it: good faith. I’ll post more about this case later, but the takeaway from these two cases — the doctrines of harmless error and good faith are being used in extremely aggressive ways by the 11th Circuit to send a clear message to district judges: don’t worry, we have your back if you rule for the prosecution, even if you err.  Don’t worry about bad warrants in pretrial proceedings. Don’t sweat the hearsay at trial.  Appellate review weighs heavily in favor of affirming convictions even where there are big problems with the ways in which prosecutors and judges are obtaining these convictions.

We're #5...

...on this ranking for best places to practice law.  Number 1 is Illinois:

Our top state for lawyers based on the six metrics we considered is Illinois. Lawyers in Illinois have had high earnings growth over the past five years resulting in high average incomes. Between 2014 and 2018, average annual earnings for lawyers rose 22.70%, bringing the 2018 mean income for a lawyer in Illinois to $152,980.

Re Florida:

Florida ranks third on two of our density measures, the number of lawyers per 1,000 employees and law offices as a percentage of total establishments. In 2018, there were 5.49 lawyers in Florida for every 1,000 workers, and in 2016, law offices made up 3.04% of total establishments in the state. In fact, Florida has the second-highest law office density of any state in our top 10, following only the District of Columbia.
Lawyers’ earnings growth in Florida lags behind eight of our other top-10 states. In 2014, the average annual income for lawyers was $122,020 and it grew to be $128,920 in 2018. While this is an increase of almost $7,000, in percentage terms it is only 5.65%, which falls below the average earnings growth across all states of 6.58%.

  Kim Kardashian won't be practicing here as she is studying for California.  And studying hard:

In her interview with West, she opened up about how difficult it has been to be taken seriously as a student of law due to her wealth and celebrity.

“There is a misconception that I don’t actually have to study and that I’ve bought my way into getting a law degree – that’s absolutely not true,” she explained in an excerpt from the interview. “Being underestimated and over-delivering is my vibe.”

Magistrate Judge Interviews this week

The Magistrate Judge Selection Committee, headed by Jon Sale, will be conducting interviews Thursday of 13 candidates (two have withdrawn their names).  They will recommend 5 to the District Judges, who will pick one.  The list of 13 interviewees is (in no particular order):

AFPD Sowmya Bharathi
AFPD Bernardo Lopez

AFPD Tim Day

Judge Lornette Reynolds
Barbara Junge
Shari Lefton
Rossana Arteaga-Gomez

Meredith Schultz 

AUSA Steve Petri

AUSA Joseph Huynh

AUSA Jared Strauss 

AUSA Bruce Brown

AUSA Julia Vaglienti

"Sheesh."

That's a sentence from this introductory paragraph by Judge Newsom:

You can’t make this stuff up. We have hair-pulling, wrist-scratching, facepunching, and rock-throwing—all the makings of a good old-fashioned schoolyard scrap. But alas, the combatants in the fracas underlying this Fourth Amendment case were grown-ups—sisters, in fact. Sheesh. Sister No. 1, Lori Huebner, was arrested for simple battery following an altercation with Sister No. 2, Kathleen Dobin. Huebner later sued Deputy Peter McDonough, alleging that he violated her Fourth Amendment rights (1) by arresting her without probable cause—in particular, by relying on what she claims
was untrustworthy information and by failing to conduct an adequate investigation—and (2) by using excessive force in the course of effectuating the arrest. The district court granted summary judgment to McDonough, and Huebner now appeals. We hold that McDonough had ample probable cause to arrest Huebner—the underlying information indicating that she had battered her sister was credible and his investigation was  sufficient—and that McDonough didn’t use excessive force in making the arrest.

 Enjoy the rest of the opinion.

Prosecutor’s use of an agent as an expert witness is plain error

We’ve all been in trials where the government tries to use a case agent as an expert witness to testify as to why what the defendant was doing is criminal.  The 11th Circuit decided an important case (U.S. v. Hawkins) today putting an end to this practice.

That brings us to the matter of Agent Russell’s trial testimony. Hawkins and McCree argue that Agent Russell “went far beyond permissible testimony” when he repeatedly provided “speculative interpretive commentary” on the meanings of phone calls and text messages and gave his opinions about what was occurring during and in between those communications. We agree.
Agent Russell—a lieutenant with the Montgomery Police Department assigned to the DEA’s High Intensity Drug Trafficking Area task force from 2011 through 2015—was both the lead case agent in the investigation and the Government’s principal witness at trial. He provided extensive testimony about the drug trade, the investigation, and the intercepted phone calls, and—contrary to the Government’s puzzling contention otherwise—he was presented as an expert to the jury.
Hawkins and McCree acknowledge that experienced narcotics agents may testify as experts to help juries understand the drug business, codes, and jargon; indeed, this Court has repeatedly so held. See, e.g., Holt, 777 F.3d at 1265 (“‘The operations of narcotics dealers are a proper subject for expert testimony under [Federal Rule of Evidence] 702,’ and ‘an experienced narcotics agent may testify as an expert to help a jury understand the significance of certain conduct or methods of operation unique to the drug distribution business.’” (quoting United States v. Cesar Garcia,14 447 F.3d 1327, 1335 (11th Cir. 2006))). But that is not the problem here.
Much of Agent Russell’s trial testimony “was not specific to his interpretation of drug codes and jargon” and “went beyond interpreting code words to interpret conversations as a whole.” United States v. Emmanuel, 565 F.3d 1324, 1336 (11th Cir. 2009). During his extensive time on the witness stand, Agent Russell “interpreted” unambiguous language, mixed expert opinion with fact testimony, and synthesized the trial evidence for the jury. His testimony strayed into speculation and unfettered, wholesale interpretation of the evidence. Allowance of this testimony constituted plain error.